SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Exhibit
10.1
SETTLEMENT
AGREEMENT AND MUTUAL RELEASE
This
Settlement Agreement and Mutual Release (the "Settlement Agreement") is made
as
of this 9th day of May, 2008 (the "Effective Date") by and among, HORN
CAPITAL REALTY, INC (“Horn”),
a domesticated Florida Corporation, and XXXXXXXX
X. XXXX,
individually, on
the
one hand, and EACO
CORPORATION
(“EACO”), a Florida Corporation, on the other hand (collectively, the
"Parties").
WHEREAS,
on or about August 12, 2004, EACO and Horn entered into a Letter Commission
Agreement (“Commission Agreement”) wherein the Parties memorialized terms
related to Horn’s entitlement to a commission on sale-leaseback financing for
EACO; and
WHEREAS,
disputes and differences arose between EACO and Horn resulting in Horn filing
a
Complaint in August 2005 in the Circuit Court of the Eleventh Judicial Circuit
in and for Miami-Dade County, Florida (Case No. 05-15797-CA-31) alleging (i)
breach of the Commission Agreement, (ii) breach of the implied covenant of
good
faith and fair dealing, and (iii) unjust enrichment (in the alternative), (the
“Lawsuit”).
WHEREAS,
EACO filed an Answer containing affirmative defenses to Horn’s Complaint in the
Lawsuit.
WHEREAS,
as of the Effective Date of this Agreement, the Lawsuit remains pending in
Miami-Dade County, Florida.
WHEREAS,
in the interest of avoiding the time, expense, and uncertainty associated with
a
continuation of the Lawsuit, the Parties have agreed to resolve and settle
the
Lawsuit, and all other existing disputes between and among them pursuant to
the
settlement terms set forth herein.
NOW,
THEREFORE, in consideration of the foregoing promises and the mutual covenants
contained herein, and for valid consideration, the Parties, intending to be
legally bound, agree as follows:
1. Recitals
Incorporated.
The
foregoing Whereas clauses are incorporated herein by reference and are not
mere
recitals but are integral to this Settlement Agreement.
2. Payment.
EACO
agrees to and shall pay to Horn the total sum of Five Hundred and Fifty Thousand
and No/100 Dollars ($550,000) within three (3) business days of the execution
of
this Settlement Agreement by the Parties. The payment shall be made by wire
transfer to the trust account of Hall, Lamb and Hall, P.A. where it will be
held
in trust until the Dismissal described in paragraph 4 below is filed in the
Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County,
Florida.
3. Mutual
General Releases.
By
execution of this Settlement Agreement, Xxxxxxxx X. Xxxx and Xxxx and each
of
their agents, representatives, affiliates, successors and assigns, release,
acquit, forever discharge, and covenant not to xxx EACO and/or their current
and
former officers, directors, successors, employees, agents or assigns for any
and
all claims, demands, actions, causes of action, liabilities, expenses, damages,
covenants, contracts, controversies, agreements, promises, variances, judgments,
executions, claims and demands of any kind whatsoever, in law or in equity,
which Xxxxxxxx X. Xxxx and/or Horn has, had or may have against EACO, and/or
their current and former officers, directors, and successors, employees, agents
or assigns, by reason of any matter, cause or thing whatsoever, from the
beginning of the world to the day of these presents arising out of or related
to
the Commission Agreement or Lawsuit (“Released Claims”). This Release does not
release any obligations under the terms of this Settlement
Agreement.
By
execution of this Settlement Agreement, EACO and each of its agents,
representatives, affiliates, successors and assigns, releases, acquits, forever
discharges, and covenants not to xxx Xxxxxxxx X. Xxxx and Xxxx and/or their
current and former officers, directors, successors, employees, agents or assigns
for any and all claims, demands, actions, causes of action, liabilities,
expenses, damages, covenants, contracts, controversies, agreements, promises,
variances, judgments, executions, claims and demands of any kind whatsoever,
in
law or in equity, which EACO has, had or may have against Xxxxxxxx X. Xxxx
and/or Horn, and/or their current and former officers, directors, and
successors, employees, agents or assigns, by reason of any matter, cause or
thing whatsoever, from the beginning of the world to the day of these presents
arising out of or related to the Commission Agreement or Lawsuit (“Released
Claims”). This Release does not release any obligations under the terms of this
Settlement Agreement.
4. Dismissal
of the Lawsuit and Counterclaim.
Within
three (3) business days of Horn’s receipt of the settlement funds referenced in
paragraph 2 above, Horn shall file a voluntary dismissal with prejudice (the
“Dismissal”) with respect to the Lawsuit. Each of the Parties shall bear its own
attorneys’ fees and costs in connection with the Lawsuit and the negotiation of
this Agreement.
5. Attorneys’
Fees and Costs of Enforcement of Settlement Agreement.
It
is
understood and agreed by the Parties that the prevailing party, in any
litigation arising out of or to enforce the terms of this Settlement Agreement,
shall be entitled to recover its reasonable attorneys’ fees and costs from the
non-prevailing party.
6. Representations.
The
Parties each hereby further warrant, represent, and acknowledge to each other
that:
(a) they
have
the right and authority to execute this Settlement Agreement and to receive
the
consideration given therefor;
(b) they
have
not sold, assigned, transferred, conveyed, or otherwise disposed of any of
the
Released Claims covered by this Settlement Agreement;
(c) the
consideration received by them for entering into this Settlement Agreement
is
fair, reasonable, sufficient, just, and adequate and constitutes lawful
consideration supporting the execution of this Settlement
Agreement;
(d) through
their duly authorized representative(s), they have reviewed all provisions
of
this Settlement Agreement in full, have reviewed those provisions with their
attorneys, and understand them and voluntarily agree to be bound thereby;
and
(e) they
are
entering into this Settlement Agreement based solely and exclusively upon their
and/or their attorneys’ own analyses of the facts and/or information of which
they and/or their attorneys are independently aware and not based upon or in
reliance upon any statements and/or representations of the other Parties (except
to the extent such statements and/or representations are fully and expressly
set
forth herein).
7. Miscellaneous.
It
is
understood and agreed to by the Parties that this Settlement
Agreement:
(a) is
in
settlement and compromise of disputed claims and that nothing contained in
this
Settlement Agreement (including, but not limited to, any consideration contained
herein) is to be construed as an admission of liability;
(b) shall
be
binding on all and shall inure to the benefit of the Parties and their
respective past, present, and future, officers, directors, members, owners,
shareholders, employees, predecessor-, successor-, affiliated-, and
parent-corporations (and the officer, directors, shareholders, and employees
of
said corporations), assigns, attorneys, agents, legal representatives, heirs,
dependents, executors, and administrators;
(c) may
be
executed and delivered in counterparts any of which shall be an original and
all
of which shall constitute one agreement. A copy of any signature on a signature
page or a signature by fax shall be valid and binding as an original
signature;
and
(d) shall
not
be construed against any of the Parties as drafter.
8. Governing
Law and Jurisdiction.
This
Settlement Agreement shall be deemed to have been written, approved, and
accepted in Miami-Dade County, Florida, and the construction, interpretation,
and enforcement of this Settlement Agreement, shall be governed by and construed
under the laws of the State of Florida, excluding its conflict of law rules
or
provisions. The Parties agree that the Circuit Court in Miami-Dade County,
Florida shall retain jurisdiction to enforce the terms of this Agreement and
that any action or motion regarding enforcement of this Agreement may only
be
brought in Miami-Dade County Circuit Court.
9. Entire
Agreement.
This
Settlement Agreement constitutes the entire agreement between the Parties.
No
prior or contemporaneous oral or written agreement between the Parties relating
to this Settlement Agreement shall be binding on the Parties. This Settlement
Agreement may not be modified except by a written modification signed by the
party against whom enforcement is sought.
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| HORN CAPTIAL REALTY, INC. | EACO CORPORATION | ||
| By /s/ Xxxxxxxx X. Xxxx | By /s/ Xxxx Xxxxxx | ||
| Xxxxxxxx X. Xxxx, President | Xxxx Xxxxxx, Chairman and CEO | ||
| Date Signed: May 9, 2008 | Date Signed: May 9, 2008 |
| XXXXXXXX X. XXXX, individually | |||
| By /s/ Xxxxxxxx X. Xxxx | |||
| Xxxxxxxx X. Xxxx, President | |||
| Date Signed: May 9, 2008 |
