SETTLEMENT STIPULATION AND RELEASE
Exhibit 10.46
SETTLEMENT STIPULATION AND RELEASE
This Settlement Stipulation and Release (“Stipulation”) is made and entered into as of June
28, 2007 (the “Settlement Date”), by and among FOUNDATION INSURANCE COMPANY (“Foundation”), XXXXX
X. XXXXXXX (“Xxxxxxx”), NEW PACIFIC INTERNATIONAL, INC. (“New Pacific”), (collectively, “First
Party”) and XXXXXXXX, XXXXXXX & XXXXXXX, INC., (“Second Party”) (First Party and Second Party each
being a “Party” to this Stipulation), with reference to the following facts:
(Wherever used herein the terms “Party” or “Parties” shall include singular and plural, their
representatives, legal representatives, assigns, transferees, successors, heirs, partners,
affiliates, parents, subsidiaries, venturers, principals, attorneys, agents, officers,
directors, shareholders, former and present employees, and predecessors wherever the context
so admits or requires.)
WHEREAS, on or around January 28, 2003, Wachovia Bank, National Association obtained a Default
Judgment against Foundation and Xxxxxxx in the State of North Carolina, County of Mecklenburg, In
the General Court of Justice, Superior Court Division, Case No. 2002-CVS-13779 (the “Wachovia
Judgment”);
WHEREAS, on or around September 20, 2006, Second Party recorded the Wachovia Judgment in the
public records of Broward County, Florida OR Book 24939, Page 2001;
WHEREAS, on or around September 20, 2006, Second Party commenced an action to domesticate the
Wachovia Judgment in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade
County, Florida, Case No. 06-19064 CA 05 (the “Domestication Action”);
WHEREAS, Second Party owns and holds the Wachovia Judgment;
WHEREAS, although First Party disputes that any obligation is owed to Second Party under the
Wachovia Judgment, First Party and Second Party wish to completely, finally, and amicably resolve
all claims asserted or that could have been asserted against each other in the
Domestication Action and/or in connection with the Wachovia Judgment and to thereby avoid the
burden and expense of same; and
WHEREAS, neither First Party nor Second Party, by entering into this Stipulation, make any
admissions of any unlawful conduct whatsoever as against the other.
NOW, THEREFORE, in consideration of the promises, covenants, warranties, and representations
set forth herein, First Party and Second Party agree as follows:
1. Recitals. All of the foregoing Recitals are true and correct.
2. Payment By First Party. On or before July 12, 2007, First Party shall pay
to Second Party $75,000. Thereafter, on or before July 27, 2007, First Party shall pay to Second
Party an additional payment of $75,000. Additionally, beginning on July 12, 2007 and thereafter on
the first day of each successive month, First Party shall also pay to Second Party twenty nine (29)
equal monthly payments in the amount of $l5,000 per month. Accordingly, the total amount due under
this Paragraph 2 shall be $585,000. Each of the foregoing payments shall be made either by
cashier’s check or by wire transfer. If First Party breaches its obligation to timely make any of
the foregoing payments under this Paragraph, then Second Party shall provide written notice of any
such breach to First Party and ten business days to cure the first such breach, and Second Party
shall provide to First Party written notice and five business days to cure any subsequent breaches.
If First Party has failed to cure any such breach within the applicable cure period, then the full
balance owed under the Wachovia Judgment shall be due and owing to Second Party, less any payments
made to Second Party under this Stipulation, and Second Party shall have whatever rights and
remedies which may be available to it under that Wachovia Judgment.
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3. Satisfaction of Judgments. In consideration for making the foregoing disputed
payments with respect to the Wachovia Judgment, immediately upon receipt of payment in full under
Paragraph 2 above ($585,000), Second Party shall: (a) record satisfactions of judgments for the
Wachovia Judgment in each and every county in which the Wachovia Judgment has been recorded to the
knowledge of Second Party, and in any other county as may be directed
by First Party: and also (b)
record satisfactions of judgments for each of the following judgments owned and held by Second
Party in each and every county in which either of those judgments has been recorded to the
knowledge of Second Party, and in any other county as may be directed
by First Party: (i) a Default
Judgment against Xxxxxxx obtained on January 28, 2003, by Wachovia Bank, National Association in
the State of North Carolina, County of Mecklenburg, In the General Court of Justice, Superior Court
Division, Case No. 02-CVS-13780, and (ii) a Default Judgment obtained by Wachovia Bank on or about
October 14, 2002 against New Pacific and Xxxxxxx, in the State of North Carolina, County of
Mecklenburg, In the General Court of Justice, Superior Court Division, Case No. 01-CVS-588
(collectively, the “Undomesticated Judgments”).
4. Removal of Negative Credit History. Immediately upon receipt of payment in full
under Paragraph 2 above, Second Party shall use its best efforts to attempt to remove from First
Party’s credit history as reported on all major credit reporting agencies all negative information
attributable to the Wachovia Judgment, the Undomesticated Judgments and/or the Domestication
Action. Additionally, Second Party shall fully cooperate with First Party to cause all major credit
reporting agencies to remove any such negative credit histories or information. Any correspondence
to a credit reporting agency that may be necessary to satisfy the obligations of this paragraph
shall be approved in form by counsel for both First Party and
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Second Party, which approval shall not be unreasonably withheld. Upon request, Second Party shall
provide to First Party copies of any and all correspondence, e-mail, and any other documentation
which Second Party believes reflects its compliance with its “best efforts” and “full cooperation”
obligations under this Paragraph.
5. Dismissal of Domestication Action. Immediately upon receipt of payment in full
under Paragraph 2 above, Second Party shall dismiss with prejudice the Domestication Action.
6. Withdrawal of Garnishments. Immediately upon receipt in full of the two $75,000
payments (totaling $150,000) by July 27, 2007, in cleared funds as provided in Paragraph 2 above,
Second Party shall withdraw the Garnishments served in the Domestication Action and shall
immediately release all garnishees from any such garnishments. So long as First Party has not
failed to cure any breach of the payment obligations in Paragraph 2, above, within the applicable
cure period, Second Party will not cause any further garnishment to be issued or served in
connection with the Domestication Action.
7. Mutual Release of Claims and Covenant Not to Xxx. Upon receipt of payment in full
under Paragraph 2 above, each Party absolutely and forever releases, acquits and discharges the
other Party from any and all potential or actual claims, rights, demands, covenants, agreements,
contracts, duties, obligations, responsibilities, representations, warranties, promises, liens,
mechanic’s liens, accounts, debts, liabilities, damages, expenses, attorneys’ fees, costs and
causes of action, known or unknown, of whatever kind and howsoever arising, past or present, which
either Party now has, ever has had, or may have had from the beginning of the world to the day of
these presents against the other Party, whether at law or in equity, in connection with or arising
out of any and all claims asserted or which could have been
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asserted by either Party against the other Party in the Domestication Action and/or in connection
with or arising out of the Wachovia Judgment or any of the Undomesticated Judgments, except
that this Release shall not release or limit any of the obligations, duties, liabilities,
ability or right to enforce, or rights under this Stipulation or any obligations relating to this
Stipulation (the “Released Claims”). Each Party additionally covenants not to xxx the other Party
or to file any complaint of any kind whatsoever arising out of or in any way relating to any of the
Released Claims.
8. Statute of Limitations. If First Party breaches its payment obligations under
Paragraph 2, above, and fails to cure that breach after having received written notice from Second
Party within the time period provided in Paragraph 2, then (but only then) First Party waives any
statute of limitations defense First Party may have with respect to any action filed by Second
Party seeking to domesticate in Florida the Undomesticated Judgments.
9. Attorneys’ Fees. Each Party shall bear its own attorneys’ fees and costs,
except that, in any legal action or other proceeding arising oat of or relating to
this Stipulation the prevailing Party shall be entitled to recover their reasonable attorneys’ fees
and court costs from the non-prevailing Party including reasonable attorneys’ fees incurred in
connection with such dispute (including costs and fees incurred prior to the filing of any lawsuit,
and also those costs including fees incurred at the trial court and appellate court levels, and
fees incurred litigating entitlement to, or the amount of, any fees awarded under this provision),
in addition to any other relief to which such Party or Parties may be entitled.
10. Choice of Law. The laws of the State of Florida shall govern the construction,
enforcement and interpretation of this Stipulation, regardless of and without
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reference to whether any applicable conflicts of laws principles may point to the application of
the laws of another jurisdiction.
11. Venue and Jurisdiction. The Parties hereby agree that the exclusive venue and
jurisdiction for all suits or proceedings arising out of or relating to this Stipulation shall be
in Circuit Court for the Seventeenth Judicial Circuit in and for Broward County, Florida.
12. Entire Agreement. This Stipulation embodies the entire Stipulation and
understanding between First Party and Second Party, and supersedes any and all prior or concurrent
Stipulations, understandings, statements, assurances, assumptions, premises, promises, agreements,
discussions or representations, oral or written, relating to the subject matter of this
Stipulation, including oral stipulations or representations, if any. Neither First Party nor Second
Party has made any representations upon which either Party has relied that are not contained in
this Stipulation. Neither First Party nor Second Party is relying on an unstated assumption,
premise or condition not contained in this Stipulation.
13. Construction. It is understood that this Stipulation was negotiated and prepared
by First Party and Second Party through their respective counsel as a combined effort designed to
meet their desires and needs. This Stipulation shall be interpreted without regard to any
presumption or rule requiring interpretation against the drafter or the Party causing this
Stipulation to be prepared.
14. No Modification or Waiver. No modification or waiver of any of the terms of this
Stipulation shall be valid unless in writing and executed by First Party and Second Party with the
same formality as this Stipulation. No waiver of any breach hereof or default hereunder shall be
deemed a waiver of any subsequent breach or default of the same or similar or dissimilar nature. No
course of dealing or course of conduct shall be effective to amend, modify
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or change any provision of this Stipulation. Notwithstanding any applicable law, the terms of this
Paragraph may not be waived by any course of dealing or course of conduct.
15. Counterparts/Copies. First Party and Second Party agree that this Stipulation may
be executed in counterparts and will become effective immediately upon execution by First Party and
Second Party, subject to exchange of signature pages and subject to the stipulations set forth
above, with a copy being deemed equivalent to an original.
16. Notice. Any and all notices, demands or communications required or permitted to be
given hereunder shall be in writing and sent by facsimile (if provided below) or overnight mail to
First Party at:
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Xxxxxxx X. Xxxxx, Esq. and | |
| Avi Benayoun, Esq. | ||
| 000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000 | ||
| Xxxx Xxxxxxxxxx, XX 00000 | ||
Copy to:
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Xxxxxxxx X. Xxxxxx, Esq. | |
| 000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000 | ||
| Xxxx Xxxxxxxxxx, XX 00000 | ||
Second Party at:
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Richard Xxxxxxx.Xxx, | |
| 000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000 | ||
| Xxxx Xxxxxxxxxx, XX 00000 |
Or to such other addresses as either First Party or Second Party may hereafter provide to the other
in writing as a notice of change of address. Each, such notice, demand or other communication shall
be effective upon receipt
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For First Party
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STATE OF Florida
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COUNTY
OF BROWARD
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The foregoing instrument was acknowledged before me this 12th day of July ,
2007, by XXXXX X. XXXXXXX. He is presently known to me
or produced as identification.
[NOTARY SEAL]
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Notary:  Print Name: Xxxxxxx X. Xxxxxxxx Notary Public, State of Florida My commission expires: June 4, 2009 |
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| For First Party | ||||||
| (Corporate Seal) | FOUNDATION INSURANCE COMPANY | |||||
Attest: |
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Secretary
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By: | 
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- or -
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Name: Xxxxxxxx X. Xxxxxx * | |||||
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Title: | |||||
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| * | Foundation Insurance Company’s corporate existence was dissolved in March 2006 by operation of Court Order issued by the South Carolina Court. The Company had been under the control of the South Carolina Department of Insurance since May 2004. |
STATE OF FLORIDA
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COUNTY OF
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The foregoing instrument was acknowledged before me this 12th day of July, 2007, by
of FOUNDATION INSURANCE COMPANY, on behalf of the corporation. He/She is presently
known to me or has produced as identification.
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[NOTARY SEAL]
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Signature- Notary Public Printed Name of Notary : Xxxxxxx X. Xxxxxxxx Notary Public, State of: Florida My commission expires: June 4, 2009 |
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| For First Party | ||||||
| (Corporate Seal) | NEW PACIFIC INTERNATIONAL, INC. | |||||
Attest: |
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Secretary
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By: |
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- or -
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Name: Xxxxxx X. Xxxxxxx | |||||
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Title: President | |||||
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STATE OF FLORIDA
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COUNTY
OF BROWARD
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The foregoing instrument was acknowledged before me this 12th day of July
2007, by Xxxxxx X. Xxxxxxx of NEW PACIFIC INTERNATIONAL, INC. on behalf of the corporation.
He/She is presently known to me or has produced as identification.
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[NOTARY SEAL]
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Signature- Notary Public Printed Name of Notary: Xxxxxxx X. Xxxxxxxx Notary Public, State of: Florida My commission expires: June 4, 2009 |
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| For Second Party | ||||||
| (Corporate Seal) | XXXXXXXX, XXXXXXX & XXXXXXX, INC. | |||||
Attest: |
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Secretary
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By: | 
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- or -
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Name: X. X. XXXXXXXXX | |||||
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Title: SUP | |||||
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STATE OF FLORIDA
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COUNTY OF DALLAS
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The foregoing instrument was acknowledged before me this 11TH day of JULY 2007, by
X. XXXXXXXXX of XXXXXXXX, XXXXXXX & XXXXXXX, INC. on behalf of the corporation. He/She is presently
known to me or has produced TX DRIVER LICENSE as identification.
| [NOTARY SEAL] |  |
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Signature- Notary Public Printed Name of Notary : XXXXXX XXXXX Notary Public, State of TEXAS My commission expires: 02.25.2010 |
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