[COOKER RESTAURANT CORPORATION LETTERHEAD]
September 26, 2000
Mr. G. Arthur Seelbinder
Ms. Kathleen W. Hammer
210 El Brillo Way
Palm Beach, FL 33480
1 West 64th Street, Unit 12A
New York, NY 10023
Dear Mr. Seelbinder and Ms. Hammer:
On March 7, 2000 pursuant to the terms of our guaranty, we paid
in full all of the your remaining obligations to The Chase Manhattan
Bank under the Amended and Restated Grid Note dated January 31, 1997
(the "Note"). The aggregate unpaid principal and interest owing under
the terms of the Note is called the "Unpaid Obligations.
Pursuant to the terms of our severance agreement with Arthur
dated September 29, 1999 (the "Severance Agreement")
". . . if the bank obligations are paid in full [under the
Note], any remaining amounts due to you [Arthur] under this
agreement will be paid to us and applied to any unpaid
obligations of you to us, which obligations include any
amounts paid by us on account of the guaranty."
As successor to the rights of the bank under the terms of the Note and
related loan agreements, by letter dated April 13, 2000 we have
demanded payment of the Unpaid Obligations from both of you, jointly
and severally, prior to the close of business on April 20, 2000.
We have agreed to modify your obligations with respect to the
Unpaid Obligations and to terminate our obligations under the terms of
the Severance Agreement. This letter agreement sets out the terms of
that modification and termination.
1. Amount of the Note. The principal amount of the Note,
after giving effect to the capitalization of accrued interest, and the
agreement of each of you and us, is $2,737,021.03. That amount is
called the "Revised Principal Balance of the Note."
Exhibit 10.29-Pg. 1
Execution A
Mr. G. Arthur Seelbinder
Ms. Kathleen W. Hammer
September 26, 2000
Page 2 of 6
2. Scheduled Payments of Principal. The Revised Principal
Balance of the Note shall be repaid as follows:
* $15,000 on March 31, 2001 and June 30, 2001 and on each
December 31, March 31 and June 30 thereafter until maturity.
* $55,000 on September 30, 2001 and on each September 30
thereafter until maturity.
3. Prepayments of Principal.
(a) Proceeds from the sale of residence. Simultaneously
with the sale or other transfer, assignment, or refinancing of your
residence at 210 El Brillo Way, Palm Beach, Florida, you shall prepay
$250,000 to us on account of the Revised Principal Balance of the
Note. You may refinance the residence without a repayment obligation
up to the amount of principal, unpaid interest, and closing expenses
on the date of refinancing. However, if you increase the borrowings
secured by the residence by any amount after October 1, 2000, except
to the extent the increase is a result of accrued interest, the
increase will be subject to the prepayment obligation.
(b) Payments from certain earnings. Beginning with the
calendar year ending December 31, 2000, and until Ms. Hammer has been
released from her obligations contained in this agreement, each of
you shall be jointly and severally liable to prepay first the Revised
Principal Balance of the Note, and then accrued interest, by an amount
equal to 50% of the amount by which your aggregate cash income (as
described in Paragraph 6 ) for the relevant calendar year exceeds
$500,000. Beginning with the calendar year in which Ms. Hammer is
released from her obligations contained in this agreement, Mr.
Seelbinder alone shall be required to make such prepayments out of his
cash income.
(c) Effect of Prepayment. Prepayments made under
subsection 3(a) or 3(b) shall not effect the scheduled payment
obligations provided for in Secton 2.
4. Interest. The Revised Principal Balance of the Note shall
bear interest at the rate of 9% per year. All accrued interest shall
be payable when the Note matures, either upon an event of default, as
described in Paragraph 14, below, or in accordance with its terms.
5. Maturity. The unpaid portion of the Revised Principal
Balance of the Note and all accrued but unpaid interest shall be due
and payable upon the earlier of September 30, 2005, or upon the
occurrence of an Event of Default (as defined in Paragraph 14 of this
Agreement.)
6. Annual Financial Statements. Prior to June 30, 2001 you
shall submit to us joint or individual financial statements for the
calendar year ended December 31, 2000, and thereafter on the June 30
following each successive calendar year. The financial statements
shall include (i) a balance sheet including all of your assets and
liabilities as of the end of the respective calendar years, with all
of the assets reflect on the balance sheet shown at their fair market
value as of the end of the relevant calendar year in the form provided
for in Section 14(b) below, and (ii) a statement of cash income for
the relevant calendar year. The statement of cash income shall
Exhibit 10.29-Pg. 2
Execution A
Mr. G. Arthur Seelbinder
Ms. Kathleen W. Hammer
September 26, 2000
Page 3 of 6
include all cash income and the receipt of real or personal property
to the extent the receipt of such cash or property is included in
gross income for federal income tax purposes, but shall not include
intangible elements of income and expense otherwise included in the
calculation of gross income for federal tax purposes such as income
from the forgiveness of indebtedness, depreciation and the
amortization of intangible assets. Unless either of you controls the
entity failing to make the distribution and the failure to distribute
cash income is intended to avoid the provisions of Section 3(b), cash
income shall also exclude income from Subchapter S corporations,
limited liability companies, limited partnerships and similar entities
on which either of you must pay taxes to the extent such income is not
distributed to you or your designee. Such cash income must be
specifically identified and, in the case of entities controlled by
either of you, the reasons such income is not being disbursed also
shall be specified. Such income shall become cash income when and to
the extent such income is distributed to you. You agree to advise us
within thirty (30) days of receipt of any deferred distribution.
Additionally, cash income shall not include the proceeds from the sale
of your residence as described in Section 3(a) or the proceeds from
the sale of your Cooker stock which was pledged to secure the
obligations under the Note.
7. Federal Tax Returns. Within 5 days after filing them with
the Internal Revenue Service, you shall deliver to us copies of your
joint or individual federal income returns.
8. Termination of the Severance Agreement, etc.
Simultaneously with the execution and delivery of this Agreement, the
Severance Agreement shall terminate and
* Mr. Seelbinder shall resign from our Board of
Directors and his employment by us be immediately
terminated by operation of his execution of this Agreement
* All of Mr. Seelbinder's options (the "Seelbinder
Options") vested and unvested to purchase our common
stock (303,297 shares as of the date of this
Agreement) shall terminate and no further vesting of
options shall occur.
* The life insurance policy described in the Severance
Agreement shall be terminated.
9. Release of further liability of Ms. Hammer. If and when
the Revised Principal Balance of the Note has been reduced by $500,000
pursuant to the provisions of Section 2 and 3 of this Agreement, all
of Ms. Hammer's liability under this Agreement shall terminate and we
shall deliver to her a written release of all further obligations with
respect to the Note.
10. Additional reduction of Revised Principal Balance of the
Note. If at any time prior to the close of business of August 19,
2001 the closing price for our common stock has exceeded the exercise
price for all or any of the Seelbinder Options for 5 consecutive
business days, then at 12 p.m. on August 19, 2001, the Revised
Principal Balance of the Note, and to the extent applicable, accrued
interest, shall be further reduced by the difference between the
exercise price of the options and the weighted average of the closing
prices (the "Weighted Average Price") on such five business days
(weighted based on the number of shares sold each day). No credit
shall be given for options if their exercise price is equal to or less
Exhibit 10.29-Pg. 3
Execution A
Mr. G. Arthur Seelbinder
Ms. Kathleen W. Hammer
September 26, 2000
Page 4 of 6
than the Weighted Average Price. If our common stock has closed at a
price in excess of the exercise price for the Seelbinder options for
more than one consecutive 5 business day period prior to August 19,
2001, then the period giving the highest Weighted Average Price shall
be used for purposes of making the calculations provided for in this
paragraph.
11. Releases. At the same time you sign this letter, you will
each sign and deliver to us a general release, releasing Cooker, its
directors, officers, employees and agents from all claims you may have
against them and any obligations they may have to you as of the date
of this Agreement, regardless of whether you know about such claims or
obligations, other than those obligations provided for in this
agreement. The form of the general release is attached to this
letter. We will execute a similar release in your favor.
12. Reaffirmation of the Note. Except as modified by this
agreement, the terms of the Note remain in full force and effect, and
each of you waive any defense or claims which you may assert against
its enforcement against us or our predecessors or successors in
interest as of the date of this Agreement.
13. Events of Default. You will be in default under this
Agreement if (i) you fail to make any of the payments due within ten
(10) days after such payment is due or (ii) you fail to timely and
properly observe, keep or perform any term, covenant, agreement or
condition in this Agreement and further fail to cure such default
within ten (10) days after being notified in writing of your failure.
14. Representations.
(a) Authority and Enforceability. We (i) are duly
organized, validly existing and in good standing under the laws of our
organization, (ii) have all requisite corporate and other appropriate
authorization to conduct our business as currently conducted, (iii)
are qualified to do business in all jurisdictions in which such
qualification is necessary, other than those jurisdictions where the
failure to so qualify would not have a material adverse effect upon
our business assets or operations, and (iv) have full power and
authority to enter into this Agreement and to carry out all acts
contemplated by it.
This Agreement has been duly executed and delivered on behalf of
each of you and us, and is a legal, valid and binding obligation of
each of you and us, enforceable against each of you and us in
accordance with its terms. Further, each of you, individually,
acknowledges that you have voluntarily executed this Agreement,
intending to be bound by its terms.
(b) Financial Statements. Each of you, individually,
represents that prior to the delivery of this Agreement you have
delivered to us financial statements as of September 30, 2000 showing
all of your assets with an individual fair market value in excess of
$15,000 and aggregate fair market value in excess of $100,000, with
each asset (or related group of assets, such as shares of stock) with
a fair market value in excess of $15,000 being separately identified.
For purposes of this representation, fair market value shall be the
fair market value of the relevant assets as of the date of this
Agreement. The financial statements are true and correct, subject to
the limitations provided for in the prior sentence.
Exhibit 10.29-Pg. 4
Execution A
Mr. G. Arthur Seelbinder
Ms. Kathleen W. Hammer
September 26, 2000
Page 5 of 6
(c) Advice of Counsel. Each of you acknowledges that you
have not been influenced in any manner in making this Agreement by any
representations or statements made by or on behalf of Cooker
Restaurant Corporation or any of its representatives, that each of you
has obtained the advice of counsel in connection with the effect of
the execution and delivery of this Agreement, that each of you has
carefully read and fully understands the contents of this Agreement,
and that each of you has duly executed this Agreement freely and
voluntarily, intending and agreeing to be fully bound by the terms of
this Agreement.
15. Miscellaneous.
(a) Successors and Assigns. This Agreement shall be
binding upon all the parties hereto and their heirs, successors,
personal representatives and assigns.
(b) Entire Agreement. This Agreement and any documents
incorporated into it contain the parties' entire agreement with
respect to the subject matter hereof; and any and all conflicting or
inconsistent discussions, agreements, promises, representations and
statements, if any, between the parties or their representatives that
are not incorporated herein shall be null and void and are merged into
this Agreement; and this Agreement shall constitute the entire
understanding and agreement among the parties.
(c) Amendments Only in Writing. No amendment,
modification, waiver or discharge of this Agreement or any provision
hereof shall be effective against any party, unless such party shall
have consented thereto in writing.
(d) Severability. The provisions of this Agreement shall
be severable, and any invalidity, unenforceability or illegality of
any provision or provisions of this Agreement shall not affect any
other provision or provisions of this Agreement, and each term and
provision of this Agreement shall be construed to be valid and
enforceable to the full extent permitted by law.
(e) Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall constitute an original, but
all of which when taken together shall constitute a single agreement.
(f) Governing Law; Arbitration. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Florida, exclusive of its choice-of-law principles. Each of the
parties agree that, except as otherwise provided in this Agreement,
any dispute arising among them with respect to the subject matter of
this Agreement shall be submitted to binding arbitration pursuant to
the rules of the American Arbitration Association in Palm Beach
County, Florida. In connection with any such arbitration, there shall
be allowed such discovery, including the taking of depositions and
propounding of interrogatories, as the arbitrator shall determine
appropriate in light of the subject matter submitted.
(g) Headings. The various section headings are inserted
for purposes of reference only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof.
Exhibit 10.29-Pg. 5
Execution A
Mr. G. Arthur Seelbinder
Ms. Kathleen W. Hammer
September 26, 2000
Page 6 of 6
(h) Notices. All notices or other communications required
or permitted under the terms of this Agreement shall be made in
writing and shall be deemed given (i) upon hand delivery, (ii) when
sent by commercial overnight courier with written verification of
receipt, or (iii) three days after deposit of same in the Certified
Mail, Return Receipt Requested, first class postage and registration
fees prepaid and correctly addressed to the parties at the addresses
at the foot of this Agreement.
(i) Confidentiality. We agree to keep confidential the
financial information you supply to us under Sections 6 and 14 of this
Agreement, subject to the requirements of any applicable law or
regulation or its use in any proceeding in which we seek to enforce
the terms of this Agreement, or in connection with the consideration
of any such proceeding.
Please sign below to indicate your acceptance of the terms of
this Agreement.
Sincerely,
Cooker Restaurant Corporation
By:/s/Henry R. Hillenmeyer
-------------------------
Notice Address:
Cooker Restaurant Corporation
2609 West End Avenue
Nashville, TN 37203-1413
Attn: Henry R. Hillenmeyer, CEO
with a copy to:
Shannon LeRoy
2000 Glen Echo Road, Suite 101
Nashville, TN 37215
Accepted and Acknowledged:
/s/G. Arthur Seelbinder /s/Kathleen W. Hammer
- ------------------------ -----------------------
G. Arthur Seelbinder Kathleen W. Hammer
Dated: 11-8-2000 Dated: 11-14-2000
--------- ----------
Notice Address: Notice Address:
_______________________ _______________________
_______________________ _______________________
_______________________ _______________________
Exhibit 10.29-Pg. 6
GENERAL RELEASE AND WAIVER
--------------------------
COOKER RESTAURANT CORPORATION, including its assigns and
successors in interest (collectively the "Releasor"), in consideration
of G. Arthur Seelbinder ("Seelbinder") and Kathleen W. Hammer
("Hammer") entering into a letter agreement dated September 26, 2000
with Releasor (the "Letter"), to which the release is attached, fully
releases, Seelbinder and Hammer and their attorneys, agents,
successors and assigns (collectively, the "Released Parties"), of and
from any and all rights, claims, demands, damages, judgments,
executions, actions, suits and causes of action of any nature
whatsoever, whether known or unknown, direct or indirect, mature or
contingent, whether arising at law or in equity, which the Releasor
may have had, may now have or may in the future have against the
Released Parties or any of them by reason of any act, omission,
matter, transaction, event or thing from the beginning of time to and
including the date of this General Release and Waiver against the
Released Parties, or any of them, except as provided in the Letter,
and agrees not to sue or otherwise institute any action or proceeding
against the Released Parties or any of them with respect to any such
claims.
The Releasor hereby waives, to the fullest extent permitted by
law, the benefits of any statute, law, rule, regulation or common law,
which may limit the scope of the covenants and releases contained
herein.
The Releasor intends by this General Release and Waiver to
forever release, remise, acquit, waive, satisfy and forever discharge
the Released Parties of and from any and all of the claims and rights
described above, it being understood that all such claims or rights
which the Releasor or any person who claims by, through or under the
Releasor may have against the Released Parties shall be forever
released, remised, acquitted, waived, satisfied and forever
discharged, and such persons shall be forever barred from bringing or
asserting the same in their own name or names, jointly or with or
through any other person, natural, corporate or otherwise.
The Releasor acknowledges that the terms of this General Release
and Waiver are contractual and not a mere recital. Furthermore, the
Releasor acknowledges that the Releasor has not been influenced in any
manner in making this General Release and Waiver by any
representations or statements made by or on behalf of the Released
Parties, that the Releasor has been given the opportunity to seek the
advice of counsel in connection with the effect of the execution and
delivery of this General Release and Waiver, that the Releasor has
carefully read and fully understands the contents of this General
Release and Waiver, and that the Releasor has duly executed this
General Release and Waiver freely and voluntarily, intending and
agreeing to be fully bound by the terms hereof.
Exhibit 10.29-Pg. 7
IN WITNESS WHEREOF, the Releasor has executed this General
Release and Waiver this 15th day of November 2000.
WITNESSES:
COOKER RESTAURANT CORPORATION
Print Name: /s/Morris Brown
---------------
By: /s/Henry R. Hillenmeyer
Print Name: Morris Brown ----------------------------------
-------------- Henry R. Hillenmeyer, Chairman and
Chief Executive Officer
Exhibit 10.29-Pg. 8
GENERAL RELEASE AND WAIVER
--------------------------
KATHLEEN W. HAMMER, including her heirs, successors and assigns
(collectively the "Releasor"), in consideration of Cooker Restaurant
Corporation ("Cooker") entering into a letter agreement dated
September 26, 2000 with her and G. Arthur Seelbinder (the "Letter"),
to which the release is attached, fully releases, Cooker, its
subsidiaries and each of their shareholders, officers, directors,
attorneys, employees, agents, predecessors, successors and assigns in
their capacities as such (collectively, the "Released Parties"), of
and from any and all rights, claims, demands, damages, judgments,
executions, actions, suits and causes of action of any nature
whatsoever, whether known or unknown, direct or indirect, mature or
contingent, whether arising at law or in equity, which the Releasor
may have had, may now have or may in the future have against the
Released Parties or any of them by reason of any act, omission,
matter, transaction, event or thing from the beginning of time to and
including the date of this General Release and Waiver against the
Released Parties, or any of them, except as provided in the Letter,
and agrees not to sue or otherwise institute any action or proceeding
against the Released Parties or any of them with respect to any such
claims.
The Releasor hereby waives, to the fullest extent permitted by
law, the benefits of any statute, law, rule, regulation or common law,
which may limit the scope of the covenants and releases contained
herein.
The Releasor intends by this General Release and Waiver to
forever release, remise, acquit, waive, satisfy and forever discharge
the Released Parties of and from any and all of the claims and rights
described above, it being understood that all such claims or rights
which the Releasor or any person who claims by, through or under the
Releasor may have against the Released Parties shall be forever
released, remised, acquitted, waived, satisfied and forever
discharged, and such persons shall be forever barred from bringing or
asserting the same in their own name or names, jointly or with or
through any other person, natural, corporate or otherwise.
The Releasor acknowledges that the terms of this General Release
and Waiver are contractual and not a mere recital. Furthermore, the
Releasor acknowledges that the Releasor has not been influenced in
any manner in making this General Release and Waiver by any
representations or statements made by or on behalf of the Released
Parties, that the Releasor has been given the opportunity to seek the
advice of counsel in connection with the effect of the execution and
delivery of this General Release and Waiver, that the Releasor has
carefully read and fully understands the contents of this General
Release and Waiver, and that the Releasor has duly executed this
General Release and Waiver freely and voluntarily, intending and
agreeing to be fully bound by the terms hereof.
Exhibit 10.29-Pg. 9
IN WITNESS WHEREOF, the Releasor has executed this General
Release and Waiver this 30th day of September 2000.
WITNESSES:
/s/Martin V. Rate
- -------------------------------
Print Name: Martin V. Rate
--------------------
/s/Rosario Vega /s/Kathleen W. Hammer
- ------------------------------- ------------------------
Print Name: Rosario Vega KATHLEEN W. HAMMER
--------------------
Exhibit 10.29-Pg. 10
GENERAL RELEASE AND WAIVER
--------------------------
G. ARTHUR SEELBINDER, including his heirs, successors and assigns
(collectively the "Releasor"), in consideration of Cooker Restaurant
Corporation ("Cooker") entering into a letter agreement dated
September 26, 2000 with him and Kathleen W. Hammer (the "Letter"), to
which the release is attached, fully releases, Cooker, its
subsidiaries and each of their shareholders, officers, directors,
attorneys, employees, agents, predecessors, successors and assigns in
their capacities as such (collectively, the "Released Parties"), of
and from any and all rights, claims, demands, damages, judgments,
executions, actions, suits and causes of action of any nature
whatsoever, whether known or unknown, direct or indirect, mature or
contingent, whether arising at law or in equity, which the Releasor
may have had, may now have or may in the future have against the
Released Parties or any of them by reason of any act, omission,
matter, transaction, event or thing from the beginning of time to and
including the date of this General Release and Waiver against the
Released Parties, or any of them, except as provided in the Letter,
and agrees not to sue or otherwise institute any action or proceeding
against the Released Parties or any of them with respect to any such
claims.
The Releasor hereby waives, to the fullest extent permitted by
law, the benefits of any statute, law, rule, regulation or common law,
which may limit the scope of the covenants and releases contained
herein.
The Releasor intends by this General Release and Waiver to
forever release, remise, acquit, waive, satisfy and forever discharge
the Released Parties of and from any and all of the claims and rights
described above, it being understood that all such claims or rights
which the Releasor or any person who claims by, through or under the
Releasor may have against the Released Parties shall be forever
released, remised, acquitted, waived, satisfied and forever
discharged, and such persons shall be forever barred from bringing or
asserting the same in their own name or names, jointly or with or
through any other person, natural, corporate or otherwise.
The Releasor acknowledges that the terms of this General Release
and Waiver are contractual and not a mere recital. Furthermore, the
Releasor acknowledges that the Releasor has not been influenced in
any manner in making this General Release and Waiver by any
representations or statements made by or on behalf of the Released
Parties, that the Releasor has been given the opportunity to seek the
advice of counsel in connection with the effect of the execution and
delivery of this General Release and Waiver, that the Releasor has
carefully read and fully understands the contents of this General
Release and Waiver, and that the Releasor has duly executed this
General Release and Waiver freely and voluntarily, intending and
agreeing to be fully bound by the terms hereof.
Exhibit 10.29-Pg. 11
IN WITNESS WHEREOF, the Releasor has executed this General
Release and Waiver this 30 day of September 2000.
WITNESSES:
/s/Martin V. Rate
- ---------------------------
Print Name: Martin V. Rate
----------------
/s/Rosario Vega /s/G. Arthur Seelbinder
- --------------------------- -----------------------
Print Name: Rosario Vega G. ARTHUR SEELBINDER
----------------
Exhibit 10.29-Pg. 12