Exhibit 10.1
Management Agreement for Whistle Junction
Restaurant Located at 13235 Cortez Blvd, Brooksville, Florida
MANAGEMENT AGREEMENT
BETWEEN
EACO CORPORATION
AND
BANNER BUFFETS, LLC
This Management Agreement (the "Agreement") is made and
entered as of the 30th day of June, 2005, between EACO
Corporation, a Florida corporation, ("EACO") and Banner Buffets,
LLC, a Delaware limited liability company (the "Manager").
WHEREAS, EACO is the current operator of a Whistle Junction
at 13325 Cortez Blvd., Brooksville, Florida (the
"Restaurant")under a Lease Agreement with CNL as Lessor (the
"Lease"); and
WHEREAS, EACO desires to appoint Manager to act as general
operating manager of the Restaurant for a period of time from July
1, 2005 through September 30, 2006, unless sooner terminated
hereunder (the "Term") and Manager is willing to accept such
appointment for such period, subject to the terms and conditions
hereinafter set forth; and
NOW, THEREFORE, in consideration of the foregoing and of the
terms and conditions herein set forth, the parties hereto agree as
follows:
1. Appointment of Manager. EACO hereby appoints Manager
and Manager hereby accepts the appointment as general operating
manager of the Restaurant for the Term as general operating
manager of the Restaurant, with authority, to direct, supervise,
and manage the operation of the Restaurant as provided in this
Agreement. In the event that EACO ceases to be primarily liable
as tenant under the Lease, then this Agreement will immediately
terminate as of the date of the expiration of EACO's primary
liability under the Lease.
2. Compensation of Manager. As compensation for its
management services hereunder, Manager shall retain the net
receipts from the operation of the Restaurant after paying for all
operating expenses of the Restaurant and paying for or satisfying
Manager's obligations contained in Section 3 hereunder and
discharging any and all liabilities related to the Restaurant
arising after June 30, 2005. If the net receipts from the
operation of the Restaurant are inadequate to pay or satisfy all
of the Manager's obligations, Manager shall nonetheless remain
responsible to satisfy those obligations with funds other than
Restaurant receipts.
3. Manager's Duties.
3.1. General Duties. Manager shall perform, using
Manager's reasonable business judgment, the following duties at
its sole cost and expense: supervise and direct the general
operations of the Restaurant; operate the Restaurant efficiently
and with proper economy; develop policies with respect to
publicity for the purpose of creating net income from the
Restaurant; stimulate the general business of the Restaurant;
employ such managers, assistant managers, employees, and agents at
the Restaurant as may be required to maintain a high standard and
quality of operation; collect income; keep the Restaurant and all
fixtures, furnishings and other equipment contained therein in
repair; arrange for necessary replacements, improvements, and
changes in the Restaurant and in the fixtures, furnishings, and
other equipment therein; supervise the purchase of insurance on
the Restaurant and on all fixtures, furnishings, and equipment
therein against all risks usually covered in the case of similar
properties, including, but without limitation, fire, plate glass,
workmen's compensation, liability, fidelity and discrimination
insurance, and all other usual insurance (which shall include all
insurance required by the Lease and which shall include EACO as an
additional Named Insured); place and supervise all advertising and
promotions; collect and pay all sales taxes to the proper taxing
authority; collect and remit all payroll taxes to the proper
taxing authority; provide decorating, general purchasing, and
supervising services; maintain compliance with all terms of the
Lease, and perform all other acts necessary or desirable in the
operation of the Restaurant.
3.2 Compliance with Lessor's Requirements. Manager shall
be responsible for maintaining compliance with all obligations and
requirements imposed on EACO under the Lease at its sole cost and
expense. At the written direction of EACO, Manager shall either
pay or cause to be paid all of such obligations directly or shall
forward payment to EACO so that it can pay or satisfy all such
obligations. In the event of default under the Lease (a
"Default"), and Manager receives notification of such Default from
Lessor, Manager shall promptly forward such notification of
Default to EACO together with a proposed plan to remedy such
Default. Manager shall promptly act to cure such Default within
the time for cure allowed by Lessor.
4. Restrictions on Manager. Manager shall have no power
or authority to subject EACO to any liability or expenses related
to the Restaurant or otherwise. Manager shall not institute any
legal or equitable action or proceeding on behalf of EACO without
the express prior written consent of EACO. The managers,
assistant managers, employees and agents of the Restaurant shall
be employees of Manager or an affiliate of Manager and not EACO
for all purposes under this Agreement.
5. Indemnification by EACO. EACO shall indemnify and
hold Manager and its officers, directors, shareholders, members,
managers, employees and agents and their successors and assignees
harmless from and against and with respect to any claim,
liability, obligation, loss, damage, assessment, judgment, legal
fee, cost and expense of any kind or character arising out of or
in any manner incident to the operation of the Restaurant prior to
July 1, 2005.
6. Indemnification by Manager. Manager shall indemnify
and hold EACO and its officers, directors, shareholders, members,
managers, employees and agents and their successors and assignees
harmless from and against and with respect to any claim,
liability, obligation, loss, damage, assessment, judgment, legal
fee, cost and expense of any kind or character arising out of or
in any manner incident to the operation of the Restaurant after
June 30, 2005.
7. EACO's Termination Rights. If Manager fails to
perform its duties in accordance with this Agreement, EACO may, by
giving at least ninety (90) days' written notice to Manager,
terminate this Agreement. In the event Manager fails to perform
the duties specified in the notice from EACO within said ninety
(90) day period, this Agreement shall automatically terminate,
without any liability to or upon EACO other than its liability to
pay for services rendered by Manager pursuant to this Agreement.
8. Reports to EACO. Manager shall make reports to EACO
concerning all affairs connected with the Restaurant under
Manager's control or within its knowledge whenever requested by
EACO. Manager shall prepare quarterly financial reports for the
operations of the Restaurant and shall deliver such reports to
EACO within 15 days after the close of each quarterly reporting
period. Manager shall also prepare annual financial reports for
the operations of the Restaurant and shall deliver such reports to
EACO within 90 days after the fiscal year end.
9. Assignment. This Agreement may not be assigned by
Manager without EACO's prior written consent. All terms and
conditions of this Agreement shall be for the sole and exclusive
benefit of the parties hereto.
10. Entire Agreement. This Agreement supersedes all
agreements previously made between the parties relating to its
subject matter contained herein. There are no other
understandings or agreements between the parties hereto.
11. Notices. All notices under this Agreement shall be in
writing and delivered personally or mailed by certified mail,
postage prepaid or by facsimile transmission with confirmation
addressed to the appropriate party at the most recent address
provided.
12. Non-waiver. No delay or failure by either party to
exercise any right under this Agreement, and no partial or single
exercise of that right, shall constitute a waiver of that or any
other right, unless otherwise expressly provided herein.
13. Headings. Headings in this Agreement are for
convenience only and shall not be used to interpret or construe
its provisions.
14. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida.
15. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same
instrument.
16. Binding Effect. The provisions of this Agreement
shall be binding upon and inure to the benefit of both parties and their
respective legal representatives, successors, and assigns.
The parties hereto have duly executed this Agreement as of the day
and year first above written.
EACO:
EACO CORPORATION
By:/s/ Edward B. Alexander
Edward B. Alexander, President
MANAGER:
BANNER BUFFETS, LLC
By:/s/ George W. Osborn
George W. Osborn, President