Contract
EXHIBIT 10.72
SETTLEMENT AGREEMENT WITH
MUTUAL RELEASES
This
SETTLEMENT AND MUTUAL GENERAL RELEASE AGREEMENT (“Agreement”) is entered into by
and between Primal Solutions, Inc., a Delaware corporation (hereafter referred
to as “PRIMAL SOLUTIONS”), and CA-Tower 17 Limited Partnership, a Delaware
limited partnership (hereafter referred to as “TOWER 17”), concerning that
certain promissory note in the original principal amount of $200,000 dated June
15, 2001 made by PRIMAL SOLUTIONS in favor of Xxxxxxx Properties, L.P., a
California limited partnership and the predecessor in interest to TOWER 17, and
all other agreements, arrangements, and obligations between PRIMAL SOLUTIONS,
TOWER 17 AND TOWER 17’s predecessor in interest. PRIMAL SOLUTIONS AND
TOWER 17 are sometimes referred to herein collectively as “the Parties” and are
each a “Party”.
RECITALS
This
agreement is made by the Parties with reference to the following
facts:
A.
On
or about June 15, 2001, PRIMAL SOLUTIONS entered into a Promissory Note in favor
of Xxxxxxx Properties, L.P. as part of a landlord-tenant dispute and resolution
wherein PRIMAL SOLUTIONS agreed to pay $200,000.00 in principal and $137,430.11
in interest, among other terms. The total amount due at maturity on
April 30, 2007 was $337,430.11. A true copy of the Promissory Note is
attached hereto as Exhibit “A” and incorporated herein by
reference. (Hereafter referred to herein as “the Promissory
Note.”).
B.
It
is the intention and desire of the Parties at this time to settle upon the terms
and conditions set forth in this Agreement.
AGREEMENT
1. Purpose of this
Agreement.
This
Agreement is entered into in good faith for the purpose of settling completely
any and all claims each of the Parties has against the other
Party. Neither this Agreement nor any of its terms is admissible in
any proceeding between the Parties, except in a proceeding to interpret or
enforce its terms. It is the intention of the Parties that this
Agreement shall be effective as a full and final accord and satisfaction of any
and all claims and disputes between the Parties.
2.
Payment and Other
Consideration.
A.
PRIMAL SOLUTIONS shall pay and deliver to TOWER 17 in immediately available
funds in the form of either a certified check or wire transfer the sum of
$200,000.00 (the “Settlement Amount”),
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within
thirty (30) days of the date on which the last Party to execute this Agreement
signs the Agreement and provides a fully-executed original signature page to the
other Party.
B.
The above payment by PRIMAL SOLUTIONS shall be accepted by TOWER 17
in full settlement, resolution and discharge of all obligations pursuant to the
Promissory Note and any and all other obligations of any kind whatsoever
owed by PRIMAL SOLUTIONS to TOWER 17 or its predecessor in
interest.
C.
TOWER 17’s releases as more particularly set forth below, are expressly
conditioned on actual receipt of the Settlement Amount and such clearance, honor
and transfer of such funds into the account or accounts of TOWER
17. Should PRIMAL SOLUTIONS fail to make payment as required under
this Agreement, the entire balance due pursuant to the Promissory Note of
$337,430.11, as of April 30, 2007, along with additional interest accruing from
April 30, 2007 and reasonable attorney’s fees, are due and TOWER 17’s compromise
of the amount due is of no force and effect. Once payment of the
Settlement Amount has been received, cleared, honored and transferred into the
account or accounts of TOWER 17, TOWER 17 shall promptly return the original
Promissory Note to PRIMAL SOLUTIONS for cancellation.
3. Mutual Release of All
Claims.
Effective
upon execution of this Agreement and payment as required hereunder, each Party
and their respective predecessors, successors, assigns, attorneys and other
representatives hereby release and forever discharge the other Party and each of
its respective partners, members, agents, parents, subsidiaries,
representatives, officers, directors, shareholders, employees, attorneys,
affiliates, predecessors, successors, and assigns, and each of them, from any
and all claims, debts, suits, liabilities, demands, actions, and causes of
action of whatsoever kind and nature (upon any legal or equitable theory,
whether contractual, in tort, common law, statutory or otherwise), whether known
or unknown, respecting anything whatsoever done or omitted on or prior to the
date of this instrument, based on, arising out of, or in connection with (a) the
Promissory Note and (b) any and all other contracts, agreements, arrangements,
or obligations between the Parties (including each of their respective
predecessors, successors, and assigns).
The
foregoing releases extend to all rights of each releasor under Section 1542 of
the California Civil Code and any similar law of any state or territory of the
Untied States, which are hereby expressly waived by each Party.
Each
Party further waives and relinquishes all rights and benefits afforded by
Section 1542 of the Civil Code of the State of
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California. Each
Party understands that the facts in respect of which the releases made in this
Agreement is given may hereafter turn out to be other than or different from the
facts in that connection now known or believed by it to be true; and each Party
hereby accepts and assumes the risk of the facts turning out to be different and
agrees that this Agreement shall be and remain in all respects effective and not
subject to termination or rescission by virtue of any such difference in
facts. Section 1542 of the Civil Code of the Stare of California
reads as follows:
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“A general release
does not extend to claims which the creditor does not know or suspect to
exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement
with the debtor.”
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The Parties hereby acknowledge and agree that nothing contained in this
section shall release or discharge them from the rights, duties and obligations
assumed under this Agreement.
4.
No Prior Assignment
of Claims.
Each Party
represents that there is no assignment, transfer, or purported assignment or
transfer of any claim or right as against another Party or to any other person
or entity not a party hereto, except as indicated herein that TOWER 17 is the
successor in interest to Xxxxxxx Properties L.P., a California limited
partnership, which was the original payee of the Promissory Note, and that each
Party is fully entitled to compromise and settle the same.
5. California Law.
All questions with respect to the construction of this
Agreement, and the rights and liabilities of the Parties, shall be governed by
the laws of the State of California. Any suit to interpret or enforce
the terms of the Agreement shall be brought only in the County of Los Angeles,
State of California and the Parties consent to exclusive jurisdiction and venue
in said County.
6. Interpretation.
All Parties
acknowledge that they have had the opportunity to be represented by counsel of
their own choice in connection with the negotiation, preparation and execution
of this Agreement. It is further agreed that in any interpretation of
the language hereof no interpretation shall be made against or for any Party
simply on the basis of who drafted or created the language in question.
7. Covenant Not to Xxx.
All Parties
agree that they will forever refrain and forebear from commencing, instituting
or prosecuting any lawsuit, action or other proceeding against each other Party,
based on , arising out of, or in connection with any claim, debt, liability,
demand, obligation, cost, expense, action or cause of action that is released
and discharged by reason of this Agreement.
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8. Attorney's Fees.
In
the event suit is instituted to enforce the terms of this Agreement, the
prevailing Party therein shall be entitled to an award of reasonable attorney’s
fees and costs against the non-prevailing Party. Each Party shall
bear its own attorney’s fees and costs incurred in connection with the
settlement embodied in this Agreement.
9.
Entire
Agreement.
This
Agreement contains the entire agreement and understanding concerning the subject
matter hereof between the Parties, and supersedes and replaces all prior
negotiations, proposed agreements and agreements, written or
oral. Each of the Parties acknowledges that no other Party nor any
agent or attorney of any such Party has made any promise , express or implied,
not contained in this Agreement, to induce execution of this
Agreement. Each of the Parties further acknowledges that it is not
executing this instrument in reliance or any promise, representation or warranty
not contained in the document.
10. Authority.
Each
Party executing this Agreement represents and warrants that it has the full and
absolute authority and power to do so and each other Party may rely upon such
representation and warranty in executing this Agreement.
11. Successors.
The
terms of this Agreement shall be binding upon and inure to the benefit of the
respective predecessors, successors and assigns of the Parties.
12. Severability; Headings.
If
any provision or term of this Agreement is determined by a court of competent
jurisdiction to be illegal or unenforceable for any reason, such determination
shall not affect the validity of the remaining provisions or
terms. The headings within this Agreement are for the purpose of
reference only and shall not limit or otherwise be used to construe or interpret
any of the terms of this Agreement.
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13. Counterparts.
This
Agreement may be executed in counterparts and shall become effective when such
counterparts or facsimile copies thereof have been exchanged between the
Parties.
14. Modification.
This
Agreement may not be modified, amended or terminated except pursuant to a
written instrument duly executed and acknowledged by the Parties, or their
successors in interest.
15. Voluntary and Knowing
Agreement.
By
their authorized signatures below, the Parties certify that they have carefully
read and fully considered the terms of this Agreement, that they have had an
opportunity to discuss these terms with attorneys or advisors of their own
choosing, that they agree to all of the terms of this Agreement, that they
intend to be bound by them and to fulfill the promises set forth herein, and
that they voluntarily and knowingly enter into this Agreement with full
understanding of its binding legal consequences.
WHEREFORE,
the Parties have executed this Settlement Agreement with Mutual Releases.
CAUTION: PLEASE
READ THIS ENTIRE AGREEMENT BEFORE SIGNING. BY EXECUTING THIS
AGREEMENT, EACH PARTY ACKNOWLEDGES THAT IT OR ITS AUTHORIZED SIGNATORY HAS READ
THIS AGREEMENT IN ITS ENTIRETY, UNDERSTANDS IT, AND IS VOLUNTARILY ENTEREING
INTO IT WITH THE INTENTION OF RELINQUISHING ALL CLAIMS AND RIGHTS, KNOWN AND
UNKNOWN, OTHER THAN THOSE SPECIFICALLY SET FORTH IN THIS AGREEMENT.
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DATED: February
6, 2008
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PRIMAL SOLUTIONS, INC., | ||
| a Delaware corporation | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | ||
| Xxxxxx X. Xxxxxxx, Chief Executive Officer | |||
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DATED: February
__, 2008
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CA-TOWER
17 LIMITED PARTNERSHIP,
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| a Delaware limited partnership | |||
| By: | /s/ Xxxxxxx Xxxxx | ||
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Xxxxxxx
Xxxxx, Vice President
Equity
Office Management, LLC, as
Authorized
Representative of CA-TOWER 17
LIMITED
PARTNERSHIP
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EXHIBIT A
PROMISSORY
NOTE
| $200,000.00 |
June 15,
2001
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FOR
VALUED RECEIVED, the undersigned Primal Solutions, Inc., a Delaware corporation
("Maker") promises to pay to Xxxxxxx Properties, L.P., a California limited
partnership or order ("Payee") on April 30, 2007 ("Maturity Date"), the
principal
sum of Two Hundred Thousand Dollars and no/100, together with interest
at the
rate of 9% per year, compounded monthly, for a total amount of $337,430.11
due and payable at maturity, and representing $200,000.00 in principal
and $137,430.11 in interest.
Acceleration
Payee may
accelerate the due date of this Note and demand immediate payment whenever
Payee believes in good faith that the prospect of payment is material
impaired.
Attorney's
Fees
Maker
agree that if any legal action is necessary to enforce or collect this Note
for nonpayment at maturity, the prevailing party will be entitled to
reasonable
attorneys' fees in addition to any relief to which that party may be
entitled.
Waiver
Maker
waives trial by jury in any litigation arising out of or relating to
this Note
in which Payee or a holder of this Note is an adverse party and further
waives the right to interpose any defense, set-off, or counterclaim of
any
nature or description, which rights are expressly waived except as provided
by
law.
Governing
Law
This Note
will be governed by the laws of the State of California, including
the Uniform Commercial Code in force in the State of California.
Prepayment
This Note
may be prepaid by the Maker at any time, in whole or in part, and without
premium or penalty or notice. All such payments shall be applied first
to
accrued but unpaid interest and the remainder to principal.
Upon
payment in full of all principal and interest payable under this Note,
this Note
shall be surrendered to the Maker for cancellation.
"MAKER"
Primal
Solutions, Inc.
| By: | /s/ Xxxxxxx Xxxxxx | |
| Xxxxxxx Xxxxxx | ||
| Title: | Chief Executive Officer | |
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Xxx Xxxxxxx | ||
| Title: | Chief Financial Officer |
