Management Agreement - MAT operating Corp. and TAM Restaurant Holding Corp. Inc.
MANAGEMENT AGREEMENT
AGREEMENT made as of the 1st day of October, 1996, between MAT
Operating Corp., a New York Corporation, (the "Owner"), with offices at 1163
Forest Avenue, Staten Island, NY 10310, and TAM RESTAURANT HOLDING CORP., INC.,
a Delaware corporation (the "Manager"), with offices at 1163 Forest Avenue,
Staten Island, New York, 10310.
W I T N E S S E T H:
WHEREAS, the Owner is the owner of certain concession business assigned
to it by TAM Restaurant Group, Inc. known as "Central Park Zoo", located at
Fifth Avenue and 64th Street (inside Central Park) and "Staten Island Zoo",
located at 614 Broadway, Staten Island, New York; and a Special Events business
which handles various Special Events at various locations and at various times.
WHEREAS, the Owner desires to retain the Manager, and the Manager
desires to be so retained, on the terms and conditions which are set forth
herein.
NOW THEREFORE, in consideration of the foregoing and the mutual
convenants and promises which are set forth herein, the parties hereby agree as
follows:
1. DESIGNATION OF MANAGER AS AGENT.
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A. The Manager is hereby designated as the agent and
representative of the Owner for the purpose of managing the Restaurant for the
account of the Owner.
B. (i) This Agreement shall remain in effect for a period
beginning on the date hereof and continuing for ten (10) years therefrom through
and including September 30, 2006, unless terminated earlier as provided below.
The period for which this Agreement remains in effect is referred to herein as
the "Term". The period of one (1) year beginning on the date hereof is referred
to as a "Term Year", and each successive period of one (1) year during the Term
(and any final period of one (1) year or shorter during the Term) shall also be
referred to as a "Term Year".
(ii) This Agreement may be terminated at any time
by the Owner for "cause". For purposes of this Agreement, "cause" shall be any
continuing or repeated failure by the Manager to perform its duties and
responsibilities set forth in this Agreement.
2. DUTIES OF MANAGER.
A. Subject to the other provisions of this Agreement, the
duties and responsibilities of the Manager in connection with the management of
the Concessions are to act on behalf of the Owner as follows:
(i) Collection of Revenue. The Manager shall
collect all revenues from the operations of the Concessions.
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(ii) Expenses. The Manager shall, from gross
revenues collected from the Concessions:
(a) pay all operating expenses (including
advertising and promotional expenses) and such other expenses of
the Concessions; and
(b) pay to any lenders designated by the
Owner all sums that may become due on loans affecting the Concessions and the
Owner.
(iii) Taxes. The Manager shall pay all taxes
levied and assessed against the Concessions prior to delinquency. The Manager
shall withhold from gross revenues an amount equal to the estimated annual taxes
on the Owner in connection with the Concessions, and the Manager shall pay such
taxes from such withheld amounts.
(iv) Maintenance, Upkeep and Repairs. The
Manager shall do everything reasonably necessary for the proper maintenance,
upkeep and repair of the Concessions, except to the extent that such items are
the responsibility of the person that owns the real property where the
Concession is located, in accordance with the lease or license for the
Concession premises. The Manager shall also cause all improvements, decorations
and alterations to the Concession as may be required in its reasonable
discretion, subject to the requirements of such lease/license.
(v) Employees The Manager shall have authority to
hire, supervise and terminate on behalf of the Owner all independent contractors
and employees, if any, reasonably
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required in the operation of the Concession, but all such employees shall be
employees of the Owner and not employees of the Manager. Where applicable, the
Manager shall prepare for the Owner payroll tax returns and shall make payments
of such taxes to appropriate agencies out of gross revenues from the Concession.
(vi) Legal Assistance. Where legal assistance is
needed for matters involving the Concession, such action shall be taken through
counsel designated or approved by the Owner. The expenses for such counsel shall
be borne by the Owner.
(vii) Records. The Manager shall maintain
accurate records of all moneys received and disbursed in connection with its
management of the Concession, and such records shall be open for inspection by
the Owner at all times during regular business hours. The Manager shall also
render to the Owner a monthly statement showing all receipts and disbursements,
relating to the Concession.
(viii) Expenses of Manager. All of the following
expenses are part of the Manager's fee and are the sole expense of the Manager:
payroll processing fees, messenger service, money transport and change fees,
health plan and benefit plan maintenance fees, all operating expenses not
directly incurred at the unit level.
(ix) Payment of Owner. After the Manager deducts
all authorized expenses relating to the operation and management of the
Concession (including managers fee) from the funds collected for the account of
the Owner, as well as all reserves
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set by the Owner for working capital and capital expenditures, the Manager shall
disburse any remaining funds as agreed between the manager and the Owner.
(x) Insurance. Upon the execution of this
Agreement, the Manager will review existing insurance coverage on the Concession
with its insurance broker to determine adequacy of coverage, and may place, on
behalf of the Owner and at the Owner's expense, such coverage as the Manager and
the Owner deem appropriate.
(xi) Compliance with Laws. The Manager shall
manage the Concession in full compliance with the requirements of
all applicable laws.
B. The parties acknowledge and agree that the services to be
provided by the manager will consist of services provided at the Concession
itself, as well as services to be provided at the offices of the Manager. The
compensation to be paid to the Manager as provided below will be the entire
payment to the Manager in connection with such services, and no additional
payment or amount will be charged by the Manager for any services or work which
may be performed by employees or other personnel of the Manager in connection
with the Manager's performance of its obligations hereunder.
3. RIGHTS OF CERTAIN PERSONS TO PARTICIPATE IN DECISIONS .
Notwithstanding anything to the contrary which may be
contained in this Agreement, the parties acknowledge and agree as follows in
connection with the Manager's duties hereunder:
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A. All decisions of the Manager will be subject to any other
policies (if any) which may be set by the Owner and communicated to the Manager.
B. The following actions or steps shall be subject to the
prior review and approval of the Owner:
(i) Any change in the name of the Concession or
any proposed new use of such name in any manner.
(ii) Preparation of an annual operating budget,
capital budget or business plan for the Concession.
(iii) All advertising and promotional expenses for
the Concession.
4. COMPENSATION.
As compensation for its services to be performed pursuant to
this Agreement, the Owner shall pay to the Manager a fee equivalent to five (5%)
percent of the annual gross sales less sales tax attributable. The amounts shall
be payable monthly based on revenues for each month.
5. INDEMNIFICATION OF MANAGER.
A. Except for the willful misconduct, recklessness or
negligence of the Manager, the Owner agrees to indemnify the Manager against all
claims from or connected with the management of the Concession by the Manager or
the performance or exercise of any of the duties, obligations or powers herein
or hereafter granted to the Manager, provided that the Manager gives the Owner
prompt written notice of each such claim, permits the Owner to
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contest such claim and cooperates with the Owner in any such contesting of the
claim.
B. The Owner agrees to carry at all times during the Term
comprehensive general liability insurance against any loss, liability or damage
on, about or relating to the Leased or Licensed Premises, to such limits as
Landlord may reasonably, from time to time, require, provided that such
insurance shall have minimum limits of One Million ($1,000,000.00) Dollars for
death or injuries to one person and not less than Three Million ($3,000,000.00)
Dollars for death or injuries to two or more persons in one occurrence, and not
less than Twenty Thousand Dollars ($20,000.00) for damage to property. All such
bodily injury, property damage and personal injury, property insurance, and any
other insurance coverage carried by the Owner on the Restaurant shall be
extended to insure and indemnify the Manager as well as the Owner, by the
appropriate endorsement of all policies evidencing such insurance, to name the
Manager as an additional insured.
6. DELIVERY UPON TERMINATION.
Upon termination of this Agreement, the parties shall account
to each other with respect to all uncompleted business hereunder, and the
Manager shall promptly deliver to the Owner all leases, books, records and other
documents and instruments relating to the Concessions and the Owner that may be
in the possession or custody of the manager.
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7. MISCELLANEOUS.
A. Any disagreement, dispute, controversy or claim arising out
of or relating to this contract or the breach thereof, shall be settled by
arbitration in accordance with the Rules of the American Arbitration
Association. Judgment upon the award rendered by the Arbitrator(s) may be
entered in any court having jurisdiction thereof.
B. This Agreement contains the entire agreement of the parties
concerning the subject matter hereof, and supersedes any and all prior
agreements among the parties hereto concerning the subject matter hereof, which
prior agreements, if any, are hereby canceled. This Agreement may not be
changed, modified, amended, discharged, abandoned or terminated orally, but only
by an agreement in writing, signed by the parties hereto.
C. If any of the provisions of this Agreement is held invalid,
such invalidity shall not affect the other provisions hereof that can be given
effect without the invalid provision, and to this end the provisions of this
Agreement are intended to be and shall be deemed severable.
D. Any and all notices, requests, demands or other
communications hereunder shall be in writing and shall be deemed given if
delivered personally, sent via facsimile or overnight courier, or sent by
certified or registered mail, return receipt requested, to the parties at their
respective addresses set forth first above or to such addresses as may from time
to time be designated by them respectively in writing by notice similarly given
to all parties in accordance with this paragraph. A copy
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of all such notices, requests, demands, or other communications hereunder to the
owner shall be forwarded to the following attorneys:
Russo, Fusco, Scamardella & D'Amato P.C.
1010 Forest Avenue
Staten Island, NY 10310
Attn: Robert Scamardella, Esq.
A copy of all such notices, requests, demands, or other communications hereunder
to the Manager shall be forwarded to the following attorneys:
Hofheimer, Gartlir & Gross
633 Third Avenue
New York, NY 10017
Attn: Donald Weisberg
or to such other address as such attorneys may designate by written notice to
the parties hereto and the other such attorneys. Notices under this Agreement
shall be deemed delivered on the date delivered personally or sent via
facsimile, the next business day after being sent via overnight courier, or
three (3) business days after being sent via certified mail, return receipt
requested, as the case may be.
E. Waiver by any party of any breach of this Agreement or failure to
exercise any right hereunder shall not be deemed to be a waiver of any other
breach or right. The failure of any party to take action by reason of any such
breach or to exercise any such right shall not deprive such party of the right
to take
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action at any time while such breach or condition giving rise to such right
continues.
F. This agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding the
above, however, the parties recognize that the services to be provided by the
Manager hereunder are unique, and accordingly, this Agreement may not be
assigned by the Manager, nor any obligation hereunder delegated by the Manager,
except to another entity in which Frank E. Cretella owns more than fifty (50%)
percent of the ownership interests or is otherwise (in the reasonable
determination of the Owner) in control of management.
G. This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MAT OPERATING CORP.
By: /s/ Frank Cretella
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Frank Cretella, President
TAM RESTAURANT HOLDING CORP., INC.
By: /s/ John Amodio
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John Amodio, President
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T R A N S F E R O F R I G H T S
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September 30, 1996
TAM Restaurant Group, Inc. (TAM) a New York Corporation located at 1163 Forest
Avenue, Staten Island, NY 10310 currently owned by Frank & Jeanne Cretella is
re-organizing its business and as such is distributing to MAT Operating Corp.
(MAT) a New York Corporation located at 1163 Forest Avenue, Staten Island, NY
10310, a company also owned by Frank & Jeanne Cretella, the assets, liabilities
and the rights of TAM pertaining to the operation of concessions at the Staten
Island Zoo and Central Park Zoo and any special events that may arise.
Effective immediately, MAT will assume all rights and responsibilities to
operate the concessions at the Staten Island Zoo and Central Park Zoo and any
special events that may arise.
/s/ John J. Amodio /s/ Frank Cretella
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John J. Amodio, President Frank Cretella, President
TAM Restaurant Group, Inc. MAT Operating Corp.
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