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SETTLEMENT AGREEMENT
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This Settlement Agreement is made and entered into this 26th day of
January 2006, by and among SUNBORNE XII, LLC, CALEB DEVELOPMENT, LLC, and
WOODMEN JOINT VENTURE, LLP (collectively, "Sunborne") and CIRTRAN CORPORATION,
CIRCUIT TECHNOLOGY CORPORATION, CIRCUIT TECHNOLOGY, INC., IEHAB XXXXXXXX, XXXXX
KOKOSYON, and XXXX XXXXXXXX (collectively, "CTC") (CTC and Sunborne,
collectively the "Parties").
RECITALS
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A. Sunborne is the owner of an office/warehouse building located
at 3650-3750 North Nevada Avenue, Colorado Springs, El Paso County, Colorado
(the "Property"), the same having the following legal description: Xxxx 0 xxx 0,
Xxxxx 0, XXX Subdivision No. 2, El Paso County, Colorado.
B. Pursuant to a Net Lease dated January 8, 1998 ("Master
Lease"), Sunborne leased to ETA Technologies Corporation ("ETA") approximately
142,500 square feet of the Property. Subsequently, ETA assigned its leasehold
interest to Colorado Electronics Corporation ("CEC").
C. Pursuant to a Sublease dated November 30, 1998 (the
"Sublease"), CEC sublet to CTC approximately 71,500 square feet of the Property
(the "Leased Premises").
D. On or about December 4, 1998, CTC leased approximately 17,327
rentable square feed of the Leased Premises to Parkway Products, Inc.
("Parkway"). In or about October 1999, Parkway vacated its portion of the Leased
Premises and ceased paying rent to CTC. The Parties claimed that Parkway
breached of its sublease and that they had a concurrent right to assert claims
against Parkway for damages (the "Parkway Claim").
E. In December 1999, Sunborne retook possession of the Leased
Premises. Sunborne thereafter filed suit against CTC in the District Court of El
Paso County, Colorado, Case No. 99 CV 2870 (the "Lawsuit"). Sunborne asserted
various claims against CTC, and CTC asserted a counterclaim against Sunborne.
F. CTC entered into a settlement agreement with Sunborne with
respect to the Lawsuit in January 2002 (the "First Settlement Agreement").
G. Sunborne thereafter obtained a judgment against CTC in
Colorado District Court in November 2002 (the "Judgment").
H. The Judgment was also filed in Utah District Court in February
2003.
I. CTC and Sunborne desire to settle their dispute upon the terms
and conditions set forth herein.
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NOW THEREFORE, pursuant to these Recitals, and for and in consideration
of the terms and conditions of this settlement agreement (the "Second Settlement
Agreement"), the mutual benefits to be derived herefrom, and other good and
valuable consideration, the Parties agree as follows:
1. Payment by CTC. CTC shall deliver to Sunborne's counsel, Xxxxx
X. Xxxxxxx or Lincoln X. Xxxxx, payment to Sunborne in the amount of TWO HUNDRED
THOUSAND DOLLARS ($200,000.00) no later than ten (10) days following the full
and complete execution of this Second Settlement Agreement by Sunborne.
2. Satisfaction of Payment. Sunborne shall file a Satisfaction of
Judgment in the forms attached hereto as Exhibit A within five (5) business days
after the payment described in paragraph 1 above has been delivered to legal
counsel for Sunborne. The Satisfaction of Judgment shall be filed in the Lawsuit
and all courts or tribunals where any judgment has been filed or lodged. By
executing this Second Settlement Agreement, Sunborne hereby authorizes and
instructs its attorney to execute and file the Satisfaction of Judgment attached
hereto as Exhibit A.
3. Cessation of Collection Efforts. Concurrent with the execution
of this Second Settlement Agreement, Sunborne will execute, through its
attorney, and file with the appropriate courts, a Request for Dismissal in the
form attached hereto as Exhibit B, requesting that the Utah District Court
dismiss the Supplemental Proceedings brought in Utah, with prejudice, and with
each party to bear its own attorneys' fees and costs. Sunborne further covenants
to file a Request for Dismissal in a form similar to that attached hereto as
Exhibit B with respect to every other proceeding, suit, or action (except in the
Lawsuit where a Satisfaction of Judgment will be filed), brought by Sunborne in
any jurisdiction against CTC. Sunborne further covenants to dismiss, cease,
retract, remove, and otherwise cease all efforts to pursue, lis pendens,
garnishment, and liens and like filings and proceedings, and to cease
prosecution of claims against CTC, and efforts to collect on or enforce the
Judgment. By executing this Settlement Agreement, Sunborne hereby authorizes and
instructs its attorney to execute and file the Request for Dismissal attached
hereto as Exhibit B as directed herein.
4. Indemnity by Sunborne. Sunborne agrees to indemnify CTC from
any and all damages, losses, costs, or expenses (including reasonable attorneys'
fees and costs) that CTC incurs after the date hereof as a result of any claim,
suit, cause of action, proceeding, or other attempt to collect on the Judgment.
5. Release by Sunborne. Sunborne, their partners, employees,
predecessors, successors, and assigns, and all persons or entities acting by,
through, under or in concert with them, or on their behalf, hereby irrevocably
and unconditionally release and forever discharge CTC, their successors,
assigns, officers, directors, stockholders, employees, insurers, agents,
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representatives, and attorneys, or any of them, from any and all actions, causes
of action, suits, claims, rights, damages, losses, costs, and expenses
(including attorneys' fees and costs actually incurred) of any nature
whatsoever, known or unknown, suspected or unsuspected, fixed or contingent
which they now have, own ,or hold, or at any time heretofore had, owned or held,
arising out of conduct or matters occurring prior to the date hereof, and
related directly or indirectly to matters at issue in the Lawsuit and set forth
herein.
6. Release by CTC. CTC, their officers, directors, employees,
shareholders, predecessors, successors and assigns, and all persons or entities
acting by, through, under or in concert with them, or on their behalf, hereby
irrevocably and unconditionally release and forever discharge Sunborne, and any
of their successors, assigns, partners, employees, insurers, agents,
representatives, and attorneys, or any of them, from any and all actions, causes
of action, suits, claims, rights, damages, losses, costs, and expenses
(including attorneys' fees and costs actually incurred) of any nature
whatsoever, known or unknown, suspected or unsuspected, fixed or contingent
which they now have, own or hold, or at any time heretofore had, owned or held,
arising out of conduct or matters occurring prior to the date hereof, and
related directly or indirectly to matters at issue in the Lawsuit and set forth
herein.
7. Confidentiality and Non-Disclosure. The parties, individually
and on behalf of their partners, officers, directors, employees, shareholders,
predecessors, successors and assigns, and all persons or entities acting by,
through, under or on their behalf, or any of them, agree that the amount of
payment provided for in this Settlement Agreement, nor any other term contained
herein, shall be disclosed to any third-party absent written consent from the
non-disclosing parties, except as may be required in connection with the
preparation and filing of income tax returns, or other financial or securities
reporting, or as may be required by the order of a court of competent
jurisdiction, or any regulatory or self-regulatory agency or if requested by the
Court at any hearing in an action between the parties to this Agreement . It is
specifically agreed that no disclosure shall be made to the press or other
member of the media regarding the underlying dispute or the terms of this
Settlement Agreement. This is a material term of this Settlement Agreement. Any
non-disclosure provision in this Agreement does not prohibit or restrict the
Parties (or their attorneys) from responding to any inquiry about this
settlement or its underlying facts and circumstances by the Securities and
Exchange Commission (SEC), the National Association of Securities Dealers, Inc.
(NASD) or any other self-regulatory organization.
8. Consideration. The parties hereto acknowledge and agree that good
and valuable consideration has been given for the covenants, releases, and
agreements set forth herein and that each party has been fully advised (to the
extent that they have deemed necessary) regarding this Settlement Agreement and
their respective claims by competent legal counsel of their choosing.
9. No Admission of Liability. The parties hereto agree that this
Settlement Agreement is entered into in settlement of disputed claims, and
execution of this Settlement Agreement shall not be deemed to be an admission of
liability or an admission against interest by any party hereto.
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10. Nonassignment of Claims. The parties each warrant and
represent that there has been no assignment, sale, or transfer of any of the
claims being released hereby and that their execution of this Settlement
Agreement constitutes a full and complete release and discharge of those claims.
If there has been any assignment, the assigning party agrees to fully indemnify
the other parties hereto for all costs, attorneys' fees, and judgments incurred
as a result of such assignment.
11. Full and Independent Knowledge. Each party hereto represents
that it has been represented by an attorney in connection with the preparation
and review of this Settlement Agreement, that its representative has
specifically discussed with its attorney the meaning and effect of this
Settlement Agreement and that its representative has carefully read and
understands the scope and effect of each provision contained herein. Each party
hereto further represents that it does not rely and has not relied upon any
representation or statement made by the other party hereto or any of its
representatives with regard to the subject matter, basis or effect of this
Settlement Agreement and has voluntarily entered into this Settlement Agreement.
12. Successors. This Settlement Agreement shall be binding upon
and inure to the benefit of the heirs, executors, administrators, successors and
assigns of each of the parties.
13. Preparation of Settlement Agreement and Construction of its
Terms. The parties agree that each of them has, through their attorneys,
participated in and contributed to the preparation of this Settlement Agreement.
The parties agree that this Settlement Agreement shall be regarded and deemed as
having been prepared jointly by the parties hereto. Any ambiguity or uncertainty
existing herein shall not be interpreted or construed against any party thereto
by virtue of who may have drafted such provision.
14. Amendment to Settlement Agreement. This Settlement Agreement
may not be altered, amended, modified, or otherwise changed in any respect or
particular whatsoever except by a writing executed by an authorized
representative of each party hereto.
15. Further Assurances. Each of the parties, without further
consideration, agrees to execute and deliver such other documents and take such
other action as may be necessary to consummate more effectively the subject
matter hereof.
16. Execution in Counterparts. The parties hereto agree that this
Settlement Agreement may be executed in counterparts and that it is the intent
of the parties that the copy signed by a party will be fully enforceable against
said party, and all signed counterparts shall be deemed to be an original.
17. Authorization. Any person signing this Settlement Agreement
for or on behalf of an entity other than a natural person does by said signature
warrant that he or she is duly authorized by said entity to undertake such
action on its behalf, and that such signature is the valid and binding act of
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that entity. Each individual executing this Settlement Agreement represents that
he has full mental and physical capacity to enter into this Settlement
Agreement.
18. Governing Law. This Settlement Agreement shall be construed in
accordance with and all disputes hereunder shall be governed by the laws of the
State of Utah.
19. Attorneys' Fees. If any action is brought because of any
breach of or to enforce, interpret, rescind, or terminate any of the provisions
of this Settlement Agreement, the party prevailing in such action shall be
entitled to recover from the other party reasonable attorneys' fees and court
costs incurred in connection with such action, the amount of which shall be
fixed by the court and made a part of any judgment rendered.
20. Severability. Should any part, term, or provision of this
Settlement Agreement be declared or determined by any court to be illegal or
invalid, the validity of the remaining parts, terms, and provisions shall not be
affected thereby and said illegal or invalid part, term, or provision shall be
deemed not to be part of this Settlement Agreement.
21. Entire Agreement. This Settlement Agreement sets forth the
entire agreement between the parties and supersedes any and all prior agreements
or understandings between the parties pertaining to the subject matter hereof.
22. Waiver. Acceptance by either party of any performance less
than required hereby shall not be deemed to be a waiver of the rights of such
party to enforce all of the terms and conditions hereof. No waiver of any such
right hereunder shall be binding unless reduced to writing and signed by the
party to be charged therewith.
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement
as of the date first shown above.
SUNBORNE:
Sunborne XII, LLC
/s/
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Its Manager
Signed this ____ day of January 2006.
[signatures continue on following page]
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Caleb Development, LLC
/s/
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Its Manager
Signed this ____ day of January 2006.
Woodmen Joint Venture, LLP
/s/
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Its General Partner
Signed this ____ day of January 2006.
CTC:
Cirtran Corporation
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, President
Signed this ____ day of January 2006.
Circuit Technology Corporation
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, President
Signed this ____ day of January 2006.
Circuit Technology, Inc.
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, President
Signed this ____ day of January 2006.
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Signed this ____ day of January 2006.
[signatures continue on following page]
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/s/
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Xxxxx Xxxxxxxx
Signed this ____ day of January 2006.
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Signed this ____ day of January 2006.
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EXHIBIT A
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DISTRICT COURT, EL PASO COUNTY, COLORADO
00 X. Xxxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
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Plaintiff: SUNBORNE XII, LLC, a Colorado limited
Liability company,
Defendant: CIRCUIT TECHNOLOGY
CORPORATION, a Utah corporation
Additional Defendants: XXXXX XXXXXXXX; XXXXX
XXXXXXXX; and XXXX XXXXXXXX * COURT USE ONLY *
---------------------------------------------------- --------------------------
Attorney for Plaintiff: Case Number: 99 CV 2870
Xxxxx X. Xxxxxxx
SPARKS XXXXXXX XXXXXX
XXXXXX & XXXXXXX, P.C.
24 X. Xxxxx, Suite 400 (80903)
P. O. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxxxxx.xxx Div.: 3 Ctrm:
Atty. Reg. #: 12830
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SATISFACTION OF JUDGMENT
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STATE OF COLORADO )
) ss.
COUNTY OF EL PASO )
KNOW ALL MEN BY THESE PRESENTS, THAT Xxxxx X. Xxxxxxx, of the County of
El Paso and State of Colorado, attorney for the judgment creditor in the
above-entitled action, Sunborne XII, LLC, for a good and valuable consideration
to him in hand paid, does acknowledge full satisfaction and payment of a
judgment entered on November 13, 2002, together with all interest, costs, claims
or demands in any manner appurtenant thereto. Judgment creditor releases all and
singular any and all liens existing against any properties of the judgment
debtor in said action by reason of aforesaid judgment.
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DATED this 24th day of January, 2006.
SUNBORNE XII, LLC, a Colorado limited
Liability company,
Judgment Creditor
By:
SPARKS XXXXXXX XXXXXX
XXXXXX & XXXXXXX, P.C.
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Xxxxx X. Xxxxxxx
Subscribed and sworn to before me this 24th day of January, 2006, by
Xxxxx X. Xxxxxxx, attorney for Sunborne XII, LLC, Judgment Creditor.
Given under my hand and seal.
My commission expires: 11/3/07 ------------------------------------
Patrician X. Xxxxxxxx, Notary Public
*Electronically filed pursuant to C.R.C.P. 121, ss.1-26. Duly signed original on
file at the offices of Sparks Xxxxxxx Xxxxxx Xxxxxx & Xxxxxxx, P.C.
CERTIFICATE OF SERVICE
----------------------
I hereby certify that on the 24th day of January, 2006, a true and
correct copy of the foregoing Satisfaction of Judgment was placed in the United
States Mail, postage prepaid, addressed to the following:
Xxxxx X. Xxxxxxxxx
Durham Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
---------------------------------
Xxxxxxxx Xxxxxxxx
00
XXXXXXX X. XXXXX, XXX. (4848)
XXXX X. XxXXXXX, ESQ. (5311)
XXXXXX X. XXXXXX, ESQ. (5154)
XXXXX & XXXXX, X.X.
Attorneys for Plaintiff/Judgment Creditor
Sunborne XII, LLC
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IN THE THIRD JUDICIAL DISTRICT COURT
IN AND FOR SALT LAKE COUNTY, STATE OF UTAH
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SUNBORNE XII, LLC, a Colorado : SATISFACTION OF JUDGMENT
limited liability company, :
:
Plaintiff, :
:
v. :
:
CIRCUIT TECHNOLOGY, INC., : Civil No. 036903051 FJ
formerly known as CIRCUIT : Judge Xxxxxx X. Xxxxxx
TECHNOLOGY CORPORATION, a :
Utah corporation; XXXXX XXXXXXXX; :
XXXXX XXXXXXXX; and :
XXXX XXXXXXXX, :
:
Defendants. :
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Plaintiff, by and through its counsel, hereby acknowledges full
satisfaction of the judgment entered in the above-entitled matter.
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DATED: February 16, 2006.
XXXXX & XXXXX, X.X.
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LINCOLN X. XXXXX
XXXX X. XxXXXXX
XXXXXX X. XXXXXX
Attorneys for Plaintiff
STATE OF UTAH )
: ss.
COUNTY OF SALE LAKE )
SUBSCRIBED AND SWORN to before me this 16th day of February, 2006.
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Notary Public
[seal]
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CERTIFICATE OF SERVICE
I hereby certify that on the 16th day of February, 2006, I caused a
true and correct copy of the foregoing to be mailed, first class, postage
prepaid, to the following:
Xxxxx X. Xxxxxxxxx, Esq. Circuit Technology, Inc.
DURHAM XXXXX & XXXXXXX, P.C. 6952 High Tech Drive, Suite B
Broadway Center, Suite 900 Midvale, UT 84047-3772
000 Xxxx Xxxxxxxx Xxxxxxxxx/Xxxxxxxx Xxxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attorneys for Defendant/Judgment Debtor
Xxxxx X. Xxxxxxxx
CirTran Corporation Xxxxx Kokozyn
4125 South 6000 West 0000 Xxxxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000 Xxxxxx, Xxxxxxxxxx 00000-0000
Defendant/Judgment Debtor Defendant/Judgment Debtor
Raed Hawtmeh
00000 Xxxxxxxxx Xxxxx, #0000
Xxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Defendant/Judgment Debtor
-----------------------------------
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EXHIBIT B
1
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