Unassociated Document


    AGREEMENT
      BETWEEN PARTIES

     

    This
      AGREEMENT
      BETWEEN PARTIES (this
      "Agreement"), dated as of this 5th day of August, 2005, is made by and among
      DEBORAH
      CHRISTEN CORPORATION,
      a
      Delaware corporation (“DCC”
      or
“Licensor”) and SHELLS
      SEAFOOD RESTAURANTS, INC., a
      Florida
      corporation (“SSRI”
      or
“Licensee”) (together hereinafter referred to as the “Parties” and,
      individually, as a “Party”). 

     

    RECITALS

     

    WHEREAS,
      pursuant to an Assignment of Assets dated July 15, 1992, between John Christen
      Corporation (“Assignor”)
      and
      DCC (the “Assignment
      of Assets”),
      DCC
      became the assignee of certain service marks licensed under an Agreement for
      Licensing of Service Marks dated January 1, 1992 (the “Agreement
      for Licensing of Service Marks”)
      between Shells, Inc. and Assignor, and, as assignee, DCC obtained, inter
      alia,
      all the
      rights to use the service marks “Shells” and “Shells Seafood, Shellfish &
      Whatnot” (the “Service
      Marks”)
      for
      the operation of restaurants in specified trade areas for a period of
      ninety-nine years, including the operation of a restaurant in the trade area
      as
      set forth on the attached Exhibit A (the “Carrollwood
      Trade Area”);
      

     

    WHEREAS,
      in
      addition, pursuant to the Assignment of Assets, DCC acquired all
      rights to
      sublicense the Service Marks
      in the
      Carrollwood Trade Area to Shells of Carrollwood Village, Inc. (the “Sublicense
      Agreement”);

     

     WHEREAS,
      on
      May
      14, 1993, SSRI and Shells, Inc. entered into an Asset Purchase Agreement whereby
      SSRI acquired the assets of Shells, Inc., including the Service Marks and other
      proprietary information, and, subsequently, entered into a Management and
      License Agreement dated July 29, 1993, between SSRI and Shells of Carrollwood
      Village, Inc. (“Carrollwood
      Village”),
      as
      amended by an Amendment to the Management and License Agreement dated July
      29,
      1993 and a Second Amendment to Management and License Agreement dated October
      4,
      2001 (together, the “Management
      Agreement”),
      whereby SSRI agreed to provide
      management services and proprietary rights to Carrollwood Village for use in
      its
      restaurant located in the Carrollwood Trade Area (the “Carrollwood
      Store”);
      and

     

    WHEREAS,
      DCC
      and
      SSRI desire to enter into an agreement, to be effective upon the occurrence
      of
      specific conditions precedent, whereby DCC shall license to SSRI use of the
      Service Marks in the Carrollwood Trade Area.

     

    NOW,
      THEREFORE,
      in
      consideration of the foregoing and the agreements set forth below, the receipt,
      adequacy and sufficiency of which are hereby acknowledged, the parties hereto
      agree as follows:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    ARTICLE
      1

    LICENSE

    


    1.1 License.
      DCC
      hereby grants to Licensee the exclusive right to use the Service Marks in
      connection with Licensee’s operation of one or multiple restaurants in the
      portion of the Carrollwood Trade Area set forth in Exhibit B (the “Limited
      Carrollwood Trade Area”) under the terms and conditions of this Agreement.
      Licensee shall have the right to use the Services Marks in the Limited
      Carrollwood Trade Area to, open one or more restaurants in the Limited
      Carrollwood Trade Area and to sublicense the use of the Service Marks to third
      parties in the Limited Carrollwood Trade Area. Subsequent to opening a
      restaurant in the Limited Carrollwood Trade Area depicted in Exhibit B, Licensee
      shall have the rights as set forth in this Section 1.1 to open additional
      restaurants and to sublicense the use of the Service Marks to third parties
      within the Carrollwood Trade Area; provided, however,
      that
      SSRI shall be required to obtain DCC’s prior written approval,
      which
      approval may be withheld in DCC’s
      sole discretion only in the event SSRI desires to open a restaurant within
      the
      South Tampa Trade Area and the North Tampa Trade Area as set forth in Exhibit
      C
      which trade areas overlap and extend into the Carrollwood Trade
      Area.

     

    1.2 Term.
      The
      initial term of this Agreement shall be deemed to have commenced on the date
      of
      this Agreement and shall continue for as long as Licensee owns and operates
      restaurants in the Carrollwood Trade Area, unless terminated earlier pursuant
      to
      Article 3. 

     

    1.3 Effective
      Date.
      The
      License granted in Sections 1.1 and 1.2 shall become effective on the Effective
      Date (as defined in Section 7 of this Agreement). 

    


     

    ARTICLE
      2

    LICENSE
      FEE

    


    2.1 License
      Fee.
      DCC
      shall be entitled to receive from SSRI and SSRI shall be obligated to pay to
      DCC
      on or before the 15th
      day
      immediately following the end of the prior month a fee in the amount of two
      percent (2%) of the gross receipts of each Shells Seafood Restaurant operated
      or
      sublicensed by SSRI within any portion of the Carrollwood Trade Area. For
      purposes of determining gross receipts for this Section 2.1, gross receipts
      shall be calculated in the same manner as gross receipts are calculated for
      the
      following sublicensees of DCC: Shells of Sarasota South, Inc., and Shells of
      North Tampa, Inc. In the event that both Shells of Sarasota South, Inc., and
      Shells of North Tampa, Inc. cease to operate, gross receipts shall continue
      to
      be calculated in the same manner as previously calculated by Shells of Sarasota
      South, Inc., and Shells of North Tampa, Inc.

     

    ARTICLE
      3

    USE
      OF SERVICE MARKS

    


    3.1 SSRI
      agrees to use the Service Marks in the Carrollwood Trade Area only in connection
      with the operation or sublicensing of Shells Seafood restaurants. 

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    3.2 The
      foundation of the value of the Service Marks is the establishment and
      maintenance of a reputation among the public for the operation of high quality
      restaurants. A fundamental requirement of this license is adherence by SSRI
      to
      the Shells Seafood restaurants’ standards and policies, as such may be amended
      and revised during the term of this Agreement, providing for the uniform
      operation of all restaurants licensing the Service Marks. Compliance by SSRI
      with the foregoing standards and policies in conjunction with the use of the
      Service Marks provides the basis for the wide public acceptance of the Service
      Marks and its valuable goodwill. Adherence by SSRI to all aspects of the
      standards and policies for the uniform operation of the Shells Seafood
      restaurants is required at all times.

     

    3.3 DCC
      shall
      have the right at any time, and from time to time, to have its representatives
      enter the premises of any Shells Seafood restaurant in the Carrollwood Trade
      Area, with 48 hours notice, and to confer with Licensee’s employees and
      customers, for the purpose of inspecting the use of the Service Marks to
      determine whether Licensee is in compliance with the terms and conditions
      contained in this Agreement. 

     

    ARTICLE
      4

    TERMINATION

    


    4.1 Termination
      by DCC.
      DCC
      shall have the right to terminate this Agreement in the event that SSRI fails
      to
      cure any default described below within thirty (30) days of the receipt of
      written notice by SSRI from DCC stating the reason for such
      default:

     

    (a) in
      the
      event of any breach or default of any of the provisions of this Agreement;
      including but not limited to, failure to pay the License Fee as when due
      pursuant to the terms of this Agreement;

     

    


    (b) in
      the
      event SSRI or a sublicense of SSRI ceases to own and operate a restaurant in
      the
      Carrollwood Trade Area for any reason other than a Casualty Loss event as
      described in Section 4.3 of this Agreement; and

    


    (c) in
      the
      event of liquidation of assets as a result of bankruptcy proceedings against
      SSRI.

    


    4.2 Termination
      by SSRI.
      SSRI
      shall have the right to terminate this Agreement in the event that DCC fails
      to
      cure any default described below within thirty (30) days of the receipt of
      written notice by DCC from SSRI stating the reason for such
      default:

    


    (a) in
      the
      event of any breach or default of any of the provisions of this Agreement by
      DCC.

    


    


    
      	4.3  	
              Casualty
                Loss.
                In the event that SSRI is rendered unable, wholly or in part, by
                a
                Casualty Loss (as defined here in this Section 4.3), to carry out
                its
                obligations under this Agreement to open and operate a restaurant
                in the
                Carrollwood trade Area, and provided that SSRI provides DCC with
                written
                notice that a Casualty Loss event has occurred and SSRI continues
                to remit
                a license fee in an amount set forth in Exhibit D or, if after December
                31, 2006, a license fee equivalent to that remitted applicable to
                the same
                fiscal month of the previous year, then such cause shall be remedied
                as
                soon as possible within commercially reasonable standards. All license
                fees shall be payable at the times stated in Section 2.1. The term
                “Casualty Loss” as used herein shall mean any cause or causes not
                reasonably within control of SSRI including, but not limited to,
                acts of
                God; acts of the public enemy; wars; strikes, lockouts or differences
                with
                workmen; lightning; earthquakes; fires; storms; floods; washouts;
                civil
                disturbances; and explosions.

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	 	
              4.4

            	
              In
                the event that a Shells Seafood Restaurant is not open in the Carrollwood
                Trade Area due to a Casualty Loss, the license held by DCC in the
                Carrollwood Trade Area shall not
                terminate.

            


    

    


    ARTICLE
      5

    RELATIONSHIP
      OF THE PARTIES

    


    5.1 Relationship
      of the Parties.
      Neither
      Party shall represent or hold itself out as, an agent, legal representative,
      partner, employee or servant of the other Party for any purpose whatsoever.
      Neither Party is authorized to make any contract, agreement, warranty or
      representation on behalf of the other or to create any obligation, express
      or
      implied, on behalf of the other. 

     

    ARTICLE
      6

    CONFIDENTIALITY

    


    6.1 Confidentiality.
      This
      Agreement is to remain confidential. The existence, terms and conditions of
      this
      Agreement shall be kept strictly confidential by the Parties, except as
      necessary: (i) to comply with an order of a court of competent jurisdiction;
      (ii) to enforce any terms of this Agreement by legal process, (iii) to comply
      with any governmental reporting obligations, or (iv) to discuss with legal
      and
      business advisors and other licensees. 

     

    


    ARTICLE
      7

    CONDITION
      PRECEDENT OF EFFECTIVE DATE

    7.1 Condition
      Precedent to Effective Date.
      The
      transaction contemplated by this Agreement shall become
      effective on the date upon which the conditions set forth in Section 7.1(a)
      have
      been
      satisfied (the “Effective Date”):

    


    (a) Upon
      the
      earlier to occur of either:

    


    
      	 	 	 	
              (i)

            	
              Execution
                of written agreements between DCC and Carrollwood Village and SSRI
                and
                Carrollwood Village by which Carrollwood Village agrees to abandon
                or
                terminate the Sublicense Agreement
                and the Management Agreement; or

            


    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      	 	
              (ii)

            	
              Receipt
                by SSRI of a written declaration by DCC representing that Carrollwood
                Village has defaulted under the terms of the Sublicense Agreement
                and that any cure period available under the terms of the Sublicense
                Agreement
                for cure of default has expired;

            


    

    


    7.2 Deadline
      for Opening of Restaurant; Extension of Time.
      SSRI
      shall use its best commercial efforts to open a Shells Seafood restaurant in
      the
      Limited Carrollwood Trade Area by October 1, 2005. If SSRI fails to open a
      Shells Seafood restaurant by such date, DCC will allow an extension of three
      (3)
      months from October 1, 2005, for the opening of a restaurant (the “Extension
      Period”).
      SSRI, as successor to Shells, Inc., agrees that SSRI will not exercise its
      rights under paragraph 16(g) of the Agreement for Licensing of Service Marks
      to
      declare DCC in default due to failure to maintain the operation of a restaurant
      in the Carrollwood Trade Area. If SSRI fails to open a Shells Seafood restaurant
      by the end of the Extension Period, DCC will grant SSRI additional three month
      extension periods (“Additional Extension Periods”). However, commencing April 1,
      2006, and on the first (1st)
      day of
      each month thereafter, SSRI shall pay to DCC a license fee in the amount set
      forth in Exhibit D until a Shells Seafood Restaurant is opened in the Limited
      Carrollwood Trade Area. All license fees shall be payable at the times stated
      in
      Section 2.1. In the event no Shells Seafood Restaurant is opened in the Limited
      Carrollwood Trade Area by December 31, 2006 (the “Termination Date”), SSRI shall
      have no further rights under this Agreement. During the term of all extension
      periods and for a period of twelve (12) months after the Termination Date,
      SSRI
      shall not exercise its right to declare DCC in default due to failure to
      maintain the operation of a restaurant in the Carrollwood Trade
      Area.

    


    7.3 Failure
      of Agreement to Become Effective.
      In the
      event that the conditions precedent set forth in Section 7.1 (a) have not been
      satisfied by the end of the Extension Period or any Additional Extension Period
      granted by DCC, this Agreement shall not become effective and shall be declared
      null and void, except that the license held by DCC for the Carrollwood Trade
      Area shall not terminate due to the lack of a Shells Seafood Restaurant being
      opened in the Carrollwood Trade Area, unless DCC fails to operate or license
      a
      Shells Seafood Restaurant in the Carrollwood Trade Area for a period of twelve
      (12) months following the end of the Extension Period or any Additional
      Extension Period granted to SSRI.

    


    ARTICLE
      8

    MISCELLANEOUS

     

    8.1 Descriptive
      Headings.
      The
      descriptive headings herein are inserted for convenience of reference only
      and
      are not intended to be part of or to affect the meaning or interpretation of
      this Agreement.

     

    8.2 Notices.
      All
      notices, requests, demands, consents or other communications provided for in
      or
      to be given under this Agreement shall be in writing and shall be given by
      personal service, by prepaid registered or certified airmail (return receipt
      requested), by prepaid overnight air courier, or by telex or facsimile
      transmission, to the respective parties at the following addresses:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    If
      to SSRI:

    Shells
      Seafood Restaurants, Inc.

    Attention:
      Warren Nelson

    16313
      North Dale Mabry, Suite 100

    Tampa,
      Florida 33618

    


    with
      a copy to:

    R.
      Alan
      Higbee, Esq.

    Fowler
      White Boggs Banker P.A.

    501
      E.
      Kennedy Blvd., Suite 1700

    Tampa,
      Florida 33602

    Telephone:
      813-228-7411

    Facsimile:
      813-228-9401

    


    If
      to DCC:

    Deborah
      Christen Corporation

    Attention:
      Deborah Christen

    3527
      Heards Ferry Drive

    Tampa,
      Florida 33618

     

    with
      a copy to:

    Jacqueline
      B. Whatley, Esquire

    Gibbons,
      Tucker, Miller, Whatley & Stein, P.A.

    101
      East
      Kennedy Boulevard, Suite 2190

    Tampa,
      Florida 33602-3664

    Telephone:
      (813) 228-7841

    Facsimile:
      (813) 228-7848

    


    Notices
      shall be deemed given and shall become effective (i) upon receipt if delivered
      in person or by facsimile or telex (as conclusively evidenced in the case of
      notice by telex by confirmed delivery of a telex copy by an overnight carrier),
      (ii) three days after having been delivered to an overnight air courier, or
      (iii) five days after having been deposited in the mails as prepaid registered
      or certified matter. Any Party may by notice to the others designate a new
      address for notices.

     

    8.3 Counterparts.
      This
      Agreement may be executed in counterparts, each of which shall be deemed to
      be
      an original, but all of which shall constitute one and the same
      agreement.

     

    8.4 Binding
      Effect; Assignment.
      This
      Agreement shall inure to the benefit of and be binding upon the parties hereto
      and their respective and successors and permitted assigns.

     

    8.5 The
      parties agree that time shall be of the essence of this Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    8.6 Amendment.
      This
      Agreement may not be amended except by an instrument in writing signed on behalf
      of all the parties. 

     

    8.7 Governing
      Law; Jurisdiction.
      This
      Agreement shall be governed by and construed in accordance with the laws of
      the
      State of Florida. Each Party hereto irrevocably submits to the exclusive
      jurisdiction of the courts located in Hillsborough County, Florida. 

     

    8.8 Supercedes
      Other Agreements.
      To the
      extent that anything contained herein is inconsistent with the terms of any
      other agreements entered into between the Parties, this Agreement shall
      supersede and control such other agreements and to the extent inconsistent
      shall
      constitute an amendment to the other agreements.

     

    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      day
      and year first above written.

     

    SHELLS
      SEAFOOD RESTAURANTS, INC. 

    


    By:
      /s/ Warren R.
      Nelson                 
      

    Name:
      Warren
      R. Nelson

    Title:
      Executive Vice President


    


    


    DEBORAH
      CHRISTEN CORPORATION 

    


    By:
      /s/ Deborah
      Christen                 
      

    Name:
      Deborah
      Christen

    Title:
      President


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      A

    


    CARROLLWOOD
      TRADE AREA


    


    “A
      circular area having a diameter 20 miles long and having as the midpoint of
      its
      diameter the business premises located at 14380 North Dale Mabry Highway, Tampa,
      Florida.”

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      B


    LIMITED
      CARROLLWOOD TRADE AREA


    


    Property
      lying within an area bounded by Van Dyke on the North, Busch Boulevard on the
      South, North Dale Mabry on the East, and Sheldon Road north along Gunn Highway
      on the West
      AND any
      property which may be accessed via private ingress and egress to and from Van
      Dyke, Busch Boulevard, North Dale Mabry and Sheldon Road.


     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
      C

    


    NORTH
      TAMPA TRADE AREA

    


    A
      circular area having a diameter 20 miles long and having as the MIDPOINT OF
      ITS
      DIAMETER the business premises located at 11010 North 30th
      Street,
      Tampa, Florida.


    


    SOUTH
      TAMPA TRADE AREA

    


    A
      circular area having a diameter 20 miles long and having as the MIDPOINT OF
      ITS
      DIAMETER the business premises located at 202 South Dale Mabry Highway, Tampa,
      Florida.


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	
                Exhibit
                  D

              
	
                Shells
                  of Carrollwood Village Inc.

              
	
                Calculation
                  of Monthly License Fees for 

              
	
                April
                  2006 to December 2006

              


      

       

      
        	 	
                Sales
                  Derived

              	 	
                2%
                  License

              
	
                Month

              	
                From

              	
                Sales

              	
                Fee

              
	
                Apr-06

              	
                Apr-05

              	
                137,664
                  

              	
                $
                  2,753 

              
	
                May-06

              	
                May-05

              	
                140,007
                  

              	
                $
                  2,800 

              
	
                Jun-06

              	
                Jun-05

              	
                166,166
                  

              	
                $
                  3,323 

              
	
                Jul-06

              	
                Jul-04

              	
                124,792
                  

              	
                $
                  2,496 

              
	
                Aug-06

              	
                Aug-04

              	
                119,987
                  

              	
                $
                  2,400 

              
	
                Sep-06

              	
                Sep-04

              	
                120,027
                  

              	
                $
                  2,401 

              
	
                Oct-06

              	
                Oct-04

              	
                107,407
                  

              	
                $
                  2,148 

              
	
                Nov-06

              	
                Nov-04

              	
                129,511
                  

              	
                $
                  2,590 

              
	
                Dec-06

              	
                Dec-04

              	
                133,258
                  

              	
                $
                  2,665