Exhibit (10)(dd)
LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT
---------------------------------------------
THIS LIMITED PARTNERSHIP CERTIFICATE AND AGREEMENT, (the "Agreement"),
made and entered into
this 17 day of
October, 2006,
by and among
FLANIGAN'S
--
ENTERPRISES, INC., a Florida corporation, (the "General Partner"),
and all other
parties who
shall execute this Agreement or any counterpart thereof,
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, the
Partners desire to form a limited partnership (the
"Partnership")
pursuant to the Uniform Limited Partnership Act of the State
of
Florida upon the terms and conditions hereinafter set forth;
NOW THEREFORE, intending to be legally bound hereby, the Partners
agree
as follows:
ARTICLE I
DEFINITIONS
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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
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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
-------------------
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 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.
----
1.8 General Partner.
The General
Partner is FLANIGAN'S
ENTERPRISES,
---------------
INC. or any successor general partner as provided herein.
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1.9 General Partner's
Capital. The combined
total Capital Balance and
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Additional Capital Balance of the General Partner.
1.10 Law. The Uniform
Limited Partnership
Act of the State of Florida
---
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
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Limited Partners.
1.13 Limited Partner Percentage. In respect of any Limited Partner
the
--------------------------
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
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
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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
-----------------
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,
-------------------------
the Participation
Percentage
of the Limited
Partners is fifty
percent (50%)
(allocated to each
Limited 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
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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
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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
THE LIMITED PARTNERSHIP
-----------------------
2.1 Formation of
Partnership. The
parties hereto agree to form and by
-------------------------
execution of this Agreement do hereby enter into a limited
partnership
pursuant
to Chapter 620, et seq., of the Florida Statutes, entitled "Uniform Limited
Partnership Act"
("Law") which Law shall govern 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
#50,
----------------
LTD. The General
Partner, in its sole
discretion,
may change the name of
the
Partnership at any
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
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at 17185 Pines
Boulevard, Pembroke
Pines, Broward County, Florida and most
recently operating as "BROOK'S & BAILEY'S", (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
--------------------
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 one (1) year 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 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.
--------------------------------
A. The
name and address of the General Partner is:
Flanigan's Enterprises, Inc.
5059 NE 18th Avenue
Fort Lauderdale, Florida 33334
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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
-------------
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.
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
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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
------------------------------------------
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.
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.
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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
---------------------
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
-----------------------------------
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.
3.9 Excess Capital
Contribution. In the
event that the cost to change
----------------------------
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 Two Million
Three Hundred
Fifty Thousand
Dollars ($2,350,000.00), any excess shall be returned to the
Limited Partners,
pro-rata, as a
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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
----------------
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.
--------------------------------
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.
-------------------------------------
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.
-----------------
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.
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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
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.
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(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.
(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.
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(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.
(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
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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
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 thing in connection with the
Business not expressly set forth herein.
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5.2 Certain Limitations. In addition to other acts expressly
prohibited
-------------------
by this Agreement
or by the Law, the General Partner shall not have any
authority to:
A. Do any act in contravention of this Agreement;
B. Do any
act which would make it impossible to operate the Business or
to otherwise carry on
the ordinary
business of the
Partnership
or any phase
thereof, except as expressly provided in this
