TERMINATION AND RELEASE AGREEMENT
THIS
TERMINATION AND RELEASE AGREEMENT (the “Agreement”)
is
entered into as of October 2, 2007 by and among KEY HOSPITALITY ACQUISITION
CORPORATION, a Delaware corporation (“Key”),
CAY
CLUBS, INC., a Delaware corporation and a wholly owned subsidiary of Key
(“Parent”),
KEY
MERGER SUB LLC, a Florida limited liability company and a wholly owned
subsidiary of Parent (“Key
Merger Sub”),
KEY
MERGER SUB INC., a Delaware corporation and a wholly owned subsidiary of Parent
(“New
Key Merger Sub”
and,
together with Key Merger Sub, the “Merger
Subs”
and
each
a “Merger
Sub”),
CAY
CLUBS LLC, a Florida limited liability company (the “Company”),
and
each of the persons listed under the caption “Members”
on
the
signature page hereof, such persons being all of the members of the Company
(collectively, the “Members”).
Key,
Parent, Merger Subs, the Company and Members, hereinafter collectively referred
to as, the “Parties”.
WHEREAS,
on August 2, 2007, the Parties entered into that certain AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER (the “Merger
Agreement”).
All
capitalized terms used herein and not defined, will have the meanings ascribed
to them in the Merger Agreement; and
WHEREAS,
the Parties desire to terminate the Merger Agreement on the terms and conditions
set forth herein.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the Parties hereby agree as follows:
SECTION
1. Termination
of Merger Agreement.
By
their execution of this Agreement, the Parties acknowledge and agree that,
effective as of the date hereof, the Merger Agreement is hereby irrevocably
terminated and of no further force or effect.
SECTION
2. Release
of Claims
(a) Release
by Key, Parent and Merger Subs.
Effective as of the date hereof, each of Key, Parent and each Merger Sub does
hereby remise, release and forever discharge the Company and the Members, and
each of the present and former stockholders, members, directors, managers,
officers, employees, agents, affiliates and representatives of the foregoing
and
their respective successors and assigns (each a “Company
Released Party”)
of and
from any and all commitments, covenants, agreements, indebtedness, suits,
demands, obligations and liabilities, contingent or otherwise, of every kind
and
nature, whether known or unknown, related to the Merger Agreement (collectively,
the “Claims”),
which
Key, Parent and each Merger Sub and/or their successors or assigns ever had,
now
has or, to the extent arising from or in connection with any act, omission
or
state of facts taken or existing on or prior to the date hereof, may have after
the date hereof, against any Company Released Party, whether asserted,
unasserted, absolute, contingent, known or unknown.
(b)
Release
by the Company and Members.
Effective as of the date hereof, the Company and each of the Members does hereby
remise, release and forever discharge each of Key, Parent and each Merger Sub,
and each of the present and former stockholders, members, directors, managers,
officers, employees, agents, affiliates and representatives of the foregoing
and
their respective successors and assigns (each a “Key
Released Party”)
of and
from any Claim which the undersigned and/or his or its heirs, executors,
administrators, successors or assigns ever had, now has or, to the extent
arising from or in connection with any act, omission or state of facts taken
or
existing on or prior to the date hereof, may have after the date hereof, against
any Key Released Party, whether asserted, unasserted, absolute, contingent,
known or unknown.
SECTION
3. Miscellaneous.
3.1 Entire
Agreement.
This
Agreement states the entire agreement of the Parties concerning the subject
matter hereof, and supersedes all prior agreements, written or oral, between
or
among them concerning such subject matter.
3.2 Amendments;
Waivers.
This
Agreement may be amended, and compliance with any provision of this Agreement
may be omitted or waived, only by the written agreement of the Party that is
adversely affected by such amendment or waiver.
3.3 Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors, heirs, personal representatives, legal
representatives, and permitted assigns.
3.4 Severability.
If any
provision of this Agreement shall be declared void or unenforceable by any
judicial or administrative authority, the validity of any other provision and
of
the entire Agreement shall not be affected thereby.
3.5 Headings.
The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be a part of this
Agreement.
3.6 Nouns
and Pronouns.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
names and pronouns shall include the plural and vice-versa.
3.7 Further
Assurances.
The
Parties hereto agree to use their respective reasonable best efforts to take,
or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
3.8 Governing
Law.
This
Agreement shall be governed by, and construed and enforced in accordance with,
the substantive laws of the State of Delaware, without regard to its principles
of conflicts of laws.
3.9 Counterparts.
This
Agreement may be executed in any number of counterparts, each such counterpart
shall be deemed to be an original instrument, and all such counterparts together
shall constitute but one agreement. Any such counterpart may contain one or
more
signature pages.
IN
WITNESS WHEREOF, the Parties have executed, or have caused their duly authorized
representative to execute, this Termination and Release Agreement as a contract
under seal as of the date first written above.
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By: /s/
Xxx
Xxxxxxxx
CAY
CLUBS, INC.
By: /s/
Xxx
Xxxxxxxx
KEY
MERGER SUB LLC
By: /s/
Xxx
Xxxxxxxx
KEY
MERGER SUB INC.
By: /s/
Xxx
Xxxxxxxx
CAY
CLUBS LLC
By: /s/
F. Xxxx
Xxxxx
MEMBERS:
/s/ Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
F.
Xxxx Xxxxx Irrevocable Trust under Agreement dated August 31,
2004
By:
F.
Xxxx
Xxxxx
F.
Xxxx Xxxxx, as Trustee
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