Exhibit 10.29
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT is entered into as of March 14, 1997 by and
between Java Centrale, Inc., a California corporation ("Java Centrale"), and
Java Southeast, Inc., a Delaware corporation ("JSE"). Unless otherwise specified
herein, capitalized terms used herein shall have their respective meanings set
forth in the Joint Venture Development and Operating Agreement dated as of June
30, 1995 between Java Centrale and JSE, as amended (the "Development
Agreement").
WHEREAS, pursuant to a Joint Venture Formation Agreement dated as of
November 14, 1994 among Xxxxxxxxxx Capital Corp., Java Southeast Partners, L.P.,
JSE and Java Centrale, as amended (the "Formation Agreement"), Java Centrale and
JSE entered into the Development Agreement, which provides for the development
and operation of Java Centrale cafes in the State of Florida and certain
additional areas by JSE;
WHEREAS, the parties desire to terminate the Development Agreement upon the
terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, the parties hereto agree as follows:
1. TERMINATION OF DEVELOPMENT AGREEMENT. The Development Agreement is
hereby terminated effective immediately. In connection with such
termination, the parties hereto acknowledge and agree that:
(a) JSE shall have no further obligation to Java Centrale to
pay any Area Development Fees as provided in Section 2.1 of
the Development Agreement, Opening Fees as provided in
Section 2.2 and 2.3 of the Development Agreement, advisory
fees, as provided in Section 2.4 of the Development
Agreement, or any other fees, royalties or other
compensation to Java Centrale or any of its affiliates,
whether accruing in the past, currently owing or payable in
the future.
(b) JSE shall have no further rights to open Java Centrale cafes
in Florida or elsewhere under Section 1.1 or 1.2 or Article
3 or 4 of the Development Agreement. Java Centrale shall
have the right to immediately open, directly or through
franchisees, Java Centrale cafes anywhere in Florida or
elsewhere, including in the market areas served by JSE's
currently existing cafes.
(c) JSE's rights under Section 1.4 of the Development Agreement,
including the right to use the trademark and service xxxx
"Java Centrale" and the Trade Dress, shall terminate;
PROVIDED, HOWEVER, that JSE shall continue to have the
rights act forth in Section 1.4 of the Development Agreement
through December 31, 1997. By such date, JSE shall cease
using the trademark and service xxxx "Java Centrale" and
shall make reasonable changes to the trade dress of its
existing cafes to differentiate such trade dress from the
Trade Dress to the extent such changes in the trade dress
may be without the incurrence of substantial costs.
(d) All other provisions of the Development Agreement shall be
deemed terminated and of no further force or effect.
Exhibit 10.29
2. RELEASE OF DEFAULT The parties acknowledge that Java Centrale has
failed to loan to JSE the sum of $250,000 as contemplated by the
amendment Section 1.1 (a) of the Formation Agreement, as amended by
Section 1(a) of the letter agreement dated June 30, 1995 among such
parties. JSE hereby releases Java Centrale from any liability or
obligation Java Centrale may have to JSE arising from such failure,
including, without limitation, any consequential damages suffered by
JSE, as a result of the effect of the failure to obtain such $250,000
loan from Java Centrale on JSE's ability to develop additional cafes.
3. CANCELLATION OF LOAN Java Centrale hereby releases JSE from any and
all liabilities or obligations JSE by have with respect to a loan by
Java Centrale to JSE in the amount of $27,500 pursuant to the letter
dated June 11, 1996 between Java Centrale and JSE. Concurrently
herewith, Java Centrale shall deliver such note to JSE for
cancellation.
4. NO EFFECT OF $200,000 LOAN JSE acknowledges its obligation under the
promissory note of JSE dated December 7, 1995 to repay Java Centrale
the sum of $200,000 on October 3, 1999 without interest. Such
obligation shall not be terminated or affected by this Agreement.
5. CANCELLATION OF JAVA CENTRALE SHARES Concurrently with the execution
hereof, JSE shall return to Java Centrale for cancellation the stock
certificates representing all the shares of Java Centrale Common Stock
issued to JSE pursuant to the Formation Agreement. The Registered
Rights Agreement dated as of June 30, 1995 between JSE and Java
Centrale shall be terminated and be of no further force or effect upon
the execution of this Agreement.
6. CANCELLATION OF JSE SHARES Concurrently with the execution hereof,
Java Centrale shall return to JSE for cancellation the stock
certificates representing all of the shares of JSE Common Stock issued
to Java Centrale pursuant to the Formation Agreement. The
Stockholders Agreement dated as of June 30, 1995 between JSE and Java
Centrale shall be terminated and be of no further force or effect upon
the execution hereof.
7. LEGAL FEES OF JSE The fees and disbursements of JSE's counsel,
Xxxxxx, Xxxx & Xxxxxxxx LLP, incurred in connection with the
preparation and finalization of the Agreement shall be split evenly
between JSE and Java Centrale; PROVIDED, HOWEVER, that Java Centrale
shall not be obligated to bear more that $2,500 of such fees and
disbursements. The parties acknowledge that Xxxxxx, Xxxx & Xxxxxxxx
LLP represents JSE, and not Java Centrale.
8. NO PRIOR ASSIGNMENT OF RIGHTS Each of the parties represents and
warrants that it has not heretofore assigned or transferred, or
purported to have assigned or transferred, to any firm, corporation or
person whatsoever, any liability or obligation herein released and
agrees to and indemnify and hold harmless the other party against any
liability or obligation based on, arising out of or in connection with
any such transfer or assignment or purported transfer or assignment.
9. ATTORNEYS' FEE If any action, in law or in equity, is brought by
either party against the other party with respect to any right or
claimed right arising under or by reason of this Termination
Agreement, the prevailing party shall be entitled to judgment for all
reasonable attorneys' fees and court costs incurred with respect to
such action.
10. GOVERNING LAW This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without giving
effect to the conflict of laws rules thereof.
Exhibit 10.29
11. ENTIRE AGREEMENT This Agreement represents the entire agreement
between the parties with respect to the subject matter hereof and
supersedes and cancels any prior oral or written agreement with
respect to such subject matter.
12. BINDING EFFECT This agreement shall be binding upon and shall insure
to the benefit of the parties hereto and their respective successors
and assigns.
13. COUNTERPARTS This Agreement may be executes in one or more
counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument,
and shall become effective when one or more counterparts have signed
by each of the parties.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first above written.
JAVA CENTRALE, INC.
By: /s/
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
JAVA SOUTHEAST, INC.
By: /s/
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Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman of the Board
