FOODSERVICE PRODUCTS DISTRIBUTION AGREEMENT
Exhibit
10.52
October
10, 2005
Xx.
Xxxxxxxxxxx X. Xxxx
Shells
Seafood Restaurant, Inc.
Vice
President of Purchasing
00000
X.
Xxxx Xxxxx Xxx # 000
Xxxxx,
XX
00000
FOODSERVICE
PRODUCTS DISTRIBUTION AGREEMENT
Dear
Xx.
Xxxx:
BACKGROUND
|
A.
|
Performance
Food Group, Inc. (“PFG”)
has developed a national network of foodservice product distribution
companies (“PFG Distributors”) that perform purchasing, marketing,
warehousing, quality control, product research and development,
transportation and distribution services for national and regional
foodservice Customers.
|
|
B.
|
Shells
Seafood Restaurant, Inc. (“Customer”)
desires to contract with PFG as its Primary Distributor (as hereinafter
defined) for foodservice products to all of the Shells Seafood Restaurant,
Inc. locations where PFG has distribution and is willing to
service.
|
|
C.
|
Customer
hereby contracts with PFG Florida to provide distribution services
for the
Customer Locations pursuant to the terms and conditions set forth
in this
Foodservice Products Distribution Agreement (this
“Agreement”).
|
AGREEMENT
TERMS
In
consideration of the mutual promises set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows.
1. PFG
FLORIDA TO SERVE AS PRIMARY DISTRIBUTOR.
PFG
Florida shall serve as Customer’s Primary Distributor to Customer Locations for
foodservice products within the designated categories (“Designated Categories”)
set forth in Section 6 hereto (“Products”). For all purposes of this Agreement,
Primary Distributor shall mean that Customer and/or the Customer Locations
shall
purchase ninety percent (90%) or more of the Products’ requirements in each
Designated Category for the Customer Locations (the “Requirements Threshold”)
from PFG Florida (as hereinafter defined). In the event that the Requirements
Threshold is not satisfied in a given Designated Category during any two
consecutive calendar months, PFG reserves the right to convert such Designated
Category to a distribution fee consistent with the actual volume of Products
and
the actual percentage of Products’ requirements purchased for Customer Locations
in such Designated Category.
2. APPOINTED
DISTRIBUTORS.
PFG
Florida shall for all purposes of this Agreement hereby be defined as “Appointed
Distributors”, to provide distribution services to Customer in accordance with
the provisions of this Agreement.
3. TERM
OF AGREEMENT.
The
term (“Term”) of this Agreement will commence effective as of (10/01/05) and
shall continue for three (3) years, expiring (09/30/08). Either party may
terminate the agreement, without cause, hereto-effective following one hundred
twenty (120) days prior notice of termination to the other party. Either party
hereto may propose any such amendments (“Amendment(s)”) to this Agreement by
providing notice of such proposed Amendment (“Amendment Notice”) to the other
party hereto. Upon receipt of any such Amendment Notice, a party shall have
thirty (30) days (the “Objection Period”) to accept or reject such Amendment,
and in the event of the acceptance of any such Amendment or the failure to
object to such Amendment within such Objection Period, such Amendment shall
take
effect immediately upon the expiration of the Objection Period. Any such
objections to any such Amendment shall be provided in the manner for giving
notices under this Agreement, and in the event any party gives any such
objection notice within the Objection Period, the parties shall negotiate in
good faith to resolve such objection, and upon their failure to do so within
sixty (60) days from the date of the original Amendment Notice, this agreement
shall automatically terminate effective as of the close of business on the
next
business day following the expiration of the one hundred and twenty (120) day
notice.
4.
PRODUCTS
COVERED BY THIS AGREEMENT.
Products will include products
marketed under the PFG family of brands (“PFG Brands”); national brands;
locally
controlled labels; other products specified by Customer and stocked by
PFG
Florida; (as hereinafter defined) as Proprietary Products; approved by
Shells
Seafood Restaurant, Inc.
5.
AGREED
AVERAGE DROP SIZE; ADDITIONAL CHARGES FOR ORDERS THAT
DO
NOT MEET MINIMUM ORDER REQUIREMENTS.
Fee
pricing provided in Section 6 hereof is based on an average order size of
$4,000.00 per location per delivery (“Agreed Average Drop Size”) and a maximum
of two (2) regularly scheduled deliveries per week. Effective after (10/01/05),
in the event that the average order size for any thirty-day (30) period falls
below the Agreed Average Drop Size, PFG Florida will give notice to Xxxxxxxxxxx
X. Xxxx, VP of Purchasing,
and he
will cause such average order size to equal or exceed the Agreed Average Drop
Size. In the event that the average order size deficiency is not remedied within
such thirty (30) day period, PFG Florida shall have the right, which shall
be
exercised to modify the Fee pricing terms of this Agreement provided in Section
6 hereof, consistent with Customer’s actual average order size. The Shells Port
Charlotte and St. Xxxx locations are omitted from this clause for the months
of
September and December of each year.
In
addition, individual regularly scheduled orders less than $1000.00 will
be
charged an additional $100.00 to offset the additional charges incurred, and
orders below the minimum order size of $500.00 will be delivered at the
discretion of PFG Florida and Xxxxxxxxxxx
X. Xxxx, VP of Purchasing
on a
case by case basis. This charge will not apply to Will Calls (customer pick-ups)
or other deliveries made as a result of a PFG Florida error. Exception
deliveries may be made in the event of emergencies and will be handled on a
case-by-case basis.
2
New
customer locations added after the inception of the program that are outside
of
the distribution centers current coverage area may be assessed a delivery fee
in
accordance with actual costs associated with the deliveries for and an
unspecified time period. PFG Florida deliveries to the following geographic
area: From Tallahassee East to Jacksonville; South to the greater Miami area;
West to Naples and back North to Tallahassee with most if not all points in
between. Any future location outside of the area has to be discussed and decided
upon what action to take between PFG Florida management and Xxxxxxxxxxx
X. Xxxx, VP of Purchasing.
6. DISTRIBUTION
FEE PRICING; DESIGNATED CATEGORIES
PFG
Florida shall distribute Products to Customer Locations in the Designated
Categories based upon the Fee pricing scheme specified in this Section
6.
|
Designated
Categories
|
Fee
|
|
| Dry Groceries | $2.20 per case | |
| Frozen Foods | All Categories | |
| Refrigerated Products | ||
| Meat / Seafood / Poultry | ||
| Non-Food Items | ||
| Chemicals | ||
| Fee calculation = (Distributor Cost) + (Fee) | ||
| Example: | ||
|
Distributor
Landed
|
$20.00 | |
| $2.20 | ||
|
Fee
Calculation
|
($20.00 + 2.20 = $22.20) |
7.
PRICING;
COST DEFINED; PRICE ADJUSTMENTS.
| A. |
All
pricing to Customer is calculated on PFG Distributors’ cost (“Cost”), as
defined
below.
|
| B. |
“Cost”
is defined as the price invoiced by the vendor or manufacturer to
the
distributor plus applicable freight from the vendor or manufacturer
less
off-invoice temporary discounts or promotions during the applicable
period
(excluding cash discounts). Products contracted by Customer will
be billed
at the contracted Cost plus applicable freight and agreed to Fee.
Products
deemed “Weekly” or “Market Items” will be priced by PFG Florida based on
cost plus fee from Section 6. If electronic data interchange or other
invoice-less system is used, a printed report or other appropriate
verification from the supplier confirming the purchase order cost
will be
considered an invoice for determining Cost.
|
| C. |
All
prices on the Order Guides or other price lists provided to Customer
will
remain
valid for the period of the Order Guides or other Price Lists, with
the
exception of those commodity or “at market” items that are identified to
change weekly. In addition, during periods of unusual fluctuations
(greater than 3% of product cost) PFG Florida may pass on such increases
to Customer after notification to Xxxxxxxxxxx
X. Xxxx, VP of Purchasing.
|
| D. |
All
approved substitutions will be priced at the cost of the substituted
item
plus applicable
fee.
|
3
8. JOINT
PURCHASES; SPECIAL ORDERS; RESTOCKING FEE
| A. |
In
the event that Customer and PFG Florida mutually agree to a forward,
special or other “joint” purchase on Customer’s behalf that may require a
purchase of inventory beyond thirty (30) days, PFG Florida will impose
the
following grid of charges.
|
PurchaseGrid
Shells
Seafood Restaurant, Inc.
shall
have the flexibility to enter an agreement with PFG Florida to take advantage
of
forward buys, special or joint purchases of up to $2,000,000.00. Stipulations
to
this are as follows:
All
products must be fully paid to PFG Florida by the 100th
day in
inventory. The xxxxxxxx for the value of the products are as follows:
|
In
house up to 60 days
|
0%
charge
|
|
After
60th
day
|
.15%
of inventory as storage fee, weekly
|
|
At
100 days
|
100%
of Inventory must be paid
|
Fee
of
$2.20 will be assessed upon delivery to units, or when the aged product is
removed from PFG Florida’s warehouse, in addition to any remaining value of
case.
| B. |
PFG
Florida may, at its option, agree to accept product returns from
customers
for reasons
other than a PFG Florida error. The returned product must comply
with
the
credit / return policy as outlined in Section 10. To defray additional
handling expense
for the return of such products, PFG Florida reserves the right to
charge
a restocking
fee of $2.20 per case.
|
9. ORDERING
PROCEDURES.
PFG
Florida has the ability to coordinate with Shells
Seafood Restaurant, Inc.’s
menu
link system for ordering purposes. Each location will receive an email
confirmation of orders placed through the IDS system. Customer will be provided
with monthly Order Guides and weekly Order Guides for “at-market” products. All
orders are to be placed by the cutoff time indicated in the Operating Procedures
Manual.
10. CREDITS.
Customer is not to return merchandise without written authorization from PFG
Florida. All requests for return or adjustment of dry groceries must be reported
within seven (7) days of receipt of merchandise and include the invoice number,
Customer code and invoice date in order for the Customer to receive the full
amount of credit due. In the case of frozen merchandise, returns must be
identified at the time of delivery. Returned merchandise must reach PFG Florida
in resalable condition and must be packed in its original carton, unless
Customer is authorized to return merchandise for quality control inspection.
Merchandise made to order, specially designed, crested or imprinted cannot
be
exchanged or returned. Special order (non-stock) merchandise may only be
returned if packed in original shipping cartons and will be subject to
transportation and handling charges.
Credits
shall be granted in accordance with the terms of PFG’S Operating Procedures
Manual, which shall be customized by PFG Florida for Customer with prior
approval by Customer. Credit paperwork for Shells
Seafood Restaurants, Inc.
will be
received back from PFG Florida within eighteen (18) working days.
4
11. DELIVERY
AND RECEIVING.
All
deliveries will be made in accordance with a prearranged delivery schedule
designed by PFG Florida to meet Customer needs. An “on-time” delivery is defined
as being; product was delivered within the established 3-hour time window.
The
pricing of this agreement may dictate our need to route deliveries for the
utmost efficiencies. As such, while PFG Florida will review your customer
delivery preference, PFG Florida reserves the option to assign specific delivery
days and / or maintain open delivery windows to your locations. PFG Florida
will
establish Holiday delivery schedules at least fourteen (14) days prior to such
holiday. Customer will receive an original invoice and one copy with each order,
which shall be checked by an authorized representative of Customer at the time
of delivery. Should any product be short or damaged, Customer’s authorized
representative shall notify the PFG Florida driver at the time of delivery.
PFG
Florida’s driver will note the discrepancy on the invoice, and credit will be
taken directly off the invoice.
All
products warehoused and delivered by PFG Florida personnel cannot exceed a
maximum weight of 50 pounds per case.
12. ADJUSTMENTS
IN MARGIN/SURCHARGES IN CONNECTION WITH UNANTICIPATED
PROBLEMS.
If the
operating costs of PFG Florida increase as a direct result of a significant
regional or national economic problem, including, without limitation, fuel
cost
increases and power shortages, PFG Florida may, on the following Monday, impose
a surcharge on each delivery. The cost of fuel is an important variable cost
for
distributors. As such, the following fuel adjustment policy will be implemented
as follows:
The
ICC
Gulf Coast Average Fuel Price Index as reported on the ICC Fuel Hot Line phone
number 000-000-0000 or Internet site:
xxxx://xxxxx.xxx.xxx.xxx/xxx/xxxx/xxx/xxxxxxxxx.xxx
will
be
used to determine the price per gallon of fuel. Although there are regional
differences in the price of fuel, since this is a national average fuel price
any movement in the national average price of fuel should be reflected in the
regional price of fuel.
If
the
Gulf Coast APFI reaches $1.50 per gallon or greater for four consecutive weeks,
a surcharge will be implemented. Once implemented the adjustment will remain
in
place until there are four consecutive weeks in the normal price range of $1.50
or below.
|
Surcharge
|
||
|
ICC
Fuel Price
Index
|
Delivery
Fee
Adjustment
|
|
|
$0
through $1.50
|
No
Fee Adjustment
|
|
|
$1.51
through $1.809
|
$2.00
per delivery
|
|
|
$1.81
through $2.009
|
$4.00
per delivery
|
|
|
$2.01
through $2.199
|
$6.00
per delivery
|
|
|
$2.20
through $2.309
|
$8.00
per delivery
|
|
|
$2.31
through $2.399
|
$10.00
per delivery
|
|
|
$2.40
through $2.499
|
$12.00
per delivery
|
|
|
For
every successive $.10 Per Gal
Increase
|
Additional
$1.00 per
delivery
|
|
5
13. CREDIT
TERMS.
Subject
to review and approval, Payment Terms are net thirty (30) days; defined as
payment received by PFG Florida within thirty (30) days from the date of the
invoice. Customer(s) agree(s) that payment will be received by PFG Florida
within established payment terms.
Payment
will be made from PFG via credit memo within 30-days from close of the
respective measurement period upon received payment. No invoice deductions
will
be permitted.
In
the
event of Customer’s failure to make payment in accordance with the payment terms
specified in the preceding sentence, PFG Florida may (in addition to any other
remedies) with 5 day written notice provided for herein to Customer and/or
discontinue service and PFG Florida may terminate this Agreement on the seventh
(7th)
day.
Any changes in financial conditions for licensee will be communicated to
Xxxxxxxxxxx
X. Xxxx, VP of Purchasing; he
will
notify PFG Florida of any changes in corporate or licensee financial
circumstances.
| A. |
Payment
Obligation: PFG
Florida may modify payment terms if payments
are not made when due and/or the financial condition of the Customer
materially changes.
|
| B. |
Service
Charge: If
invoices are not paid when due, a service charge equal to lesser
of 1 1/2% per month or the maximum interest rate permitted by law
may be
assessed on the unpaid portion of any such overdue invoice. Unpaid
invoice
balances and finance charges due to PFG Florida may be deducted from
and/or offset against any credits otherwise due to Customer. Customer
agrees to pay all expenses including, but not limited to, reasonable
attorney’s fees incurred in connection with any successful enforcement by
PFG Florida of amounts owed to PFG Florida by customer(s) under this
agreement.
|
|
C.
|
Financial
Information: Customer
agrees to provide on a quarterly basis or promptly following receipt
of a
written request therefor from PFG Florida, such additional financial
information, including, without limitation, audited financial statements,
statement of cash flow and/or any such other financial information
requested by PFG Florida. Such information will only be available
in
accordance with filing requirements of
SEC.
|
14. AUDIT
PRIVILEGES.
Customer shall have the right, at Customer’s sole expense, to audit records of
PFG Florida related to Customer under this Agreement; provided, however, that
any such audits shall be subject to following limitations: (i) date and time
of
audit shall be mutually agreed upon following weeks written notice from Customer
of its audit request; (ii) Customer shall not be entitled to audit PFG Florida
more than twice in any twelve month period; (iii) any such audits shall be
conducted between business hours of 8 a.m. and 5 p.m. Monday through Friday
and
without any unreasonable disruption PFG Florida’s business or year-end
accounting procedures; and (iv) any such audit will consist of a maximum of
35
items covering the prior 13 week period immediately preceding the audit request.
(v.) All documentations will be kept on PFG Florida property. No photocopies
will be permitted to leave PFG Florida property.
6
15. SPECIAL
CUSTOMER PRICING / DEVIATED COST PROGRAMS.
PFG
Florida agrees to maintain deviated cost or special pricing programs that have
been negotiated directly between Customer and the vendor community. PFG Florida
will only maintain those deviated cost programs documented by the vendor and
communicated to PFG Florida in writing. The communication shall, at a minimum
contain:
| a. |
Lead
time of ten (10) working days
|
| b. |
Program
start and end dates
|
| c. |
Vendor
letterhead and vendor contact
information
|
| d. |
Signature
of authorized vendor representative
|
| e. |
Items
and applicable pricing information including UPC
information
|
| f. |
Authorization
for PFG Florida to implement this special
pricing
|
16. PROPRIETARY
PRODUCTS.
PFG
Florida will deliver products requested and specified by Customer that are
proprietary to Customer’s operations (“Proprietary Products”) and special orders
by Customer under the conditions specified in the following provisions of this
Section 16. PFG Florida will not bring into stock any product or lines of
product for Shells
Seafood Restaurant, Inc.
Locations unless Xxxxxxxxxxx
X. Xxxx, VP of Purchasing,
has
authorized, in writing, such action. If Customer approves and authorizes
products not currently in existing inventory, the following minimum guidelines
will apply to any new products brought into stock:
|
A.
|
PFG
Florida shall not be required to stock any Special Order or Proprietary
Product that does not have or will not have average weekly sales
of 10
cases and 15 annual turns per participating distribution center.
Xxxxxxxxxxx X. Xxxx VP of Purchasing will allow PFG Florida to present
products already stocked in
inventory.
|
|
B.
|
Customer
will sign a special stocking request
form.
|
|
C.
|
Customer
shall provide PFG Florida with a minimum of 21days notice in connection
with any request by Customer to bring in any new normally stocked
items.
Further, customer shall provide PFG Florida with a minimum of four
weeks’
notice on special order items. PFG Florida cannot guarantee that
the
minimum notice periods provided for in the two preceding sentences
will be
sufficient, and PFG Florida shall not be responsible for or be deemed
to
be in default of this Agreement by virtue of the inability to obtain
items
within such minimum notice periods. However, PFG Florida shall be
required
to use commercially reasonable efforts to obtain such items within
the
prescribed notice periods.
|
|
D.
|
If
PFG Florida has not previously purchased from the supplier/manufacturer
designated by Customer, a certificate of insurance indicating coverage
that satisfies PFG’S required coverage and an appropriate indemnification
from supplier/manufacturer must be provided before any product can
be
brought into inventory. If the specified supplier/manufacturer will
not
issue an appropriate certificate of insurance and/or provide appropriate
indemnification, Customer agrees to provide such required insurance
to PFG
Florida and to indemnify and hold harmless PFG
Florida.
|
| E. |
In
the event (i) Customer decides to discontinue any Proprietary Product
or
products
subject to special orders or (ii) Customer gives or receives notice
of
termination of this Agreement, Customer shall provide notice thereof
to
PFG Florida within 30 days in accordance with the notice provisions
of
this Agreement.
|
7
|
F.
|
Upon
thirty (30) days of notice of a request from PFG Florida, Customer
agrees
to purchase or advise PFG Florida how to dispose of such products
that
constitute remaining special order or Proprietary Products inventory
on
hand that does not meet the minimum stocking requirements listed
in
Section 16(A) hereof. Refer to Section 8
A.
|
|
G.
|
In
the event this agreement is terminated by either party hereto, Customer
agrees (i.) to use commercially reasonable efforts to effect an orderly
transition with respect to and (ii) to remove from the distribution
centers for all PFG Distributors within 21 days of the termination
date,
all Proprietary Products, special order products, obsolete inventory,
other applicable products in stock, and products for which non-cancelable
orders have been placed. All items will be FOB distribution center,
and
Customer or new distributor will pay for all such inventory and all
freight in connection with the disposition of all such Products.
Payment
for this inventory transition will be made within 30 days of the
invoice
date.
|
17. Support
Services. PFG
Florida will provide the following additional support services to Shells
Seafood Restaurant, Inc.
| A. |
PFG
Florida will assign an Account Executive and a Customer Service
Representative
to handle the day-to-day management of the Shells
Seafood Restaurant,
Inc.
account.
|
| B. |
Service
Levels.
PFG distributors will perform at fill rate of 98.5% or above including
substitutions. Service Level Benchmarks will be mutually developed
between
Shells
Seafood Restaurant, Inc.
and PFG Florida to measure performance. Recovery deliveries will
be made
as required. The cost of the recovery delivery will be the responsibility
of the distributor or Shells
Seafood Restaurant, Inc.
depending on the source of the
error.
|
| C. |
QC
Procedures/Test Kitchen:
Shells
Seafood Restaurant, Inc.
has a full Quality Control/Assurance program in place. All seafood
items
as well as other protein products as necessary. Upon PFG Florida’s receipt
of these products, they will automatically be placed on a “Pending” status
until they are tested and released by the QC Manager. Shells
Seafood Restaurants, Inc.
does not always use product on a first in first out basis when it
comes to
protein items. PFG Florida must have flexibility to ship items out
of
sequence, frequently. PFG Florida will make test kitchen on premises
available for QC Manager; 12 business hours per week during normal
business hours of 8 am - 5pm, Monday through Friday. PFG Florida
will
provide a designated mailbox for copies of all bills of ladings and
other
important items, for the QC Manager or Shells Purchasing department
upon
receipt of product. PFG Florida will also make available a phone
line in
the test kitchen.
|
| D. |
Vendor
Returns: PFG
Florida will charge Shells Seafood Restaurant, Inc. of $1.10 fee
per case
for all items returned to vendor that are revealed at the warehouse
level.
All cases needing to be picked up from individual unit locations
to be
returned to vendor Shells Seafood Restaurants, Inc. will be charged
a
$2.20 fee per case. These fees apply to any item(s) returned due
to
Quality Control Inspections. A joint letter from PFG Florida and
Shells
Restaurants will inform the appropriate vendors of this stipulation.
|
8
18. FORCE
MAJEURE.
Neither
party shall be liable to the other party for any loss, delay or failure to
perform resulting directly or indirectly from fires, floods, riots, strikes
or
other circumstances beyond either party’s reasonable control.
19.
COMPLIANCE
WITH LAWS.
Each
party hereto agrees that it will comply with all laws
and
regulations applicable to this Agreement and its performance hereunder.
Without
limiting
the foregoing, Customer agrees to fully and accurately report to the appropriate
federal
and state agencies and authorities all discounts (as such term is defined
in 42
CFR Sec
1001.952
(h)) granted hereunder in accordance with all applicable laws and
regulations
20. REPORTING/
DATA INTERCHANGE.
In
addition to monthly and weekly Order Guides, PFG will provide Monthly or
Quarterly Standardized Usage Reports as requested by Shells
Seafood Restaurant, Inc.
PFG
Florida will not provide any Shells Seafood reports to any other party with
out
written consent from Xxxxxxxxxxx X. Xxxx, VP of Purchasing or Shells Seafood
Restaurant, Inc.
| A. |
In
addition to standard reports the following reports will be sent to
the
Shells
Seafood Restaurant,
Inc.
Purchasing Department weekly/monthly as
needed.
|
| 1. |
Usage
by Month, rolling YTD by Vendor
|
| 2. |
Descending
dollar by item.
|
| 3. |
Descending
dollar by vendor.
|
| 4. |
Monthly
Service Level Report.
|
| 5. |
Monthly
Order Guides (Must be sent to restaurant locations
also)
|
| 6. |
Weekly
Price Changes (must be sent to restaurant locations
also)
|
| 7. |
Weekly
Lot Listing (All Protein Items)
|
| 8. |
All
reports need to be electronically
submitted.
|
21. NOTICES.
Any
written notices called for in this agreement may be made by facsimile, personal
delivery, overnight or other delivery service or first class mail to and
confirmed by Xxxxxxxxxxx X. Xxxx, VP of Purchasing. Notices by fax will be
effective when the transmission is complete and confirmed; notices by personal
delivery will be effective upon delivery; notices by overnight or other delivery
services will be effective when delivery is confirmed; notices by mail will
be
effective four business days after mailing. The notice address for each party
is
set forth below and shall be subject to change upon written notice thereof
in
accordance with the provisions of this Section 21.
22. CHOICE
OF LAW/ VENUE.
This
Agreement, including, without limitation, any dispute or claim hereunder, shall
be governed by and construed in accordance with the laws of the State of Florida
without reference to the choice of law provisions of any state. Further, the
parties hereby agree that any and all actions or proceedings arising from or
relating to this Agreement shall be brought in the Circuit Court Hillsborough
County, Florida, or the United States District Court of Tampa, Florida Division
and hereby consent to personal jurisdiction of such courts for any such action
of proceeding. All fees related to any arbitration or court actions will be
the
responsibility of the losing party to settle.
9
23. LIMITATION
OF LIABILITY.
PFG
shall
not be liable to the Customer for any special, indirect, incidental,
consequential or punitive damages arising out of or relating to this Agreement
under any legal theory.
24. MISCELLANEOUS.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which together will constitute one and the same
instrument. PFG and Customer have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent
or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties, and no presumption or burden of proof shall arise favoring
or
disfavoring any party by virtue of the authorship of any of the provisions
of
this Agreement. Any reference to any federal, state, local, or foreign statute
of law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The parties intend that
each
representation, warranty and covenant contained herein shall have independent
significance. All such exhibits, schedules and other documents, or portions
thereof, identified in this Agreement are incorporated herein by reference
and
made a part hereof. At either party’s reasonable request and without further
consideration, the other party shall promptly execute and deliver such
instruments and documents, and take such other action, as such party may
reasonably request to effectuate completely the transactions provided for in
this Agreement and to otherwise carry out the purpose and intent of this
Agreement. The failure of any of the parties to this Agreement to require the
performance of a term or obligation under this Agreement or the waiver by any
of
the parties to this Agreement of any breach hereunder shall not prevent
subsequent enforcement of such term or obligation or be deemed a waiver of
any
subsequent breach hereunder. If any one or more of the provisions of this
Agreement is held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining provisions of this Agreement will
not be affected thereby, and the parties will use all reasonable efforts to
substitute for such invalid, illegal or unenforceable provision(s) one or more
valid, legal and enforceable provision(s) that, insofar as practicable,
implement the purposes and intents hereof. To the extent permitted by applicable
law, each party waives any provision of law that would render any provision
of
this Agreement invalid, illegal or unenforceable in any respect. No remedies
set
forth herein shall be exclusive and no party shall be limited to any remedy
set
forth herein. All remedies available to any party shall be cumulative.
This
Agreement may not be amended or modified, nor may compliance with any condition
or covenant set forth herein be waived, except by a writing duly and validly
executed by each party hereto, or in the case of a waiver, the party waiving
compliance.
The
titles and/or captions contained in this Agreement are included for convenience
only and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect. The masculine, feminine or neutral gender
and singular or plural nouns shall each to be deemed to include the others
whenever the context so indicates.
25. ENTIRE
AGREEMENT.
This
agreement sets forth the complete understanding of the parties hereto with
respect to the subject matter contained herein, and may not be amended or
supplemented; except in writing signed by both parties.
[SIGNATURES
APPEAR ON FOLLOWING PAGE]
10
Agreement
between
Shells
Seafood Restaurant, Inc.
and Performance Food Group Florida
ACCEPTED
BY
| Shells Seafood Restaurant, Inc.: | Performance Food Group: | |
|
Xxxxxx Xxxxxx
Chief Financial Officer
00000 X. Xxxx Xxxxx Xxx #000
Xxxxx, XX 00000
|
Xxxxxxx Xxxxx
Vice President Business Development
0000 X. Xxxxxxxxx Xx.
Xxxxx, XX 00000
|
|
| 000-000-0000 | 000-000-0000 | |
| 000-000-0000 | 000-000-0000 | |
| Xxxxxx X. Xxxxxx | Xxxxxxx Xxxxx | |
| (Please Print) | (Please Print) | |
| /s/ Xxxxxx X. Xxxxxx | /s/ Xxxxxxx Xxxxx | |
| (Signature) | (Signature) | |
| Chief Financial Officer | Vice President | |
| (Title) | (Title) | |
| 10/20/2005 | 10/20/2005 | |
| (Date) | (Date) |
11
