EXHIBIT 10.19
AGREEMENT
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AGREEMENT dated as of December 31, 1994 (as from time to time amended
and in effect, this "Agreement"), by and among Xxxxxx Xxxxxx ("Xxxxxx"), Xxxxxx
Entertainment Corporation, a New Jersey corporation ("Xxxxxx Entertainment"),
Entertainment Restaurants, a New York partnership (the "Partnership"), xxxx
xxxxx productions, inc., a Delaware corporation ("dcpi"), and xxxx xxxxx
restaurants, inc., a Delaware corporation ("dcri").
WHEREAS, the parties hereto entered into a Redemption and Settlement
Agreement, dated as of June 30, 1990 (the "Redemption Agreement"), whereby the
Partnership agreed, among other things, to purchase and acquire from Xxxxxx
Entertainment, by way of redemption, all of Xxxxxx'x right, title and interest
in, to and under, or otherwise relating to, the Partnership Agreement of
Entertainment Restaurants dated September 29, 1988 (the "Partnership
Agreement"), the Restaurants (as such term is defined in the Redemption
Agreement) and the Partnership (collectively, the "Interest"); and
WHEREAS, pursuant to Section 2(a)(ii) of the Redemption Agreement, as
part of the consideration for the redemption of the Interest, the Partnership
agreed to make certain Gross Receipts Payments (as that term is defined in the
Redemption Agreement), of which $1,000,000 has paid to date; and
WHEREAS, the parties desire to prepay the remainder of the
consideration for the redemption of the Interest as otherwise provided for
hereby.
NOW THEREFORE, for good and valuable consideration, the receipt and
legal sufficiency of which is hereby acknowledge, the parties hereby agree as
follows:
1. As full and final satisfaction of all amounts remaining to be paid
for the redemption of the Interest, the Partnership shall pay, on the day hereof
upon the execution and delivery of this Agreement the amount of $3,128,000 (the
"Remaining Payment") by means of a check in the amount of $2,770,000 and the
Offset (as hereinafter defined). Upon receipt of the Remaining Payment, Xxxxxx
and Xxxxxx Entertainment hereby acknowledge that no further amounts are payable
in respect of the Interest and they forever waive any claim of any right, title
or interest in or to the Partnership, the Restaurants or the Interest.
2. Simultaneously with the Partnership making the Remaining Payment,
Xxxxxx Entertainment is paying the Partnership the sum of $358,000 in respect
of amounts owing to the Partnership due to the overpayment to Xxxxxx
Entertainment of certain amounts in respect of Xxxxxx Entertainment's
unreimbursed capital contributions to the Partnership pursuant to Section
2(a)(i) of the Redemption Agreement. The payment of the $358,000 by Xxxxxx
Entertainment shall be made by the Partnership deducting that amount from the
amount of the Remaining Payment (the "Offset").
3. The payment of the Remaining Payment pursuant to Section 1 hereof
shall be treated as a payment of the type described in Section 736(a) of the
Internal Revenue Code of 1986, as amended and in effect as of the date hereof;
and no portion of the Remaining Payment shall be treated as a payment for
intangible property of the Partnership.
4. Xxxxxx and Xxxxxx Entertainment acknowledge that upon payment of
the Remaining Payment by the Partnership, no further amounts are or shall be
payable by the Partnership, dcpi or dcri or any of their affiliates in respect
of the redemption of the Interest or otherwise relating to the Interest and that
the Partnership, dcpi and dcri have no further obligations under the Redemption
Agreement.
5. Each of the parties hereby represents and warrants to the other
parties as follows:
(a) This Agreement has been duly executed and delivered by such
party and the Agreement constitutes such party's legal, valid and binding
obligation, enforceable in accordance with its terms.
(b) No consents or approvals of, or notices to or filings
with, any person or entity are required in connection with the execution,
delivery and performance by such party of this Agreement.
(c) Such party has received independent legal advice from
attorneys of its choice with respect to the advisability of executing this
Agreement.
(d) Except as expressly set forth in this Agreement, none of the
parties hereto has made any statement, representation or warranty to the other
parties hereto regarding any fact relied upon by that party in entering into
this Agreement, and such party specifically does not rely upon any statement,
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representation, warranty or promise of any other party in executing this
Agreement.
(e) Such party has made such investigation of the facts pertaining
to this Agreement, and all of the matters pertaining hereto, as such deems
necessary.
(f) This Agreement constitutes the legal, valid and binding
obligation of such party hereto, enforceable against such party in accordance
with its terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, creditors' rights or other similar laws.
6. In order to induce the Partnership, dcpi and dcri enter into this
Agreement, Xxxxxx and Xxxxxx Entertainment jointly and severally, represent and
warrant to the Partnership, dcri and dcpi as follows:
(a) Neither Xxxxxx nor Xxxxxx Entertainment has granted, permitted
or suffered to exist or consented to the existence of, any Interest or the
Partnership lien, claim, charge, security interest, equitable intent or other
encumbrance of any nature whatsoever in, to or on.
(b) The Interest is free and clear of any lien, claim, charge,
security interest, equitable interest of any nature whatsoever;
7. (a) The Partnership, dcpi and dcri shall, jointly and severally,
indemnify and hold Xxxxxx and Xxxxxx Entertainment harmless from and against any
and all loss, liability, damage or reasonable expense (including, without
limitation, fees and expenses of counsel) that Xxxxxx or Xxxxxx Entertainment
may suffer, sustain or become subject to which arise from actions undertaken or
commenced by the Partnership, dcpi or dcri relating to the Partnership or the
Restaurants after June 30, 1990, that do not relate to or have a basis in the
period prior to June 30, 1990.
(b) Xxxxxx and Xxxxxx Entertainment shall jointly and severally
indemnify and hold harmless the Partnership, dcpi and dcri against any and all
loss, liability, damage or expense (including, without limitation, reasonable
fees and expenses of counsel) that the Partnership, dcpi or dcri may suffer,
sustain or become subject to which arise from actions undertaken or commenced by
Xxxxxx or Xxxxxx Entertainment relating to the Interest, the Partnership or the
Restaurants after
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June 30, 1990, that do not relate to or have a basis in the period prior to
June 30, 1990.
8. Any notices or other communications under or with respect to this
Agreement shall be considered given when received, addressed as follows:
(i) if to the Partnership, dcpi or dcri, to it at 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xx. Xxxxxxx X. Xx Xxxxx,
with a copy to Xxxxxx Xxxxxx Flattau & Klimpl, LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx Xxxxxxxx, Esq.; and
(ii) if to Xxxxxx or Xxxxxx Entertainment at Governor Xxxxxx
Hotel, 0 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Mr. Xxxxxx
Xxxxxx, with a copy to Kalebic & XxXxxx, P.C., 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Esq.
9. This Agreement shall be governed by and construed in accordance
with the law of the State of New York applicable to agreements made and to be
performed in New York, without regard or reference to choice of law principles,
and shall be construed without regard to any presumption or other rule requiring
construction against the party causing the agreement to be drafted.
10. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK
COUNTY OR THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OVER
ANY ACTION, SUIT OR PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT.
EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL
BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING. EACH SUCH PARTY HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS WHICH
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SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION, SUIT OR
PROCEEDING IN ANY SUCH COURT AND IRREVOCABLY AGREES THAT PROCESS IN ANY SUCH
ACTION, SUIT OR PROCEEDING MAY BE SERVED UPON THAT PARTY PERSONALLY OR BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED.
11. No party may assign any of its rights or delegate any of its
duties under this Agreement without receiving the prior written consent of the
other parties hereto, which consent shall not be unreasonably withheld.
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12. No party shall issue any press release or other public statement
regarding the existence of this Agreement or the transactions contemplated by
this Agreement, without the prior written consent of the other parties hereto,
except as may otherwise be required in accordance with applicable securities
laws or other laws. Each of the parties agrees not to make any disparaging or
derogatory remarks about the other parties hereto.
13. The provisions of this Agreement shall not be construed as a
waiver of any party's right to bring suit to enforce the terms of this
Agreement.
14. This Agreement and the Redemption Agreement contain a complete
statement of all the arrangements, understandings and agreements among the
parties with respect to the subject matter hereof, supersede all other
agreements, whether written and oral, among them relating to such subject
matter, and cannot be altered, modified, amended or terminated, except by an
instrument in writing executed by each of the parties hereto.
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This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
XXXXXX ENTERTAINMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
ENTERTAINMENT RESTAURANTS, a
New York General Partnership
By: /s/ Xxxxxx Xxxx Xxxxxxxx
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Name: Xxxxxx Xxxx Xxxxxxxx
Title: Secretary
xxxx xxxxx productions, inc.
By: /s/ Xxxxxx Xxxx Xxxxxxxx
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Name: Xxxxxx Xxxx Xxxxxxxx
Title: Secretary
xxxx xxxxx productions, inc.
By: /s/ Xxxxxx Xxxx Xxxxxxxx
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Name: Xxxxxx Xxxx Xxxxxxxx
Title: Secretary
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