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EXHIBIT 10.2
MANAGEMENT AGREEMENT
BETWEEN
CAFE ODYSSEY, LLC
AND
H D SPIRITS, INC.
("OWNER")
AND
ODYSSEY RESTAURANTS, LLC
("MANAGER")
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TABLE OF CONTENTS
PAGE
ARTICLE 1 - Appointment; Resignation and Stock Options................... 1
1.1 Appointment.................................................. 1
1.2 Resignation and Waiver....................................... 2
1.3 Stock Options................................................ 2
1.4 Stock Restrictions........................................... 2
ARTICLE 2 - Term......................................................... 2
2.1 Term......................................................... 2
2.2 Termination by Owner......................................... 2
2.3 Termination by Manager....................................... 3
2.4 Final Accounting............................................. 3
ARTICLE 3 - Manager's Responsibility..................................... 4
3.1 Management................................................... 4
3.2 Employees; Independent Contractor............................ 4
3.3 Agreement on Annual Plan..................................... 4
3.4 Implementation of Annual Plan................................ 4
3.5 Operating Account............................................ 5
3.6 Management; Supervision of Restaurants....................... 5
3.7 Operating Expenses........................................... 5
3.8 Payroll Records.............................................. 6
3.9 General Record Keeping....................................... 6
3.10 Communication with Owner..................................... 6
3.11 Compliance with Laws and Loan Documents...................... 6
3.12 Manager's Responsibility to Provide Information.............. 6
ARTICLE 4 - Management Authority......................................... 6
4.1 Manager's Authority.......................................... 6
4.2 Contracts.................................................... 6
ARTICLE 5 - Insurance.................................................... 7
5.1 Insurance.................................................... 7
ARTICLE 6 - Financial Reporting.......................................... 7
6.1 Revenue and Expense Records.................................. 7
6.2 Monthly and Quarterly Reports................................ 7
6.3 Additional Financial Information............................. 7
6.4 Accounting Principles........................................ 8
ARTICLE 7 - Owner's Right to Audit....................................... 8
7.1 Audit By Owner............................................... 8
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ARTICLE 8 - Bank Accounts............................................... 8
ARTICLE 9 - Payment of Expenses......................................... 10
9.1 Owner's Responsibility for Expenses......................... 10
9.2 Non-reimbursable and Reimbursable Expenses.................. 10
ARTICLE 10 - Insufficient Income........................................ 10
10.1 Priorities................................................. 10
ARTICLE 11 - Owner's Obligation......................................... 11
11.1 Obligations Under Contracts................................ 11
11.2 Management Office.......................................... 11
11.3 Response to Manager's Inquiries............................ 11
ARTICLE 12 - Manager's Liability........................................ 11
12.1 Limitation on Manager's Liability.......................... 11
12.2 Indemnity of Manager....................................... 11
ARTICLE 13 - Compensation............................................... 12
13.1 Management Fee............................................. 12
13.2 Payment Schedule........................................... 13
13.3 Payment Reconciliation..................................... 13
13.4 Payments to Accounts of Manager............................ 13
ARTICLE 14 - Right of First Refusal..................................... 13
14.1 Right of First Refusal..................................... 13
ARTICLE 15 - Assignment................................................. 14
15.1 Assignment by Manager...................................... 14
ARTICLE 16 - Cooperation................................................ 14
16.1 Listing Broker............................................. 14
ARTICLE 17 - Legal Proceedings.......................................... 14
17.1 Legal Proceedings.......................................... 14
ARTICLE 18 - Notices: Authorized Representatives........................ 15
18.1 Notices.................................................... 15
18.2 Authorized Representatives................................. 15
ARTICLE 19 - Miscellaneous.............................................. 15
19.1 Manager's Rights........................................... 15
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19.2 Independent Contractor...................................... 16
19.3 Disclaimer of Relationship.................................. 16
19.4 Severability................................................ 16
19.5 Counterparts................................................ 16
19.6 No Blanket Waiver........................................... 16
19.7 Arbitration................................................. 17
19.8 Waiver of Jury Trial........................................ 17
19.9 Attorneys' Fees............................................. 18
19.10 Further Assurances.......................................... 18
19.11 Pronouns.................................................... 18
19.12 Amendments.................................................. 18
19.13 Headings.................................................... 18
19.14 Succession.................................................. 18
19.15 Entire Agreement............................................ 18
19.16 Governing Law............................................... 18
Exhibit A - ITEMS TO BE INCLUDED IN ANNUAL PLAN
Exhibit B - INSURANCE REQUIREMENTS
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MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT ("Agreement") is entered into effective as
of the _____ day of May, 2000, between Cafe Odyssey, LLC, a Minnesota limited
liability company ("CO"), H D Spirits, Inc., a Minnesota corporation ("HD") (CO
and HD are hereinafter collectively called "Owner"), and Odyssey Restaurants,
LLC, a Minnesota limited liability company, (hereinafter called "Manager"):
WITNESSETH:
WHEREAS, CO expects to acquire from PopMail.com, Inc. ("PopMail") the
Cafe Odyssey Restaurant located in the Mall of America in Bloomington, Minnesota
which is leased from Mall of America Company pursuant to a Lease dated August 4,
1997 (the "MOA Lease") and CO expects to acquire from PopMail the Cafe Odyssey
Restaurant located in the Denver Pavilions Shopping Center in Denver, Colorado
which is leased from Denver Pavilions, L.P. pursuant to a Lease dated May 12,
1998 (the "Denver Lease") (the MOA Lease and the Denver Lease are individually
referred to herein as a "Lease" and collectively referred to herein as the
"Leases") (such restaurants are individually referred to herein as "Restaurant"
and collectively referred to herein as the "Restaurants"); and,
WHEREAS, HD is the holder of the liquor license which permits the sale
of liquor for consumption on the premises demised under the MOA Lease; and
WHEREAS, Owner, if it acquires the Restaurants, wishes to obtain the
benefits of Manager's expertise in managing restaurant operations by contracting
with Manager to manage the Restaurants, subject to the terms and provisions of
this Agreement; and Manager, for a fee and pursuant to the terms and provisions
of this Agreement, agrees to manage the Restaurants on behalf of Owner;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the parties hereto agree as
follows:
ARTICLE 1
APPOINTMENT; RESIGNATION AND STOCK OPTIONS
1.1 APPOINTMENT. Owner appoints Manager to manage the Restaurants on
behalf and at the expense of Owner and to provide the services required under
this Agreement. Manager accepts such appointment and undertakes to perform such
services during the term of this Agreement on the terms and conditions set forth
herein. Notwithstanding anything to the contrary in this Agreement, Owner's
appointment of Manager to manage the Cafe Odyssey Restaurant located in the
Denver Pavilions Shopping Center shall not become effective unless and until
Owner has obtained
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all consents and approvals which are necessary for PopMail to assign and
transfer to Owner the tenant's rights under the Denver Lease and all assets used
in connection with the Cafe Odyssey Restaurant located in the Denver Pavilions
Shopping Center including the approval of the Denver Department of Excise and
License to the transfer of the liquor license for the premises from PopMail to
Owner. Any delay in obtaining, or any failure to obtain, all of such consents
and approvals shall not, however, affect Owner's obligation to pay Manager the
Management Fee in accordance with and subject to the terms and conditions of
this Agreement.
1.2 RESIGNATION AND WAIVER. By his signature below, Ronald K. Fuller,
hereby resigns from each of his positions as an officer and employee of Owner
and PopMail (and each of its subsidiaries) effective as of the date of this
Agreement and waives any and all rights which he might otherwise have under any
employment agreements with Owner or PopMail including, without limitation, any
rights under that certain Employment Agreement dated as of March 17, 1997 with
Cafe Odyssey, Inc., as amended by an Amendment dated July 27, 1999.
1.3 STOCK OPTIONS. Notwithstanding anything to the contrary in any
agreement between Ronald K. Fuller or Thomas W. Orr and PopMail, Ronald K.
Fuller and Thomas W. Orr shall each have two (2) years from the date of this
Agreement to exercise any rights which they now have to acquire stock of PopMail
or any successor thereto pursuant to the exercise of stock options of PopMail,
to the extent vested on the date hereof.
1.4 STOCK RESTRICTIONS. By its signature below, PopMail hereby waives
and forever releases any lockup rights or other restrictions that would preclude
Ronald K. Fuller or Thomas W. Orr from disposing of any stock, warrants or other
equity interests in PopMail or any successor thereto. In addition, PopMail
agrees to provide reasonable assistance to Ronald K. Fuller to obtain release of
Ronald K. Fuller's shares of PopMail stock from escrow with the State of
Minnesota.
ARTICLE 2
TERM
2.1 TERM. The term of this Agreement shall commence as of the date
hereof, and, unless sooner terminated pursuant to Section 2.2, 2.3 or 2.4, shall
continue until the earlier of (i) the day prior to the third anniversary of this
Agreement, or (ii) the date on which both of the Restaurants are sold or
substantially all of the stock or assets of Owner are sold, or (iii) the date on
which both of the Restaurants are closed, or (iv) the date on which Ronald K.
Fuller is not providing a substantial portion of the essential management
services to be performed by Manager under this Agreement.
2.2 TERMINATION FOR CAUSE BY OWNER. Owner shall have the right to
terminate this Agreement at any time by giving five (5) days' prior written
notice of such termination to Manager upon the occurrence of any of the
following events ("Events of Default"):
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(a) Manager willfully fails to perform its material obligations or is
grossly negligent in such performance hereunder in any material
respect if such failure or negligence continues for a period of
thirty (30) days after Manager receives written notice of such
failure to perform from Owner;
(b) The commission of a felony by Ronald K. Fuller;
(c) The theft or embezzlement of Company property by Manager or any
of its governors, managers, members or employees or similar acts
by Ronald K. Fuller involving moral turpitude; or
(d) The abuse of drugs or alcohol by Ronald K. Fuller which, in the
judgment of Owner, has rendered him incapable of carrying out his
duties on behalf of Manager.
2.3 TERMINATION BY MANAGER. Manager shall have the right to terminate
this Agreement at any time by giving five (5) days' prior written notice of such
termination to Owner if Owner fails to perform any of its obligations under this
Agreement in any material respect and such failure continues for a period of
thirty (30) days after Owner receives written notice of such failure to perform
from Manager.
2.4 TERMINATION WITHOUT CAUSE. Either party shall have the right to
terminate this Agreement at any time and for any reason by giving thirty (30)
day's prior written notice of such termination to the other party.
2.5 FINAL ACCOUNTING. Upon termination of this Agreement for any
reason, Manager shall deliver to Owner the following:
(a) a final accounting, reflecting the balance of the Operating
Account (as hereinafter defined), as of the date of termination,
to be delivered within sixty (60) days after such termination;
(b) any monies of Owner held by Manager with respect to the
Restaurants to be delivered within three (3) business days after
termination; and,
(c) all records, contracts, unpaid bills and other papers or
documents which pertain to the Restaurants, to be delivered
within three (3) business days after such termination.
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ARTICLE 3
MANAGER'S RESPONSIBILITY
3.1 MANAGEMENT. Manager shall manage the Restaurants in a manner
commensurate with that of first-class managers of restaurants of a size,
character and quality comparable to the Restaurants. Manager shall comply with
all licensing and similar requirements of the applicable governmental
authorities relating to performance by Manager of its duties hereunder.
3.2 EMPLOYEES; INDEPENDENT CONTRACTOR. Manager shall, on behalf of
Owner, employ at all times a sufficient number of capable employees to enable it
to properly, adequately, safely and economically manage, operate, maintain and
account for the Restaurants. All matters pertaining to the employment,
supervision, compensation, promotion and discharge of such employees are the
responsibility of Manager; provided that Manager shall have no authority to
enter into any employment contract on behalf of Owner that provides for annual
compensation in excess of $75,000 or which will not be terminable on thirty (30)
days' prior written notice unless Manager obtains Owner's prior written consent
thereto. If Manager requests Owner's consent to any such contract, Owner shall
respond to such request within ten (10) days after receiving such request.
Manager shall fully comply with all applicable laws and regulations having to do
with worker's compensation, social security, unemployment insurance, hours of
labor, wages, working conditions, and other employer/employee related subjects.
This Agreement is not one of general agency between Manager and Owner, but one
in which Manager is engaged independently in the business of managing
Restaurants on behalf of Owner as an independent contractor, and in that respect
has only limited agency as specifically set forth in this Agreement.
3.3 AGREEMENT ON ANNUAL PLAN. On or before November 1 of each
calendar year, Manager shall prepare and submit to Owner for Owner's approval,
an annual plan ("Annual Plan") for the Restaurants for the ensuing calendar
year, which Annual Plan shall include the items set forth in Exhibit A attached
hereto and made a part hereof. Owner shall have a period of thirty (30) days in
which to approve the Annual Plan or to notify Manager in writing of the reasons
for Owner's disapproval thereof. Owner shall have the right from time to time
during each calendar year to revise the Annual Plan. In addition, Manager shall
have the right to submit a revised Annual Plan to Owner for Owner's approval
during any calendar year if Manager deems revisions to the Annual Plan
necessary. Owner shall have a period of fifteen (15) days after receipt of any
such revised Annual Plan from Manager in which to notify Manager of Owner's
approval of the revised Annual Plan or the reasons for Owner's disapproval
thereof.
3.4 IMPLEMENTATION OF ANNUAL PLAN. When approved by Owner, Manager
shall implement the Annual Plan and shall be authorized, without the need of
further approval by the Owner, to make the expenditures and incur the
obligations provided for in the budget included as part of the Annual Plan (the
"Budget"). Except as otherwise provided below, Manager shall not, without the
prior written consent of Owner, make any expenditure on behalf of Owner for a
budgeted
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item in excess of five (5) percent more than the amount set forth for such item
in the most recent Annual Plan that has been approved for the period in question
by Owner. Notwithstanding the foregoing, if an emergency involving manifest
danger to life or property exists with respect to which expenditures are
necessary for the preservation or the safety of the Restaurants, for the safety
of customers of the Restaurants, or to avoid the suspension of any necessary
service to the Restaurants, such expenditures may be made by Manager without the
prior approval of Owner; provided that Manager shall promptly notify Owner of
any such expenditures.
3.5 OPERATING ACCOUNT. All revenues of the Restaurants shall be
deposited in the Operating Account (hereinafter defined).
3.6 MANAGEMENT; SUPERVISION OF RESTAURANTS. Manager shall, at Owner's
expense, institute, contract for or on behalf of Owner, and supervise all
repairs, decorations and alterations, including the administration of a
preventive maintenance program for all mechanical, electrical and plumbing
systems and equipment in the Restaurants; provided that such (unless the same
relate to emergencies) are included in an approved Annual Plan or in an
authorization by Owner pursuant to Section 4.2. Manager shall, at Owner's
expense, institute and supervise all operational and accounting activities of
the Restaurants including, but not limited to, the following:
(a) the provision of all restaurant services to the public;
(b) advertising;
(c) cleaning;
(d) security service;
(e) all plumbing, electrical, HVAC and other systems servicing the
Restaurants;
(f) a preventive maintenance program;
(g) necessary repairs to the Restaurants; and
(h) administration and reporting of financial activities related to
the Restaurants.
3.7 OPERATING EXPENSES. Manager shall obtain and verify bills for
operating expenses (including all amounts payable to the landlords under the
Leases) and pay from funds in the Operating Account (as hereinafter defined)
such operating expenses on behalf of Owner and at Owner's expense. Manager
shall, on behalf of Owner, contest any such operating expenses which Owner
requests Manager to contest and shall pursue any such contest diligently. In the
event Manager believes that any operating expenses should be contested, Manager
may request Owner's consent to contest such operating expenses, which consent
shall not be unreasonably withheld, conditioned or delayed.
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3.8 PAYROLL RECORDS. Manager shall, at Owner's expense, prepare all
payrolls and maintain comprehensive payroll records.
3.9 GENERAL RECORD KEEPING. Manager shall maintain complete and
readily identifiable records and files on all matters pertaining to the
Restaurants including, without limitation, all revenues and expenditures,
service contracts and any records required to be maintained by Owner under the
Leases. Such records and files shall be maintained at the respective Restaurants
and/or at the offices of Manager.
3.10 COMMUNICATION WITH OWNER. Manager shall be available for
communications with Owner and will keep Owner advised of all material items
affecting the Restaurants.
3.11 COMPLIANCE WITH LAWS AND LOAN DOCUMENTS. Manager shall use all
reasonable efforts to assure compliance with federal, state and municipal laws,
ordinances, regulations and orders relating to the use, operation, repair and
maintenance of the Restaurants and with the rules, regulations or orders of the
local board of fire underwriters or other similar body. Manager shall promptly
notify Owner of any violation of any such law, ordinance, rule, regulation or
order which comes to its attention and, at Owner's request, will remedy the same
at Owner's expense. Manager shall also comply with all of the requirements of
the Leases and the provisions of any loan documents encumbering the Restaurants
(provided copies are supplied by Owner to Manager) to the extent the same relate
to matters for which Manager is responsible pursuant to the terms hereof.
3.12 MANAGER'S RESPONSIBILITY TO PROVIDE INFORMATION. Manager
specifically agrees to furnish any and all other information reasonably
requested by Owner after reasonable notice from Owner and within a reasonable
time after such notice.
ARTICLE 4
MANAGEMENT AUTHORITY
4.1 MANAGER'S AUTHORITY. Manager's authority is expressly limited to
the provisions set forth in this Agreement as the same may be amended in writing
from time to time by Owner and mutually agreed to and accepted by Manager in
writing.
4.2 CONTRACTS. Manager shall direct and supervise the maintenance and
operation of the Restaurants as approved by Owner in the approved Annual Plan,
and in connection therewith may, on Owner's behalf and at Owner's expense, enter
into contracts for services including, but not limited to, cleaning, security,
pest control, labor, supplies and utility services. Copies of such contracts
shall be delivered to Owner by Manager promptly following execution. Subject to
compliance with the Annual Plan, such contracts shall contain terms and
provisions reasonably deemed by Manager to be appropriate and in the interests
of Owner, and shall be negotiated and
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entered into by Manager for the account of Owner and in the name of Owner. In
the alternative and at Manager's discretion, Manager may present such contracts
to Owner for signature and Owner agrees to sign and return such contracts to
Manager promptly so long as such contracts comply with the requirements hereof.
All service contracts shall be terminable by Owner on thirty (30) days' notice,
unless such requirement is waived by Owner. Owner agrees that Manager may enter
into contracts for services for the Restaurants with persons that are affiliated
with Manager; provided that such agreements do not result in expenditures or
concessions by Owner in excess of the amount or terms that would be paid or
agreed to by Owner in arm's length agreements with unrelated parties in the same
geographic area as the respective Restaurants. Manager shall provide fifteen
(15) days' prior written notice to Owner before entering into any agreement
between Owner and Manager or any affiliate thereof and Manager shall provide
fifteen (15) days' prior written notice to Owner of any payment (except for the
Management Fee, the Reimbursable Expenses and payments pursuant to agreements
referred to in the preceding sentence) made between Owner and Manager or any
affiliate thereof.
ARTICLE 5
INSURANCE
5.1 INSURANCE. Owner, at Owner's expense, shall cause to be obtained
and maintained in full force and effect the types and amounts of insurance
described in Exhibit B attached hereto and made a part hereof.
ARTICLE 6
FINANCIAL REPORTING
6.1 REVENUE AND EXPENSE RECORDS. Manager, in the discharge of its
duties hereunder, shall maintain adequate revenue and expense records for the
Restaurants, which shall be supported by sufficient documentation to ascertain
that entries are properly and accurately recorded.
6.2 MONTHLY AND QUARTERLY REPORTS. No later than ten (10) days after
the end of each calendar month, Manager shall deliver to Owner a statement of
the operating income or loss for such month for each of the Restaurants. No
later than twenty (20) days after the end of each calendar quarter, Manager
shall deliver to Owner an explanation of the nature and extent of any variations
between the estimated revenues and expenses for such quarter, as projected in
the Annual Plan, and the actual revenues and expenses for such quarter. Owner
may, upon five (5) days' prior notice, require the aforementioned quarterly
reports to be provided on a monthly basis.
6.3 ADDITIONAL FINANCIAL INFORMATION. Manager shall maintain the
originals or copies of the following for at least two calendar years:
(a) all bank statements, bank deposit slips, and bank
reconciliations;
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(b) detailed cash receipts and disbursements records;
(c) detailed trial balance;
(d) paid invoices;
(e) summaries of adjusting journal entries;
(f) supporting documentation for payroll, payroll taxes, and employee
benefits; and
(g) any other records which Owner is required to maintain under the
Leases.
6.4 ACCOUNTING PRINCIPLES. All financial statements and reports shall
be prepared in accordance with generally accepted accounting principles.
ARTICLE 7
OWNER'S RIGHT TO AUDIT
7.1 AUDIT BY OWNER. Upon reasonable notice and during regular
business hours, Owner may conduct examinations of the books and records
maintained for Owner by Manager no matter where such books and records are
maintained by Manager. Owner also reserves the right to perform any and all
additional audit tests relating to Manager's activities either at the
Restaurants or at any office of Manager; provided such audit tests are related
to those activities performed by Manager for Owner. Should Owner discover either
material deficiencies in internal controls or error in record keeping, Manager
shall correct such discrepancies within a reasonable period of time, at
Manager's expense. Manager shall inform Owner in writing of the action taken to
correct such audit discrepancies.
ARTICLE 8
BANK ACCOUNTS
Manager shall open and maintain in such banks as the Owner may from
time to time direct, and at the Owner's expense, at least one account for each
of the Restaurants (herein collectively called the "Operating Account"), in the
name of the Owner (so that at all times the funds deposited therein shall be the
sole and exclusive property of the Owner), and shall deposit in such account all
sums collected or otherwise received by Manager for or on behalf of the Owner
and pay to the Owner so much thereof as may be requested by the Owner from time
to time so long as sufficient funds remain in the Operating Account at all times
to operate the Restaurants in accordance with the Annual Plan. The Manager is
authorized, as the agent of the Owner, to draw
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on such account for payment, on behalf and in the name of the Owner and when
required in connection with the operation or maintenance of the Restaurants, of
the following expenses to the extent included in the approved Budget or Annual
Plan (herein called "Operating Expenses"):
(a) cost of the gross salary, bonuses and other types of
compensation, or pro rata share thereof, to include payroll
taxes, insurance, worker's compensation and other benefits, of
employees and related staff;
(b) cost of general accounting, financial and tax reporting services
which are within the reasonable scope of Manager's responsibility
to Owner and all other financial reporting requested by Owner;
(c) costs of supplies and food;
(d) costs of smallwares;
(e) costs of furniture, fixtures and equipment;
(f) cost of forms, paper, ledgers and other supplies and equipment
used in the Manager's office;
(g) cost of insurance permitted or required to be maintained by
Manager pursuant to the provisions of this Agreement;
(h) cost to correct any violation of federal, state and municipal
laws, ordinances, regulations and orders relative to the use,
repair and maintenance of the Restaurants, or related to the
rules, regulations or order of the local board of fire
underwriters or other similar body;
(i) cost of legal fees of attorneys, provided such attorneys have
been designated by Owner;
(j) cost of service contracts and cost of on-site utilities;
(k) cost of capital expenditures;
(l) cost of advertising;
(m) Management Fee (payable as provided in Article 13 whether or not
included in the Budget);
(n) Expense Reimbursements (as provided in Article 9 whether or not
included in the Budget);
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(o) cost of audits as required by Owner;
(p) any and all other costs necessary to the management, operation
and maintenance of the Restaurants which are within the approved
Budget;
(q) the cost of any extraordinary expenses as provided in Section 3.4
(whether or not included in the Budget); and
(r) any other costs approved by Owner (whether or not included in the
Budget).
ARTICLE 9
PAYMENT OF EXPENSES
9.1 OWNER'S RESPONSIBILITY FOR EXPENSES. Owner shall be responsible
for, and Manager shall pay directly from the Operating Account, those Operating
Expenses as defined in Article 8 which are incurred by Manager in managing and
operating the Restaurants.
9.2 NON-REIMBURSABLE AND REIMBURSABLE EXPENSES. Cost of gross
salaries and wages, payroll taxes, insurance, worker's compensation and other
benefits of Manager's officers shall be at the sole cost and expense of Manager
and shall not be reimbursed by Owner unless otherwise approved by Owner in an
approved Budget. Any expenses for travel, food and lodging incurred by Manager's
officers and employees in connection with travel to and from the Restaurants
shall be paid for by Manager and shall not be reimbursed by Owner. All other
reasonable and out of pocket expenses for travel, food and lodging (the
"Reimbursable Expenses") incurred by Managers' officers and employees in
performing services pursuant to this Agreement shall be paid by Owner as an
Operating Expense, but only if approved in advance in writing by Owner.
ARTICLE 10
INSUFFICIENT INCOME
10.1 PRIORITIES. If at any time, the cash in the Operating Account
shall not be sufficient to pay the bills and charges which may be incurred with
respect to the Restaurants, Manager shall not be obligated to pay said expenses
and charges from its own account. Manager shall notify Owner upon awareness of a
cash shortage or pending cash shortage and Owner shall determine payment
priority. After Manager has paid, to the extent of available cash, all bills and
charges based upon the priorities established by Owner, Manager shall submit to
Owner a statement of all remaining unpaid bills. Owner shall thereafter and
without undue delay provide sufficient monies to pay any unpaid expenses
properly payable by Owner.
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ARTICLE 11
OWNER'S OBLIGATION
11.1 OBLIGATIONS UNDER CONTRACTS. Owner hereby assumes all obligations
under any contract which Manager shall execute on behalf of Owner under the
terms of this Agreement, and shall indemnify and hold Manager harmless from all
liabilities, costs, and expenses arising in connection with such contracts.
11.2 MANAGEMENT OFFICE. Owner shall provide Manager with a management
office at the Restaurants. All costs incurred by Manager in connection with such
office shall be paid by Owner; provided, however, that such costs shall be in
accordance with the limitations set forth in the approved Budget or otherwise in
this Agreement and provided further that if more than one project is managed
from the management office in a Restaurant, costs associated therewith shall be
equitably allocated among the projects managed therefrom.
11.3 RESPONSE TO MANAGER'S INQUIRIES. Owner shall use all reasonable
efforts to respond promptly to all inquiries and requests for Owner's consent
made by Manager pursuant to this Agreement, but Owner shall, in any event, be
obligated to respond within ten (10) days after such inquiry or request except
to the extent a different time period for response is specified in this
Agreement.
ARTICLE 12
MANAGER'S LIABILITY
12.1 LIMITATION ON MANAGER'S LIABILITY. Manager shall not be liable or
accountable, in damages or otherwise, to Owner for any act performed or failure
to act by it in good faith, unless such act or failure to act is attributable to
fraud, gross negligence, willful misconduct, or material breach of the terms and
provisions of this Agreement; provided, however, that Manager shall not be
liable or accountable, in damages or otherwise, to Owner for any breach of the
terms and provisions of this Agreement with respect to which Manager can
establish that (i) such act or failure to act was undertaken with due regard for
the terms and provisions of this Agreement and (ii) in the reasonable good faith
judgment of Manager, such act or failure to act was not a material violation of
the terms and provisions of this Agreement.
12.2 INDEMNITY OF MANAGER. Owner agrees to indemnify and save harmless
Manager, its governors, members, officers and employees and each of them
(individually and collectively the "Indemnitees"), from and against any and all
claims made or asserted for any losses, claims, damages or injury of any kind or
nature whatsoever (including death resulting therefrom) in connection with
Manager's management and operation of the Restaurants; provided that such
indemnification shall not extend to claims attributable to Manager's fraud,
gross negligence, willful misconduct, or material breach of the terms and
provisions of this Agreement, but only to the extent such claims are based on
Manager's fraud, gross negligence, willful misconduct or material breach
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of the terms of this Agreement. Notwithstanding the foregoing, such
indemnification shall extend to claims resulting from breach of the terms and
provisions of this Agreement if Manager can establish that (i) such act or
failure to act was undertaken with due regard for terms and provisions of this
Agreement and (ii) in the reasonable good faith judgment of Manager, such act or
failure to act was not a material violation of the terms and provisions of this
Agreement. Owner agrees to and does hereby assume on behalf of the Indemnitees,
the defense of any action at law or in equity which may be brought against the
Indemnitees, based on a claim for which indemnification is permitted pursuant to
the terms hereof.
ARTICLE 13
COMPENSATION
13.1 MANAGEMENT FEE. Owner shall pay to Manager, as remuneration for
its services in accordance with the terms of this Agreement, an annual
management fee ("Management Fee") during the term of this Agreement, as set
forth herein. For so long as Thomas W. Orr remains employed by PopMail in his
current position, the Management Fee shall be equal to $451,836.00 per year or a
pro rata portion thereof for any partial year. If Thomas W. Orr is no longer
employed by PopMail in his current position, the Management Fee shall, after the
end of such employment, be equal to $675,000 per year or a pro rata portion
thereof for any partial year. Notwithstanding anything to the contrary in this
Agreement, if Thomas W. Orr is not providing a significant portion of the
essential management services to be performed by Manager under this Agreement,
the annual Management Fee as described in either of the preceding two sentences
shall be reduced by Two Hundred Twenty-Three Thousand One Hundred Sixty-Four
Dollars ($223,164) per year. Owner's obligation to pay the Management Fee shall
continued unabated notwithstanding the termination of this Agreement in
accordance with Article 2 hereof, except that Owner's obligation to pay the
Management Fee shall terminate simultaneously with the termination of this
Agreement if this Agreement is terminated for any reason after the second
anniversary of this Agreement and Owner's obligation to pay the Management Fee
shall terminate simultaneously with the termination of this Agreement if this
Agreement is terminated prior to the second anniversary of this Agreement
pursuant to (a) Section 2.1(ii) (but only if both of the Restaurants or
substantially all of either the stock or assets of Owner are sold to Manager),
(b) Section 2.1(iii) (but only if the closure of the Restaurants results from
casualty or condemnation), (c) Section 2.1(iv), (d) Section 2.2, or (e) Section
2.4 (but only if this Agreement is terminated by Manager pursuant to Section
2.4). If this Agreement is terminated prior to the second anniversary of this
Agreement for any reason other than the reasons specified in the preceding
sentence, then Owner shall be obligated to pay Manager a Termination Fee which
shall be based upon the number of days remaining (from and after the effective
date of such termination) during the first two years of the term of this
Agreement. The Termination Fee shall be equal to the sum of (a) the product
arrived at by multiplying the number of days remaining in the first year of this
Agreement by $1,473.97 per day, plus (b) the product arrived at by multiplying
the number of days remaining in the second year of this Agreement by $1,063.01.
For example, if there are 400 days remaining (from and after the effective date
of such termination) during the first two years of the term of this Agreement,
the Termination Fee shall be
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$439,588.95 (i.e. (35 x $1,473.97) plus (365 x $1,063.01)). Any such Termination
Fee shall be payable in equal monthly installments on the first and fifteenth
day of each month beginning immediately after the effective date of such
termination and continuing until the second anniversary of this Agreement.
13.2 PAYMENT SCHEDULE. Notwithstanding that the Management Fee shall
be determined and reconciled as an annual fee, it shall be payable in equal
installments on the first and fifteenth day of each month, commencing on the
date of this Agreement; provided that the Management Fee shall be prorated for
any partial month within the term of this Agreement. For so long as Thomas W.
Orr remains employed by PopMail in his current position, the installment payable
on the first and fifteenth day of each month shall be $18,826.50. If Thomas W.
Orr is no longer employed by PopMail in his current position, the installment
payable thereafter on the first and fifteenth day of each month shall be
$28,125. Notwithstanding anything to the contrary in this Agreement, each of the
bi-monthly installments of the Management Fee as described in the preceding two
sentences shall be reduced by Nine Thousand Two Hundred Ninety-Eight and 50/xx
Dollars ($9,298.50) if Thomas W. Orr is no longer providing a significant
portion of the essential management services to be performed by Manager under
this Agreement.
13.3 PAYMENT RECONCILIATION. Within sixty (60) days after the end of
each calendar year, or sixty (60) days after the earlier termination of this
Agreement, there shall be an adjustment prepared by Manager between Owner and
Manager, with payment to Manager or repayment by Manager to Owner, as
appropriate, so that Manager receives the Management Fee provided for herein and
calculated as stated above. The Management Fee provided for herein, and the
installment payments on account of such Management Fee, shall be adjusted on a
proportionate basis for any partial month or partial half month installment
period during the term of this Agreement.
13.4 PAYMENTS TO ACCOUNTS OF MANAGER. The Management Fee and any
reimbursements to be made to Manager pursuant to the terms of this Agreement
shall be transferred by Manager from the Operating Account into such accounts as
may be designated by Manager from time to time or may be paid directly to
Manager at Manager's option.
ARTICLE 14
RIGHT OF FIRST REFUSAL
14.1 RIGHT OF FIRST REFUSAL. Owner hereby grants to Manager during the
term of this Agreement a right of first refusal to purchase either or both of
the Restaurants or all or substantially all of the assets of, or the equity
interests in, Owner upon the same terms and conditions as are offered for any of
the foregoing by any third party purchaser and which are acceptable to Owner. If
Owner should receive any such acceptable offer, Owner shall give Manager written
notice (the "Notice") of all of the terms and conditions thereof and Manager
shall have thirty (30) days after the date on which Manager receives such notice
(the "Notice Date") in which to exercise its right of
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first refusal by giving its written notice of acceptance to Owner. Manager must
consummate such purchase within one hundred twenty (120) days after the Notice
Date upon the same terms and conditions as set forth in the Notice. If Manager
fails to exercise its right of first refusal within thirty (30) days after the
Notice Date, then Owner shall be permitted to consummate the sale to the third
party so long as the closing is completed within one hundred twenty (120) days
after the Notice Date upon the same terms and conditions as set forth in the
Notice. If the sale is not consummated within one hundred twenty (120) days
after the Notice Date upon the same terms and conditions as set forth in the
Notice, then Owner must once again comply with all of the notice provisions
contained in this Section before consummating any such sale to a third party.
ARTICLE 15
ASSIGNMENT
15.1 ASSIGNMENT BY MANAGER. Manager shall not transfer or assign this
Agreement or any part thereof or any of its rights or obligations hereunder
without the prior written consent of Owner. The consent of Owner to one or more
assignments of this Agreement shall not be construed as, or result in, the
consent by Owner to any further or future assignment or assignments. Any
assignment or attempted assignment not made strictly in accordance with the
foregoing shall be void.
ARTICLE 16
COOPERATION
16.1 LISTING BROKER. If Owner executes a listing agreement with a
broker for the sale by the Owner of either of or both of the Restaurants,
Manager shall cooperate with such broker to the end that the respective
activities of Manager and broker may be carried on without friction and without
interference to the conduct of business at the Restaurants. Manager shall permit
the broker to exhibit the Restaurants during reasonable business hours after
reasonable notice to Manager. Manager shall not be entitled to any portion of
the commission or other compensation payable to any such broker.
ARTICLE 17
LEGAL PROCEEDINGS
17.1 LEGAL PROCEEDINGS. If any claims, demands, suits or other legal
proceedings are instituted by any person against Owner or the title holder of
the Restaurants which arise out of any of the matters relating to this
Agreement, Manager shall (without expense to Manager, but without any charge to
Owner for any time devoted thereto by Manager's governors, officers, managers or
employees) give Owner all pertinent information and reasonable assistance in the
defense or other disposition thereof.
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ARTICLE 18
NOTICES: AUTHORIZED REPRESENTATIVES
18.1 NOTICES. Any notice or report provided for or permitted under
this Agreement shall be personally served, telecopied or sent by overnight
courier or U.S. Mail and shall be deemed given: (a) if served in person, when
served; (b) if telecopied, on the date of transmission if before 3:00 p.m.
(Minnesota time) on a business day; provided that a hard copy of such notice is
also sent pursuant to (c) or (d) below; (c) if by overnight courier, on the
first business day after delivery to the courier; or (d) if by U.S. Mail,
certified or registered mail, return receipt requested on the third (3rd) day
after deposit in the mail postage prepaid, if properly addressed (i) if to
Owner, to PopMail.com, Inc., c/o BaryCenter Capital Management, 8260 NorthCreek
Drive, Suite 140, Cincinnati, OH 45236, Attention: Stephen D. King, with a copy
to Maslon Edelman Borman & Brand, LLP, 3300 Norwest Center, Minneapolis, MN
55402, Attention: Counsel for PopMail.com, Inc., or (ii) if to Manager, to
Odyssey Restaurants, LLC, a Minnesota limited liability company, Attention: 500
16th Street, Suite 350, Denver, CO 80202, Attention: Thomas W. Orr, with a copy
to Senn Lewis & Visciano, 1801 California Street, Suite 4300, Denver, CO 80202,
Attention: Mark A. Senn; or to such other address as Owner may specify in a
written notice to Manager or Manager may specify in a written notice to Owner in
accordance with this Section 18.1.
18.2 AUTHORIZED REPRESENTATIVES. Subject to the other requirements of
this Agreement, Owner and Manager agree that the following persons on behalf of
each such party are entitled to act on its behalf in dealing with the other
party and such other party shall be entitled to rely thereon:
On behalf of Owner: Stephen D. King
On behalf of Manager: Thomas W. Orr
Ronald K. Fuller
Manager and Owner shall each have the right to designate additional or
substitute persons as authorized representatives by written notice to the other.
ARTICLE 19
MISCELLANEOUS
19.1 MANAGER'S RIGHTS. Manager shall not be required to work
exclusively for Owner during the term of this Agreement, but may set its own
schedule and working hours sufficient to permit satisfactory performance under
this Agreement. Manager is free to devote its time and attention to such other
activities as it deems appropriate, including other consulting and management
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work (including management of other restaurants, including but not limited to
other Cafe Odyssey Restaurants), so long as its services to Owner are not
comprised thereby. In particular, and without limiting the generality of the
foregoing, Manager shall be entitled to negotiate for and consummate the
purchase of either or both of the Restaurants, the purchase of all or
substantially all of the assets or stock of Owner, and be involved in the
ownership and management of other restaurants, including, but not limited to,
the ownership and management of Cafe Odyssey Restaurants as contemplated in that
certain License and Credit Enhancement Agreement of even date herewith between
Manager and Owner.
19.2 INDEPENDENT CONTRACTOR. Manager shall perform the services set
forth herein as an independent contractor and not as a servant, employee, or
partner of Owner. The parties hereby make explicit their intention that Manager
shall in all respects operate as an independent contractor and shall not be
deemed an employee of Owner for any purpose whatsoever. Manager shall not be
treated as an employee of Owner for federal income tax purposes or otherwise,
and no compensation under this Agreement shall be subject to FICA taxes or
federal or state income tax withholding; Manager will be responsible for payment
of federal and state income tax on all compensation earned pursuant to this
Agreement.
19.3 DISCLAIMER OF RELATIONSHIP. The relationship between Owner and
Manager shall be that of owner and manager only. No term in this Agreement and
no course of dealing between the parties shall be deemed to create any
relationship of agency, partnership, joint venture or franchisor-franchisee, nor
to create any relationship of parent-subsidiary or any other affiliation between
the parties.
19.4 SEVERABILITY. Wherever possible, each provision of this Agreement
shall be interpreted so as to be effective and valid under applicable law, but
if any provision hereof shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
19.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be effective only upon delivery and thereafter
shall be deemed an original, and all of which shall be taken to be one and the
same instrument to the same effect as if all parties hereto had signed the same
signature page. Any signature page of this Agreement may be detached from any
counterpart of this Agreement without impairing the legal effect of any
signatures thereon and may be attached to another identical counterpart of this
Agreement, but having attached to it one or more additional signature pages.
19.6 NO BLANKET WAIVER. In the event of a waiver of a default by
either party under this Agreement, such waiver shall not operate as a waiver of
any subsequent default.
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19.7 ARBITRATION. Any disputes that may arise between the parties
under this Agreement, or with respect to or arising out of subject matter
hereof, shall be submitted to arbitration in the state of, and pursuant to the
laws of, Minnesota under the following procedure:
(1) Any party hereto (the "Initiating Party") can declare a dispute
to be irreconcilable, thereby invoking binding arbitration, by giving notice
thereof in accordance with the provisions of Section 10 hereof. Such notice
shall identify the Initiating Party's designated independent arbitrator. Each
arbitrator appoint pursuant to this Section 19.6 shall have at least ten (10)
years of experience in the field of restaurant operations and management.
(2) The party so notified (the "Responding Party") shall then have
twenty (20) days to identify the Responding Party's designated independent
arbitrator by notice to the Initiating Party and by having the Responding
Party's designated arbitrator contact the Initiating Party's designated
arbitrator within said twenty (20) days. If the Responding Party fails to do so,
the Initiating Party may designate the Responding Party's arbitrator.
(3) The two arbitrators shall, within twenty (20) days of the date
they initially make contact, designate a third arbitrator. If the two
arbitrators cannot agree within said twenty (20) days on a third arbitrator,
then the two arbitrators shall petition the District Court of Hennepin County,
Minnesota, to appoint the third arbitrator.
(4) Notwithstanding anything herein to the contrary, at the time an
Initiating Party invokes binding arbitration, the Initiating Party may request
that the Responding Party agree upon a single arbitrator to determine the
matter, in which event the arbitration shall proceed before, and be determined
by, the single arbitrator agreed upon by the parties.
(5) The arbitrators, using procedures of the American Arbitration
Association or any like organization acceptable to the arbitrators, shall
determine liability and damages, if any, to be awarded. The parties shall each
advance their proportionate share of any advance fees required to be paid to the
arbitrators. The losing party shall pay all arbitration fees and shall also be
liable for attorneys' fees incurred by the successful party. Should the
arbitrators determine that both parties bear some liability in connection with
the dispute, then the arbitrators shall assess arbitration and attorneys' fees
as they deem appropriate under the circumstances.
(6) The award of the arbitrators shall be final and binding and may
be enforced by the District Court of Hennepin County, Minnesota.
19.8 WAIVER OF JURY TRIAL. NOTWITHSTANDING THE PROVISIONS OF THE
PRECEDING SECTION, SHOULD ANY PROCEEDINGS IN CONNECTION WITH THIS AGREEMENT OR
THE SUBJECT MATTER HEREOF BE CONDUCTED IN THE COURTS OF MINNESOTA, OR ANY OTHER
JURISDICTION, THE PARTIES EACH WAIVE TRIAL BY JURY TO THE FULLEST EXTENT
PERMITTED BY LAW.
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19.9 ATTORNEYS' FEES. If any action (including a lawsuit, arbitration,
mediation, or administrative proceeding) is brought for or on account of any
breach of this Agreement, or to enforce or interpret any of the terms, covenants
or conditions of this Agreement, the substantially prevailing party shall be
entitled to receive from the other party attorneys' fees and costs (including
without limitation expert witness and consulting fees) incurred in the action.
19.10 FURTHER ASSURANCES. Each party agrees to do such things, perform
such acts and make, execute acknowledge and deliver such documents as may be
reasonably necessary or proper to insure that the purpose and intent of this
Agreement are accomplished.
19.11 PRONOUNS. The pronouns used in this Agreement referring to
Manager or Owner shall be understood and construed to apply whether Manager or
Owner is an individual, partnership, corporation or an individual or individuals
doing business under a firm or trade name, and the masculine, feminine and
neuter pronouns shall each include the others and may be used interchangeably
with the same meaning.
19.12 AMENDMENTS. Any and all amendments to this Agreement shall be
null and void unless approved by the parties in writing.
19.13 HEADINGS. All headings herein are inserted only for convenience
and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement.
19.14 SUCCESSION. This Agreement shall be binding upon and inure to
the benefit of Owner, its successors and assigns, and shall be binding upon and
inure to the benefit of Manager, its successors and permitted assigns.
19.15 ENTIRE AGREEMENT. This Agreement hereto constitutes the entire
Agreement between Owner and Manager.
19.16 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Minnesota.
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IN WITNESS WHEREOF, Owner and Manager have executed this Agreement
effective as of the date first set forth above.
MANAGER
ODYSSEY RESTAURANTS, LLC
By: /s/ R.K. Fuller
--------------------------------------
Name: Ronald K. Fuller
-------------------------------------
Title: Chief Operating Manager
-----------------------------------
OWNER
CAFE ODYSSEY, LLC
By: /s/Stephen D. King
--------------------------------------
Name: Stephen D. King
-------------------------------------
Title: Chief Operating Manager
-----------------------------------
H D SPIRITS, INC.
By: /s/Stephen D. King
--------------------------------------
Name: Stephen D. King
-------------------------------------
Title: Secretary
-----------------------------------
POP.MAIL.COM, INC.
By: /s/Stephen D. King
--------------------------------------
Name: Stephen D. King
-------------------------------------
Title: Chief Executive Officer
-----------------------------------
/s/ R.K. Fuller
------------------------------------------
Ronald K. Fuller, Individually
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ITEMS TO BE INCLUDED IN ANNUAL PLAN
(i) a detailed estimate of the gross projected revenues for the
forthcoming fiscal year;
(ii) a detailed estimate of the Operating Expenses;
(iii) a statement as to the projected balances of the working
capital and any replacement reserve accounts as of the first
day of the forthcoming fiscal year;
(iv) a statement as to the projected additions to or disbursements
from any such reserve accounts for the forthcoming fiscal
year;
(v) an estimate of the projected net cash flow for the
forthcoming fiscal year;
(vi) a detailed description of the renovations or other capital
improvements, if any, proposed to be undertaken during the
forthcoming fiscal year;
(vii) an estimate of the total costs of the renovations or other
capital improvements, if any, proposed to be undertaken
during the forthcoming fiscal year; and
(viii) a description of the minimum insurance coverage to be
maintained for the forthcoming fiscal year. Owner will
provide Manager with the costs of insurance to be included in
the Annual Plan at least forty-five (45) days prior to the
date the Annual Plan is required to be submitted to Owner by
Manager hereunder.
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INSURANCE REQUIREMENTS
1. PROPERTY INSURANCE. Coverage shall be on a comprehensive all risk
basis and shall not exclude the following: fire, lightning,
extended coverage, vandalism, electrical short circuit, flood,
water damage, collapse, earthquake, debris removal, demolition,
increased cost of construction (at commercially reasonable rates
and limits) and the value of the undamaged portion.
The amount of such insurance shall not be less than the full
replacement cost (and a replacement cost endorsement shall be
provided for these purposes permitting payment of the loss
without a requirement to rebuild) as determined by an insurance
appraisal or such other valuation.
The Policy shall contain an endorsement called an "Agreed Amount
Endorsement" which shall waive any and all co-insurance
provisions under the Policy as it applies to the coverage. The
Policy shall waive all of the insurer's rights of subrogation
against Manager.
Boiler & Machinery Insurance on a comprehensive form in an amount
that is adequate to provide protection against the maximum amount
of damage possible to buildings, improvements and contents
resulting from a boiler, machinery or electrical incident that
are sudden in nature.
Earthquake Insurance will be required for each property unless
waived by Owner.
2. BUSINESS INTERRUPTION INSURANCE. Coverage shall include all of
the risks referred to in subsection (1) above (Property
Insurance). The amount of insurance shall not be less than the
100% of the estimated annual profits for each of the Restaurants.
The Policy shall contain an agreed amount endorsement waiving all
co-insurance provisions.
3. COMMERCIAL LIABILITY INSURANCE. This Policy shall include
coverage for claims arising from bodily injury, personal injury
and property damage occurring upon, in or about each property.
The coverage shall be on an occurrence basis and the minimum
limits shall be not less than $ 1,000,000.
Each policy shall cover the following hazards:
Premises and operations, contractual liability, personal
injury, incidental malpractice and liquor related liability
for a non-operator.
4. COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE. This Policy shall
include coverage for claims arising from bodily injury, and
property damage occurring from
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use of owned and non-owned auto, and coverage of hired vehicles
on an "if any" basis. Coverage should be on an occurrence basis
with limits of not less than $1,000,000.
5. UMBRELLA/EXCESS LIABILITY INSURANCE. This Policy (or Policies)
shall provide limits of no less than $50,000,000 per occurrence
and annual aggregate in excess of the policies described under
Items 3. and 4. above. Manager shall also be a Named Insured on
the policies described under 3, 4, and 5.
6. WORKERS' COMPENSATION AND EMPLOYERS LIABILITY INSURANCE. This
Policy shall include Voluntary Compensation and All States other
than Monopolistic State Fund States and provide for a limit of
not less than $100,000 for Employers Liability protection.
7. GENERAL. All insurance shall be evidenced by valid and
enforceable policies, issued by financially sound and responsible
insurance companies having a Best Policyholder Rating of not less
than A- XIV, and authorized to do business in the state in which
each property is located.
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