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Exhibit (10)(cc)
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AMENDED AND RESTATED
LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT
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THIS AMENDED AND RESTATED LIMITED PARTNERSHIP CERTIFICATE AND
AGREEMENT, (the "Agreement"), made and entered into this _1st_ day
of March,
2006, by and among FLANIGAN'S ENTERPRISES, INC., a Florida
corporation, (the
"General Partner"), FLANIGAN'S MANAGEMENT SERVICES, INC., a Florida
corporation,
a limited partner, and all other parties who shall execute this
Agreement or any
counterpart thereof, as limited partners, collectively, (the
"Limited
Partners"). The Limited Partners, as constituted from time to time,
and the
General Partner are sometimes herein collectively referred to as
the "Partners".
W I T N E S S E T H :
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WHEREAS, on or about September 22, 1995, FLANIGAN'S ENTERPRISES,
INC.,
a Florida corporation, as General Partner, and HOTEL PROPERTIES,
LTD., as
limited partner, entered into a Limited Partnership Certificate and
Agreement
for the purpose of forming a limited partnership pursuant to the
Uniform Limited
Partnership Act of the State of Florida. The limited partnership is
known as CIC
INVESTORS #13, LTD., was duly filed with the Secretary of State,
State of
Florida on November 29, 1995 and is in good standing; and
WHEREAS, the Partners desire to amend and restate the terms of
the
Limited Partnership Certificate and Agreement through this Amended
and Restated
Limited Partnership
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Certificate and Agreement, including but not limited to
re-capitalizing the
Limited Partnership, (the "Partnership").
NOW THEREFORE, intending to be legally bound hereby, the Partners
agree
as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall (unless
otherwise
expressly provided herein or unless the context clearly requires
otherwise) have
the following meanings:
1.1 Additional Capital Balance. The Additional Capital
Contributions,
--------------------------
if any, of the General Partner, as reduced from time to time by all
cash
distributions to such General Partner which, pursuant to the terms
of this
Agreement, are in reduction of the General Partner's Additional
Capital Balance,
and as increased from time to time by any contributions of the
General Partner
which are Additional Capital Contributions.
1.2 Additional Capital Contributions. Any additional cash
contributions
--------------------------------
of the General Partner to the capital of the Partnership pursuant
to Section 3.5
hereof.
1.3 Agreement. This Limited Partnership Certificate and
Agreement.
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1.4 Capital Balance. The Initial Capital Contribution made by a
Partner
---------------
in cash and the fair market value of any contributions in kind, (as
set forth in
this Agreement), as reduced from time to time by all cash
distributions to such
Partner which, pursuant to the terms of this Agreement, are in
reduction of a
Partner's Capital Balance.
1.5 Capital Commitment. The Capital Commitment with respect to
any
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Limited Partner is his obligation to contribute the aggregate
amount to be paid
for the Units (computed at the rate of $5,000.00 per Unit)
subscribed for by him
pursuant to his Subscription Agreement
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and set opposite his name on the signature page attached to this
Agreement, and
with respect to the General Partner, is its obligation to make its
original
Capital Contribution pursuant to Section 3.1 hereof.
1.6 Initial Capital Contribution. The Contribution made by each
Partner
----------------------------
pursuant to its Capital Commitment.
1.7 Code. The Internal Revenue Code of 1954, as amended.
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1.8 General Partner. The General Partner is FLANIGAN'S
ENTERPRISES,
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INC. or any successor general partner as provided herein.
1.9 General Partner's Capital. The combined total Capital Balance
and
--------------------------
Additional Capital Balance of the General Partner.
1.10 Law. The Uniform Limited Partnership Act of the State of
Florida
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in effect from time to time during the term hereof.
1.11 Limited Partner. The Limited Partners hereunder and any
such
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persons admitted to the Partnership as substituted Limited
Partners.
1.12 Limited Partners' Capital. The total of the Capital Balance of
all
-------------------------
Limited Partners.
1.13 Limited Partner Percentage. In respect of any Limited Partner
the
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percentage obtained by converting to a percentage the fraction
having the
Initial Capital Contribution of such Limited Partner as its
numerator and having
the Limited Partners' Capital as its denominator.
1.14 Net Cash Flow. Net Cash Flow of the Partnership, with respect
to a
-------------
fiscal period, shall mean Net Income of the Partnership for such
period, reduced
by (i) any repayments of principal on loans of the Partnership,
(excluding
General Partner's Loans, the principal
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amounts of which are payable out of Net Cash Flow as stated in
Article VIII
hereof), (ii) any capital expenditures and prepaid expenses to the
extent not
included in the determination of Net Income, (iii) any Net Sale
Proceeds to the
extent included in the determination of Net Income, and (iv)
reasonable
additions to a reserve, (as determined in the sole discretion of
the General
Partner); and increased by any receipts by the Partnership which
are not
included in the determination of Net Income.
1.15 Net Income. Net Income of the Partnership with respect to
any
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fiscal period shall mean the excess of the gross sales for such
period over all
operating expenses for such period, as those terms are defined
herein,
determined on an accrual basis and determined without regard to
amounts deducted
by the Partnership for cost recovery of tangible assets or
amortization of
capitalized or other capital accounts.
1.16 Net Loss. Net Loss of the Partnership with respect to any
fiscal
--------
period shall mean that excess of all operating expenses for such
period over the
gross sales for such period, as those terms are defined herein,
determined on an
accrual basis and determined without regard to amounts deducted by
the
Partnership for cost recovery of tangible assets or amortization of
capitalized
expenditures or other capital accounts.
1.17 Net Sale Proceeds. The proceeds realized by the Partnership
upon
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the sale, exchange or other disposition of all or any substantial
part of the
Partnership property, net of expenses incident to such sale, the
payment of any
Partnership indebtedness secured by or related to any such assets
and
satisfaction of any right of any creditor of the partnership (other
than a
Partner) to receive such proceeds.
1.18 Participation Percentage. Throughout the term of this
Agreement,
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the Participation Percentage of the Limited Partners is fifty
percent (50%)
(allocated to each Limited
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Partner in proportion to his Limited Partnership Percentage) and
the
Participation Percentage of the General Partner is fifty percent
(50%).
1.19 General Partner's Loans. All amounts loaned by the General
Partner
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to the Partnership pursuant to Section 3.5 hereof.
1.20 Subscription Agreement. The Instrument by which each
prospective
-----------------------
Limited Partner agrees to purchase Units.
1.21 Substitute Limited Partner. A person admitted to all of the
rights
--------------------------
of a Limited Partner who has died or assigned his interest in the
Partnership,
or in the case of a Limited Partner that is a partnership, joint
venture,
association, corporation or trust, that has been dissolved or
assigned its
interest in the Partnership.
1.22 Unit. A Unit means an interest of a Limited Partner in the
Limited
----
Partners' Capital of the Partnership with an original subscription
value of
$5,000.00.
ARTICLE II
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THE LIMITED PARTNERSHIP
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2.1 Existence of Partnership. The parties hereto agree and by
execution
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of this Agreement join as parties to the Partnership and further
acknowledge and
agree that the Partnership was formed pursuant to Chapter 620, et
seq., of the
Florida Statutes, entitled "Uniform Limited Partnership Act"
("Law"), which Law
governs the rights and liabilities of the parties hereto, except as
otherwise
herein expressly stated.
2.2 Partnership Name. The name of the Partnership is CIC INVESTORS
#13,
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LTD. The General Partner, in its sole discretion, may change the
name of the
Partnership at any
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time and from time to time. The General Partner and the Limited
Partners hereto
shall promptly execute and the General Partner shall file and
record with the
proper offices in each state, including any political subdivision
thereof, in
which the Partnership does, or elects to do, business and publish
such
certificates or other statements or instruments as are required by
the Limited
Partnership Law, Beverage Regulations, Fictitious Name Law, Assumed
Name Law or
any other similar statute in effect from time to time in such state
or political
subdivision in order to validly conduct the business of the
Partnership therein
as a limited partnership.
2.3 Character of Business and Purpose of the Partnership. The
business
----------------------------------------------------
and purpose of the Partnership shall be to own, renovate and
operate a
restaurant located at 11415 S. Federal Highway, Pinecrest,
Miami-Dade County,
Florida, (the "Business"), but specifically excludes any interest
of any kind in
the property owned by the landlord.
2.4 Principal Place of Business. The principal place of business of
the
---------------------------
Partnership shall be at 5059 NE 18th Avenue, Fort Lauderdale,
Florida 33334. The
General Partner may change the principal place of business or
establish such
other place or places of business for the Partnership as it may,
from time to
time, deem necessary or appropriate, provided however, that the
General Partner
shall give the Limited Partners notice of any change of address of
the principal
place of business of the Partnership at least ten (10) days prior
to any such
change.
2.5 Term of Partnership. The Partnership shall commence on the
date
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that this Agreement has been filed in accordance with the provision
of the Law
and shall continue until the earlier of the following:
(i) Failure of the Partners to have a liquor license issued for
the Business by the Division of Alcoholic Beverages and
Tobacco within ninety (90) days of the date of this Agreement;
or
(ii) Revocation of the liquor license for the Business by the
Division of Alcoholic Beverage and Tobacco followed by the
inability of the Partners, after the exercise
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of their best efforts, to cause such liquor license to be
reinstated within a ninety (90) day period; or
(iii) Dissolution or termination pursuant to the provisions of
Article X of this Agreement.
2.6 Names and Residences of Partners.
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A. The name and address of the General Partner is:
Flanigan's Enterprises, Inc.
5059 NE 18th Avenue
Fort Lauderdale, Florida 33334
B. The names and places of residences of the Limited
Partners are set forth on the signature pages
attached hereto together with those persons who may,
from time to time, be admitted by the General Partner
as Substitute Limited Partners in accordance with the
terms of this Agreement.
2.7 Nature of Partners' Interests. The interests of the Partners in
the
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Partnership shall be personal property for all purposes. All
property owned by
the Partnership, whether real or personal, tangible or intangible,
shall be
owned by the Partnership as an entity and no Partner, individually,
shall have
any ownership of such property.
2.8 Non-Partition. No Partner shall be entitled to seek partition
of
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any Partnership property.
ARTICLE III
CAPITAL CONTRIBUTIONS;
ADDITIONAL CAPITAL CONTRIBUTIONS;
GENERAL PARTNER'S LOANS; AND
REIMBURSEMENT OF EXCESS CAPITAL CONTRIBUTION
--------------------------------------------
3.1 General Partner. The General Partner shall contribute to
the
----------------
Partnership cash in an amount equal to one percent (1%) of the
total Initial
Contributions of the Partners and other property as set opposite
its name on the
signature page attached to this Agreement.
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3.2 Limited Partners. The Limited Partners' Capital shall be
measured
-----------------
in terms of Units and a Limited Partner shall contribute $5,000.00
for each Unit
purchased. Each Limited Partner shall purchase a minimum of one (1)
Unit. Each
Limited Partner shall contribute to the Partnership as his Initial
Capital
Contribution an amount equal to the amount of his Capital
Commitment as set
forth in the Subscription Agreement executed by him and set
opposite his name on
the signature page attached to this Agreement. The amount of
Capital Commitment
shall be paid in cash by the Limited Partner upon execution and
delivery of the
Subscription Agreement.
3.3 Capital Accounts. The Partnership will maintain for each
Partner an
----------------
account to be designated "Capital Account", to which will be added
the Partner's
Initial Capital Contribution, Additional Capital Contributions and
distributive
share of the profits of the Partnership, and against which will be
deducted the
Partner's distributive share of the losses of the Partnership and
all
distributions made to the Partner. A Partner's Capital Account may,
at any point
in time, be the same as or different from such Partner's Capital
Balance and may
have a negative balance resulting from the Partner's share of
distributions and
losses in excess of the Partner's Initial Capital Contribution and
Additional
Capital Contributions.
3.4 Use of Capital Contributions and Loans. The Initial Capital
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Contributions of the Partners, all proceeds of Partnership
borrowings, and any
Additional Capital Contributions or General Partner's Loans made
pursuant to
this Agreement, shall be used to change and convert the business
premises of the
Business to the General Partner's "Flanigan's Seafood Bar and
Grill" restaurant
concept and as working capital.
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3.5 Additional Capital Contributions and General Partner's
Loans.
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A. Other than as expressly set forth in this Article III, no
Limited Partner shall be required or permitted to make any
Additional Capital
Contributions, Partner's Loans, or other contributions, loans or
advances to the
Partnership; however, the General Partner may make, in its sole
discretion,
Additional Capital Contributions, Loans, or advances to the
Partnership.
B. If the General Partner advances any funds to the
Partnership after the date of this Agreement (except in the case of
Additional
Capital Contributions), such advances will be treated as General
Partner's
Loans, will not increase the General Partner's Participation
Percentage, and the
amount thereof will be a debt due from the Partnership to the
General Partner,
entitled to the priorities described in Sections 8.1 and 8.2
hereof, to be
repaid with such interest as provided.
3.6 Withdrawal of Capital. Prior to the dissolution and liquidation
of
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the Partnership, no Partner shall have the right, during the term
of the
Partnership, to require the return of all or any portion of his
Initial Capital
Contribution, except that distributions made in accordance with
Article VIII may
represent in whole or in part a return of capital. Upon any return
of
partnership capital this Agreement shall be amended as provided by
the Law.
3.7 Interest on Capital Contributions. No interest shall be
payable
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with respect to any capital contributed to the Partnership.
3.8 No Priority Among Limited Partners. No Limited Partner shall
have
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any priority over any other Limited Partner as to the return of his
Initial
Capital Contribution or as to compensation by way of income or as
to allocation
of profits and losses or distributions of cash.
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3.9 Excess Capital Contribution. In the event that the cost to
change
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and convert the business premises of the Business, including both
cash and the
fair market value of any property contributed in kind, reasonable
reserves and
organizational costs hereof do not equal or exceed Three Million
Three Hundred
Thousand Dollars ($3,300,000.00), any excess shall be returned to
the Limited
Partners, pro-rata, as a partial refund of their Initial Capital
Contribution.
Upon any return of partnership capital, this Agreement shall be
amended as
required by Law.
ARTICLE IV
LIMITED PARTNERS
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4.1 Limited Liability of Limited Partners. No Limited Partner shall
be
-------------------------------------
liable for any of the losses, debts or obligations of the
Partnership beyond the
amount of his Capital Commitment or be required to contribute any
capital beyond
his Capital Commitment, or be required to lend any funds to the
Partnership,
except that a Limited Partner may be required by law to return any
or all of
that portion of his Initial Capital Contribution which has been
distributed to
him, with interest, if necessary to discharge Partnership
liabilities to all
creditors who extended credit or whose claims arose prior to such
return of
capital.
4.2 Restrictions on Limited Partners.
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A. No Limited Partner shall participate in the management and
control
of the business of the Partnership, transact any business for the
Partnership,
or attempt to do so; and
B. No Limited Partner shall have the power to represent, sign for
or
bind the General Partner or the Partnership.
4.3 Rights and Powers of Limited Partners.
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A. Any Limited Partner may engage in or own an interest in any
other
business ventures which may be engaged in the same or similar
businesses as that
of the Partnership.
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B. Each Limited Partner shall be entitled to participate in
meetings
regarding the affairs of the Partnership and to do all other things
with respect
to the business and affairs of the Partnership permitted by the
Law.
4.4 Admission of Additional Limited Partners. No additional
Limited
------------------------------------------
Partners shall be admitted to the Partnership; provided however,
that the
General Partner may admit Substitute Limited Partners at any time
pursuant to
Article IX.
ARTICLE V
GENERAL PARTNER
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5.1 Rights and Powers.
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A. The General Partner shall have the full and exclusive
discretion,
right and power to manage, control and operate the Partnership and
to do all
things necessary to operate the Business. The General Partner shall
change and
convert the existing facility to its "Flanigan's Seafood Bar and
Grill"
restaurant concept. During the term of this Agreement and while the
General
Partner continues to act in the capacity of General Partner of the
Partnership,
and while the Partnership continues to pay a servicemark fee equal
to three (3%)
percent of gross sales from the Business, as provided in Section
VII hereof, but
not thereafter, the General Partner shall permit the Partnership to
use the
servicemark "Flanigan's Seafood Bar and Grill" for the Business and
shall
supervise the day to day operation of the same under the same
format and
standards as used in its existing "Flanigan's Seafood Bar and
Grill"
restaurants. The Business shall include exclusive management of the
restaurant
located within the business premises for the service of lunch and
dinner each
day.
B. The General Partner is specifically authorized and empowered,
on
behalf of the Partnership, and without any further consent of the
Limited
Partners, to do any act or execute any
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document or enter into any contract or any agreement of any nature
necessary or
desirable, in the sole discretion of the General Partner, in
pursuance of the
business and purposes of the Partnership, including but not limited
to the
operation of the Business. Without limiting the generality of the
foregoing, and
subject to the provisions of Section 5.2, the General Partner shall
have the
following rights and powers to act on behalf of the Partnership,
which it may
exercise at the cost, expense and risk of the Partnership:
(i) Purchase such furniture, fixtures and equipment and make
such
leasehold improvements as are required by the General Partner
for the renovation of the business premises of the Business.
(ii) Place record title to, or the right to use, the property
or
other assets of the Partnership in the name or names of a
nominee or nominees for any purpose convenient or beneficial
to the Partnership.
(iii) Execute contracts, leases, licenses, options to lease or
purchase, rental agreements, concession agreements, use
agreements and the like, of and with respect to Partnership
property.
(iv) Make elections under the tax laws of the United States or
any
state as to the treatment of Partnership income, gains, loss,
deduction and credit, and as to all relevant matters.
(v) Provide or contract for such management services as may be
required for the operation of the Business, including but not
limited to full payroll services, all accounting and
bookkeeping services for the operation of the Business, as an
expense of the Business, (including the preparation and
forwarding of monthly sales tax returns, monthly liquor excise
taxes and annual federal partnership returns), and prompt
payment of all bills incurred in the normal operation of the
Business.
(vi) Establish overall business policy and objectives.
(vii) Provide overall executive supervision of operations of
the
Business.
(viii) Generally supervise employees and others performing
services
for the benefit of and in the operation of the Business.
(ix) Provide advise and arrange for advertising, display and
sales
promotion of the Business.
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(x) Oversee the operation of the Business in the areas of
management, sales and purchasing.
(xi) Arrange for the supervision of the daily operations of the
Business with responsibility for (1) hiring and firing
employees and other service personnel, (2) salary
administration and compensation policies, (3) incentive
programs, (4) inventory purchase and control, (5) pricing of
all goods and services, (6) business procedures, and (7)
controlling daily operational expenses.
(xii) Keep the Business insured against liability claims arising
out
of the operation of the restaurant, as an operating expense of
the Business, with insurance coverage in an amount not less
than One Million Dollars ($1,000.000.00), combined single
limit, including liquor liability and products liability. The
General Partner shall cause the Partnership, itself and the
landlord of the business premises, to be named as additional
insureds on the liability insurance policy and provide the
Partnership, itself and the landlord of the business premises
with Certificates of Insurance as evidence of its compliance
with the provisions hereof.
(xiii) Purchase and maintain worker's compensation insurance for
the
employees of the Business, as an operating expense of the
Business.
(xiv) Keep the business premises reasonably insured against
damage
by fire and other casualty and maintain insurance in
accordance with the provisions of the Lease for the business
premises. The General Partner shall cause the Partnership,
itself and the landlord of the business premises to be named
as additional insureds on the property insurance policy and
provide the Partnership, itself and the landlord of the
business premises with Certificates of Insurance as evidence
of its compliance with the provisions hereof.
(xv) Keep the personal property, fixtures and equipment of the
Business reasonably insured against damage by fire and other
casualty, in an amount equal to its highest insurable value,
with replacement cost endorsement, as an expense of the
Business.
(xvi) Keep the Business reasonably insured against loss of
business
due to fire and other casualty with business interruption
insurance, in an amount to be determined by the General
Partner, as an expense of the Business.
(xvii) Arrange and pay all charges for telephone services, all
utilities, including without limitation, electrical, gas and
water, and cable or other electronic transmission necessary
for operation of the Business, as an expense of the Business.
(xviii) Arrange for trash collection and removal from the Business,
as
an expense of the Business.
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(xix) Make all normal repairs and replacements to the kitchen
equipment and interior, external, non-structural and
structural repairs and replacements of the Business and the
business premises, in order to keep the same in good condition
and good working order to the extent that the General Partner
deems it necessary and in accordance with the provisions of
the Lease for the business premises.
(xx) To pay, collect, compromise, arbitrate, resort to legal
action
or otherwise adjust claims or demands of or against the
Partnership.
(xxi) To borrow money for any Partnership purpose and to make
all
required payments of principal and interest with respect
thereto.
(xxii) To timely comply with and abide by all of those
obligations,
terms, covenants and conditions imposed upon the Partnership
as tenant of the Lease for the business premises of the
Business, including but not limited to the timely payment of
rent, as an expense of the Business.
(xxiii) To promptly comply with, execute and fulfill all
governmental
statutes, ordinances and regulations applicable to the
Partnership in connection with the Business, including without
limitation, all orders and requirements imposed by the Board
of Health, sanitation, fire and police departments including
without exception those for the correction, prevention and
abatement of nuisances in or upon or connected with the
business premises of the Business, as an expense of the
Business.
The General Partner shall be responsible for the procurement and
hiring
of all employees, agents and independent contractors required for
on site
operation on a day to day basis including, but not limited to, a
manager. The
General Partner shall control all of the day to day operations of
the Business
and shall handle all negotiations, complaints, objections and other
matters
involving the operation of the Business, the patrons of the
Business, and the
employees and staff or any sublessee of or operator of any portion
of the
Business in connection with activities at the Business. The General
Partner
shall hire, instruct, maintain and supervise personnel to properly
staff the
Business and shall maintain the Business, the interior, exterior,
non-structural
and structural portions of the building it occupies, its fixtures
and its
premises in a reasonable manner and condition, keeping it clean and
serviceable,
including arranging for janitorial services as an expense of the
Business. The
General Partner shall have the full responsibility to collect for
all
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services and sales from the Business, except as hereinafter
provided, to daily
deposit all receipts in bank account(s) designated by the General
Partner, shall
arrange for advertising for the Business to the extent deemed
desirable by the
General Partner and maintain all necessary licenses, including
liquor license,
and permits required in connection with the operation of the
Business. The cost
of such activities, including license renewal fees, incurred for
the Business
shall be borne by the Business.
In discharging the foregoing duties, the General Partner shall act
and
conduct the Business in a reasonable manner. In order for the
General Partner to
have the greatest opportunity to discharge such duties and to
maximize profits
from the Business, the Limited Partners shall cooperate fully with
the General
Partner and shall promptly provide the General Partner with all
information and
assistance as the General Partner may reasonably request pursuant
to this
Agreement. The General Partner shall devote such time to the
Business as, in its
judgment, the supervision of the Business shall reasonably require,
but shall
not be obligated to do or perform any act or thi
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