Exhibit 10.1
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
SHELLS SEAFOOD RESTAURANTS, INC.
AS SELLER
AND
FRI FISH LLC
AS BUYER
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT ("Agreement") is entered into as of April
13, 2006, by and between SHELLS SEAFOOD RESTAURANTS, INC. ("Seller"), and FRI
Fish LLC, a Delaware limited liability company ("Buyer"). Buyer and Seller are
from time to time referred to herein individually as a "Party", and collectively
as the "Parties."
R E C I T A L S:
A. Seller owns one (1) Shells restaurant real property (the "Property")
more particularly described as follows:
I. All of the "Real Property" ("Real Property"), collectively described as
follows: good and indefeasible title in fee simple to the land described on
Schedule 1 attached hereto (collectively, the "Land"), together with all rights
and interests appurtenant thereto, including, without limitation, Seller's
right, title, and interest in and to all (A) adjacent streets, alleys,
rights-of-way and any adjacent strips or gores of real estate; (B) buildings,
structures and other improvements located on the Land (the "Improvements"); and
(C) the fixtures located at or in the Land or Improvements, other than certain
movable trade fixtures more particularly described in the Lease Agreement (as
defined below); and
II. The following equipment located at any of the Real Property on the
Closing Date (collectively, the "Personal Property"): walk-in
coolers/refrigerator, freezers, HVAC equipment and hoods.
B. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, the Property subject to the terms and conditions set forth in this
Agreement.
C. Upon the consummation of the transactions contemplated herein, Seller
desires to lease from Buyer, and Buyer desires to lease to Seller, the Property
pursuant to certain Lease Agreement (as defined below). Any capitalized term
used herein but not defined herein shall have the meaning set forth in the form
Lease Agreement attached hereto as Exhibit A .
A G R E E M E N T:
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, Seller and Buyer agree as follows:
1. Conveyance of Property. On the terms and subject to the conditions set
forth in this Agreement, at Closing (as hereinafter defined), Seller shall sell,
convey and assign to Buyer, and Buyer shall buy and accept from Seller, the
Property.
2. Purchase Price. Subject to the terms of this Agreement, the purchase
price (the "Purchase Price") for the Property shall be $1,650,000.00, payable in
cash by Buyer to Seller at Closing. The Purchase Price shall be paid to
LandAmerica National Commercial Services, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (the "Title Company") to be held in an
escrow (the "Escrow") at Title Company on behalf of the Parties and distributed
by Title Company at Closing as designated by closing instructions agreed upon by
Buyer, Seller and Title Company prior to the Closing Date.
3. Property Documents. Not more than five (5) business days following the
date hereof, Seller shall deliver to Buyer, the documents set forth in
subsections (a) through (n) of this Section 3 (collectively, the "Property
Documents"), if available, or with respect to documents not in Seller's
possession and referenced as subsections (a), (b), and (c), has engaged directly
third parties (including, without limitation, appraisers, environmental
consultants, Title Company and surveyors), at Buyer's request, in connection
with the preparation of Property Documents. The scope of any such engagement
with third parties shall be subject to Buyer's prior written approval (not to be
unreasonably withheld).
(a) Commitments for title insurance covering each fee estate in the Real
Property ("Title Commitment") from Title Company, setting forth the status of
title to the Real Property, showing all matters of record affecting the Real
Property, together with a true, complete and legible copy of all documents
referred to in the Title Commitment;
(b) Current ALTA Land Title "As Built" Survey ("Survey") for the Real
Property, containing the certification set forth on Exhibit B, as the same may
be required to be modified (subject to Buyer's consent, which shall not be
unreasonably withheld) to conform with requirements of particular jurisdictions
and surveys;
(c) Intentionally Deleted;
(d) Evidence of insurance covering the Property as required pursuant to
the Lease Agreement;
(e) Use permit and any additional required governmental permits or
licenses regarding the construction, occupancy and operation of the Property;
(f) Certificate of occupancy regarding the Real Property;
(g) Profit and loss statements and balance sheets (consolidated and
consolidating) for Seller, and profit and loss statements regarding the
Property, each covering the trailing twelve (12) month period, and for calendar
years ending 2005, 2004 and 2003, and such other financial statements and
information as Buyer reasonably shall have requested regarding Seller and the
Property;
(h) Any engineering reports in Seller's possession or control regarding
the Real Properties, including without limitation a description of any deferred
maintenance and repairs and an estimate of the cost thereof, and a reliance
letter in favor of Buyer for each such report from the person or entity that
prepared same;
(i) UCC, litigation and tax lien searches from a commercially recognized
search company regarding the Property and Seller;
(j) Zoning permits and regulations (if available) and other evidence of
proper zoning (e.g. zoning letters or zoning reports), as available; and if
legal non-conforming uses exist, evidence that the improvements may be rebuilt
to existing specifications following a casualty or condemnation;
(k) Final "As Built" plans and specifications for the Real Property;
(l) Any and all studies, data, reports, agreements, licenses, leases,
environmental assessments, surveys, reports, documents, plans, maps, and permits
in Seller's possession or control concerning the Property (to the extent not
already delivered to Buyer pursuant to subsections (a) - (k), above); and
(m) Such other information regarding Seller or the Property that Buyer
reasonably may have requested.
4. Right of Entry, Inspection.
(a) From and including the date hereof through and including the Closing
Date, Seller shall afford Buyer and its representatives a continuing
right to inspect the Property and the Property Documents and Seller
hereby grants to Buyer and Buyer's agents, employees and consultants a
nonexclusive license to enter upon the Real Property for the purpose of
allowing Buyer to conduct whatever soil and engineering tests,
feasibility studies, surveys and other physical examinations of the
Property Buyer deems appropriate, provided Buyer gives Seller prior
notice of such intended entry. Buyer will not perform any invasive
testing at any of the Property without Seller's prior written consent,
which shall not be unreasonably withheld. Buyer shall at all times use
reasonable efforts not to unreasonably interfere with the conduct of
Seller's business at the Property. Buyer agrees to provide copies to
Seller of all reports, tests, and studies received by Seller regarding
the Real Property.
(b) In the event of any damage to the Property caused by Buyer, its agents,
engineers, employees or contractors, Buyer shall pay the cost incurred
by Seller to restore the Property to the condition existing prior to
the performance of such tests, investigations or studies. Buyer shall
protect, defend, indemnify and hold Seller harmless from any and all
liability, claims, losses, costs and expenses (including, without
limitation, reasonable attorneys' fees and costs) suffered or incurred
by Seller for injury to persons or property caused by Buyer's
investigations, studies, tests and inspections of the Property.
However, Buyer shall have no liability for any liability, claims,
losses, costs and expenses attributable to the acts or omissions of
Seller or Seller's agents, employees, invitees or licensees or
resulting from latent defects or Hazardous Materials within, on, under
or adjacent to the Property.
5. Title and Other Defects.
(a) Buyer shall have the right, at any time prior to the Closing Date (as
defined in Section 7 hereof), to deliver written notice to Seller
objecting to any material adverse matters reflected in the Survey or
Title Commitment (any such writing, a "Title Notice Letter"). All
matters set forth in Survey or Title Commitment to which Buyer delivers
a Title Notice Letter, and all matters which are listed on the Title
Commitment as requirements of Title Company to issue the applicable
final title insurance policy (other than those requirements which
relate to documents or other items to be provided by Buyer), are
referred to herein as "Disapproved Exceptions." All matters set forth
in the Title Commitment or Survey which are not Disapproved Exceptions
are referred to herein as "Permitted Exceptions." Seller, at its sole
cost and expense, may elect to cure (to Buyer's satisfaction, in its
sole discretion) or caused to be removed from the Title Commitment all
Disapproved Exceptions on or before the Closing Date. If Seller does
not cause all Disapproved Exceptions to be removed or cured (to Buyer's
satisfaction, in its sole discretion) from the Title Commitment on or
before the Closing Date, Buyer may elect, in its sole discretion, to
either (i) purchase the Property without a reduction in the Purchase
Price, or (ii) terminate this Agreement.
(b) In addition Buyer's right to notify Seller of any Disapproved
Exceptions (as described in subsection 5(a), above), Buyer shall have
the right, at any time prior to the Closing Date, to deliver written
notice to Seller objecting to any other material adverse matters
regarding the Property, including without limitation regarding the
physical condition, legal or zoning condition, location or sales volume
of the Property. If Seller does not cause all such matters to be cured
(to Buyer's satisfaction, in its reasonable discretion) on or before
the Closing Date for the Property, then Buyer may elect, in its sole
discretion, to either (i) purchase the Property without a reduction in
the Purchase Price; or (ii) terminate this Agreement.
6. Representations, Warranties and Additional Covenants.
(a) Seller's Representations and Warranties. Seller hereby represents and
warrants to Buyer that as of the date of this Agreement and as of the
Closing:
(i) Qualification and Authority. Shells Seafood Restaurants, Inc., is a
Delaware corporation, duly organized, validly existing and in good
standing under the laws of the state where the Real Property is
located. Seller has the right, power, and authority to execute,
deliver, and perform this Agreement. This Agreement, when executed
and delivered by Seller and Buyer, shall constitute the valid and
binding agreement of Seller, and shall be enforceable against Seller
in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles. All requisite
authorizations, consents, resolutions and actions on the part of
Seller have been obtained, adopted or taken, as applicable, by
Seller (and its affiliates as and if required) in connection with
making and entering into this Agreement and the consummation of the
purchase and sale provided for herein, and no consents or approvals
are required from any party which is not a party to this Agreement
in order to consummate such purchase and sale. Neither this
Agreement nor the consummation of any of the transactions
contemplated hereby violates or shall violate any provision of any
agreement or document to which Seller is a party or to which Seller
is bound.
(ii) Bankruptcy. Neither Seller nor any entity or person in Control of,
having Control over, or under common Control with Seller, regardless
of the number of tiers of ownership, is bankrupt under the Federal
Bankruptcy Code, or has filed for protection or relief under any
applicable bankruptcy or creditor protection statute or has been
threatened by creditors with an involuntary application of any
applicable bankruptcy or creditor protection statute. Seller is not
entering into the transactions described in this Agreement with an
intent to defraud any creditor or to prefer the rights of one
creditor over any other. Seller and Buyer have negotiated this
Agreement at arms-length and the consideration to be paid represents
the fair market value for the assets to be transferred. As used in
this Agreement, "Control" means ownership of voting securities
sufficient to elect a majority of the board of directors of a
corporation, or analogous ownership interests of non-corporate
entities.
(iii) Leases. There are no Leases encumbering the Real Property. As used
herein, "Leases" means any lease, tenancy, license, sublease,
assignment and/or other rental or occupancy agreement (including,
without limitation, any and all guarantees of any of the foregoing)
heretofore or hereafter entered into affecting the use, enjoyment or
occupancy of the Real Property or any portion thereof, including any
extensions, renewals, modifications or amendments thereof.
(iv) Compliance With Laws; Zoning. Except as set forth in Schedule
6(a)(iv), to Seller's knowledge, without inquiry, (A) the Property
is in material compliance with all applicable zoning, subdivision
and land use laws, regulations and ordinances, all applicable
health, fire, and building codes, and all other laws applicable to
the Property, including without limitation the Americans with
Disabilities Act (but excluding Environmental Laws, which are
discussed below); (B) there are no illegal activities relating to
controlled substances on the Real Property, (C) all required
permits, licenses and certificates for the lawful use and operation
of the Property, including, but not limited to, certificates of
occupancy, or the equivalent, have been obtained and are current and
in full force and effect; (D) in the event that all or any part of
the Improvements located on the Real Property are destroyed or
damaged, said Improvements can be legally reconstructed to their
condition prior to such damage or destruction, and thereafter exist
for the same use without violating any zoning or other ordinances
applicable thereto and without the necessity of obtaining any
variances or special permits, other than customary demolition,
building and other construction related permits; (E) the Real
Property contains enough permanent parking spaces (both regular
spaces and handicap spaces) to satisfy all requirements imposed by
applicable laws with respect to parking; (F) no legal proceedings
are pending or, to the best knowledge of Seller, threatened with
respect to the zoning of the Real Property; and (G) neither the
zoning nor any other right to construct, use or operate the Real
Property is in any way dependent upon or related to any real estate
other than such Real Property.
(v) Property Condition; Defects. Except as set forth in Schedule
6(a)(v), to Seller's knowledge, without inquiry, (A) there is no
latent or patent structural or other material defect or deficiency
in the Property; (B) city water supply, storm and sanitary sewers,
and electrical, gas and telephone facilities are available to the
Real Property within the boundary lines of such Real Property, are
sufficient to meet the reasonable needs of the Real Property as
presently contemplated to be used, and no other utility facilities
are necessary to meet the reasonable needs of the Real Property as
presently contemplated; (C) no part of the Real Property is within a
flood plain and none of the Improvements create encroachment over,
across or upon the Real Property's boundary lines, rights of way or
easements, and no building or other improvements on adjoining land
create such an encroachment; (D) access to the Real Property for the
current and contemplated uses thereof is provided by means of
dedicated, all weather public roads and streets which are physically
and legally open for use by the public, or by private easements
which are insured parcels under the applicable Title Commitment or
Title Policy; and (E) any liquid or solid waste disposal, septic or
sewer system located at the Real Property is in good and safe
condition and repair and in compliance with all applicable law.
(vi) Taxes. All federal, state and local tax returns and reports of
Seller required to be filed have been timely filed, and all taxes,
assessments, fees and other governmental charges (including any
payments in lieu of taxes) upon Seller and upon its properties,
assets, income and franchises which are due and payable have been
paid when due and payable, except for those taxes which are being
contested in good faith by appropriate proceedings and for which
adequate reserves have been established. There is not presently
pending (and to the best of Seller's knowledge, there is not
contemplated) any special assessment against the Property or any
part thereof. No tax liens have been filed and to the best knowledge
of Seller, no claims are being asserted with respect to any such
taxes. The charges, accruals and reserves on the books of Seller in
respect of any taxes or other governmental charges are in accordance
with generally accepted accounting principles, consistently applied.
(vii) Contractual Obligations. To Seller's knowledge, Seller is not in
default in the performance, observance or fulfillment of any of the
material obligations, covenants or conditions contained in any
material contractual obligation of Seller beyond any applicable
notice and cure period, and no condition exists that, with the
giving of notice or the lapse of time or both, would constitute such
a default.
(viii) Disclosure. No financial statements or any other document,
certificate or written statement furnished to Buyer by Seller and,
to the best knowledge of Seller, no document or statement furnished
by any third party on behalf of Seller, for use in connection with
this Agreement or the transactions contemplated herein contains any
untrue representation, warranty or statement of a material fact, and
none omits or will omit to state a material fact necessary in order
to make the statements contained herein or therein not misleading.
There is no material fact known to Seller that has had or will have
a Material Adverse Effect and that has not been disclosed in writing
to Buyer and Seller. As used herein, "Material Adverse Effect" means
(A) a material adverse effect upon the business, operations,
properties, assets or condition (financial or otherwise) of Seller
with respect to such party taken as a whole, or (B) the material
impairment of the ability of Seller to perform its material
obligations under any of the Transaction Documents (as defined in
Section 7, below) or (C) the material impairment of Buyer's rights
or remedies under any of the Transaction Documents. In determining
whether any individual event would result in a Material Adverse
Effect, notwithstanding that such event does not of itself have such
effect, a Material Adverse Effect shall be deemed to have occurred
if the cumulative effect of such event and all other then occurring
events and existing conditions would result in a Material Adverse
Effect.
(ix) Suits, Judgments and Liens. Except as expressly set forth on
Schedule 6(a)(ix), (A) there are no lawsuits, claims, suits, or
legal, administrative or other proceedings or investigations pending
or, to the best of Seller's knowledge, after due and diligent
inquiry, threatened against or affecting Seller or the Property
(including, without limitation eminent domain or condemnation
proceedings), nor to the best of Seller's knowledge after due and
diligent inquiry, is there any basis for any of the same, and there
are no lawsuits, suits or legal, administrative or other proceedings
pending in which Seller is the plaintiff or claimant and which
relate to the Property; and (B) there is no action, suit or legal,
administrative or other proceeding pending or, to the best of
Seller's knowledge, after due and diligent inquiry, threatened which
questions the legality or propriety of the transactions contemplated
by the Transaction Documents.
(x) Environmental Laws; Hazardous Materials. Except as set forth in
Schedule 6(a)(x), to Seller's knowledge, without inquiry, (A) the
Property is not in violation or is currently under investigation for
any violation, of any Environmental Laws; (B) the Property has not
been subject to an unlawful deposit or a deposit that required
investigation or remediation beyond immediate remediation of de
minimis spills of any Hazardous Materials; (C) except in compliance
with Environmental Laws, neither Seller nor any third party has
used, generated, manufactured, stored or disposed in, at, on, under
or about the Property or transported to or from the Property any
Hazardous Materials; (D) there has been no release, discharge or
migration of any Hazardous Materials from, into, on, under or about
the Property in violation of Environmental Laws; (E) there is no
fact, condition or circumstance governed by Environmental Laws that
would materially impair, limit or restrict the use of the Property
for its current intended business purpose or its intended use as
described in the Lease Agreement; and (F) there is no amount of any
mold at the Property that would materially impair, limit or restrict
the use of any Property for its current intended business purpose or
its intended use as described in the Lease Agreement.
(b) Buyer's Representations and Warranties - Qualification and
Authority. Buyer hereby represents and warrants to Seller that as of
the date of this Agreement and as of the Closing, Buyer is a
Delaware limited liability company duly organized, validly existing
and in good standing under the law of Florida. Buyer has the right,
power, and authority to execute, deliver, and perform this
Agreement. This Agreement, when executed and delivered by Buyer and
Seller, shall constitute the valid and binding agreement of Buyer,
and shall be enforceable against Buyer in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles. All requisite authorizations, consents, resolutions and
actions on the part of Buyer, have been obtained, adopted or taken,
as applicable, by Buyer (and its affiliates, as and if required) in
connection with making and entering into this Agreement and the
consummation of the purchase and sale provided for herein, and no
consents or approvals are required from any party which is not a
party to this Agreement in order to consummate such purchase and
sale. Neither this Agreement nor the consummation of any of the
transactions contemplated hereby violates or shall violate any
provision of any agreement or document to which Buyer is a party or
to which Buyer is bound.
(c) Additional Covenants of Seller Prior to Closing. Seller shall prior
to Closing and in addition to the covenants set forth elsewhere in
this Agreement:
(i) Maintain insurance coverage for the Improvements, insuring against
all risks of physical loss or damage, subject to standard
exclusions, in an amount equal to the actual replacement cost of
such Improvements;
(ii) Not permit any encumbrance, charge or lien to be created upon the
Property after the date of this Agreement unless such encumbrance,
charge or lien has been approved in writing by Buyer, or caused by
Buyer or its agents, or unless such monetary encumbrance, charge or
lien will be removed by Seller prior to the Closing;
(iii) Not execute any Lease after the date of this Agreement without the
prior written consent of Buyer, which consent may be withheld in
Buyer's sole and absolute discretion;
(iv) Intentionally omitted;
(v) Maintain the Property in the manner in which the Property is
currently maintained and if currently being renovated, complete such
renovations in the ordinary course of business;
(vi) Promptly notify Buyer in writing if any of the representations and
warranties of Seller set forth in this Agreement are no longer
materially true and correct;
(vii) Not sell, convey, assign, transfer, encumber or otherwise dispose of
the Property, and shall not, without the prior written consent of
Buyer, make any material modifications or alterations to the
Property after the date of this Agreement;
(viii) Comply, in all material respects, and shall cause all persons using
or occupying the Property or any part thereof to comply, in all
material respects, with all Environmental Laws applicable to the
Property, or the use or occupancy thereof, or any operations or
activities therein or thereon;
(ix) Comply, in all material respects, fully with all permits, licenses
and approvals required by all applicable Environmental Laws for the
use and occupancy of, and all operations and activities in, the
Property, and keep all such permits, licenses and approvals in full
force and effect until Closing; and
(x) Immediately after receiving notice that any violation of any
Environmental Laws may have occurred at or about the Property,
deliver written notice thereof to Buyer with a reasonably detailed
description of the event, occurrence or condition in question.
Buyer and Seller acknowledge and agree that none of the foregoing covenants
shall survive either termination of this Agreement or Closing, nor shall the
foregoing covenants limit any obligations of Seller under the Lease Agreement
after Closing.
7. Closing. As used herein, "Closing" shall be deemed to have occurred
when the Deed has been delivered by Seller to Buyer for recordation in
the Official Records of the County where the Real Property is located,
title to the Property is conveyed to Buyer, and possession of the
Property is delivered to Buyer, all in accordance with the terms of
this Agreement. Closing shall occur on or before April 17, 2006
("Closing Date"). On or before the Closing Date:
(a) Buyer shall deliver or cause to be delivered to Seller through Escrow
all of the following:
(i) The Purchase Price in accordance with Section 2.
(ii) Four (4) counterpart originals of a Lease Agreement in the form
attached hereto as Exhibit A (the "Lease Agreement"), each duly
executed by Buyer.
(iii) Four (4) counterpart originals of the General Assignment in the form
attached hereto as Exhibit D (collectively, the "License Assignment"),
each duly executed by Buyer.
(b) Seller shall deliver or cause to be delivered to Buyer through Escrow
all of the following:
(i) Special Warranty Deed in the form of Exhibit H, or a substantially
equivalent form complying with state-specific recording requirements
(each, a "Deed"; collectively, the "Deeds"), conveying to Buyer the
Real Property subject only to the Permitted Exceptions, duly executed
by Seller and properly notarized and acknowledged;
(ii) Four (4) originals of the ▇▇▇▇ of Sale conveying the Personal Property
to Buyer, in the form of Exhibit I, (the "▇▇▇▇ of Sale"), each duly
executed by Seller;
(iii) Internal Revenue Code Section 1445 Certification in the form of Exhibit
J, and any state-specific withholding certificates reasonably required
by Buyer, each duly executed by Seller;
(iv) Four (4) counterpart originals of the Lease Agreement, duly executed by
Seller.
(v) Four (4) counterpart originals of each of the License Assignments, each
duly executed by Seller.
(vi) An ALTA Extended Coverage Owner's Policy of Title Insurance and an ALTA
Extended Coverage Lender's Policy of Title Insurance (insuring Buyer's
lender's mortgage) for the Property, in the form of the Title
Commitment for such Property previously approved by Buyer hereunder,
subject only to the Permitted Exceptions and in an amount equal to the
amount allocated to the Property on Exhibit C attached hereto, with
such endorsements as Buyer shall reasonably require, including, but not
limited to, survey, access and zoning, and without exception for
creditors' rights (collectively, the "Title Policies").
(vii) Evidence reasonably satisfactory to Buyer and Title Company that Buyer
is fully authorized to have entered into this Agreement, and to
consummate the transactions contemplated herein, including without
limitation selling the Property to Buyer pursuant to the terms of this
Agreement, and entering into the Lease Agreement.
(viii) The amount of all fees and expenses of Buyer that Seller is obligated
to pay pursuant to subsection 8(b), to the extent not previously paid.
(c) Seller shall deliver to Buyer possession of the Property subject to the
Lease Agreement.
As used in this Agreement, "Transaction Documents" means, collectively, this
Agreement, the Lease Agreement, the License Assignment, the Deed, the ▇▇▇▇ of
Sale and the Lease Subordination Agreements.
8. Prorations; Fees and Costs.
(a) No proration shall be made of real estate and personal property taxes,
utility charges and maintenance expenses with respect to the Property
(the Parties acknowledging that Seller shall be responsible for all
such charges, taxes and expenses under the Lease Agreement). Rental
payments under the Lease Agreement shall be prorated as of the Closing
Date such that Seller shall prepay a prorated portion of the rent
applicable to the month in which the Closing occurs, as contemplated by
the Lease Agreement.
(b) Seller shall pay (i) all closing fees and expenses, including without
limitation all escrow fees, recording costs (including, without
limitation mortgage recording costs) and applicable deed stamp taxes,
mortgage taxes, and transfer taxes for the Property (including, without
limitation, all Personal Property relating thereto); (ii) all fees and
expenses associated with the preparation of all Property Documents,
including without limitation Title Commitment and Site Assessment; and
(iii) all premiums for the Title Policy, all mortgagee title policies,
and all final Surveys.
9. Conditions to Closing.
(a) Conditions to Buyer's Obligations. The Closing and Buyer's obligation
to purchase the Property is subject to the satisfaction of the
following conditions or Buyer's written waiver of such conditions on or
before the Closing Date. Buyer may waive in writing any or all of such
conditions in its sole and absolute discretion.
(i) Seller shall have performed all obligations to be performed by Seller
prior to Closing under this Agreement.
(ii) Seller's representations and warranties set forth in subsection 6(a) of
this Agreement shall be true and correct in all material respects as of
the Closing.
(iii) Title Company shall be committed to issue to Buyer, as of the Closing
Date, the Title Policy.
(iv) Intentionally omitted.
(v) Without limiting anything contained in clause 9(a)(ii), no order, stay,
injunction or restraining order, pending or threatened litigation, law
or regulation, or any other condition shall exist that in the
reasonable determination of Buyer could have a Material Adverse Effect.
(b) Conditions to Seller's Obligations. The Closing and Seller's obligation
to consummate the transactions contemplated by this Agreement are
subject to the satisfaction of the following conditions or Seller's
written waiver of such conditions on or before the Closing Date. Seller
may waive in writing any or all of such conditions in its sole and
absolute discretion:
(i) Buyer shall have performed all obligations to be performed by Buyer
prior to Closing under this Agreement.
(ii) Buyer's representations and warranties and covenants set forth in
subsection 6(b) of this Agreement shall be true and correct in all
material respects as of the Closing.
10. Notices. Any notice provided or permitted to be given under this
Agreement must be in writing and may be served by depositing same in
the United States mail, addressed to the Party to be notified, postage
prepaid and certified, with return receipt requested, by delivering the
same in person to such Party (including express or courier service), or
by delivering the same by confirmed facsimile. Notice given in
accordance herewith shall be effective upon the earlier of (a) receipt
at the address of the addressee, (b) the second day following deposit
of same in the United States mail as provided for herein, regardless of
whether same is actually received, or (c) the second attempt at
delivery, as evidenced by the regular records of the person or entity
attempting delivery, regardless of whether the same is actually
received. For purposes of notice, the addresses of the Parties shall be
as follows:
If to Seller: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ White ▇▇▇▇▇ Banker, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to Buyer: Fortress Realty Management, LLC
▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
and a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Either Party may change its address for notice by giving
written notice thereof to the other Party in accordance with the provisions of
this Section 10.
11. Commissions. Seller and Buyer each (a) represent to the other Party that
such representing Party has dealt with no broker or brokers in connection with
the negotiation, execution and delivery of this Agreement or the sale of the
Property contemplated herein, and (b) hereby indemnifies, defends, protects
(with counsel selected by the other Party) and holds such other Party wholly
free and harmless of, from and against any and all claims or demands for any and
all brokerage commissions and/or finder's fees due or alleged to be due as a
result of any agreement or purported agreement made by such indemnifying Party.
12. Assigns. This Agreement shall inure to the benefit of and be binding on the
Parties hereto and their respective heirs, legal representatives, successors and
assigns. This Agreement may not be assigned by Seller without the prior written
consent of Buyer, which Buyer may withhold in its sole and absolute discretion.
This Agreement may be assigned by Buyer without the consent of Seller provided
that Buyer delivers to Seller written notice of such assignment. Notwithstanding
the foregoing, upon any assignment of this Agreement by Buyer, Buyer shall not
be relieved of liability for the performance of any obligation of Buyer
contained in this Agreement unless and until Buyer's assignee shall have assumed
in writing all of the duties and obligations of Buyer hereunder.
13. Destruction, Damage or Taking Before Closing.
(a) In the event of damage to or destruction of all or any portion of the
Property by fire or other casualty, Seller shall promptly deliver to Buyer
written notice thereof, which notice shall contain reasonable detail regarding
such damage or destruction, including without limitation Seller's reasonable
estimate of the amount required to be expended to repair or restore the damaged
or destroyed Property or portion thereof. If Seller does not cause all damaged
or destroyed Property to be repaired or replaced (to Buyer's satisfaction, in
its sole discretion) on or before the Closing Date, then Buyer may elect, in its
sole discretion, to either (i) purchase the Property subject to such damage or
destruction without a reduction in the Purchase Price but with an assignment of
available insurance proceeds, or; (ii) terminate this Agreement.
(b) In the event of an eminent domain taking or the issuance of a notice of an
eminent domain taking with respect to all or any portion of any Property, Seller
shall promptly deliver to Buyer written notice thereof, which notice shall
contain reasonable detail regarding such taking (the "Taking Notice"). Within
ten (10) business days after Buyer's receipt of the Taking Notice, Buyer may
elect, in its sole discretion, to either (i) purchase the Property subject to
such taking without a reduction in the Purchase Price, but with an assignment of
all condemnation awards and proceeds, or; (ii) terminate this Agreement.
14. Termination; Remedies; Seller Indemnity.
(a) Without limiting anything contained in subsection 8(c), if the Closing does
not occur by reason of Seller's default hereunder that is not cured within ten
(10) days after Seller first has knowledge of such default, then Buyer shall be
entitled to pursue its right to specifically enforce this Agreement and to
record a notice of pendency of action against the Property.
(b) Without limiting anything contained in subsection 8(c), if the Closing does
not occur by reason of Buyer's default hereunder that is not cured within ten
(10) days after Buyer first has knowledge of such default, then Seller shall
have the right as its sole and exclusive remedy to terminate this Agreement by
notifying Buyer in writing thereof, in which case Buyer shall pay Seller
$50,000.00 as liquidated damages.
(c) In addition to any and all other obligations of Seller under this Agreement
(including without limitation under any indemnity or similar provision set forth
herein), and except as otherwise specifically provided in this Agreement
(including, without limitation, in subsection 14(b) hereof), Seller hereby fully
and forever releases, discharges, acquits, indemnifies, protects, and agrees to
defend (with counsel selected by Seller and approved by Buyer, such approval not
to be unreasonably withheld) and hold Buyer, Buyer's members, partners,
trustees, ancillary trustees, officers, directors, shareholders, beneficiaries,
agents, employees, independent contractors and any person or entity in Control
of, having Control over, or under common Control with Buyer, regardless of the
number of tiers of ownership (collectively, "Buyer's Affiliates"), and lenders
to Buyer and to all Buyer's Affiliates, wholly free and harmless of, from and
against any and all claims, demands, actions, causes of action, settlements,
obligations, duties, indebtedness, debts, controversies, losses, remedies,
choses in action, liabilities, costs, penalties, fines, damages, injury,
judgments, forfeiture, losses (including without limitation diminution in the
value of the Properties) or expenses (including without limitation attorneys'
fees, consultant fees, testing and investigation fees, expert fees and court
costs), whether known or unknown, whether liquidated or unliquidated
(collectively, "Claims"), arising out of this Agreement or any of the other
Transaction Documents, or any of the transactions contemplated herein or
therein; provided, however, that the foregoing indemnity shall not be applicable
to the extent, and only to the extent, any such Claims are directly attributable
to the gross negligence or willful misconduct of Buyer, as determined by a final
nonappealable judgment by a court of competent jurisdiction.
15. Disclosure.
(a) Buyer and Seller shall keep information regarding terms of this Agreement
confidential, except that each Party may disclose the terms this Agreement (i)
to its, and its affiliates', officers, directors, employees, accountants,
agents, potential financing sources, legal counsel and such other third parties
as reasonably necessary to effectuate the closing of the transaction
contemplated herein, and (ii) as required by law, administrative agency or court
order. Without limiting the foregoing, neither Party will announce or otherwise
make public the terms of this transaction without the prior consent of the other
Party, which consent shall not be unreasonably withheld.
(b) Notwithstanding anything to the contrary set forth herein, except as
reasonably necessary to comply with applicable securities laws, any of Buyer and
Seller, and each employee, representative or other agent of such Party, may
disclose to any and all persons, without limitation of any kind, the Tax
Treatment and Tax Structure of the transactions contemplated by this Agreement
(collectively, the "Transaction") and all materials of any kind (including
opinions or other tax analyses) that are provided to it relating to such Tax
Treatment and Tax Structure. As used in this subsection, (i) "Tax Treatment"
means, and is strictly limited to, the purported or claimed U.S. federal income
tax treatment of the Transaction, and does not include, without limitation, any
of the following, in each case to the extent not related to the purported or
claimed U.S. federal income tax treatment of the Transaction: information
relating to the identity of any Party to the Transaction or any of such party's
employees, representatives, or other agents; the existence and status of
negotiations between the Parties; and financial, business, legal or other
information regarding a Party (or any of its employees, representatives or other
agents); and (ii) "Tax Structure" means, and is strictly limited to, any fact
that may be relevant to understanding the purported or claimed U.S. federal
income tax treatment of the Transaction, and does not include, without
limitation, any of the following, in each case to the extent not related to any
fact that may be relevant to understanding the purported or claimed U.S. federal
income tax treatment of the Transaction: information relating to the identity of
any Party to the Transaction or any of such Party's employees, representatives,
or other agents; the existence and status of negotiations between the Parties;
and financial, business, legal or other information regarding a Party (or any of
its employees, representatives or other agents). The authorization of tax
disclosure set forth in this subsection is retroactively effective to the
commencement of the first discussions between the parties regarding the
Transaction. The foregoing provisions are meant to be interpreted so as to
prevent the Transaction from being treated as offered under "conditions of
confidentiality" within the meaning of the Internal Revenue Code and the
Treasury Regulations thereunder.
16. Further Assurances. Both Seller and Buyer shall cooperate with one another
and in a timely manner execute any and all additional documents, papers and
other assurances, and shall do any and all acts reasonably necessary to give
effect to the purchase and sale provided for herein.
17. Severability. If any provision of this Agreement is adjudicated by a court
having jurisdiction over a dispute arising herefrom to be invalid or otherwise
unenforceable for any reason, such invalidity or unenforceability shall not
affect the other provisions hereof and such remaining provisions shall continue
in force and effect to the full extent permitted by law.
18. Applicable Law; Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed and construed in accordance with the laws
of the State of New York without regard to conflicts of laws principles, and
except in any action to specifically enforce performance of this Agreement, in
which event the law of the state of the Real Property with respect to which such
specific performance is requested shall govern.
(b) SELLER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK OR WITHIN THE COUNTY
AND STATE IN WHICH ANY PROPERTIES IS LOCATED AND IRREVOCABLY AGREES THAT,
SUBJECT TO BUYER'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. SELLER ACCEPTS FOR
ITSELF AND IN CONNECTION WITH THE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
(c) EACH OF BUYER AND SELLER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT
COUNSEL, WAIVES, RELINQUISHES AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE)
BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS AGREEMENT. SELLER
ACKNOWLEDGES THAT THE PROVISIONS OF THIS SUBSECTION ARE A MATERIAL INDUCEMENT TO
BUYER'S ENTERING INTO THE AGREEMENT.
19. Whole Agreement; Modification. Except as provided below, this Agreement is
the entire agreement between Seller and Buyer concerning the sale of the
Property and no modification hereof or subsequent agreement relative to the
subject matter hereof shall be binding on either Party unless reduced to writing
and signed by the Party to be bound. This Agreement supersedes the Letter of
Intent dated March 24, 2006, regarding the SHELLS SEAFOOD RESTAURANTS, INC. Sale
Leaseback Facility, by and between Fortress Investment Group, LLC and Seller.
All Exhibits and Schedules attached hereto are incorporated herein by this
reference for all purposes.
20. Survival. The provisions of Sections 4, 6 (other than subsection 6(c)), 8,
11, 12 and 14 through 27 (inclusive), and subsection 7(b), shall survive Closing
and any termination of this Agreement for a period of six (6) months.
21. Time of the Essence. Time is of the essence in the performance of each and
every provision of this Agreement. In the event that the last day for taking any
action or serving notice under this Agreement falls on a Saturday, Sunday or
legal holiday, the time period shall be extended until the following business
day.
22. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which, taken together,
shall constitute one and the same instrument. A facsimile or photocopy signature
on this Agreement or any notice delivered hereunder shall have the same legal
effect as an original signature.
23. Attorneys' Fees. If any action or proceeding is instituted to enforce or
interpret any provision of this Agreement, the prevailing Party shall be
entitled to recover its attorneys' fees and costs from the losing Party.
24. No Waiver. The waiver by one Party of the performance of any covenant,
condition or promise, or of the time for performing any act, under this
Agreement shall not invalidate this Agreement nor shall it be considered a
waiver by such Party of any other covenant, condition or promise, or of the time
for performing any other act required, under this Agreement. The exercise of any
remedy for which this Agreement provides shall not be a waiver of any remedy
provided by law, and the provisions of this Agreement for any remedy shall not
exclude any other remedies unless they are expressly excluded.
25. Date of Agreement. All references in this Agreement to "the date hereof" or
similar references shall be deemed to refer to the first date set forth above.
26. Transaction Characterization. The Parties intend that the conveyance of the
Properties to Buyer be an absolute conveyance in effect as well as form, and the
instruments to be delivered at Closing (including, without limitation, the Lease
Agreement and the other Transaction Documents) are not intended to serve or
operate as a mortgage, equitable mortgage, deed of trust, security agreement or
financing or trust arrangement of any kind. After the execution and delivery of
the Deed, Seller will have no legal or equitable interest or any other claim or
interest in the Property other than as set forth in the Transaction Documents.
Furthermore, the Parties intend for the Lease Agreement to be a true lease and
not a transaction creating a financing lease, capital lease, equitable mortgage,
mortgage, deed of trust, security interest or other financing arrangement, and
the economic realities of the Lease Agreement are those of a true lease.
Notwithstanding the existence of the Lease Agreement, neither Party shall
contest the validity, enforceability or characterization of the sale and
purchase of the Property by Buyer pursuant to this Agreement as an absolute
conveyance, and both Parties shall support the intent expressed herein that the
purchase of the Property by Buyer provides for an absolute conveyance and does
not create a joint venture, partnership, equitable mortgage, trust, financing
device or arrangement, security interest or the like, if and to the extent that
any challenge occurs.
IN WITNESS WHEREOF, Buyer and Seller have executed this
Agreement as of the date first set forth above.
BUYER:
FRI FISH LLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SELLER:
SHELLS SEAFOOD RESTAURANTS, INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Attachments:
Schedule 1 - The Property
Schedule 6(a)(iii) - Leases
Schedule 6(a)(iv) - Laws and Zoning
Schedule 6(a)(v) - Property Condition and Defects
Schedule 6(a)(ix) - Suits and Judgments
Schedule 6(a)(x) - Environmental Laws; Hazardous Materials
Exhibit A - Form of Lease Agreement
Exhibit B - Form of Survey Certification
Exhibit C - Intentionally Deleted
Exhibit D - Form of Assignment of License
Exhibit E - Intentionally Deleted
Exhibit F - Form of Special Warranty Deed
Exhibit G - Form of ▇▇▇▇ of Sale
Exhibit H - IRC Section 1445 Certification
Exhibit I - Intentionally Deleted
SCHEDULE 1
THE PROPERTY
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE 6(a)(iii)
LEASES AND SUBLEASES
SCHEDULE 6(a)(iv)
LAWS AND ZONING
SCHEDULE 6(a)(v)
PROPERTY CONDITION AND DEFECTS
SCHEDULE 6(a)(ix)
SUITS AND JUDGMENTS
SCHEDULE 6(a)(x)
ENVIRONMENTAL LAWS; HAZARDOUS MATERIALS
EXHIBIT A
FORM OF LEASE AGREEMENT
EXHIBIT B
FORM OF SURVEY CERTIFICATION
SURVEYOR'S CERTIFICATION
TO: FRI FISH LLC and Landamerica Title Company.
The undersigned certifies: that (s)he is a duly registered land
surveyor of the state of ________________; that this survey (the "Survey") was
made on the date shown below of the property (the "Property") specifically
described in __________________________ Title Insurance Company [Preliminary
Title Report] [Title Commitment] No. ______________ dated ________________ (the
["Report"] ["Commitment"]); that the Survey was actually made upon the ground
and was made (i) in accordance with "Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys," adopted by the ALTA, ACSM and NSPS in 1999, and
includes Items 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(a), 13, 14, 15
and 16 of Table A thereof, and (ii) pursuant to the Accuracy Standards in effect
on the date of this certification, the Positional Uncertainties resulting from
the survey measurements made on the Survey do not exceed the allowable
Positional Tolerance. The undersigned also certifies that (a) the Survey and the
information, courses and distances shown thereon are correct; (b) the Property
description in the [Report] [Commitment], the land delineated on the Survey, and
the title lines and lines of actual possession are the same; (c) the size,
location, and type of buildings, structures, and other improvements are shown on
this Survey and all are within the boundary lines of the Property; (d) all set
back lines and the distance between the buildings and the Property lines are
accurately shown thereon; (e) the zoning classification and the data shown in
the Zoning Information table hereon was obtained by the undersigned from the
source(s) indicated in the table and, except as identified hereon, there are no
violations of zoning ordinances or restrictions with reference to the location
of all improvements situated on the Property; (f) except as delineated on the
Survey, there are no easements, encroachments, uses, restrictions, or rights of
way (visible, recorded, existing and proposed, including those that may be shown
on recorded maps referred to, or of which the undersigned has been made aware of
or are indicated in the [Report] [Commitment]); (g) the easements shown on the
Survey are clearly delineated and identified with recording information; (h) any
encroachments shown on the Survey have been measured and are shown thereon; (i)
the names of all adjacent property owners are shown on the Survey; (j) all
utility services required for the operation of the Property and the buildings,
structures, and improvements located thereon, either enter the Property through
adjoining public streets, or this Survey shows the point of entry and location
of any utilities which pass through or are located on adjoining private land;
(k) this Survey shows the location and direction of all storm drainage systems;
(l) any discharge into streams, rivers, or other conveyance system is shown on
this Survey; (m) the Property does not lie within any flood hazard areas in
accordance with the document entitled "Department of Housing and Urban
Development, Federal Insurance Administration - Special Flood Hazard Area Maps";
(n) all curb cuts are shown on the Survey; (o) except as shown on this Survey,
all roads, streets, and highways shown thereon are completed and dedicated and
accepted public ways, based upon information obtained from [insert map/document
or other source, etc.]; and (p) the Property has access to a dedicated public
street.
----------------------------------- -------------------------
[Name] [Date]
Registration No._________________
Within the state of _____________
Date of Survey__________________
Date of Last Revision____________
EXHIBIT C
INTENTIONALLY DELETED
EXHIBIT D
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT is made and entered into as of the _______ day
of April, 2006 by SHELLS SEAFOOD RESTAURANTS, INC. ("Seller"), to FRI FISH LLC
("Buyer").
WHEREAS, Seller, by Special Warranty Deed and ▇▇▇▇ of Sale, each dated
of even date herewith, has conveyed to Buyer the land described in Exhibit A
attached hereto ("Land"), all improvements ("Improvements") located thereon, all
leases affecting the Improvements ("Leases") and all equipment or other personal
property of Seller located on the land or in the Improvements ("Personal
Property") (collectively, the Land, Improvements, Leases, and Personal Property
are hereinafter referred to as, the "Property"); and
WHEREAS, Seller and Buyer intend that Seller also convey to Buyer all
of the Conveyed Property (as hereinafter defined).
NOW, THEREFORE, Seller, for and in consideration of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and confessed, hereby agrees as follows:
1. Seller has ASSIGNED, and by these present does hereby
ASSIGN to Buyer all of Seller's interest in and to the following
("Conveyed Property"):
a. All agreements that relate to the ownership,
maintenance and operation of the Property ("Property
Agreements") attached hereto as Exhibit B;
b. All plans, drawings, specifications, surveys, and
other technical descriptions;
c. All licenses, permits, utility rights, or other
similar rights with respect to the Property;
d. All warranties with respect to the Property and
the Conveyed Property; and
e. All telephone exchanges and other identifying
material applicable to the Property (other than tradenames,
trademarks and other items of such nature).
2. Buyer agrees to hold Seller harmless from and against any
and all claims, loss, damage, liability, cost and expense (including
without limitation attorneys' fees) with respect to the Conveyed
Property occurring from and after the date hereof.
3. This Assignment shall be binding on Seller, its successors
and assigns, and shall inure to the benefit of Buyer, its successors
and assigns.
EXECUTED as of the date first above written.
Signed, Sealed and Delivered SHELLS SEAFOOD RESTAURANTS, INC.,
in the presence of: a Delaware corporation
By:
--------------------------
Witnesses: Name:
----------------------------
Title:
---------------------------
Printed Name: ________________
Printed Name: ________________
EXHIBIT "A"
Commencing at the NW corner of the SW 1/4 of Section 26, Township 15 South,
Range 21 East, thence S. 00(degree)11'00"W., along the West boundary thereof,
458.43 feet; thence S. 89(degree)45'14"E., 329.97 feet to a concrete monument,
said monument being on the East right of way line of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇
and being the SW corner of College Park, Second Addition, as per plat thereof
recorded in Plat Book H, Pages 36 and 36A, of the Public Records of ▇▇▇▇▇▇
County, Florida; thence continuing S. 89(degree)45'14"E., along said South
boundary, as per existing monumentation, 1089.03 feet to a concrete monument,
said monument being the intersection of the Southeasterly boundary of ▇▇▇▇ ▇▇,
▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇, projected Southwesterly with aforesaid South boundary of
College Park, Second Addition; thence N. 41(degree)36'54"E., along said
Southeasterly boundary projected 77l.34 feet to the Point of Beginning. From
said Point of Beginning thus described, thence continue N. 41(degree)36'54"E.,
along said Southeasterly boundary, 130.00 feet; thence S. 48(degree)22;45"E.,
401.63 feet to the Northwesterly right of way line of ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇ (100
feet wide); thence S. 41(degree)35'20"W., along said right of way line, 130.00
feet; thence departing from said right of way line N. 48(degree)22'45"W., 401.75
feet to an intersection with the aforesaid Southeasterly boundary of ▇▇▇▇ ▇▇, ▇▇
▇▇▇ ▇▇, ▇▇▇▇▇ ▇, and the Point of Beginning. All being in ▇▇▇▇▇▇ County,
Florida. Also being known as ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, according to
the Plat thereof recorded in Plat Book X, Pages 75 and 76, Public Records of
▇▇▇▇▇▇ County, Florida.
EXHIBIT "B"
None
Special Warranty Deed
Shells Seafood
Ocala, FL
EXHIBIT E
INTENTIONALLY DELETED
EXHIBIT F
Prepared by and
Return to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SPECIAL WARRANTY DEED
This Special Warranty Deed is made to be effective as of the ____ day of
April, 2006, by and between SHELLS SEAFOOD RESTAURANTS, INC., a Delaware
corporation
Whose address is: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Hereinafter called the Grantor, and FRI FISH, LLC, a Delaware limited
liability company
Whose mailing address is: c/o Fortress Realty Management, LLC
▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Hereinafter called the Grantee,
WITNESSETH, that the Grantor, for and in consideration of the sum of Ten Dollars
($10.00) and other valuable considerations, the receipt whereof is hereby
acknowledged, has granted, bargained, sold, aliened, remised, released, conveyed
and confirmed, and by these presents does grant, bargain, sell, alien, remise,
release, convey and confirm unto Grantee and Grantee's successors and assigns
forever, all that certain parcel of land in the County of ▇▇▇▇▇▇ and State of
Florida, together with (i) Grantor's right, title and interest in and to all the
buildings, structures and improvements in, upon and under said land; (ii)
Grantor's right, title and interest in and to all easements and rights of way
appurtenant to such land; (iii) all mineral rights owned by Grantor relating to
the land; and (iv) all of Grantor's right, title and interest in and to any
adjacent or contiguous tracts, strips and gores, streets, alleys and other
public or private ways adjacent thereto and any reversionary rights attributable
to the real property ("Property"), to wit:
See Exhibit "A" attached hereto and made a part
hereof.
TAX FOLIO NUMBER: ▇▇▇▇-▇▇▇-▇▇▇
To have and to hold the Property unto Grantee and Grantee's successors and
assigns, to Grantee's own proper use benefit and behoof forever.
And Grantor does hereby warrant title to said land and will defend the same
against the lawful claims of all persons whomsoever lawfully claiming or to
claim the same or any part thereof, by, through and under Grantor, but not
otherwise, subject to matters of public record, if any, to the extent same are
valid, subsisting and affect the Property.
IN WITNESS WHEREOF, Grantor has hereunto set Grantor's hand and seal
the day and year first above written.
Signed, Sealed and Delivered SHELLS SEAFOOD RESTAURANTS, INC., a
in the presence of: Delaware corporation
By:
----------------------------
Witnesses: Name:
------------------------------
Title:
-----------------------------
By:
Printed Name: ________________
----------------------------
Printed Name: ________________
STATE OF FLORIDA }
}
COUNTY OF }
The foregoing instrument was acknowledged before me this _____ day of
April, 2006, by , --------------------- ------------------------ of Shells
Seafood Restaurants, Inc., a Delaware corporation, on behalf of said
corporation. He is personally known to me.
----------------------------------------
Notary Public, State of Florida
EXHIBIT "A"
Commencing at the NW corner of the SW 1/4 of Section 26, Township 15 South,
Range 21 East, thence S. 00(degree)11'00"W., along the West boundary thereof,
458.43 feet; thence S. 89(degree)45'14"E., 329.97 feet to a concrete monument,
said monument being on the East right of way line of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇
and being the SW corner of College Park, Second Addition, as per plat thereof
recorded in Plat Book H, Pages 36 and 36A, of the Public Records of ▇▇▇▇▇▇
County, Florida; thence continuing S. 89(degree)45'14"E., along said South
boundary, as per existing monumentation, 1089.03 feet to a concrete monument,
said monument being the intersection of the Southeasterly boundary of ▇▇▇▇ ▇▇,
▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇, projected Southwesterly with aforesaid South boundary of
College Park, Second Addition; thence N. 41(degree)36'54"E., along said
Southeasterly boundary projected 77l.34 feet to the Point of Beginning. From
said Point of Beginning thus described, thence continue N. 41(degree)36'54"E.,
along said Southeasterly boundary, 130.00 feet; thence S. 48(degree)22;45"E.,
401.63 feet to the Northwesterly right of way line of ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇ (100
feet wide); thence S. 41(degree)35'20"W., along said right of way line, 130.00
feet; thence departing from said right of way line N. 48(degree)22'45"W., 401.75
feet to an intersection with the aforesaid Southeasterly boundary of ▇▇▇▇ ▇▇, ▇▇
▇▇▇ ▇▇, ▇▇▇▇▇ ▇, and the Point of Beginning. All being in ▇▇▇▇▇▇ County,
Florida. Also being known as ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, according to
the Plat thereof recorded in Plat Book X, Pages 75 and 76, Public Records of
▇▇▇▇▇▇ County, Florida.
EXHIBIT TO PURCHASE AND SALE AGREEMENT
4020-0014
EXHIBIT G
▇▇▇▇ OF SALE
THAT SHELLS SEAFOOD RESTAURANTS, INC. ("Assignor"), for and in
consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration to Assignor in hand paid by FRI FISH LLC ("Assignee"),
the receipt and sufficiency of which are hereby acknowledged and confessed, has
GRANTED, BARGAINED, SOLD, CONVEYED and DELIVERED, and by these presents does
GRANT, BARGAIN, SELL, CONVEY and DELIVER unto the said Assignee all of
Assignor's interest in and to the personal property ("Property") located in, on,
or under the real property described in Exhibit A attached hereto.
EXECUTED this ________ day of April, 2006.
ASSIGNOR:
Signed, Sealed and Delivered SHELLS SEAFOOD RESTAURANTS, INC.,
in the presence of: a Delaware corporation
By:
--------------------------
Witnesses: Name:
------------------------------ ----------------------------
Title:
---------------------------
Printed Name: ________________
----------------------------
Printed Name: ________________
EXHIBIT "A"
Commencing at the NW corner of the SW 1/4 of Section 26, Township 15 South,
Range 21 East, thence S. 00(degree)11'00"W., along the West boundary thereof,
458.43 feet; thence S. 89(degree)45'14"E., 329.97 feet to a concrete monument,
said monument being on the East right of way line of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇
and being the SW corner of College Park, Second Addition, as per plat thereof
recorded in Plat Book H, Pages 36 and 36A, of the Public Records of ▇▇▇▇▇▇
County, Florida; thence continuing S. 89(degree)45'14"E., along said South
boundary, as per existing monumentation, 1089.03 feet to a concrete monument,
said monument being the intersection of the Southeasterly boundary of ▇▇▇▇ ▇▇,
▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇, projected Southwesterly with aforesaid South boundary of
College Park, Second Addition; thence N. 41(degree)36'54"E., along said
Southeasterly boundary projected 77l.34 feet to the Point of Beginning. From
said Point of Beginning thus described, thence continue N. 41(degree)36'54"E.,
along said Southeasterly boundary, 130.00 feet; thence S. 48(degree)22;45"E.,
401.63 feet to the Northwesterly right of way line of ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇ (100
feet wide); thence S. 41(degree)35'20"W., along said right of way line, 130.00
feet; thence departing from said right of way line N. 48(degree)22'45"W., 401.75
feet to an intersection with the aforesaid Southeasterly boundary of ▇▇▇▇ ▇▇, ▇▇
▇▇▇ ▇▇, ▇▇▇▇▇ ▇, and the Point of Beginning. All being in ▇▇▇▇▇▇ County,
Florida. Also being known as ▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, according to
the Plat thereof recorded in Plat Book X, Pages 75 and 76, Public Records of
▇▇▇▇▇▇ County, Florida.
EXHIBIT TO PURCHASE AND SALE AGREEMENT
4020-0014
EXHIBIT H
IRC SECTION 1445 CERTIFICATION
SUBJECT PROPERTY: That certain tract of land ("Land"), situated in Polk County,
State of Florida, described by metes and bounds in Exhibit A attached hereto.
SELLER: SHELLS SEAFOOD RESTAURANTS, INC.
PURCHASER: FRI FISH, LLC
To inform Purchaser that the withholding of tax is not required upon the
disposition of a U. S. real property interest by Seller, the undersigned hereby
certifies the following:
1. Seller is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations);
2. Seller's U.S. employer identification number is , and
3. Seller's office address is ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇.
▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇.
Seller understands that this certification may be disclosed to
the Internal Revenue Service by Purchaser and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined
this certification and to the best of my knowledge and belief, it is true,
correct and complete, and I further declare that I have authority to sign this
document.
[SIGNATURES ON FOLLOWING PAGE]
EXHIBIT TO PURCHASE AND SALE AGREEMENT
4020-0014
EXECUTED this _______ day of April, 2006.
SELLER:
SHELLS SEAFOOD RESTAURANTS, INC.
By:
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Name:
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Title:
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EXHIBIT I
INTENTIONALLY DELETED