TERMINATION AGREEMENT
THIS
TERMINATION AGREEMENT (this “Termination Agreement”) is entered into as of the
___ day of May, 2004, by and among Xxxxxx and Xxxxx’x, Inc., a Delaware
corporation (“A&M”), as successor in interest to ISLANDS FLORIDA LP, a
Delaware limited partnership (“Seller”), and SHELLS SEAFOOD RESTAURANTS, INC., a
Delaware corporation (“Purchaser”).
RECITALS
WHEREAS,
Seller and Purchaser previously entered into that certain Agreement for Purchase
and Sale dated as of October 18, 1996 (the “Purchase Agreement”) pursuant to
which Purchaser purchased from Seller the Assets (as defined therein) on
and
pursuant to the terms and conditions set forth therein; and
WHEREAS,
A&M, as successor in interest to Seller, and Purchaser desire to terminate
the Purchase Agreement, on and subject to the terms and conditions set forth
herein, including payment by Purchaser of the amounts set forth
herein.
NOW
THEREFORE, in consideration of the representations, warranties and covenants
contained in this Termination Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
ARTICLE
I
Termination
of Purchase Agreement; Payments by
Purchaser
| 1.1 |
Termination
of Purchase Agreement.
Upon the terms and conditions set forth in this Termination Agreement
and
effective as of the date on which the final installment of the
Termination
Payment (as defined below) is paid by Purchaser to A&M, the Purchase
Agreement shall terminate and shall be of no further force or
effect.
|
| 1.2 |
Payments
by Purchaser.
In consideration of A&M’s agreement to terminate the Purchase
Agreement in accordance with the terms hereof, including any obligation
of
Purchaser to make any Additional Payments (as defined in the Purchase
Agreement), Purchaser hereby agrees to pay to A&M $100,000 (the
“Termination Payment”). The Termination Payment shall be payable in (i)
six installments of $15,000 payable on May 30, 2004 and the 30th
day of
each month thereafter up to and including October 30, 2004; and
(ii) one
final installment of $10,000 payable on November 30, 2004. Installments
of
the Termination Payment received after 10 business days from the
date on
which payment thereof is due shall bear interest at a rate equal
to seven
percent (7%) per annum, which shall be payable upon demand and
shall be
calculated on the basis of a three hundred sixty (360) day year
and actual
days elapsed. For the avoidance of doubt, the parties acknowledge
and
agree that, subject to Purchaser’s satisfaction of it’s obligations
hereunder, Purchaser shall not be obligated to make any payment
to A&M
with respect to Additional Payments that have accrued but remain
unpaid as
of the date of this Termination Agreement or with respect to any
Additional Payments that otherwise would have accrued on or after
the date
of this Termination Agreement, it being the intent of the parties
that the
obligation of Purchase to make any Additional Payments to Seller
pursuant
to the Purchase Agreement is superceded by Purchaser’s obligation to pay
the Termination Payment pursuant to and in accordance with this
Termination Agreement.
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| 1.3 |
Default
in Payment.
Upon
the occurrence of: (i) a default by Purchaser in the payment of
any
installment of the Termination Payment on or prior to the last
day of any
month in which such installment is due, or (ii) the commencement
by
Purchaser or any third party of any case, proceeding, or other
action
under any existing or future law of any jurisdiction, domestic
or foreign,
relating to bankruptcy, insolvency, reorganization, or relief of
debtors,
seeking to have an order for relief entered with respect to Purchaser,
or
seeking to adjudicate Purchaser a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition, or other relief with respect to Purchaser’s
debts, then in either case, A&M may declare the entire unpaid portion
of the Termination Payment immediately due and payable and Purchaser
shall
immediately pay to A&M the entire unpaid portion of the Termination
Payment, together with interest accrued thereon in accordance with
Section
1.2 hereof.
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ARTICLE
II
Representations
and Warranties
| 2.1 |
Representations
and Warranties of Purchaser.
Purchaser represents and warrants to A&M as
follows:
|
| (a) |
Authority.
Purchaser has full corporate power and authority to enter into
and perform
this Termination Agreement in accordance with its terms. Purchaser
is
not bound by or subject to any contractual or other
obligation or restriction that would be violated by the execution
or
performance of this Termination Agreement, and the execution, delivery
and
performance of this Termination Agreement has been duly authorized
by all
necessary corporate action. This Termination Agreement
is the valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws applicable
to Purchaser affecting the rights of creditors generally, and except
that
the remedy of specific performance and injunctive and other forms
of
equitable relief are subject to certain equitable defenses and
to the
discretion of the court before which any proceeding therefor may
be
brought.
|
2
| (b) |
Consents.
No consent, action, approval or authorization of, or registration,
declaration or filing with, any governmental department, commission,
agency
or
other instrumentality having jurisdiction over Purchaser is required
to be
obtained by Purchaser to authorize the execution and delivery by
Purchaser
of this Termination Agreement or the performance by Purchaser of
this
Termination Agreement.
|
| 2.2 |
Representations
and Warranties of A&M.
A&M represents and warrants to Purchaser as follows:
|
| (a) |
Authority.
A&M has full corporate power and authority to enter into and perform
this Termination Agreement in accordance with its terms. A&M is not
bound by or subject to any contractual or
other
obligation or restriction that would be violated by the execution
or
performance of this Termination Agreement, and the execution, delivery
and
performance of this Termination Agreement has been duly authorized
by all
necessary corporate action. This Termination Agreement is the valid
and
binding obligation of A&M, enforceable against A&M in accordance
with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws applicable to A&M
affecting the rights of creditors generally, and except that the
remedy of
specific performance and injunctive and other forms of equitable
relief
are subject to certain equitable defenses and to the discretion
of the
court before which any proceeding therefor may be
brought.
|
| (b) |
Consents.
No consent, action, approval or authorization of, or registration,
declaration or filing with, any governmental department, commission,
agency
or
other instrumentality having jurisdiction over A&M is required to be
obtained by A&M to authorize the execution and delivery by A&M of
this Termination Agreement or the performance by A&M of this
Termination Agreement.
|
ARTICLE
III
Miscellaneous
Provisions
| 3.1 |
Expenses.
Each of A&M and Purchaser shall pay all of the costs and expenses
incurred by it in connection with the transactions contemplated
hereby.
|
| 3.2 |
Headings.
The subject headings of the Articles and Sections of this Termination
Agreement are included for purposes of convenience only and shall
not
affect the construction or interpretation of any of its
provisions.
|
| 3.3 |
Entire
Agreement.
This Termination Agreement contains the entire understanding of
the
parties with respect to the transactions contemplated by this Termination
Agreement.
|
3
| 3.4 |
Modification
and Waiver.
No supplement, modification or amendment of this Termination Agreement
shall be binding unless executed in writing by each of the
parties.
|
| 3.5 |
Successors.
This Termination Agreement shall be binding on, and shall inure
to the
benefit of, the parties and their respective successors and assigns.
Purchaser’s obligations hereunder shall be not assignable without the
prior written consent of A&M.
|
| 3.6 |
Governing
Law.
This Termination Agreement and all transactions contemplated by
this
Termination Agreement shall be governed by, construed and enforced
in
accordance with the laws of the State of Florida, without giving
effect to
the principles of conflicts of laws
thereof.
|
| 3.7 |
Notices.
Any notice required or desired to be served, given or delivered
hereunder
shall be in writing (including facsimile transmission), and shall
be
deemed to have been validly served, given or delivered upon the
earlier of
(a) personal delivery to the address set forth below, (b) in the
case of
mailed notice, five (5) days after deposit in the United States
mails,
with proper postage for certified mail, return receipt requested,
prepaid,
or in the case of notice by Federal Express or other reputable
overnight
courier service, one (1) business day after delivery to such courier
service, and (c) in the case of facsimile transmission, upon transmission
with confirmation of receipt, addressed to the party to be notified
as
follows:
|
|
If
to A&M, to:
|
Xxxxxx
and Xxxxx’x, Inc.
|
|
Xxx
Xxxxx Xxxxxxxxx
|
|
|
Xxxxxxx
Xxxxx
|
|
|
Xxxxxxx,
Xxxxxxxx 00000
|
|
|
Attn:
Xxxx Xxxxxxxxx
|
|
|
Facsimile:
(000) 000-0000
|
|
|
If
to Purchaser, to:
|
Shells
Seafood Restaurants, Inc.
|
|
00000
Xxxxx Xxxx Xxxxx
|
|
|
Xxxxx
000
|
|
|
Xxxxx,
Xxxxxxx 00000
|
|
|
Attn:
Xxxxxx Xxxxxx
|
or
to
such other address as either of the parties may hereafter designate for
itself
by written notice to the other party in the manner herein
prescribed.
| 3.8 |
Counterparts;
Facsimile.
This Termination Agreement may be executed in counterparts, any
one of
which need not contain the signatures of more than one party, but
all such
counterparts taken together shall constitute one and the same agreement.
This Termination Agreement may be executed by facsimile which shall
be
deemed to be an original for all
purposes.
|
4
| 3.9 |
Further
Assurances.
The parties hereto agree to execute such documents and take all
such
actions as may reasonably be required for the consummation of the
transactions contemplated
hereunder.
|
| 3.10 |
Enforcement
Costs.
In
the event of a dispute arising hereunder or under any instrument
contemplated hereby the prevailing party shall be entitled to receive
reasonable attorney’s fees and expenses incurred in connection
therewith.
|
5
IN
WITNESS WHEREOF, the parties hereto have executed this Termination Agreement
as
of the date first set forth above.
XXXXXX
AND XXXXX’X, INC.
By:___________________________________
Name:
Title:
SHELLS
SEAFOOD RESTAURANTS, INC.
By:
/s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Executive Vice President/CFO
6
