Exhibit 10.48
SETTLEMENT AGREEMENT
AND MUTUAL RELEASE
THIS AGREEMENT is entered into by and between NORTHGATE SQUARE CINCINNATI, LLC,
an Ohio limited liability company ("LANDLORD"), and SHELL'S SEAFOOD RESTAURANTS,
INC. ("TENANT"), a Delaware corporation.
RECITALS
A. LANDLORD is the owner of the real property and improvements located at 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxx (hereafter referred to as the
"Leased Premises").
B. Pursuant to a lease agreement dated May 28, 1997 (the "Lease") with
LANDLORD's predecessor-in-interest, Xxxxx Industries, Inc., TENANT leased Leased
Premises for the operation of TENANT's restaurant business.
C. TENANT vacated the Leased Premises on or about April 18, 2001.
D. LANDLORD has alleged that TENANT breached the Lease by failing to pay
base rent and other amounts due as provided therein, and by abandoning the
Leased Premises.
E. On or about May 8, 2001, LANDLORD filed a Complaint for Breach of Contract
against TENANT in the Common Pleas Court of Xxxxxxxx County, Ohio, Case No.
A0102926 (the "Lawsuit").
F. LANDLORD and TENANT (hereinafter collectively referred to as the "Settling
Parties") wish to terminate the Lease and TENANT's tenancy thereunder; avoid the
risk and expense of continued dispute; and settle and resolve all claims or
potential claims between them-including, but not limited to, those claims or
potential claims arising out of the Lease, TENANT's rental and occupation of the
Leased Premises, and all claims asserted in the Lawsuit-pursuant to the terms of
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises made herein and the
exchange of other valuable consideration as described below, the Settling
Parties agree as follows:
1. Concurrently with the execution of this Agreement, TENANT will pay LANDLORD
the sum of NINETY-EIGHT THOUSAND ONE HUNDRED SIXTY-FIVE AND 60/100 DOLLARS
($98,165.60), by certified or cashier's check, in full and complete satisfaction
of all amounts due LANDLORD for base rent, common area maintenance and utilities
charges through and including November 30, 2001.
2. Concurrently with the execution of this Agreement, TENANT will pay LANDLORD
the sum of SIX THOUSAND DOLLARS ($6,000.00), by certified or cashier's check, in
reimbursement of attorney fees and court costs incurred by LANDLORD in
connection with the Lawsuit, the underlying dispute between LANDLORD and TENANT,
and the preparation, negotiation and execution of this Agreement.
3. TENANT will also pay LANDLORD the sum of ONE HUNDRED TWENTY-TWO THOUSAND
EIGHT HUNDRED NINETY-ONE DOLLARS ($122,891.00) plus interest at the rate of ten
percent (10%) per annum (hereafter referred to as the "Indebtedness"), in eight
(8) consecutive quarterly payments of SEVENTEEN THOUSAND ONE HUNDRED SIXTY-EIGHT
AND 65/100 DOLLARS
Settlement Agreement - Page 1
($17,168.65), commencing on January 1, 2002 and continuing on the first day of
each third month thereafter until October 1, 2003, whereupon all amounts of
unpaid principal and accrued but unpaid interest will be due and payable in
full. TENANT's obligations under this Section will be evidenced by TENANT's
execution and delivery to LANDLORD, concurrently with the execution of this
Agreement, of a promissory note substantially in the form attached hereto as
Exhibit A (the "Note"). The Settling Parties agree that TENANT's default under
the Note will also constitute a breach of this Agreement.
4. Concurrently with the execution of this Agreement, in order to secure the
payment of the Indebtedness, TENANT will execute and deliver to LANDLORD a
security agreement (the "Security Agreement") substantially in the form attached
hereto as Exhibit B, granting LANDLORD a first priority security interest in all
of the assets (hereafter referred to as the "Collateral") of TENANT's restaurant
located at 0000 XX 000xx Xxxxxx, Xxxxx, Xxxxx-Xxxx Xxxxxx, Xxxxxxx, 00000
(hereafter referred to as the "Xxxxxxx Unit"). In connection therewith, TENANT
hereby represents and warrants to LANDLORD that TENANT is the owner of the
Collateral, free from any prior lien, security interest or encumbrance. TENANT
further represents and warrants to LANDLORD that the balance sheet attached
hereto as Exhibit C fairly presents the financial position of the Xxxxxxx Unit
as of August 26, 2001 in conformity with generally accepted accounting
principles consistently applied. The Settling Parties agree that a breach of the
Security Agreement by TENANT will also constitute a breach of this Agreement.
5. The Settling Parties acknowledge that TENANT is the holder of a liquor
permit (the "Permit") for the Leased Premises issued by the Ohio Department of
Liquor Control. TENANT agrees to transfer the Permit to LANDLORD's successor
tenant, The Moose is Loose on Colerain, LLC ("MLC"), an Ohio limited liability
company, in full force and effect. MLC will be responsible for preparing and
submitting an application to transfer the Permit to the Ohio Department of
Liquor Control. TENANT represents and warrants that, as of the date of this
Agreement, the Permit is in good standing with the Ohio Department of Liquor
Control. TENANT agrees that, from the date of this Agreement until the transfer
of the Permit to MLC is consummated, TENANT (i) will keep the Permit in full
force and effect; (ii) will not commit any act that would constitute a violation
of Title 4301 of the Ohio Revised Code or Titles 4301 or 4301:1 of the Ohio
Administrative Code, or that would cause the Ohio Department of Liquor Control
to suspend, revoke or cancel the Permit; (iii) will not grant or permit the
attachment of any lien, security interest, or other encumbrance upon or to the
Permit or TENANT's interest therein; and (iv) will use its best efforts and will
cooperate with MLC to transfer the Permit.
6. Within fourteen (14) days after the execution and delivery of this
Agreement by both Settling Parties, the Settling Parties will execute and file a
Stipulation of Conditional Dismissal in the Lawsuit, a copy of which is attached
hereto as Exhibit D.
7. The Settling Parties further agree as follows:
(a) Effective upon the execution and delivery of this Agreement by both
Settling Parties, the Lease shall be terminated and canceled.
(b) Effective upon the execution and delivery of this Agreement by both
Settling Parties, each Settling Party, for itself and its respective
shareholders, members, directors, officers, employees, agents, servants,
representatives, attorneys, successors and assigns, releases, acquits and
forever discharges the other Settling Party, its shareholders, members,
directors, officers, employees, agents, servants, representatives,
attorneys, successors and assigns, from any and all obligations,
liabilities, claims, demands and causes of action that such party ever had,
now has or may have, now or in the future, arising out of any circumstance
related to the Lease and any other business and/or relationship between the
Settling Parties (excluding rights
Settlement Agreement - Page 2
and obligations preserved or created by this Agreement, the Note, or the
Security Agreement, or claims for the enforcement of this Agreement, the
Note, or the Security Agreement).
(c) The Settling Parties specifically preserve the provisions of Article 9
of the Lease relating to Insurance and Indemnification, which provisions
shall survive the termination of the Lease.
8. The Settling Parties' mutual releases are freely and voluntarily executed
by the parties whose signatures are affixed hereto after having been apprised of
the relevant information and data. Each party in executing this Agreement has
not relied on any inducements, promises or representations made by any party
hereto or their employees or agents except as expressly set forth in this
Agreement.
9. Nothing contained in this Agreement will be construed as an admission
of any liability on the part of either Settling Party.
10. No representation or warranty made by TENANT in this Agreement, the Note,
the Security Agreement, or any exhibit or attachment to any of them, and no
statement or certificate furnished or to be furnished by or on behalf of TENANT
pursuant to or in connection with this Agreement, the Note, the Security
Agreement, or any exhibit or attachment to any of them, contains or will contain
any untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements herein or therein not misleading.
11. The Settling Parties each represent that they have had the advice of
independent counsel in connection with this Agreement and that no promise,
inducement or agreement not herein expressed in writing has been made to either
of them. They further represent that the meaning of this Agreement has been
explained to them by their own counsel, that they have read and have understood
each provision of this Agreement, and that they understand and agree to perform
each of their respective obligations as provided therein.
12. In the event that any dispute, litigation or other action arises from this
Agreement including, but not limited to, the interpretation or enforcement
hereof, the prevailing party will be entitled to reimbursement for its
reasonable costs and expenses, including, by way of illustration and not
limitation, attorney fees and court costs, in addition to any other relief that
may be granted by a court of competent jurisdiction.
13. This Agreement may be executed in one or more counterparts, including
facsimile copies, and each counterpart will be deemed an original for all
purposes.
14. If any provision of this Agreement requires judicial interpretation, the
court or tribunal interpreting or construing the Agreement will not construe the
Agreement more strictly against one party by reason of the rule of
interpretation that a document is to be construed more strictly against the
party who itself or through its agent created the same, it being acknowledged
and agreed that the agents or representatives of each party have participated in
the preparation of this Agreement and that each of the Settling Parties
consulted with independent legal counsel of its own selection prior to its
execution of this Agreement.
15. If any provision of this Agreement, in whole or in part (or the application
of any provision to a specific situation), is held to be invalid or
unenforceable by the final judgment of a court of competent jurisdiction after
appeal or the time for appeal has expired, such invalidity or unenforceability
will be limited to such specific provision or portion thereof (or to such
situation), and this Agreement will be construed and applied in such manner as
to minimize such invalidity or unenforceability. This Agreement and all other
provisions hereof will otherwise remain in full force and effect.
Settlement Agreement - Page 3
16. Time is expressly declared to be of the essence in this Agreement and
of every provision hereof in which time is an element.
17. This Agreement, and each and every provision herein contained, will bind
and inure to the benefit of the parties, for themselves and for their
shareholders, members, directors, officers, employees, agents, servants,
representatives, attorneys, insurers, successors and assigns.
18. No breach of any provision hereof can be waived unless in writing and
signed by the party waiving such breach. A waiver of any one breach of any
provision hereof will not be deemed to be a waiver of any other breach of the
same or any other provision of this Agreement.
19. No purported modification or amendment to this Agreement will be effective
or enforceable unless it is evidenced by a written instrument signed by each of
the Settling Parties.
20. Each party hereto agrees to execute, acknowledge, deliver, file and/or
record such further documents and instruments and do all such further acts and
things as may be necessary to carry out the intent and purpose of this
Agreement.
21. This Agreement has been executed and delivered in the State of Ohio, and
will be governed by, construed and enforced in accordance with the laws of the
State of Ohio. The parties agree that any action brought by either party against
the other in any court, whether federal or state, may be brought within Xxxxxxxx
County, Ohio, and do hereby consent to the exercise of personal jurisdiction by
any such court and waive any defense of lack of personal jurisdiction or
improper venue for the purpose of carrying out this provision.
22. All notices, demands and other communications between the Settling Parties
must be in writing, must be addressed as provided in this Section, must be made
by personal delivery, by certified mail, postage prepaid, return receipt
requested, or by overnight delivery service with proof of delivery, and will be
effective upon receipt or refusal thereof. All such notices, demands and other
communications must be addressed as follows:
If to TENANT:
Shell's Seafood Restaurants, Inc.
00000 Xxxxx Xxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
or to such other person or address as TENANT may from time to time furnish to
LANDLORD in the manner described in this Section.
If to LANDLORD:
Northgate Square Cincinnati, LLC
c/o North American Properties
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
or to such other person or address as LANDLORD may from time to time furnish to
TENANT in the manner described in this Section.
Settlement Agreement - Page 4
23. Except as otherwise specifically provided herein, this Agreement will
become effective as of the last date set forth below.
IN WITNESS WHEREOF, the Settling Parties have caused this Agreement to be
executed by their duly authorized representatives as of the dates indicated
below.
SHELL'S SEAFOOD RESTAURANTS, INC.
By: /s/ Xxxxxx X. Xxxxxx Date: 12/3 , 2001
--------------------------------- -------------------
Its: Executive Vice President
NORTHGATE SQUARE CINCINNATI, LLC
By: /s/ Xxxxx X. Xxxxx Date: December 6 , 2001
--------------------------------- -------------------
Its: Treasurer
-----------------------------
11/16/2001
Settlement Agreement - Page 5
