EXHIBIT 10.23
MANAGEMENT AGREEMENT
THIS AGREEMENT, made and entered into on January 3, 2003 by and between B C
Restaurants, LLC, a California limited liability company (the "Owner"), and E &
C San Francisco, LLC, a California limited liability company (the "Manager");
W I T N E S S E T H:
WHEREAS, the Owner intends to develop and open an Elephant & Castle(R)
restaurant (the "Elephant & Castle(R) Restaurant" or the "Restaurant") pursuant
to a license agreement with Elephant & Castle International, Inc. (the "License
Agreement') that will be located in the Club Quarters Hotel located at Battery
and Clay Streets in San Francisco, California; and
WHEREAS, the Owner desires to employ the services of the Manager to provide
general administrative services and manage the day-to-day operations of the
Owner's Elephant & Castle(R) Restaurant in accordance with the License
Agreement, and the Manager desires to provide these services to the Owner; and
NOW, THEREFORE, in consideration of $10, the foregoing and the mutual covenants
of the parties herein contained and other good and valuable consideration, the
parties hereby agree as follows:
ARTICLE 1
APPOINTMENT OF MANAGER; PRE-OPENING COSTS
1.1 APPOINTMENT
The Owner hereby designates and appoints the Manager as the Owner's exclusive
manager for the Restaurant, and the Manager hereby accepts such designation and
appointment and agrees to perform its duties in accordance with (a) the terms
and conditions of this Agreement, and (b) the standards of management and
operational services customarily and reasonably required of the Manager to
fulfill the purposes of this Agreement.
1.2 PRE-OPENING COSTS
The Manager, at its sole expense, will be responsible for and pay all
pre-opening training and all pre-opening costs for the Restaurant. "Pre-Opening
Training and Pre-Opening Costs" will mean all costs incurred for the recruitment
of employees for the Restaurant, the initial training of the Restaurant's
employees prior to opening for business, and the salaries, fringe benefits,
travel costs, food and lodging of the training crew for both the period before
the opening of the Restaurant and the period immediately following the opening
that the Manager deems necessary to properly train the Restaurant's employees.
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ARTICLE 2
STANDARDS OF OPERATION
2.1 The Manager will operate the Restaurant at an operational standard that
is equal to or better than the standards of operation maintained by the Elephant
& Castle(R) Restaurants operated in the Club Quarters Hotels in Boston,
Massachusetts and Chicago, Illinois. In addition, the Manager will operate the
Restaurant in accordance with the standards, terms and conditions contained in
(a) the Lease Agreement between the Owner and Battery & Clay Associates, LLC
which is incorporated herein by reference, and (b) the License Agreement with
Elephant & Castle International, Inc., which is incorporated herein by
reference. In the event that any terms and conditions in this Agreement, the
Lease and/or the License Agreement are in conflict with regard to the standards
of operation of the Restaurant, then the standards of operation set forth in the
Lease will govern.
ARTICLE 3
ANNUAL BUDGET
3.1 Commencing on January 3, 2003, and for each calendar year during the term
of this Agreement, the Owner and the Manager will jointly prepare an Operating
Budget for the Restaurant. All disputes relating to the Operating Budget will be
resolved by the Owner. The Operating Budget will include all projected costs for
operating the Restaurant, including, but not limited to all costs for food,
labor, liquor, management salaries, occupancy, utilities, telephone,
advertising, third-party service providers, liability insurance, accounting,
licenses and permits, employment taxes, payroll taxes, health insurance, fringe
benefits, employee incentives, training/operating costs, employment agency fees,
repairs and maintenance, service contracts, and legal fees. The budget will be
prepared in the form agreed to by the Owner and Manager.
ARTICLE 4
DUTIES OF THE MANAGER
4.1 MANAGEMENT OBLIGATIONS. The Manager will, during the term of this
Agreement, conduct the business of the Elephant & Castle(R) Restaurant owned by
the Owner according to (a) the Manager's reasonable discretion and consistent
with the existing store operation practices of Elephant & Castle(R) Restaurants,
and (b) the terms and conditions of the Lease and License Agreement, subject to
express direction and control by the Owner, the terms and conditions of this
Agreement, and the laws and regulations applicable to the Restaurant. In
conducting the affairs relating to the Owner, the Manager will use its best
efforts to market, advertise and promote the business of the Restaurant and to
comply, in all material respects with the laws, rules, regulations, and other
requirements applicable to the operation of the Owner's Elephant & Castle(R)
Restaurant. Without limiting the scope of the Manager's authority under this
Agreement but subject to the Operating Budget, the Manager is explicitly
authorized by the Owner to perform the following services and activities for the
Owner in connection with the operation of the Restaurant:
(a) HIRING. The Manager will be responsible for the employment and
termination of employment of all employees the Manager determines are
required for the efficient and effective operation of the Restaurant.
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(b) COMPENSATION. The Manager will be responsible for determining the
compensation payable to individual employees and arrange and supervise
payroll services provided by third parties.
(c) TRAINING. The Manager will be responsible for developing, arranging
and providing all training programs required for the employees of the
Restaurant.
(d) SUPERVISION. The Manager will be responsible for supervising the
day-to-day job performance of the Restaurant's General Manager and
employees and for monitoring and evaluating sales performance and
customer service.
(e) ADVERTISING. The Manager will be responsible for administering and
managing the advertising, marketing and sales promotions for the
Restaurant using the media the Manager deems appropriate and effective
and in the best interest of the Restaurant. The Manager will not have the
right to advertise or promote the Club Quarters Hotel or to use the Club
Quarters name in connection with any advertising of the Restaurant or
otherwise.
(f) ACCOUNTING. The Manager will be responsible for supervising all
employees and third parties who will provide internal accounting for the
Restaurant, including accounts payable and accounts receivable, general
ledger accounting, fixed asset reporting and overall financial reporting,
including the preparation of the financial statements required under this
Agreement.
(g) EXPENSE PAYMENT. The Manager will be responsible for supervising
the employees and third-party providers who will be paying the business
and operational expenses of the Restaurant in accordance with the terms
of this Agreement, by means of checks or otherwise, drawn on the accounts
of the Restaurant, and approve all payables subject to any dollar
limitations on expenditures that have been agreed to by the Manager and
the Owner in writing.
(h) PLANNING AND REVIEW. The Manager will be responsible for providing
the necessary data and information required by the Owner for evaluating
the operations of the Restaurant.
(i) COMPLIANCE. The Manager will be responsible for operating and
maintaining the Restaurant in compliance with the Lease, the License
Agreement and applicable laws.
(j) INSURANCE. The Manager will be responsible for procuring,
administering and managing all insurance coverage required for the
Restaurant.
(k) COMMUNICATION. The Manager will be responsible for communicating
all pertinent business, financial and operational information that is
reasonably requested by the Owner.
(l) GENERAL MANAGEMENT. The Manager will be responsible for performing
all other acts necessary for the proper management of the Restaurant or
that are required in connection with the performance of the Manager's
duties under this Agreement.
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4.2 THIRD PARTY PROVIDERS. If any affiliated company of the Manager provides
services for the Restaurant under this Agreement, including payroll and
accounting services, then the amount charged to the Restaurant for those
services will not exceed the amount that a third party would charge for the same
services.
4.3 OPERATING BUDGET. All expenditures made by the Manager for the operation
of the Owner's Elephant & Castle(R) Restaurant during any calendar year must be
in accordance with the amounts set forth in the Operating Budget approved by the
Owner and the Manager, except as agreed to by the parties. Notwithstanding the
foregoing, the Manager will have the right to make business expenditures for the
Restaurant in an amount not exceeding $25,000 more than the total amount of the
yearly budget.
ARTICLE 4
ADDITIONAL INSTRUMENTS
The Owner will promptly execute and deliver such powers, authorizations and
other documents, and take any and all other actions that are necessary or
desirable to enable the Manager to perform its duties under this Agreement.
ARTICLE 5
FINANCIAL STATEMENTS AND REPORTS
5.1 FINANCIAL STATEMENTS. The Manager will, during the term of this
Agreement, furnish the Owner with monthly and year to date financial statements
for the Restaurant in the form and format used by Elephant & Castle(R)
Restaurants and approved by the Owner and the Manager. The financial statements
will be provided to the Owner on or before the 25th day of each month.
5.2 BOOKS AND RECORDS. The Manager will, during the term of this Agreement,
furnish the Owner with all written and oral reports regarding the operation of
the Restaurant reasonably requested by the Owner. All books and records of the
Restaurant maintained by the Manager will be deemed the property of the Owner
and will be available for inspection by the members, chief manager, officers,
governors or agents of the Owner at all times during normal business hours. The
Manager may make and retain copies of all books and records for purposes related
to the Manager's performance of its obligations under this Agreement, provided
that all books and records will be provided to the Owner upon termination of
this Agreement.
5.3 COPIES TO THE MANAGER AND THE OWNER. The Owner will send the Manager
copies of all documents or communications concerning the business of the
Restaurant that the Manager may require to perform its duties hereunder, or
involving matters which the Manager has undertaken to perform for, or on behalf
of, the Owner, and such other documents as the Manager may reasonably request.
The Manager will promptly send the Owner copies of all documents or
communications concerning the business or operations of the Restaurant dealing
or the ownership of the Restaurant as well as such other documents as the Owner
may reasonably request. All books and records of the Owner will be available
during business hours for inspection by the Manager and its officers, employees
or agents, and the Manager and its officers, employees or agents will have the
right to make copies thereof or extracts therefrom.
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ARTICLE 6
OWNER'S EXPENSES
The expenses, costs, fees and assessments incurred in the operation of the
Owner's Elephant & Castle(R) Restaurant will be borne entirely by the Owner, and
the Manager is authorized to pay such expenses from the Restaurants bank
accounts. Expenses of the Restaurant will include all expenses in the Operating
Budget.
ARTICLE 7
MANAGER'S COMPENSATION
The parties acknowledge that the Manager is a non-managing Member of the Owner
and that the Manager will be entitled to receive a portion of the net profits
from the Restaurant as a result of its Member's Ownership Interest. As a
consequence, under the terms of the Member Control Agreement entered into by the
Owner's Members (which is incorporated herein by reference), the Owner, the
other Member, and the Manager have agreed that the Owner will not have the
obligation to pay the Manager any management fee or other compensation for the
services being provided under this Agreement.
ARTICLE 8
EMPLOYMENT OF THE MANAGER'S EMPLOYEES,
USE OF THIRD PARTIES OR SUBCONTRACTORS
The Manager will employ or contract for such personnel as it deems necessary to
carry out its duties under the Operating Budget and this Agreement. The
personnel responsible for the operations of the Restaurant will be the employees
of the Owner's Restaurant or contractors engaged by the Manager on behalf of the
Owner's Restaurant. The Manager will not be required to employ or contract with
any specific individuals in connection with the management or operation of the
Restaurant; however, the Owner will have the right to approve the hiring of the
person who will act as the General Manager of the Owner's Restaurant. The
Manager will perform the services it is required to perform hereunder at its own
expense (except as otherwise expressly specified herein) through its own
employees or through arrangements with other individuals or entities (which may
be controlled by, under common control with, in control of, or an affiliate of
the Manager). The Manager will not have the right to conduct any other business
and its services will be exclusive to the Owner.
ARTICLE 9
TERM OF AGREEMENT
Subject to the provisions of ARTICLE 10, the term of this Agreement will
commence on the date first set forth above, and will continue in effect for 10
years from the date the Lease is effective.
ARTICLE 10
TERMINATION
10.1 TERMINATION BY THE OWNER - WITH CAUSE. In the event of a material breach
of this Agreement by the Manager, the Owner will have the right to terminate
this Agreement by giving the Manager 60 days' prior written notice and a 60 day
opportunity to cure the specified default.
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In addition, the Owner will have the right to terminate this Agreement, without
giving the Manager an opportunity to cure, by giving the Manager three days
written notice if (a) the Lease for the Owner's Elephant & Castle(R) Restaurant
is terminated, or (b) the License Agreement for the Owner's Elephant & Castle
(R) Restaurant is terminated.
10.2 TERMINATION BY MANAGER - WITH CAUSE. The Manager will have the right to
immediately terminate this Agreement at any time upon written notice if (a) the
Owner fails to provide the funds necessary for the Manager's effective
management of the Owner's Elephant & Castle(R) Restaurant, (b) the Lease for the
Owner's Elephant & Castle(R) Restaurant is terminated, or (c) the License
Agreement for the Owner's Elephant & Castle(R) Restaurant is terminated.
ARTICLE 11
INDEMNIFICATION; LIABILITY LIMITATION
The Owner agrees that the Manager will not be liable to the Owner for any action
or omission undertaken in good faith to perform its obligations under this
Agreement. The Owner agrees to indemnify and hold harmless the Manager and its
officers and directors and its affiliated companies and their officers,
directors and employees (the "Indemnitee" or "Indemnitees") from and against any
and all liabilities, costs, expenses, and damages, including attorneys' fees,
actually and necessarily incurred by or imposed on any of the Indemnitees in
connection with or resulting from any claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative, or any appeal therein, with
which any Indemnitee may be or become involved or with which any Indemnitee may
be threatened, as a party or otherwise, by reason of the performance of the
Manager's duties hereunder, provided that such actions or inactions were taken
or omitted by the Indemnitee in good faith and in the reasonable belief that
such actions or inactions were in, and not opposed to, the best interests of the
Owner, and provided that the Indemnitee had no reasonable cause to believe its
conduct was unlawful.
ARTICLE 12
NOTICES
All communications hereunder shall be in writing and shall be sent by (a)
pre-paid certified United States mail, return receipt requested, (b) personal
service, or (c) a recognized overnight delivery service such as UPS or Federal
Express that requires an acknowledgement of delivery by the addressee. All
notices shall be deemed effective upon receipt. Notices to the Owner will be
addressed to ▇▇. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, Battery & Clay Associates, LLC
c/o Masterworks Development Corporation, 56 West 45th Street, 4th Floor, New
York, New York, 10036, or at such other address as the Owner may designate in
writing, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., ▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇. Notices to the Manager will be addressed to
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Manager, E & C San Francisco, LLC, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, or at such other address as
the Manager may designate in writing, with a copy to G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇,
Esq., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇, ▇▇▇▇ AT&T Tower, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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ARTICLE 13
SUCCESSORS; ASSIGNMENT
This Agreement will be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement may not be assigned by either of the parties hereto without the prior
written consent of the other. Any delegation or subcontracting of duties or
responsibilities by the Manager to third parties pursuant to the provisions of
this Agreement will not be deemed an assignment.
ARTICLE 14
NO IMPUTATION OF PARTNERSHIP
The Owner and the Manager are not partners or joint venturers and neither this
Agreement nor any provision thereof will be deemed to constitute a partnership
or joint venture as between the parties or to constitute either party the agent
of the other for any purpose except as expressly provided for in this Agreement
or in any other written agreement entered into by the parties.
ARTICLE 15
SEVERABILITY
If any provision or part thereof of this Agreement is found to be prohibited,
unenforceable or invalid under the laws of any jurisdiction, then the provision
or part thereof will be ineffective to the extent of such prohibition,
unenforceability or invalidity under the applicable law without affecting the
enforceability or validity of such provision in any other jurisdiction, and
without invalidating the remainder of that provision or the other provisions of
this Agreement.
ARTICLE 16
MISCELLANEOUS
16.1 ENTIRE AGREEMENT. All prior agreements, contracts, promises,
representations and statements, if any, between the parties hereto, or their
representatives, with respect to the management and operation of the Restaurant
are merged into this Agreement, and this Agreement represents the entire
agreement between the parties with respect to the operation and management of
the Restaurant. Notwithstanding the foregoing, if any provision of this
Agreement conflicts with or is inconsistent with any terms or conditions of the
Operating Agreement, then the terms and conditions of the Member Control
Agreement will govern.
16.2 MODIFICATION. No waiver or modification of the terms hereof will be valid
unless in writing signed by the party to be charged and only to the extent
therein set forth. In the event this Agreement is amended, said amendment must
be in writing and signed by both parties.
16.3 GOVERNING LAW. This Agreement will be governed by, and shall be construed
and regulated in accordance with, the laws of the State of California.
16.4 ARBITRATION. All controversies and disputes arising as a result of or
pertaining to this Agreement, including allegations of fraud or
misrepresentation and claims for specific performance, injunctive relief,
rescission, offset or any other remedies, will be resolved and settled by
Arbitration in San Francisco, California in accordance with the Code of
Procedure of the
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National Arbitration Forum, 1-800-474-2371 (▇▇▇.▇▇▇-▇▇▇▇▇.▇▇▇). The Federal
Rules of Evidence will apply to all Arbitration hearings between the parties and
each party will have the right to cross examine all witnesses produced by the
other party. The Owner and the Manager agree that San Francisco, California is
and will be the proper venue for any Arbitration hearing because the Restaurant
and the records of Restaurant are located there, and the Owner and the Manager
hereby waive any rights that they may have to contest venue of any Arbitration
proceedings in San Francisco, California. The decision of the Arbitrator will be
final and binding on all parties and the Arbitrator's decision may be entered as
a final judgment in any Court of competent jurisdiction. Each party will pay the
costs incurred by it in the Arbitration proceeding including, but not limited
to, attorneys' fees, filing fees, expert witness fees, deposition costs,
investigation costs, travel costs, court reporters' fees and long distance
telephone costs. The cost of the Arbitrator will be split equally between the
parties to the Arbitration proceeding.
16.5 HEADINGS. The headings of the ARTICLES in this Agreement are for
convenience only and do not define, limit or construe the contents of the
ARTICLES.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized officers on the day and year first above
written.
"MANAGER" "OWNER"
E&C SAN FRANCISCO, LLC BC RESTAURANT, LLC
BY BATTERY & CLAY
ASSOCIATES, LLC, ITS
CHIEF MANAGER
By By
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Manager ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
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