Hotel management is an important part of the functioning and operations of any hotel. This complex task can only be handled by someone who is experienced, has the proper managerial skills and the required experience.
Management Agreement For Restaurant
Hotel Management Agreement Sample
Management Contract Hotel Definition
The basic economic issue in a hotel management agreement is the compensation to be paid to the operator, which is typically a revenue sharing arrangement. Base Management Fees. Virtually every management agreement in place today starts with a base management fee (usually so-called) equal to some percentage of gross revenue.
The hospitality industry is referred to as contract services management. Hotel contract ManageMent The concept of separating the ownership and opera-tion of a lodging property fueled much of the capital needed to fund the expansive growth of the lodging industry in the 1970s and 1980s. Investors were able.
Thus, hotels often hire specialists to handle hotel management and pay them for their services. In such situations, hotel management agreement contracts may be formed. These contracts work like employment contracts wherein the hotel owner employs an individual or a group for the managerial tasks of the hotel by paying a certain salary.
Hotel management agreement contracts are written documents which protect the owner and the manager against any violation of the terms of the contract and authorize each party to fulfill its part of the deal. This means that on signing of a hotel management agreement contract, the hotel owner must compulsorily make the payment to the manager and the manager must perform the managerial work.
The terms and conditions stated in such contracts must define the term of employment, the salary, the working hours, the work duties and the working days of the hotel manager. These terms should also state the role of the owner in the agreement contract. Sample Hotel Management Agreement Contract
Exhibit 2.3
Negotiating the Hotel Management Contract By Chad Crandell, Kristie Dickinson, and Fern I. Kanter Chad Crandell is a cofounder of Capital Hotel Management (CHM), where he serves as President and operations leader of hotel investment advisory and asset management services. Since its inception, CHM has provided asset. Negotiating the Hotel Management Contract By Chad Crandell, Kristie Dickinson, and Fern I. Kanter Chad Crandell is a cofounder of Capital Hotel Management (CHM), where he serves as President and operations leader of hotel investment advisory and asset management services. Since its inception, CHM has provided asset. Our views on what a 10 page hotel management agreement should contain Clause Purpose 1. Operator to manage the hotel Hotel identified by title details and other relevant descriptors 2. Brand Relevant brand specified 3. Term Term of the contract to be specified together with any option renewal provisions 4.
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this 'Agreement') is madeeffective this 23rd day of December, 2002 (the 'Effective Date'), betweenEATERIES, INC., an Oklahoma corporation ('Manager'), and FIESTA, L.L.C., anOklahoma limited liability company ('Owner').
RECITALS
A. Manager, by and through its wholly owned subsidiary, FiestaRestaurants, Inc., an Oklahoma corporation, has sold to Owner all of the assets of seven(7) of its restaurants and one (1) concession under the trade name 'GarciasMexican Restaurant' located in Arizona' pursuant to that certain AcquisitionAgreement dated effective as of December 16, 2002 (the 'Acquisition Agreement')and all of the assets of the restaurant located at 4925 East Shea Boulevard, Phoenix,Arizona and operated under the trade name 'Garcias Mexican Restaurant'pursuant to that certain Acquisition Agreement dated effective as of December 16, 2002,all as identified on Schedule '1' attached hereto (collectively, the'Fiesta Restaurants').
B. Owner has acquired controlling ownership of Best Restaurants,L.L.C., an Oklahoma limited liability company and Best Restaurants II, L.L.C., an Oklahomalimited liability company (collectively, 'Best Restaurants'), which operatethree (3) restaurants under the trade name 'Garcias Mexican Restaurant'located in Carmichael, California; Idaho Falls, Idaho; and Layton, Utah, as identified on Schedule'1' attached hereto (the 'BR Restaurants').
C. Owner has assumed the obligations of franchisor and/or licensorunder certain franchise and/or license agreements for restaurants operated under the tradename 'Garcias Mexican Restaurant', as identified on Schedule'1' attached hereto, and may establish franchise and/or license arrangementswith additional restaurants (collectively, the 'Franchise Restaurants').
D. Owner and/or Owners designated affiliates, including, withoutlimitation, Best Restaurants desire to retain Manager to manage and operate the FiestaRestaurants, the BR Restaurants (in addition to and not in replacement of the currentagreement between Best Restaurants and Manager to provide accounting services to the BRRestaurants) and any additional Garcias Restaurants owned and/or developed by Owneror its affiliates (collectively, the 'Restaurants'), and provide supportservices to the Franchised Restaurants, on the terms and conditions set forth in thisAgreement. Any reference to Owner throughout this Agreement shall mean and include any andall of Owners designated affiliates that may directly or indirectly control or ownan interest in any of the Restaurants.
E. Manager is experienced in restaurant operation and management andhas the staff, expertise and capability to perform the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenantsand agreements contained in this Agreement and other good and valuable consideration notrecited in this Agreement, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows:
1. Engagement and Authorization . Management Agreement For Restaurant
1.01 Engagement As Manager . Owner hereby engages Manager as itssole and exclusive agent to supervise, manage, direct and control the operations of theRestaurants, in accordance with the terms and conditions hereof. Manager hereby acceptssuch engagement as the manager of the Restaurants during the Term, as hereafter defined,of this Agreement.
1.02 Grant of Authority . Owner hereby grants Manager full powerand authority to take all actions and to do all things reasonably required to perform theobligations of the Manager under this Agreement; provided that: (i) Manager shall not havethe power and authority to grant any mortgage, encumbrance, security interest, pledge orother lien on any tangible or intangible asset of Owner without the approval of Owner. Inthe performance of this Agreement, Manager shall act as the agent of Owner; and (ii) suchpower and authority will be limited to providing the Services, as defined herein. Nothingherein shall constitute or be construed to be or create a partnership, joint venture orlease between Owner and Manager. The creation of this agency shall not in any mannerrelieve Owner of its duties or obligations under contract or law. All debts andliabilities incurred by Manager in the course of its management of the Restaurants shallbe the debts and liabilities of Owner and in no event shall be the debts and liabilitiesof Manager.
2. Managers Duties . Throughout the Term of this Agreement,Manager will use the Manager's commercially reasonable efforts and due diligence to manageand operate the Restaurants in a manner and quality not less than those provided byManager with respect to the restaurants it owns. During the Term, Manager shall provideOwner with the following specific services (hereinafter collectively referred to as the'Services'), at each of the Restaurants:
2.01 Restaurant Management . Manager shall oversee the day-to-daymanagement of the Restaurants, which responsibilities shall include: (a) the hiring,training and supervising of all restaurant employees, as more particularly describedbelow; (b) the preparation of the Proposed Operating Budget and the updating of theApproved Operating Budget, as hereafter defined; (c) the reviewing, approving and payingof all operating expenses pursuant to the Approved Operating Budget; (d) the maintenanceof business files and records; (e) the performance of general administrative functions;and (f) the preparation of the Restaurants' monthly activities, as more particularlydescribed below. In addition, Manager shall manage, operate, and maintain the Restaurantsin such a manner that each Restaurant is at all times in substantial compliance with: (i)all zoning and use restrictions, fire codes, building codes, and other requirements issuedby any governmental authority; (ii) all licenses, permits and other authorizationsrequired in the operation of the Restaurants; (iii) any policy of insurance covering theRestaurants; (iv) any real estate lease, as applicable, to avoid any default by Ownerthereunder; (v) the negotiation of inventory purchase contracts with vendors, includingcombining purchasing quantity of Manager and its franchisee and/or licensees with thepurchasing quantity of Owner, its affiliates and franchisee and/or licensees in order toobtain any vendor discounts, rebates or refunds; and (vi) all applicable laws andregulations. With the written consent of Owner, Manager may in the name of itself, Owneror both, take such appropriate action as necessary to challenge to protest the validity orapplication of any legal requirement, tax or other imposition against the Restaurants.Owner shall execute and deliver any documents which Manager deems reasonably necessary andappropriate in connection with such action.
2.02 Operating Budget . Within thirty (30) days of the executionof this Agreement, Manager will recommend and submit to Owner a forecast (the'Proposed Operating Budget') reflecting: (a) an itemization of the estimatedreceipts, disbursements, operational expenditures and capital expenditures for the ensuingcalendar year; (b) a summary of rates to be charged for food and beverage menu prices,catering, conference, banquet and other common area use charges; (c) a staffing planindicating the number of employees, job titles, salaries and fringe benefits applicable toeach employee and a description of the workers' compensation coverage maintained by theManager with respect to each employee; (d) a listing of the service contracts executed orproposed to be executed by the Manager in the course of operating the Restaurantsidentifying the contract vendor, the services to be provided, the contract amount and theterm of the service contract; (e) a description of the marketing program to be undertakenby the Manager identifying the costs thereof, the complimentary services to be providedand the improvement in sales which the Manager anticipates; (f) a description of thecomplimentary food and beverage services which the Manager will accord to the employeesand the travel expenses anticipated to be reimbursed to the employees; (g) a listing ofany affiliates (meaning any person or entity over which the Manager has the ability tocontrol policy determinations, whether by ownership, by contract or otherwise) of theManager which will provide services to the Restaurants; (h) a report of any anticipatedchanges in any requirements of law affecting the Restaurants and the status of any licenseor permit necessary to the operation of the Restaurants; and (i) such additionalinformation as might be recommended by Manager or reasonably requested by Owner withrespect to the anticipated operation of the Restaurants. The Proposed Operating Budgetwill be submitted to the Owner for approval and the Owner will have the right to make anychanges thereto and finalize the Proposed Operating Budget in form satisfactory to theOwner in the Owner's sole discretion. The Owner will inform the Manager of approval of orany change to the Proposed Operating Budget prior to commencement of the period covered bythe Proposed Operating Budget and, when approved by the Owner, the same will constitutethe approved operating budget (the 'Approved Operating Budget') pursuant towhich the Manager will manage and operate the Restaurants during the ensuing calendaryear. The Manager will thereafter prepare and deliver to the Owner prior to the beginningof each quarter during the ensuing year any changes in the information contained in theApproved Operating Budget necessary to reflect current conditions. At the sole option ofthe Owner, the Approved Operating Budget may be revised at any time by delivery of writtennotice to the Manager and the Approved Operating Budget, as amended, will thereafterconstitute the standard pursuant to which the Manager will manage and operate theRestaurants. The Manager will authorize no expense in the operation, marketing ormanagement of the Restaurants in excess of the amount allocated to the variousclassifications of expense in the Approved Operating Budget without the prior consent ofthe Owner; provided, however, the Manager may expend sums without the prior approval ofthe Owner under emergency circumstances requiring expenditures which are immediatelynecessary for the preservation or safety of the Restaurants or to avoid danger to life orproperty. The Owner acknowledges that the financial forecasts contained in the ApprovedOperating Budget will represent the Manager's good faith estimate of the anticipatedoperating results and are not intended to constitute a guarantee that such financialresults will in fact be achieved.
2.03 Operating Expenses . Subject to the limitations establishedby the Approved Operating Budget, the Manager will: (a) pay all expenses of operating theRestaurants from funds on deposit in the Operating Account; (b) negotiate and enter intoon Owner's behalf all service contracts, including without limitation, water, electricity,gas, fuel, telephone, contracts for janitorial services, vermin extermination, trashremoval, landscaping services, and other services required to operate and maintain theRestaurants; (c) purchase supplies, equipment and materials which are required to operateand maintain the Restaurants; (d) maintain the premises of the Restaurants in a mannerwhich maximizes the appearance and operation of the Restaurants to the Restaurants'potential, including without limitation, interior and exterior cleaning, plumbing, andsuch other normal maintenance and repair work as might be desirable; and (e) negotiate andenter into contracts for the marketing, promotion and advertisement of the Restaurants.Unless otherwise approved by Owner, all service contracts will be executed in the name ofthe Manager or in the name of the Manager as agent for the Owner, will be assignable tothe Owner or the Owner's designee, will be terminable on thirty (30) days' prior notice bythe Manager, will require that the contractor provide evidence of appropriate insurancecoverage and will be for amounts not in excess of the amounts reflected in the ApprovedOperating Budget. Whether entered into in the name of Manager or in the name of Manager asagent for the Owner, the agreement shall be deemed entered into on behalf of Owner asprincipal, and Owner rather than Manager shall be liable for the performance of allobligations under, and shall receive all benefits, under such agreements. As reasonablyrequested by Manager, Owner shall execute and enter into any agreements relating to theRestaurants.
2.04 Operating Account . Manager shall open and maintain onbehalf of Owner a separate bank account (the 'Operating Account') at acommercial bank approved by Owner. Title to the Operating Account shall indicate that thefunds therein are being held in trust for the benefit of Owner. Owner and Manager shalleach have the power to withdraw funds from the Operating Account. Manager will depositinto the Operating Account and hold in a fiduciary capacity all monies furnished by Ownerand all funds received from the operation of the Restaurants. Manager will pay from theOperating Account all amounts authorized by the Approved Operating Budget. Owner willprovide to Manager an initial deposit in an amount sufficient to pay the first month'soperating expenses of the Restaurants. To the extent the receipts of the Restaurants areinsufficient to pay the operating expenses of the Restaurants as the same become due, theOwner will provide such funds as are reasonably requested by the Manager by deposit to theOperating Account within two (2) business days after each request therefor. On the ninth(9th) day of every month, the Manager will remit by wire transfer to the Owner thatamount, if any, which is in excess of the funds which are reasonably estimated by theManager to operate the Restaurants for the current month. Manager shall not in any eventbe required to pay any expenses of the Restaurants with its own funds, and if it shall doso, Owner shall reimburse Management for such expenditures upon request and receipt ofsupporting documentation.
2.05 Monthly Reports. Manager shall maintain full and adequaterecords and books of account and such other records as might be appropriate to reflect theresults of operation of the Restaurants, and which shall reflect all revenues andexpenditures and all other receipts and disbursements relating to each of the Restaurants.All books and records will be the property of the Owner and the Owner will have accessthereto at all reasonable times. Within fifteen (15) days after the end of each month,Manager shall prepare and furnish to Owner the following information for the precedingmonth for each of the Restaurants:
(i) Financial Statements . A statement in form acceptable to theOwner indicating the receipts, disbursements, delinquencies and uncollected items arisingfrom the operation of the Restaurants which will include a comparison of monthly andyear-to-date actual receipts and disbursements with the Approved Operating Budget;
(ii) S upporting Data . At the Owner's request, copies of thefollowing: (a) all checks, bank statements, bank deposit slips and bank reconciliations;(b) detailed cash receipts and disbursement records; (c) copies of all invoices; (d)supporting documentation for payroll, payroll taxes and employee benefits; and (e) suchother information as the Owner might reasonably request;
(iii) Other Reports . Such other reports and documents as mightbe reasonably requested by the Owner from time to time (including, without impliedlimitation, certificates of compliance and other instruments required in connection withany bond financing relating to the Restaurants).
2.06 Human Resources . Manager shall, on Owners behalf,hire, train, supervise, and pay all restaurant employees and other personnel('Employees') necessary to fulfill its obligations hereunder. All Employeesshall be the employees or independent contractors of Owner and not the employees orindependent contractors of Manager. Manager may discharge any Employee in its discretionand pursuant to applicable state and federal law. Manager shall, at Owners expense,cause Employees to be covered by workers compensation insurance and such otherinsurance as is now or hereafter required by law. Manager shall maintain all personnel andpayroll records and manage all Employee benefits programs, including, but not limited to,health insurance, dental insurance, short and long term disability plans, life insurance,workers = compensation, cafeteria plans, vacationplans, sick leave and employee policy manuals. In addition, Manager shall maintainbusinesslike relations with the customers of the Restaurants and all customer complaintswill be received, logged and resolved in a systematic fashion. Complaints of a seriousnature will be reported to the Owner with appropriate recommendations from the Manager.
2.07 Accounting. Manager shall perform general accountingfunctions, on behalf of Owner, including, without limitation: cash management and bankingrelations; budgeting, forecasting and financial statement reporting; the preparation andmaintenance of records necessary to produce financial statements; the preparation offinancial statements, as requested by Owner; the preparation, execution, and filing,punctually, when due all forms, reports, and returns required by law relating to theemployment of Employees or to the management, operation, occupancy, maintenance or use ofthe Restaurants, including without limitation any sales or use tax forms, reports, andincome tax returns; audit support; and any other general accounting function as requestedby Owner. In addition, Manager shall pay punctually when due any sales, use, employment orother taxes relating to the operation of the Restaurants.
2.08 Marketing. Manager will devise a strategy for and assist inthe implementation, at Owner's sole costs and expense, of a marketing program to advertiseand promote the business of the Restaurants. Manager may cause the Restaurants toparticipate in such marketing plans, oral and written presentations, promotionalmaterials, public relations, media relations and any other general marketing functions topromote the Restaurants.
2.09 Point-of-Sale Management Information System . Manager shalloperate, administer, maintain, repair and upgrade, at Owners expense, the existingpoint-of-sale management information system for tracking purchases and inventory of eachof the Restaurants.
2.10 Franchise Restaurant Support . Manager shall provideassistance to Owner in providing any and all services of the franchisor/licensor to theFranchise Restaurants, including, without limitation, marketing, menu and promotions,accounting support, and personnel training.
2.11 Manager Personnel . Manager agrees that its employees JamesM. Burke and Bradley L. Grow, or in the event either is no longer employed by Manager,similarly qualified employees, shall be involved in all aspects of the Services to beprovided by Manager under this Agreement, including, without limitation, operational,accounting, and financial related Services.
2.12 Deletion of Specified Services . Any time during the Term ofthis Agreement, upon prior written notice by Owner to Manager, Owner may delete anyspecified service from the Services to be provided to all of the Restaurants, and the Feeto be paid to Manager shall be reduced by the amount allocated to such specified serviceas set forth in Schedule '2' .
3. Term . Unless sooner terminated as hereafter provided, hisAgreement shall be effective for a period of five (5) years commencing on the EffectiveDate of this Agreement (the 'Term'), which Term shall be automatically extendedfor additional periods of ninety (90) days, unless on or before sixty (60) days prior tothe expiration of the Term, as extended, either party provides written notice to the otherparty not to so extend the Term.
3.01 Events for Termination .
(a) Owner, at its sole option, may terminate this Agreement: (i) forany reason at any time during the Term upon sixty (60) days written notice toManager; or (ii) upon ten (10) days' written notice to the Manager upon the occurrence ofany of the following events: (a) the Manager authorizing payment of any expense in excessof the amounts allocated in the Approved Operating Budget without the prior consent of theOwner; (b) gross mismanagement of the Restaurants by the Manager; or (b) any default bythe Manager in the performance of the Manager's obligations hereunder.
(b) Manager, at its sole option, may terminate this Agreement after ten(10) days written notice to Owner in the event Owner fails to pay Manager theManagement Fee provided herein.
3.02 Certain Obligations of Manager After Termination . Upontermination of this Agreement, Manager shall: (i) deliver to Owner all records, books,accounts, files, and other documentation (the 'Records') pertaining to themanagement, maintenance, operation, marketing and use of the Restaurants, including,without limitation, all records relative to the employees, suppliers, finances, andaffairs of the Restaurants; (ii) deliver and assign, transfer or otherwise convey to Ownerall contracts and all personal property relating to or used in the management, operationand maintenance of the Restaurants, including, without limitation, all keys, combinationsto locks and other security devices, documents, materials, operating supplies, furnishingsand equipment, provided that any personal property owned by Manager may be retained byManager; (iii) prepare and deliver to Owner a full set of reports for each of theRestaurants in accordance with paragraph 2.05, current to the date of termination; (iv)deliver all funds held by Manager on behalf of Owner; and (v) render such assistance asOwner might reasonably request to facilitate an orderly transition in the management andoperation of the Restaurants.
4. Management Fee . As compensation for all Services to berendered by Manager during the Term of this Agreement, the Owner agrees to pay to Managerthe following:
4.01 Management Fee . Owner shall pay to Manager a management fee(the 'Management Fee') equal to the lesser of: (i) Twenty Thousand and No/100Dollars ($20,000) per month; or (ii) the actual cost of providing management services tothe Restaurants allocated as to the specific component Services as set forth in Schedule'2' . Commencing upon the first day after the second anniversary of theEffective Date of this Agreement, and continuing annually on the first day after eachanniversary of the Effective Date thereafter, the Management Fee shall be adjusted by anamount equal to the lesser of (i) five percent ( 5 ) of theManagement Fee in effect for the month immediately preceding the anniversary date or (ii)the percentage change between the average of the CPI Index, as defined herein, for thepreceding twelve (12) months. CPI Index shall mean the Consumer Price Index published bythe Bureau of Labor Statistics of the United States Department of Labor, Denver-Boulder,Colorado, All Items and Major Group Figures for Urban Wage Earners and Clerical Workers(1982-84=100). The Management Fee shall be paid monthly on the 1st day of each succeedingcalendar month with the first payment due on or before January 1, 2003, prorated, basedupon a thirty (30) day month, based on the Effective Date of this Agreement. In the eventthis Agreement is terminated during a calendar month, the Management Fee payable for themonth in which such termination occurs will be prorated based upon a thirty (30) daymonth. Notwithstanding anything to the contrary contained in this Agreement, the agreementto provide accounting services by and between Manager and Best Restaurants for the BRRestaurants, for an annual management fee of $30,000.00, shall remain in full force andeffect in accordance with its terms.
4.02 Addition or Deletion of Restaurants . The parties agree thatin the event two (2) or fewer restaurants are added or deleted, in the aggregate, to theRestaurants covered by this Agreement, there shall be no adjustment to the Fee. In theevent greater than five restaurants are added or deleted, in the aggregate, to theRestaurants covered by this Agreement, the variable components of the Fee, as set forth in Schedule '2' , shall be adjusted pro rata based on such Services fortwelve (12) restaurants being provided for a $20,000 per month Fee.
4.03 Reimbursement of Expenses . Owner shall promptly, uponrequest by Manager and receipt of supporting documentation, reimburse Manager for anycosts or expenses related to the ownership or operation of the Restaurants paid by Manageron behalf of Owner in accordance with this Agreement.
5. Indemnification; Exculpation from Liability .
5.01 Indemnity . Owner and Manager shall indemnify and hold eachother harmless for all damages and expenses, including, without limitation, attorneys'fees sustained by the other as a result of the action of the other, its employees oragents. This provision shall survive the termination of this Agreement,
5.02 Exculpation from Liability . Manager shall have no liabilitywhatsoever to the Owner for loss caused by any act or by failure to do any act if the losssuffered by the Owner arises out of an action taken, or not taken, by the Manager inperforming its obligations under this Agreement using reasonable business judgment;provided, however, that such exculpation from liability shall not apply to any liabilityfor loss caused by any act or by the failure to do any act which arises out of the grossnegligence or willful misconduct of Manager, its employees or agents.
6. Miscellaneous Provisions .
6.01 Notices . All notices, requests, demands, and othercommunications required or permitted under this Agreement shall be in writing and shall bedeemed to have been duly given if delivered by hand, mailed by certified or registeredmail with postage prepaid or by overnight mail , or if sent by facsimile as follows:
If to Manager, to: Eateries,Inc.
1220 South Santa Fe
Oklahoma City, Oklahoma 73003
Attn: Bradley L. Grow, Chief Financial Officer
With a copy to: Hall, Estill, Hardwick, Gable, Golden Nelson, P.C.
320 S. Boston Avenue, Suite 400
Tulsa, Oklahoma 74103
Fax: (918) 594-0505
Attention: Del L. Gustafson
If to Owner, to: Fiesta, L.L.C.
One Benham Place
9400 Broadway Extension, Suite 750
Oklahoma City, Oklahoma 73114
Fax: (405) 478.3686
Attn: Gregory W. Olson
and
Fiesta, L.L.C.
15208 Grand Parke Drive
Edmond, Oklahoma 73013
Attn: H. Preston Stockton
With a copy to: Phillips McFall McCaffrey McVay
Murrah, P.C.
Twelfth Floor, One Leadership Square
211 N. Robinson Avenue
Oklahoma City, Oklahoma 73102
Fax: (405) 235-4133
Attention: D. Keith McFall, Esq.
or to such other person or address as such party hereafter designates(by written notice to the other party).
6.02 Notices Concerning the Restaurant . Upon the receipt byManager of any notice pertaining to any of the Restaurants not of a routine nature,including in any event, but not limited to, notices of any violation of any legalrequirements, Manager shall immediately inform Owner of such notice and shall deliver acopy of the notice to Owner as expeditiously as possible. Hotel Management Agreement Sample
6.03 Assignment . This Agreement and all of the provisions ofthis Agreement shall be binding upon and inure to the benefit of the parties and theirrespective successors and permitted assigns, but neither this Agreement nor any of therights, interests or obligations shall be assigned by either of the parties without theprior written consent of the other party.
6.04 Governing Law . This Agreement and the legal relations amongthe parties shall be governed by and construed in accordance with the laws of the State ofOklahoma.
6.05 Counterparts . This Agreement may be executed simultaneouslyin two or more counterparts, each of which shall be deemed an original, but all of whichtogether shall constitute one and the same agreement.
6.06 Headings . The headings in this Agreement are inserted for convenience onlyand shall not affect the construction of this Agreement.
6.07 Entire Agreement; Modification . This Agreement embodies theentire agreement and understanding of the parties with respect to the subject mattercontained in this Agreement. This Agreement supersedes all prior agreements andunderstandings between the parties with respect to the subject matter contained herein.This Agreement may not be amended or modified in any manner except by an instrument inwriting signed by the parties
6.08 Severability . The provisions of this Agreement areseverable and the invalidity of any one provision shall not affect the validity of anyother provision.
IN WITNESS WHEREOF, the undersigned have executed and delivered thisAgreement effective as of the date first above written.
EATERIES, INC., an Oklahoma corporation
By:____________________________________
Vincent F. Orza, Jr., Chief Executive Officer
FIESTA, L.L.C., an Oklahoma limited liability company
By:___________________________________
H. Preston Stockton, Manager
SCHEDULE '1'
Restaurants
FIESTA RESTAURANTS
Arizona
2394 N. Alma School Road, Chandler
17037 N. 59th Avenue, Glendale
1940 E. University, Mesa
Bank One Ball Park, Phoenix (concession)
4420 E. Camelback Road, Phoenix
3301 W. Peoria, Phoenix
4924 E. Shea Boulevard, Phoenix (owned by Fiesta (Shea Blvd.), L.L.C.
4400 S. Rural Road, Tempe
419 W. Congress, Tucson
BR RESTAURANTS
California Management Contract Hotel Definition
6049 Madison Avenue, Carmichael
Idaho
2180 E. 17th Street, Idaho Falls
1075 N. Hillfield Rd., Layton
FRANCHISE RESTAURANTS
Salsa Restaurants, L.L.C.
1900 South Milton Road
Flagstaff, Arizona 86001
Amador Restaurants, Inc.
5050 S. Syracuse
Denver, Colorado
Garcimex of New Jersey
6 location in New Jersey (addresses unknown)
William H. Bartow
Anchorage, Alaska (street address unknown)
Mexican Restaurant Associates, Inc.
7 restaurants in upstate New York
(includes Albany, Utica, Binghamton, Syracuse, Rochester and Jamestown)
Garcia's of Des Moines, Inc.
6116 Douglas Avenue
Des Moines, Iowa 50322
SCHEDULE '2'
Allocation of Management Fee
Management Agreement For Restaurant
Hotel Management Agreement Sample
Management Contract Hotel Definition
The basic economic issue in a hotel management agreement is the compensation to be paid to the operator, which is typically a revenue sharing arrangement. Base Management Fees. Virtually every management agreement in place today starts with a base management fee (usually so-called) equal to some percentage of gross revenue.
The hospitality industry is referred to as contract services management. Hotel contract ManageMent The concept of separating the ownership and opera-tion of a lodging property fueled much of the capital needed to fund the expansive growth of the lodging industry in the 1970s and 1980s. Investors were able.
Thus, hotels often hire specialists to handle hotel management and pay them for their services. In such situations, hotel management agreement contracts may be formed. These contracts work like employment contracts wherein the hotel owner employs an individual or a group for the managerial tasks of the hotel by paying a certain salary.
Hotel management agreement contracts are written documents which protect the owner and the manager against any violation of the terms of the contract and authorize each party to fulfill its part of the deal. This means that on signing of a hotel management agreement contract, the hotel owner must compulsorily make the payment to the manager and the manager must perform the managerial work.
The terms and conditions stated in such contracts must define the term of employment, the salary, the working hours, the work duties and the working days of the hotel manager. These terms should also state the role of the owner in the agreement contract. Sample Hotel Management Agreement Contract
Exhibit 2.3
Negotiating the Hotel Management Contract By Chad Crandell, Kristie Dickinson, and Fern I. Kanter Chad Crandell is a cofounder of Capital Hotel Management (CHM), where he serves as President and operations leader of hotel investment advisory and asset management services. Since its inception, CHM has provided asset. Negotiating the Hotel Management Contract By Chad Crandell, Kristie Dickinson, and Fern I. Kanter Chad Crandell is a cofounder of Capital Hotel Management (CHM), where he serves as President and operations leader of hotel investment advisory and asset management services. Since its inception, CHM has provided asset. Our views on what a 10 page hotel management agreement should contain Clause Purpose 1. Operator to manage the hotel Hotel identified by title details and other relevant descriptors 2. Brand Relevant brand specified 3. Term Term of the contract to be specified together with any option renewal provisions 4.
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this 'Agreement') is madeeffective this 23rd day of December, 2002 (the 'Effective Date'), betweenEATERIES, INC., an Oklahoma corporation ('Manager'), and FIESTA, L.L.C., anOklahoma limited liability company ('Owner').
RECITALS
A. Manager, by and through its wholly owned subsidiary, FiestaRestaurants, Inc., an Oklahoma corporation, has sold to Owner all of the assets of seven(7) of its restaurants and one (1) concession under the trade name 'GarciasMexican Restaurant' located in Arizona' pursuant to that certain AcquisitionAgreement dated effective as of December 16, 2002 (the 'Acquisition Agreement')and all of the assets of the restaurant located at 4925 East Shea Boulevard, Phoenix,Arizona and operated under the trade name 'Garcias Mexican Restaurant'pursuant to that certain Acquisition Agreement dated effective as of December 16, 2002,all as identified on Schedule '1' attached hereto (collectively, the'Fiesta Restaurants').
B. Owner has acquired controlling ownership of Best Restaurants,L.L.C., an Oklahoma limited liability company and Best Restaurants II, L.L.C., an Oklahomalimited liability company (collectively, 'Best Restaurants'), which operatethree (3) restaurants under the trade name 'Garcias Mexican Restaurant'located in Carmichael, California; Idaho Falls, Idaho; and Layton, Utah, as identified on Schedule'1' attached hereto (the 'BR Restaurants').
C. Owner has assumed the obligations of franchisor and/or licensorunder certain franchise and/or license agreements for restaurants operated under the tradename 'Garcias Mexican Restaurant', as identified on Schedule'1' attached hereto, and may establish franchise and/or license arrangementswith additional restaurants (collectively, the 'Franchise Restaurants').
D. Owner and/or Owners designated affiliates, including, withoutlimitation, Best Restaurants desire to retain Manager to manage and operate the FiestaRestaurants, the BR Restaurants (in addition to and not in replacement of the currentagreement between Best Restaurants and Manager to provide accounting services to the BRRestaurants) and any additional Garcias Restaurants owned and/or developed by Owneror its affiliates (collectively, the 'Restaurants'), and provide supportservices to the Franchised Restaurants, on the terms and conditions set forth in thisAgreement. Any reference to Owner throughout this Agreement shall mean and include any andall of Owners designated affiliates that may directly or indirectly control or ownan interest in any of the Restaurants.
E. Manager is experienced in restaurant operation and management andhas the staff, expertise and capability to perform the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenantsand agreements contained in this Agreement and other good and valuable consideration notrecited in this Agreement, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows:
1. Engagement and Authorization . Management Agreement For Restaurant
1.01 Engagement As Manager . Owner hereby engages Manager as itssole and exclusive agent to supervise, manage, direct and control the operations of theRestaurants, in accordance with the terms and conditions hereof. Manager hereby acceptssuch engagement as the manager of the Restaurants during the Term, as hereafter defined,of this Agreement.
1.02 Grant of Authority . Owner hereby grants Manager full powerand authority to take all actions and to do all things reasonably required to perform theobligations of the Manager under this Agreement; provided that: (i) Manager shall not havethe power and authority to grant any mortgage, encumbrance, security interest, pledge orother lien on any tangible or intangible asset of Owner without the approval of Owner. Inthe performance of this Agreement, Manager shall act as the agent of Owner; and (ii) suchpower and authority will be limited to providing the Services, as defined herein. Nothingherein shall constitute or be construed to be or create a partnership, joint venture orlease between Owner and Manager. The creation of this agency shall not in any mannerrelieve Owner of its duties or obligations under contract or law. All debts andliabilities incurred by Manager in the course of its management of the Restaurants shallbe the debts and liabilities of Owner and in no event shall be the debts and liabilitiesof Manager.
2. Managers Duties . Throughout the Term of this Agreement,Manager will use the Manager's commercially reasonable efforts and due diligence to manageand operate the Restaurants in a manner and quality not less than those provided byManager with respect to the restaurants it owns. During the Term, Manager shall provideOwner with the following specific services (hereinafter collectively referred to as the'Services'), at each of the Restaurants:
2.01 Restaurant Management . Manager shall oversee the day-to-daymanagement of the Restaurants, which responsibilities shall include: (a) the hiring,training and supervising of all restaurant employees, as more particularly describedbelow; (b) the preparation of the Proposed Operating Budget and the updating of theApproved Operating Budget, as hereafter defined; (c) the reviewing, approving and payingof all operating expenses pursuant to the Approved Operating Budget; (d) the maintenanceof business files and records; (e) the performance of general administrative functions;and (f) the preparation of the Restaurants' monthly activities, as more particularlydescribed below. In addition, Manager shall manage, operate, and maintain the Restaurantsin such a manner that each Restaurant is at all times in substantial compliance with: (i)all zoning and use restrictions, fire codes, building codes, and other requirements issuedby any governmental authority; (ii) all licenses, permits and other authorizationsrequired in the operation of the Restaurants; (iii) any policy of insurance covering theRestaurants; (iv) any real estate lease, as applicable, to avoid any default by Ownerthereunder; (v) the negotiation of inventory purchase contracts with vendors, includingcombining purchasing quantity of Manager and its franchisee and/or licensees with thepurchasing quantity of Owner, its affiliates and franchisee and/or licensees in order toobtain any vendor discounts, rebates or refunds; and (vi) all applicable laws andregulations. With the written consent of Owner, Manager may in the name of itself, Owneror both, take such appropriate action as necessary to challenge to protest the validity orapplication of any legal requirement, tax or other imposition against the Restaurants.Owner shall execute and deliver any documents which Manager deems reasonably necessary andappropriate in connection with such action.
2.02 Operating Budget . Within thirty (30) days of the executionof this Agreement, Manager will recommend and submit to Owner a forecast (the'Proposed Operating Budget') reflecting: (a) an itemization of the estimatedreceipts, disbursements, operational expenditures and capital expenditures for the ensuingcalendar year; (b) a summary of rates to be charged for food and beverage menu prices,catering, conference, banquet and other common area use charges; (c) a staffing planindicating the number of employees, job titles, salaries and fringe benefits applicable toeach employee and a description of the workers' compensation coverage maintained by theManager with respect to each employee; (d) a listing of the service contracts executed orproposed to be executed by the Manager in the course of operating the Restaurantsidentifying the contract vendor, the services to be provided, the contract amount and theterm of the service contract; (e) a description of the marketing program to be undertakenby the Manager identifying the costs thereof, the complimentary services to be providedand the improvement in sales which the Manager anticipates; (f) a description of thecomplimentary food and beverage services which the Manager will accord to the employeesand the travel expenses anticipated to be reimbursed to the employees; (g) a listing ofany affiliates (meaning any person or entity over which the Manager has the ability tocontrol policy determinations, whether by ownership, by contract or otherwise) of theManager which will provide services to the Restaurants; (h) a report of any anticipatedchanges in any requirements of law affecting the Restaurants and the status of any licenseor permit necessary to the operation of the Restaurants; and (i) such additionalinformation as might be recommended by Manager or reasonably requested by Owner withrespect to the anticipated operation of the Restaurants. The Proposed Operating Budgetwill be submitted to the Owner for approval and the Owner will have the right to make anychanges thereto and finalize the Proposed Operating Budget in form satisfactory to theOwner in the Owner's sole discretion. The Owner will inform the Manager of approval of orany change to the Proposed Operating Budget prior to commencement of the period covered bythe Proposed Operating Budget and, when approved by the Owner, the same will constitutethe approved operating budget (the 'Approved Operating Budget') pursuant towhich the Manager will manage and operate the Restaurants during the ensuing calendaryear. The Manager will thereafter prepare and deliver to the Owner prior to the beginningof each quarter during the ensuing year any changes in the information contained in theApproved Operating Budget necessary to reflect current conditions. At the sole option ofthe Owner, the Approved Operating Budget may be revised at any time by delivery of writtennotice to the Manager and the Approved Operating Budget, as amended, will thereafterconstitute the standard pursuant to which the Manager will manage and operate theRestaurants. The Manager will authorize no expense in the operation, marketing ormanagement of the Restaurants in excess of the amount allocated to the variousclassifications of expense in the Approved Operating Budget without the prior consent ofthe Owner; provided, however, the Manager may expend sums without the prior approval ofthe Owner under emergency circumstances requiring expenditures which are immediatelynecessary for the preservation or safety of the Restaurants or to avoid danger to life orproperty. The Owner acknowledges that the financial forecasts contained in the ApprovedOperating Budget will represent the Manager's good faith estimate of the anticipatedoperating results and are not intended to constitute a guarantee that such financialresults will in fact be achieved.
2.03 Operating Expenses . Subject to the limitations establishedby the Approved Operating Budget, the Manager will: (a) pay all expenses of operating theRestaurants from funds on deposit in the Operating Account; (b) negotiate and enter intoon Owner's behalf all service contracts, including without limitation, water, electricity,gas, fuel, telephone, contracts for janitorial services, vermin extermination, trashremoval, landscaping services, and other services required to operate and maintain theRestaurants; (c) purchase supplies, equipment and materials which are required to operateand maintain the Restaurants; (d) maintain the premises of the Restaurants in a mannerwhich maximizes the appearance and operation of the Restaurants to the Restaurants'potential, including without limitation, interior and exterior cleaning, plumbing, andsuch other normal maintenance and repair work as might be desirable; and (e) negotiate andenter into contracts for the marketing, promotion and advertisement of the Restaurants.Unless otherwise approved by Owner, all service contracts will be executed in the name ofthe Manager or in the name of the Manager as agent for the Owner, will be assignable tothe Owner or the Owner's designee, will be terminable on thirty (30) days' prior notice bythe Manager, will require that the contractor provide evidence of appropriate insurancecoverage and will be for amounts not in excess of the amounts reflected in the ApprovedOperating Budget. Whether entered into in the name of Manager or in the name of Manager asagent for the Owner, the agreement shall be deemed entered into on behalf of Owner asprincipal, and Owner rather than Manager shall be liable for the performance of allobligations under, and shall receive all benefits, under such agreements. As reasonablyrequested by Manager, Owner shall execute and enter into any agreements relating to theRestaurants.
2.04 Operating Account . Manager shall open and maintain onbehalf of Owner a separate bank account (the 'Operating Account') at acommercial bank approved by Owner. Title to the Operating Account shall indicate that thefunds therein are being held in trust for the benefit of Owner. Owner and Manager shalleach have the power to withdraw funds from the Operating Account. Manager will depositinto the Operating Account and hold in a fiduciary capacity all monies furnished by Ownerand all funds received from the operation of the Restaurants. Manager will pay from theOperating Account all amounts authorized by the Approved Operating Budget. Owner willprovide to Manager an initial deposit in an amount sufficient to pay the first month'soperating expenses of the Restaurants. To the extent the receipts of the Restaurants areinsufficient to pay the operating expenses of the Restaurants as the same become due, theOwner will provide such funds as are reasonably requested by the Manager by deposit to theOperating Account within two (2) business days after each request therefor. On the ninth(9th) day of every month, the Manager will remit by wire transfer to the Owner thatamount, if any, which is in excess of the funds which are reasonably estimated by theManager to operate the Restaurants for the current month. Manager shall not in any eventbe required to pay any expenses of the Restaurants with its own funds, and if it shall doso, Owner shall reimburse Management for such expenditures upon request and receipt ofsupporting documentation.
2.05 Monthly Reports. Manager shall maintain full and adequaterecords and books of account and such other records as might be appropriate to reflect theresults of operation of the Restaurants, and which shall reflect all revenues andexpenditures and all other receipts and disbursements relating to each of the Restaurants.All books and records will be the property of the Owner and the Owner will have accessthereto at all reasonable times. Within fifteen (15) days after the end of each month,Manager shall prepare and furnish to Owner the following information for the precedingmonth for each of the Restaurants:
(i) Financial Statements . A statement in form acceptable to theOwner indicating the receipts, disbursements, delinquencies and uncollected items arisingfrom the operation of the Restaurants which will include a comparison of monthly andyear-to-date actual receipts and disbursements with the Approved Operating Budget;
(ii) S upporting Data . At the Owner's request, copies of thefollowing: (a) all checks, bank statements, bank deposit slips and bank reconciliations;(b) detailed cash receipts and disbursement records; (c) copies of all invoices; (d)supporting documentation for payroll, payroll taxes and employee benefits; and (e) suchother information as the Owner might reasonably request;
(iii) Other Reports . Such other reports and documents as mightbe reasonably requested by the Owner from time to time (including, without impliedlimitation, certificates of compliance and other instruments required in connection withany bond financing relating to the Restaurants).
2.06 Human Resources . Manager shall, on Owners behalf,hire, train, supervise, and pay all restaurant employees and other personnel('Employees') necessary to fulfill its obligations hereunder. All Employeesshall be the employees or independent contractors of Owner and not the employees orindependent contractors of Manager. Manager may discharge any Employee in its discretionand pursuant to applicable state and federal law. Manager shall, at Owners expense,cause Employees to be covered by workers compensation insurance and such otherinsurance as is now or hereafter required by law. Manager shall maintain all personnel andpayroll records and manage all Employee benefits programs, including, but not limited to,health insurance, dental insurance, short and long term disability plans, life insurance,workers = compensation, cafeteria plans, vacationplans, sick leave and employee policy manuals. In addition, Manager shall maintainbusinesslike relations with the customers of the Restaurants and all customer complaintswill be received, logged and resolved in a systematic fashion. Complaints of a seriousnature will be reported to the Owner with appropriate recommendations from the Manager.
2.07 Accounting. Manager shall perform general accountingfunctions, on behalf of Owner, including, without limitation: cash management and bankingrelations; budgeting, forecasting and financial statement reporting; the preparation andmaintenance of records necessary to produce financial statements; the preparation offinancial statements, as requested by Owner; the preparation, execution, and filing,punctually, when due all forms, reports, and returns required by law relating to theemployment of Employees or to the management, operation, occupancy, maintenance or use ofthe Restaurants, including without limitation any sales or use tax forms, reports, andincome tax returns; audit support; and any other general accounting function as requestedby Owner. In addition, Manager shall pay punctually when due any sales, use, employment orother taxes relating to the operation of the Restaurants.
2.08 Marketing. Manager will devise a strategy for and assist inthe implementation, at Owner's sole costs and expense, of a marketing program to advertiseand promote the business of the Restaurants. Manager may cause the Restaurants toparticipate in such marketing plans, oral and written presentations, promotionalmaterials, public relations, media relations and any other general marketing functions topromote the Restaurants.
2.09 Point-of-Sale Management Information System . Manager shalloperate, administer, maintain, repair and upgrade, at Owners expense, the existingpoint-of-sale management information system for tracking purchases and inventory of eachof the Restaurants.
2.10 Franchise Restaurant Support . Manager shall provideassistance to Owner in providing any and all services of the franchisor/licensor to theFranchise Restaurants, including, without limitation, marketing, menu and promotions,accounting support, and personnel training.
2.11 Manager Personnel . Manager agrees that its employees JamesM. Burke and Bradley L. Grow, or in the event either is no longer employed by Manager,similarly qualified employees, shall be involved in all aspects of the Services to beprovided by Manager under this Agreement, including, without limitation, operational,accounting, and financial related Services.
2.12 Deletion of Specified Services . Any time during the Term ofthis Agreement, upon prior written notice by Owner to Manager, Owner may delete anyspecified service from the Services to be provided to all of the Restaurants, and the Feeto be paid to Manager shall be reduced by the amount allocated to such specified serviceas set forth in Schedule '2' .
3. Term . Unless sooner terminated as hereafter provided, hisAgreement shall be effective for a period of five (5) years commencing on the EffectiveDate of this Agreement (the 'Term'), which Term shall be automatically extendedfor additional periods of ninety (90) days, unless on or before sixty (60) days prior tothe expiration of the Term, as extended, either party provides written notice to the otherparty not to so extend the Term.
3.01 Events for Termination .
(a) Owner, at its sole option, may terminate this Agreement: (i) forany reason at any time during the Term upon sixty (60) days written notice toManager; or (ii) upon ten (10) days' written notice to the Manager upon the occurrence ofany of the following events: (a) the Manager authorizing payment of any expense in excessof the amounts allocated in the Approved Operating Budget without the prior consent of theOwner; (b) gross mismanagement of the Restaurants by the Manager; or (b) any default bythe Manager in the performance of the Manager's obligations hereunder.
(b) Manager, at its sole option, may terminate this Agreement after ten(10) days written notice to Owner in the event Owner fails to pay Manager theManagement Fee provided herein.
3.02 Certain Obligations of Manager After Termination . Upontermination of this Agreement, Manager shall: (i) deliver to Owner all records, books,accounts, files, and other documentation (the 'Records') pertaining to themanagement, maintenance, operation, marketing and use of the Restaurants, including,without limitation, all records relative to the employees, suppliers, finances, andaffairs of the Restaurants; (ii) deliver and assign, transfer or otherwise convey to Ownerall contracts and all personal property relating to or used in the management, operationand maintenance of the Restaurants, including, without limitation, all keys, combinationsto locks and other security devices, documents, materials, operating supplies, furnishingsand equipment, provided that any personal property owned by Manager may be retained byManager; (iii) prepare and deliver to Owner a full set of reports for each of theRestaurants in accordance with paragraph 2.05, current to the date of termination; (iv)deliver all funds held by Manager on behalf of Owner; and (v) render such assistance asOwner might reasonably request to facilitate an orderly transition in the management andoperation of the Restaurants.
4. Management Fee . As compensation for all Services to berendered by Manager during the Term of this Agreement, the Owner agrees to pay to Managerthe following:
4.01 Management Fee . Owner shall pay to Manager a management fee(the 'Management Fee') equal to the lesser of: (i) Twenty Thousand and No/100Dollars ($20,000) per month; or (ii) the actual cost of providing management services tothe Restaurants allocated as to the specific component Services as set forth in Schedule'2' . Commencing upon the first day after the second anniversary of theEffective Date of this Agreement, and continuing annually on the first day after eachanniversary of the Effective Date thereafter, the Management Fee shall be adjusted by anamount equal to the lesser of (i) five percent ( 5 ) of theManagement Fee in effect for the month immediately preceding the anniversary date or (ii)the percentage change between the average of the CPI Index, as defined herein, for thepreceding twelve (12) months. CPI Index shall mean the Consumer Price Index published bythe Bureau of Labor Statistics of the United States Department of Labor, Denver-Boulder,Colorado, All Items and Major Group Figures for Urban Wage Earners and Clerical Workers(1982-84=100). The Management Fee shall be paid monthly on the 1st day of each succeedingcalendar month with the first payment due on or before January 1, 2003, prorated, basedupon a thirty (30) day month, based on the Effective Date of this Agreement. In the eventthis Agreement is terminated during a calendar month, the Management Fee payable for themonth in which such termination occurs will be prorated based upon a thirty (30) daymonth. Notwithstanding anything to the contrary contained in this Agreement, the agreementto provide accounting services by and between Manager and Best Restaurants for the BRRestaurants, for an annual management fee of $30,000.00, shall remain in full force andeffect in accordance with its terms.
4.02 Addition or Deletion of Restaurants . The parties agree thatin the event two (2) or fewer restaurants are added or deleted, in the aggregate, to theRestaurants covered by this Agreement, there shall be no adjustment to the Fee. In theevent greater than five restaurants are added or deleted, in the aggregate, to theRestaurants covered by this Agreement, the variable components of the Fee, as set forth in Schedule '2' , shall be adjusted pro rata based on such Services fortwelve (12) restaurants being provided for a $20,000 per month Fee.
4.03 Reimbursement of Expenses . Owner shall promptly, uponrequest by Manager and receipt of supporting documentation, reimburse Manager for anycosts or expenses related to the ownership or operation of the Restaurants paid by Manageron behalf of Owner in accordance with this Agreement.
5. Indemnification; Exculpation from Liability .
5.01 Indemnity . Owner and Manager shall indemnify and hold eachother harmless for all damages and expenses, including, without limitation, attorneys'fees sustained by the other as a result of the action of the other, its employees oragents. This provision shall survive the termination of this Agreement,
5.02 Exculpation from Liability . Manager shall have no liabilitywhatsoever to the Owner for loss caused by any act or by failure to do any act if the losssuffered by the Owner arises out of an action taken, or not taken, by the Manager inperforming its obligations under this Agreement using reasonable business judgment;provided, however, that such exculpation from liability shall not apply to any liabilityfor loss caused by any act or by the failure to do any act which arises out of the grossnegligence or willful misconduct of Manager, its employees or agents.
6. Miscellaneous Provisions .
6.01 Notices . All notices, requests, demands, and othercommunications required or permitted under this Agreement shall be in writing and shall bedeemed to have been duly given if delivered by hand, mailed by certified or registeredmail with postage prepaid or by overnight mail , or if sent by facsimile as follows:
If to Manager, to: Eateries,Inc.
1220 South Santa Fe
Oklahoma City, Oklahoma 73003
Attn: Bradley L. Grow, Chief Financial Officer
With a copy to: Hall, Estill, Hardwick, Gable, Golden Nelson, P.C.
320 S. Boston Avenue, Suite 400
Tulsa, Oklahoma 74103
Fax: (918) 594-0505
Attention: Del L. Gustafson
If to Owner, to: Fiesta, L.L.C.
One Benham Place
9400 Broadway Extension, Suite 750
Oklahoma City, Oklahoma 73114
Fax: (405) 478.3686
Attn: Gregory W. Olson
and
Fiesta, L.L.C.
15208 Grand Parke Drive
Edmond, Oklahoma 73013
Attn: H. Preston Stockton
With a copy to: Phillips McFall McCaffrey McVay
Murrah, P.C.
Twelfth Floor, One Leadership Square
211 N. Robinson Avenue
Oklahoma City, Oklahoma 73102
Fax: (405) 235-4133
Attention: D. Keith McFall, Esq.
or to such other person or address as such party hereafter designates(by written notice to the other party).
6.02 Notices Concerning the Restaurant . Upon the receipt byManager of any notice pertaining to any of the Restaurants not of a routine nature,including in any event, but not limited to, notices of any violation of any legalrequirements, Manager shall immediately inform Owner of such notice and shall deliver acopy of the notice to Owner as expeditiously as possible. Hotel Management Agreement Sample
6.03 Assignment . This Agreement and all of the provisions ofthis Agreement shall be binding upon and inure to the benefit of the parties and theirrespective successors and permitted assigns, but neither this Agreement nor any of therights, interests or obligations shall be assigned by either of the parties without theprior written consent of the other party.
6.04 Governing Law . This Agreement and the legal relations amongthe parties shall be governed by and construed in accordance with the laws of the State ofOklahoma.
6.05 Counterparts . This Agreement may be executed simultaneouslyin two or more counterparts, each of which shall be deemed an original, but all of whichtogether shall constitute one and the same agreement.
6.06 Headings . The headings in this Agreement are inserted for convenience onlyand shall not affect the construction of this Agreement.
6.07 Entire Agreement; Modification . This Agreement embodies theentire agreement and understanding of the parties with respect to the subject mattercontained in this Agreement. This Agreement supersedes all prior agreements andunderstandings between the parties with respect to the subject matter contained herein.This Agreement may not be amended or modified in any manner except by an instrument inwriting signed by the parties
6.08 Severability . The provisions of this Agreement areseverable and the invalidity of any one provision shall not affect the validity of anyother provision.
IN WITNESS WHEREOF, the undersigned have executed and delivered thisAgreement effective as of the date first above written.
EATERIES, INC., an Oklahoma corporation
By:____________________________________
Vincent F. Orza, Jr., Chief Executive Officer
FIESTA, L.L.C., an Oklahoma limited liability company
By:___________________________________
H. Preston Stockton, Manager
SCHEDULE '1'
Restaurants
FIESTA RESTAURANTS
Arizona
2394 N. Alma School Road, Chandler
17037 N. 59th Avenue, Glendale
1940 E. University, Mesa
Bank One Ball Park, Phoenix (concession)
4420 E. Camelback Road, Phoenix
3301 W. Peoria, Phoenix
4924 E. Shea Boulevard, Phoenix (owned by Fiesta (Shea Blvd.), L.L.C.
4400 S. Rural Road, Tempe
419 W. Congress, Tucson
BR RESTAURANTS
California Management Contract Hotel Definition
6049 Madison Avenue, Carmichael
Idaho
2180 E. 17th Street, Idaho Falls
1075 N. Hillfield Rd., Layton
FRANCHISE RESTAURANTS
Salsa Restaurants, L.L.C.
1900 South Milton Road
Flagstaff, Arizona 86001
Amador Restaurants, Inc.
5050 S. Syracuse
Denver, Colorado
Garcimex of New Jersey
6 location in New Jersey (addresses unknown)
William H. Bartow
Anchorage, Alaska (street address unknown)
Mexican Restaurant Associates, Inc.
7 restaurants in upstate New York
(includes Albany, Utica, Binghamton, Syracuse, Rochester and Jamestown)
Garcia's of Des Moines, Inc.
6116 Douglas Avenue
Des Moines, Iowa 50322
SCHEDULE '2'
Allocation of Management Fee
