EXHIBIT 10.22
IN THE CIRCUIT COURT, TWENTIETH JUDICIAL CIRCUIT, XXX COUNTY, FLORIDA
CASE NO. 02-10137-CA-JSC
DIVISION:
WACHOVIA BANK, NATIONAL )
ASSOCIATION, successor by merger
to First Union National Bank, )
)
Plaintiff,
)
v.
)
NEOMEDIA TECHNOLOGIES, INC.,
a Florida corporation, )
)
Defendant.
)
SETTLEMENT AGREEMENT
WHEREAS, Wachovia Bank, National Association ("Wachovia"), has brought
this action against Neomedia Technologies, Inc. ("Neomedia") for breach of the
Lease and for eviction from the Leased Premises; and
WHEREAS, Neomedia acknowledges that it (i) is in default of the Lease
for failure to pay the rent due under the Lease and currently owes Wachovia
$275,455.06 in past due rent as of October 2002, and (ii) is liable for amounts
of future rent due under the Lease; and
WHEREAS, under the Lease, Neomedia currently occupies and possesses
both Suite 600 and Suite 402, 0000 0xx Xxxxxx, Xx. Xxxxx, Florida, and Neomedia
desires to consolidate its operations in Suite 402 and move out of Suite 600;
and
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WHEREAS, Neomedia desires to continue to pay a fair amount of monthly
rent to continue in possession of Suite 402 and pay Wachovia all past due
amounts of rent under the Lease; and
WHEREAS, Neomedia admits each of the allegations of the complaint,
which is incorporated by reference into this Agreement;
NOW THEREFORE,
On this day of October, 2002, Xxxxxxxx and Neomedia agree to settle
this action on the following terms:
1. By November 4, 2002, Neomedia will vacate Suite 600 and surrender
possession of Suite 600 to Wachovia. Neomedia will remain in
possession of Suite 402 and consolidate its business operations
there. Wachovia will allow Neomedia limited access to Suite 600
until the end of business day on November 11, 2002 for the purpose
of switching its phone systems from Suite 600 to Suite 402.
2. Beginning on November 1, 2002, Neomedia will make the monthly rent
payments outlined in the Rent Schedule attached as Exhibit A to
Wachovia Corporation, P.O. Box 601317, Charlotte, North Carolina
28260-1317. Rent payments are due on the first day of each month and
must be made no later than the fifteenth day of each month. As long
as Neomedia complies with the Rent Schedule, the Rent Schedule
modifies any prior rent schedules set forth in the Lease. Time is of
the essence for all rent payments.
3. If Neomedia fulfills each of the requirements of paragraphs 1 and 2,
Wachovia will voluntarily dismiss its complaint against Neomedia
with prejudice.
4. If Neomedia does not fulfill the requirements of paragraphs 1 and 2
above,
a. Neomedia consents to the Court's entry of a judgment for
damages in the amounts due under the Lease, minus any amounts
paid pursuant to paragraphs 1 and 2, above. A copy of the
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agreed Final Judgment for Money Damages is attached as Exhibit
B. The only issue for the Court's determination upon a hearing
for entry of the agreed Final Judgment for Money Damages is
whether and to what extent Neomedia fulfilled the requirements
of paragraphs 1 and 2 of this Agreement. The Court may decide
this issue based on an affidavit from Wachovia. Wachovia will
serve a copy of the affidavit and a notice of hearing on
Neomedia's counsel three (3) business days prior to the
hearing.
b. Wachovia is entitled to an immediate writ of possession in the
form attached as Exhibit C.
c. Neomedia will pay all of Xxxxxxxx's attorneys' fees and costs
incurred in enforcing the provisions of the Lease and of this
Settlement Agreement. As of October 22, 2002 Wachovia has
incurred fees and costs of approximately $3,500.00 and
anticipates it will incur additional attorneys' fees if
Neomedia breaches the Settlement Agreement.
5. This Settlement Agreement constitutes the full and complete
agreement of the parties, and no waiver or modification of any terms
or conditions of this Agreement shall be valid unless in writing and
executed by each of the parties. 6. To the extent this Settlement
Agreement does not modify the Lease, the Lease provisions remain in
full force and effect. 7. There are no oral agreements or
understandings which vary the terms or meaning of this Settlement
Agreement. 8. The parties have consulted their own counsel about
this Agreement.
10.22-3
NEOMEDIA TECHNOLOGIES, INC. XXXXX XXXXXX & XXXXX
By /s/ Xxxxx Xxxxx By /s/ Xxxxxxx X. XxXxxxxxxx
---------------------------------- -------------------------
Xxxxx Xxxxx Xxxxx X. Xxxxxxx
Its Vice President, Chief Xxxxxxx X. XxXxxxxxxx
Financial Officer, and
Controller
Florida Bar Number 484180
1800 First Union Bank Tower
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
(000) 000-0000 (facsimile)
Attorneys for Wachovia Bank, N.A.
10.22-4
EXHIBIT A - RENT SCHEDULE
PAST DUE CURRENT TOTAL
PORTION RENT PAYMENT
November 2002 $ 3030.43 $ 6,969.57 $ 10,000.00
December 2002 3030.43 6,969.57 10,000.00
January 2003 3030.43 6,969.57 10,000.00
February 2003 22,196.98 7,245.93 29,442.91
March 2003 22,196.98 7,245.93 29,442.91
April 2003 22,196.98 7,245.93 29,442.91
May 2003 22,196.98 7,245.93 29,442.91
June 2003 22,196.98 7,245.93 29,442.91
July 2003 22,196.98 7,245.93 29,442.91
August 2003 22,196.98 7,245.93 29,442.91
September 2003 22,196.98 7,245.93 29,442.91
October 2003 22,196.98 7,245.93 29,442.91
November 2003 22,196.98 7,245.93 29,442.91
December 2003 22,196.98 7,245.93 29,442.91
January 2004 22,196.98 7,245.93 29,442.92
Total $275,455.06 $107,859.87 $383,314.93
Past due amounts as of October 1, 2002: $275,455.06, i.e. ($252,223.17 through
September, 2002 plus $23,231.89 for October rent).
10.22-5
EXHIBIT B
IN THE CIRCUIT COURT, TWENTIETH
JUDICIAL CIRCUIT, XXX COUNTY, FLORIDA
CASE NO. 02-10137-CA-JSC
DIVISION:
WACHOVIA BANK, NATIONAL )
ASSOCIATION, successor by merger
to First Union National Bank, )
)
Plaintiff,
)
v.
)
NEOMEDIA TECHNOLOGIES, INC.,
a Florida corporation, )
)
Defendant.
)
FINAL JUDGMENT FOR MONEY DAMAGES
This proceeding is before the Court upon the motion of plaintiff
Wachovia Bank, National Association ("Wachovia"), for the entry of a final
judgment. Upon due consideration of the motion, Xxxxxxxx's affidavit, and the
parties' settlement agreement, it is:
ORDERED AND ADJUDGED that plaintiff Wachovia recover from defendant
Neomedia Technologies, Inc. the sum of $_________, which represents the amounts
due under the Lease, minus the $__________ in payments defendant made pursuant
to the parties' Settlement Agreement, that shall bear interest from year to year
at the annual rate provided by law, for all of which let execution issue.
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DONE AND ORDERED in Xxxxxxxx at Ft. Xxxxx, Xxx County, Florida this
_____ day of , 2002.
Circuit Judge
Copies to:
Neomedia Technologies, Inc.
0000 0xx Xxxxxx
Xxxxx 000
Xx. Xxxxx, Florida 33901-3086
Wachovia Bank, National Association
c/o Jones Xxxx LaSalle
4299 N.W. 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Xxxxxxx X. XxXxxxxxxx, Xxx.
Xxxxx Xxxxxx & Xxxxx
P.O. Box 53315
Jacksonville, Florida 32201-3315
10.22-7
