SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE ("Agreement"), is entered into by
and among Business Centers, LLC ("Business Centers") Halo Distribution, LLC,
("Halo") and EYI Industries, Inc.("EYI") (collectively "Defendants").
Recitals:
A. On February 2, 1999, Business Centers entered into a lease agreement with
Halo for certain premises consisting of 33,750 square feet of office and
warehouse space located at 0000 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the
"Lease"). The Lease was extended for an additional 3 year term by a letter
agreement dated January 15, 2004.
B. EYI is the parent company of Halo.
C. On or about May 2, 2005, Business Centers provided notice to Halo that the
Lease had been breached, and thus was being terminated, because Halo had failed
to pay required rents and vacated the premises.
D. On June 29, 2005, Business Centers filed a Statement of Lien for Rent
pursuant to KRS 383.070 against Halo. The Statement of Lien for Rent is of
record at Miscellaneous Lien Book 131, Page 520, in the office of the Jefferson
County Clerk. The lien for rent secured Business Centers for rentals up to and
including $46,875.00 (the "Liened Amount").
E. On November 15, 2005, Business Centers filed its Complaint against Defendants
before the Jefferson Circuit Court, Division 5, in Action No.05-CI-09818 seeking
judgment, both jointly and severally, against Defendants, for the Liened Amount
as well as for contract damages in an amount within the Court's jurisdiction
(the Civil Action").
F. The parties to this Agreement have reached a settlement of all differences
between them relating to the claims, counterclaims and cross claims that were,
or could have been, asserted by or against Business Centers, on the one hand,
and the Defendants, on the other hand, relating to the Lease. The parties desire
to enter into this written Settlement Agreement and Release documenting the
terms and conditions of the settlement.
AGREEMENT:
NOW, THEREFORE, and in consideration of the recitals and mutual promises
contained herein and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
1. DEFENDANTS' TRANSFER OF EQUIPMENT AND PERSONAL PROPERTY. Without any
admission of liability, the Defendants will transfer and quit claim, by Xxxx of
Sale in appropriate form, to Business Centers, "as-is" and without warranty, the
total of the equipment and personal property shown on Exhibit A hereto (the
"Property"). The Property being transferred is stipulated to have a value in the
Liened Amount of $46,875.00.
2. THE DEFENDANTS' RELEASE OF BUSINESS CENTERS. Upon execution of this
Agreement, the Defendants do hereby for themselves and their past, present and
future officers, directors, employees, agents, representatives, affiliates,
successors and assigns, and for all other persons and entities claiming through
the Defendants, or on their behalf, fully and forever release, acquit, and
discharge Business Centers and Business Centers' past, present and future
officers, directors, shareholders, principals, members, employees, agents,
attorneys, representatives, insurers, reinsurers, and all other persons or
entities affiliated in any manner with Business Centers, including parent and
subsidiary organizations, and all other persons or entities acting or purporting
to act on behalf of the preceding, from any and all claims, demands, damages,
compensation, payments, expenses, causes of action, obligations, setoffs,
accounts, proceedings, actions, rights, bonds, specialties, losses,
controversies, defenses, counterclaims, suits, contracts, agreements, covenants,
promises, debts, loans, mortgages, sums of money, reckonings, bills, executions,
judgments, findings, attorneys' fees, costs, expenses, claims for refunds, and
other liabilities of any kind whatsoever, whether in law or in equity, known or
unknown, accrued or unaccrued, mature or unmature, contingent or otherwise,
which the Defendants now have, ever had or which their assigns may have, by
reason of or arising from or connected in any manner with the Lease or the Civil
Action.
3. BUSINESS CENTERS'S RELEASE OF OF DEFENDANTS. Upon execution of this
Agreement, Business Centers does hereby for itself and its past, present and
future officers, directors, shareholders, principals, members, employees,
agents, representatives, affiliates, successors and assigns, and for all other
persons and entities claiming through Business Centers or on its behalf, fully
and forever release, acquit, and discharge Defendants, and their past and
present employees, agents, attorneys, representatives, insurers, reinsurers, and
all other persons or entities affiliated in any manner with Defendants,
including parent and subsidiary organizations, and all other persons or entities
acting or purporting to act on behalf of the preceding, from any and all claims,
demands, damages, compensation, payments, expenses, causes of action,
obligations, setoffs, accounts, proceedings, actions, rights, bonds,
specialties, losses, controversies, defenses, counterclaims, suits, contracts,
agreements, covenants, promises, debts, loans, mortgages, sums of money,
reckonings, bills, executions, judgments, findings, attorneys' fees, costs,
expenses, claims for refunds, and other liabilities of any kind whatsoever,
whether in law or in equity, known or unknown, accrued or unaccrued, mature or
unmature, contingent or otherwise, which Business Centers now has, ever had or
which its assigns may have, by reason of or arising from or connected in any
manner with the Lease or the Civil Action.
4. DISMISSAL. Within three business days of all Parties' execution of this
Settlement Agreement and Release, the Parties shall cause to be filed with the
Court an Agreed Order of Dismissal Settled dismissing with prejudice in the
Civil Action all of Business Centers's claims against the Defendants. Court
costs, attorneys' fees, and any other fees, expenses and costs are to be paid by
the Party incurring them.
5. ACKNOWLEDGMENT. The Parties acknowledge that this Agreement is entered into
as a
settlement and compromise of disputed claims and is not to be construed in any
manner as an admission of any wrongdoing or liability on the part of any Party.
The Parties further acknowledge that this Agreement has been negotiated and
prepared by the joint efforts of the Parties and the respective attorneys for
the Parties, and for all purposes this Agreement shall be deemed to have been
drafted jointly by each of the Parties.
6. AUTHORITY. The Parties warrant and represent that they have the power and the
authority to enter into this Agreement and that this Agreement, and all
documents delivered pursuant to this Agreement, are valid, binding and
enforceable upon them. The Parties also warrant and represent that no further
consent, approval, authorization, and no notice to, or filing with any court,
governmental authority, person or entity is required for the execution, delivery
and performance of this Agreement. The Parties further warrant and represent
that they are the sole and lawful owners of the claim or claims asserted or
released in this Agreement and that no part of the claim or claims asserted or
released in this Agreement have been assigned or transferred to any other person
or entity.
7. BINDING EFFECT. The Parties acknowledge, represent, warrant and confirm that
they have carefully read and fully understand all of the provisions of this
Agreement, that they have thoroughly discussed this Agreement and its effect
with their respective legal counsel, that no representations or warranties have
been made other than those set forth explicitly in this Agreement, and that they
sign this Agreement as their own free act. This Agreement shall be binding upon
each of the Parties and any and all other persons or entities affiliated with
the Parties, and any and all other persons or entities that could assert any
interest or claim related to the matters described in this Agreement. This
Agreement shall be binding upon and inure to the benefit of all such persons or
entities and its respective successors, assigns, employees and representatives,
as the case may be.
8. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement between the
Parties hereto and fully supercedes any and all prior agreements or
understandings between the Parties pertaining to the subject matter hereof. All
prior and contemporaneous conversations, negotiations, possible and alleged
agreements, representations, covenants and warranties concerning the subject
matter hereof are merged herein. No change, termination, or attempted waiver of
any provision of this Agreement shall be binding unless it is in writing and
signed by each of the undersigned Parties.
9. SEVERANCE CLAUSE. Should any provision of this Agreement be declared or
determined to be void, unenforceable, illegal or invalid, the validity of the
remaining parts, terms, and provisions shall not be affected thereby and said
void, unenforceable, illegal or invalid part, term or provision shall be deemed
not to be a part of this Agreement.
10. HEADINGS. The headings in this Agreement have been included for ease of
reference only and shall not be considered in the construction or interpretation
of this Agreement.
11. COUNTERPARTS. This Agreement may be executed by the Parties in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or the terms of this Agreement to
produce or account for more than one such counterpart.
12. GOVERNING LAW. This Agreement shall be governed, interpreted, and enforced
in accordance with the laws of the Commonwealth of Kentucky.
Dated: Effective December 21, 2005.
In Witness Whereof, the Parties have entered into this Agreement as of the date
written above.
/s/ signed
Business Centers, LLC
/s/ signed
Halo Distribution, LLC
/s/ signed
EYI Industries, Inc.
