Exhibit 10.2
MUTUAL GENERAL RELEASE
This Mutual General Release (the "Release") is entered into this 9th
day of September, 2005, by and between Sizeler Property Investors, Inc., a
Maryland corporation, ("Sizeler" or the "Company") and First Union Real Estate
Equity and Mortgage Investments, an Ohio business trust, ("Proponent"). Sizeler
and Proponent are referred to together herein as the "Parties."
WHEREAS, the Parties have entered into an agreement (the
"Agreement") of even date, to which this Release is Exhibit D;
WHEREAS, pursuant to the Agreement, the Parties have agreed to
execute this Release;
WHEREAS, Sizeler and Proponent are parties to the action pending in
the United States District Court for the District of Maryland styled, Sizeler
Property Investors, Inc., J. Xxxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx,
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx, Xx., Xxxxx XxXxxxxxx, Xxxxxxx Xxxxxxxxxx,
Xxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxx v. First Union Real Estate Equity &
Mortgage Investments, Civil Action No. 1:05-cv-718-RDB (the "Litigation"), all
claims and counterclaims of which Litigation shall be dismissed pursuant to the
Agreement;
NOW, THEREFORE, in consideration for the covenants and other
agreements contained herein and in the Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which the Parties hereby
acknowledge, the Parties hereby agree as follows:
1. General Release of Proponent. Sizeler, on its behalf and on
behalf of any and all of its current or former affiliated entities, benefit
plans, departments, stockholders, officers, directors, employees,
representatives, agents, attorneys, successors, and assigns (collectively, the
"Sizeler Releasors"), in reliance on the covenants and agreements of Proponent
set forth in this Release and the Agreement, hereby releases and forever
discharges Proponent and any and all of its current or former affiliated
entities, benefit plans, departments, stockholders, officers, directors,
employees, representatives, agents, attorneys, successors, and assigns
(collectively, the "Proponent Released Parties"), to the fullest extent allowed
by law, from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts and expenses (including attorneys' fees
and costs incurred), of any nature whatsoever, whether known or unknown,
suspected or unsuspected, which the Sizeler Releasors, individually or
collectively, now have, own, or hold, or claim to have, own, or hold, and which
the Sizeler Releasors, individually or collectively, at any time ever had,
owned, or held, or claimed to have had, owned, or held, against any one or more
of the Proponent Released Parties for any reason whatsoever relating in any way
to either Sizeler or Proponent, in law or in equity, under federal, State or
local law, regulation, code, or other standard, including, without limitation,
any and all claims arising from, relating to, or that were or could have been
asserted in the Litigation or any other proceeding, hearing, action or forum of
any nature (all such released matters being the "Sizeler Released Claims");
provided that the Sizeler Releasors shall not waive any rights to enforce the
obligations under this Release or the Agreement. Sizeler warrants that this is a
general release and that it, and, to its knowledge, each of the other Sizeler
Releasors, has not assigned or transferred any of the Sizeler Released Claims.
2. Sizeler's Covenant Not to Bring Claims, or Cause Claims to Be
Brought. Without limiting the generality of the general release contained in
Section 1 of this Release, the Sizeler Releasors further agree not to xxx or
otherwise institute or cause to be instituted or furthered, or solicit,
encourage, assist, or cause any other individual or entity to xxx or otherwise
institute, further, or cause to be instituted or furthered, except as required
by order or legal process of court or any agency of the federal, State, or local
government, the prosecution of any Sizeler Released Claims in any proceeding,
hearing, action or forum of any nature. Notwithstanding anything to the contrary
in another section of this Release, and consistent with their obligations set
forth in this Section 2, Sizeler Releasors may obtain the economic benefit, if
any, as passive members of a class or derivative action, with respect to any
claims as to any actions, omissions, or events not currently either (i) known to
Sizeler, or (ii) publicly disclosed.
3. General Release of Sizeler. Proponent, on its behalf and on
behalf of any and all of its current or former affiliated entities, benefit
plans, departments, stockholders, officers, directors, employees,
representatives, agents, attorneys, successors, and assigns (collectively, the
"Proponent Releasors"), in reliance on the covenants and agreements of Sizeler
set forth in this Release and the Agreement, hereby releases and forever
discharges Sizeler and any and all of its current or former affiliated entities,
benefit plans, departments, stockholders, officers, directors, employees,
representatives, agents, attorneys, successors, and assigns (collectively, the
"Sizeler Released Parties"), to the fullest extent allowed by law, from any and
all charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs
incurred), of any nature whatsoever, whether known or unknown, suspected or
unsuspected, which the Proponent Releasors, individually or collectively, now
have, own, or hold, or claim to have, own, or hold, and which the Proponent
Releasors, individually or collectively, at any time ever had, owned, or held,
or claimed to have had, owned, or held, against any one or more of the Sizeler
Released Parties for any reason whatsoever relating in any way to either Sizeler
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or Proponent, in law or in equity, under federal, State or local law,
regulation, code, or other standard, including, without limitation, any and all
claims arising from, relating to, or that were or could have been asserted in
the Litigation or any other proceeding, hearing, action or forum of any nature
(all such released matters being the "Proponent Released Claims"); provided that
the Proponent Releasors shall not waive any rights to enforce the obligations
under this Release or the Agreement. Proponent warrants that this is a general
release and that it, and, to its knowledge, each of the other Proponent
Releasors, has not assigned or transferred any of the Proponent Released Claims.
4. Proponent 's Covenant Not to Bring Claims, or Cause Claims to Be
Brought. Without limiting the generality of the general release contained in
Section 3 of this Release, the Proponent Releasors further agree not to xxx or
otherwise institute or cause to be instituted or furthered, or solicit,
encourage, assist, or cause any other individual or entity to xxx or otherwise
institute, further, or cause to be instituted or furthered, except as required
by order or legal process of court or any agency of the federal, State, or local
government, the prosecution of any Proponent Released Claims in any proceeding,
hearing, action or forum of any nature. Notwithstanding anything to the contrary
in another section of this Release, and consistent with their obligations set
forth in this Section 4, Proponent Releasors may obtain the economic benefit, if
any, as passive members of a class or derivative action, with respect to any
claims as to any actions, omissions, or events not currently either (i) known to
Proponent, or (ii) publicly disclosed.
5. General.
(a) The Company represents that the individual set forth below
as signatory to this Release for the Company has the authority to execute this
Release on behalf of the Company and to bind the Company to the terms hereof.
The individuals set forth below as signatories to this Agreement for each party
have the authority to execute this Agreement on behalf of such party and to bind
such party to the terms hereof.
(b) This Release shall be governed by the laws of the State of
Maryland, without regard to the conflicts of law provisions thereof. Any
complaint, claim, suit, or cause of action arising out of this Release shall be
brought exclusively in the United States District Court for the District of
Maryland, Northern Division or in the Circuit Court for Baltimore City,
Maryland, and the Parties hereby expressly submit to the jurisdiction of such
court for such purposes.
(c) This Release may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one instrument.
(d) The terms and conditions of this Release shall inure to
the benefit of and be binding upon the respective successors and assigns of the
Parties. Nothing in this Release, express or implied, is intended to confer upon
any Party other than the Parties or their respective successors and assigns any
rights, remedies, obligations or liabilities under or by reason of this Release,
except as expressly provided in this Release.
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(e) If one or more provisions of this Release are held by a
court of competent jurisdiction to be unenforceable under applicable law, the
court shall modify the unenforceable term(s) to the least extent necessary to
render the term(s) enforceable. In the event the court is unable to so modify
the unenforceable term(s), the Parties agree to renegotiate such provision(s) in
good faith so as to become enforceable while hewing as closely as possible to
the original intent. In the event that the Parties cannot reach a mutually
agreeable and enforceable replacement for such provision(s), then (i) such
provision shall be excluded from this Release, (ii) the balance of this Release
shall be interpreted as if such provision were so excluded and (iii) the balance
of this Release shall remain enforceable in accordance with its terms.
(f) Because any breach or threatened breach of this Release by
either Party would result in continuing material and irreparable harm to the
other Party, and because it would be impossible to establish the full monetary
value of such damage, either Party shall be entitled to injunctive relief in its
discretion, in the event of a breach or threatened breach of this Release by the
other Party or any member thereof. Injunctive relief shall be in addition to any
other remedy that may be available to either Party.
(g) This Release constitutes the entire agreement between the
Parties pertaining to the subject matter hereof, and any and all other written
or oral agreements existing between the Parties with respect to the subject
matter hereof are expressly canceled.
[Signature page follows]
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IN WITNESS WHEREOF, the Parties have caused this Release to be
executed and delivered by themselves or their duly authorized officer or
attorney-in-fact as of the date first set forth above.
SIZELER PROPERTY INVESTORS, INC.
Print Name:
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Title:
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FIRST UNION REAL ESTATE EQUITY
AND MORTGAGE INVESTMENTS
Print Name:
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Title:
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