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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
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Date of Report (date of earliest event reported): December 30, 1997
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SFORZA ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
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Florida 000-23251 65-0705377
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
330 Clematis Street
West Palm Beach, Florida 33401
(Address of principal executive offices)
Registrant's telephone number, including area code: (561) 802-3535
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Item 2. ACQUISITION OR DISPOSITION OF ASSETS.
On December 30, 1997, Sforza Enterprises, Inc. (the "Company" or "Sforza")
acquired a fifty-one percent (51%) equity interest in each of four limited
partnerships, each of which owns (or will own) a Max's Grille Restaurant located
in South Florida. Contemporaneously with these transactions, each partnership
entered into a license agreement with Unique Restaurant Concepts, Inc. for the
right to use the name "Max's Grille" and the right to use the Max's Grille
Restaurant concept. Further, each limited partnership has entered into a
management agreement with Unique Restaurant Concepts, Inc., setting forth the
terms and conditions for the operation and management of the four restaurants.
The foregoing transactions are those contemplated by the Company and previously
disclosed in the definitive prospectus dated November 13, 1997 and contained in
the Company's Registration Statement filed on Form 424(B)(4) (as amended) with
the Securities and Exchange Commission on November 17, 1997 (the "Registration
Statement").
Item 7. FINANCIAL STATEMENTS.
(a) Financial Statements required by this item were filed with the
Registration Statement and are hereby incorporated herein.
(b) Financial Statements required by this item were filed with the
Registration Statement and are hereby incorporated herein.
(c) Exhibits:
2.1 Partnership Interest Subscription Agreement
10.1 Unique Brickell, Ltd. Amended and Restated Limited
Partnership Agreement
10.2 Unique Weston, Ltd. Amended and Restated Limited Partnership
Agreement
10.3 Unique TBA, Ltd. Amended and Restated Limited Partnership
Agreement
10.4 Max's Beach Grille, Ltd. Amended and Restated Limited
Partnership Agreement
10.5 License Agreement by and between Unique Restaurant Concepts,
Inc. and Unique Brickell, Ltd.
10.6 License Agreement by and between Unique Restaurant Concepts,
Inc. and Unique Weston, Ltd.
10.7 License Agreement by and between Unique Restaurant Concepts,
Inc. and Unique TBA, Ltd.
10.8 License Agreement by and between Unique Restaurant Concepts,
Inc. and Max's Beach Grille, Ltd.
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10.9 Management Agreement by and among Unique Restaurant Concepts,
Inc., Max's Beach Grille, Ltd., Unique Brickell, Ltd., Unique
Weston, Ltd. and Unique TBA, Ltd.
99.1 Press Release of the Company dated January 8, 1998
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SFORZA ENTERPRISES, INC.
(Registrant)
Date: January 9, 1998 By: /s/ Gerald J. Visconti, Jr.
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Gerald J. Visconti, Jr.
Vice President, Chief Financial Officer,
Treasurer and Secretary
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Exhibit 2.1
PARTNERSHIP INTEREST SUBSCRIPTION AGREEMENT
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THIS PARTNERSHIP INTEREST SUBSCRIPTION AGREEMENT ("Agreement") is entered
into as of the 30th day of December, 1997, by and among SFORZA ENTERPRISES,
INC., a Florida corporation ("Purchaser"), MAX'S BEACH GRILL, LTD., a Florida
limited partnership ("Beach Place"), UNIQUE BRICKELL, LTD., a Florida limited
partnership ("Las Olas"), UNIQUE WESTON, LTD., a Florida limited partnership
("Weston") and UNIQUE TBA, LTD., a Florida limited partnership ("TBA"). Beach
Place, Las Olas, Weston and TBA are sometimes referred to herein individually as
a "Partnership" and collectively as the "Partnerships."
W I T N E S S E T H:
WHEREAS, subject to the terms and conditions hereinafter set forth, each
Partnership desires to sell and issue to Purchaser, and Purchaser desires to
subscribe for and purchase from each Partnership, a Partnership Interest (as
hereinafter defined) comprising a fifty-one percent (51%) Partnership Percentage
(as hereinafter defined) in that Partnership. This Agreement is entered into
pursuant to the Funding Agreement dated July 1, 1997, as amended, among
Purchaser, Beach Place, Las Olas, Weston, Dennis Max, Unique Restaurant
Concepts, Inc. and Unique Restaurant Concepts, Ltd. ("Funding Agreement").
NOW, THEREFORE, in consideration of TEN DOLLARS ($10) in hand paid and the
mutual promises herein exchanged, together with other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
RECITALS
The foregoing recitals are true and correct and are incorporated herein by
reference.
ARTICLE II
PURCHASE AND SALE OF PARTNERSHIP INTEREST
2.1 Purchase and Sale. Subject to the terms and conditions hereof, each
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Partnership hereby agrees to issue and sell to Purchaser at Closing (as
hereinafter defined), and Purchaser hereby agrees to purchase from each
Partnership at Closing, a Partnership Interest comprising a fifty-one percent
(51%) Partnership Percentage in that Partnership (collectively, the "Purchased
Interests"). At Closing, Purchaser shall be admitted to each Partnership as a
limited partner.
The terms "Partnership Interest" and "Partnership Percentage" as used
with respect to any Partnership shall have the meaning given in the
Partnership Agreement (as hereinafter defined) for that Partnership. Copies
of the Partnership Agreement for each Partnership that will be
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in effect upon Closing are attached as Exhibits A, B, C and D hereto and are
hereinafter referred to individually as "Partnership Agreement" and collectively
as "Partnership Agreements."
2.2 Purchase Price. The total purchase price ("Purchase Price') to be
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paid by Purchaser to the Partnerships for the Purchased Interests shall be
Three Million Dollars ($3,000,000). The Purchase Price shall be paid in full by
wire transfer at Closing and shall be allocated among the Partnerships as
follows:
(a) An initial allocation of the Purchase Price shall be made among
the Partnerships in the following approximate amounts:
Beach Place $936,000
Las Olas $800,000
Weston $650,000
TBA $614,000
(b) The Purchase Price will be used by each Partnership to fund its
expenses of construction and opening of its restaurant and its repayments of all
loans and advances it has received to fund such expenses including but not
limited to any such loan from BankAtlantic and First Union National Bank, as
well as inter-company debt between any of the Partnerships and related parties
(collectively, "Pre-Opening Expenses").
(c) If the amount of the Purchase Price allocated to any Partnership
("Over-Funded Partnership") exceeds the amount of the Pre-Opening Expenses, as
determined by such Partnership's General Partner, the amount of such excess
("Over-Funded Amount") shall be real located, and paid by the Over-Funded
Partnership, as follows:
(i) First, if any Partnership's Pre-Opening Expenses exceed
the amount of its Purchase Price allocation (as determined by such Partnership's
General Partner), then the Over-Funded Amount shall be reallocated to such
Partnership up to the amount of such excess ("Funding Deficiency"). If more than
one Partnership has a Funding Deficiency, but the Over-Funded Amount is
insufficient to pay all such Funding Deficiencies, then the Over-Funded Amount
shall be allocated among such Partnerships pro rata based upon their respective
Funding Deficiencies; and
(ii) Then, any remaining Over-Funded Amount shall be allocated
among the Partnerships in equal amounts.
(d) If a Funding Deficiency exists with respect to Las Olas or
Weston that cannot be satisfied by application of any Over-Funded Amount as
provided in subparagraph (c) immediately above, then such Funding Deficiency
shall be satisfied from the portion of the Purchase Price allocated to TBA,
which entity the parties hereto recognize shall be the last to develop its
Restaurant. Notwithstanding anything to the contrary set forth in any of the
Partnership Agreements, the parties agree that, with respect to TBA, in the
event there is any Funding Deficiency, the same shall be
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satisfied as follows: (i) up to the first $175,000 required to satisfy a Funding
Deficiency shall be borrowed by TBA ("Deficiency Loan") from either unaffiliated
third party lenders or, with the consent of all Partners in TBA, from a Partner
or Affiliate of a Partner of TBA. To the extent required to obtain same, a
Deficiency Loan shall provide for satisfaction, in full, of the Deficiency Loan
prior to any distributions being made to the Partners of TBA and shall be
secured by all or any part of the assets of TBA; and (ii) any Funding Deficiency
incurred by TBA in excess of $175,000 shall be funded by Unique Restaurant
Concepts, Ltd. or any of its Affiliates and, to the extent Unique Restaurant
Concepts, Ltd. elects to raise the funds to satisfy its Funding Deficiency
obligation by selling all or any part of its Partnership Interest in TBA, TBA
hereby authorizes Unique Restaurant Concepts, Ltd. to make such a transfer of
its Partnership Interest without further consent from TBA or its General Partner
and to admit any such transferees as Limited Partners in TBA.
(e) Purchaser recognizes and acknowledges that Beach Place will have
an obligation under a lease relating to certain equipment in the approximate
amount of $270,000.
2.3 Closing. The closing of the transactions provided for herein
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("Closing") shall take place at 1:30 p.m. on the 30th day of December, 1997 at
the offices of Ruden, McClosky, Smith, Schuster & Russell, P.A., 200 East
Broward Boulevard, Fort Lauderdale, Florida 33301, or at such other date and
time as the parties shall mutually agree ("Closing Date").
2.4 Partnership Agreements. At Closing, the Purchaser shall execute and
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deliver to the Partnerships the Partnership Agreements.
2.5 Max's Grille Concept. The parties agree that each of the restaurants
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owned by each of Brickell, Weston and TBA shall be built and operated in a size
and style similar to the Max's Grille concept originated by Unique Restaurant
Concepts, Inc. and used in the Max's Grille restaurant located in Mizner Park,
Boca Raton, Florida.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARTNERSHIPS
As a material inducement to Purchaser to enter into and to consummate this
Agreement, each Partnership hereby makes the following representations and
warranties to Purchaser, each of which it represents to be true and correct on
the date hereof, and, except as such Partnership may notify Purchaser in writing
prior to the Closing, shall be deemed made again as of the Closing Date and
represented by such Partnership to be true and correct on the Closing Date.
3.1 Organization. It is duly organized, validly existing and in good
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standing under the laws of the State of Florida and is not required to be
qualified or licensed as a foreign limited partnership in any other
jurisdiction. It has the full power and authority to own all of its assets and
to continue conducting its business as and where such business is presently
conducted.
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3.2 Authority and Approval of Agreement.
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(a) It has the power and authority to execute and deliver this
Agreement and to perform all of its obligations hereunder. Its execution and
delivery of this Agreement and the performance of all its obligations hereunder
have been duly authorized and approved by all required partnership action on
its part pursuant to applicable law.
(b) This Agreement constitutes its valid and legally binding
agreement of such Partnership enforceable against it in accordance with its
terms, except that: (i) enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws of general application
affecting the enforcement of the rights and remedies of creditors; and (ii) the
availability of equitable remedies may be limited by equitable principles.
3.3 No Violations. Its execution, delivery and performance of this
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Agreement, and the consummation of the transactions contemplated hereby, do not
and will not: (i) constitute a violation of or default under (either
immediately, upon notice or upon lapse of time) its Partnership Agreement, any
provision of any contract or agreement to which it or any of its assets may be
bound, any applicable judgment, decree, order, statute, rule or regulation to
which it or its as sets may be bound; or (ii) result in the creation or
imposition of any liens, security interests, encumbrances and claims of others
upon, or give to any third person any interest in or right to, any of its
assets; or (iii) result in the loss or adverse modification of, or the
imposition of any fine or penalty with respect to, any license, permit or
franchise granted or issued to it or otherwise held by or for its use.
3.4 Litigation. It is not a party to or the subject of any pending
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litigation, suit or similar proceeding and to its knowledge, no person has made
any claim or threatened it with any litigation, suit or similar proceeding.
3.5 Broker's Fees. The Partnerships have not retained any broker, finder
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or agent or agreed to pay any brokerage fees, finders' fees or commissions with
respect to the transactions contemplated by this Agreement.
3.6 Solvency. It is solvent, as that term is defined in the U.S.
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Bankruptcy Code, 11 U.S.C. (S)1, et seq.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As a material inducement to each Partnership to enter into and to
consummate this Agreement, Purchaser hereby makes the following representations
and warranties to the Partnerships, each of which the Purchaser represents to be
true and correct on the date hereof, and, except as the Purchaser may notify
each Partnership in writing prior to the Closing, shall be deemed
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made again as of the Closing Date and represented by the Purchaser to be
true and correct on the Closing Date.
4.1 Organization. The Purchaser is duly organized, validly existing and
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in good standing under the laws of the State of Florida and is not required to
be qualified or licensed as a foreign corporation in any other jurisdiction. The
Purchaser has the full power and authority to own all of its assets and to
continue conducting its business as and where such business is presently
conducted.
4.2 No Violations. The execution, delivery and performance of this
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Agreement by the Purchaser, and the consummation of the transactions
contemplated hereby, do not and will not: (i) constitute a violation of or
default under (either immediately, upon notice or upon lapse of time) the
Articles of Incorporation or Bylaws of the Purchaser, any provision of any
contract or agreement to which the Purchaser or any of its assets may be bound,
any applicable judgment, decree, order, statute, rule or regulation to which the
Purchaser or its assets may be bound; or (ii) result in the creation or
imposition of any liens, security interests, encumbrances and claims of others
upon, or give to any third person any interest in or right to, any of its
assets; or (iii) result in the loss or adverse modification of, or the
imposition of any fine or penalty with respect to, any license, permit or
franchise granted or issued to, or otherwise held by or for the use of,
Purchaser.
4.3 Litigation. The Purchaser is not a party to or the subject of any
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pending litigation, suit or similar proceeding and, to its knowledge, no person
has made any claim or threatened it with any litigation, suit or similar
proceeding.
4.4 Broker's Fees. The Purchaser has not retained any broker, finder or
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agent or agreed to pay any brokerage fees, finders' fees or commissions with
respect to the transactions contemplated by this Agreement.
4.5 Acknowledgment of High Risk and Restrictions on Transfer. The
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Purchaser is aware that: (a) the Purchased Interests are speculative
investments which involve a high degree of risk of loss of the Purchaser's
entire investment therein; and (b) there are substantial restrictions on the
transferability of the Purchased Interests under the Securities Laws, under the
Partnership Agreements and for other reasons, and the Purchaser may be
required to bear the financial risks of the Purchased Interests for an
indefinite period of time. The Purchaser has adequate means of providing for
its own individual current needs and possible contingencies and has no need for
liquidity of the Purchased Interests. The Purchaser further acknowledges that
there is no trading market for the Partnership Interests and it is unlikely that
any will develop or that Partnership Interests will become eligible for resale
under Rule 144 of the Securities Act.
The Purchaser understands that an investment in the Purchased Interests
involves significant legal and tax consequences, and acknowledges that it has
been advised to seek independent professional legal and tax advice to carefully
analyze the consequences, risks and merits of the Purchased Interests.
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4.6 Suitability.
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(a) Sophistication. The Purchaser is an "accredited investor" as
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defined under Rule 501(a) promulgated under the Securities Act. The Purchaser
is capable of evaluating the merits and risks of investment in the Purchased
Interests. The Purchaser is a sophisticated investor by virtue of its
management's numerous prior investments and experience in investments similar in
nature to the Purchased Interests (including investments in unlisted and
unregistered securities) and the knowledge and experience in financial and
business matters in general of the Purchaser's management.
(b) Direct Negotiations. The terms and conditions of the issuance of
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the Pur chased Interests were determined through substantial negotiations
between the Partnerships and the Purchaser, in the course of which the Purchaser
exercised sufficient economic leverage to assert and protect its interests.
4.7 Access to Information. The Purchaser has been given complete access
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to all documents, records, contracts and books of each Partnership, all
documents, records, contracts and books relating to the Purchased Interests, and
it has engaged in a complete examination of all such documents, records,
contracts and books to the extent deemed necessary by the Purchaser in reaching
the decision to invest in the Partnership. The Purchaser has had an opportunity
to ask questions of and receive answers from the executive officers of the
general partners of each of the Partnerships (collective, the "General
Partners") concerning the Purchased Interests, the Partnerships, their affairs
and related matters, and with respect to any other matter the Purchaser has
deemed relevant, and all such inquiries have been completed to the Purchaser's
satisfaction.
4.8 No Advertising or Representations. The Purchaser is not acquiring
---------------------------------
the Purchased Interests as a result of any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media, any
seminar or any solicitation by a person not previously known to the Purchaser.
In reading its decision to acquire the Purchased Interests, the Purchaser has
not relied upon any representation or warranty made to the Purchaser by the Part
nerships, the General Partners, Dennis Max, Patti Max, Burton Rapoport, Dan
Catalfumo or any other officer, director, shareholder, employee, agent or
affiliate of any of the foregoing as to the Partnerships or the Purchased
Interests (except as set forth in Article III hereof) or as to the future
financial performance of any of the Partnerships or any other business or
entity.
4.9 No Intent to Resell. The Purchaser is acquiring the Purchased
-------------------
Interests solely for its own account and not for distribution or resale to
others. The Purchaser shall not resell or offer to resell the Purchased
Interests except in strict compliance with all applicable Securities Laws.
4.10 Purchaser Control; Consolidation. Purchaser acknowledges that,
--------------------------------
notwithstanding that the Purchased Interests are limited partnership interests,
Purchaser shall control the General Partners of each of the Partnerships by
virtue of its right, under the Funding Agreement, to designate a majority of
the members of the Board of Directors of each of the General Partners.
Purchaser further
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acknowledges that as a result of the control position, it intends
to consolidate the financial operations of the Partnerships as part of the
consolidated financial statements of Purchaser.
4.11 Other Business Interests. The Purchaser understands and agrees that
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certain of the officers, directors and shareholders of the General Partners and
their affiliates have and will have business interests ("Business Interests") in
the restaurant industry that will require their time and attention and may be
competitive with the businesses of the Partnerships . Purchaser acknowledges
and agrees that, except as otherwise expressly agreed in writing executed
subsequent to the date hereof, neither the Purchaser nor any of the Partnerships
will have any right, title or interest in or to the Business Interests.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Purchaser's Conditions Precedent. Purchaser's obligations to
--------------------------------
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction of each of the conditions set forth in this Section 5.1, except
to the extent that such satisfaction is waived in writing by Purchaser.
(a) Representations and Warranties of the Partnerships. All
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representations and warranties made by the Partnerships in this Agreement shall
have been true and correct in all respects on the date hereof, and shall be true
and correct in all respects on the Closing Date as though such representations
and warranties were again made, without exception or deviation, on the Closing
Date.
(b) Performance of this Agreement. The Partnership shall have duly
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performed or complied with all of its covenants and obligations under this
Agreement to be per formed or complied with by the Partnership on or prior to
the Closing Date.
(c) Absence of Proceedings. No Proceeding shall have been instituted
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or threatened on or before the Closing Date by any Person, the result of which
did or could prevent or make illegal the consummation of all or any of the
transactions contemplated by this Agreement, or which had or could have a
material adverse effect on the Partnerships or their respective businesses.
(d) Material Adverse Change. There shall have not occurred any
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material ad verse change, actual or threatened, for whatever reason, in the
Partnerships, their respective businesses or their financial condition or
otherwise, or in the results of operations of the Partnerships, including, but
not limited to any material casualty loss, whether or not covered by insurance.
5.2 Partnerships' Conditions Precedent. Each Partnership's obligation to
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consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction of each of the
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conditions set forth in this Section 5.2, except to the extent that such
satisfaction is waived by each Partnership in writing.
(a) Representations and Warranties of Purchaser. All representations
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and warranties of Purchaser contained in this Agreement shall have been true and
correct in all respects on the date hereof, and shall be true and correct in
all respects on the Closing Date as though such representations and warranties
were again made, without exception or deviation, on the Closing Date.
(b) Performance of this Agreement. The Purchaser shall have duly
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performed or complied with all of the covenants and obligations under this
Agreement to be performed or complied with by them on or prior to the Closing
Date.
(c) Absence of Proceedings. No Proceeding shall have been instituted
----------------------
or threatened on or before the Closing Date by any Person against the Purchaser
the result of which did or could prevent or make illegal the consummation of all
or any of the transactions contemplated by this Agreement.
(d) Material Adverse Change. There shall have not occurred any
-----------------------
material adverse change, actual or threatened, for whatever reason, in the
Purchaser, its businesses, its financial condition, its management or
otherwise, or in the results of operations of the Purchaser, including, but
not limited to any material casualty loss, whether or not covered by insurance.
(e) I.P.O.Closing. The I.P.O. Closing shall have occurred.
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ARTICLE VI
MISCELLANEOUS
6.1 Notices. Any notice, demand or communication required or permitted to
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be given by any provision of this Agreement shall be given: (i) when deposited
in United States Postal Service Depository, postage prepaid, registered or
certified mail return receipt requested; (ii) when sent by courier; (iii) when
hand delivered; or (iv) when transmitted by facsimile, if such facsimile is
followed by a hard copy of the facsimile communication, in each case when
addressed to the parties as set forth below, or such other address as shall be
specified by written notice delivered to the parties.
To Purchaser: Sforza Enterprises, Inc.
330 Clematis Street
Suite 211
West Palm Beach, Florida 33401
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With a copy to: Ralph V. De Martino, Esquire
De Martino, Finkelstein, Rosen & Virga
1818 N Street, N.W.
Suite 400
Washington, D.C. 20036
To Partnerships: Max's Beach Grill, Ltd.
c/o Unique Restaurant Concepts, Inc.
490 East Palmetto Park Road
Suite 110
Boca Raton, Florida 33432
Unique Brickell, Ltd.
c/o Unique Restaurant Concepts, Inc.
490 East Palmetto Park Road
Suite 110
Boca Raton, Florida 33432
Unique Weston, Ltd.
c/o Unique Restaurant Concepts, Inc.
490 East Palmetto Park Road
Suite 110
Boca Raton, Florida 33432
Unique TBA, Ltd.
c/o Unique Restaurant Concepts, Inc.
490 East Palmetto Park Road
Suite 110
Boca Raton, Florida 33432
With a copy to: Michael H. Krul, Esquire
Ruden, McClosky, Smith, Schuster & Russell, P.A.
200 East Broward Boulevard
Fort Lauderdale, Florida 33301
All notices, demands and communications shall be effective when sent.
However, the time period in which to respond to any such notice, demand or
communication shall commence to run from the date of receipt on the return
receipt of the notice, demand or communication by the addressee thereof or the
date of actual receipt in the case of delivery by other means. If a notice,
demand or communication is sent but not actually received by a party as a result
of that party's rejection or other refusal to accept delivery or the inability
of the other party to deliver because of a change of address as to which no
notice was given, such intended recipient shall be deemed to be in receipt of
the notice, demand or request once sent.
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6.2 Entire Agreement. This Agreement sets forth all the promises,
----------------
covenants, agreements, conditions and understandings between the parties hereto
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements or conditions,
expressed or implied, oral or written, except as herein contained. No changes
of or modifications or additions to this Agreement shall be valid unless the
same shall be in writing and signed by the parties hereto.
6.3 Private Placement. The Purchaser has been notified and understands
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that the Purchased Interests have not been registered under the Securities Act
of 1933, as amended ("Securities Act"), or the securities laws of any state, and
the Purchased Interests are being sold in reliance on exemptions from the
registration requirements of the Securities Act and such laws (collectively,
"Securities Laws"); the Purchased Interests have not been approved or
disapproved by the Securities and Exchange Commission, any state securities
commission, or any other regulatory authority, nor have any of the foregoing
authorities passed upon or endorsed the merits of the Purchased Interests or
the accuracy or adequacy of any information provided to the Purchasers. Any
representation to the contrary is unlawful.
6.4 Binding Effect; Assignment. This Agreement shall be binding upon the
--------------------------
parties hereto, their beneficiaries, heirs and administrators. No party may
assign or transfer its interests herein, or delegate its duties hereunder,
without the written consent of the other parties.
6.5 Amendment. The parties hereby irrevocably agree that no attempted
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amendment, modification, or change of this Agreement shall be valid and
effective, unless the parties shall unanimously agree in writing to such
amendment, modification or change.
6.6 No Waiver. No waiver of any provision of this Agreement shall be
---------
effective, unless it is in writing and signed by the party against whom it is
asserted, and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
6.7 Gender and Use of Singular and Plural. All pronouns shall be deemed
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to refer to the masculine, feminine, neuter, singular or plural, as the identity
of the party or parties or their personal representatives, successors and
assigns may require.
6.8 Counterparts. This Agreement and any amendments may be executed in
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one or more counterparts, each of which shall be deemed an original and all of
which together will constitute one and the same instrument.
6.9 Headings. The article and section headings contained in this
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Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of the Agreement.
6.10 Governing Law. This Agreement shall be construed in accordance with
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the laws of the State of Florida and any proceeding arising between the parties
in any manner pertaining or
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related to this Agreement shall, to the extent permitted by law, be held in Palm
Beach County, Florida.
6.11 Further Assurances. The parties hereby agree that they will execute
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and deliver such further instruments, agreements and documents and do such
further acts and things as may be reasonably required to carry out the intent
and purposes of this Agreement.
6.12 Litigation. If any party hereto is required to engage in litigation
----------
against any other party hereto, either as plaintiff or as defendant, in order to
enforce or defend any of its or his rights under this Agreement, and such
litigation results in a final judgment in favor of such party ("Prevailing
Party"), then the party or parties against whom said final judgment is obtained
shall reimburse the Prevailing Party for all direct, indirect or incidental
expenses incurred by the Prevailing Party in so enforcing or defending its or
his rights hereunder, including, but not limited to, all attorneys' fees and
paralegals' fees, and all court costs and other expenses incurred throughout all
negotiations, trials or appeals undertaken in order to enforce the Prevailing
Party's rights hereunder.
6.13 Construction and Interpretation. Should any provision of this
-------------------------------
Agreement require judicial interpretation, the parties hereto agree that the
court interpreting on construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of the
rule of construction that a document is to be more strictly construed against
the party that itself or through its agent prepared the same.
6.14 Purchaser hereby indemnifies and holds the Partnerships, Unique
Restaurant Concepts, Ltd., Unique Restaurant Concepts, Inc. and its officers,
directors and shareholders, and the corporate general partners of the
Partnership (collectively, "Indemnified Parties") harmless from any and all
claims, loss, costs, liabilities or expenses, including reasonable attorney's
fees and paralegal's fees, arising from or in connection with Purchaser's
initial public offering of its common stock and any misrepresentations or
omissions of material fact made in connection there with or arising from or in
connection with Purchaser's use of the proceeds therefrom to invest in the
Partnerships pursuant hereto and pursuant to the Partnership's respective
Agreements of Limited Partnership, the Management Agreement between the
Partnerships and Unique Restaurant Concepts, Inc. entered into on even date
herewith and the License Agreement between Unique Restaurant Concepts, Ltd. and
the Partnerships entered into of even date herewith; provided, however, that
Purchaser shall have no indemnification obligation with respect to: (i) claims
arising from information provided to Purchaser by any of the Indemnified
Parties and included in Purchaser's registration statement filed with the
Securities Exchange Commission; or (ii) claims based upon allegations of conduct
or verbal or written misrepresentations made by an Indemnified Party to an
investor in Purchaser's initial public offering (i.e., not through the
registration statement).
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PURCHASER:
SFORZA ENTERPRISES, INC., a Florida
corporation
By: /s/ Dale J. Brisson
---------------------------------------------
Printed Name: DALE J. BRISSON
-----------------------------------
Title: President
------------------------------------------
PARTNERSHIPS:
MAX'S BEACH GRILL, LTD., a Florida
limited partnership
By: MAX'S BEACH GRILL, INC., a Florida
corporation, General Partner
By: /s/ Dennis Max
---------------------------------------------
Printed Name: DENNIS MAX
-----------------------------------
Title: President
------------------------------------------
UNIQUE BRICKELL LTD., a Florida
limited partnership
By: UNIQUE BRICKELL, INC., a Florida
corporation, General Partner
By: /s/ Dennis Max
---------------------------------------------
Printed Name: DENNIS MAX
-----------------------------------
Title: President
------------------------------------------
12
<PAGE>
UNIQUE WESTON LTD., a Florida
limited partnership
By: UNIQUE WESTON, INC., a Florida
corporation, General Partner
By: /s/ Dennis Max
---------------------------------------------
Printed Name: DENNIS MAX
-----------------------------------
Title: President
------------------------------------------
UNIQUE TBA, LTD., a Florida limited partnership
By: UNIQUE TBA, INC., a Florida
corporation, General Partner
By: /s/ Dennis Max
---------------------------------------------
Printed Name: DENNIS MAX
-----------------------------------
Title: President
------------------------------------------
13
<PAGE>
Exhibit A
Exhibit B
Exhibit C
Exhibit D
(Partnership Agreements)
14
<PAGE>
Exhibit 10.1
UNIQUE BRICKELL, LTD.
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
December 30, 1997
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS.................................................................2
1.1 Act.............................................................2
1.2 Adjusted Net Income and Adjusted Net Loss.......................2
1.3 Administrative Fee..............................................2
1.4 Affiliate.......................................................2
1.5 Agreement.......................................................2
1.6 Available Cash..................................................2
1.7 Bankruptcy......................................................2
1.8 Capital Account.................................................3
1.9 Capital Contribution............................................3
1.10 Capital Transaction.............................................3
1.11 Certificate.....................................................3
1.12 Code............................................................3
1.13 Event of Dissolution............................................3
1.14 General Partner.................................................3
1.15 Interim Capital Transaction.....................................3
1.16 Law.............................................................4
1.17 Limited Partners................................................4
1.18 Partners........................................................4
1.19 Partnership.....................................................4
1.20 Partnership Accountants.........................................4
1.21 Partnership Accounting Year or Fiscal Year......................4
1.22 Partnership Interest............................................4
1.23 Partnership Percentage..........................................4
1.24 Person..........................................................4
1.25 Restaurant......................................................5
1.26 Stipulated Rate.................................................5
1.27 Terminating Capital Transaction.................................5
1.28 Treasury Regulations............................................5
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE II
SUPERSEDER, NAME, BUSINESS, TERM............................................5
2.1 Superseder......................................................5
2.2 Name............................................................5
2.3 Principal Place of Business; Recordkeeping Office...............5
2.4 Business of the Partnership.....................................5
2.5 Term............................................................6
2.6 Title...........................................................6
ARTICLE III
CAPITAL CONTRIBUTIONS; LOANS................................................6
3.1 Capital Contributions and Loans.................................6
3.2 Other Matters Relating to Capital...............................7
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS...............................................7
4.1 Allocations from Operations and From Capital Transactions.......7
4.2 Depreciation Recapture..........................................8
4.3 Distribution of Available Cash..................................8
4.4 Distribution of Net Proceeds from Terminating
Capital Transaction.............................................8
4.5 Distribution in Cash Only.......................................8
4.6 Minimum Allocations and Distributions to the
General Partner.................................................8
ARTICLE V
MANAGEMENT OF PARTNERSHIP; ADMINISTRATIVE FEE...............................8
5.1 Rights, Powers and Duties of the General Partner................8
5.2 Liability and Indemnification..................................10
5.3 Dealings with Partnership by Partners and Related
Parties........................................................10
5.4 Competition....................................................10
5.5 Tax Elections..................................................11
5.6 Administrative Fee.............................................11
5.7 Restaurant Concept.............................................11
5.8 Replacement of General Partner.................................11
ARTICLE VI
MATTERS REGARDING LIMITED PARTNER..........................................11
6.1 Management.....................................................11
6.2 Power of Attorney..............................................12
6.3 Limitation of Certain Rights...................................13
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE VII
TRANSFERS OF PARTNERSHIP INTERESTS......................................... 13
7.1 General Prohibition.............................................. 13
7.2 Rights of Assignee............................................... 14
7.3 Transfers by General Partner..................................... 14
7.4 Transfers by Limited Partners.................................... 14
ARTICLE VIII
FISCAL MATTERS.................................................................. 15
8.1 Books and Records................................................ 15
8.2 Reports and Statements........................................... 16
8.3 Tax Matters...................................................... 16
8.4 Appointment of Tax Matters Partner............................... 16
8.5 Tax Status....................................................... 17
ARTICLE IX
DISSOLUTION..................................................................... 17
9.1 Dissolution...................................................... 17
9.2 Upon Dissolution................................................. 17
9.3 Wind-Up of Affairs............................................... 18
9.4 Liquidating Distributions........................................ 18
9.5 Termination...................................................... 19
ARTICLE X
CONFIDENTIAL INFORMATION........................................................ 19
10.1 Confidentiality.................................................. 19
10.2 Injunction and Attorneys' Fees................................... 19
ARTICLE XI
MISCELLANEOUS................................................................... 20
11.1 Amendment........................................................ 20
11.2 Notices.......................................................... 20
11.3 Agency........................................................... 21
11.4 Further Assurances............................................... 21
11.5 Headings......................................................... 21
11.6 Successors and Assigns........................................... 21
11.7 Applicable Law................................................... 21
11.8 Entire Agreement................................................. 21
11.9 Counterparts..................................................... 22
11.10 Gender........................................................... 22
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
11.11 Remedies......................................................... 22
11.12 No Third Party Beneficiary....................................... 22
11.13 No Foreign Person Withholding.................................... 22
11.14 No Recordation................................................... 22
11.15 Conflict Waiver.................................................. 22
</TABLE>
iv
<PAGE>
THE PARTNERSHIP INTERESTS REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED
FOR INVESTMENT AND, PURSUANT TO APPLICABLE EXEMPTIONS, HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES
LAWS. WITHOUT SUCH REGISTRATION, THE PARTNERSHIP INTERESTS MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT
UPON DELIVERY TO THE PARTNERSHIP OF AN OPINION OF COUNSEL SATISFACTORY TO THE
GENERAL PARTNER OF THE PARTNERSHIP THAT REGISTRATION IS NOT REQUIRED FOR SUCH
TRANSFER OR THE SUBMISSION TO THE GENERAL PARTNER OF SUCH OTHER EVIDENCE THAT
MAY BE SATISFACTORY TO THE GENERAL PARTNER TO THE EFFECT THAT ANY SUCH TRANSFER
WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATIONS PROMULGATED
THEREUNDER. ADDITIONALLY, ANY SALE OR OTHER TRANSFER OF PARTNERSHIP INTERESTS
IS SUBJECT TO CERTAIN RESTRICTIONS THAT ARE SET FORTH IN THIS AGREEMENT OF
LIMITED PARTNERSHIP.
UNIQUE BRICKELL, LTD.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
-----------------------------------------------------
THIS AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") is made and entered
into as of the 30th day of December, 1997, by and between UNIQUE BRICKELL, INC.
("Unique"), as the General Partner, UNIQUE RESTAURANT CONCEPTS, LTD. ("URC"),
and SFORZA ENTERPRISES, INC., a Florida corporation ("Sforza"), as the Limited
Partners.
RECITALS:
WHEREAS, a Florida limited partnership known as Unique Brickell, Ltd.
("Partnership") was formed under the provisions of the Florida Revised Uniform
Limited Partnership Act (1986) and has filed a Certificate of Limited
Partnership and other documentation legally creating the Partnership under
Florida law; and
WHEREAS, the parties desire to amend and restate any prior agreements
governing the Partnership and admit Sforza as a Limited Partner.
1
<PAGE>
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.1 Act. The Securities Act of 1933, as amended.
---
1.2 Adjusted Net Income and Adjusted Net Loss. The net income or loss of
-----------------------------------------
the Partnership resulting from Partnership operations during any stated period,
as calculated by the Partner ship Accountants for federal income tax purposes.
1.3 Administrative Fee. The fee payable pursuant to Section 5.05 hereof.
------------------
1.4 Affiliate. When used with reference to a specified Person: (i) any
---------
Person who, directly or indirectly, through one or more intermediaries, controls
or is controlled by or is under common control with the specified Person; (ii)
any Person who is an officer of, partner in or trustee of, or serves in a
similar capacity with respect to, the specified Person or of which the specified
Person is an officer, partner or trustee, or with respect to which the specified
Person serves in a similar capacity; or (iii) any Person who, directly or
indirectly, is the beneficial owner of ten percent (10%) or more of any class of
equity securities of, or otherwise has a substantial beneficial interest in, the
specified Person or of which the specified Person is directly or indirectly the
owner of ten percent (10%) or more of any class of equity securities or in which
the specified Person has a substantial beneficiary interest.
1.5 Agreement. This Amended and Restated Agreement of Limited
---------
Partnership of Unique Brickell, Ltd., a Florida limited partnership, as
originally executed and as amended from time to time, as the context requires.
1.6 Available Cash. All cash funds of the Partnership on hand from time
--------------
to time after: (i) provision for payment of all outstanding and unpaid current
obligations, expenses and charges of the Partnership as of such time (including
the Administrative Fee and all amounts of any principal or interest payable
with respect to any loans from Partners); and (ii) provision for such reserve as
reasonably determined by the General Partner to be necessary for working capital
or other Partnership needs. Available Cash shall not include or reflect any
proceeds received or expenses incurred in connection with a Terminating Capital
Transaction.
1.7 Bankruptcy. As used in this Agreement, the term "Bankruptcy," with
----------
respect to the Partnership or the General Partner, shall refer to: (i) the
appointment of a receiver, conservator, rehabilitator or similar officer for the
Partnership or the General Partner, unless the appointment of
2
<PAGE>
such officer shall be vacated and such officer discharged within one hundred
twenty (120) days of the appointment; (ii) the taking of possession of, or the
assumption of control over, all or any substantial part of the property of the
Partnership or the General Partner by any receiver, conservator, rehabilitator
or similar officer or by the United States government or any agency thereof,
unless such property is relinquished within one hundred twenty (120) days of the
taking; (iii) the filing of a petition in bankruptcy or the commencement of any
proceeding under any present or future federal or state law relating to
bankruptcy, insolvency, debt relief or reorganization of debtors by or against
the Partnership or the General Partner, provided, if filed against (and not by)
the Partnership or the General Partner, such petition or proceeding is not
dismissed within thirty (30) days of the filing of the petition or the
commencement of the proceeding; or (iv) the making of an assignment for the
benefit of creditors or a private composition, arrangement or adjustment with
the creditors of the Partnership or the General Partner.
1.8 Capital Account. An account that, throughout the full term of the
---------------
Partnership, shall be established, determined and maintained separately for each
Partner in accordance with the provisions of Treasury Regulations Section 1.704-
1(b)(2)(iv) promulgated under Code Section 704(b).
1.9 Capital Contribution. The amount of cash or the agreed fair market
--------------------
value of property contributed by each Partner to the capital of the Partnership,
as reflected in the books of the Partnership.
1.10 Capital Transaction. An Interim Capital Transaction or a Terminating
-------------------
Capital Transaction.
1.11 Certificate. The Certificate of Limited Partnership of the
-----------
Partnership filed with the Secretary of State of the State of Florida, as it may
be amended from time to time.
1.12 Code. The Internal Revenue Code of 1986, as amended from time to
----
time, or any corresponding provision or provisions of any federal internal
revenue law enacted in substitution of the Internal Revenue Code of 1986.
1.13 Event of Dissolution. Any of the events that result in a dissolution
--------------------
of the Partnership as set forth in Section 9.01 hereof.
1.14 General Partner. The general partner of the Partnership, as it may
---------------
exist from time to time. The General Partner on the date hereof is Unique. No
Person shall be a General Partner unless admitted to the Partnership as such in
accordance with the terms hereof.
1.15 Interim Capital Transaction. A transaction pursuant to which the
---------------------------
Partnership borrows funds or refinances existing debt, a sale, condemnation,
exchange, abandonment or other disposition
3
<PAGE>
of a portion (which is less than substantially all) of the assets of the
Partnership, an insurance recovery and any other transaction, other than a
Terminating Capital Transaction, that, in accordance with generally accepted
accounting principles, is considered capital in nature.
1.16 Law. The Florida Revised Uniform Limited Partnership Act (1986), as
---
amended.
1.17 Limited Partners. The Limited Partners, as they may exist from time
----------------
to time. Reference to the "Limited Partner" shall mean any Limited Partner. No
Person shall be a Limited Partner unless admitted to the Partnership as such in
accordance with the terms hereof.
1.18 Partners. The General Partner and the Limited Partners,
--------
collectively. Reference to a "Partner" shall be to any of the Partners.
1.19 Partnership. Unique Brickell, Ltd., the Florida limited partnership.
-----------
1.20 Partnership Accountants. Such certified public accountants as may be
-----------------------
selected, from time to time, by the General Partner.
1.21 Partnership Accounting Year or Fiscal Year. The calendar year,
------------------------------------------
unless otherwise determined by the General Partner.
1.22 Partnership Interest. The entire ownership interest of a Partner in
--------------------
the Partnership at any particular time, including the right of such Partner to
any and all distributions, allocations and other incidents of participation in
the Partnership to which such Partner may be entitled as provided in this
Agreement and the Law, together with the obligations of such Partner to comply
with all of the terms and provisions of this Agreement and the Law, and further
including its Capital Account hereunder.
1.23 Partnership Percentage. The percentage set forth below with respect
----------------------
to each Partner, which percentage may be diluted pro rata upon the Partnerships'
issuance of additional Partnership Interests in accordance with the terms of
this Agreement:
(a) Unique 1%
(b) URC 48%
(c) Sforza 51%
1.24 Person. Any individual, trust, partnership, corporation, joint
------
venture, trust, or other entity or association, and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person.
4
<PAGE>
1.25 Restaurant. The restaurant located at 300 Southwest First Avenue,
----------
Fort Lauderdale, Florida, 33301, to be owned and operated by the Partnership,
to be named initially as "Max's Grille" or some derivative thereof.
1.26 Stipulated Rate. The rate of interest, calculated annually, equal to
---------------
two percent (2%), plus the annual rate of simple interest announced from time to
time by Citibank, N.A. as its publicly announced commercial prime lending rate
to its most creditworthy borrowers, but not higher than the highest nonusurious
rate of simple interest for commercial loans under applicable law, nor lower
than the lowest interest rate that may be charged without causing the imputation
of interest for federal income tax purposes.
1.27 Terminating Capital Transaction. A sale, condemnation, exchange or
-------------------------------
other disposition, whether by foreclosure, abandonment or otherwise, of all or
substantially all of the then remaining assets of the Partnership or a
transaction that will result in a dissolution of the Partnership.
1.28 Treasury Regulations. Treasury Regulations shall mean regulations
--------------------
promulgated by the United States Treasury Department interpreting the Code.
ARTICLE II
SUPERSEDER, NAME, BUSINESS, TERM
--------------------------------
2.1 Superseder. This Agreement supersedes in its entirety any prior
----------
agreements governing the Partnership.
2.2 Name. The business of the Partnership shall be conducted under the
----
name "Unique Brickell, Ltd." provided, however, the Partnership may conduct
business under such other name or fictitious name as the General Partner may
designate.
2.3 Principal Place of Business; Recordkeeping Office. The principal
-------------------------------------------------
place of business of the Partnership shall be 490 East Palmetto Park Road,
Suite 110, Boca Raton, Florida 33432, or at such other location in or outside
the State of Florida as hereinafter may be determined by the General Partner.
The recordkeeping office of the Partnership required by the Law shall be 490
East Palmetto Park Road, Suite 110, Boca Raton, Florida 33432, or at such other
location in the State of Florida as may be determined by the General Partner.
2.4 Business of the Partnership. The purpose and scope of the
---------------------------
Partnership is to: (i) own, and engage in the operation of, sell and in all
other respects deal with, a restaurant for-profit; and (ii) engage in all manner
of transactions and activities incidental to the foregoing.
5
<PAGE>
The Partnership shall not engage in any other business or activity,
except as otherwise expressly and specifically provided in this Agreement or
as the Partners shall otherwise agree in writing. Except as expressly provided
to the contrary in this Agreement, nothing herein shall be deemed to restrict in
any way the freedom of a Partner to conduct any other business or activity
whatsoever without any accountability to the Partnership or the other Partners.
2.5 Term. The term of the Partnership shall continue in full force and
----
effect until terminated in accordance with Article IX of this Agreement or as
otherwise provided by the Law.
2.6 Title. Legal title to the Partnership's property shall be held in
-----
the name of the Partnership, or in such other manner as the General Partner
shall determine.
ARTICLE III
CAPITAL CONTRIBUTIONS; LOANS
----------------------------
3.1 Capital Contributions and Loans.
-------------------------------
(a) The Partners shall each make the following Capital
Contributions to the Partnership:
(i) Unique has contributed $1.00 in cash to the capital of
the Partnership.
(ii) URC has contributed $99.00 in cash to the capital of
the Partnership.
(iii) Sforza shall make its capital contribution to the
Partnership by paying the Partnership the portion of the "Purchase Price" to be
allocated to the Partnership pursuant to the terms of, and as such term is
described in, that certain Partnership Interest Subscription Agreement dated
December 30, 1997, by and among Sforza Enterprises, Inc., Max's Beach Grill,
Ltd., Unique Brickell, Ltd., Unique Weston, Ltd. and Unique TBA, Ltd.
(b) No Partner shall be obligated to make any additional Capital
Contribution or loan to the Partnership. Partners shall be permitted to make
Capital Contributions and loans in addition to the foregoing to the Partnership
with the prior written consent of the General Partner. All loans made by
Partners to the Partnership shall be demand loans bearing interest at the
Stipulated Rate unless otherwise provided in the documentation evidencing any
such loans.
6
<PAGE>
3.2 Other Matters Relating to Capital.
---------------------------------
(a) Interest earned on Partnership funds shall inure solely to the
benefit of the Partnership, and, except as specifically provided herein, no
interest shall be paid upon any contributions or advances to the capital of the
Partnership or upon any undistributed or reinvested income or profits of the
Partnership.
(b) The Capital Contributions of the Partners shall be utilized for
carrying out the purposes of the Partnership as set forth in this Agreement and
for payment of any expenses incurred in connection therewith, including payment
of expenses paid or incurred by the General Partner on behalf of the Partnership
whether prior or subsequent to the execution of this Agreement.
(c) Loans by a Partner to the Partnership shall not be considered
contributions to the capital of the Partnership and shall not increase the
Capital Account of the lending Partner. Nothing herein shall authorize any loan
by a Partner to the Partnership unless otherwise authorized pursuant to the
other provisions of this Agreement or unless agreed to by the General Partner.
(d) Except as specifically provided herein, no Partner shall be
entitled to contribute capital to the Partnership without the consent of the
General Partner, to withdraw, or to a return of, any part of his Capital
Contribution or to receive property or assets other than cash in return thereof,
and the General Partner shall not be liable for the return of all or any portion
of the Limited Partner's Capital Contributions. To the extent any monies which
any Partner is entitled to receive pursuant to Article IV would constitute a
return of capital, each of the Partners consent to the withdrawal of such
capital.
(e) No Partner shall be entitled to priority over any other
Partner, either with respect to a return of his Capital Contribution or to
allocations of taxable income, gains, losses or credits, or to distributions,
except as provided in this Agreement.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
-----------------------------
4.1 Allocations from Operations and From Capital Transactions. The
---------------------------------------------------------
Adjusted Net Income or Adjusted Net Loss of the Partnership from operations and
any income (including gain) or losses resulting from any Interim or Terminating
Capital Transactions as calculated for federal income tax purposes and reported
by the Partnership on its U.S. Partnership Return of Income for each fiscal year
(or portion thereof) during the term of this Agreement shall be allocated to the
Partners pro rata in accordance with their respective Partnership Percentages.
7
<PAGE>
4.2 Depreciation Recapture. Notwithstanding anything to the contrary in
----------------------
this Article IV, and for purposes of determining the nature (as ordinary or
capital) of the income or gain allocable under such provisions, gain (if any)
recognized as ordinary income in respect of a Capital Transaction pursuant to
Code Sections 1245 and 1250 shall be deemed to be allocated to the Partners in
proportion to their accumulated depreciation allocations.
4.3 Distribution of Available Cash. Periodically, but not less
------------------------------
frequently than quarterly, the Available Cash if any, shall be distributed to
the Partners pro rata, in accordance with their respective Partnership
Percentages.
4.4 Distribution of Net Proceeds from Terminating Capital Transaction.
-----------------------------------------------------------------
The net proceeds of a Terminating Capital Transaction shall be distributed in
the manner set forth in Sections 9.03 and 9.04 hereof.
4.5 Distribution in Cash Only. No Partner shall have the right to demand
-------------------------
or receive property other than cash from the Partnership for any reason
whatsoever and no Partner shall have the right to sue for partition of the
Partnership or for the Partnership's assets.
4.6 Minimum Allocations and Distributions to the General Partner.
------------------------------------------------------------
Notwithstanding any provision in this Article IV to the contrary, for each
fiscal year of the Partnership, at least 1% of each item of income, loss, cash
or property which is to be allocated or distributed pursuant to this Article IV
shall be distributable to the General Partner.
ARTICLE V
MANAGEMENT OF PARTNERSHIP; ADMINISTRATIVE FEE
---------------------------------------------
5.1 Rights, Powers and Duties of the General Partner. The overall
------------------------------------------------
management and control of all aspects of the business and affairs of the
Partnership shall be vested exclusively in the General Partner. The General
Partner shall have all the rights and powers of a general partner as provided in
the Law and as otherwise provided by law, and any action taken by the General
Partner shall constitute the act of and serve to bind the Partnership. Except
as expressly set forth herein, no decision shall be made or action taken with
respect to the Partnership unless such decision or action has been approved by
the General Partner. The General Partner is hereby authorized to delegate, and
hereby delegates, to the Manager (as defined in Section 5.06) all of its powers
and authority to manage the business and affairs of the Partnership. The
General Partner, through the Manager, shall conduct the day-to-day operations of
the Partnership and shall use good faith efforts to carry out the business of
the Partnership as set forth herein. The General Partner, through the
Manager, will have all the specific rights and power required or appropriate to
the operation, management and disposition of the business of the Partnership
which, by way of illustration, but not by the way of limitation, shall include
the right and power to:
8
<PAGE>
(a) supervise the design, construction and equipping of the
Restaurant and all other pre-opening activities;
(b) managing the Restaurant when it opens;
(c) employ such agents, employees, managers, accountants,
attorneys, consultants and other persons as it may deem necessary or desirable
for the conduct of the Partnership's business and pay from Partnership assets
such fees, expenses, salaries, wages and other compensation to such persons as
it may determine;
(d) pay from Partnership's assets, extend, renew, modify, adjust,
submit to arbitration, prosecute, defend or compromise upon such terms as it may
determine, and upon such evidence as it may deem sufficient, any obligation,
suit, liability, cause of action or claim, including taxes, either in favor of
or against the Partnership;
(e) make from Partnership's assets any and all expenditures that it
may deem necessary or desirable for the conduct of the Partnership's business
and the carrying out of its obligations and responsibilities under this
Agreement;
(f) borrow money and issue evidences of indebtedness and security
therefor, mortgage, pledge or otherwise encumber assets of the Partnership, and,
from time to time, refinance any such borrowings;
(g) make distributions of the Partnership's assets to the Partners;
(h) purchase, at the expense of the Partnership, liability and
other insurance to protect the Partnership, the General Partner and the
Partnership's assets and business;
(i) maintain, at the expense of the Partnership, adequate records
and accounts of all operations and expenditures;
(j) sell, exchange or otherwise dispose of all or substantially all
the assets of the Partnership; and in connection therewith, to execute and
deliver such deeds, assignments and conveyances containing such warranties as
the General Partner may determine;
(k) invest the Partnership's assets as it may determine in its sole
discretion;
(l) pay, collect, compromise, arbitrate or resort to legal action
or otherwise adjust, litigate or settle claims and demands of or against the
Partnership;
9
<PAGE>
(m) merge or consolidate the Partnership with or into a corporation,
partner ship, limited partnership or other entity, or cause the Partnership to
be acquired by one or more corporations, partnerships, limited partnerships or
other entities or take such other action as may be required to convert the
Partnership to a corporation, partnership, limited partnership or other entity;
and
(n) take any and all other action permitted under applicable law and
that are customary and reasonably related to the Partnership's purposes.
5.2 Liability and Indemnification. The General Partner, its employees
-----------------------------
and Affiliates, shall not be liable to the Partnership or any Partner for any
loss or liability incurred in connection with any act performed or omitted in
accordance with the terms of this Agreement, except for any loss or liability
incurred in connection with the fraud, willful and wanton misconduct or gross
negligence of such Person. The Partnership shall and does hereby agree, to the
fullest extent permitted by law, to defend, indemnify and hold harmless the
General Partner, its employees and Affiliates, from and against any and all
liability, loss, cost, expense or damage incurred or sustained by reason of any
act or omission in the conduct of the business of the Partnership in accordance
with the terms hereof, including attorneys' and paralegals' fees through any and
all negotiations, trial and appellate levels; provided, however, the Partnership
shall not indemnify the General Partner, its employees and Affiliates or hold
them harmless with respect to any of the foregoing incurred in connection with
the fraud, willful and wanton misconduct or gross negligence of such General
Partner, employee or Affiliate.
5.3 Dealings with Partnership by Partners and Related Parties. The fact
---------------------------------------------------------
that any Partner is directly or indirectly interested in or connected with any
person, firm or corporation employed by the Partnership to render or perform
services, or from, or to which the Partnership may buy or sell merchandise,
services, material or other property, shall not prohibit the Partnership from
employing such person, firm or corporation or from otherwise dealing with them.
All compensation permitted under this Section 5.03 shall be deemed to be on
terms reasonable and customary under all circumstances then existing and
payments permitted under this Agreement and called for therein shall be made in
all events regardless of the profits and losses of the Partnership during the
Partnership Accounting Year when the services were rendered.
5.4 Competition. The Partners acknowledge and agree that the Partners
-----------
(and their Affiliates) may have other business interests and may engage in any
other business or trade, individually, in partnership or association with others
or in any capacity whatsoever, whether or not such business competes with the
Partnership. The Partners recognize that the General Partner (directly or
through Affiliates) is actively engaged in competitive businesses with the
Partnership (including owning and operating restaurants similar to the
Restaurant in locations within Palm Beach, Broward and Dade Counties) and that
nothing contained in this Agreement or otherwise shall be deemed to restrict in
anyway the rights of the General Partner, or any officer, director or Affiliate
10
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of the General Partner to engage in, or to conduct any other activity, trade or
business, independently or with others (including owing and operating competing
restaurants) whether or not any such activity, trade or business is adverse to,
competes with or is complementary with the business of the Partnership and
neither the Partnership nor the other Partners shall have any rights in or to
such trade, business or activity or the income or profits therefrom. The
Partners hereby expressly agree that each consents to all existing and future
business activities of the General Partner that are in any way competitive with
the business of the Partnership, and that the conduct of such activities shall
not constitute a breach of the General Partner's loyalty obligation to the
Partnership or the other Partners under the Law.
5.5 Tax Elections. The General Partner shall determine from time to time
-------------
whether or not to make or attempt to revoke any and all tax elections regarding
depreciation methods and recovery periods, capitalization of construction period
expenses, amortization of organizational and start-up expenditures, basis
adjustments upon admission or retirement of Partners, and any other federal,
state or local income tax elections.
5.6 Administrative Fee. The General Partner and Limited Partners
------------------
acknowledge that simultaneously with the execution of this Agreement, the
Partnership shall enter into that certain management agreement of even date
herewith (the "Management Agreement") with Unique Restaurant Concepts, Inc.
("Manager"), which shall contain the terms and conditions of the Partnership's
engagement of the Manager to perform management services for the Restaurant.
The term "Administrative Fee," as used herein, shall refer to the compensation
payable by the Partnership to the Manager under the Management Agreement, as
same may be amended from time to time.
5.7 Restaurant Concept. The Partners recognize and acknowledge that the
------------------
fully developed concept for the Restaurant (i.e. design, menu, decor, etc. )
and the Restaurant's name, "Max's Grille," is owned by URC. URC shall
simultaneously herewith enter into a License Agreement that authorizes the
Partnership, without any royalty or other monetary obligation, to use the name
"Max's Grille."
5.8 Replacement of General Partner. In the event of the Bankruptcy or
------------------------------
resignation of the General Partner, a successor General Partner may be appointed
by the affirmative vote of a majority of the Partnership Percentages.
ARTICLE VI
MATTERS REGARDING LIMITED PARTNER
---------------------------------
6.1 Management. The Limited Partners shall not participate in the
----------
operation or management of the business of the Partnership or transact any
business for or in the name of the
11
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Partnership, shall not have any right or power to sign for or bind the
Partnership in any manner, and shall have no right of consent or approval as to
any act or decision of the Partnership.
6.2 Power of Attorney.
-----------------
(a) The Limited Partners hereby make, constitute and appoint the
General Partner, and each Person who shall hereafter become a General Partner,
with full power of substitute, its true and lawful attorney-in-fact, and in
the name, place and stead of such Limited Partner, with the power from time to
time to execute, acknowledge, make, swear to, verify, deliver, record, publish
and/or file:
(i) Any certificate or other instrument which may be
required to be filed by the Partner ship or the Partners under the laws of any
state or other jurisdiction to the extent that the said attorneys or any of them
deem such filing necessary or desirable and that such action has been authorized
in accordance with this Agreement;
(ii) Any and all amendments or modifications of this
Agreement and the instruments described in clauses (i) of this Section 6.02,
provided that each such amendment or modification has been authorized in
accordance with the terms of this Agreement;
(iii) Any and all certificates and other instruments which
may be required to effectuate the dissolution and termination of the Partnership
pursuant to the provisions of this Agreement;
(iv) Any and all consents to the entry of a judgment against
the Partnership, authorized in accordance with this Agreement;
(v) All such other instruments as said attorneys or any of
them may deem necessary or desirable fully to carry out the provisions of this
Agreement in accordance with its terms; provided, however, that this Special
Power of Attorney shall not, without the prior written consent of the Limited
Partner from whom the Special Power of Attorney is given, empower any such
attorney to execute any instrument or other document which affects the
substantive rights of such Limited Partner, or increases the liabilities of such
Limited Partner beyond the liability contemplated by this Agreement. Each of
said attorney shall have full power and authority to do and perform each and
every act and thing whatsoever requisite and necessary in and about the
foregoing as fully as the Limited Partner might or could do if personally
present and each Limited Partner hereby ratifies and confirms all that said
attorney, or any of them, shall lawfully do or cause to be done by virtue
hereof.
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(b) The foregoing grant of authority:
(i) is a Special Power of Attorney coupled with an interest in
favor of the General Partner and as such shall be irrevocable;
(ii) may be exercised for the Limited Partner by the signature of
the General Partner; and
(iii) shall survive the assignment by the Limited Partner of the
whole or any portion of his Partnership Interest, except that, where the
assignee of the whole of the Limited Partner's Partnership Interest has
furnished a power of attorney and has been approved by the remaining Partner(s)
for admission to the Partnership as a substitute Limited Partner, this power of
attorney shall survive such assignment for the sole purpose of enabling the
General Partner to execute, acknowledge and file any instrument necessary to
effect such substitution and shall thereafter terminate.
(c) A similar power of attorney shall be one of the instruments which
the General Partner shall require an assignee of the Limited Partner to execute
as a condition of such assignment and admission as a substitute Limited Partner.
6.3 Limitation of Certain Rights. The Limited Partner shall not have
----------------------------
the right or power to: (i) bring an action for partition against the Partnership
or with respect to any of its property; (ii) cause the termination or
dissolution of the Partnership by court decree or as may be permitted by the
Law, such rights being specifically waived by the Limited Partner; or (iii) re
quire the Partnership to pay an amount upon or as a result of the withdrawal of
such Limited Partner from the Partnership.
ARTICLE VII
TRANSFERS OF PARTNERSHIP INTERESTS
----------------------------------
7.1 General Prohibition. Absent Sforza's consent, no additional
-------------------
Partnership Interests shall be issued by the Partnership if the effect of such
issuance would be to reduce the Partnership Percentage of Sforza. Except with
the prior written consent of the General Partner, no Partner shall sell,
transfer, assign, syndicate, pledge, encumber or otherwise dispose of, either
voluntarily, involuntarily, by operation of law or otherwise ("Transfer") all or
any part of its Partnership Interest unless made pursuant to and in compliance
with this Article VII and unless a copy of an executed and acknowledged
assignment effecting such Transfer has been filed with the Partnership. Any
purported Transfer of a Partnership Interest in violation of the provisions of
this Agreement shall be void ab initio.
---- -- ------
13
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7.2 Rights of Assignee. Any Transfer of a Partnership Interest (or any
------------------
part thereof) to a Person ("Assignee") who is not admitted to the Partnership as
a Limited Partner or a General Partner shall vest in such Person only rights of
an assignee, and shall not entitle the Assignee to be admitted to the
Partnership as a Partner. An Assignee who has not been admitted to the
Partnership as a Partner shall only have the right to receive the share of
profits, losses, tax credits and distributions of the Partnership to which the
Assigned Partner would have been entitled with respect to the Partnership
Interest (or a portion thereof) so assigned and shall have no right to require
any information or accounting of the Partnership's transactions or finances or
to inspect Partnership books, or to exercise any powers or other rights
including voting and consent rights, incidental to ownership of a Partnership
Interest. Admission of an Assignee to the Partnership as a General Partner shall
vest in such person all rights and powers, and subject such person to all duties
and all obligations thereafter arising, of a General Partner. Admission of an
Assignee to the Partnership as a Limited Partner shall vest in such person all
rights and powers, and subject such person to all duties and all obligations
thereafter arising, of a Limited Partner.
7.3 Transfers by General Partner. The General Partner may Transfer all or
----------------------------
any part of its Partnership Interest to an Assignee to be admitted to the
Partnership as a General Partner or as a Limited Partner if all of the following
conditions are met:
(a) The Limited Partners consent in writing to the Transfer and the
admission of the Assignee as a General Partner or Limited Partner;
(b) The Assignee agrees in writing to be bound by the provisions of
this Agreement and the Certificate;
(c) The Assignee executes any and all documents, including an
amendment to this Agreement and the Certificate, required to effectuate or
evidence its admission to the Partnership as a General Partner;
(d) The Partnership has received an opinion of counsel to the
affect that the contemplated Transfer and admission of the Assignee as a General
Partner or Limited Partner, as the case may be, will not cause the termination
of the Partnership for federal income tax purposes or cause the Partnership not
to be treated as a partnership for federal income tax purposes;
(e) The Assignee reimburses the Partnership for all reasonable
costs and expenses (including reasonable attorney's fees) incurred in
connection with the Transfer and admission; and
(f) The Assignee is not a minor or legally incompetent.
7.4 Transfers by Limited Partners. A Limited Partner may Transfer all or
-----------------------------
any part of its Partnership Interest to an Assignee, provided the Limited
Partner first receives the prior written
14
<PAGE>
consent of the General Partner. An Assignee of a Limited Partner's Partnership
Interest shall be admitted to the Partnership as a Limited Partner if all the
following conditions are met:
(a) The assigning Limited Partner so provides in the instrument of
assignment;
(b) The General Partner consents in writing to the admission of the
Assignee as a Limited Partner, which consent may be unreasonably withheld in the
sole and absolute discretion of the General Partner;
(c) The Assignee agrees in writing to be bound by the provisions of
this Agreement and the Certificate, and executes any and all documents
reasonably deemed necessary by the General Partner to effectuate or evidence the
admission of the Assignee to the Partnership as a Limited Partner;
(d) If deemed necessary by the General Partner, an opinion of
counsel is delivered to the Partnership and the General Partner, in form,
substance and from counsel satisfactory to the Partnership and the General
Partner, to the effect that: (i) the proposed Transfer does not require
registration under the Act or any other applicable federal or state securities
laws, including, in each case, the rules and regulations promulgated thereunder;
and (ii) that such ac tion will not cause the termination of the Partnership for
federal income tax purposes or cause the Partnership not to be treated as a
partnership for federal income tax purposes;
(e) The Assignee reimburses the General Partner and the Partnership
for all reasonable costs and expenses (including reasonable attorney's fees)
incurred by the General Partner or the Partnership in connection with the
Transfer and admission;
(f) The Assignee is not a minor or legally incompetent.
ARTICLE VIII
FISCAL MATTERS
--------------
8.1 Books and Records. The General Partner shall keep, or cause to be
-----------------
kept, full and accurate books and records of all transactions of the Partnership
on the accrual method of ac counting. All organizational records of the
Partnership and other records required to be kept by the Partnership under the
Law, shall, at all times, be maintained at the Partnership's recordkeeping
office referred to in Section 2.03 hereof, and shall be open during ordinary
business hours for inspection and copying upon the reasonable request and at
the expense of the Limited Partner and their authorized representatives.
15
<PAGE>
8.2 Reports and Statements. Within: (i) ten (10) days after the end of
----------------------
each month; and (ii) ninety (90) days after the end of each Partnership
Accounting Year, the General Partner shall, at the expense of the Partnership,
cause to be delivered to the Limited Partners the follow ing unaudited
financial statements, prepared on a federal income tax basis, which shall be
prepared by the Partnership Accountants:
(a) A balance sheet of the Partnership as of the end of the
preceding month or of such Partnership Accounting Year; and
(b) A profit and loss statement for each such preceding month or
for the Partnership Accounting Year.
Such financial statements shall be accompanied by such other
information as, in the judgment of the General Partner, may be reasonably
necessary for the Limited Partners to be advised of the financial status and
results of operations of the Partnership.
In addition, the General Partner shall promptly following receipt
deliver to the Limited Partners copies of any documents served upon the
registered agent of the Partnership as well as any other notices of default
under any material agreement.
8.3 Tax Matters. The General Partner shall, at the expense of the
-----------
Partnership prepare, or cause to be prepared, for delivery to the Limited
Partners within ninety (90) days of the end of the Partnership's Accounting
Year, all federal and any required state and local income tax returns for the
Partnership for each Fiscal Year of the Partnership, and, in connection
therewith, shall make any available or necessary federal income tax elections.
The General Partner shall furnish to the Limited Partners, within ninety (90)
days after the close of the Partnership Accounting Year, necessary tax
information with respect to the Partnership to enable the Limited Partners to
prepare a federal tax return. The expense of the preparation of all tax returns
shall be an expense of the Partnership.
8.4 Appointment of Tax Matters Partner. The General Partner is hereby
----------------------------------
designated, pursuant to Code Section 6231(a)(7) as the Partnership's Tax Matters
Partner, and is responsible for acting as the liaison between the Partnership
and the Internal Revenue Service ("Service"), and as the coordinator of the
Partnership's actions pursuant to a Service tax audit of the Partnership. In
the event of an audit of the Partnership's income tax returns, the General
Partner shall participate in, and retain at the expense of the Partnership,
accountants and other professionals to participate in such audit and contest
assertions by the auditing agent that may be materially adverse to the
Partners or the Partnership. The General Partner shall have the duties of a tax
matters partner as provided in the Code, in addition to such other duties as
are provided under this Agreement. The General Partner shall be reimbursed by
the Partnership for all expenses, costs and liabilities expended or incurred by
the General Partner.
16
<PAGE>
8.5 Tax Status. Any provision hereof to the contrary notwithstanding,
----------
solely for United States federal income tax purposes, each of the Partners
hereby recognizes that the Partnership will be subject to all provisions of
Subchapter K of Chapter 1 of Subtitle A of the Code; provided, however, the
filing of U.S. Partnership Returns of Income shall not be construed to extend
the purposes of the Partnership or the obligations or liabilities of the
Partners.
ARTICLE IX
DISSOLUTION
-----------
9.1 Dissolution. The Partnership shall be dissolved only upon the
-----------
occurrence of any of the following events:
(a) at the election of the General Partner;
(b) the Bankruptcy or insolvency of the Partnership;
(c) the retirement, withdrawal, dissolution, or adjudication of
Bankruptcy of the last remaining General Partner; provided, however, that the
business of the Partnership shall be continued pursuant to the provisions of
this Agreement if, within a period of thirty (30) days from the date of such
occurrence, the Limited Partners owning a majority of the Partnership
Percentages shall consent, in writing, that it be so continued and shall
designate within such writing one or more individuals or legal entities to be
admitted to the Partnership as a successor General Partner pursuant to this
Agreement. In the event a successor General Partner is selected by the Limited
Partners: (i) the successor General Partner shall assume all the rights, powers
and obligations of the General Partner under this Agreement upon the written
acceptance, adoption and assumption by the successor General Partner of all the
terms and provisions of, and obligations of the General Partner, under this
Agreement; and (ii) the interest of the General Partner shall be converted to
that of a Limited Partner. In furtherance of the foregoing provisions, the
parties hereto agree to execute, file, record and/or publish all such other
instruments and documents as may be necessary to accomplish the foregoing.
(d) the sale or other disposition (including condemnation or
casualty loss) of all or substantially all of the property and assets of the
Partnership;
(e) the occurrence of any other event causing the dissolution of a
limited partnership under the Law; or
(f) January 31, 2027.
9.2 Upon Dissolution. Upon dissolution of the Partnership, the General
----------------
Partner, or, if the dissolution is caused by the retirement, withdrawal, and/or
adjudication of Bankruptcy of the last
17
<PAGE>
remaining General Partner, then the Limited Partners shall determine as speedily
as possible whether or not the Partnership shall be reformed (as a limited
partnership, general partnership, joint venture or similar organization) and its
business continued under arrangements which make proper provision for its
liabilities. In the event of such reformation, such reformation shall constitute
the termination of the Partnership.
9.3 Wind-Up of Affairs. Upon dissolution, the General Partner shall
------------------
proceed with dispatch and without any unnecessary delay to sell or otherwise
liquidate the Partnership assets. The Capital Account of each Partner shall be
determined. Profits or losses to the date of termination, including realized
profits (whether or not recognized for Federal income tax purposes) or losses
arising from a sale of all of the assets of the Partnership, and unrealized
profits and losses on any assets to be distributed in kind (determined as if
such assets had been sold by the Partnership for prices equal to their
respective fair market value) shall be allocated as set forth in Article IV and
credited or charged to the Capital Accounts of the Partners. After paying or
duly providing for all liabilities to creditors of the Partnership, (including
any obligations to Partners or affiliates thereof) and any reserve that the
General Partner may deem reasonably necessary for any contingent or unforeseen
liabilities and other obligations of the Partnership or of the General Partner
arising out of or in conjunction with the Partnership's affairs, the General
Partner shall make liquidating distributions among the Partners as set forth in
Section 9.04 hereof.
The wind-up of the affairs of the Partnership shall be conducted
exclusively by the General Partner, which is hereby authorized to do any and all
acts and things authorized by law for such purposes. In liquidating the assets
of the Partnership, all tangible assets of a saleable value shall be sold at
such price and terms as the General Partner in good faith determines to be fair
and equitable. Any partnership, corporation or other entity in which all or any
of the Partners are in any way interested may purchase such assets at such
sale. A reasonable time shall be allowed for the orderly liquidation of the
assets of the Partnership and the discharge of liabilities to creditors so as to
enable the Partnership to minimize the losses normally occurring upon a
liquidation.
If any assets of the Partnership are to be distributed in kind, such
assets shall be distributed on the basis of the then fair market value thereof
(after adjusting the Capital Accounts of all Partners for any unrealized gain or
loss inherent in such property, as set forth above). The fair market value
shall be reasonably determined by the General Partner.
9.4 Liquidating Distributions. Upon liquidation of the Partnership,
-------------------------
liquidating distributions to the Partners shall be made pro rata based upon
their respective Partnership Percentages.
If any Partner has a deficit balance in its Capital Account following
the liquidation of its Partnership Interest, as determined after taking into
account all Capital Account adjust ments for the Partnership taxable year during
which such liquidation occurs (other than those made
18
<PAGE>
pursuant to this paragraph), such Partner shall be unconditionally obligated to
restore the amount of such deficit balance to the Partnership by the end of such
taxable year (or, if later, within ninety (90) days after the date of such
liquidation), which amount shall, upon liquidation of the Partnership, be paid
to creditors of the Partnership or distributed to other Partners in accordance
with their positive Capital Account balances.
In the event that, immediately prior to the liquidation of the
Partnership, the General Partner has a negative balance in its Capital
Account, the General Partner shall contribute to the capital of the Partnership
an amount of cash equal to the lesser of: (a) such negative balance; or (b) the
excess of: (i) 1.01% of the total capital contributions made by the Limited
Partner to the Partnership as of such date over (ii) the total amount of capital
contributions to the Partnership theretofore made by the General Partner.
9.5 Termination. The Partnership shall terminate when all its assets have
-----------
been paid and distributed in accordance with this Article IX.
ARTICLE X
CONFIDENTIAL INFORMATION
------------------------
10.1 Confidentiality. Sforza hereby acknowledges that it may acquire, make
---------------
use of or learn of confidential information of a special and unique nature and
value affecting and relating to the restaurants affiliated with Unique and the
Partnership and its financial operations, including, but not limited to, the
restaurant concept, menus, business methods, marketing strategies and trade
secrets, and the Partnership's business, business records and other records, and
other similar information relating to the Partnership and the Partnership's
business (all the foregoing being hereinafter referred to collectively as
"Confidential Information"). Accordingly, Sforza hereby covenants and agrees
that it shall not at any time, directly or indirectly, either during the term of
this Agreement or afterward, divulge, reveal or communicate any Confidential
Information to any person, firm, corporation or entity whatsoever, or use any
Confidential Information for its own benefit or for the benefit of others,
except as may be required by law.
10.2 Injunction and Attorneys' Fees. In view of the irreparable harm and
------------------------------
damage which would occur to Unique and the Partnership as a result of a breach
or a threatened breach of the covenants or agreements under Section 10.01
hereof, and in view of the lack of an adequate remedy at law to protect the
Partnership and Unique, the Partnership and Unique shall have the right to
receive, and Sforza hereby consents to the issuance of, a permanent injunction
enjoining Sforza from any violation of the covenants set forth in Section 10.01.
Sforza acknowledges that a permanent injunction is an appropriate remedy for
such a breach or threatened breach. The foregoing remedy shall be in addition
to and not in limitation of any other rights or remedies to which the
Partnership or Unique is or may be entitled at law or in equity. Sforza further
agrees that in the event the
19
<PAGE>
Partnership or Unique incurs any fees or costs in order to enforce the
provisions of Section 10.01 hereof, Sforza against whom enforcement of said
provisions is sought shall pay all fees and costs so incurred by the Partnership
or Unique, including, but not limited to, attorneys' and paralegals' fees.
ARTICLE XI
MISCELLANEOUS
-------------
11.1 Amendment. Except as herein provided, this Agreement may not be
---------
amended without the consent of both the General Partner and the Limited
Partners. This Agreement may be amended from time to time by the General
Partner without the consent of the Limited Partners: (i) to substitute or add
a Limited Partner to the extent provided for in this Agreement; (ii) to add to
the representations, duties or obligations of the General Partner or surrender
any right or power granted to the General Partner herein, for the benefit of
the Limited Partner; (iii) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Agreement which will not be inconsistent with the provisions of this
Agreement; (iv) to preserve the status of the Partnership as a "partnership" for
federal income tax purposes; (v) to delete or add any provision of this
Agreement required to be so deleted or added by the staff of the Securities and
Exchange Commission or other federal agency or by a state "Blue Sky" commission
or official or similar such official, which addition or deletion is deemed by
such Commission, agency or official to be for the benefit or protection of the
Limited Partner; or (vi) if such amendment is, in the opinion of counsel for the
Partnership, necessary or appropriate to satisfy the requirements of Code
Section 704(b) or the Regulations promulgated thereunder.
11.2 Notices. Any notice required or permitted to be delivered to any
-------
Partner under the provisions of this Agreement shall be deemed delivered,
whether actually received or not, when deposited in a United States Postal
Service Depository, postage prepaid, registered or certified, return receipt
requested, and addressed to the Partner at the address set forth below, or such
other address as shall be specified by written notice delivered to the
Partnership:
If to Unique: Unique Brickell, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
If to URC: Unique Restaurant Concepts, Ltd.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
20
<PAGE>
If to Sforza: Sforza Enterprises, Inc.
330 Clematis Street, Suite 211
West Palm Beach, Florida 33401
All notices, demands and requests shall be effective upon being
deposited in the United States mail. However, the time period in which a
response to any such notice, demand or request must be given shall commence to
run from the date of receipt on the return receipt of the notice, demand or
request by the addressee thereof or the date of actual receipt in the case of
delivery by other means. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be
deemed to be receipt of the notice, demand or request when sent.
11.3 Agency. Except as provided herein, nothing herein contained shall be
------
construed to constitute any Partner hereof the agent of any other Partner hereof
or to limit in any manner the Partners in the carrying on of their own
respective businesses or activities. Any Partner may engage in and/or possess
any interest in other business Partnerships of every nature and description,
independently or with others, whether existing as of the date hereof or
hereafter coming into existence; and neither the Partnership nor any Partner
hereof shall have any rights in or to any such independent Partnerships or the
income or profits derived therefrom.
11.4 Further Assurances. The Partners will execute and deliver such
------------------
further instruments and do such further acts and things as may be required to
carry out the intent and purposes of this Agreement.
11.5 Headings. The headings of the various sections of this Agreement are
--------
intended solely for convenience of reference, and shall not be deemed or
construed to explain, modify or place any construction upon the provisions
hereof.
11.6 Successors and Assigns. This Agreement and any amendments hereto
----------------------
shall be binding upon and, to the extent expressly permitted by the provisions
hereof, shall inure to the benefit of the Partners, their respective successors
and assigns.
11.7 Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Florida, and agreed upon venue, to the
extent permitted by law, shall be Palm Beach County, Florida. This Agreement is
intended to be performed in accordance with, and only to the extent permitted
by, all applicable laws, ordinances, rules, and regulations of the jurisdiction
in which the Partnership does business.
11.8 Entire Agreement. This Agreement sets forth all (and is intended by
----------------
all parties hereto to be an integration of all) of the promises, agreements,
conditions, understandings, warranties and
21
<PAGE>
representations among the parties hereto with respect to the Partnership, the
Partnership business and the Partnership Assets, and supersedes any and all
prior and contemporaneous promises, agreements, conditions, understandings,
warranties or representations, oral or written, express or implied, except as
set forth herein.
11.9 Counterparts. This Agreement and any amendments hereto may be
------------
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
11.10 Gender. Wherever the context requires, any pronoun used herein may
------
be deemed to mean the corresponding masculine, feminine or neuter in form
thereof and the singular form of any nouns and pronouns herein may be deemed to
mean the corresponding plural and vice versa as the case may require.
11.11 Remedies. Each of the Partners acknowledge and agree that in the
--------
event that a Partner shall violate any of the restrictions or fail to perform
any of the obligations hereunder, the Partnership or the other Partners will be
without adequate remedy at law and will therefore be entitled to enforce such
restrictions or obligations by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding instituted in any court of competent
jurisdiction without the necessity of proving damages and without prejudice to
any other remedies it may have at law or in equity.
11.12 No Third Party Beneficiary. This Agreement is made solely and
--------------------------
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other Person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise.
11.13 No Foreign Person Withholding. Each of the Partners hereby represent
-----------------------------
and warrant that it is not a "foreign person" within the meaning of Code Section
1445.
11.14 No Recordation. Neither this Agreement nor any memorandum thereof
--------------
shall be recorded amongst the public records of any governmental authority.
11.15 Conflict Waiver. Each Partner hereby acknowledges and agrees that:
---------------
(i) Ruden, McClosky, Smith, Schuster & Russell, P.A. ("Firm") has represented
the General Partner, URC and their respective principals in connection with the
organization of the Partnership and in the preparation of this Agreement and may
hereafter represent the Partnership in other matters; (ii) the Firm has
represented the General Partner, URC and Affiliates of the General Partner and
URC in the past and the Firm may continue in the future to represent the General
Partner, URC and their respective Affiliates on other matters; (iii) each
Limited Partner (other than URC) has waived any
22
<PAGE>
conflict of interest that exists as a result of such representation and
acknowledges that the Firm undertakes no attorney-client relationship with any
Limited Partner by virtue of its representation of the Partnership; and (iv)
each Limited Partner (other than URC) has been ad vised by the Firm to consult
with independent legal counsel before entering into this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
23
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the day and year first above written.
GENERAL PARTNER:
UNIQUE BRICKELL, INC., a Florida corporation
By: /s/ Dennis Max, President
----------------------------------------
Dennis Max, President
LIMITED PARTNERS:
UNIQUE RESTAURANT CONCEPTS, LTD.
By: UNIQUE RESTAURANT CONCEPTS,
INC., as General Partner
By: /s/ Dennis Max, President
-----------------------------------
Dennis Max, President
SFORZA ENTERPRISES, INC., a Florida
corporation
By: /s/ Dale J. Brisson, President
----------------------------------------
24
<PAGE>
Exhibit 10.2
UNIQUE WESTON, LTD.
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
December 30, 1997
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ARTICLE I
DEFINITIONS...............................................................2
1.1 Act ...........................................................2
1.2 Adjusted Net Income and Adjusted Net Loss .....................2
1.3 Administrative Fee ............................................2
1.4 Affiliate .....................................................2
1.5 Agreement .....................................................2
1.6 Available Cash ................................................2
1.7 Bankruptcy ....................................................2
1.8 Capital Account ...............................................3
1.9 Capital Contribution ..........................................3
1.10 Capital Transaction ...........................................3
1.11 Certificate ...................................................3
1.12 Code ..........................................................3
1.13 Event of Dissolution ..........................................3
1.14 General Partner ...............................................3
1.15 Interim Capital Transaction ...................................3
1.16 Law ...........................................................4
1.17 Limited Partners ..............................................4
1.18 Partners ......................................................4
1.19 Partnership ...................................................4
1.20 Partnership Accountants .......................................4
1.21 Partnership Accounting Year or Fiscal Year ....................4
1.22 Partnership Interest ..........................................4
1.23 Partnership Percentage ........................................4
1.24 Person ........................................................4
1.25 Restaurant ....................................................5
1.26 Stipulated Rate ...............................................5
1.27 Terminating Capital Transaction ...............................5
1.28 Treasury Regulations ..........................................5
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ARTICLE II
SUPERSEDER, NAME, BUSINESS, TERM .........................................5
2.1 Superseder ....................................................5
2.2 Name ..........................................................5
2.3 Principal Place of Business; Recordkeeping Office .............5
2.4 Business of the Partnership ...................................5
2.5 Term ..........................................................6
2.6 Title .........................................................6
ARTICLE III
CAPITAL CONTRIBUTIONS; LOANS .............................................6
3.1 Capital Contributions and Loans ...............................6
3.2 Other Matters Relating to Capital .............................7
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS ............................................7
4.1 Allocations from Operations and From Capital Transactions .....7
4.2 Depreciation Recapture ........................................8
4.3 Distribution of Available Cash ................................8
4.4 Distribution of Net Proceeds from Terminating
Capital Transaction .........................................8
4.5 Distribution in Cash Only .....................................8
4.6 Minimum Allocations and Distributions to the General Partner ..8
ARTICLE V
MANAGEMENT OF PARTNERSHIP; ADMINISTRATIVE FEE ............................8
5.1 Rights, Powers and Duties of the General Partner ..............8
5.2 Liability and Indemnification ................................10
5.3 Dealings with Partnership by Partners and Related Parties ....10
5.4 Competition ..................................................10
5.5 Tax Elections ................................................11
5.6 Administrative Fee ...........................................11
5.7 Restaurant Concept ...........................................11
5.8 Replacement of General Partner ...............................11
ARTICLE VI
MATTERS REGARDING LIMITED PARTNER .......................................11
6.1 Management ...................................................11
6.2 Power of Attorney ............................................12
6.3 Limitation of Certain Rights .................................13
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ARTICLE VII
TRANSFERS OF PARTNERSHIP INTERESTS.......................................13
7.1 General Prohibition..........................................13
7.2 Rights of Assignee...........................................13
7.3 Transfers by General Partner.................................14
7.4 Transfers by Limited Partners................................14
ARTICLE VIII
FISCAL MATTERS...........................................................15
8.1 Books and Records............................................15
8.2 Reports and Statements.......................................15
8.3 Tax Matters..................................................16
8.4 Appointment of Tax Matters Partner...........................16
8.5 Tax Status...................................................16
ARTICLE IX
DISSOLUTION..............................................................17
9.1 Dissolution..................................................17
9.2 Upon Dissolution.............................................17
9.3 Wind-Up of Affairs...........................................18
9.4 Liquidating Distributions....................................18
9.5 Termination..................................................19
ARTICLE X
CONFIDENTIAL INFORMATION.................................................19
10.1 Confidentiality..............................................19
10.2 Injunction and Attorneys' Fees...............................19
ARTICLE XI
MISCELLANEOUS............................................................20
11.1 Amendment....................................................20
11.2 Notices......................................................20
11.3 Agency.......................................................21
11.4 Further Assurances...........................................21
11.5 Headings.....................................................21
11.6 Successors and Assigns.......................................21
11.7 Applicable Law...............................................21
11.8 Entire Agreement.............................................21
11.9 Counterparts.................................................22
11.10 Gender.......................................................22
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11.11 Remedies.....................................................22
11.12 No Third Party Beneficiary...................................22
11.13 No Foreign Person Withholding................................22
11.14 No Recordation...............................................22
11.15 Conflict Waiver..............................................22
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THE PARTNERSHIP INTERESTS REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED
FOR INVESTMENT AND, PURSUANT TO APPLICABLE EXEMPTIONS, HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES
LAWS. WITHOUT SUCH REGISTRATION, THE PARTNERSHIP INTERESTS MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT
UPON DELIVERY TO THE PARTNERSHIP OF AN OPINION OF COUNSEL SATISFACTORY TO THE
GENERAL PARTNER OF THE PART NERSHIP THAT REGISTRATION IS NOT REQUIRED FOR SUCH
TRANSFER OR THE SUBMISSION TO THE GENERAL PARTNER OF SUCH OTHER EVIDENCE THAT
MAY BE SATISFACTORY TO THE GENERAL PARTNER TO THE EFFECT THAT ANY SUCH TRANSFER
WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATIONS PROMULGATED
THEREUNDER. ADDITIONALLY, ANY SALE OR OTHER TRANSFER OF PARTNERSHIP INTERESTS
IS SUBJECT TO CERTAIN RESTRICTIONS THAT ARE SET FORTH IN THIS AGREEMENT OF
LIMITED PARTNERSHIP.
UNIQUE WESTON, LTD.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
-----------------------------------------------------
THIS AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") is made and entered into
as of the 30th day of December, 1997, by and between UNIQUE WESTON, INC.
("Unique"), as the General Partner, UNIQUE RESTAURANT CONCEPTS, LTD. ("URC"),
and SFORZA ENTERPRISES, INC., a Florida corporation ("Sforza"), as the Limited
Partners.
RECITALS:
WHEREAS, a Florida limited partnership known as Unique Weston, Ltd.
("Partnership") was formed under the provisions of the Florida Revised Uniform
Limited Partnership Act (1986) and has filed a Certificate of Limited
Partnership and other documentation legally creating the Partnership under
Florida law; and
WHEREAS, the parties desire to amend and restate any prior agreements
governing the Partnership and admit Sforza as a Limited Partner.
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NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.1 Act. The Securities Act of 1933, as amended.
---
1.2 Adjusted Net Income and Adjusted Net Loss. The net income or loss of the
-----------------------------------------
Partner ship resulting from Partnership operations during any stated period, as
calculated by the Partner ship Accountants for federal income tax purposes.
1.3 Administrative Fee. The fee payable pursuant to Section 5.05 hereof.
------------------
1.4 Affiliate. When used with reference to a specified Person: (i) any
---------
Person who, directly or indirectly, through one or more intermediaries,
controls or is controlled by or is under common control with the specified
Person; (ii) any Person who is an officer of, partner in or trustee of, or
serves in a similar capacity with respect to, the specified Person or of which
the specified Person is an officer, partner or trustee, or with respect to which
the specified Person serves in a similar capacity; or (iii) any Person who,
directly or indirectly, is the beneficial owner of ten percent (10%) or more of
any class of equity securities of, or otherwise has a substantial beneficial
interest in, the specified Person or of which the specified Person is directly
or indirectly the owner of ten percent (10%) or more of any class of equity
securities or in which the specified Person has a substantial beneficiary
interest.
1.5 Agreement. This Amended and Restated Agreement of Limited Partnership of
---------
Unique Weston, Ltd., a Florida limited partnership, as originally executed and
as amended from time to time, as the context requires.
1.6 Available Cash. All cash funds of the Partnership on hand from time to
--------------
time after: (i) provision for payment of all outstanding and unpaid current
obligations, expenses and charges of the Partnership as of such time (including
the Administrative Fee and all amounts of any principal or interest payable
with respect to any loans from Partners); and (ii) provision for such reserve as
reasonably determined by the General Partner to be necessary for working capital
or other Partnership needs. Available Cash shall not include or reflect any
proceeds received or expenses incurred in connection with a Terminating Capital
Transaction.
1.7 Bankruptcy. As used in this Agreement, the term "Bankruptcy," with
----------
respect to the Partnership or the General Partner, shall refer to: (i) the
appointment of a receiver, conservator, rehabilitator or similar officer for the
Partnership or the General Partner, unless the appointment of
2
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such officer shall be vacated and such officer discharged within one hundred
twenty (120) days of the appointment; (ii) the taking of possession of, or the
assumption of control over, all or any substantial part of the property of the
Partnership or the General Partner by any receiver, conservator, rehabilitator
or similar officer or by the United States government or any agency thereof,
unless such property is relinquished within one hundred twenty (120) days of the
taking; (iii) the filing of a petition in bankruptcy or the commencement of any
proceeding under any present or future federal or state law relating to
bankruptcy, insolvency, debt relief or reorganization of debtors by or against
the Partnership or the General Partner, provided, if filed against (and not by)
the Partnership or the General Partner, such petition or proceeding is not
dismissed within thirty (30) days of the filing of the petition or the
commencement of the proceeding; or (iv) the making of an assignment for the
benefit of creditors or a private composition, arrangement or adjustment with
the creditors of the Partnership or the General Partner.
1.8 Capital Account. An account that, throughout the full term of the
---------------
Partnership, shall be established, determined and maintained separately for each
Partner in accordance with the provisions of Treasury Regulations Section 1.704-
1(b)(2)(iv) promulgated under Code Section 704(b).
1.9 Capital Contribution. The amount of cash or the agreed fair market value
--------------------
of property contributed by each Partner to the capital of the Partnership, as
reflected in the books of the Partnership.
1.10 Capital Transaction. An Interim Capital Transaction or a Terminating
-------------------
Capital Transaction.
1.11 Certificate. The Certificate of Limited Partnership of the Partnership
-----------
filed with the Secretary of State of the State of Florida, as it may be amended
from time to time.
1.12 Code. The Internal Revenue Code of 1986, as amended from time to time,
----
or any corresponding provision or provisions of any federal internal revenue law
enacted in substitution of the Internal Revenue Code of 1986.
1.13 Event of Dissolution. Any of the events that result in a dissolution of
--------------------
the Partnership as set forth in Section 9.01 hereof.
1.14 General Partner. The general partner of the Partnership, as it may exist
---------------
from time to time. The General Partner on the date hereof is Unique. No Person
shall be a General Partner unless admitted to the Partnership as such in
accordance with the terms hereof.
1.15 Interim Capital Transaction. A transaction pursuant to which the
---------------------------
Partnership borrows funds or refinances existing debt, a sale, condemnation,
exchange, abandonment or other disposition
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of a portion (which is less than substantially all) of the assets of the
Partnership, an insurance recovery and any other transaction, other than a
Terminating Capital Transaction, that, in accordance with generally accepted
accounting principles, is considered capital in nature.
1.16 Law. The Florida Revised Uniform Limited Partnership Act (1986), as
---
amended.
1.17 Limited Partners. The Limited Partners, as they may exist from time to
----------------
time. Reference to the "Limited Partner" shall mean any Limited Partner. No
Person shall be a Limited Partner unless admitted to the Partnership as such in
accordance with the terms hereof.
1.18 Partners. The General Partner and the Limited Partners, collectively.
--------
Reference to a "Partner" shall be to any of the Partners.
1.19 Partnership. Unique Weston, Ltd., the Florida limited partnership.
-----------
1.20 Partnership Accountants. Such certified public accountants as may be
-----------------------
selected, from time to time, by the General Partner.
1.21 Partnership Accounting Year or Fiscal Year. The calendar year, unless
------------------------------------------
otherwise determined by the General Partner.
1.22 Partnership Interest. The entire ownership interest of a Partner in the
--------------------
Partnership at any particular time, including the right of such Partner to any
and all distributions, allocations and other incidents of participation in the
Partnership to which such Partner may be entitled as provided in this Agreement
and the Law, together with the obligations of such Partner to comply with all of
the terms and provisions of this Agreement and the Law, and further including
its Capital Account hereunder.
1.23 Partnership Percentage. The percentage set forth below with respect to
----------------------
each Partner, which percentage may be diluted pro rata upon the Partnerships'
issuance of additional Partner ship Interests in accordance with the terms of
this Agreement:
(a) Unique 1%
(b) URC 48%
(c) Sforza 51%
1.24 Person. Any individual, trust, partnership, corporation, joint
------
venture, trust, or other entity or association, and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person.
4
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1.25 Restaurant. The restaurant located in The Waterway Shoppes of Weston,
----------
in Weston, Florida to be owned and operated by the Partnership, to be named
initially as "Max's Grille" or some derivative thereof.
1.26 Stipulated Rate. The rate of interest, calculated annually, equal to
---------------
two percent (2%), plus the annual rate of simple interest announced from time to
time by Citibank, N.A. as its publicly announced commercial prime lending rate
to its most creditworthy borrowers, but not higher than the highest nonusurious
rate of simple interest for commercial loans under applicable law, nor lower
than the lowest interest rate that may be charged without causing the imputation
of interest for federal income tax purposes.
1.27 Terminating Capital Transaction. A sale, condemnation, exchange or
-------------------------------
other disposition, whether by foreclosure, abandonment or otherwise, of all or
substantially all of the then remaining assets of the Partnership or a
transaction that will result in a dissolution of the Partnership.
1.28 Treasury Regulations. Treasury Regulations shall mean regulations
--------------------
promulgated by the United States Treasury Department interpreting the Code.
ARTICLE II
SUPERSEDER, NAME, BUSINESS, TERM
--------------------------------
2.1 Superseder. This Agreement supersedes in its entirety any prior
----------
agreements governing the Partnership.
2.2 Name. The business of the Partnership shall be conducted under the
----
name "Unique Weston, Ltd." provided, however, the Partnership may conduct
business under such other name or fictitious name as the General Partner may
designate.
2.3 Principal Place of Business; Recordkeeping Office. The principal
-------------------------------------------------
place of business of the Partnership shall be 490 East Palmetto Park Road,
Suite 110, Boca Raton, Florida 33432, or at such other location in or outside
the State of Florida as hereinafter may be determined by the General Partner.
The recordkeeping office of the Partnership required by the Law shall be 490
East Palmetto Park Road, Suite 110, Boca Raton, Florida 33432, or at such other
location in the State of Florida as may be determined by the General Partner.
2.4 Business of the Partnership. The purpose and scope of the Partnership
---------------------------
is to: (i) own, and engage in the operation of, sell and in all other respects
deal with, a restaurant for-profit; and (ii) engage in all manner of
transactions and activities incidental to the foregoing.
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The Partnership shall not engage in any other business or activity,
except as other wise expressly and specifically provided in this Agreement or
as the Partners shall otherwise agree in writing. Except as expressly provided
to the contrary in this Agreement, nothing herein shall be deemed to restrict in
any way the freedom of a Partner to conduct any other business or activity
whatsoever without any accountability to the Partnership or the other Partners.
2.5 Term. The term of the Partnership shall continue in full force and
----
effect until terminated in accordance with Article IX of this Agreement or as
otherwise provided by the Law.
2.6 Title. Legal title to the Partnership's property shall be held in the
-----
name of the Partnership, or in such other manner as the General Partner shall
determine.
ARTICLE III
CAPITAL CONTRIBUTIONS; LOANS
----------------------------
3.1 Capital Contributions and Loans.
-------------------------------
(a) The Partners shall each make the following Capital Contributions
to the Partnership:
(i) Unique has contributed $1.00 in cash to the capital of
the Partnership.
(ii) URC has contributed $99.00 in cash to the capital of
the Partnership.
(iii) Sforza shall make its capital contribution to the
Partnership by paying the Partnership the portion of the "Purchase Price" to be
allocated to the Partnership pursuant to the terms of, and as such term is
described in, that certain Partnership Interest Subscription Agreement dated
December 30, 1997, by and among Sforza Enterprises, Inc., Max's Beach Grill,
Ltd., Unique Weston, Ltd., Unique Weston, Ltd. and Unique TBA, Ltd.
(b) No Partner shall be obligated to make any additional Capital
Contribution or loan to the Partnership. Partners shall be permitted to make
Capital Contributions and loans in addition to the foregoing to the Partnership
with the prior written consent of the General Partner. All loans made by
Partners to the Partnership shall be demand loans bearing interest at the
Stipulated Rate unless otherwise provided in the documentation evidencing any
such loans.
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3.2 Other Matters Relating to Capital.
---------------------------------
(a) Interest earned on Partnership funds shall inure solely to the
benefit of the Partnership, and, except as specifically provided herein, no
interest shall be paid upon any contributions or advances to the capital of the
Partnership or upon any undistributed or reinvested income or profits of the
Partnership.
(b) The Capital Contributions of the Partners shall be utilized for
carrying out the purposes of the Partnership as set forth in this Agreement and
for payment of any expenses incurred in connection therewith, including payment
of expenses paid or incurred by the General Partner on behalf of the Partnership
whether prior or subsequent to the execution of this Agreement.
(c) Loans by a Partner to the Partnership shall not be considered
contributions to the capital of the Partnership and shall not increase the
Capital Account of the lending Partner. Nothing herein shall authorize any loan
by a Partner to the Partnership unless otherwise authorized pursuant to the
other provisions of this Agreement or unless agreed to by the General Partner.
(d) Except as specifically provided herein, no Partner shall be
entitled to con tribute capital to the Partnership without the consent of the
General Partner, to withdraw, or to a return of, any part of his Capital
Contribution or to receive property or assets other than cash in return thereof,
and the General Partner shall not be liable for the return of all or any portion
of the Limited Partner's Capital Contributions. To the extent any monies which
any Partner is entitled to receive pursuant to Article IV would constitute a
return of capital, each of the Partners consent to the withdrawal of such
capital.
(e) No Partner shall be entitled to priority over any other Partner,
either with respect to a return of his Capital Contribution or to allocations of
taxable income, gains, losses or credits, or to distributions, except as
provided in this Agreement.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
-----------------------------
4.1 Allocations from Operations and From Capital Transactions. The
---------------------------------------------------------
Adjusted Net Income or Adjusted Net Loss of the Partnership from operations and
any income (including gain) or losses resulting from any Interim or Terminating
Capital Transactions as calculated for federal income tax purposes and reported
by the Partnership on its U.S. Partnership Return of Income for each fiscal year
(or portion thereof) during the term of this Agreement shall be allocated to the
Partners pro rata in accordance with their respective Partnership Percentages.
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4.2 Depreciation Recapture. Notwithstanding anything to the contrary in
----------------------
this Article IV, and for purposes of determining the nature (as ordinary or
capital) of the income or gain allocable under such provisions, gain (if any)
recognized as ordinary income in respect of a Capital Transaction pursuant to
Code Sections 1245 and 1250 shall be deemed to be allocated to the Partners in
proportion to their accumulated depreciation allocations.
4.3 Distribution of Available Cash. Periodically, but not less frequently
------------------------------
than quarterly, the Available Cash if any, shall be distributed to the Partners
pro rata, in accordance with their respective Partnership Percentages.
4.4 Distribution of Net Proceeds from Terminating Capital Transaction.
-----------------------------------------------------------------
The net proceeds of a Terminating Capital Transaction shall be distributed in
the manner set forth in Sections 9.03 and 9.04 hereof.
4.5 Distribution in Cash Only. No Partner shall have the right to demand
-------------------------
or receive property other than cash from the Partnership for any reason
whatsoever and no Partner shall have the right to sue for partition of the
Partnership or for the Partnership's assets.
4.6 Minimum Allocations and Distributions to the General Partner.
------------------------------------------------------------
Notwithstanding any provision in this Article IV to the contrary, for each
fiscal year of the Partnership, at least 1% of each item of income, loss, cash
or property which is to be allocated or distributed pursuant to this Article IV
shall be distributable to the General Partner.
ARTICLE V
MANAGEMENT OF PARTNERSHIP; ADMINISTRATIVE FEE
---------------------------------------------
5.1 Rights, Powers and Duties of the General Partner. The overall
------------------------------------------------
management and control of all aspects of the business and affairs of the
Partnership shall be vested exclusively in the General Partner. The General
Partner shall have all the rights and powers of a general partner as provided in
the Law and as otherwise provided by law, and any action taken by the General
Partner shall constitute the act of and serve to bind the Partnership. Except
as expressly set forth herein, no decision shall be made or action taken with
respect to the Partnership unless such decision or action has been approved by
the General Partner. The General Partner is hereby authorized to delegate, and
hereby delegates, to the Manager (as defined in Section 5.06) all of its powers
and authority to manage the business and affairs of the Partnership. The
General Partner, through the Manager, shall conduct the day-to-day operations of
the Partnership and shall use good faith efforts to carry out the business of
the Partnership as set forth herein. The General Partner, through the
Manager, will have all the specific rights and power required or appropriate to
the operation, management and disposition of the business of the Partnership
which, by way of illustration, but not by the way of limitation, shall include
the right and power to:
8
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(a) supervise the design, construction and equipping of the
Restaurant and all other pre-opening activities;
(b) managing the Restaurant when it opens;
(c) employ such agents, employees, managers, accountants, attorneys,
consultants and other persons as it may deem necessary or desirable for the
conduct of the Partnership's business and pay from Partnership assets such fees,
expenses, salaries, wages and other compensation to such persons as it may
determine;
(d) pay from Partnership's assets, extend, renew, modify, adjust,
submit to arbitration, prosecute, defend or compromise upon such terms as it may
determine, and upon such evidence as it may deem sufficient, any obligation,
suit, liability, cause of action or claim, including taxes, either in favor of
or against the Partnership;
(e) make from Partnership's assets any and all expenditures that it
may deem necessary or desirable for the conduct of the Partnership's business
and the carrying out of its obligations and responsibilities under this
Agreement;
(f) borrow money and issue evidences of indebtedness and security
therefor, mortgage, pledge or otherwise encumber assets of the Partnership, and,
from time to time, refinance any such borrowings;
(g) make distributions of the Partnership's assets to the Partners;
(h) purchase, at the expense of the Partnership, liability and other
insurance to protect the Partnership, the General Partner and the Partnership's
assets and business;
(i) maintain, at the expense of the Partnership, adequate records
and accounts of all operations and expenditures;
(j) sell, exchange or otherwise dispose of all or substantially all
the assets of the Partnership; and in connection therewith, to execute and
deliver such deeds, assignments and conveyances containing such warranties as
the General Partner may determine;
(k) invest the Partnership's assets as it may determine in its sole
discretion;
(l) pay, collect, compromise, arbitrate or resort to legal action or
otherwise adjust, litigate or settle claims and demands of or against the
Partnership;
9
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(m) merge or consolidate the Partnership with or into a corporation,
partnership, limited partnership or other entity, or cause the Partnership to
be acquired by one or more corporations, partnerships, limited partnerships or
other entities or take such other action as may be required to convert the
Partnership to a corporation, partnership, limited partnership or other entity;
and
(n) take any and all other action permitted under applicable law and
that are customary and reasonably related to the Partnership's purposes.
5.2 Liability and Indemnification. The General Partner, its employees
-----------------------------
and Affiliates, shall not be liable to the Partnership or any Partner for any
loss or liability incurred in connection with any act performed or omitted in
accordance with the terms of this Agreement, except for any loss or liability
incurred in connection with the fraud, willful and wanton misconduct or gross
negligence of such Person. The Partnership shall and does hereby agree, to the
fullest extent permitted by law, to defend, indemnify and hold harmless the
General Partner, its employees and Affiliates, from and against any and all
liability, loss, cost, expense or damage incurred or sustained by reason of any
act or omission in the conduct of the business of the Partnership in accordance
with the terms hereof, including attorneys' and paralegals' fees through any and
all negotiations, trial and appellate levels; provided, however, the Partnership
shall not indemnify the General Partner, its employees and Affiliates or hold
them harmless with respect to any of the foregoing incurred in connection with
the fraud, willful and wanton misconduct or gross negligence of such General
Partner, employee or Affiliate.
5.3 Dealings with Partnership by Partners and Related Parties. The fact
---------------------------------------------------------
that any Partner is directly or indirectly interested in or connected with any
person, firm or corporation employed by the Partnership to render or perform
services, or from, or to which the Partnership may buy or sell merchandise,
services, material or other property, shall not prohibit the Partnership from
employing such person, firm or corporation or from otherwise dealing with them.
All compensation permitted under this Section 5.03 shall be deemed to be on
terms reasonable and customary under all circumstances then existing and
payments permitted under this Agreement and called for therein shall be made in
all events regardless of the profits and losses of the Partnership during the
Partnership Accounting Year when the services were rendered.
5.4 Competition. The Partners acknowledge and agree that the Partners
-----------
(and their Affiliates) may have other business interests and may engage in any
other business or trade, individually, in partnership or association with
others or in any capacity whatsoever, whether or not such business competes with
the Partnership. The Partners recognize that the General Partner (directly or
through Affiliates) is actively engaged in competitive businesses with the
Partnership (including owning and operating restaurants similar to the
Restaurant in locations within Palm Beach, Broward and Dade Counties) and that
nothing contained in this Agreement or otherwise shall be deemed to restrict in
any way the rights of the General Partner, or any officer, director or Affiliate
10
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of the General Partner to engage in, or to conduct any other activity, trade or
business, independently or with others (including owing and operating competing
restaurants) whether or not any such activity, trade or business is adverse to,
competes with or is complementary with the business of the Partnership and
neither the Partnership nor the other Partners shall have any rights in or to
such trade, business or activity or the income or profits therefrom. The
Partners hereby expressly agree that each consents to all existing and future
business activities of the General Partner that are in any way competitive with
the business of the Partnership, and that the conduct of such activities shall
not constitute a breach of the General Partner's loyalty obligation to the
Partnership or the other Partners under the Law.
5.5 Tax Elections. The General Partner shall determine from time to time
-------------
whether or not to make or attempt to revoke any and all tax elections regarding
depreciation methods and recovery periods, capitalization of construction period
expenses, amortization of organizational and start-up expenditures, basis
adjustments upon admission or retirement of Partners, and any other federal,
state or local income tax elections.
5.6 Administrative Fee. The General Partner and Limited Partners
------------------
acknowledge that simultaneously with the execution of this Agreement, the
Partnership shall enter into that certain management agreement of even date
herewith (the "Management Agreement") with Unique Restaurant Concepts, Inc.
("Manager"), which shall contain the terms and conditions of the Partnership's
engagement of the Manager to perform management services for the Restaurant.
The term "Administrative Fee," as used herein, shall refer to the compensation
payable by the Partnership to the Manager under the Management Agreement, as
same may be amended from time to time.
5.7 Restaurant Concept. The Partners recognize and acknowledge that the
------------------
fully developed concept for the Restaurant (i.e. design, menu, decor, etc. )
and the Restaurant's name, "Max's Grille," is owned by URC. URC shall
simultaneously herewith enter into a License Agreement that authorizes the
Partnership, without any royalty or other monetary obligation, to use the name
"Max's Grille."
5.8 Replacement of General Partner. In the event of the Bankruptcy or
------------------------------
resignation of the General Partner, a successor General Partner may be appointed
by the affirmative vote of a majority of the Partnership Percentages.
ARTICLE VI
MATTERS REGARDING LIMITED PARTNER
---------------------------------
6.1 Management. The Limited Partners shall not participate in the
----------
operation or management of the business of the Partnership or transact any
business for or in the name of the
11
<PAGE>
Partnership, shall not have any right or power to sign for or bind the
Partnership in any manner, and shall have no right of consent or approval as to
any act or decision of the Partnership.
6.2 Power of Attorney.
-----------------
(a) The Limited Partners hereby make, constitute and appoint the
General Partner, and each Person who shall hereafter become a General Partner,
with full power of substitution, its true and lawful attorney-in-fact, and in
the name, place and stead of such Limited Partner, with the power from time to
time to execute, acknowledge, make, swear to, verify, deliver, record, publish
and/or file:
(i) Any certificate or other instrument which may be required
to be filed by the Partnership or the Partners under the laws of any state or
other jurisdiction to the extent that the said attorneys or any of them deem
such filing necessary or desirable and that such action has been authorized in
accordance with this Agreement;
(ii) Any and all amendments or modifications of this Agreement
and the instruments described in clauses (i) of this Section 6.02, provided that
each such amendment or modification has been authorized in accordance with the
terms of this Agreement;
(iii) Any and all certificates and other instruments which may
be required to effectuate the dissolution and termination of the Partnership
pursuant to the provisions of this Agreement;
(iv) Any and all consents to the entry of a judgment against
the Partnership, authorized in accordance with this Agreement;
(v) All such other instruments as said attorneys or any of
them may deem necessary or desirable fully to carry out the provisions of this
Agreement in accordance with its terms; provided, however, that this Special
Power of Attorney shall not, without the prior written consent of the Limited
Partner from whom the Special Power of Attorney is given, empower any such
attorney to execute any instrument or other document which affects the
substantive rights of such Limited Partner, or increases the liabilities of such
Limited Partner beyond the liability contemplated by this Agreement. Each of
said attorney shall have full power and authority to do and perform each and
every act and thing whatsoever requisite and necessary in and about the
foregoing as fully as the Limited Partner might or could do if personally
present and each Limited Partner hereby ratifies and confirms all that said
attorney, or any of them, shall lawfully do or cause to be done by virtue
hereof.
(b) The foregoing grant of authority:
12
<PAGE>
(i) is a Special Power of Attorney coupled with an interest
in favor of the General Partner and as such shall be irrevocable;
(ii) may be exercised for the Limited Partner by the signature
of the General Partner; and
(iii) shall survive the assignment by the Limited Partner of
the whole or any portion of his Partnership Interest, except that, where the
assignee of the whole of the Limited Partner's Partnership Interest has
furnished a power of attorney and has been approved by the remaining Partner(s)
for admission to the Partnership as a substitute Limited Partner, this power of
attorney shall survive such assignment for the sole purpose of enabling the
General Partner to execute, acknowledge and file any instrument necessary to
effect such substitution and shall thereafter terminate.
(c) A similar power of attorney shall be one of the instruments which the
General Partner shall require an assignee of the Limited Partner to execute as a
condition of such assignment and admission as a substitute Limited Partner.
6.3 Limitation of Certain Rights. The Limited Partner shall not have the
----------------------------
right or power to: (i) bring an action for partition against the Partnership or
with respect to any of its property; (ii) cause the termination or dissolution
of the Partnership by court decree or as may be permitted by the Law, such
rights being specifically waived by the Limited Partner; or (iii) re quire the
Partnership to pay an amount upon or as a result of the withdrawal of such
Limited Partner from the Partnership.
ARTICLE VII
TRANSFERS OF PARTNERSHIP INTERESTS
----------------------------------
7.1 General Prohibition. Absent Sforza's consent, no additional
-------------------
Partnership Interests shall be issued by the Partnership if the effect of such
issuance would be to reduce the Partnership Percentage of Sforza. Except with
the prior written consent of the General Partner, no Partner shall sell,
transfer, assign, syndicate, pledge, encumber or otherwise dispose of, either
voluntarily, involuntarily, by operation of law or otherwise ("Transfer") all
or any part of its Partnership Interest unless made pursuant to and in
compliance with this Article VII and unless a copy of an executed and
acknowledged assignment effecting such Transfer has been filed with the
Partnership. Any purported Transfer of a Partnership Interest in violation of
the provisions of this Agreement shall be void ab initio.
---- -- ------
7.2 Rights of Assignee. Any Transfer of a Partnership Interest (or any
------------------
part thereof) to a Person ("Assignee") who is not admitted to the Partnership as
a Limited Partner or a General Partner shall vest in such Person only rights of
an assignee, and shall not entitle the Assignee to be
13
<PAGE>
admitted to the Partnership as a Partner. An Assignee who has not been admitted
to the Partnership as a Partner shall only have the right to receive the share
of profits, losses, tax credits and distributions of the Partnership to which
the Assigned Partner would have been entitled with respect to the Partnership
Interest (or a portion thereof) so assigned and shall have no right to require
any information or accounting of the Partnership's transactions or finances or
to inspect Partnership books, or to exercise any powers or other rights
including voting and consent rights, incidental to ownership of a Partnership
Interest. Admission of an Assignee to the Partnership as a General Partner shall
vest in such person all rights and powers, and subject such person to all duties
and all obligations thereafter arising, of a General Partner. Admission of an
Assignee to the Partnership as a Limited Partner shall vest in such person all
rights and powers, and subject such person to all duties and all obligations
thereafter arising, of a Limited Partner.
7.3 Transfers by General Partner. The General Partner may Transfer all
----------------------------
or any part of its Partnership Interest to an Assignee to be admitted to the
Partnership as a General Partner or as a Limited Partner if all of the following
conditions are met:
(a) The Limited Partners consent in writing to the Transfer and the
admission of the Assignee as a General Partner or Limited Partner;
(b) The Assignee agrees in writing to be bound by the provisions of
this Agreement and the Certificate;
(c) The Assignee executes any and all documents, including an
amendment to this Agreement and the Certificate, required to effectuate or
evidence its admission to the Partnership as a General Partner;
(d) The Partnership has received an opinion of counsel to the affect
that the contemplated Transfer and admission of the Assignee as a General
Partner or Limited Partner, as the case may be, will not cause the termination
of the Partnership for federal income tax purposes or cause the Partnership not
to be treated as a partnership for federal income tax purposes;
(e) The Assignee reimburses the Partnership for all reasonable costs
and expenses (including reasonable attorney's fees) incurred in connection with
the Transfer and admission; and
(f) The Assignee is not a minor or legally incompetent.
7.4 Transfers by Limited Partners. A Limited Partner may Transfer all or
-----------------------------
any part of its Partnership Interest to an Assignee, provided the Limited
Partner first receives the prior written consent of the General Partner. An
Assignee of a Limited Partner's Partnership Interest shall be admitted to the
Partnership as a Limited Partner if all the following conditions are met:
14
<PAGE>
(a) The assigning Limited Partner so provides in the instrument of
assignment;
(b) The General Partner consents in writing to the admission of the
Assignee as a Limited Partner, which consent may be unreasonably withheld in the
sole and absolute discretion of the General Partner;
(c) The Assignee agrees in writing to be bound by the provisions of
this Agreement and the Certificate, and executes any and all documents
reasonably deemed necessary by the General Partner to effectuate or evidence the
admission of the Assignee to the Partnership as a Limited Partner;
(d) If deemed necessary by the General Partner, an opinion of
counsel is delivered to the Partnership and the General Partner, in form,
substance and from counsel satisfactory to the Partnership and the General
Partner, to the effect that: (i) the proposed Transfer does not require
registration under the Act or any other applicable federal or state securities
laws, including, in each case, the rules and regulations promulgated thereunder;
and (ii) that such action will not cause the termination of the Partnership for
federal income tax purposes or cause the Partnership not to be treated as a
partnership for federal income tax purposes;
(e) The Assignee reimburses the General Partner and the Partnership
for all reasonable costs and expenses (including reasonable attorney's fees)
incurred by the General Partner or the Partnership in connection with the
Transfer and admission;
(f) The Assignee is not a minor or legally incompetent.
ARTICLE VIII
FISCAL MATTERS
--------------
8.1 Books and Records. The General Partner shall keep, or cause to be
-----------------
kept, full and accurate books and records of all transactions of the Partnership
on the accrual method of accounting. All organizational records of the
Partnership and other records required to be kept by the Partnership under the
Law, shall, at all times, be maintained at the Partnership's recordkeeping
office referred to in Section 2.03 hereof, and shall be open during ordinary
business hours for inspection and copying upon the reasonable request and at
the expense of the Limited Partner and their authorized representatives.
8.2 Reports and Statements. Within: (i) ten (10) days after the end of
----------------------
each month; and (ii) ninety (90) days after the end of each Partnership
Accounting Year, the General Partner shall, at the expense of the Partnership,
cause to be delivered to the Limited Partners the following
15
<PAGE>
unaudited financial statements, prepared on a federal income tax basis, which
shall be prepared by the Partnership Accountants:
(a) A balance sheet of the Partnership as of the end of the
preceding month or of such Partnership Accounting Year; and
(b) A profit and loss statement for each such preceding month or for
the Partnership Accounting Year.
Such financial statements shall be accompanied by such other
information as, in the judgment of the General Partner, may be reasonably
necessary for the Limited Partners to be advised of the financial status and
results of operations of the Partnership.
In addition, the General Partner shall promptly following receipt
deliver to the Limited Partners copies of any documents served upon the
registered agent of the Partnership as well as any other notices of default
under any material agreement.
8.3 Tax Matters. The General Partner shall, at the expense of the
-----------
Partnership prepare, or cause to be prepared, for delivery to the Limited
Partners within ninety (90) days of the end of the Partnership's Accounting
Year, all federal and any required state and local income tax returns for the
Partnership for each Fiscal Year of the Partnership, and, in connection
therewith, shall make any available or necessary federal income tax elections.
The General Partner shall furnish to the Limited Partners, within ninety (90)
days after the close of the Partnership Accounting Year, necessary tax
information with respect to the Partnership to enable the Limited Partners to
prepare a federal tax return. The expense of the preparation of all tax returns
shall be an expense of the Partnership.
8.4 Appointment of Tax Matters Partner. The General Partner is hereby
----------------------------------
designated, pursuant to Code Section 6231(a)(7) as the Partnership's Tax Matters
Partner, and is responsible for acting as the liaison between the Partnership
and the Internal Revenue Service ("Service"), and as the coordinator of the
Partnership's actions pursuant to a Service tax audit of the Partnership. In
the event of an audit of the Partnership's income tax returns, the General
Partner shall participate in, and retain at the expense of the Partnership,
accountants and other professionals to participate in such audit and contest
assertions by the auditing agent that may be materially ad verse to the
Partners or the Partnership. The General Partner shall have the duties of a tax
matters partner as provided in the Code, in addition to such other duties as
are provided under this Agreement. The General Partner shall be reimbursed by
the Partnership for all expenses, costs and liabilities expended or incurred by
the General Partner.
8.5 Tax Status. Any provision hereof to the contrary notwithstanding,
----------
solely for United States federal income tax purposes, each of the Partners
hereby recognizes that the Partnership will be subject to all provisions of
Subchapter K of Chapter 1 of Subtitle A of the Code; provided,
16
<PAGE>
however, the filing of U.S. Partnership Returns of Income shall not be construed
to extend the purposes of the Partnership or the obligations or liabilities of
the Partners.
ARTICLE IX
DISSOLUTION
-----------
9.1 Dissolution. The Partnership shall be dissolved only upon the
-----------
occurrence of any of the following events:
(a) at the election of the General Partner;
(b) the Bankruptcy or insolvency of the Partnership;
(c) the retirement, withdrawal, dissolution, or adjudication of
Bankruptcy of the last remaining General Partner; provided, however, that the
business of the Partnership shall be continued pursuant to the provisions of
this Agreement if, within a period of thirty (30) days from the date of such
occurrence, the Limited Partners owning a majority of the Partnership
Percentages shall consent, in writing, that it be so continued and shall
designate within such writing one or more individuals or legal entities to be
admitted to the Partnership as a successor General Partner pursuant to this
Agreement. In the event a successor General Partner is selected by the Limited
Partners: (i) the successor General Partner shall assume all the rights, powers
and obligations of the General Partner under this Agreement upon the written
acceptance, adoption and assumption by the successor General Partner of all the
terms and provisions of, and obligations of the General Partner, under this
Agreement; and (ii) the interest of the General Partner shall be converted to
that of a Limited Partner. In furtherance of the foregoing provisions, the
parties hereto agree to execute, file, record and/or publish all such other
instruments and documents as may be necessary to accomplish the foregoing.
(d) the sale or other disposition (including condemnation or
casualty loss) of all or substantially all of the property and assets of the
Partnership;
(e) the occurrence of any other event causing the dissolution of a
limited partnership under the Law; or
(f) January 31, 2027.
9.2 Upon Dissolution. Upon dissolution of the Partnership, the General
----------------
Partner, or, if the dissolution is caused by the retirement, withdrawal, and/or
adjudication of Bankruptcy of the last remaining General Partner, then the
Limited Partners shall determine as speedily as possible whether or not the
Partnership shall be reformed (as a limited partnership, general partnership,
joint venture or similar organization) and its business continued under
arrangements which make proper provision
17
<PAGE>
for its liabilities. In the event of such reformation, such reformation shall
constitute the termination of the Partnership.
9.3 Wind-Up of Affairs. Upon dissolution, the General Partner shall
------------------
proceed with dispatch and without any unnecessary delay to sell or otherwise
liquidate the Partnership assets. The Capital Account of each Partner shall be
determined. Profits or losses to the date of termination, including realized
profits (whether or not recognized for Federal income tax purposes) or losses
arising from a sale of all of the assets of the Partnership, and unrealized
profits and losses on any assets to be distributed in kind (determined as if
such assets had been sold by the Partnership for prices equal to their
respective fair market value) shall be allocated as set forth in Article IV and
credited or charged to the Capital Accounts of the Partners. After paying or
duly providing for all liabilities to creditors of the Partnership, (including
any obligations to Partners or affiliates thereof) and any reserve that the
General Partner may deem reasonably necessary for any contingent or unforeseen
liabilities and other obligations of the Partnership or of the General Partner
arising out of or in conjunction with the Partnership's affairs, the General
Partner shall make liquidating distributions among the Partners as set forth in
Section 9.04 hereof.
The wind-up of the affairs of the Partnership shall be conducted
exclusively by the General Partner, which is hereby authorized to do any and all
acts and things authorized by law for such purposes. In liquidating the assets
of the Partnership, all tangible assets of a saleable value shall be sold at
such price and terms as the General Partner in good faith determines to be fair
and equitable. Any partnership, corporation or other entity in which all or any
of the Partners are in any way interested may purchase such assets at such
sale. A reasonable time shall be allowed for the orderly liquidation of the
assets of the Partnership and the discharge of liabilities to creditors so as to
enable the Partnership to minimize the losses normally occurring upon a
liquidation.
If any assets of the Partnership are to be distributed in kind, such
assets shall be distributed on the basis of the then fair market value thereof
(after adjusting the Capital Accounts of all Partners for any unrealized gain or
loss inherent in such property, as set forth above). The fair market value
shall be reasonably determined by the General Partner.
9.4 Liquidating Distributions. Upon liquidation of the Partnership,
-------------------------
liquidating distributions to the Partners shall be made pro rata based upon
their respective Partnership Percentages.
If any Partner has a deficit balance in its Capital Account following
the liquidation of its Partnership Interest, as determined after taking into
account all Capital Account adjustments for the Partnership taxable year
during which such liquidation occurs (other than those made pursuant to this
paragraph), such Partner shall be unconditionally obligated to restore the
amount of such deficit balance to the Partnership by the end of such taxable
year (or, if later, within ninety (90) days after the date of such liquidation),
which amount shall, upon liquidation of the Partnership, be
18
<PAGE>
paid to creditors of the Partnership or distributed to other Partners in
accordance with their positive Capital Account balances.
In the event that, immediately prior to the liquidation of the
Partnership, the General Partner has a negative balance in its Capital
Account, the General Partner shall contribute to the capital of the Partnership
an amount of cash equal to the lesser of: (a) such negative balance; or (b) the
excess of: (i) 1.01% of the total capital contributions made by the Limited
Partner to the Partnership as of such date over (ii) the total amount of capital
contributions to the Partnership theretofore made by the General Partner.
9.5 Termination. The Partnership shall terminate when all its assets have
-----------
been paid and distributed in accordance with this Article IX.
ARTICLE X
CONFIDENTIAL INFORMATION
------------------------
10.1 Confidentiality. Sforza hereby acknowledges that it may acquire, make
---------------
use of or learn of confidential information of a special and unique nature and
value affecting and relating to the restaurants affiliated with Unique and the
Partnership and its financial operations, including, but not limited to, the
restaurant concept, menus, business methods, marketing strategies and trade
secrets, and the Partnership's business, business records and other records, and
other similar information relating to the Partnership and the Partnership's
business (all the foregoing being hereinafter referred to collectively as
"Confidential Information"). Accordingly, Sforza hereby covenants and agrees
that it shall not at any time, directly or indirectly, either during the term of
this Agreement or afterward, divulge, reveal or communicate any Confidential
Information to any person, firm, corporation or entity whatsoever, or use any
Confidential Information for its own benefit or for the benefit of others,
except as may be required by law.
10.2 Injunction and Attorneys' Fees. In view of the irreparable harm and
------------------------------
damage which would occur to Unique and the Partnership as a result of a breach
or a threatened breach of the covenants or agreements under Section 10.01
hereof, and in view of the lack of an adequate remedy at law to protect the
Partnership and Unique, the Partnership and Unique shall have the right to
receive, and Sforza hereby consents to the issuance of, a permanent injunction
enjoining Sforza from any violation of the covenants set forth in Section 10.01.
Sforza acknowledges that a permanent injunction is an appropriate remedy for
such a breach or threatened breach. The foregoing remedy shall be in addition
to and not in limitation of any other rights or remedies to which the
Partnership or Unique is or may be entitled at law or in equity. Sforza further
agrees that in the event the Partnership or Unique incurs any fees or costs in
order to enforce the provisions of Section 10.01 hereof, Sforza against whom
enforcement of said provisions is sought shall pay all fees and costs
19
<PAGE>
so incurred by the Partnership or Unique, including, but not limited to,
attorneys' and paralegals' fees.
ARTICLE XI
MISCELLANEOUS
-------------
11.1 Amendment. Except as herein provided, this Agreement may not be
---------
amended without the consent of both the General Partner and the Limited
Partners. This Agreement may be amended from time to time by the General
Partner without the consent of the Limited Partners: (i) to substitute or add
a Limited Partner to the extent provided for in this Agreement; (ii) to add to
the representations, duties or obligations of the General Partner or surrender
any right or power granted to the General Partner herein, for the benefit of
the Limited Partner; (iii) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Agreement which will not be inconsistent with the provisions of this
Agreement; (iv) to preserve the status of the Partnership as a "partnership" for
federal income tax purposes; (v) to delete or add any provision of this
Agreement required to be so deleted or added by the staff of the Securities and
Exchange Commission or other federal agency or by a state "Blue Sky" commission
or official or similar such official, which addition or deletion is deemed by
such Commission, agency or official to be for the benefit or protection of the
Limited Partner; or (vi) if such amendment is, in the opinion of counsel for the
Partnership, necessary or appropriate to satisfy the requirements of Code
Section 704(b) or the Regulations promulgated thereunder.
11.2 Notices. Any notice required or permitted to be delivered to any
-------
Partner under the provisions of this Agreement shall be deemed delivered,
whether actually received or not, when deposited in a United States Postal
Service Depository, postage prepaid, registered or certified, return receipt
requested, and addressed to the Partner at the address set forth below, or such
other address as shall be specified by written notice delivered to the
Partnership:
If to Unique: Unique Weston, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
If to URC: Unique Restaurant Concepts, Ltd.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
If to Sforza: Sforza Enterprises, Inc.
330 Clematis Street, Suite 211
20
<PAGE>
West Palm Beach, Florida 33401
All notices, demands and requests shall be effective upon being
deposited in the United States mail. However, the time period in which a
response to any such notice, demand or request must be given shall commence to
run from the date of receipt on the return receipt of the notice, demand or
request by the addressee thereof or the date of actual receipt in the case of
delivery by other means. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be
deemed to be receipt of the notice, demand or request when sent.
11.3 Agency. Except as provided herein, nothing herein contained shall be
------
construed to constitute any Partner hereof the agent of any other Partner hereof
or to limit in any manner the Partners in the carrying on of their own
respective businesses or activities. Any Partner may engage in and/or possess
any interest in other business Partnerships of every nature and description,
independently or with others, whether existing as of the date hereof or
hereafter coming into existence; and neither the Partnership nor any Partner
hereof shall have any rights in or to any such independent Partnerships or the
income or profits derived therefrom.
11.4 Further Assurances. The Partners will execute and deliver such
------------------
further instruments and do such further acts and things as may be required to
carry out the intent and purposes of this Agreement.
11.5 Headings. The headings of the various sections of this Agreement are
--------
intended solely for convenience of reference, and shall not be deemed or
construed to explain, modify or place any construction upon the provisions
hereof.
11.6 Successors and Assigns. This Agreement and any amendments hereto
----------------------
shall be binding upon and, to the extent expressly permitted by the provisions
hereof, shall inure to the benefit of the Partners, their respective successors
and assigns.
11.7 Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Florida, and agreed upon venue, to the
extent permitted by law, shall be Palm Beach County, Florida. This Agreement is
intended to be performed in accordance with, and only to the extent permitted
by, all applicable laws, ordinances, rules, and regulations of the
jurisdiction in which the Partnership does business.
11.8 Entire Agreement. This Agreement sets forth all (and is intended by
----------------
all parties hereto to be an integration of all) of the promises, agreements,
conditions, understandings, warranties and representations among the parties
hereto with respect to the Partnership, the Partnership business and the
Partnership Assets, and supersedes any and all prior and contemporaneous
promises, agreements,
21
<PAGE>
conditions, understandings, warranties or representations, oral or written,
express or implied, except as set forth herein.
11.9 Counterparts. This Agreement and any amendments hereto may be
------------
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
11.10 Gender. Wherever the context requires, any pronoun used herein may
------
be deemed to mean the corresponding masculine, feminine or neuter in form
thereof and the singular form of any nouns and pronouns herein may be deemed to
mean the corresponding plural and vice versa as the case may require.
11.11 Remedies. Each of the Partners acknowledge and agree that in the
--------
event that a Partner shall violate any of the restrictions or fail to perform
any of the obligations hereunder, the Partnership or the other Partners will be
without adequate remedy at law and will therefore be entitled to enforce such
restrictions or obligations by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding instituted in any court of competent
jurisdiction without the necessity of proving damages and without prejudice to
any other remedies it may have at law or in equity.
11.12 No Third Party Beneficiary. This Agreement is made solely and
--------------------------
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other Person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise.
11.13 No Foreign Person Withholding. Each of the Partners hereby represent
-----------------------------
and warrant that it is not a "foreign person" within the meaning of Code
Section 1445.
11.14 No Recordation. Neither this Agreement nor any memorandum thereof
--------------
shall be recorded amongst the public records of any governmental authority.
11.15 Conflict Waiver. Each Partner hereby acknowledges and agrees that:
---------------
(i) Ruden, McClosky, Smith, Schuster & Russell, P.A. ("Firm") has represented
the General Partner, URC and their respective principals in connection with the
organization of the Partnership and in the preparation of this Agreement and may
hereafter represent the Partnership in other matters; (ii) the Firm has
represented the General Partner, URC and Affiliates of the General Partner and
URC in the past and the Firm may continue in the future to represent the General
Partner, URC and their respective Affiliates on other matters; (iii) each
Limited Partner (other than URC) has waived any conflict of interest that exists
as a result of such representation and acknowledges that the Firm undertakes no
attorney-client relationship with any Limited Partner by virtue of its
representation
22
<PAGE>
of the Partnership; and (iv) each Limited Partner (other than URC) has been
advised by the Firm to consult with independent legal counsel before entering
into this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
23
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the day and year first above written.
GENERAL PARTNER:
UNIQUE WESTON, INC., a Florida corporation
By:/s/ Dennis Max, President
-----------------------------------------
Dennis Max, President
LIMITED PARTNERS:
UNIQUE RESTAURANT CONCEPTS, LTD.
By: UNIQUE RESTAURANT CONCEPTS,
INC., as General Partner
By:/s/ Dennis Max, President
-----------------------------------
Dennis Max, President
SFORZA ENTERPRISES, INC., a Florida
corporation
By:/s/ Dale J. Brisson, President
-----------------------------------------
24
<PAGE>
================================================================================
Exhibit 10.3
UNIQUE TBA, LTD.
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
December 30, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS............................................................ 2
1.1 Act................................................ 2
1.2 Adjusted Net Income and Adjusted Net Loss.......... 2
1.3 Administrative Fee................................. 2
1.4 Affiliate.......................................... 2
1.5 Agreement.......................................... 2
1.6 Available Cash..................................... 2
1.7 Bankruptcy......................................... 2
1.8 Capital Account.................................... 3
1.9 Capital Contribution............................... 3
1.10 Capital Transaction................................ 3
1.11 Certificate........................................ 3
1.12 Code............................................... 3
1.13 Event of Dissolution............................... 3
1.14 General Partner.................................... 3
1.15 Interim Capital Transaction........................ 3
1.16 Law................................................ 4
1.17 Limited Partners................................... 4
1.18 Partners........................................... 4
1.19 Partnership........................................ 4
1.20 Partnership Accountants............................ 4
1.21 Partnership Accounting Year or Fiscal Year......... 4
1.22 Partnership Interest............................... 4
1.23 Partnership Percentage............................. 4
1.24 Person............................................. 4
1.25 Restaurant......................................... 5
1.26 Stipulated Rate.................................... 5
1.27 Terminating Capital Transaction.................... 5
1.28 Treasury Regulations............................... 5
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
ARTICLE II
SUPERSEDER, NAME, BUSINESS, TERM......................................... 5
2.1 Superseder.......................................... 5
2.2 Name................................................ 5
2.3 Principal Place of Business; Recordkeeping
Office.............................................. 5
2.4 Business of the Partnership......................... 5
2.5 Term................................................ 6
2.6 Title............................................... 6
ARTICLE III
CAPITAL CONTRIBUTIONS; LOANS............................................. 6
3.1 Capital Contributions and
Loans............................................... 6
3.2 Other Matters Relating to
Capital............................................. 7
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS............................................ 7
4.1 Allocations from Operations and From Capital
Transactions........................................ 7
4.2 Depreciation Recapture.............................. 8
4.3 Distribution of Available Cash...................... 8
4.4 Distribution of Net Proceeds from Terminating Capital
Transaction......................................... 8
4.5 Distribution in Cash Only........................... 8
4.6 Minimum Allocations and Distributions to the
General Partner..................................... 8
ARTICLE V
MANAGEMENT OF PARTNERSHIP; ADMINISTRATIVE FEE............................ 8
5.1 Rights, Powers and Duties of the General Partner.... 8
5.2 Liability and Indemnification....................... 10
5.3 Dealings with Partnership by Partners and Related
Parties............................................. 10
5.4 Competition......................................... 10
5.5 Tax Elections....................................... 11
5.6 Administrative Fee.................................. 11
5.7 Restaurant Concept.................................. 11
5.8 Replacement of General Partner...................... 11
ARTICLE VI
MATTERS REGARDING LIMITED PARTNER........................................ 11
6.1 Management.......................................... 11
6.2 Power of Attorney................................... 12
6.3 Limitation of Certain Rights........................ 13
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ARTICLE VII
TRANSFERS OF PARTNERSHIP INTERESTS.......................................13
7.1 General Prohibition............................................13
7.2 Rights of Assignee.............................................14
7.3 Transfers by General Partner...................................14
7.4 Transfers by Limited Partners..................................14
ARTICLE VIII
FISCAL MATTERS...........................................................15
8.1 Books and Records..............................................15
8.2 Reports and Statements.........................................16
8.3 Tax Matters....................................................16
8.4 Appointment of Tax Matters Partner.............................16
8.5 Tax Status.....................................................17
ARTICLE IX
DISSOLUTION..............................................................17
9.1 Dissolution....................................................17
9.2 Upon Dissolution...............................................17
9.3 Wind-Up of Affairs.............................................18
9.4 Liquidating Distributions......................................18
9.5 Termination....................................................19
ARTICLE X
CONFIDENTIAL INFORMATION.................................................19
10.1 Confidentiality................................................19
10.2 Injunction and Attorneys' Fees.................................19
ARTICLE XI
MISCELLANEOUS............................................................20
11.1 Amendment......................................................20
11.2 Notices........................................................20
11.3 Agency.........................................................21
11.4 Further Assurances.............................................21
11.5 Headings.......................................................21
11.6 Successors and Assigns.........................................21
11.7 Applicable Law.................................................21
11.8 Entire Agreement...............................................21
11.9 Counterparts...................................................22
11.10 Gender.........................................................22
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11.11 Remedies.......................................................22
11.12 No Third Party Beneficiary.....................................22
11.13 No Foreign Person Withholding..................................22
11.14 No Recordation.................................................22
11.15 Conflict Waiver................................................22
</TABLE>
iv
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THE PARTNERSHIP INTERESTS REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED
FOR INVESTMENT AND, PURSUANT TO APPLICABLE EXEMPTIONS, HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES
LAWS. WITHOUT SUCH REGISTRATION, THE PARTNERSHIP INTERESTS MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT
UPON DELIVERY TO THE PARTNERSHIP OF AN OPINION OF COUNSEL SATISFACTORY TO THE
GENERAL PARTNER OF THE PARTNERSHIP THAT REGISTRATION IS NOT REQUIRED FOR SUCH
TRANSFER OR THE SUBMISSION TO THE GENERAL PARTNER OF SUCH OTHER EVIDENCE THAT
MAY BE SATISFACTORY TO THE GENERAL PARTNER TO THE EFFECT THAT ANY SUCH TRANSFER
WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATIONS PROMULGATED
THEREUNDER. ADDITIONALLY, ANY SALE OR OTHER TRANSFER OF PARTNERSHIP INTERESTS
IS SUBJECT TO CERTAIN RESTRICTIONS THAT ARE SET FORTH IN THIS AGREEMENT OF
LIMITED PARTNERSHIP.
UNIQUE TBA, LTD.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
-----------------------------------------------------
THIS AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") is made and entered
into as of the 30th day of December 1997, by and between UNIQUE TBA,
INC. ("Unique"), as the General Partner, UNIQUE RESTAURANT CONCEPTS, LTD.
("URC"), and SFORZA ENTERPRISES, INC., a Florida corporation ("Sforza"), as the
Limited Partners.
RECITALS:
WHEREAS, a Florida limited partnership known as Unique TBA, Ltd.
("Partnership") was formed under the provisions of the Florida Revised Uniform
Limited Partnership Act (1986) and has filed a Certificate of Limited
Partnership and other documentation legally creating the Partnership under
Florida law; and
WHEREAS, the parties desire to amend and restate any prior agreements
governing the Partnership and admit Sforza as a Limited Partner.
1
<PAGE>
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.1 Act. The Securities Act of 1933, as amended.
---
1.2 Adjusted Net Income and Adjusted Net Loss. The net income or loss
-----------------------------------------
of the Partnership resulting from Partnership operations during any stated
period, as calculated by the Partnership Accountants for federal income tax
purposes.
1.3 Administrative Fee. The fee payable pursuant to Section 5.05
------------------
hereof.
1.4 Affiliate. When used with reference to a specified Person: (i) any
---------
Person who, directly or indirectly, through one or more intermediaries,
controls or is controlled by or is under common control with the specified
Person; (ii) any Person who is an officer of, partner in or trustee of, or
serves in a similar capacity with respect to, the specified Person or of which
the specified Person is an officer, partner or trustee, or with respect to which
the specified Person serves in a similar capacity; or (iii) any Person who,
directly or indirectly, is the beneficial owner of ten percent (10%) or more of
any class of equity securities of, or otherwise has a substantial beneficial
interest in, the specified Person or of which the specified Person is directly
or indirectly the owner of ten percent (10%) or more of any class of equity
securities or in which the specified Person has a substantial beneficiary
interest.
1.5 Agreement. This Amended and Restated Agreement of Limited
---------
Partnership of Unique TBA, Ltd., a Florida limited partnership, as originally
executed and as amended from time to time, as the context requires.
1.6 Available Cash. All cash funds of the Partnership on hand from
--------------
time to time after: (i) provision for payment of all outstanding and unpaid
current obligations, expenses and charges of the Partnership as of such time
(including the Administrative Fee and all amounts of any principal or interest
payable with respect to any loans from Partners); and (ii) provision for such
reserve as reasonably determined by the General Partner to be necessary for
working capital or other Partnership needs. Available Cash shall not include or
reflect any proceeds received or expenses incurred in connection with a
Terminating Capital Transaction.
1.7 Bankruptcy. As used in this Agreement, the term "Bankruptcy," with
----------
respect to the Partnership or the General Partner, shall refer to: (i) the
appointment of a receiver, conservator, rehabilitator or similar officer for the
Partnership or the General Partner, unless the appointment of
2
<PAGE>
such officer shall be vacated and such officer discharged within one hundred
twenty (120) days of the appointment; (ii) the taking of possession of, or the
assumption of control over, all or any substantial part of the property of the
Partnership or the General Partner by any receiver, conservator, rehabilitator
or similar officer or by the United States government or any agency thereof,
unless such property is relinquished within one hundred twenty (120) days of the
taking; (iii) the filing of a petition in bankruptcy or the commencement of any
proceeding under any present or future federal or state law relating to
bankruptcy, insolvency, debt relief or reorganization of debtors by or against
the Partnership or the General Partner, provided, if filed against (and not by)
the Partnership or the General Partner, such petition or proceeding is not
dismissed within thirty (30) days of the filing of the petition or the
commencement of the proceeding; or (iv) the making of an assignment for the
benefit of creditors or a private composition, arrange ment or adjustment with
the creditors of the Partnership or the General Partner.
1.8 Capital Account. An account that, throughout the full term of the
---------------
Partnership, shall be established, determined and maintained separately for each
Partner in accordance with the provisions of Treasury Regulations Section 1.704-
1(b)(2)(iv) promulgated under Code Section 704(b).
1.9 Capital Contribution. The amount of cash or the agreed fair market
--------------------
value of property contributed by each Partner to the capital of the Partnership,
as reflected in the books of the Partnership.
1.10 Capital Transaction. An Interim Capital Transaction or a
-------------------
Terminating Capital Transaction.
1.11 Certificate. The Certificate of Limited Partnership of the
-----------
Partnership filed with the Secretary of State of the State of Florida, as it may
be amended from time to time.
1.12 Code. The Internal Revenue Code of 1986, as amended from time to
----
time, or any corresponding provision or provisions of any federal internal
revenue law enacted in substitution of the Internal Revenue Code of 1986.
1.13. Event of Dissolution. Any of the events that result in a
--------------------
dissolution of the Partnership as set forth in Section 9.01 hereof.
1.14 General Partner. The general partner of the Partnership, as it may
---------------
exist from time to time. The General Partner on the date hereof is Unique. No
Person shall be a General Partner unless admitted to the Partnership as such in
accordance with the terms hereof.
1.15 Interim Capital Transaction. A transaction pursuant to which the
---------------------------
Partnership borrows funds or refinances existing debt, a sale, condemnation,
exchange, abandonment or other disposition
3
<PAGE>
of a portion (which is less than substantially all) of the assets of the
Partnership, an insur ance recovery and any other transaction, other than a
Terminating Capital Transaction, that, in accordance with generally accepted
accounting principles, is considered capital in nature.
1.16 Law. The Florida Revised Uniform Limited Partnership Act (1986),
---
as amended.
1.17 Limited Partners. The Limited Partners, as they may exist from time
----------------
to time. Refer ence to the "Limited Partner" shall mean any Limited Partner. No
Person shall be a Limited Partner unless admitted to the Partnership as such in
accordance with the terms hereof.
1.18 Partners. The General Partner and the Limited Partners,
--------
collectively. Reference to a "Partner" shall be to any of the Partners.
1.19 Partnership. Unique TBA, Ltd., the Florida limited partnership.
-----------
1.20 Partnership Accountants. Such certified public accountants as may
-----------------------
be selected, from time to time, by the General Partner.
1.21 Partnership Accounting Year or Fiscal Year. The calendar year,
------------------------------------------
unless otherwise determined by the General Partner.
1.22 Partnership Interest. The entire ownership interest of a Partner
--------------------
in the Partnership at any particular time, including the right of such Partner
to any and all distributions, allocations and other incidents of participation
in the Partnership to which such Partner may be entitled as provided in this
Agreement and the Law, together with the obligations of such Partner to comply
with all of the terms and provisions of this Agreement and the Law, and further
including its Capital Account hereunder.
1.23 Partnership Percentage. The percentage set forth below with
----------------------
respect to each Partner, which percentage may be diluted pro rata upon the
Partnerships' issuance of additional Partner ship Interests in accordance with
the terms of this Agreement :
(a) Unique 1%
(b) URC 48%
(c) Sforza 51%
1.24 Person. Any individual, trust, partnership, corporation, joint
------
venture, trust, or other entity or association, and the heirs, executors,
administrators, legal representatives, succes sors and assigns of such Person.
4
<PAGE>
1.25 Restaurant. The restaurant owned and operated by the Partnership
----------
at a location to be unanimously approved by all of the Partners and to be named
initially as "Max's Grille" or some derivative thereof.
1.26 Stipulated Rate. The rate of interest, calculated annually, equal
---------------
to two percent (2%), plus the annual rate of simple interest announced from time
to time by Citibank, N.A. as its publicly announced commercial prime lending
rate to its most creditworthy borrowers, but not higher than the highest
nonusurious rate of simple interest for commercial loans under applicable law,
nor lower than the lowest interest rate that may be charged without causing the
imputation of interest for federal income tax purposes.
1.27 Terminating Capital Transaction. A sale, condemnation, exchange or
-------------------------------
other disposition, whether by foreclosure, abandonment or otherwise, of all or
substantially all of the then remaining assets of the Partnership or a
transaction that will result in a dissolution of the Partnership.
1.28 Treasury Regulations. Treasury Regulations shall mean regulations
--------------------
promulgated by the United States Treasury Department interpreting the Code.
ARTICLE II
SUPERSEDER, NAME, BUSINESS, TERM
--------------------------------
2.1 Superseder. This Agreement supersedes in its entirety any prior
----------
agreements gov erning the Partnership.
2.2 Name. The business of the Partnership shall be conducted under the
----
name "Unique TBA, Ltd." provided, however, the Partnership may conduct business
under such other name or fictitious name as the General Partner may designate.
2.3 Principal Place of Business; Recordkeeping Office. The principal
-------------------------------------------------
place of busi ness of the Partnership shall be 490 East Palmetto Park Road,
Suite 110, Boca Raton, Florida 33432, or at such other location in or outside
the State of Florida as hereinafter may be deter mined by the General Partner.
The recordkeeping office of the Partnership required by the Law shall be 490
East Palmetto Park Road, Suite 110, Boca Raton, Florida 33432, or at such other
location in the State of Florida as may be determined by the General Partner.
2.4 Business of the Partnership. The purpose and scope of the
---------------------------
Partnership is to: (i) own, and engage in the operation of, sell and in all
other respects deal with, a restaurant for-profit; and (ii) engage in all manner
of transactions and activities incidental to the foregoing.
5
<PAGE>
The Partnership shall not engage in any other business or activity, except
as other wise expressly and specifically provided in this Agreement or as the
Partners shall otherwise agree in writing. Except as expressly provided to the
contrary in this Agreement, nothing herein shall be deemed to restrict in any
way the freedom of a Partner to conduct any other business or activity
whatsoever without any accountability to the Partnership or the other Partners.
2.5 Term. The term of the Partnership shall continue in full force and
----
effect until terminated in accordance with Article IX of this Agreement or as
otherwise provided by the Law.
2.6 Title. Legal title to the Partnership's property shall be held in
-----
the name of the Partnership, or in such other manner as the General Partner
shall determine.
ARTICLE III
CAPITAL CONTRIBUTIONS; LOANS
----------------------------
3.1 Capital Contributions and Loans.
-------------------------------
(a) The Partners shall each make the following Capital
Contributions to the Partnership:
(i) Unique has contributed $1.00 in cash to the capital of
the Partnership.
(ii) URC has contributed $99.00 in cash to the capital of
the Partnership.
Sforza shall make its capital contribution to the Partnership by paying the
Partnership the portion of the "Purchase Price" to be allocated to the
Partnership pursuant to the terms of, and as such term is described in, that
certain Partnership Interest Subscription Agreement dated December 30, 1997, by
and among Sforza Enterprises, Inc., Max's Beach Grill, Ltd., Unique TBA, Ltd.,
Unique Weston, Ltd. and Unique TBA, Ltd.
(b) No Partner shall be obligated to make any additional Capital
Contribution or loan to the Partnership. Partners shall be permitted to make
Capital Contributions and loans in addition to the foregoing to the Partnership
with the prior written consent of the General Partner. All loans made by
Partners to the Partnership shall be demand loans bearing interest at the
Stipulated Rate unless otherwise provided in the documentation evidencing any
such loans.
6
<PAGE>
3.2 Other Matters Relating to Capital.
---------------------------------
(a) Interest earned on Partnership funds shall inure solely to
the benefit of the Partnership, and, except as specifically provided herein, no
interest shall be paid upon any contributions or advances to the capital of the
Partnership or upon any undistributed or reinvested in come or profits of the
Partnership.
(b) The Capital Contributions of the Partners shall be utilized
for carrying out the purposes of the Partnership as set forth in this Agreement
and for payment of any expenses incurred in connection therewith, including
payment of expenses paid or incurred by the General Partner on behalf of the
Partnership whether prior or subsequent to the execution of this Agreement.
(c) Loans by a Partner to the Partnership shall not be considered
contributions to the capital of the Partnership and shall not increase the
Capital Account of the lending Partner. Nothing herein shall authorize any loan
by a Partner to the Partnership unless otherwise authorized pursuant to the
other provisions of this Agreement or unless agreed to by the General Partner.
(d) Except as specifically provided herein, no Partner shall be
entitled to contribute capital to the Partnership without the consent of the
General Partner, to withdraw, or to a return of, any part of his Capital
Contribution or to receive property or assets other than cash in return thereof,
and the General Partner shall not be liable for the return of all or any portion
of the Limited Partner's Capital Contributions. To the extent any monies which
any Partner is entitled to receive pursuant to Article IV would constitute a
return of capital, each of the Partners consent to the withdrawal of such
capital.
(e) No Partner shall be entitled to priority over any other
Partner, either with respect to a return of his Capital Contribution or to
allocations of taxable income, gains, losses or credits, or to distributions,
except as provided in this Agreement.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
-----------------------------
4.1 Allocations from Operations and From Capital Transactions. The
---------------------------------------------------------
Adjusted Net Income or Adjusted Net Loss of the Partnership from operations and
any income (including gain) or losses resulting from any Interim or Terminating
Capital Transactions as calculated for federal income tax purposes and reported
by the Partnership on its U.S. Partnership Return of Income for each fiscal year
(or portion thereof) during the term of this Agreement shall be allocated to the
Partners pro rata in accordance with their respective Partnership Percentages.
7
<PAGE>
4.2 Depreciation Recapture. Notwithstanding anything to the contrary
----------------------
in this Article IV, and for purposes of determining the nature (as ordinary or
capital) of the income or gain allocable under such provisions, gain (if any)
recognized as ordinary income in respect of a Capital Transaction pursuant to
Code Sections 1245 and 1250 shall be deemed to be allocated to the Partners in
proportion to their accumulated depreciation allocations.
4.3 Distribution of Available Cash. Periodically, but not less
frequently than quarterly, the Available Cash if any, shall be distributed to
the Partners pro rata, in accordance with their respective Partnership
Percentages.
4.4 Distribution of Net Proceeds from Terminating Capital Transaction.
----------------------------------------------------------------
The net proceeds of a Terminating Capital Transaction shall be distributed in
the manner set forth in Sections 9.03 and 9.04 hereof.
4.5 Distribution in Cash Only. No Partner shall have the right to
demand or receive property other than cash from the Partnership for any reason
whatsoever and no Partner shall have the right to sue for partition of the
Partnership or for the Partnership's assets.
4.6 Minimum Allocations and Distributions to the General Partner.
------------------------------------------------------------
Notwithstanding any provision in this Article IV to the contrary, for each
fiscal year of the Partnership, at least 1% of each item of income, loss, cash
or property which is to be allocated or distributed pursuant to this Article IV
shall be distributable to the General Partner.
ARTICLE V
MANAGEMENT OF PARTNERSHIP; ADMINISTRATIVE FEE
---------------------------------------------
5.1 Rights, Powers and Duties of the General Partner. The overall
------------------------------------------------
management and control of all aspects of the business and affairs of the
Partnership shall be vested exclusively in the General Partner. The General
Partner shall have all the rights and powers of a general partner as provided in
the Law and as otherwise provided by law, and any action taken by the General
Partner shall constitute the act of and serve to bind the Partnership. Except
as expressly set forth herein, no decision shall be made or action taken with
respect to the Partnership unless such decision or action has been approved by
the General Partner. The General Partner is hereby authorized to delegate, and
hereby delegates, to the Manager (as defined in Section 5.06) all of its powers
and authority to manage the business and affairs of the Partnership. The
General Partner, through the Manager, shall conduct the day-to-day operations of
the Partnership and shall use good faith efforts to carry out the business of
the Partnership as set forth herein. The General Partner, through the
Manager, will have all the specific rights and power required or appropriate to
the operation, management and disposition of the business of the Partnership
which, by way of illustration, but not by the way of limitation, shall include
the right and power to:
8
<PAGE>
(a) supervise the design, construction and equipping of the
Restaurant and all other pre-opening activities;
(b) managing the Restaurant when it opens;
(c) employ such agents, employees, managers, accountants, attorneys,
consultants and other persons as it may deem necessary or desirable for the
conduct of the Partnership's business and pay from Partnership assets such fees,
expenses, salaries, wages and other compensation to such persons as it may
determine;
(d) pay from Partnership's assets, extend, renew, modify, adjust,
submit to arbitration, prosecute, defend or compromise upon such terms as it may
determine, and upon such evidence as it may deem sufficient, any obligation,
suit, liability, cause of action or claim, including taxes, either in favor of
or against the Partnership;
(e) make from Partnership's assets any and all expenditures that it
may deem necessary or desirable for the conduct of the Partnership's business
and the carrying out of its obligations and responsibilities under this
Agreement;
(f) borrow money and issue evidences of indebtedness and security
therefor, mortgage, pledge or otherwise encumber assets of the Partnership, and,
from time to time, refinance any such borrowings;
(g) make distributions of the Partnership's assets to the Partners;
(h) purchase, at the expense of the Partnership, liability and other
insurance to protect the Partnership, the General Partner and the Partnership's
assets and business;
(i) maintain, at the expense of the Partnership, adequate records
and accounts of all operations and expenditures;
(j) sell, exchange or otherwise dispose of all or substantially all
the assets of the Partnership; and in connection therewith, to execute and
deliver such deeds, assignments and conveyances containing such warranties as
the General Partner may determine;
(k) invest the Partnership's assets as it may determine in its sole
discretion;
(l) pay, collect, compromise, arbitrate or resort to legal action or
otherwise adjust, litigate or settle claims and demands of or against the
Partnership;
9
<PAGE>
(m) merge or consolidate the Partnership with or into a corporation,
partner ship, limited partnership or other entity, or cause the Partnership to
be acquired by one or more corporations, partnerships, limited partnerships or
other entities or take such other action as may be required to convert the
Partnership to a corporation, partnership, limited partnership or other entity;
and
(n) take any and all other action permitted under applicable law and
that are customary and reasonably related to the Partnership's purposes.
5.2 Liability and Indemnification. The General Partner, its employees and
-----------------------------
Affiliates, shall not be liable to the Partnership or any Partner for any loss
or liability incurred in connection with any act performed or omitted in
accordance with the terms of this Agreement, except for any loss or liability
incurred in connection with the fraud, willful and wanton misconduct or gross
negligence of such Person. The Partnership shall and does hereby agree, to the
fullest extent permitted by law, to defend, indemnify and hold harmless the
General Partner, its employees and Affiliates, from and against any and all
liability, loss, cost, expense or damage incurred or sustained by reason of any
act or omission in the conduct of the business of the Partnership in accordance
with the terms hereof, including attorneys' and paralegals' fees through any and
all negotiations, trial and appellate levels; provided, however, the Partnership
shall not indemnify the General Partner, its employees and Affiliates or hold
them harmless with respect to any of the foregoing incurred in connection with
the fraud, willful and wanton misconduct or gross negligence of such General
Partner, employee or Affiliate.
5.3 Dealings with Partnership by Partners and Related Parties. The fact
---------------------------------------------------------
that any Partner is directly or indirectly interested in or connected with any
person, firm or corporation employed by the Partnership to render or perform
services, or from, or to which the Partnership may buy or sell merchandise,
services, material or other property, shall not prohibit the Partnership from
employing such person, firm or corporation or from otherwise dealing with them.
All compensation permitted under this Section 5.03 shall be deemed to be on
terms reasonable and customary under all circumstances then existing and
payments permitted under this Agreement and called for therein shall be made in
all events regardless of the profits and losses of the Partner ship during the
Partnership Accounting Year when the services were rendered.
5.4 Competition. The Partners acknowledge and agree that the Partners
-----------
(and their Affiliates) may have other business interests and may engage in any
other business or trade, individually, in partnership or association with
others or in any capacity whatsoever, whether or not such business competes with
the Partnership. The Partners recognize that the General Partner (directly or
through Affiliates) is actively engaged in competitive businesses with the
Partnership (including owning and operating restaurants similar to the
Restaurant in locations within Palm Beach, Broward and Dade Counties) and that
nothing contained in this Agreement or otherwise shall be deemed to restrict in
any way the rights of the General Partner, or any officer, director or Affiliate
10
<PAGE>
of the General Partner to engage in, or to conduct any other activity, trade or
business, independently or with others (including owing and operating competing
restaurants) whether or not any such activity, trade or business is adverse to,
competes with or is complementary with the business of the Partnership and
neither the Partnership nor the other Partners shall have any rights in or to
such trade, business or activity or the income or profits therefrom. The
Partners hereby expressly agree that each consents to all existing and future
business activities of the General Partner that are in any way competitive with
the business of the Partnership, and that the conduct of such activities shall
not constitute a breach of the General Partner's loyalty obligation to the
Partnership or the other Partners under the Law.
5.5 Tax Elections. The General Partner shall determine from time to time
-------------
whether or not to make or attempt to revoke any and all tax elections regarding
depreciation methods and recovery periods, capitalization of construction period
expenses, amortization of organizational and start-up expenditures, basis
adjustments upon admission or retirement of Partners, and any other federal,
state or local income tax elections.
5.6 Administrative Fee. The General Partner and Limited Partners
------------------
acknowledge that simultaneously with the execution of this Agreement, the
Partnership shall enter into that certain management agreement of even date
herewith (the "Management Agreement") with Unique Restaurant Concepts, Inc.
("Manager"), which shall contain the terms and conditions of the Partnership's
engagement of the Manager to perform management services for the Restaurant.
The term "Administrative Fee," as used herein, shall refer to the compensation
payable by the Partnership to the Manager under the Management Agreement, as
same may be amended from time to time.
5.7 Restaurant Concept. The Partners recognize and acknowledge that the
------------------
fully developed concept for the Restaurant (i.e. design, menu, decor, etc. )
and the Restaurant's name, "Max's Grille," is owned by URC. URC shall
simultaneously herewith enter into a License Agreement that authorizes the
Partnership, without any royalty or other monetary obligation, to use the name
"Max's Grille."
5.8 Replacement of General Partner. In the event of the Bankruptcy or
------------------------------
resignation of the General Partner, a successor General Partner may be appointed
by the affirmative vote of a majority of the Partnership Percentages.
ARTICLE VI
MATTERS REGARDING LIMITED PARTNER
---------------------------------
6.1 Management. The Limited Partners shall not participate in the
----------
operation or management of the business of the Partnership or transact any
business for or in the name of the
11
<PAGE>
Partnership, shall not have any right or power to sign for or bind the
Partnership in any manner, and shall have no right of consent or approval as to
any act or decision of the Partnership.
6.2 Power of Attorney.
-----------------
(a) The Limited Partners hereby make, constitute and appoint the
General Partner, and each Person who shall hereafter become a General Partner,
with full power of substitution, its true and lawful attorney-in-fact, and in
the name, place and stead of such Limited Partner, with the power from time to
time to execute, acknowledge, make, swear to, verify, deliver, record, publish
and/or file:
(i) Any certificate or other instrument which may be required
to be filed by the Partnership or the Partners under the laws of any state or
other jurisdiction to the extent that the said attorneys or any of them deem
such filing necessary or desirable and that such action has been authorized in
accordance with this Agreement;
(ii) Any and all amendments or modifications of this Agreement
and the instruments described in clauses (i) of this Section 6.02, provided that
each such amendment or modification has been authorized in accordance with the
terms of this Agreement;
(iii) Any and all certificates and other instruments which may
be required to effectuate the dissolution and termination of the Partnership
pursuant to the provisions of this Agreement;
(iv) Any and all consents to the entry of a judgment against
the Partnership, authorized in accordance with this Agreement;
(v) All such other instruments as said attorneys or any of
them may deem necessary or desirable fully to carry out the provisions of this
of this Agreement in accordance with its terms; provided, however, that this
Special Power of Attorney shall not, without the prior written consent of the
Limited Partner from whom the Special Power of Attorney is given, empower any
such attorney to execute any instrument or other document which affects the
substantive rights of such Limited Partner, or increases the liabilities of such
Limited Partner beyond the liability contemplated by this Agreement. Each of
said attorney shall have full power and authority to do and perform each and
every act and thing whatsoever requisite and necessary in and about the
foregoing as fully as the Limited Partner might or could do if personally
present and each Limited Partner hereby ratifies and confirms all that said
attorney, or any of them, shall lawfully do or cause to be done by virtue
hereof.
12
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(b) The foregoing grant of authority:
(i) is a Special Power of Attorney coupled with an interest
in favor of the General Partner and as such shall be irrevocable;
(ii) may be exercised for the Limited Partner by the signature
of the General Partner; and
(iii) shall survive the assignment by the Limited Partner of
the whole or any portion of his Partnership Interest, except that, where the
assignee of the whole of the Limited Partner's Partnership Interest has
furnished a power of attorney and has been approved by the remaining Partner(s)
for admission to the Partnership as a substitute Limited Partner, this power of
attorney shall survive such assignment for the sole purpose of enabling the
General Partner to execute, acknowledge and file any instrument necessary to
effect such substitution and shall thereafter terminate.
(c) A similar power of attorney shall be one of the instruments
which the General Partner shall require an assignee of the Limited Partner to
execute as a condition of such assignment and admission as a substitute Limited
Partner.
6.3 Limitation of Certain Rights. The Limited Partner shall not have the
----------------------------
right or power to: (i) bring an action for partition against the Partnership or
with respect to any of its property; (ii) cause the termination or dissolution
of the Partnership by court decree or as may be permitted by the Law, such
rights being specifically waived by the Limited Partner; or (iii) re quire the
Partnership to pay an amount upon or as a result of the withdrawal of such
Limited Partner from the Partnership.
ARTICLE VII
TRANSFERS OF PARTNERSHIP INTERESTS
----------------------------------
7.1 General Prohibition. Absent Sforza's consent, no additional
-------------------
Partnership Interests shall be issued by the Partnership if the effect of such
issuance would be to reduce the Partnership Percentage of Sforza. Except with
the prior written consent of the General Partner, no Partner shall sell,
transfer, assign, syndicate, pledge, encumber or otherwise dispose of, either
voluntarily, involuntarily, by operation of law or otherwise ("Transfer") all
or any part of its Partnership Interest unless made pursuant to and in
compliance with this Article VII and unless a copy of an executed and
acknowledged assignment effecting such Transfer has been filed with the
Partnership. Any purported Transfer of a Partnership Interest in violation of
the provisions of this Agreement shall be void ab initio.
---- -- ------
13
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7.2 Rights of Assignee. Any Transfer of a Partnership Interest (or any
------------------
part thereof) to a Person ("Assignee") who is not admitted to the Partnership as
a Limited Partner or a General Partner shall vest in such Person only rights of
an assignee, and shall not entitle the Assignee to be admitted to the
Partnership as a Partner. An Assignee who has not been admitted to the Part-
nership as a Partner shall only have the right to receive the share of profits,
losses, tax credits and distributions of the Partnership to which the Assigned
Partner would have been entitled with respect to the Partnership Interest (or a
portion thereof) so assigned and shall have no right to require any information
or accounting of the Partnership's transactions or finances or to inspect
Partnership books, or to exercise any powers or other rights including voting
and consent rights, incidental to ownership of a Partnership Interest.
Admission of an Assignee to the Partnership as a General Partner shall vest in
such person all rights and powers, and subject such person to all duties and all
obligations thereafter arising, of a General Partner. Admission of an Assignee
to the Partnership as a Limited Partner shall vest in such person all rights and
powers, and subject such person to all duties and all obligations thereafter
arising, of a Limited Partner.
7.3 Transfers by General Partner. The General Partner may Transfer all or
----------------------------
any part of its Partnership Interest to an Assignee to be admitted to the
Partnership as a General Partner or as a Limited Partner if all of the following
conditions are met:
(a) The Limited Partners consent in writing to the Transfer and the
admission of the Assignee as a General Partner or Limited Partner;
(b) The Assignee agrees in writing to be bound by the provisions of
this Agreement and the Certificate;
(c) The Assignee executes any and all documents, including an
amendment to this Agreement and the Certificate, required to effectuate or
evidence its admission to the Partnership as a General Partner;
(d) The Partnership has received an opinion of counsel to the affect
that the contemplated Transfer and admission of the Assignee as a General
Partner or Limited Partner, as the case may be, will not cause the termination
of the Partnership for federal income tax purposes or cause the Partnership not
to be treated as a partnership for federal income tax purposes;
(e) The Assignee reimburses the Partnership for all reasonable costs
and expenses (including reasonable attorney's fees) incurred in connection with
the Transfer and admission; and
(f) The Assignee is not a minor or legally incompetent.
7.4 Transfers by Limited Partners. A Limited Partner may Transfer all or
-----------------------------
any part of its Partnership Interest to an Assignee, provided the Limited
Partner first receives the prior written
14
<PAGE>
consent of the General Partner. An Assignee of a Limited Partner's Partnership
Interest shall be admitted to the Partnership as a Limited Partner if all the
following conditions are met:
(a) The assigning Limited Partner so provides in the instrument of
assignment;
(b) The General Partner consents in writing to the admission of the
Assignee as a Limited Partner, which consent may be unreasonably withheld in the
sole and absolute discretion of the General Partner;
(c) The Assignee agrees in writing to be bound by the provisions of
this Agreement and the Certificate, and executes any and all documents
reasonably deemed necessary by the General Partner to effectuate or evidence the
admission of the Assignee to the Partnership as a Limited Partner;
(d) If deemed necessary by the General Partner, an opinion of
counsel is de livered to the Partnership and the General Partner, in form,
substance and from counsel satisfactory to the Partnership and the General
Partner, to the effect that: (i) the proposed Transfer does not require
registration under the Act or any other applicable federal or state securities
laws, including, in each case, the rules and regulations promulgated thereunder;
and (ii) that such ac-tion will not cause the termination of the Partnership for
federal income tax purposes or cause the Partnership not to be treated as a
partnership for federal income tax purposes;
(e) The Assignee reimburses the General Partner and the Partnership
for all reasonable costs and expenses (including reasonable attorney's fees)
incurred by the General Partner or the Partnership in connection with the
Transfer and admission;
(f) The Assignee is not a minor or legally incompetent.
ARTICLE VIII
FISCAL MATTERS
--------------
8.1 Books and Records. The General Partner shall keep, or cause to be
-----------------
kept, full and accurate books and records of all transactions of the Partnership
on the accrual method of ac counting. All organizational records of the
Partnership and other records required to be kept by the Partnership under the
Law, shall, at all times, be maintained at the Partnership's recordkeeping
office referred to in Section 2.03 hereof, and shall be open during ordinary
business hours for inspection and copying upon the reasonable request and at
the expense of the Limited Partner and their authorized representatives.
15
<PAGE>
8.2 Reports and Statements. Within: (i) ten (10) days after the end of
----------------------
each month; and (ii) ninety (90) days after the end of each Partnership
Accounting Year, the General Partner shall, at the expense of the Partnership,
cause to be delivered to the Limited Partners the following unaudited
financial statements, prepared on a federal income tax basis, which shall be
prepared by the Partnership Accountants:
(a) A balance sheet of the Partnership as of the end of the
preceding month or of such Partnership Accounting Year; and
(b) A profit and loss statement for each such preceding month or for
the Partnership Accounting Year.
Such financial statements shall be accompanied by such other
information as, in the judgment of the General Partner, may be reasonably
necessary for the Limited Partners to be advised of the financial status and
results of operations of the Partnership.
In addition, the General Partner shall promptly following receipt
deliver to the Limited Partners copies of any documents served upon the
registered agent of the Partnership as well as any other notices of default
under any material agreement.
8.3 Tax Matters. The General Partner shall, at the expense of the
-----------
Partnership prepare, or cause to be prepared, for delivery to the Limited
Partners within ninety (90) days of the end of the Partnership's Accounting
Year, all federal and any required state and local income tax returns for the
Partnership for each Fiscal Year of the Partnership, and, in connection
therewith, shall make any available or necessary federal income tax elections.
The General Partner shall furnish to the Limited Partners, within ninety (90)
days after the close of the Partnership Accounting Year, necessary tax
information with respect to the Partnership to enable the Limited Partners to
prepare a federal tax return. The expense of the preparation of all tax returns
shall be an expense of the Partnership.
8.4 Appointment of Tax Matters Partner. The General Partner is hereby
----------------------------------
designated, pursuant to Code Section 6231(a)(7) as the Partnership's Tax Matters
Partner, and is responsible for acting as the liaison between the Partnership
and the Internal Revenue Service ("Service"), and as the coordinator of the
Partnership's actions pursuant to a Service tax audit of the Partnership. In
the event of an audit of the Partnership's income tax returns, the General
Partner shall participate in, and retain at the expense of the Partnership,
accountants and other professionals to participate in such audit and contest
assertions by the auditing agent that may be materially ad verse to the
Partners or the Partnership. The General Partner shall have the duties of a tax
matters partner as provided in the Code, in addition to such other duties as
are provided under this Agreement. The General Partner shall be reimbursed by
the Partnership for all expenses, costs and liabilities expended or incurred by
the General Partner.
16
<PAGE>
8.5 Tax Status. Any provision hereof to the contrary notwithstanding,
----------
solely for United States federal income tax purposes, each of the Partners
hereby recognizes that the Partnership will be subject to all provisions of
Subchapter K of Chapter 1 of Subtitle A of the Code; provided, however, the
filing of U.S. Partnership Returns of Income shall not be construed to extend
the purposes of the Partnership or the obligations or liabilities of the
Partners.
ARTICLE IX
DISSOLUTION
-----------
9.1 Dissolution. The Partnership shall be dissolved only upon the
-----------
occurrence of any of the following events:
(a) at the election of the General Partner;
(b) the Bankruptcy or insolvency of the Partnership;
(c) the retirement, withdrawal, dissolution, or adjudication of
Bankruptcy of the last remaining General Partner; provided, however, that the
business of the Partnership shall be continued pursuant to the provisions of
this Agreement if, within a period of thirty (30) days from the date of such
occurrence, the Limited Partners owning a majority of the Partnership
Percentages shall consent, in writing, that it be so continued and shall
designate within such writing one or more individuals or legal entities to be
admitted to the Partnership as a successor General Partner pursuant to this
Agreement. In the event a successor General Partner is selected by the Limited
Partners: (i) the successor General Partner shall assume all the rights, powers
and obligations of the General Partner under this Agreement upon the written
acceptance, adoption and assumption by the successor General Partner of all the
terms and provisions of, and obligations of the General Partner, under this
Agreement; and (ii) the interest of the General Partner shall be converted to
that of a Limited Partner. In furtherance of the foregoing provisions, the
parties hereto agree to execute, file, record and/or publish all such other
instruments and documents as may be necessary to accomplish the foregoing.
(d) the sale or other disposition (including condemnation or
casualty loss) of all or substantially all of the property and assets of the
Partnership;
(e) the occurrence of any other event causing the dissolution of a
limited partnership under the Law; or
(f) January 31, 2027.
9.2 Upon Dissolution. Upon dissolution of the Partnership, the General
----------------
Partner, or, if the dissolution is caused by the retirement, withdrawal, and/or
adjudication of Bankruptcy of the last
17
<PAGE>
remaining General Partner, then the Limited Partners shall determine as speedily
as possible whether or not the Partnership shall be reformed (as a limited
partnership, general partnership, joint venture or similar organization) and its
business continued under arrangements which make proper provision for its
liabilities. In the event of such reformation, such reformation shall
constitute the termination of the Partnership.
9.3 Wind-Up of Affairs. Upon dissolution, the General Partner shall
------------------
proceed with dispatch and without any unnecessary delay to sell or otherwise
liquidate the Partnership assets. The Capital Account of each Partner shall be
determined. Profits or losses to the date of termination, including realized
profits (whether or not recognized for Federal income tax purposes) or losses
arising from a sale of all of the assets of the Partnership, and unrealized
profits and losses on any assets to be distributed in kind (determined as if
such assets had been sold by the Partner ship for prices equal to their
respective fair market value) shall be allocated as set forth in Article IV and
credited or charged to the Capital Accounts of the Partners. After paying or
duly providing for all liabilities to creditors of the Partnership, (including
any obligations to Partners or affiliates thereof) and any reserve that the
General Partner may deem reasonably necessary for any contingent or unforeseen
liabilities and other obligations of the Partnership or of the General Partner
arising out of or in conjunction with the Partnership's affairs, the General
Partner shall make liquidating distributions among the Partners as set forth in
Section 9.04 hereof.
The wind-up of the affairs of the Partnership shall be conducted
exclusively by the General Partner, which is hereby authorized to do any and all
acts and things authorized by law for such purposes. In liquidating the assets
of the Partnership, all tangible assets of a saleable value shall be sold at
such price and terms as the General Partner in good faith determines to be fair
and equitable. Any partnership, corporation or other entity in which all or any
of the Partners are in any way interested may purchase such assets at such
sale. A reasonable time shall be allowed for the orderly liquidation of the
assets of the Partnership and the discharge of liabilities to creditors so as to
enable the Partnership to minimize the losses normally occurring upon a
liquidation.
If any assets of the Partnership are to be distributed in kind, such
assets shall be distributed on the basis of the then fair market value thereof
(after adjusting the Capital Accounts of all Partners for any unrealized gain or
loss inherent in such property, as set forth above). The fair market value
shall be reasonably determined by the General Partner.
9.4 Liquidating Distributions. Upon liquidation of the Partnership,
-------------------------
liquidating distributions to the Partners shall be made pro rata based upon
their respective Partnership Percentages.
If any Partner has a deficit balance in its Capital Account following
the liquidation of its Partnership Interest, as determined after taking into
account all Capital Account adjustments for the Partnership taxable year
during which such liquidation occurs (other than those made
18
<PAGE>
pursuant to this paragraph), such Partner shall be unconditionally obligated to
restore the amount of such deficit balance to the Partnership by the end of such
taxable year (or, if later, within ninety (90) days after the date of such
liquidation), which amount shall, upon liquidation of the Partnership, be paid
to creditors of the Partnership or distributed to other Partners in accordance
with their positive Capital Account balances.
In the event that, immediately prior to the liquidation of the
Partnership, the General Partner has a negative balance in its Capital
Account, the General Partner shall contribute to the capital of the Partnership
an amount of cash equal to the lesser of: (a) such negative balance; or (b) the
excess of: (i) 1.01% of the total capital contributions made by the Limited
Partner to the Partnership as of such date over (ii) the total amount of capital
contributions to the Partnership theretofore made by the General Partner.
9.5 Termination. The Partnership shall terminate when all its assets have
-----------
been paid and distributed in accordance with this Article IX.
ARTICLE X
CONFIDENTIAL INFORMATION
------------------------
10.1 Confidentiality. Sforza hereby acknowledges that it may acquire, make
---------------
use of or learn of confidential information of a special and unique nature and
value affecting and relating to the restaurants affiliated with Unique and the
Partnership and its financial operations, including, but not limited to, the
restaurant concept, menus, business methods, marketing strategies and trade
secrets, and the Partnership's business, business records and other records, and
other similar information relating to the Partnership and the Partnership's
business (all the foregoing being hereinafter referred to collectively as
"Confidential Information"). Accordingly, Sforza hereby covenants and agrees
that it shall not at any time, directly or indirectly, either during the term of
this Agreement or afterward, divulge, reveal or communicate any Confidential
Information to any person, firm, corporation or entity whatsoever, or use any
Confidential Information for its own benefit or for the benefit of others,
except as may be required by law.
10.2 Injunction and Attorneys' Fees. In view of the irreparable harm and
------------------------------
damage which would occur to Unique and the Partnership as a result of a breach
or a threatened breach of the covenants or agreements under Section 10.01
hereof, and in view of the lack of an adequate remedy at law to protect the
Partnership and Unique, the Partnership and Unique shall have the right to
receive, and Sforza hereby consents to the issuance of, a permanent injunction
enjoining Sforza from any violation of the covenants set forth in Section 10.01.
Sforza acknowledges that a permanent injunction is an appropriate remedy for
such a breach or threatened breach. The foregoing remedy shall be in addition
to and not in limitation of any other rights or remedies to which the
Partnership or Unique is or may be entitled at law or in equity. Sforza further
agrees that in the event the
19
<PAGE>
Partnership or Unique incurs any fees or costs in order to enforce the
provisions of Section 10.01 hereof, Sforza against whom enforcement of said
provisions is sought shall pay all fees and costs so incurred by the Partnership
or Unique, including, but not limited to, attorneys' and paralegals' fees.
ARTICLE XI
MISCELLANEOUS
-------------
11.1 Amendment. Except as herein provided, this Agreement may not be
---------
amended without the consent of both the General Partner and the Limited
Partners. This Agreement may be amended from time to time by the General
Partner without the consent of the Limited Partners: (i) to substitute or add
a Limited Partner to the extent provided for in this Agreement; (ii) to add to
the representations, duties or obligations of the General Partner or surrender
any right or power granted to the General Partner herein, for the benefit of
the Limited Partner; (iii) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Agreement which will not be inconsistent with the provisions of this
Agreement; (iv) to preserve the status of the Partnership as a "partnership" for
federal income tax purposes; (v) to delete or add any provision of this
Agreement required to be so deleted or added by the staff of the Securities and
Exchange Commission or other federal agency or by a state "Blue Sky" commission
or official or similar such official, which addition or deletion is deemed by
such Commission, agency or official to be for the benefit or protection of the
Limited Partner; or (vi) if such amendment is, in the opinion of counsel for the
Partnership, necessary or appropriate to satisfy the requirements of Code
Section 704(b) or the Regulations promulgated thereunder.
11.2 Notices. Any notice required or permitted to be delivered to any
-------
Partner under the provisions of this Agreement shall be deemed delivered,
whether actually received or not, when deposited in a United States Postal
Service Depository, postage prepaid, registered or certified, return receipt
requested, and addressed to the Partner at the address set forth below, or such
other address as shall be specified by written notice delivered to the
Partnership:
If to Unique: Unique TBA, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
If to URC: Unique Restaurant Concepts, Ltd.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
20
<PAGE>
If to Sforza: Sforza Enterprises, Inc.
330 Clematis Street, Suite 211
West Palm Beach, Florida 33401
All notices, demands and requests shall be effective upon being
deposited in the United States mail. However, the time period in which a
response to any such notice, demand or request must be given shall commence to
run from the date of receipt on the return receipt of the notice, demand or
request by the addressee thereof or the date of actual receipt in the case of
delivery by other means. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be
deemed to be receipt of the notice, demand or request when sent.
11.3 Agency. Except as provided herein, nothing herein contained shall be
------
construed to constitute any Partner hereof the agent of any other Partner hereof
or to limit in any manner the Partners in the carrying on of their own
respective businesses or activities. Any Partner may engage in and/or possess
any interest in other business Partnerships of every nature and description,
independently or with others, whether existing as of the date hereof or
hereafter coming into existence; and neither the Partnership nor any Partner
hereof shall have any rights in or to any such independent Partnerships or the
income or profits derived therefrom.
11.4 Further Assurances. The Partners will execute and deliver such
------------------
further instruments and do such further acts and things as may be required to
carry out the intent and purposes of this Agreement.
11.5 Headings. The headings of the various sections of this Agreement are
--------
intended solely for convenience of reference, and shall not be deemed or
construed to explain, modify or place any construction upon the provisions
hereof.
11.6 Successors and Assigns. This Agreement and any amendments hereto
----------------------
shall be binding upon and, to the extent expressly permitted by the provisions
hereof, shall inure to the benefit of the Partners, their respective successors
and assigns.
11.7 Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Florida, and agreed upon venue, to the
extent permitted by law, shall be Palm Beach County, Florida. This Agreement is
intended to be performed in accordance with, and only to the extent permitted
by, all applicable laws, ordinances, rules, and regulations of the
jurisdiction in which the Partnership does business.
11.8 Entire Agreement. This Agreement sets forth all (and is intended by
----------------
all parties hereto to be an integration of all) of the promises, agreements,
conditions, understandings, warranties and
21
<PAGE>
representations among the parties hereto with respect to the Partnership, the
Partner ship business and the Partnership Assets, and supersedes any and all
prior and contemporaneous promises, agreements, conditions, understandings,
warranties or representations, oral or written, express or implied, except as
set forth herein.
11.9 Counterparts. This Agreement and any amendments hereto may be
------------
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
11.10 Gender. Wherever the context requires, any pronoun used herein may be
------
deemed to mean the corresponding masculine, feminine or neuter in form thereof
and the singular form of any nouns and pronouns herein may be deemed to mean the
corresponding plural and vice versa as the case may require.
11.11 Remedies. Each of the Partners acknowledge and agree that in the
--------
event that a Partner shall violate any of the restrictions or fail to perform
any of the obligations hereunder, the Partnership or the other Partners will be
without adequate remedy at law and will therefore be entitled to enforce such
restrictions or obligations by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding instituted in any court of competent
jurisdiction without the necessity of proving damages and without prejudice to
any other remedies it may have at law or in equity.
11.12 No Third Party Beneficiary. This Agreement is made solely and
--------------------------
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other Person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise.
11.13 No Foreign Person Withholding. Each of the Partners hereby represent
-----------------------------
and warrant that it is not a "foreign person" within the meaning of Code
Section 1445.
11.14 No Recordation. Neither this Agreement nor any memorandum thereof
--------------
shall be recorded amongst the public records of any governmental authority.
11.15 Conflict Waiver. Each Partner hereby acknowledges and agrees that:
---------------
(i) Ruden, McClosky, Smith, Schuster & Russell, P.A. ("Firm") has represented
the General Partner, URC and their respective principals in connection with the
organization of the Partnership and in the preparation of this Agreement and may
hereafter represent the Partnership in other matters; (ii) the Firm has
represented the General Partner, URC and Affiliates of the General Partner and
URC in the past and the Firm may continue in the future to represent the General
Partner, URC and their respective Affiliates on other matters; (iii) each
Limited Partner (other than URC) has waived any
22
<PAGE>
conflict of interest that exists as a result of such representation and
acknowledges that the Firm undertakes no attorney-client relationship with any
Limited Partner by virtue of its representation of the Partnership; and (iv)
each Limited Partner (other than URC) has been ad vised by the Firm to consult
with independent legal counsel before entering into this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
23
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the day and year first above written.
GENERAL PARTNER:
UNIQUE TBA, INC., a Florida corporation
By: /s/ Dennis Max, President
--------------------------------------
Dennis Max, President
LIMITED PARTNERS:
UNIQUE RESTAURANT CONCEPTS, LTD.
By: UNIQUE RESTAURANT CONCEPTS,
INC., as General Partner
By: /s/ Dennis Max, President
--------------------------------------
Dennis Max, President
SFORZA ENTERPRISES, INC., a Florida
corporation
By: /s/ Dale J. Brisson, Pres.
--------------------------------------
24
<PAGE>
================================================================================
Exhibit 10.4
MAX'S BEACH GRILL, LTD.
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
December 30 , 1997
----
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I
DEFINITIONS...............................................................2
1.1 Act............................................................2
1.2 Adjusted Net Income and Adjusted Net Loss......................2
1.3 Administrative Fee.............................................2
1.4 Affiliate......................................................2
1.5 Agreement......................................................2
1.6 Available Cash.................................................2
1.7 Bankruptcy.....................................................2
1.8 Capital Account................................................3
1.9 Capital Contribution...........................................3
1.10 Capital Transaction............................................3
1.11 Certificate....................................................3
1.12 Code...........................................................3
1.13 Event of Dissolution...........................................3
1.14 General Partner................................................3
1.15 Interim Capital Transaction....................................3
1.16 Law............................................................4
1.17 Limited Partners...............................................4
1.18 Partners.......................................................4
1.19 Partnership....................................................4
1.20 Partnership Accountants........................................4
1.21 Partnership Accounting Year or Fiscal Year.....................4
1.22 Partnership Interest...........................................4
1.23 Partnership Percentage.........................................4
1.24 Person.........................................................4
1.25 Restaurant.....................................................5
1.26 Stipulated Rate................................................5
1.27 Terminating Capital Transaction................................5
1.28 Treasury Regulations...........................................5
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE II
SUPERSEDER, NAME, BUSINESS, TERM..........................................5
2.1 Superseder......................................................5
2.2 Name............................................................5
2.3 Principal Place of Business; Recordkeeping Office...............5
2.4 Business of the Partnership.....................................5
2.5 Term............................................................6
2.6 Title...........................................................6
ARTICLE III
CAPITAL CONTRIBUTIONS; LOANS..............................................6
3.1 Capital Contributions and Loans.................................6
3.2 Other Matters Relating to Capital...............................7
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS.............................................7
4.1 Allocations from Operations and From Capital Transactions.......7
4.2 Depreciation Recapture..........................................8
4.3 Distribution of Available Cash..................................8
4.4 Distribution of Net Proceeds from Terminating
Capital Transaction.............................................8
4.5 Distribution in Cash Only.......................................8
4.6 Minimum Allocations and Distributions to the General Partner....8
ARTICLE V
MANAGEMENT OF PARTNERSHIP; ADMINISTRATIVE FEE.............................8
5.1 Rights, Powers and Duties of the General Partner................8
5.2 Liability and Indemnification..................................10
5.3 Dealings with Partnership by Partners and Related Parties......10
5.4 Competition....................................................10
5.5 Tax Elections..................................................11
5.6 Administrative Fee.............................................11
5.7 Restaurant Concept.............................................11
5.8 Replacement of General Partner.................................11
ARTICLE VI
MATTERS REGARDING LIMITED PARTNER........................................11
6.1 Management.....................................................11
6.2 Power of Attorney...................................................12
6.3 Limitation of Certain Rights...................................13
</TABLE>
ii
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<TABLE>
<S> <C>
ARTICLE VII
TRANSFERS OF PARTNERSHIP INTERESTS..................................... 13
7.1 General Prohibition.......................................... 13
7.2 Rights of Assignee........................................... 14
7.3 Transfers by General Partner................................. 14
7.4 Transfers by Limited Partners................................ 14
ARTICLE VIII
FISCAL MATTERS......................................................... 15
8.1 Books and Records............................................ 15
8.2 Reports and Statements....................................... 16
8.3 Tax Matters.................................................. 16
8.4 Appointment of Tax Matters Partner........................... 16
8.5 Tax Status................................................... 17
ARTICLE IX
DISSOLUTION............................................................ 17
9.1 Dissolution.................................................. 17
9.2 Upon Dissolution............................................. 17
9.3 Wind-Up of Affairs........................................... 18
9.4 Liquidating Distributions.................................... 18
9.5 Termination.................................................. 19
ARTICLE X
CONFIDENTIAL INFORMATION............................................... 19
10.1 Confidentiality.............................................. 19
10.2 Injunction and Attorneys' Fees............................... 19
ARTICLE XI
MISCELLANEOUS.......................................................... 20
11.1 Amendment.................................................... 20
11.2 Notices...................................................... 20
11.3 Agency....................................................... 21
11.4 Further Assurances........................................... 21
11.5 Headings..................................................... 21
11.6 Successors and Assigns....................................... 21
11.7 Applicable Law............................................... 21
11.8 Entire Agreement............................................. 21
11.9 Counterparts................................................. 22
11.10 Gender....................................................... 22
</TABLE>
iii
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<TABLE>
<S> <C>
11.11 Remedies..................................................... 22
11.12 No Third Party Beneficiary................................... 22
11.13 No Foreign Person Withholding................................ 22
11.14 No Recordation............................................... 22
11.15 Conflict Waiver.............................................. 22
</TABLE>
iv
<PAGE>
THE PARTNERSHIP INTERESTS REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED
FOR INVESTMENT AND, PURSUANT TO APPLICABLE EXEMPTIONS, HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES
LAWS. WITHOUT SUCH REGISTRATION, THE PARTNERSHIP INTERESTS MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT
UPON DELIVERY TO THE PARTNERSHIP OF AN OPINION OF COUNSEL SATISFACTORY TO THE
GENERAL PARTNER OF THE PARTNERSHIP THAT REGISTRATION IS NOT REQUIRED FOR SUCH
TRANSFER OR THE SUBMISSION TO THE GENERAL PARTNER OF SUCH OTHER EVIDENCE THAT
MAY BE SATISFACTORY TO THE GENERAL PARTNER TO THE EFFECT THAT ANY SUCH TRANSFER
WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATIONS PROMULGATED
THEREUNDER. ADDITIONALLY, ANY SALE OR OTHER TRANSFER OF PARTNERSHIP INTERESTS
IS SUBJECT TO CERTAIN RESTRICTIONS THAT ARE SET FORTH IN THIS AGREEMENT OF
LIMITED PARTNERSHIP.
MAX'S BEACH GRILL, LTD.
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
------------------------------------------------------------
THIS AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") is made and entered
into as of the 30th day of December, 1997, by and between MAX'S BEACH GRILL,
INC. ("Unique"), as the General Partner, UNIQUE RESTAURANT CONCEPTS, LTD.
("URC"), and SFORZA ENTERPRISES, INC., a Florida corporation ("Sforza"), as the
Limited Partners.
RECITALS:
WHEREAS, a Florida limited partnership known as Max's Beach Grill, Ltd.
("Partnership") was formed under the provisions of the Florida Revised Uniform
Limited Partnership Act (1986) and has filed a Certificate of Limited
Partnership and other documentation legally creating the Partnership under
Florida law; and
WHEREAS, the parties desire to amend and restate any prior agreements
governing the Partnership and admit Sforza as a Limited Partner.
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NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.1 Act. The Securities Act of 1933, as amended.
---
1.2 Adjusted Net Income and Adjusted Net Loss. The net income or loss
-----------------------------------------
of the Partnership resulting from Partnership operations during any stated
period, as calculated by the Partnership Accountants for federal income tax
purposes.
1.3. Administrative Fee. The fee payable pursuant to Section 5.05 hereof.
------------------
1.4. Affiliate. When used with reference to a specified Person: (i) any
---------
Person who, directly or indirectly, through one or more intermediaries, controls
or is controlled by or is under common control with the specified Person; (ii)
any Person who is an officer of, partner in or trustee of, or serves in a
similar capacity with respect to, the specified Person or of which the specified
Person is an officer, partner or trustee, or with respect to which the specified
Person serves in a similar capacity; or (iii) any Person who, directly or
indirectly, is the beneficial owner of ten percent (10%) or more of any class of
equity securities of, or otherwise has a substantial beneficial interest in, the
specified Person or of which the specified Person is directly or indirectly the
owner of ten percent (10%) or more of any class of equity securities or in which
the specified Person has a substantial beneficiary interest.
1.5. Agreement. This Second Amended and Restated Agreement of Limited
---------
Partnership of Max's Beach Grill, Ltd., a Florida limited partnership, as
originally executed and as amended from time to time, as the context requires.
1.6. Available Cash. All cash funds of the Partnership on hand from time
--------------
to time after: (i) provision for payment of all outstanding and unpaid current
obligations, expenses and charges of the Partnership as of such time (including
the Administrative Fee and all amounts of any principal or interest payable
with respect to any loans from Partners); and (ii) provision for such reserve as
reasonably determined by the General Partner to be necessary for working capital
or other Partnership needs. Available Cash shall not include or reflect any
proceeds received or expenses incurred in connection with a Terminating Capital
Transaction.
1.7. Bankruptcy. As used in this Agreement, the term "Bankruptcy," with
----------
respect to the Partnership or the General Partner, shall refer to: (i) the
appointment of
2
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a receiver, conservator, rehabilitator or similar officer for the Partnership or
the General Partner, unless the appointment of such officer shall be vacated and
such officer discharged within one hundred twenty (120) days of the appointment;
(ii) the taking of possession of, or the assumption of control over, all or any
substantial part of the property of the Partnership or the General Partner by
any receiver, conservator, rehabilitator or similar officer or by the United
States government or any agency thereof, unless such property is relinquished
within one hundred twenty (120) days of the taking; (iii) the filing of a
petition in bankruptcy or the commencement of any proceeding under any present
or future federal or state law relating to bankruptcy, insolvency, debt relief
or reorganization of debtors by or against the Partnership or the General
Partner, provided, if filed against (and not by) the Partnership or the General
Partner, such petition or proceeding is not dismissed within thirty (30) days of
the filing of the petition or the commencement of the proceeding; or (iv) the
making of an assignment for the benefit of creditors or a private composition,
arrangement or adjustment with the creditors of the Partnership or the General
Partner.
1.8. Capital Account. An account that, throughout the full term of the
---------------
Partnership, shall be established, determined and maintained separately for
each Partner in accordance with the provisions of Treasury Regulations Section
1.704-1(b)(2)(iv) promulgated under Code Section 704(b).
1.9. Capital Contribution. The amount of cash or the agreed fair market
--------------------
value of property contributed by each Partner to the capital of the Partnership,
as reflected in the books of the Partnership.
1.10. Capital Transaction. An Interim Capital Transaction or a Terminating
-------------------
Capital Transaction.
1.11. Certificate. The Certificate of Limited Partnership of the
-----------
Partnership filed with the Secretary of State of the State of Florida, as it may
be amended from time to time.
1.12. Code. The Internal Revenue Code of 1986, as amended from time to
----
time, or any corresponding provision or provisions of any federal internal
revenue law enacted in substitution of the Internal Revenue Code of 1986.
1.13. Event of Dissolution. Any of the events that result in a dissolution
--------------------
of the Partnership as set forth in Section 9.01 hereof.
1.14. General Partner. The general partner of the Partnership, as it may
---------------
exist from time to time. The General Partner on the date hereof is Unique. No
Person shall be a General Partner unless admitted to the Partnership as such in
accordance with the terms hereof.
1.15. Interim Capital Transaction. A transaction pursuant to which the
---------------------------
Partnership borrows funds or refinances existing debt, a sale, condemnation,
exchange, abandonment or other disposition
3
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of a portion (which is less than substantially all) of the assets of the
Partnership, an insurance recovery and any other transaction, other than a
Terminating Capital Transaction, that, in accordance with generally accepted
accounting principles, is considered capital in nature.
1.16. Law. The Florida Revised Uniform Limited Partnership Act (1986), as
---
amended.
1.17. Limited Partners. The Limited Partners, as they may exist from time
----------------
to time. Reference to the "Limited Partner" shall mean any Limited Partner. No
Person shall be a Limited Partner unless admitted to the Partnership as such in
accordance with the terms hereof.
1.18. Partners. The General Partner and the Limited Partners,
--------
collectively. Reference to a "Partner" shall be to any of the Partners.
1.19. Partnership. Max's Beach Grill, Ltd., the Florida limited
-----------
partnership.
1.20. Partnership Accountants. Such certified public accountants as may be
-----------------------
selected, from time to time, by the General Partner.
1.21. Partnership Accounting Year or Fiscal Year. The calendar year,
------------------------------------------
unless otherwise determined by the General Partner.
1.22. Partnership Interest. The entire ownership interest of a Partner
--------------------
in the Partnership at any particular time, including the right of such Partner
to any and all distributions, allocations and other incidents of participation
in the Partnership to which such Partner may be entitled as provided in this
Agreement and the Law, together with the obligations of such Partner to comply
with all of the terms and provisions of this Agreement and the Law, and further
including its Capital Account hereunder.
1.23. Partnership Percentage. The percentage set forth below with respect
----------------------
to each Partner, which percentage may be diluted pro rata upon the Partnerships'
issuance of additional Partnership Interests in accordance with the terms of
this Agreement:
(a) Unique 1%
(b) URC 48%
(c) Sforza 51%
1.24. Person. Any individual, trust, partnership, corporation, joint
------
venture, trust, or other entity or association, and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person.
4
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1.25. Restaurant. The restaurant located at 17 South Atlantic Boulevard in
----------
Fort Lauderdale, Florida to be owned and operated by the Partnership, to be
named initially as "Max's Grille" or some derivative thereof.
1.26. Stipulated Rate. The rate of interest, calculated annually, equal to
---------------
two percent (2%), plus the annual rate of simple interest announced from time to
time by Citibank, N.A. as its publicly announced commercial prime lending rate
to its most creditworthy borrowers, but not higher than the highest nonusurious
rate of simple interest for commercial loans under applicable law, nor lower
than the lowest interest rate that may be charged without causing the imputation
of interest for federal income tax purposes.
1.27. Terminating Capital Transaction. A sale, condemnation, exchange or
-------------------------------
other disposition, whether by foreclosure, abandonment or otherwise, of all or
substantially all of the then remaining assets of the Partnership or a
transaction that will result in a dissolution of the Partnership.
1.28. Treasury Regulations. Treasury Regulations shall mean regulations
--------------------
promulgated by the United States Treasury Department interpreting the Code.
ARTICLE II
SUPERSEDER, NAME, BUSINESS, TERM
--------------------------------
2.1. Superseder. This Agreement supersedes in its entirety any prior
----------
agreements governing the Partnership.
2.2. Name. The business of the Partnership shall be conducted under the
----
name "Max's Beach Grill, Ltd." provided, however, the Partnership may conduct
business under such other name or fictitious name as the General Partner may
designate.
2.3. Principal Place of Business; Recordkeeping Office. The principal
-------------------------------------------------
place of business of the Partnership shall be 490 East Palmetto Park Road,
Suite 110, Boca Raton, Florida 33432, or at such other location in or outside
the State of Florida as hereinafter may be determined by the General Partner.
The recordkeeping office of the Partnership required by the Law shall be 490
East Palmetto Park Road, Suite 110, Boca Raton, Florida 33432, or at such other
location in the State of Florida as may be determined by the General Partner.
2.4. Business of the Partnership. The purpose and scope of the
---------------------------
Partnership is to: (i) own, and engage in the operation of, sell and in all
other respects deal with, a restaurant for-profit; and (ii) engage in all manner
of transactions and activities incidental to the foregoing.
5
<PAGE>
The Partnership shall not engage in any other business or activity,
except as other wise expressly and specifically provided in this Agreement or
as the Partners shall otherwise agree in writing. Except as expressly provided
to the contrary in this Agreement, nothing herein shall be deemed to restrict in
any way the freedom of a Partner to conduct any other business or activity
whatsoever without any accountability to the Partnership or the other Partners.
2.5. Term. The term of the Partnership shall continue in full force and
----
effect until terminated in accordance with Article IX of this Agreement or as
otherwise provided by the Law.
2.6. Title. Legal title to the Partnership's property shall be held in
-----
the name of the Partnership, or in such other manner as the General Partner
shall determine.
ARTICLE III
CAPITAL CONTRIBUTIONS; LOANS
----------------------------
3.1. Capital Contributions and Loans.
-------------------------------
(a) The Partners shall each make the following Capital
Contributions to the Partnership:
(i) Unique has contributed $1.00 in cash to the capital of
the Partnership.
(ii) URC has contributed $99.00 in cash to the capital of
the Partnership.
(iii) Sforza shall make its capital contribution to the
Partnership by paying the Partnership the portion of the "Purchase Price" to be
allocated to the Partnership pursuant to the terms of, and as such term is
described in, that certain Partnership Interest Subscription Agreement dated
December 30, 1997, by and among Sforza Enterprises, Inc., Max's Beach Grill,
Ltd., Max's Beach Grill, Ltd., Unique Weston, Ltd. and Unique TBA, Ltd.
(b) No Partner shall be obligated to make any additional Capital
Contribution or loan to the Partnership. Partners shall be permitted to make
Capital Contributions and loans in addition to the foregoing to the Partnership
with the prior written consent of the General Partner. All loans made by
Partners to the Partnership shall be demand loans bearing interest at the
Stipulated Rate unless otherwise provided in the documentation evidencing any
such loans.
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<PAGE>
3.2 Other Matters Relating to Capital.
---------------------------------
(a) Interest earned on Partnership funds shall inure solely to the
benefit of the Partnership, and, except as specifically provided herein, no
interest shall be paid upon any contributions or advances to the capital of the
Partnership or upon any undistributed or reinvested in come or profits of the
Partnership.
(b) The Capital Contributions of the Partners shall be utilized for
carrying out the purposes of the Partnership as set forth in this Agreement and
for payment of any expenses incurred in connection therewith, including payment
of expenses paid or incurred by the General Partner on behalf of the Partnership
whether prior or subsequent to the execution of this Agreement.
(c) Loans by a Partner to the Partnership shall not be considered
contributions to the capital of the Partnership and shall not increase the
Capital Account of the lending Partner. Nothing herein shall authorize any loan
by a Partner to the Partnership unless otherwise authorized pursuant to the
other provisions of this Agreement or unless agreed to by the General Partner.
(d) Except as specifically provided herein, no Partner shall be
entitled to contribute capital to the Partnership without the consent of the
General Partner, to withdraw, or to a return of, any part of his Capital
Contribution or to receive property or assets other than cash in return thereof,
and the General Partner shall not be liable for the return of all or any portion
of the Limited Partner's Capital Contributions. To the extent any monies which
any Partner is entitled to receive pursuant to Article IV would constitute a
return of capital, each of the Partners consent to the withdrawal of such
capital.
(e) No Partner shall be entitled to priority over any other Partner,
either with respect to a return of his Capital Contribution or to allocations of
taxable income, gains, losses or credits, or to distributions, except as
provided in this Agreement.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
-----------------------------
4.1. Allocations from Operations and From Capital Transactions. The
---------------------------------------------------------
Adjusted Net Income or Adjusted Net Loss of the Partnership from operations and
any income (including gain) or losses resulting from any Interim or Terminating
Capital Transactions as calculated for federal income tax purposes and reported
by the Partnership on its U.S. Partnership Return of Income for each fiscal year
(or portion thereof) during the term of this Agreement shall be allocated to the
Partners pro rata in accordance with their respective Partnership Percentages.
7
<PAGE>
4.2. Depreciation Recapture. Notwithstanding anything to the contrary in
----------------------
this Article IV, and for purposes of determining the nature (as ordinary or
capital) of the income or gain allocable under such provisions, gain (if any)
recognized as ordinary income in respect of a Capital Transaction pursuant to
Code Sections 1245 and 1250 shall be deemed to be allocated to the Partners in
proportion to their accumulated depreciation allocations.
4.3. Distribution of Available Cash. Periodically, but not less
------------------------------
frequently than quarterly, the Available Cash if any, shall be distributed to
the Partners pro rata, in accordance with their respective Partnership
Percentages.
4.4. Distribution of Net Proceeds from Terminating Capital Transaction.
-----------------------------------------------------------------
The net proceeds of a Terminating Capital Transaction shall be distributed in
the manner set forth in Sections 9.03 and 9.04 hereof.
4.5. Distribution in Cash Only. No Partner shall have the right to demand
-------------------------
or receive property other than cash from the Partnership for any reason
whatsoever and no Partner shall have the right to sue for partition of the
Partnership or for the Partnership's assets.
4.6. Minimum Allocations and Distributions to the General Partner.
------------------------------------------------------------
Notwithstanding any provision in this Article IV to the contrary, for each
fiscal year of the Partnership, at least 1% of each item of income, loss, cash
or property which is to be allocated or distributed pursuant to this Article IV
shall be distributable to the General Partner.
ARTICLE V
MANAGEMENT OF PARTNERSHIP; ADMINISTRATIVE FEE
---------------------------------------------
5.1. Rights, Powers and Duties of the General Partner. The overall
------------------------------------------------
management and control of all aspects of the business and affairs of the
Partnership shall be vested exclusively in the General Partner. The General
Partner shall have all the rights and powers of a general partner as provided in
the Law and as otherwise provided by law, and any action taken by the General
Partner shall constitute the act of and serve to bind the Partnership. Except as
expressly set forth herein, no decision shall be made or action taken with
respect to the Partnership unless such decision or action has been approved by
the General Partner. The General Partner is hereby authorized to delegate, and
hereby delegates, to the Manager (as defined in Section 5.06) all of its powers
and authority to manage the business and affairs of the Partnership. The General
Partner, through the Manager, shall conduct the day-to-day operations of the
Partnership and shall use good faith efforts to carry out the business of the
Partnership as set forth herein. The General Partner, through the Manager, will
have all the specific rights and power required or appropriate to the operation,
management and disposition of the business of the Partnership which, by way of
illustration, but not by the way of limitation, shall include the right and
power to:
8
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(a) supervise the design, construction and equipping of the
Restaurant and all other pre-opening activities;
(b) managing the Restaurant when it opens;
(c) employ such agents, employees, managers, accountants,
attorneys, consultants and other persons as it may deem necessary or desirable
for the conduct of the Partnership's business and pay from Partnership assets
such fees, expenses, salaries, wages and other compensation to such persons as
it may determine;
(d) pay from Partnership's assets, extend, renew, modify, adjust,
submit to arbitration, prosecute, defend or compromise upon such terms as it may
determine, and upon such evidence as it may deem sufficient, any obligation,
suit, liability, cause of action or claim, including taxes, either in favor of
or against the Partnership;
(e) make from Partnership's assets any and all expenditures that it
may deem necessary or desirable for the conduct of the Partnership's business
and the carrying out of its obligations and responsibilities under this
Agreement;
(f) borrow money and issue evidences of indebtedness and security
therefor, mortgage, pledge or otherwise encumber assets of the Partnership, and,
from time to time, refinance any such borrowings;
(g) make distributions of the Partnership's assets to the Partners;
(h) purchase, at the expense of the Partnership, liability and
other insurance to protect the Partnership, the General Partner and the
Partnership's assets and business;
(i) maintain, at the expense of the Partnership, adequate records
and accounts of all operations and expenditures;
(j) sell, exchange or otherwise dispose of all or substantially all
the assets of the Partnership; and in connection therewith, to execute and
deliver such deeds, assignments and conveyances containing such warranties as
the General Partner may determine;
(k) invest the Partnership's assets as it may determine in its sole
discretion;
(l) pay, collect, compromise, arbitrate or resort to legal action
or otherwise adjust, litigate or settle claims and demands of or against the
Partnership;
9
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(m) merge or consolidate the Partnership with or into a corporation,
partner ship, limited partnership or other entity, or cause the Partnership to
be acquired by one or more corporations, partnerships, limited partnerships or
other entities or take such other action as may be required to convert the
Partnership to a corporation, partnership, limited partnership or other entity;
and
(n) take any and all other action permitted under applicable law and
that are customary and reasonably related to the Partnership's purposes.
5.2 Liability and Indemnification. The General Partner, its employees and
-----------------------------
Affiliates, shall not be liable to the Partnership or any Partner for any loss
or liability incurred in connection with any act performed or omitted in
accordance with the terms of this Agreement, except for any loss or liability
incurred in connection with the fraud, willful and wanton misconduct or gross
negligence of such Person. The Partnership shall and does hereby agree, to the
fullest ex tent permitted by law, to defend, indemnify and hold harmless the
General Partner, its employees and Affiliates, from and against any and all
liability, loss, cost, expense or damage incurred or sustained by reason of any
act or omission in the conduct of the business of the Partnership in accordance
with the terms hereof, including attorneys' and paralegals' fees through any and
all negotiations, trial and appellate levels; provided, however, the Partnership
shall not indemnify the General Partner, its employees and Affiliates or hold
them harmless with respect to any of the foregoing incurred in connection with
the fraud, willful and wanton misconduct or gross negligence of such General
Partner, employee or Affiliate.
5.3 Dealings with Partnership by Partners and Related Parties. The fact
---------------------------------------------------------
that any Partner is directly or indirectly interested in or connected with any
person, firm or corporation employed by the Partnership to render or perform
services, or from, or to which the Partnership may buy or sell merchandise,
services, material or other property, shall not prohibit the Partnership from
employing such person, firm or corporation or from otherwise dealing with them.
All compensation permitted under this Section 5.03 shall be deemed to be on
terms reasonable and customary under all circumstances then existing and
payments permitted under this Agreement and called for therein shall be made in
all events regardless of the profits and losses of the Partner ship during the
Partnership Accounting Year when the services were rendered.
5.4 Competition. The Partners acknowledge and agree that the Partners
-----------
(and their Affiliates) may have other business interests and may engage in any
other business or trade, individually, in partnership or association with
others or in any capacity whatsoever, whether or not such business competes with
the Partnership. The Partners recognize that the General Partner (directly or
through Affiliates) is actively engaged in competitive businesses with the
Partnership (including owning and operating restaurants similar to the
Restaurant in locations within Palm Beach, Broward and Dade Counties) and that
nothing contained in this Agreement or otherwise shall be deemed to restrict in
any way the rights of the General Partner, or any officer, director or Affiliate
10
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of the General Partner to engage in, or to conduct any other activity, trade or
business, independently or with others (including owing and operating competing
restaurants) whether or not any such activity, trade or business is adverse to,
competes with or is complementary with the business of the Partnership and
neither the Partnership nor the other Partners shall have any rights in or to
such trade, business or activity or the income or profits therefrom. The
Partners hereby expressly agree that each consents to all existing and future
business activities of the General Partner that are in any way competitive with
the business of the Partnership, and that the conduct of such activities shall
not constitute a breach of the General Partner's loyalty obligation to the
Partnership or the other Partners under the Law.
5.5 Tax Elections. The General Partner shall determine from time to time
-------------
whether or not to make or attempt to revoke any and all tax elections regarding
depreciation methods and recovery periods, capitalization of construction period
expenses, amortization of organizational and start-up expenditures, basis
adjustments upon admission or retirement of Partners, and any other federal,
state or local income tax elections.
5.6 Administrative Fee. The General Partner and Limited Partners
------------------
acknowledge that simultaneously with the execution of this Agreement, the
Partnership shall enter into that certain management agreement of even date
herewith (the "Management Agreement") with Unique Restaurant Concepts, Inc.
("Manager"), which shall contain the terms and conditions of the Partnership's
engagement of the Manager to perform management services for the Restaurant.
The term "Administrative Fee," as used herein, shall refer to the compensation
payable by the Partnership to the Manager under the Management Agreement, as
same may be amended from time to time.
5.7 Restaurant Concept. The Partners recognize and acknowledge that the
------------------
fully developed concept for the Restaurant (i.e. design, menu, decor, etc.)
and the Restaurant's name, "Max's Grille," is owned by URC. URC shall
simultaneously herewith enter into a License Agreement that authorizes the
Partnership, without any royalty or other monetary obligation, to use the name
"Max's Grille."
5.8 Replacement of General Partner. In the event of the Bankruptcy or
------------------------------
resignation of the General Partner, a successor General Partner may be appointed
by the affirmative vote of a majority of the Partnership Percentages.
ARTICLE VI
MATTERS REGARDING LIMITED PARTNER
---------------------------------
6.1 Management. The Limited Partners shall not participate in the
----------
operation or management of the business of the Partnership or transact any
business for or in the name of the
11
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Partnership, shall not have any right or power to sign for or bind the
Partnership in any manner, and shall have no right of consent or approval as to
any act or decision of the Partnership.
6.2 Power of Attorney.
-----------------
(a) The Limited Partners hereby make, constitute and appoint the
General Partner, and each Person who shall hereafter become a General Partner,
with full power of substitution, its true and lawful attorney-in-fact, and in
the name, place and stead of such Limited Partner, with the power from time to
time to execute, acknowledge, make, swear to, verify, deliver, record, publish
and/or file:
(i) Any certificate or other instrument which may be
required to be filed by the Partnership or the Partners under the laws of any
state or other jurisdiction to the extent that the said attorneys or any of them
deem such filing necessary or desirable and that such action has been authorized
in accordance with this Agreement;
(ii) Any and all amendments or modifications of this
Agreement and the instruments described in clauses (i) of this Section 6.02,
provided that each such amendment or modification has been authorized in
accordance with the terms of this Agreement;
(iii) Any and all certificates and other instruments which may
be required to effectuate the dissolution and termination of the Partnership
pursuant to the provisions of this Agreement;
(iv) Any and all consents to the entry of a judgment against
the Partnership, authorized in accordance with this Agreement;
(v) All such other instruments as said attorneys or any of
them may deem necessary or desirable fully to carry out the provisions of this
Agreement in accordance with its terms; provided, however, that this Special
Power of Attorney shall not, without the prior written consent of the Limited
Partner from whom the Special Power of Attorney is given, empower any such
attorney to execute any instrument or other document which affects the
substantive rights of such Limited Partner, or increases the liabilities of such
Limited Partner beyond the liability contemplated by this Agreement. Each of
said attorney shall have full power and authority to do and perform each and
every act and thing whatsoever requisite and necessary in and about the
foregoing as fully as the Limited Partner might or could do if personally
present and each Limited Partner hereby ratifies and confirms all that said
attorney, or any of them, shall lawfully do or cause to be done by virtue
hereof.
12
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(b) The foregoing grant of authority:
(i) is a Special Power of Attorney coupled with an interest
in favor of the General Partner and as such shall be irrevocable;
(ii) may be exercised for the Limited Partner by the signature
of the General Partner; and
(iii) shall survive the assignment by the Limited Partner of
the whole or any portion of his Partnership Interest, except that, where the
assignee of the whole of the Limited Partner's Partnership Interest has
furnished a power of attorney and has been approved by the remaining Partner(s)
for admission to the Partnership as a substitute Limited Partner, this power of
attorney shall survive such assignment for the sole purpose of enabling the
General Partner to execute, acknowledge and file any instrument necessary to
effect such substitution and shall thereafter terminate.
(c) A similar power of attorney shall be one of the instruments
which the General Partner shall require an assignee of the Limited Partner to
execute as a condition of such assignment and admission as a substitute Limited
Partner.
6.3 Limitation of Certain Rights. The Limited Partner shall not have the
----------------------------
right or power to: (i) bring an action for partition against the Partnership or
with respect to any of its property; (ii) cause the termination or dissolution
of the Partnership by court decree or as may be permitted by the Law, such
rights being specifically waived by the Limited Partner; or (iii) require the
Partnership to pay an amount upon or as a result of the withdrawal of such
Limited Partner from the Partnership.
ARTICLE VII
TRANSFERS OF PARTNERSHIP INTERESTS
----------------------------------
7.1 General Prohibition. Absent Sforza's consent, no additional
-------------------
Partnership Interests shall be issued by the Partnership if the effect of such
issuance would be to reduce the Partner ship Percentage of Sforza. Except with
the prior written consent of the General Partner, no Partner shall sell,
transfer, assign, syndicate, pledge, encumber or otherwise dispose of, either
voluntarily, involuntarily, by operation of law or otherwise ("Transfer") all
or any part of its Partner ship Interest unless made pursuant to and in
compliance with this Article VII and unless a copy of an executed and
acknowledged assignment effecting such Transfer has been filed with the
Partnership. Any purported Transfer of a Partnership Interest in violation of
the provisions of this Agreement shall be void ab initio.
---- -- ------
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7.2 Rights of Assignee. Any Transfer of a Partnership Interest (or any
------------------
part thereof) to a Person ("Assignee") who is not admitted to the Partnership as
a Limited Partner or a General Partner shall vest in such Person only rights of
an assignee, and shall not entitle the Assignee to be admitted to the
Partnership as a Partner. An Assignee who has not been admitted to the
Partnership as a Partner shall only have the right to receive the share of
profits, losses, tax credits and distributions of the Partnership to which the
Assigned Partner would have been entitled with respect to the Partnership
Interest (or a portion thereof) so assigned and shall have no right to require
any information or accounting of the Partnership's transactions or finances or
to inspect Partnership books, or to exercise any powers or other rights
including voting and consent rights, incidental to ownership of a Partnership
Interest. Admission of an Assignee to the Partnership as a General Partner shall
vest in such person all rights and powers, and subject such person to all duties
and all obligations thereafter arising, of a General Partner. Admission of an
Assignee to the Partnership as a Limited Partner shall vest in such person all
rights and powers, and subject such person to all duties and all obligations
thereafter arising, of a Limited Partner.
7.3. Transfers by General Partner. The General Partner may Transfer all or
----------------------------
any part of its Partnership Interest to an Assignee to be admitted to the
Partnership as a General Partner or as a Limited Partner if all of the following
conditions are met:
(a) The Limited Partners consent in writing to the Transfer and the
admission of the Assignee as a General Partner or Limited Partner;
(b) The Assignee agrees in writing to be bound by the provisions of
this Agreement and the Certificate;
(c) The Assignee executes any and all documents, including an
amendment to this Agreement and the Certificate, required to effectuate or
evidence its admission to the Partnership as a General Partner;
(d) The Partnership has received an opinion of counsel to the
affect that the contemplated Transfer and admission of the Assignee as a General
Partner or Limited Partner, as the case may be, will not cause the termination
of the Partnership for federal income tax purposes or cause the Partnership not
to be treated as a partnership for federal income tax purposes;
(e) The Assignee reimburses the Partnership for all reasonable
costs and expenses (including reasonable attorney's fees) incurred in
connection with the Transfer and admission; and
(f) The Assignee is not a minor or legally incompetent.
7.4 Transfers by Limited Partners. A Limited Partner may Transfer all or
-----------------------------
any part of its Partnership Interest to an Assignee, provided the Limited
Partner first receives the prior written
14
<PAGE>
consent of the General Partner. An Assignee of a Limited Partner's Partnership
Interest shall be admitted to the Partnership as a Limited Partner if all the
following conditions are met:
(a) The assigning Limited Partner so provides in the instrument of
assignment;
(b) The General Partner consents in writing to the admission of the
Assignee as a Limited Partner, which consent may be unreasonably withheld in the
sole and absolute discretion of the General Partner;
(c) The Assignee agrees in writing to be bound by the provisions of
this Agreement and the Certificate, and executes any and all documents
reasonably deemed necessary by the General Partner to effectuate or evidence the
admission of the Assignee to the Partnership as a Limited Partner;
(d) If deemed necessary by the General Partner, an opinion of
counsel is delivered to the Partnership and the General Partner, in form,
substance and from counsel satisfactory to the Partnership and the General
Partner, to the effect that: (i) the proposed Transfer does not require
registration under the Act or any other applicable federal or state securities
laws, including, in each case, the rules and regulations promulgated thereunder;
and (ii) that such action will not cause the termination of the Partnership for
federal income tax purposes or cause the Partnership not to be treated as a
partnership for federal income tax purposes;
(e) The Assignee reimburses the General Partner and the Partnership
for all reasonable costs and expenses (including reasonable attorney's fees)
incurred by the General Partner or the Partnership in connection with the
Transfer and admission;
(f) The Assignee is not a minor or legally incompetent.
ARTICLE VIII
FISCAL MATTERS
--------------
8.1 Books and Records. The General Partner shall keep, or cause to be
-----------------
kept, full and accurate books and records of all transactions of the Partnership
on the accrual method of accounting. All organizational records of the
Partnership and other records required to be kept by the Partnership under the
Law, shall, at all times, be maintained at the Partnership's recordkeeping
office referred to in Section 2.03 hereof, and shall be open during ordinary
business hours for inspection and copying upon the reasonable request and at
the expense of the Limited Partner and their authorized representatives.
15
<PAGE>
8.2 Reports and Statements. Within: (i) ten (10) days after the end of
----------------------
each month; and (ii) ninety (90) days after the end of each Partnership
Accounting Year, the General Partner shall, at the expense of the Partnership,
cause to be delivered to the Limited Partners the following unaudited financial
statements, prepared on a federal income tax basis, which shall be prepared by
the Partnership Accountants:
(a) A balance sheet of the Partnership as of the end of the
preceding month or of such Partnership Accounting Year; and
(b) A profit and loss statement for each such preceding month or
for the Partnership Accounting Year.
Such financial statements shall be accompanied by such other
information as, in the judgment of the General Partner, may be reasonably
necessary for the Limited Partners to be advised of the financial status and
results of operations of the Partnership.
In addition, the General Partner shall promptly following receipt
deliver to the Limited Partners copies of any documents served upon the
registered agent of the Partnership as well as any other notices of default
under any material agreement.
8.3 Tax Matters. The General Partner shall, at the expense of the
-----------
Partnership prepare, or cause to be prepared, for delivery to the Limited
Partners within ninety (90) days of the end of the Partnership's Accounting
Year, all federal and any required state and local income tax returns for the
Partnership for each Fiscal Year of the Partnership, and, in connection
therewith, shall make any available or necessary federal income tax elections.
The General Partner shall furnish to the Limited Partners, within ninety (90)
days after the close of the Partnership Accounting Year, necessary tax
information with respect to the Partnership to enable the Limited Partners to
prepare a federal tax return. The expense of the preparation of all tax returns
shall be an expense of the Partnership.
8.4 Appointment of Tax Matters Partner. The General Partner is hereby
----------------------------------
designated, pursuant to Code Section 6231(a)(7) as the Partnership's Tax Matters
Partner, and is responsible for acting as the liaison between the Partnership
and the Internal Revenue Service ("Service"), and as the coordinator of the
Partnership's actions pursuant to a Service tax audit of the Partner ship. In
the event of an audit of the Partnership's income tax returns, the General
Partner shall participate in, and retain at the expense of the Partnership,
accountants and other professionals to participate in such audit and contest
assertions by the auditing agent that may be materially adverse to the
Partners or the Partnership. The General Partner shall have the duties of a tax
matters partner as provided in the Code, in addition to such other duties as
are provided under this Agreement. The General Partner shall be reimbursed by
the Partnership for all expenses, costs and liabilities expended or incurred by
the General Partner.
16
<PAGE>
8.5 Tax Status. Any provision hereof to the contrary notwithstanding,
----------
solely for United States federal income tax purposes, each of the Partners
hereby recognizes that the Partnership will be subject to all provisions of
Subchapter K of Chapter 1 of Subtitle A of the Code; provided, however, the
filing of U.S. Partnership Returns of Income shall not be construed to extend
the purposes of the Partnership or the obligations or liabilities of the
Partners.
ARTICLE IX
DISSOLUTION
-----------
9.1 Dissolution. The Partnership shall be dissolved only upon the
-----------
occurrence of any of the following events:
(a) at the election of the General Partner;
(b) the Bankruptcy or insolvency of the Partnership;
(c) the retirement, withdrawal, dissolution, or adjudication of
Bankruptcy of the last remaining General Partner; provided, however, that the
business of the Partnership shall be continued pursuant to the provisions of
this Agreement if, within a period of thirty (30) days from the date of such
occurrence, the Limited Partners owning a majority of the Partnership
Percentages shall consent, in writing, that it be so continued and shall
designate within such writing one or more individuals or legal entities to be
admitted to the Partnership as a successor General Partner pursuant to this
Agreement. In the event a successor General Partner is selected by the Limited
Partners: (i) the successor General Partner shall assume all the rights, powers
and obligations of the General Partner under this Agreement upon the written
acceptance, adoption and assumption by the successor General Partner of all the
terms and provisions of, and obligations of the General Partner, under this
Agreement; and (ii) the interest of the General Partner shall be converted to
that of a Limited Partner. In furtherance of the foregoing provisions, the
parties hereto agree to execute, file, record and/or publish all such other
instruments and documents as may be necessary to accomplish the foregoing.
(d) the sale or other disposition (including condemnation or casualty
loss) of all or substantially all of the property and assets of the Partnership;
(e) the occurrence of any other event causing the dissolution of a
limited partnership under the Law; or
(f) January 31, 2027.
9.2 Upon Dissolution. Upon dissolution of the Partnership, the General
----------------
Partner, or, if the dissolution is caused by the retirement, withdrawal, and/or
adjudication of Bankruptcy of the last
17
<PAGE>
remaining General Partner, then the Limited Partners shall determine as speedily
as possible whether or not the Partnership shall be reformed (as a limited
partnership, general partnership, joint venture or similar organization) and its
business continued under arrangements which make proper provision for its
liabilities. In the event of such reformation, such reformation shall
constitute the termination of the Partnership.
9.3 Wind-Up of Affairs. Upon dissolution, the General Partner shall
------------------
proceed with dispatch and without any unnecessary delay to sell or otherwise
liquidate the Partnership assets. The Capital Account of each Partner shall be
determined. Profits or losses to the date of termination, including realized
profits (whether or not recognized for Federal income tax purposes) or losses
arising from a sale of all of the assets of the Partnership, and unrealized
profits and losses on any assets to be distributed in kind (determined as if
such assets had been sold by the Partnership for prices equal to their
respective fair market value) shall be allocated as set forth in Article IV and
credited or charged to the Capital Accounts of the Partners. After paying or
duly providing for all liabilities to creditors of the Partnership, (including
any obligations to Partners or affiliates thereof) and any reserve that the
General Partner may deem reasonably necessary for any contingent or unforeseen
liabilities and other obligations of the Partnership or of the General Partner
arising out of or in conjunction with the Partnership's affairs, the General
Partner shall make liquidating distributions among the Partners as set forth in
Section 9.04 hereof.
The wind-up of the affairs of the Partnership shall be conducted
exclusively by the General Partner, which is hereby authorized to do any and all
acts and things authorized by law for such purposes. In liquidating the assets
of the Partnership, all tangible assets of a sale able value shall be sold at
such price and terms as the General Partner in good faith determines to be fair
and equitable. Any partnership, corporation or other entity in which all or any
of the Partners are in any way interested may purchase such assets at such
sale. A reasonable time shall be allowed for the orderly liquidation of the
assets of the Partnership and the discharge of liabilities to creditors so as to
enable the Partnership to minimize the losses normally occurring upon a
liquidation.
If any assets of the Partnership are to be distributed in kind, such
assets shall be distributed on the basis of the then fair market value thereof
(after adjusting the Capital Accounts of all Partners for any unrealized gain or
loss inherent in such property, as set forth above). The fair market value
shall be reasonably determined by the General Partner.
9.4 Liquidating Distributions. Upon liquidation of the Partnership,
-------------------------
liquidating distributions to the Partners shall be made pro rata based upon
their respective Partnership Percentages.
If any Partner has a deficit balance in its Capital Account following
the liquidation of its Partnership Interest, as determined after taking into
account all Capital Account adjustments for the Partnership taxable year
during which such liquidation occurs (other than those made
18
<PAGE>
pursuant to this paragraph), such Partner shall be unconditionally obligated to
restore the amount of such deficit balance to the Partnership by the end of such
taxable year (or, if later, within ninety (90) days after the date of such
liquidation), which amount shall, upon liquidation of the Partnership, be paid
to creditors of the Partnership or distributed to other Partners in accordance
with their positive Capital Account balances.
In the event that, immediately prior to the liquidation of the
Partnership, the General Partner has a negative balance in its Capital
Account, the General Partner shall contribute to the capital of the Partnership
an amount of cash equal to the lesser of: (a) such negative balance; or (b) the
excess of: (i) 1.01% of the total capital contributions made by the Limited
Partner to the Partnership as of such date over (ii) the total amount of capital
contributions to the Partner ship theretofore made by the General Partner.
9.5 Termination. The Partnership shall terminate when all its assets have
-----------
been paid and distributed in accordance with this Article IX.
ARTICLE X
CONFIDENTIAL INFORMATION
------------------------
10.1 Confidentiality. Sforza hereby acknowledges that it may acquire, make
---------------
use of or learn of confidential information of a special and unique nature and
value affecting and relating to the restaurants affiliated with Unique and the
Partnership and its financial operations, including, but not limited to, the
restaurant concept, menus, business methods, marketing strategies and trade
secrets, and the Partnership's business, business records and other records, and
other similar information relating to the Partnership and the Partnership's
business (all the foregoing being hereinafter referred to collectively as
"Confidential Information"). Accordingly, Sforza hereby covenants and agrees
that it shall not at any time, directly or indirectly, either during the term of
this Agreement or afterward, divulge, reveal or communicate any Confidential
Information to any person, firm, corporation or entity whatsoever, or use any
Confidential Information for its own benefit or for the benefit of others,
except as may be required by law.
10.2 Injunction and Attorneys' Fees. In view of the irreparable harm and
------------------------------
damage which would occur to Unique and the Partnership as a result of a breach
or a threatened breach of the covenants or agreements under Section 10.01
hereof, and in view of the lack of an adequate remedy at law to protect the
Partnership and Unique, the Partnership and Unique shall have the right to
receive, and Sforza hereby consents to the issuance of, a permanent injunction
enjoining Sforza from any violation of the covenants set forth in Section 10.01.
Sforza acknowledges that a permanent injunction is an appropriate remedy for
such a breach or threatened breach. The foregoing remedy shall be in addition
to and not in limitation of any other rights or remedies to which the
Partnership or Unique is or may be entitled at law or in equity. Sforza further
agrees that in the event the
19
<PAGE>
Partnership or Unique incurs any fees or costs in order to enforce the
provisions of Section 10.01 hereof, Sforza against whom enforcement of said
provisions is sought shall pay all fees and costs so incurred by the Partnership
or Unique, including, but not limited to, attorneys' and paralegals' fees.
ARTICLE XI
MISCELLANEOUS
-------------
11.1 Amendment. Except as herein provided, this Agreement may not be
---------
amended without the consent of both the General Partner and the Limited
Partners. This Agreement may be amended from time to time by the General
Partner without the consent of the Limited Partners: (i) to substitute or add
a Limited Partner to the extent provided for in this Agreement; (ii) to add to
the representations, duties or obligations of the General Partner or surrender
any right or power granted to the General Partner herein, for the benefit of
the Limited Partner; (iii) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Agreement which will not be inconsistent with the provisions of this
Agreement; (iv) to preserve the status of the Partnership as a "partnership" for
federal income tax purposes; (v) to delete or add any provision of this
Agreement required to be so deleted or added by the staff of the Securities and
Exchange Commission or other federal agency or by a state "Blue Sky" commission
or official or similar such official, which addition or deletion is deemed by
such Commission, agency or official to be for the benefit or protection of the
Limited Partner; or (vi) if such amendment is, in the opinion of counsel for the
Partnership, necessary or appropriate to satisfy the requirements of Code
Section 704(b) or the Regulations promulgated thereunder.
11.2 Notices. Any notice required or permitted to be delivered to any
-------
Partner under the provisions of this Agreement shall be deemed delivered,
whether actually received or not, when deposited in a United States Postal
Service Depository, postage prepaid, registered or certified, return receipt
requested, and addressed to the Partner at the address set forth below, or such
other address as shall be specified by written notice delivered to the
Partnership:
If to Unique: Max's Beach Grill, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
If to URC: Unique Restaurant Concepts, Ltd.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
20
<PAGE>
If to Sforza: Sforza Enterprises, Inc.
330 Clematis Street, Suite 211
West Palm Beach, Florida 33401
All notices, demands and requests shall be effective upon being
deposited in the United States mail. However, the time period in which a
response to any such notice, demand or request must be given shall commence to
run from the date of receipt on the return receipt of the notice, demand or
request by the addressee thereof or the date of actual receipt in the case of
delivery by other means. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be
deemed to be receipt of the notice, demand or request when sent.
11.3 Agency. Except as provided herein, nothing herein contained shall be
------
construed to constitute any Partner hereof the agent of any other Partner hereof
or to limit in any manner the Partners in the carrying on of their own
respective businesses or activities. Any Partner may engage in and/or possess
any interest in other business Partnerships of every nature and description,
independently or with others, whether existing as of the date hereof or
hereafter coming into existence; and neither the Partnership nor any Partner
hereof shall have any rights in or to any such independent Partnerships or the
income or profits derived therefrom.
11.4 Further Assurances. The Partners will execute and deliver such
------------------
further instruments and do such further acts and things as may be required to
carry out the intent and purposes of this Agreement.
11.5 Headings. The headings of the various sections of this Agreement are
--------
intended solely for convenience of reference, and shall not be deemed or
construed to explain, modify or place any construction upon the provisions
hereof.
11.6 Successors and Assigns. This Agreement and any amendments hereto
----------------------
shall be binding upon and, to the extent expressly permitted by the provisions
hereof, shall inure to the benefit of the Partners, their respective successors
and assigns.
11.7 Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Florida, and agreed upon venue, to the
extent permitted by law, shall be Palm Beach County, Florida. This Agreement is
intended to be performed in accordance with, and only to the extent permitted
by, all applicable laws, ordinances, rules, and regulations of the jurisdiction
in which the Partnership does business.
11.8 Entire Agreement. This Agreement sets forth all (and is intended by
----------------
all parties hereto to be an integration of all) of the promises, agreements,
conditions, understandings, warranties and
21
<PAGE>
representations among the parties hereto with respect to the Partnership, the
Partnership business and the Partnership Assets, and supersedes any and all
prior and contemporaneous promises, agreements, conditions, understandings,
warranties or representations, oral or written, express or implied, except as
set forth herein.
11.9 Counterparts. This Agreement and any amendments hereto may be
------------
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
11.10 Gender. Wherever the context requires, any pronoun used herein may be
------
deemed to mean the corresponding masculine, feminine or neuter in form thereof
and the singular form of any nouns and pronouns herein may be deemed to mean the
corresponding plural and vice versa as the case may require.
11.11 Remedies. Each of the Partners acknowledge and agree that in the
--------
event that a Partner shall violate any of the restrictions or fail to perform
any of the obligations hereunder, the Partnership or the other Partners will be
without adequate remedy at law and will therefore be entitled to enforce such
restrictions or obligations by temporary or permanent injunctive or mandatory
relief obtained in an action or proceeding instituted in any court of competent
jurisdiction without the necessity of proving damages and without prejudice to
any other remedies it may have at law or in equity.
11.12 No Third Party Beneficiary. This Agreement is made solely and
--------------------------
specifically among and for the benefit of the parties hereto, and their
respective successors and assigns subject to the express provisions hereof
relating to successors and assigns, and no other Person shall have any rights,
interest or claims hereunder or be entitled to any benefits under or on account
of this Agreement as a third party beneficiary or otherwise.
11.13 No Foreign Person Withholding. Each of the Partners hereby represent
-----------------------------
and warrant that it is not a "foreign person" within the meaning of Code
Section 1445.
11.14 No Recordation. Neither this Agreement nor any memorandum thereof
--------------
shall be recorded amongst the public records of any governmental authority.
11.15 Conflict Waiver. Each Partner hereby acknowledges and agrees that:
---------------
(i) Ruden, McClosky, Smith, Schuster & Russell, P.A. ("Firm") has represented
the General Partner, URC and their respective principals in connection with the
organization of the Partnership and in the preparation of this Agreement and may
hereafter represent the Partnership in other matters; (ii) the Firm has
represented the General Partner, URC and Affiliates of the General Partner and
URC in the past and the Firm may continue in the future to represent the General
Partner, URC and their respective Affiliates on other matters; (iii) each
Limited Partner (other than URC) has waived any
22
<PAGE>
conflict of interest that exists as a result of such representation and
acknowledges that the Firm undertakes no attorney-client relationship with any
Limited Partner by virtue of its representation of the Partnership; and (iv)
each Limited Partner (other than URC) has been advised by the Firm to consult
with independent legal counsel before entering into this Agreement.
[THIS SPACE INTENTIONALLY LEFT BLANK]
23
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the day and year first above written.
GENERAL PARTNER:
MAX'S BEACH GRILL, INC., a Florida
corporation
By: /s/ Dennis Max, President
----------------------------------
Dennis Max, President
LIMITED PARTNERS:
UNIQUE RESTAURANT CONCEPTS, LTD.
By: UNIQUE RESTAURANT CONCEPTS,
INC., as General Partner
By: /s/ Dennis Max, President
----------------------------
Dennis Max, President
SFORZA ENTERPRISES, INC., a Florida
corporation
By: /s/ Dale J. Brisson, Pres.
----------------------------------
24
<PAGE>
Exhibit 10.5
LICENSE AGREEMENT
LICENSE AGREEMENT made and entered into this 30th day of December, 1997 by
and between UNIQUE RESTAURANT CONCEPTS, INC., a Florida corporation,
("Licensor"), and UNIQUE BRICKELL, LTD., a Florida limited partnership
("Licensee").
W I T N E S S E T H :
WHEREAS, Licensor is the owner, originator and creator of a restaurant
concept known as "Max's Grille" (the "Restaurant"), which Restaurant utilizes
certain products, recipes, services, procedures, standards, techniques, trade
dress and other proprietary information (collectively, the "System"); and
WHEREAS, Licensor has been engaged by Licensee to oversee the operation of
a Restaurant pursuant to the terms of a management agreement between Licensor,
Licensee and other parties (the "Management Agreement"); and
WHEREAS, Licensor is the sole and exclusive owner of all proprietary and
other property rights and interests in and to the service mark, trade name and
logo: "Max's Grille," including all derivations thereof (the "Name"), and the
System; and
WHEREAS, it is understood by the parties that Licensor operates Restaurants
in Florida, and may itself establish and/or grant licenses for the operation of
additional Restaurants and that the success of Licensor's System will depend
largely upon the acceptance and confidence of the public in the quality and
standards of all of Licensor's establishments in the proper and sanitary
preparation of their food and its service in a wholesome, appetizing and
efficient manner; and
WHEREAS, it is also understood by the parties that each Restaurant will be
dependent on each of the others to establish and maintain the good will
necessary for a successful operation, and therefore it is of benefit to, as well
as an obligation of, each licensee to conform strictly to the terms and
conditions of their respective license agreements, all of which are essential
for such purposes; and Licensor must demand and receive rigid compliance and the
maintenance of high, uniform standards of operation in order to insure the
mutual success of all licensees; and
WHEREAS, Licensee is desirous of acquiring a license to use the Name and
the System in the operation of a Restaurant at the location hereinafter
identified;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained and other valuable consideration, the receipt of which is
hereby acknowledged, it is understood and agreed between the parties hereto as
follows:
1
<PAGE>
ARTICLE I
---------
GRANT OF LICENSE
----------------
1.1 Licensor represents and warrants that it is the sole and exclusive
owner of all proprietary and other property rights and interests in and to the
Name and the System.
1.2 Licensor hereby grants to Licensee a non-exclusive license to use the
Name and the System in the operation of a Restaurant located at 300 Southwest
First Avenue, Fort Lauderdale, Florida 33301 ("Premises").
1.3 During the term of this Agreement, Licensor shall not (without the
written consent of the Licensee) operate, manage, control or direct, either for
itself or for others, nor shall it license any other person, firm or corporation
to operate, manage, control or direct, any other Restaurant within a radius of
five (5) miles of the Premises.
ARTICLE II
----------
TERM OF LICENSE
---------------
2.1 This Agreement shall continue in perpetuity unless terminated as
hereinafter provided.
2.2 This Agreement shall terminate upon the occurrence of any of the
following events:
(a) If Licensee shall dissolve, be adjudicated a bankrupt, becomes
insolvent, or if a receiver or custodian (permanent or temporary) of its
property or any part thereof is appointed by a court of competent authority; if
it makes a general assignment for the benefit of creditors; if a final judgment
remains unsatisfied of record for thirty (30) days or longer (unless a
supersedeas bond is filed) or if execution is levied against Licensee's business
or property, or a suit to foreclose any lien or mortgage against the Premises or
Restaurant is instituted against Licensee and not dismissed within thirty (30)
days; or if the Management Agreement is terminated for any reason whatsoever
including, without limitation, as the result of a breach by Licensor thereunder.
(b) If Licensee defaults in the performance of any term or compliance
with any condition of this Agreement and Licensee fails to cure any such default
within twenty (20) days after written notice from Licensor to Licensee of such
default.
ARTICLE III
-----------
NO ROYALTY
----------
The consideration for the grant of this license and the rights to use the
Name and the System is the entering into and performance by Sforza Enterprises,
Inc. ("SEI") of the Amended and Restated Agreement of Limited Partnership of
Licensee ("Partnership Agreement") and Licensee's execution and delivery of the
Management Agreement. Any default by SEI under the Partnership
2
<PAGE>
Agreement or any default by Licensee under the Management Agreement shall be
deemed a default by Licensee hereunder. No ongoing royalty shall be payable
under this license.
ARTICLE IV
----------
RESTAURANT PREMISES AND CONSTRUCTION
------------------------------------
4.1 The Restaurant shall be constructed by Licensee in accordance with
general plans, specifications and designs approved in writing by Licensor.
Licensee shall not make any material changes or alterations to the Restaurant
without Licensor's approval.
4.2 Licensee disclaims any right or interest in the creation or
development of the Name or any other of Licensor's service marks and trade names
used in connection with a Restaurant and to the good-will derived therefrom and
acknowledges that Licensor has the sole right to use the Name, such service
marks and trade marks. Licensee will use the Name, such service marks and/or
trade names only in the manner and to the extent specifically permitted in this
Agreement. All advertising, publicity, signs, decorations, furnishings,
equipment or other matter employing in any way whatsoever the words "Max's
Grille" or "Max's" shall be submitted to Licensor for its approval, which shall
not be unreasonably withheld, prior to publication or use and shall bear a SM
designation and, if requested by Licensor, a phrase acknowledging Licensor's
ownership thereof.
4.3 Licensee shall not in any way do anything to infringe upon, harm or
contest the rights of Licensor in the Name or incorporate the Name in its firm
name or corporate name without having obtained the prior written approval of
Licensor.
4.4 In the event Licensee learns of any claim or infringement of the Name
licensed hereunder, or any claim of unfair competition or other challenge to
Licensee's right to use the System or any service mark or trade name licensed
hereunder, Licensee shall promptly notify Licensor. Licensor shall defend and
indemnify Licensee harmless from any and all claims, demands, causes of action,
damages, costs and expenses whatsoever (including, but not limited to,
reasonable attorneys' fees) arising directly or indirectly from or out of
Licensee's use of the Name and the System, or otherwise arising directly or
indirectly from or out of any alleged action or omission of Licensor, or any
affiliate of Licensor. Licensor shall have the sole and exclusive right, in its
reasonable discretion, at its own cost and expense and for its own use and
benefit, to institute suit or take such other action as it may deem proper to
restrain any such infringement and defend any other such claim. In the event
Licensor reasonably determines not to restrain any such infringement or not to
commence or thereafter not to prosecute any suit, Licensee shall not have the
right to commence any such proceeding. Each of the parties hereto shall be
entitled to be represented in any proceeding relating to the matters covered by
this section in which the other party is involved, at its own cost and expense.
Each party hereto shall fully cooperate with the other in any such proceeding,
provided that it is reimbursed for its costs and expenses for doing so, not
including counsel fees, if any.
3
<PAGE>
4.5 Licensee agrees not to contest, directly or indirectly, Licensor's
rights or interest in and to the service marks, trade names, trade secrets,
methods, procedure and advertising techniques which are part of Licensor's
business. Licensee, moreover, will not contest, directly or indirectly,
Licensor's rights to use or license others to use such service marks, trade
names, trade secrets, methods, procedures and techniques outside the territory
reserved to Licensee. Licensee acknowledges that the recipes, products,
proprietary formulations, technology, know-how and operation of the Restaurant
is derived from information disclosed by Licensor to Licensee and that such
information is proprietary and confidential and constitutes a trade secret of
Licensor. Licensee shall take all action necessary to, and shall, at all times,
treat all such confidential information as confidential, and shall maintain such
information as secret, divulging the same only to such of its employees as must
have access to such confidential information in order to properly operate the
Restaurant. Upon termination hereof for any reason whatsoever all of Licensee's
rights to use such information shall cease.
ARTICLE V
---------
COMPLIANCE WITH SYSTEM
----------------------
5.1 Licensee understands and acknowledges that benefits to both parties
will be derived from uniformity of quality and appearance among all licensees
which can be accomplished more effectively, in most cases, by the use of
standardized equipment, tables, fixtures, food, beverages, dishes, and supplies
(collectively "Material") which may or may not be purchased from common sources
of supply. Licensee shall only purchase Material which complies with the
specifications from time-to-time promulgated in writing by Licensor regarding
such Material. If Licensee wishes to purchase Material which does not conform to
then existing specifications, Licensor shall review Licensee's proposed change
of specifications and advise Licensee whether or not such changed specifications
are acceptable to it in its sole discretion. Any and all costs and expenses
incurred by Licensor in reviewing, analyzing and considering such changed
specifications shall be paid by Licensee.
5.2 Licensee agrees to diligently operate the Restaurant in strict
compliance with the System and to abide by all recommendations of Licensor
relating to, and changes in, said System.
ARTICLE VI
----------
COVENANTS OF LICENSEE
---------------------
6.1 Licensee further agrees as follows:
(a) To maintain a high moral standard and atmosphere at Licensee's
Restaurant; to train and supervise its employees in compliance with all local
and state health code and food preparation laws; to properly and in a sanitary
manner prepare all food and beverages and to serve the same in a wholesome,
appetizing and efficient manner; to maintain the Premises and the Restaurant in
a clean, safe and orderly manner; to provide efficient, courteous and high
quality
4
<PAGE>
service to the public, to the end that the Restaurant shall help to create and
build good will among the public for Max's Grille restaurants as a whole, and so
that Licensor, Licensee, and each member of said System shall be benefited, and
the public assured uniform, efficient, courteous, high quality service on a
standardized national basis.
(b) To advertise, sell or offer for sale only those items which are
sold by Licensor in its company-owned Restaurants or approved by Licensor in
writing prior to offering the same for sale.
(c) Not to carry on or conduct or permit others to carry on or
conduct any other business activity or operation from the Premises other than
the operation of the licensed business.
ARTICLE VII
-----------
ASSIGNMENT
----------
7.1 Licensee shall neither sell, assign, transfer or encumber this
Agreement or any right or interest therein or thereunder, or offer or permit any
such sale, assignment, transfer or encumbrance to occur by operation of law or
otherwise, without the prior written consent of Licensor in each instance. For
purposes hereof, the term "assignment" shall include a sale or transfer, whether
in a single transaction or in a series of transactions, of more than a fifty
percent ownership interest in Licensee or a transfer of control of the corporate
general partner of Licensee.
ARTICLE VIII
------------
TERMINATION
-----------
8.1 Upon termination of this Agreement, Licensee's right to use in any
manner the Name or any other of Licensor's marks used by Licensee (or insignia
or slogan used in connection therewith), or any confusingly similar trademark,
service mark, trade name or insignia shall terminate forthwith. Licensee shall
not thereafter directly or indirectly identify itself in any manner as a Max's
Grille or publicly identify itself as a former Max's Grille or use any of
Licensor's trade secrets, signs, symbols, devices, recipes, formulas or other
materials constituting part of the System.
8.2 Upon the termination of this Agreement, the Licensee shall immediately
discontinue the use of all service marks, trade names, signs, structures, and
forms of advertising indicative of Max's Grille, its symbols, service marks or
its menu items; and, so far as the Licensee may lawfully do so, shall make or
cause to be made such removals of or changes in signs, buildings and structures
as the Licensor shall reasonably direct so as to eliminate the names "Max's
Grille" from the Premises and to effectively distinguish the Restaurant from its
former appearance and from any other Max's Grille restaurant.
5
<PAGE>
ARTICLE IX
----------
MISCELLANEOUS
-------------
9.1 Entire Agreement. The privileges herein granted to Licensee
----------------
contemplate the operation of a restaurant at the Premises and the rights herein
granted shall not be applied or extended, directly or indirectly, to any other
business or enterprise without the express consent in writing of Licensor. This
Agreement contains the entire agreement of the parties with respect to the
license of the Name, other service marks and System and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect. No failure of Licensor to
exercise any power given it hereunder or to insist upon strict compliance by
Licensee of any obligation hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of Licensor's right
to demand exact compliance with the terms hereof. Waiver by the Licensor of any
particular default by the Licensee shall not affect or impair the Licensor's
rights in respect of any subsequent default of the same or of a different
nature, nor shall any default or omission of the Licensor to exercise any rights
arising from such defaults affect or impair the Licensor's rights as to such
default or any subsequent default.
9.2 Force Majeure. Neither Licensor nor Licensee shall be liable to
-------------
perform any of its obligations under this Agreement if such failure to perform
is due to strikes, lockouts, stoppages, accidents, transportation delays, war,
government regulations or act of God or other cause beyond the reasonable
control of Licensor or Licensee and the happening of any such cause of delays
shall extend the time of performance by the time occasioned by any such cause of
delay.
9.3 Severability. If any covenant or other provision of this Agreement is
------------
invalid, or incapable of being enforced, by reason of any rule of law or public
policy, all other conditions and provisions of this Agreement shall,
nevertheless, remain in full force and effect, and no covenant or provision
shall be deemed dependent upon any other covenant or provision unless so
expressed herein.
9.4 Compliance with Laws. Licensee shall conduct its business and
--------------------
maintain the Restaurant in strict compliance with all applicable laws,
ordinances, regulations, and other requirements of any federal, state, county,
municipal, or other consent for the operation of its business.
9.5 Amendments. Neither this Agreement nor any provision hereof may be
----------
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which endorsement of the change, waiver,
discharge or termination is sought.
9.6 Binding Effect. This Agreement shall be binding upon the parties,
--------------
their permitted successors and assigns.
9.7 Governing Law. This License Agreement shall be governed by the laws of
-------------
the State of Florida.
6
<PAGE>
9.8 Litigation. If any party hereto engages in litigation against the
----------
other party hereto, either as plaintiff or as defendant, in order to enforce or
defend any of its rights under this Agreement, and such litigation results in a
final judgment in favor of such party ("Prevailing Party"), then the party
against whom said final judgment is obtained shall reimburse the Prevailing
Party for all direct, indirect or incidental expenses incurred by the Prevailing
Party in so enforcing or defending its rights hereunder, including, but not
limited to, all attorneys' fees and court costs and other expenses incurred
throughout all negotiations, trials or appeals undertaken in order to enforce
the Prevailing Party's rights hereunder.
9.9 Notices. Any notice required or permitted to be delivered to either
-------
party under the provisions of this Agreement shall be deemed delivered, whether
actually received or not, when deposited in a United States Postal Service
Depository, postage prepaid, registered or certified, return receipt requested,
and addressed to the party at the address set forth below, or such other address
as shall be specified by written notice delivered to the other party:
If to Licensor: Unique Restaurant Concepts, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
If to Licensee: Unique Brickell, Ltd.
c/o URC, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
with a copy to: Sforza Enterprises, Inc.
330 Clematis Street, Suite 211
West Palm Beach, Florida 33401
and an additional
copy to: Ralph V. De Martino, Esq.
De Martino, Finkelstein, Rosen & Virga
1818 N Street, Suite 400
Washington, DC 20036
All notices, demands and requests shall be effective upon being
deposited in the United States mail. However, the time period in which a
response to any such notice, demand or request must be given shall commence to
run from the date of receipt on the return receipt of the notice, demand or
request by the addressee thereof or the date of actual receipt in the case of
7
<PAGE>
delivery by other means. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be
deemed to be receipt of the notice, demand or request when sent.
9.10 Counterparts. This Agreement and any amendments hereto may be
------------
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
8
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the day and year first above written.
LICENSOR:
UNIQUE RESTAURANT CONCEPTS, INC., a
Florida corporation
By: /s/ Dennis Max, President
-----------------------------------
Dennis Max, President
LICENSEE:
UNIQUE BRICKELL, LTD., a Florida limited
partnership
By: UNIQUE BRICKELL, INC., a Florida
corporation, its General Partner
By: /s/ Dennis Max
------------------------------
Title: President
---------------------------
9
<PAGE>
Exhibit 10.6
LICENSE AGREEMENT
LICENSE AGREEMENT made and entered into this 30th day of December, 1997 by
and between UNIQUE RESTAURANT CONCEPTS, INC., a Florida corporation,
("Licensor"), and UNIQUE WESTON, LTD., a Florida limited partnership
("Licensee").
W I T N E S S E T H :
WHEREAS, Licensor is the owner, originator and creator of a restaurant
concept known as "Max's Grille" (the "Restaurant"), which Restaurant utilizes
certain products, recipes, services, procedures, standards, techniques, trade
dress and other proprietary information (collectively, the "System"); and
WHEREAS, Licensor has been engaged by Licensee to oversee the operation of
a Restaurant pursuant to the terms of a management agreement between Licensor,
Licensee and other parties (the "Management Agreement"); and
WHEREAS, Licensor is the sole and exclusive owner of all proprietary and
other property rights and interests in and to the service mark, trade name and
logo: "Max's Grille," including all derivations thereof (the "Name"), and the
System; and
WHEREAS, it is understood by the parties that Licensor operates Restaurants
in Florida, and may itself establish and/or grant licenses for the operation of
additional Restaurants and that the success of Licensor's System will depend
largely upon the acceptance and confidence of the public in the quality and
standards of all of Licensor's establishments in the proper and sanitary
preparation of their food and its service in a wholesome, appetizing and
efficient manner; and
WHEREAS, it is also understood by the parties that each Restaurant will be
dependent on each of the others to establish and maintain the good will
necessary for a successful operation, and therefore it is of benefit to, as well
as an obligation of, each licensee to conform strictly to the terms and
conditions of their respective license agreements, all of which are essential
for such purposes; and Licensor must demand and receive rigid compliance and the
maintenance of high, uniform standards of operation in order to insure the
mutual success of all licensees; and
WHEREAS, Licensee is desirous of acquiring a license to use the Name and
the System in the operation of a Restaurant at the location hereinafter
identified;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained and other valuable consideration, the receipt of which
is hereby acknowledged, it is understood and agreed between the parties hereto
as follows:
1
<PAGE>
ARTICLE I
---------
GRANT OF LICENSE
----------------
1.1 Licensor represents and warrants that it is the sole and exclusive
owner of all proprietary and other property rights and interests in and to the
Name and the System.
1.2 Licensor hereby grants to Licensee a non-exclusive license to use
the Name and the System in the operation of a Restaurant located at The Waterway
Shoppes of Weston in Weston, Florida.
1.3 During the term of this Agreement, Licensor shall not (without the
written consent of the Licensee) operate, manage, control or direct, either for
itself or for others, nor shall it license any other person, firm or
corporation to operate, manage, control or direct, any other Restaurant within
a radius of five (5) miles of the Premises.
ARTICLE II
----------
TERM OF LICENSE
---------------
2.1 This Agreement shall continue in perpetuity unless terminated as
hereinafter provided.
2.2 This Agreement shall terminate upon the occurrence of any of the
following events:
(a) If Licensee shall dissolve, be adjudicated a bankrupt,
becomes insolvent, or if a receiver or custodian (permanent or temporary) of its
property or any part thereof is appointed by a court of competent authority; if
it makes a general assignment for the benefit of creditors; if a final judgment
remains unsatisfied of record for thirty (30) days or longer (unless a
supersedeas bond is filed) or if execution is levied against Licensee's business
or property, or a suit to foreclose any lien or mortgage against the Premises or
Restaurant is instituted against Licensee and not dismissed within thirty (30)
days; or if the Management Agreement is terminated for any reason whatsoever
including, without limitation, as the result of a breach by Licensor
thereunder.
(b) If Licensee defaults in the performance of any term or
compliance with any condition of this Agreement and Licensee fails to cure any
such default within twenty (20) days after written notice from Licensor to
Licensee of such default.
ARTICLE III
-----------
NO ROYALTY
----------
The consideration for the grant of this license and the rights to use
the Name and the System is the entering into and performance by Sforza
Enterprises, Inc. ("SEI") of the Amended and Restated Agreement of Limited
Partnership of Licensee ("Partnership Agreement") and Licensee's execution and
delivery of the Management Agreement. Any default by SEI under the Partnership
2
<PAGE>
Agreement or any default by Licensee under the Management Agreement shall be
deemed a default by Licensee hereunder. No ongoing royalty shall be payable
under this license.
ARTICLE IV
----------
RESTAURANT PREMISES AND CONSTRUCTION
------------------------------------
4.1 The Restaurant shall be constructed by Licensee in accordance with
general plans, specifications and designs approved in writing by Licensor.
Licensee shall not make any material changes or alterations to the Restaurant
without Licensor's approval.
4.2 Licensee disclaims any right or interest in the creation or
development of the Name or any other of Licensor's service marks and trade names
used in connection with a Restaurant and to the good-will derived therefrom
and acknowledges that Licensor has the sole right to use the Name, such service
marks and trade marks. Licensee will use the Name, such service marks and/or
trade names only in the manner and to the extent specifically permitted in this
Agreement. All advertising, publicity, signs, decorations, furnishings,
equipment or other matter employing in any way whatsoever the words "Max's
Grille" or "Max's" shall be submitted to Licensor for its approval, which shall
not be unreasonably withheld, prior to publication or use and shall bear a SM
designation and, if requested by Licensor, a phrase acknowledging Licensor's
ownership thereof.
4.3 Licensee shall not in any way do anything to infringe upon, harm
or contest the rights of Licensor in the Name or incorporate the Name in its
firm name or corporate name with out having obtained the prior written approval
of Licensor.
4.4 In the event Licensee learns of any claim or infringement of the
Name licensed hereunder, or any claim of unfair competition or other challenge
to Licensee's right to use the System or any service mark or trade name licensed
hereunder, Licensee shall promptly notify Licensor. Licensor shall defend and
indemnify Licensee harmless from any and all claims, demands, causes of action,
damages, costs and expenses whatsoever (including, but not limited to,
reasonable attorneys' fees) arising directly or indirectly from or out of
Licensee's use of the Name and the System, or otherwise arising directly or
indirectly from or out of any alleged action or omission of Licensor, or any
affiliate of Licensor. Licensor shall have the sole and exclusive right, in its
reasonable discretion, at its own cost and expense and for its own use and
benefit, to institute suit or take such other action as it may deem proper to
restrain any such infringement and defend any other such claim. In the event
Licensor reasonably determines not to restrain any such infringement or not to
commence or thereafter not to prosecute any suit, Licensee shall not have the
right to commence any such proceeding. Each of the parties hereto shall be
entitled to be represented in any proceeding relating to the matters covered by
this section in which the other party is involved, at its own cost and expense.
Each party hereto shall fully cooperate with the other in any such proceeding,
provided that it is reimbursed for its costs and expenses for doing so, not
including counsel fees, if any.
3
<PAGE>
4.5 Licensee agrees not to contest, directly or indirectly, Licensor's
rights or interest in and to the service marks, trade names, trade secrets,
methods, procedure and advertising techniques which are part of Licensor's
business. Licensee, moreover, will not contest, directly or indirectly,
Licensor's rights to use or license others to use such service marks, trade
names, trade secrets, methods, procedures and techniques outside the territory
reserved to Licensee. Licensee acknowledges that the recipes, products,
proprietary formulations, technology, know-how and operation of the Restaurant
is derived from information disclosed by Licensor to Licensee and that such
information is proprietary and confidential and constitutes a trade secret of
Licensor. Licensee shall take all action necessary to, and shall, at all times,
treat all such confidential information as confidential, and shall maintain
such information as secret, divulging the same only to such of its employees as
must have access to such confidential information in order to properly operate
the Restaurant. Upon termination hereof for any reason whatsoever all of
Licensee's rights to use such information shall cease.
ARTICLE V
---------
COMPLIANCE WITH SYSTEM
----------------------
5.1 Licensee understands and acknowledges that benefits to both
parties will be de rived from uniformity of quality and appearance among all
licensees which can be accomplished more effectively, in most cases, by the use
of standardized equipment, tables, fixtures, food, beverages, dishes, and
supplies (collectively "Material") which may or may not be purchased from common
sources of supply. Licensee shall only purchase Material which complies with the
specifications from time-to-time promulgated in writing by Licensor regarding
such Material. If Licensee wishes to purchase Material which does not conform to
then existing specifications, Licensor shall review Licensee's proposed change
of specifications and advise Licensee whether or not such changed specifications
are acceptable to it in its sole discretion. Any and all costs and expenses
incurred by Licensor in reviewing, analyzing and considering such changed
specifications shall be paid by Licensee.
5.2 Licensee agrees to diligently operate the Restaurant in strict
compliance with the System and to abide by all recommendations of Licensor
relating to, and changes in, said System.
ARTICLE VI
----------
COVENANTS OF LICENSEE
---------------------
6.1 Licensee further agrees as follows:
(a) To maintain a high moral standard and atmosphere at
Licensee's Restaurant; to train and supervise its employees in compliance with
all local and state health code and food preparation laws; to properly and in a
sanitary manner prepare all food and beverages and to serve the same in a
wholesome, appetizing and efficient manner; to maintain the Premises and the
Restaurant in a clean, safe and orderly manner; to provide efficient, courteous
and high quality
4
<PAGE>
service to the public, to the end that the Restaurant shall help to create and
build good will among the public for Max's Grille restaurants as a whole, and so
that Licensor, Licensee, and each member of said System shall be benefited, and
the public assured uniform, efficient, courteous, high quality service on a
standardized national basis.
(b) To advertise, sell or offer for sale only those items which
are sold by Licensor in its company-owned Restaurants or approved by Licensor in
writing prior to offering the same for sale.
(c) Not to carry on or conduct or permit others to carry on or
conduct any other business activity or operation from the Premises other than
the operation of the licensed business.
ARTICLE VII
-----------
ASSIGNMENT
----------
7.1 Licensee shall neither sell, assign, transfer or encumber this
Agreement or any right or interest therein or thereunder, or offer or permit any
such sale, assignment, transfer or encumbrance to occur by operation of law or
otherwise, without the prior written consent of Licensor in each instance. For
purposes hereof, the term "assignment" shall include a sale or transfer, whether
in a single transaction or in a series of transactions, of more than a fifty
percent ownership interest in Licensee or a transfer of control of the corporate
general partner of Licensee.
ARTICLE VIII
------------
TERMINATION
-----------
8.1 Upon termination of this Agreement, Licensee's right to use in any
manner the Name or any other of Licensor's marks used by Licensee (or insignia
or slogan used in connection therewith), or any confusingly similar trademark,
service mark, trade name or insignia shall terminate forthwith. Licensee shall
not thereafter directly or indirectly identify itself in any manner as a Max's
Grille or publicly identify itself as a former Max's Grille or use any of
Licensor's trade secrets, signs, symbols, devices, recipes, formulas or other
materials constituting part of the System.
8.2 Upon the termination of this Agreement, the Licensee shall
immediately discontinue the use of all service marks, trade names, signs,
structures, and forms of advertising indicative of Max's Grille, its symbols,
service marks or its menu items; and, so far as the Licensee may lawfully do so,
shall make or cause to be made such removals of or changes in signs, buildings
and structures as the Licensor shall reasonably direct so as to eliminate the
names "Max's Grille" from the Premises and to effectively distinguish the
Restaurant from its former appearance and from any other Max's Grille
restaurant.
5
<PAGE>
ARTICLE IX
----------
MISCELLANEOUS
-------------
9.1 Entire Agreement. The privileges herein granted to Licensee
----------------
contemplate the operation of a restaurant at the Premises and the rights herein
granted shall not be applied or extended, directly or indirectly, to any other
business or enterprise without the express consent in writing of Licensor. This
Agreement contains the entire agreement of the parties with respect to the
license of the Name, other service marks and System and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect. No failure of Licensor to
exercise any power given it hereunder or to insist upon strict compliance by
Licensee of any obligation hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of Licensor's right
to demand exact compliance with the terms hereof. Waiver by the Licensor of any
particular default by the Licensee shall not affect or impair the Licensor's
rights in respect of any subsequent default of the same or of a different
nature, nor shall any default or omission of the Licensor to exercise any rights
arising from such defaults affect or impair the Licensor's rights as to such
default or any subsequent default.
9.2 Force Majeure. Neither Licensor nor Licensee shall be liable to
-------------
perform any of its obligations under this Agreement if such failure to perform
is due to strikes, lockouts, stoppages, accidents, transportation delays, war,
government regulations or act of God or other cause beyond the reasonable
control of Licensor or Licensee and the happening of any such cause of delays
shall extend the time of performance by the time occasioned by any such cause of
delay.
9.3 Severability. If any covenant or other provision of this
------------
Agreement is invalid, or incapable of being enforced, by reason of any rule of
law or public policy, all other conditions and provisions of this Agreement
shall, nevertheless, remain in full force and effect, and no covenant or
provision shall be deemed dependent upon any other covenant or provision unless
so expressed herein.
9.4 Compliance with Laws. Licensee shall conduct its business and
--------------------
maintain the Restaurant in strict compliance with all applicable laws,
ordinances, regulations, and other requirements of any federal, state, county,
municipal, or other consent for the operation of its business.
9.5 Amendments. Neither this Agreement nor any provision hereof may
----------
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which endorsement of the change, waiver,
discharge or termination is sought.
9.6 Binding Effect. This Agreement shall be binding upon the parties,
--------------
their permitted successors and assigns.
9.7 Governing Law. This License Agreement shall be governed by the
-------------
laws of the State of Florida.
6
<PAGE>
9.8 Litigation. If any party hereto engages in litigation against the
----------
other party hereto, either as plaintiff or as defendant, in order to enforce or
defend any of its rights under this Agreement, and such litigation results in
a final judgment in favor of such party ("Prevailing Party"), then the party
against whom said final judgment is obtained shall reimburse the Prevailing
Party for all direct, indirect or incidental expenses incurred by the
Prevailing Party in so enforcing or defending its rights hereunder, including,
but not limited to, all attorneys' fees and court costs and other expenses
incurred throughout all negotiations, trials or appeals undertaken in order to
enforce the Prevailing Party's rights hereunder.
9.9 Notices. Any notice required or permitted to be delivered to
-------
either party under the provisions of this Agreement shall be deemed delivered,
whether actually received or not, when deposited in a United States Postal
Service Depository, postage prepaid, registered or certified, return receipt
requested, and addressed to the party at the address set forth below, or such
other address as shall be specified by written notice delivered to the other
party:
If to Licensor: Unique Restaurant Concepts, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
If to Licensee: Unique Weston, Ltd.
c/o URC, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
with a copy to: Sforza Enterprises, Inc.
330 Clematis Street, Suite 211
West Palm Beach, Florida 33401
and an additional
copy to: Ralph V. De Martino, Esq.
De Martino, Finkelstein, Rosen & Virga
1818 N Street, Suite 400
Washington, DC 20036
All notices, demands and requests shall be effective upon being
deposited in the United States mail. However, the time period in which a
response to any such notice, demand or request must be given shall commence to
run from the date of receipt on the return receipt of the notice, demand or
request by the addressee thereof or the date of actual receipt in the case of
7
<PAGE>
delivery by other means. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be
deemed to be receipt of the notice, demand or request when sent.
9.10 Counterparts. This Agreement and any amendments hereto may be
------------
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
8
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the day and year first above written.
LICENSOR:
UNIQUE RESTAURANT CONCEPTS, INC., a
Florida corporation
By: /s/ Dennis Max, President
--------------------------------------
Dennis Max, President
LICENSEE:
UNIQUE WESTON, LTD., a Florida limited
partnership
By: UNIQUE WESTON, INC., a Florida
corporation, its General Partner
By: /s/ Dennis Max
---------------------------------
Title: President
------------------------------
9
<PAGE>
Exhibit 10.7
LICENSE AGREEMENT
LICENSE AGREEMENT made and entered into this 30th day of December,
1997 by and between UNIQUE RESTAURANT CONCEPTS, INC., a Florida corporation,
("Licensor"), and UNIQUE TBA, LTD., a Florida limited partnership
("Licensee").
W I T N E S W E T H :
WHEREAS, Licensor is the owner, originator and creator of a restaurant
concept known as "Max's Grille" (the "Restaurant"), which Restaurant utilizes
certain products, recipes, services, procedures, standards, techniques, trade
dress and other proprietary information (collectively, the "System"); and
WHEREAS, Licensor has been engaged by Licensee to oversee the operation of
a Restaurant pursuant to the terms of a management agreement between Licensor,
Licensee and other parties (the "Management Agreement"); and
WHEREAS, Licensor is the sole and exclusive owner of all proprietary and
other property rights and interests in and to the service mark, trade name and
logo: "Max's Grille," including all derivations thereof (the "Name"), and the
System; and
WHEREAS, it is understood by the parties that Licensor operates Restaurants
in Florida, and may itself establish and/or grant licenses for the operation of
additional Restaurants and that the success of Licensor's System will depend
largely upon the acceptance and confidence of the public in the quality and
standards of all of Licensor's establishments in the proper and sanitary
preparation of their food and its service in a wholesome, appetizing and
efficient manner; and
WHEREAS, it is also understood by the parties that each Restaurant will be
dependent on each of the others to establish and maintain the good will
necessary for a successful operation, and therefore it is of benefit to, as well
as an obligation of, each licensee to conform strictly to the terms and
conditions of their respective license agreements, all of which are essential
for such purposes; and Licensor must demand and receive rigid compliance and the
maintenance of high, uniform standards of operation in order to insure the
mutual success of all licensees; and
WHEREAS, Licensee is desirous of acquiring a license to use the Name and
the System in the operation of a Restaurant at the location hereinafter
identified;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained and other valuable consideration, the receipt of which
is hereby acknowledged, it is understood and agreed between the parties hereto
as follows:
1
<PAGE>
ARTICLE I
---------
GRANT OF LICENSE
----------------
1.1 Licensor represents and warrants that it is the sole and exclusive
owner of all proprietary and other property rights and interests in and to the
Name and the System.
1.2 Licensor hereby grants to Licensee a non-exclusive license to use the
Name and the System in the operation of a Restaurant, the location of which will
hereafter be mutually agreed to by Licensor and Licensee ("Premises").
1.3 During the term of this Agreement, Licensor shall not (without the
written consent of the Licensee) operate, manage, control or direct, either for
itself or for others, nor shall it license any other person, firm or
corporation to operate, manage, control or direct, any other Restaurant within
a radius of five (5) miles of the Premises.
ARTICLE II
----------
TERM OF LICENSE
---------------
2.1 This Agreement shall continue in perpetuity unless terminated as
hereinafter provided.
2.2 This Agreement shall terminate upon the occurrence of any of the
following events:
(a) If Licensee shall dissolve, be adjudicated a bankrupt, becomes
insolvent, or if a receiver or custodian (permanent or temporary) of its
property or any part thereof is appointed by a court of competent authority;
if it makes a general assignment for the benefit of creditors; if a final
judgment remains unsatisfied of record for thirty (30) days or longer (unless a
supersedeas bond is filed) or if execution is levied against Licensee's business
or property, or a suit to foreclose any lien or mortgage against the Premises or
Restaurant is instituted against Licensee and not dismissed within thirty (30)
days; or if the Management Agreement is terminated for any reason whatsoever
including, without limitation, as the result of a breach by Licensor
thereunder.
(b) If Licensee defaults in the performance of any term or
compliance with any condition of this Agreement and Licensee fails to cure any
such default within twenty (20) days after written notice from Licensor to
Licensee of such default.
ARTICLE III
-----------
NO ROYALTY
----------
The consideration for the grant of this license and the rights to use the
Name and the System is the entering into and performance by Sforza Enterprises,
Inc. ("SEI") of the Amended and Restated Agreement of Limited Partnership of
Licensee ("Partnership Agreement") and Licensee's execution and delivery of
the Management Agreement. Any default by SEI under the Partnership
2
<PAGE>
Agreement or any default by Licensee under the Management Agreement shall be
deemed a default by Licensee hereunder. No ongoing royalty shall be payable
under this license.
ARTICLE IV
----------
RESTAURANT PREMISES AND CONSTRUCTION
------------------------------------
4.1 The Restaurant shall be constructed by Licensee in accordance with
general plans, specifications and designs approved in writing by Licensor.
Licensee shall not make any material changes or alterations to the Restaurant
without Licensor's approval.
4.2 Licensee disclaims any right or interest in the creation or
development of the Name or any other of Licensor's service marks and trade names
used in connection with a Restaurant and to the good-will derived therefrom
and acknowledges that Licensor has the sole right to use the Name, such service
marks and trade marks. Licensee will use the Name, such service marks and/or
trade names only in the manner and to the extent specifically permitted in this
Agreement. All advertising, publicity, signs, decorations, furnishings,
equipment or other matter employing in any way whatsoever the words "Max's
Grille" or "Max's" shall be submitted to Licensor for its approval, which shall
not be unreasonably withheld, prior to publication or use and shall bear a SM
designation and, if requested by Licensor, a phrase acknowledging Licensor's
ownership thereof.
4.3 Licensee shall not in any way do anything to infringe upon, harm or
contest the rights of Licensor in the Name or incorporate the Name in its firm
name or corporate name without having obtained the prior written approval of
Licensor.
4.4 In the event Licensee learns of any claim or infringement of the Name
licensed hereunder, or any claim of unfair competition or other challenge to
Licensee's right to use the System or any service mark or trade name licensed
hereunder, Licensee shall promptly notify Licensor. Licensor shall defend and
indemnify Licensee harmless from any and all claims, demands, causes of action,
damages, costs and expenses whatsoever (including, but not limited to,
reasonable attorneys' fees) arising directly or indirectly from or out of
Licensee's use of the Name and the System, or otherwise arising directly or
indirectly from or out of any alleged action or omission of Licensor, or any
affiliate of Licensor. Licensor shall have the sole and exclusive right, in its
reasonable discretion, at its own cost and expense and for its own use and bene
fit, to institute suit or take such other action as it may deem proper to
restrain any such infringe ment and defend any other such claim. In the event
Licensor reasonably determines not to restrain any such infringement or not to
commence or thereafter not to prosecute any suit, Licensee shall not have the
right to commence any such proceeding. Each of the parties hereto shall be
entitled to be represented in any proceeding relating to the matters covered by
this section in which the other party is involved, at its own cost and expense.
Each party hereto shall fully cooperate with the other in any such proceeding,
provided that it is reimbursed for its costs and expenses for doing so, not
including counsel fees, if any.
3
<PAGE>
4.5 Licensee agrees not to contest, directly or indirectly, Licensor's
rights or interest in and to the service marks, trade names, trade secrets,
methods, procedure and advertising techniques which are part of Licensor's
business. Licensee, moreover, will not contest, directly or indirectly,
Licensor's rights to use or license others to use such service marks, trade
names, trade secrets, methods, procedures and techniques outside the territory
reserved to Licensee. Licensee acknowledges that the recipes, products,
proprietary formulations, technology, know-how and operation of the Restaurant
is derived from information disclosed by Licensor to Licensee and that such
information is proprietary and confidential and constitutes a trade secret of
Licensor. Licensee shall take all action necessary to, and shall, at all times,
treat all such confidential infor mation as confidential, and shall maintain
such information as secret, divulging the same only to such of its employees as
must have access to such confidential information in order to properly operate
the Restaurant. Upon termination hereof for any reason whatsoever all of
Licensee's rights to use such information shall cease.
ARTICLE V
---------
COMPLIANCE WITH SYSTEM
----------------------
5.1 Licensee understands and acknowledges that benefits to both parties
will be de rived from uniformity of quality and appearance among all licensees
which can be accomplished more effectively, in most cases, by the use of
standardized equipment, tables, fixtures, food, beverages, dishes, and supplies
(collectively "Material") which may or may not be purchased from common sources
of supply. Licensee shall only purchase Material which complies with the
specifications from time-to-time promulgated in writing by Licensor regarding
such Material. If Licensee wishes to purchase Material which does not conform to
then existing specifications, Licensor shall review Licensee's proposed change
of specifications and advise Licensee whether or not such changed specifications
are acceptable to it in its sole discretion. Any and all costs and expenses
incurred by Licensor in reviewing, analyzing and considering such changed
specifications shall be paid by Licensee.
5.2 Licensee agrees to diligently operate the Restaurant in strict
compliance with the System and to abide by all recommendations of Licensor
relating to, and changes in, said System.
ARTICLE VI
----------
COVENANTS OF LICENSEE
---------------------
6.1 Licensee further agrees as follows:
(a) To maintain a high moral standard and atmosphere at Licensee's
Restaurant; to train and supervise its employees in compliance with all local
and state health code and food preparation laws; to properly and in a sanitary
manner prepare all food and beverages and to serve the same in a wholesome,
appetizing and efficient manner; to maintain the Premises and the Restaurant in
a clean, safe and orderly manner; to provide efficient, courteous and high
quality
4
<PAGE>
service to the public, to the end that the Restaurant shall help to create and
build good will among the public for Max's Grille restaurants as a whole, and so
that Licensor, Licensee, and each member of said System shall be benefited, and
the public assured uniform, efficient, courteous, high quality service on a
standardized national basis.
(b) To advertise, sell or offer for sale only those items which
are sold by Licensor in its company-owned Restaurants or approved by Licensor in
writing prior to offering the same for sale.
(c) Not to carry on or conduct or permit others to carry on or
conduct any other business activity or operation from the Premises other than
the operation of the licensed business.
ARTICLE VII
-----------
ASSIGNMENT
----------
7.1 Licensee shall neither sell, assign, transfer or encumber this
Agreement or any right or interest therein or thereunder, or offer or permit any
such sale, assignment, transfer or encumbrance to occur by operation of law or
otherwise, without the prior written consent of Licensor in each instance. For
purposes hereof, the term "assignment" shall include a sale or transfer, whether
in a single transaction or in a series of transactions, of more than a fifty
percent ownership interest in Licensee or a transfer of control of the corporate
general partner of Licensee.
ARTICLE VIII
------------
TERMINATION
-----------
8.1 Upon termination of this Agreement, Licensee's right to use in any
manner the Name or any other of Licensor's marks used by Licensee (or insignia
or slogan used in connection therewith), or any confusingly similar trademark,
service mark, trade name or insignia shall terminate forthwith. Licensee shall
not thereafter directly or indirectly identify itself in any manner as a Max's
Grille or publicly identify itself as a former Max's Grille or use any of
Licensor's trade secrets, signs, symbols, devices, recipes, formulas or other
materials constituting part of the System.
8.2 Upon the termination of this Agreement, the Licensee shall
immediately discontinue the use of all service marks, trade names, signs,
structures, and forms of advertising indicative of Max's Grille, its symbols,
service marks or its menu items; and, so far as the Licensee may lawfully do so,
shall make or cause to be made such removals of or changes in signs, buildings
and structures as the Licensor shall reasonably direct so as to eliminate the
names "Max's Grille" from the Premises and to effectively distinguish the
Restaurant from its former appearance and from any other Max's Grille
restaurant.
5
<PAGE>
ARTICLE IX
----------
MISCELLANEOUS
-------------
9.1 Entire Agreement. The privileges herein granted to Licensee
----------------
contemplate the operation of a restaurant at the Premises and the rights herein
granted shall not be applied or extended, directly or indirectly, to any other
business or enterprise without the express consent in writing of Licensor. This
Agreement contains the entire agreement of the parties with respect to the
license of the Name, other service marks and System and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect. No failure of Licensor to
exercise any power given it hereunder or to insist upon strict compliance by
Licensee of any obligation hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of Licensor's right
to demand exact compliance with the terms hereof. Waiver by the Licensor of any
particular default by the Licensee shall not affect or impair the Licensor's
rights in respect of any subsequent default of the same or of a different
nature, nor shall any default or omission of the Licensor to exercise any rights
arising from such defaults affect or impair the Licensor's rights as to such
default or any subsequent default.
9.2 Force Majeure. Neither Licensor nor Licensee shall be liable to
-------------
perform any of its obligations under this Agreement if such failure to perform
is due to strikes, lockouts, stoppages, accidents, transportation delays, war,
government regulations or act of God or other cause beyond the reasonable
control of Licensor or Licensee and the happening of any such cause of delays
shall extend the time of performance by the time occasioned by any such cause of
delay.
9.3 Severability. If any covenant or other provision of this Agreement
------------
is invalid, or incapable of being enforced, by reason of any rule of law or
public policy, all other conditions and provisions of this Agreement shall,
nevertheless, remain in full force and effect, and no covenant or provision
shall be deemed dependent upon any other covenant or provision unless so
expressed herein.
9.4 Compliance with Laws. Licensee shall conduct its business and
--------------------
maintain the Restaurant in strict compliance with all applicable laws,
ordinances, regulations, and other requirements of any federal, state, county,
municipal, or other consent for the operation of its business.
9.5 Amendments. Neither this Agreement nor any provision hereof may be
----------
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which endorsement of the change, waiver,
discharge or termination is sought.
9.6 Binding Effect. This Agreement shall be binding upon the parties,
--------------
their permitted successors and assigns.
9.7 Governing Law. This License Agreement shall be governed by the laws
-------------
of the State of Florida.
6
<PAGE>
9.8 Litigation. If any party hereto engages in litigation against the
----------
other party hereto, either as plaintiff or as defendant, in order to enforce or
defend any of its rights under this Agreement, and such litigation results in
a final judgment in favor of such party ("Prevailing Party"), then the party
against whom said final judgment is obtained shall reimburse the Prevailing
Party for all direct, indirect or incidental expenses incurred by the
Prevailing Party in so enforcing or defending its rights hereunder, including,
but not limited to, all attorneys' fees and court costs and other expenses
incurred throughout all negotiations, trials or appeals undertaken in order to
enforce the Prevailing Party's rights hereunder.
9.9 Notices. Any notice required or permitted to be delivered to either
-------
party under the provisions of this Agreement shall be deemed delivered, whether
actually received or not, when deposited in a United States Postal Service
Depository, postage prepaid, registered or certified, return receipt requested,
and addressed to the party at the address set forth below, or such other address
as shall be specified by written notice delivered to the other party:
If to Licensor: Unique Restaurant Concepts, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
If to Licensee: Unique TBA, Ltd.
c/o URC, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
with a copy to: Sforza Enterprises, Inc.
330 Clematis Street, Suite 211
West Palm Beach, Florida 33401
and an additional
copy to: Ralph V. De Martino, Esq.
De Martino, Finkelstein, Rosen & Virga
1818 N Street, Suite 400
Washington, DC 20036
All notices, demands and requests shall be effective upon being
deposited in the United States mail. However, the time period in which a
response to any such notice, demand or request must be given shall commence to
run from the date of receipt on the return receipt of the notice, demand or
request by the addressee thereof or the date of actual receipt in the case of
7
<PAGE>
delivery by other means. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be
deemed to be receipt of the notice, demand or request when sent.
9.10 Counterparts. This Agreement and any amendments hereto may be
------------
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
8
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the day and year first above written.
LICENSOR:
UNIQUE RESTAURANT CONCEPTS, INC., a
Florida corporation
By: /s/ Dennis Max, President
-------------------------------
Dennis Max, President
LICENSEE:
UNIQUE TBA, LTD., a Florida limited partnership
By: UNIQUE TBA, INC., a Florida corporation,
its General Partner
By: /s/ Dennis Max
----------------------------
Title: President
-------------------------
9
<PAGE>
Exhibit 10.8
LICENSE AGREEMENT
LICENSE AGREEMENT made and entered into this 30th day of December,
1997 by and between UNIQUE RESTAURANT CONCEPTS, INC., a Florida corporation,
("Licensor"), and MAX'S BEACH GRILL, LTD., a Florida limited partnership
("Licensee").
W I T N E S S E T H :
WHEREAS, Licensor is the owner, originator and creator of a restaurant
concept known as "Max's Grille" (the "Restaurant"), which Restaurant utilizes
certain products, recipes, services, procedures, standards, techniques, trade
dress and other proprietary information (collectively, the "System"); and
WHEREAS, Licensor has been engaged by Licensee to oversee the operation of
a Restaurant pursuant to the terms of a management agreement between Licensor,
Licensee and other parties (the "Management Agreement"); and
WHEREAS, Licensor is the sole and exclusive owner of all proprietary and
other property rights and interests in and to the service mark, trade name and
logo: "Max's Grille," including all derivations thereof (the "Name"), and the
System; and
WHEREAS, it is understood by the parties that Licensor operates Restaurants
in Florida, and may itself establish and/or grant licenses for the operation of
additional Restaurants and that the success of Licensor's System will depend
largely upon the acceptance and confidence of the public in the quality and
standards of all of Licensor's establishments in the proper and sanitary
preparation of their food and its service in a wholesome, appetizing and
efficient manner; and
WHEREAS, it is also understood by the parties that each Restaurant will be
dependent on each of the others to establish and maintain the good will
necessary for a successful operation, and therefore it is of benefit to, as well
as an obligation of, each licensee to conform strictly to the terms and
conditions of their respective license agreements, all of which are essential
for such purposes; and Licensor must demand and receive rigid compliance and the
maintenance of high, uniform standards of operation in order to insure the
mutual success of all licensees; and
WHEREAS, Licensee is desirous of acquiring a license to use the Name and
the System in the operation of a Restaurant at the location hereinafter
identified;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained and other valuable consideration, the receipt of which
is hereby acknowledged, it is understood and agreed between the parties hereto
as follows:
1
<PAGE>
ARTICLE I
---------
GRANT OF LICENSE
----------------
1.1 Licensor represents and warrants that it is the sole and exclusive
owner of all proprietary and other property rights and interests in and to the
Name and the System.
1.2 Licensor hereby grants to Licensee a non-exclusive license to use the
Name and the System in the operation of a Restaurant located at 300 Southwest
First Avenue, Fort Lauder dale, Florida 33301 ("Premises").
1.3 During the term of this Agreement, Licensor shall not (without the
written consent of the Licensee) operate, manage, control or direct, either for
itself or for others, nor shall it license any other person, firm or
corporation to operate, manage, control or direct, any other Restaurant within
a radius of five (5) miles of the Premises.
ARTICLE II
----------
TERM OF LICENSE
---------------
2.1 This Agreement shall continue in perpetuity unless terminated as
hereinafter provided.
2.2 This Agreement shall terminate upon the occurrence of any of the
following events:
(a) If Licensee shall dissolve, be adjudicated a bankrupt, becomes
insolvent, or if a receiver or custodian (permanent or temporary) of its
property or any part thereof is appointed by a court of competent authority;
if it makes a general assignment for the benefit of creditors; if a final
judgment remains unsatisfied of record for thirty (30) days or longer (unless a
supersedeas bond is filed) or if execution is levied against Licensee's business
or property, or a suit to foreclose any lien or mortgage against the Premises or
Restaurant is instituted against Licensee and not dismissed within thirty (30)
days; or if the Management Agreement is terminated for any reason whatsoever
including, without limitation, as the result of a breach by Licen sor
thereunder.
(b) If Licensee defaults in the performance of any term or
compliance with any condition of this Agreement and Licensee fails to cure any
such default within twenty (20) days after written notice from Licensor to
Licensee of such default.
ARTICLE III
-----------
NO ROYALTY
----------
The consideration for the grant of this license and the rights to use the
Name and the System is the entering into and performance by Sforza Enterprises,
Inc. ("SEI") of the Amended and Restated Agreement of Limited Partnership of
Licensee ("Partnership Agreement") and Licensee's execution and delivery of
the Management Agreement. Any default by SEI under the Partnership
2
<PAGE>
Agreement or any default by Licensee under the Management Agreement shall be
deemed a default by Licensee hereunder. No ongoing royalty shall be payable
under this license.
ARTICLE IV
----------
RESTAURANT PREMISES AND CONSTRUCTION
------------------------------------
4.1 The Restaurant shall be constructed by Licensee in accordance with
general plans, specifications and designs approved in writing by Licensor.
Licensee shall not make any material changes or alterations to the Restaurant
without Licensor's approval.
4.2 Licensee disclaims any right or interest in the creation or
development of the Name or any other of Licensor's service marks and trade names
used in connection with a Restaurant and to the good-will derived therefrom
and acknowledges that Licensor has the sole right to use the Name, such service
marks and trade marks. Licensee will use the Name, such service marks and/or
trade names only in the manner and to the extent specifically permitted in this
Agreement. All advertising, publicity, signs, decorations, furnishings,
equipment or other matter employing in any way whatsoever the words "Max's
Grille" or "Max's" shall be submitted to Licensor for its approval, which shall
not be unreasonably withheld, prior to publication or use and shall bear a SM
designation and, if requested by Licensor, a phrase acknowledging Licensor's
ownership thereof.
4.3 Licensee shall not in any way do anything to infringe upon, harm or
contest the rights of Licensor in the Name or incorporate the Name in its firm
name or corporate name with out having obtained the prior written approval of
Licensor.
4.4 In the event Licensee learns of any claim or infringement of the Name
licensed hereunder, or any claim of unfair competition or other challenge to
Licensee's right to use the System or any service mark or trade name licensed
hereunder, Licensee shall promptly notify Licensor. Licensor shall defend and
indemnify Licensee harmless from any and all claims, demands, causes of
action, damages, costs and expenses whatsoever (including, but not limited to,
reasonable attorneys' fees) arising directly or indirectly from or out of
Licensee's use of the Name and the System, or otherwise arising directly or
indirectly from or out of any alleged ac tion or omission of Licensor, or any
affiliate of Licensor. Licensor shall have the sole and exclusive right, in
its reasonable discretion, at its own cost and expense and for its own use and
bene fit, to institute suit or take such other action as it may deem proper to
restrain any such infringe ment and defend any other such claim. In the event
Licensor reasonably determines not to re strain any such infringement or not to
commence or thereafter not to prosecute any suit, Licensee shall not have the
right to commence any such proceeding. Each of the parties hereto shall be
entitled to be represented in any proceeding relating to the matters covered by
this section in which the other party is involved, at its own cost and expense.
Each party hereto shall fully cooperate with the other in any such proceeding,
provided that it is reimbursed for its costs and expenses for doing so, not
including counsel fees, if any.
3
<PAGE>
4.5 Licensee agrees not to contest, directly or indirectly, Licensor's
rights or interest in and to the service marks, trade names, trade secrets,
methods, procedure and advertising techniques which are part of Licensor's
business. Licensee, moreover, will not contest, directly or indirectly,
Licensor's rights to use or license others to use such service marks, trade
names, trade secrets, methods, procedures and techniques outside the territory
reserved to Licensee. Licensee acknowledges that the recipes, products,
proprietary formulations, technology, know-how and operation of the Restaurant
is derived from information disclosed by Licensor to Licensee and that such
information is proprietary and confidential and constitutes a trade secret of
Licensor. Licensee shall take all action necessary to, and shall, at all times,
treat all such confidential information as confidential, and shall maintain
such information as secret, divulging the same only to such of its employees as
must have access to such confidential information in order to properly operate
the Restaurant. Upon termination hereof for any reason whatsoever all of
Licensee's rights to use such information shall cease.
ARTICLE V
---------
COMPLIANCE WITH SYSTEM
----------------------
5.1 Licensee understands and acknowledges that benefits to both parties
will be de rived from uniformity of quality and appearance among all licensees
which can be accomplished more effectively, in most cases, by the use of
standardized equipment, tables, fixtures, food, beverages, dishes, and supplies
(collectively "Material") which may or may not be purchased from common sources
of supply. Licensee shall only purchase Material which complies with the
specifications from time-to-time promulgated in writing by Licensor regarding
such Material. If Licensee wishes to purchase Material which does not conform to
then existing specifications, Licensor shall review Licensee's proposed change
of specifications and advise Licensee whether or not such changed specifications
are acceptable to it in its sole discretion. Any and all costs and expenses
incurred by Licensor in reviewing, analyzing and considering such changed
specifications shall be paid by Licensee.
5.2 Licensee agrees to diligently operate the Restaurant in strict
compliance with the System and to abide by all recommendations of Licensor
relating to, and changes in, said System.
ARTICLE VI
----------
COVENANTS OF LICENSEE
---------------------
6.1 Licensee further agrees as follows:
(a) To maintain a high moral standard and atmosphere at Licensee's
Restaurant; to train and supervise its employees in compliance with all local
and state health code and food preparation laws; to properly and in a sanitary
manner prepare all food and beverages and to serve the same in a wholesome,
appetizing and efficient manner; to maintain the Premises and the Restaurant in
a clean, safe and orderly manner; to provide efficient, courteous and high
quality
4
<PAGE>
service to the public, to the end that the Restaurant shall help to create and
build good will among the public for Max's Grille restaurants as a whole, and so
that Licensor, Licensee, and each member of said System shall be benefited, and
the public assured uniform, efficient, courteous, high quality service on a
standardized national basis.
(b) To advertise, sell or offer for sale only those items which are
sold by Licensor in its company-owned Restaurants or approved by Licensor in
writing prior to offering the same for sale.
(c) Not to carry on or conduct or permit others to carry on or
conduct any other business activity or operation from the Premises other than
the operation of the licensed business.
ARTICLE VII
-----------
ASSIGNMENT
----------
7.1 Licensee shall neither sell, assign, transfer or encumber this
Agreement or any right or interest therein or thereunder, or offer or permit any
such sale, assignment, transfer or encumbrance to occur by operation of law or
otherwise, without the prior written consent of Licensor in each instance. For
purposes hereof, the term "assignment" shall include a sale or transfer, whether
in a single transaction or in a series of transactions, of more than a fifty
percent ownership interest in Licensee or a transfer of control of the corporate
general partner of Licensee.
ARTICLE VIII
------------
TERMINATION
-----------
8.1 Upon termination of this Agreement, Licensee's right to use in any
manner the Name or any other of Licensor's marks used by Licensee (or insignia
or slogan used in connection therewith), or any confusingly similar trademark,
service mark, trade name or insignia shall terminate forthwith. Licensee shall
not thereafter directly or indirectly identify itself in any manner as a Max's
Grille or publicly identify itself as a former Max's Grille or use any of
Licensor's trade secrets, signs, symbols, devices, recipes, formulas or other
materials constituting part of the System.
8.2 Upon the termination of this Agreement, the Licensee shall
immediately discontinue the use of all service marks, trade names, signs,
structures, and forms of advertising indicative of Max's Grille, its symbols,
service marks or its menu items; and, so far as the Licensee may lawfully do so,
shall make or cause to be made such removals of or changes in signs, buildings
and structures as the Licensor shall reasonably direct so as to eliminate the
names "Max's Grille" from the Premises and to effectively distinguish the
Restaurant from its former appearance and from any other Max's Grille
restaurant.
5
<PAGE>
ARTICLE IX
----------
MISCELLANEOUS
-------------
9.1 Entire Agreement. The privileges herein granted to Licensee
----------------
contemplate the operation of a restaurant at the Premises and the rights herein
granted shall not be applied or extended, directly or indirectly, to any other
business or enterprise without the express consent in writing of Licensor. This
Agreement contains the entire agreement of the parties with respect to the
license of the Name, other service marks and System and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect. No failure of Licensor to
exercise any power given it hereunder or to insist upon strict compliance by
Licensee of any obligation hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of Licensor's right
to demand exact compliance with the terms hereof. Waiver by the Licensor of any
particular default by the Licensee shall not affect or impair the Licensor's
rights in respect of any subsequent default of the same or of a different
nature, nor shall any default or omission of the Licensor to exercise any rights
arising from such defaults affect or impair the Licensor's rights as to such
default or any subsequent default.
9.2 Force Majeure. Neither Licensor nor Licensee shall be liable to
-------------
perform any of its obligations under this Agreement if such failure to perform
is due to strikes, lockouts, stoppages, accidents, transportation delays, war,
government regulations or act of God or other cause beyond the reasonable
control of Licensor or Licensee and the happening of any such cause of delays
shall extend the time of performance by the time occasioned by any such cause of
delay.
9.3 Severability. If any covenant or other provision of this Agreement is
------------
invalid, or incapable of being enforced, by reason of any rule of law or public
policy, all other conditions and provisions of this Agreement shall,
nevertheless, remain in full force and effect, and no covenant or provision
shall be deemed dependent upon any other covenant or provision unless so
expressed herein.
9.4 Compliance with Laws. Licensee shall conduct its business and
--------------------
maintain the Restaurant in strict compliance with all applicable laws,
ordinances, regulations, and other requirements of any federal, state, county,
municipal, or other consent for the operation of its business.
9.5 Amendments. Neither this Agreement nor any provision hereof may be
----------
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which endorsement of the change, waiver,
discharge or termination is sought.
9.6 Binding Effect. This Agreement shall be binding upon the parties,
--------------
their permitted successors and assigns.
9.7 Governing Law. This License Agreement shall be governed by the laws
-------------
of the State of Florida.
6
<PAGE>
9.8 Litigation. If any party hereto engages in litigation against the
----------
other party hereto, either as plaintiff or as defendant, in order to enforce or
defend any of its rights under this Agree ment, and such litigation results in
a final judgment in favor of such party ("Prevailing Party"), then the party
against whom said final judgment is obtained shall reimburse the Prevailing
Party for all direct, indirect or incidental expenses incurred by the
Prevailing Party in so enforcing or defending its rights hereunder, including,
but not limited to, all attorneys' fees and court costs and other expenses
incurred throughout all negotiations, trials or appeals undertaken in order to
enforce the Prevailing Party's rights hereunder.
9.9 Notices. Any notice required or permitted to be delivered to either
-------
party under the provisions of this Agreement shall be deemed delivered, whether
actually received or not, when deposited in a United States Postal Service
Depository, postage prepaid, registered or certified, return receipt requested,
and addressed to the party at the address set forth below, or such other address
as shall be specified by written notice delivered to the other party:
If to Licensor: Unique Restaurant Concepts, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
If to Licensee: Max's Beach Grill, Ltd.
c/o URC, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
with a copy to: Sforza Enterprises, Inc.
330 Clematis Street, Suite 211
West Palm Beach, Florida 33401
and an additional
copy to: Ralph V. De Martino, Esq.
De Martino, Finkelstein, Rosen & Virga
1818 N Street, Suite 400
Washington, DC 20036
All notices, demands and requests shall be effective upon being
deposited in the United States mail. However, the time period in which a
response to any such notice, demand or request must be given shall commence to
run from the date of receipt on the return receipt of the notice, demand or
request by the addressee thereof or the date of actual receipt in the case of
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delivery by other means. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given shall be
deemed to be receipt of the notice, demand or request when sent.
9.10 Counterparts. This Agreement and any amendments hereto may be
------------
executed in counterparts, each of which shall be deemed an original, and such
counterparts shall constitute but one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the day and year first above written.
LICENSOR:
UNIQUE RESTAURANT CONCEPTS, INC., a
Florida corporation
By: /s/ Dennis Max, President
-------------------------------------
Dennis Max, President
LICENSEE:
MAX'S BEACH GRILL, LTD., a Florida
limited partnership
By: MAX'S BEACH GRILL, INC., a Florida
corporation, its General Partner
By: /s/ Dennis Max
-------------------------------------
Title: President
----------------------------------
9
<PAGE>
Exhibit 10.9
MANAGEMENT AGREEMENT
--------------------
THIS MANAGEMENT AGREEMENT (the "Agreement") is made as of 12/30, 1997, by
and among MAX'S BEACH GRILL, LTD., a Florida limited partnership ("Beach
Place"), UNIQUE BRICKELL, LTD., a Florida limited partnership ("Brickell"),
UNIQUE WESTON, LTD. ("Weston") and UNIQUE TBA, LTD., a Florida limited
partnership ("TBA") (collectively, the "Companies"), and UNIQUE RESTAURANT
CONCEPTS, INC., a Florida corporation ("Management Company").
WITNESSETH:
WHEREAS, Sforza Enterprises, Inc. ("Sforza") has previously entered into a
Management and Consulting Agreement with Management Company for the management
of restaurants owned by Sforza and known as "Sforza Ristorante" and "My Martini
Grille," as well as a restaurant yet to be opened which will be known as
"Sushi Rok;" and
WHEREAS, Beach Place owns the restaurant known as "Max's Beach Grill", and
each of Brickell, Weston and TBA will own a restaurant to be known as "Max's
Grill"(all of the restaurants described in this recital are referred to herein
individually as a "Restaurant" and collectively as the "Restaurants").
WHEREAS, Sforza intends to use a portion of the proceeds realized from that
certain public offering of certain shares of its Common Stock and warrants
exercisable into Common Stock to finance and reimburse the construction,
development and opening of the restaurants owned by Beach Place, Brickell,
Weston and TBA, in exchange for fifty-one percent (51%) of the equity interests
in Brickell, Weston and TBA; and
WHEREAS, Management Company is in the business of owning, operating and
managing restaurant facilities and offering consultation services with respect
thereto; and
WHEREAS, each of the Companies desires to engage the Management Company to
provide management and accounting services to the Restaurant owned by it and
Management Company desires to provide such management services, all on the terms
and conditions set forth herein; and
WHEREAS, the parties hereto desire to memorialize the terms of their
agreement pursuant to which Management Company will manage and operate the
Restaurants;
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NOW, THEREFORE, in consideration of the mutual covenants and promises
herein set forth, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, it is mutually agreed as follows:
OPERATIVE PROVISIONS:
1. Engagement of Management Company.
--------------------------------
Each of the Companies hereby engages Management Company, on an
exclusive basis, to manage and operate the Restaurant owned by it and Management
Company hereby agrees to manage and operate each of the Restaurants, all subject
to the terms and conditions hereof.
2. Effective Date and Termination.
------------------------------
This Agreement shall become effective on the date hereof and shall
continue until such time as either Management Company or the Companies give
written notice to the other of its desire to terminate this Agreement, in which
event this Agreement shall terminate ninety (90) days thereafter ("Termination
Date"); provided, however, that this Agreement may be terminated immediately by
-------- -------
the Companies, effective upon delivery of written notice to the Management
Company setting forth the basis of such termination under the following
circumstances.
(a) any misappropriation of funds or property of any of the Companies
by the Management Company; or
(b) the engagement in conduct generally offensive to the community in
which services are being performed hereunder, which conduct would tend to place
either the Companies or the Management Company in disrepute; or
(c) the Management Company's failure or refusal to carry out is duties
and obligations set forth in this Agreement; or
(d) the Management Company's insolvency, business failure,
dissolution, or assignment for the benefit of creditors, the filing by the
Management Company of any petition in bankruptcy or for reorganization for
receivership or to effect a plan or arrangement with creditors, or any such
filing is made against Management Company and is not vacated within forty-five
(45) days of commencement.
This Agreement may be terminated immediately by the Management Company for non-
payment of the management fee, as provided in Section 8 hereof.
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3. Management Company's Responsibilities.
-------------------------------------
Management Company shall have exclusive control over all day-to-day
operations of the Restaurants and shall, diligently and to the best of its
ability, and subject to the terms and conditions set forth herein:
(a) operate, direct, manage, supervise, and superintend the
Restaurants in accordance with all applicable laws and regulations in keeping
with the standards and practices of first-class restaurants and currently
operated "Max's Grill" restaurants;
(b) establish the method of operations to be used in the Restaurants
and be responsible for obtaining all services required by the Restaurants;
(c) purchase and arrange for delivery to the Restaurants of food,
beverages, and supplies as may be required to properly operate and maintain the
Restaurants;
(d) select, hire, train, supervise, set compensation and have the
right to terminate all employees necessary for the efficient operation of the
Restaurants, all such employees with respect to a particular Restaurant to be
employees of the legal entity which directly owns that Restaurant;
(e) be responsible for all promotion and advertising of the
Restaurants;
(f) establish and implement an equipment preventative maintenance
program and make, or cause to be made, repairs to and replacements of equipment
as may be necessary in the opinion of Management Company for proper operation
and maintenance of the Restaurants;
(g) observe laws, rules and regulations imposed by any governmental
agency including, but not limited to, any liquor and/or health authorities
including the obtaining of such licenses, permits or other governmental
approvals as are necessary to enable alcoholic beverages to be served at the
Restaurants and establishing occupational health and safety programs;
(h) deliver to each Company, on or before thirty (30) days prior to
the next calendar year, and, from time to time as it deems appropriate, modify a
detailed annual budget for its Restaurant (each, an "Annual Budget"), for
approval by the Company, which budget shall include projected revenues,
operating expenses, and capital expenses for the year and the amount of cash
reserves to be established or utilized during that year. Each Annual Budget, or
modification thereof, shall be submitted, in writing, to each person serving
as a member of the Board of Directors of the appropriate corporate general
partner of each Company, for the Company's approval. Each Company's approval
or disapproval of the Annual Budgets, or modifications thereto, shall not be
unreasonably withheld or delayed;
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(i) take such steps as it deems necessary to maintain and repair the
Restaurants, establish appropriate preventative maintenance programs and to
cure maintenance problems at the Restaurants. Management Company shall have
the right, without the consent of SEI or the Company that owns the applicable
Restaurant, to make any and all expenditures in the ordinary course for the
foregoing maintenance purposes regardless of amount, provided that such
expenditure is within the parameters of the Annual Budget. Any capital
expenditure or capitalized lease obligation (for any one capital improvement)
which exceeds the amount provided for in the Annual Budget shall require the
consent of the Company that is the owner of the applicable Restaurant, which
consent shall not be unreasonably withheld or delayed;
(j) obtain all necessary policies of insurance desirable or necessary
for the operation of the Restaurants, all naming as insureds or additional
insured, the Company that is the owner of the applicable Restaurant, Management
Company and such other parties as may be required by any mortgages or leases
affecting the Restaurants, as their respective interests may appear, and in
connection therewith handle all claims arising under any such policies; and
(k) designate a General Manager of each Restaurant, who shall be a
salaried employee of the Company that is the owner of the Restaurant and whose
salary shall be established by the Management Company, subject to the approval
of such Company, which approval shall not be unreasonably withheld.
(l) manage, direct and implement all aspects of the financial,
payroll, book keeping and other accounting functions associated with the
operation of the Restaurants.
(m) maintain the books and records of each of its Restaurant,
including, with out limitation, an accurate record of all Gross Revenues and
Operating Expenses (as such terms are hereinafter defined) of its Restaurant, in
accordance with generally accepted principles of accounting (being the
accounting principles and procedures prescribed by the Uniform System of
Accounts for Restaurants) applied on a consistent basis; and
(n) provide quarterly financial reports to each of the Companies.
The parties recognize that the Management Company's obligation to
per form the foregoing services with respect to a Restaurant that is not open
for business on the date hereof shall arise only on the date that such
Restaurant opens to the public. In connection with all the foregoing duties,
Management Company is expressly authorized to retain attorneys, consultants,
accountants, and other professionals as may be reasonably required, at
competitive rates, the cost and expense of whom are to be paid as an expense of
the applicable Restaurant from the related Management Account (hereinafter
defined). The Management Company shall, in good faith, seek to adhere to the
Annual Budget and shall not incur liability for Operating Expenses that exceed
by
4
<PAGE>
more than twenty percent (20%) that amount provided in the Annual Budget with
out prior written approval of the Company.
4. Excluded Responsibilities.
-------------------------
Except as hereinafter expressly provided in the last sentence of this
subsection and Management Company's indemnification obligations under Section 10
hereof, Management Company shall not be obligated to make any advance to or for
the account of the Companies or to pay any amount with respect to the
management and operation of the Restaurants and the performance of its
responsibilities hereunder except out of funds provided by the Companies in
accordance with this Agreement, nor shall Management Company be obliged to incur
any liability or obligation unless the Companies shall furnish it with the
necessary funds for the discharge thereof. If the Management Company shall
voluntarily advance for the account of the Companies any amount for the
payment of any proper obligation or necessary expense authorized here under and
in an approved Annual Budget to be paid in connection with the management and
operation of the Restaurants, the entity for whose benefit the advance was made
shall reimburse the Management Company therefor with reasonable promptness after
demand.
5. Affirmative Covenants of Management Company.
-------------------------------------------
Except as specifically provided for in the Annual Budget, Management
Company agrees that it shall not enter into any contract or commitment binding
the Companies or relating to the Restaurants without the prior written consent
of the Company upon which the contract or commitment is to be binding, unless it
does not obligate any such party to an expenditure in excess of Five Thousand
Dollars ($5,000) (Ten Thousand Dollars ($10,000) in the event of any emergency
repairs) and can be terminated by such party on not more than thirty (30) days'
notice and without premium or penalty.
6. Companies' Responsibilities.
---------------------------
Each Company agrees to:
(a) recognize that Management Company has the exclusive right to
operate and manage the Restaurants under the terms and conditions set forth in
this Agreement;
(b) complete, or cause to be completed, the construction, fixturing
and furnishing of its Restaurant, including items of decor and signage and
provide all other equipment, pots, pans, utensils, dishes, glasses, flatware and
other items required for Management Company's operation of the Restaurant;
5
<PAGE>
(c) provide, or cause to be provided, the working capital necessary
to operate the Restaurant in accordance with their respective Annual Budgets;
(d) cooperate and execute, or cause to be executed, such documents as
may be required to obtain such licenses, permits or any other papers including,
but not limited to, liquor licenses, health permits. building permits and place
of assembly permits as may be required to operate its Restaurant;
7. Management Accounts and Reporting.
---------------------------------
Management Company shall, with respect to all Restaurants:
(a) deposit all revenues and income of any kind received, directly or
indirectly, from the operation of the applicable Restaurant, including
without limitation, all Gross Revenue, into one or more checking accounts
established for such Restaurant (collectively, with respect to each
Restaurant, the "Management Account") at such bank(s) as may from time to
time be designated by Management Company on notice to the Company. Each
Management Account shall be separate from any other account owned or
maintained by Management Company for another restaurant or for Management
Company directly and shall be maintained in a federally insured bank.
Management Company's designees shall be the sole signatories of each
Management Account, but Management Company shall have no ownership
interest in any Management Account or the funds deposited therein,
Management Company's interest being only that of agent for the legal entity
owning the applicable Restaurant. All collected tax (such as sales,
payroll, gross receipts, etc.) with respect to a Restaurant shall be
deposited in the Management Account for that Restaurant until remitted to
the appropriate taxing authority;
(b) from the applicable Management Account, pay for all expenses and
costs of the operation of the related Restaurant (collectively, with
respect to each Restaurant, the "Operating Expenses") which Operating
Expenses shall include, without limitation, the categories of expenses
described in Section 8 hereof, and all costs for food, beverages, supplies,
employee compensation (and related payroll taxes, employee health insurance
and other benefits), insurance, rent, equipment leases, vendors' invoices,
all purchases, utilities, extermination, maintenance costs, taxes,
advertising and promotion expenses, and other expenses and costs as may be
required for the operation and maintenance of the related Restaurant; and
(c) within ten (10) days after the end of each "Fiscal Quarter"
(hereinafter defined) of receipt of a Working Requirements Statement,
distribute to the Company that owns the Restaurant from the Management
Account established for such Restaurant the funds, if any, that are in
excess of the Working Requirements (hereinafter defined) for such
6
<PAGE>
Restaurant. The term "Working Requirements," as used in this Agreement with
respect to a Restaurant, shall mean an amount which shall remain at the end
of each Fiscal Quarter in the applicable Management Account for the
operation of the related Restaurant and which amount shall be equal to one
percent (1%) of the budgeted annual Gross Revenue for that Restaurant of
the Operating Expenses set forth in the current Annual Budget for that
Restaurant or, if provided in the Annual Budget, the specific projected
case requirements of the Restaurant for the succeeding three months. In the
event the Working Requirements Statement of a Restaurant for a Fiscal
Quarter shows that the balance of the applicable Management Account as of
the date of such Working Requirements Statement was less than the amount
of the Working Requirements for that Restaurant (such difference referred
to herein as the "Working Requirements Deficiency"), the Company owning
that Restaurant agrees to promptly deliver to Management Company for
deposit into the applicable Management Account, an amount equal to the
Working Requirements Deficiency for that Restaurant. If the Company shall
default in funding any such Working Requirements Deficiency for twenty (20)
days after written demand therefor, the Company shall be in default
hereunder and, in addition to any other remedies it may have at law or
equity, Management Company may immediately upon written notice of
termination given at any time thereafter (provided the Company shall not
have cured such default prior to the giving of such notice) terminate this
Agreement.
For purposes of this Agreement, the term "Fiscal Quarter" shall mean
either each three month period or each thirteen week period (consisting of two
four-week periods and one five week period) after opening of each Restaurant, as
determined by SEI with respect to each Restaurant and as adjusted by SEI to most
closely follow calendar quarters.
8. Management Fee.
--------------
For all services to be rendered by Management Company with respect to
the Restaurants, Management Company shall be paid a management fee equal to
1.5% of the Gross Revenue of each Restaurant for each month, or portion thereof,
during the term of this Agreement (collectively, the "Management Fee"). The
term "Gross Revenue," for purposes of this Agreement, shall mean all revenues
actually received by Management Company from the operation of the Restaurants
from whatever source including, without limitation, all departments, services
and operations, off-premises catering, sales by sub-tenants or concessionaires,
telephone revenue (less service and toll charges payable to third party service
providers), valet parking and sales and services in, about and originating from
the Restaurant (excluding only: interest income; proceeds from the sale of used
equipment, furniture and other capital assets; loan proceeds, capital
contributions, condemnation proceeds, insurance proceeds and such other credits,
allowances and refunds as are customary in the restaurant industry, service
charges paid by customers to the extent paid to employees of the Restaurants as
tips and gratuities, the amount of any sales, user excise taxes, taxes on rent
and other similar taxes). The Management Fee shall cover reimbursement to
the
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<PAGE>
Management Company for the supervisory services provided by Dennis Max, Burt
Rapoport, Dan Catalfumo and Patti Max and for the costs of the Management
Company's office rent, furnishings, fixtures and equipment. Each Company
recognizes and agrees that in addition to the Management Fee, it shall reimburse
the Management Company an amount (not to exceed 2.5% of the preceding month's
Gross Revenue) for all staff employed at its Restaurant's premises, including
managers and assistant managers, all expenses directly incurred for the benefit
of the Restaurant and a reasonable allocation of all expenses commonly incurred
by the Management Company for the benefit of some or all restaurants under its
management, which expenses include, without limitation, bookkeeping and
accounting personnel, marketing and promotional expenses, area managers,
secretarial support, research and development expenditures, travel expense,
supplies and other expenses that Management Company has determined can be more
efficiently provided from the corporate offices than through each individual
restaurant. Other than as provided in this Section 8, no fees shall be payable
to the Management Company.
The Management Fee and reimbursed expenses shall be paid monthly, in
arrears, to Management Company within ten (10) days after the end of each month
during the term hereof. Such payment shall be made by Management Company
withdrawing the portion of the Management Fee generated by each Restaurant from
the Management Account established for that Restaurant.
9. Damage to and Destruction to the Restaurants.
--------------------------------------------
If any Restaurant is destroyed or damaged during the term of this
Agreement by fire or other casualty (and for these purposes, a total or partial
condemnation shall be deemed a destruction) such that the Restaurant premises
are not restored, then the parties' obligations here under with respect to that
Restaurant shall terminate, except that: (i) the Company owning that Restaurant
shall assume or cause to be assumed, from Management Company any contracts and
licenses relating to that Restaurant which Management Company may have entered
into in its name in furtherance of its duties hereunder in accordance with this
Agreement; (ii) such Company shall pay, or cause to be paid, to Management
Company the portion of any earned and unpaid Management Fee generated by that
Restaurant; and (iii) such Company shall pay for the cost of all services,
material, supplies and other liabilities, if any, arising under this Agreement
which may have been charged to, paid or incurred by Management Company with
respect to that Restaurant and not reimbursed under this Agreement at the time
of termination, if such services, materials, supplies or other liabilities have
been ordered or incurred in accordance with the provisions of this Agreement.
10. Examination of Books and Records.
--------------------------------
Notwithstanding anything to the contrary contained in this Agreement,
Management Company and/or any shareholder, partner or member (as the case may
be) of Management Company shall have the right to examine all books and records
of the Companies with respect to the Restaurants, at any time upon three (3)
business days' notice to such party. Management Company
8
<PAGE>
may employ an agent and/or accountant at its expense for such purpose and SEI,
the Companies and their respective principals, employees, agents and accountants
shall fully cooperate with Management Company and/or its agent and/or
accountant and promptly make available to them all of the books and records with
respect to the Restaurants as well as all reports, statements, agreements,
projections and forms with respect to the Restaurants. Likewise, and not
withstanding anything to the contrary in this Agreement, the Companies, and/or
any partner of the Companies, shall have the right to examine all books and
records of the Management Company with respect to the Restaurants, at any time,
upon three (3) business days' notice to the Management Company. The Companies
may employ an agent and/or accountant at their expense for such purpose and the
Management Company and its principals, employees, agents and accountants shall
fully cooperate with the Companies and/or their respective agents and
accountants shall fully cooperate with the Companies and/or their respective
agents and/or accountants, and promptly make available to them all of the books
and records with respect the Restaurants, as well as all reports, statements,
agreements, projections and forms with respect to the Restaurants.
11. Post-Termination.
----------------
Upon termination of this Agreement, the Company that owns each
Restaurant shall, as to that Restaurant: (i) assume, or cause to be assumed,
from Management Company any contracts and licenses which Management Company may
have entered into in its name in furtherance of its duties hereunder in
accordance with this Agreement; (ii) pay, or cause to be paid, to Management
Company any earned and unpaid Management Fee; and (iii) pay for the cost of all
services, material, supplies and other liabilities, if any, arising under this
Agreement which may have been charged to, paid or incurred by Management Company
and not reimbursed under this Agreement at the time of termination, if such
services, materials, supplies or other liabilities have been ordered or were
incurred in accordance with the provisions of this Agreement.
12. Notice.
------
All notices, requests, demands or other communications desired to
require to be given under any of the provisions hereof, shall be in writing and
shall be mailed by registered or certified mail, return receipt requested, or
overnight delivery addressed as follows:
If to Brickell, Weston:
Beach Place or TBA: c/o Unique Restaurant Concepts, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
With a copy to: Ralph V. DeMartino, Esq.
DeMartino, Finkelstein, Rosen & Virga
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<PAGE>
1818 N Street, N.W., Suite 400
Washington, D.C. 20036
If to Management
Company: Unique Restaurant Concepts, Inc.
490 East Palmetto Park Road, Suite 110
Boca Raton, Florida 33432
Attention: Dennis Max, President
With a copy to: Michael H. Krul, Esq.
Ruden, McClosky, Smith, Schuster & Russell,
P.A.
200 East Broward Boulevard, Suite 1500
Fort Lauderdale, Florida, 33302
Notices shall be deemed given on the date of their receipt.
13. Assignment.
----------
Management Company shall not have the right to assign this Agreement
without the written consent of the Companies, except as otherwise provided for
herein. Notwithstanding anything to the contrary contained herein, Management
Company may assign this Agreement to any affiliate of Management Company without
the consent of SEI or the Companies, provided, however, that prior to such
assignment, Management Company shall notify SEI of the proposed assignment,
Dennis Max and/or Burt Rapoport shall be directly involved in providing services
on behalf of the assignee, and the assignee shall assume, in writing, the
performance of all obligations of Management Company under this Agreement. As
used in this Agreement, the term "Affiliate" shall mean such person, firm,
corporation or entity that directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
Management Company and the term "control" means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of such person, corporation or entity, whether through the ownership
of voting securities, by contract, or otherwise.
14. General Matters.
---------------
Each of the Companies and Management Company:
(a) agree that they have full power, authority and legal right to
enter into, perform and observe the provisions of this Agreement and that this
Agreement is the valid and binding obligation of such party, enforceable in
accordance with its terms and does not constitute a breach of or default under
any other agreement to which it is a party or by which any of its assets are
bound or subject;
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<PAGE>
(b) shall not be construed by execution of this Agreement as joint
venturers or partners of each other and neither shall have the power to bind or
obligate the other except as set forth in this Agreement. This Agreement shall
not be construed to be a third party beneficiary contract;
(c) agree to execute all contracts, agreements and documents and to
take all actions necessary to comply with the provisions of this Agreement and
the intent hereof;
(d) agree that interpretation, validity and performance of this
Agreement shall be governed by the laws of the State of Florida; any actions for
enforcing and interpreting any portion of this Agreement may be brought in any
court having jurisdiction thereof and, in the event of any litigation between
the parties arising hereunder, the prevailing party in such litigation shall
recover from the other parties its reasonable costs and expenses of such
litigation, including attorney's and paralegal's fees for all negotiations,
litigation, trial and appeals. If any of the terms and provisions hereof shall
be held invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect any of the other terms and provisions shall
remain valid and enforceable to the fullest extent permitted by law;
(e) agree that, with respect to any obligation to be performed by a
party during the term of this Agreement (other than for the payment of any sum
of money payable hereunder), such party shall not be liable for failure to do so
when prevented by any force majeure cause beyond the reasonable control of such
-------------
party such as strikes, lockouts, breakdowns, accidents, orders, regulations of
or by any governmental or quasi-governmental authority, failure of supply or
inability, after exercise of reasonable diligence, to obtain supplies or
employees necessary to perform such obligation, or other public emergency. The
time within which such obligation shall be performed shall be extended for a
period of time equivalent to the delay from such case;
(f) agree that in the event that either party shall be required to
provide notice, information or prepare or accomplish any filing in order to
enable it or the other party to have and enjoy the rights and benefits provided
for under this Agreement, the parties shall cooperate with each other but at the
expense of the party required to make such filing or provide such information,
in order to accomplish such filing or other act as may be necessary or
appropriate to establish or preserve the rights granted hereunder;
(g) agree that the provisions of Sections 9, 10 and 11 hereof shall
survive the termination of this Agreement;
(h) agree that any change to or modification of this Agreement must be
in writing signed by all parties hereto; and
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(i) agreed that this Agreement and any amendments may be executed in
ne or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
MAX'S BEACH GRILL, LTD.
By: Max's Beach Grill, Inc., its General
Partner
By: /s/ Dennis Max
----------------------------------
Its: President
--------------------------------
UNIQUE BRICKELL, LTD.
By: Unique Brickell, Inc., its General
Partner
By: /s/ Dennis Max
----------------------------------
Its: President
--------------------------------
UNIQUE WESTON, LTD.
By: Unique Weston, Inc., its General Partner
By: /s/ Dennis Max
----------------------------------
Its: President
--------------------------------
UNIQUE TBA, LTD.
By: Unique TBA, Inc., its General Partner
By: /s/ Dennis Max
----------------------------------
Its: President
--------------------------------
UNIQUE RESTAURANT CONCEPTS, INC.
By: Unique Restaurant Concepts, Inc.,
its General Partner
By: /s/ Dennis Max
----------------------------------
Its: President
--------------------------------
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Exhibit 99.1
NEWS FOR RELEASE: January 8, 1998
Contact: Dennis Max, President
Gerald J. Visconti, Vice President & CFO
(561) 392-0611
SFORZA ENTERPRISES, INC. ANNOUNCES ACQUISITION OF
MAJORITY INTERESTS IN FOUR MAX'S GRILLE RESTAURANTS;
ALSO ANNOUNCES APPOINTMENT OF NEW PRESIDENT
WEST PALM BEACH, FLORIDA - January 8, 1998 - Sforza Enterprises, Inc.
(OTCBB:SFZAU) today announced the successful completion of the acquisition of
majority interests in four entities that own and operate Max's Grille style
restaurants (or will own and operate Max's Grille restaurants, in the case of
restaurants yet to be opened). The acquisitions are those contemplated at the
time of the Company's recent public offering and previously identified in the
prospectus.
Out of the four acquired restaurants, two restaurants will be located in the
Beach Place and Las Olas Riverfront developments in Fort Lauderdale, Florida;
one will be located in Weston, Florida; and the final restaurant will be
located in a yet-to-be-determined location. Max's Beach Place opened in May
1997. The Las Olas Riverfront and Weston restaurants are expected to open in
early 1998.
The Company also announced the appointment of Dennis Max as its President. Mr.
Max, who has over 25 years in the restaurant business, is a part-owner of Unique
Restaurant Concepts, Inc. This company owns and licenses the Max's Grille
restaurant concept, and manages the Max's Grille style restaurants, as well as
the two restaurants wholly owned by Sforza, My Martini Grille and Sforza
Ristorante.
"We are pleased to have consummated the acquisition of the majority interests in
the four Max's Grille restaurants," said Gerald J. Visconti, Vice President and
Chief Financial Officer of Sforza Enterprises, Inc. "The completion of these
transactions puts the Company squarely on track with its business plan. We are
also fortunate in having Dennis Max join us as President. His many years of
experience will guide Sforza in the extremely competitive restaurant industry."
Sforza Enterprises, Inc. is a publicly traded company that owns two operating
restaurants, My Martini Grille, a full service, upscale restaurant, with a
sophisticated, early twentieth century American ambiance, and Sforza Ristorante,
a mid-priced casual restaurant with a Northern Italian cuisine, both located in
West Palm Beach, Florida. Additionally, the Company owns the majority interests
in the Max's Grille restaurants identified in this press release.
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This press release contains forward-looking statements. Forward-looking
statements are inherently subject to risks and uncertainties, some of which
cannot be predicted or quantified. Future events and actual results could differ
materially from those set forth in, contemplated by or underlying the
forward-looking statements. The risks and uncertainties to which forward-looking
statements are subject include, but are not limited to, the effect of government
regulation, construction delay risks, competition and other risks detailed in
the Company's recent initial public offering prospectus filed with the
Securities and Exchange Commission.
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