IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA
Exhibit
10.1
IN
THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY,
FLORIDA
XXXXXX
OFFICES, L.L.C., a Florida
limited
liability company,
Plaintiff,
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vs.
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Case
Number 2008 CA 002375 NC
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XXXXXXXXXX
HOLDING CORPORATION,
a
Delaware corporation,
Defendant.
__________________________________________/
THIS SETTLEMENT AGREEMENT AND MUTUAL
RELEASE (“Agreement”) is made and entered into between XXXXXX OFFICES, LLC, a
Florida limited liability company (“Xxxxxx”) and XXXXXXXXXX HOLDING CORPORATION,
a Delaware Corporation (“Xxxxxxxxxx”). Xxxxxx and Xxxxxxxxxx
are hereinafter collectively referred to as the “parties”. This
Settlement Agreement shall become effective as of the 2nd day of
July, 2008 (the “Effective Date”).
RECITALS
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A.
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This
litigation arises under an Office Lease Agreement dated August 31, 2007
(the “Lease”) under which Xxxxxxxxxx leased from Xxxxxx a unit of
commercial property identified as 0000 Xxxxxxxxxxxx Xxxxxxx Xxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxx 00000 (the
“Premises”).
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1
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B.
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The
Lease provided for an initial term of five years commencing on August 29,
2007. Xxxxxxxxxx failed to make payment under the Lease
as agreed and ultimately vacated the Premises shortly after the filing of
this litigation.
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C.
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The
amount of unpaid rent due to Xxxxxx through the initial term of the Lease
(less payments previously received from Xxxxxxxxxx) equals the sum of
$709,044.82.
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X.
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Xxxxxxxxxx
has defended this action, claiming among other things that Xxxxxx has
failed to mitigate its damages and that the officer who purportedly signed
the Lease on behalf of Xxxxxxxxxx lacked authority to do
so.
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E.
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The
parties desire to settle all disputes and all other claims and issues
related thereto which have been raised or could have been raised in the
pending litigation and to memorialize the terms of their settlement and
release by this agreement with respect to
same.
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NOW,
THEREFORE, in consideration of the mutual covenants of the parties herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties, Xxxxxx and Xxxxxxxxxx,
intending to be legally bound, do hereby agree as follows:
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1.
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Recitals. The
foregoing recitals are true, correct and incorporated herein by this
specific reference and form an integral part of this
Agreement.
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2.
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Initial Payment by
Xxxxxxxxxx. Xxxxxxxxxx shall make an initial
payment to Xxxxxx in the amount of $75,000.00, which sum shall be payable
$15,000.00 on the Effective Date of this Agreement followed by four (4)
equal monthly installments of $15,000.00 each, payable on the 30th,
60th,
90th
and 120th
days after the Effective Date of this Agreement. All
payments shall be made via attorneys’ trust account check, cashier’s check
or wire transfer, shall be made payable to “Xxxxx Xxxxxxx Trust
Account” and shall be delivered to Xxxxxx’x counsel, Xxxxxxx X.
Xxxxxxxx, Esq., Icard, Merrill, Cullis, Timm, Xxxxx & Xxxxxxxx, P.A.,
0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 on or before the
respective due dates, time being of the essence
hereof. In the event that Xxxxxxxxxx shall fail to make
any installment payment due hereunder on or before its due date, Xxxxxx
shall be entitled to an immediate money judgment against Xxxxxxxxxx in the
principal amount of $709,044.82, plus prejudgment interest at the
statutory rate from February 10, 2008 to the date of entry of the Final
Judgment, plus attorneys’ fees and costs incurred by Xxxxxx in the agreed
amount of $5,000.00, less the amount of any installment payments actually
made by Xxxxxxxxxx pursuant to this paragraph. Xxxxxx
shall be entitled to obtain the Final Judgment upon three (3) business
days notice to counsel for Xxxxxxxxxx, during which period Xxxxxxxxxx
shall have an opportunity to cure by the making of the installment payment
plus an additional attorneys’ fee payment in the amount of $1,000.00,
failing which Xxxxxx shall be entitled to obtain Final Judgment ex parte
on the affidavit of its counsel attesting to the failure to make payment
as agreed.
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3.
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Abatement of
Litigation. Upon the making of the full initial
payment in the amount of $75,000.00, this action shall be abated for a
period of two (2) years from the Effective Date of this Agreement, during
which time Xxxxxx shall continue its diligent efforts to lease the
Premises. In the event that Xxxxxx shall be successful in
reletting all or a portion of the Premises within the abatement period,
then Xxxxxxxxxx shall be entitled to a credit against any further monies
owed to Xxxxxx in a sum equal to the net amount (after payment of
reasonable expenses of reletting including, without limitation, brokerage
fees, advertising fees and any costs incurred in reconfiguring or building
out portions of the Premises for the new tenant) of payments received by
Xxxxxx from the new tenant(s) of the Premises. The credit to
which Xxxxxxxxxx would be entitled would be equal to the net rental
received during the original five (5) year term of the Lease from any
reletting of the Premises.
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4.
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Entry of Final
Judgment Following Abatement. At the conclusion of
the abatement period, Xxxxxx shall be entitled to a Final Judgment against
Xxxxxxxxxx equal to the lesser of the following
amounts:
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a.
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the
sum of $312,500.00, or
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b.
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the
sum computed by subtracting from the unpaid rental due to Xxxxxx for the
balance of the initial lease term (the sum of $709,044.82), the following
sums:
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i.
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the
initial payment of $75,000.00 made by Xxxxxxxxxx pursuant to paragraph 2
hereof;
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ii.
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the
net rental received or to be received by Xxxxxx (computed as set forth
above) during the balance of the initial lease term under the
Lease.
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At least
30 days prior to the end of the abatement period, Xxxxxx shall provide to
Xxxxxxxxxx, through its counsel, an accounting of all sums received or expected
to be received as net rental for the Premises during the initial term of the
Lease for purposes of making the computation set forth in this
paragraph. Unless Xxxxxxxxxx contests the accounting (in which
case an evidentiary hearing will be held by the Court to determine the amount of
net rental credit to which Xxxxxxxxxx would be entitled), the Court shall enter
a Final Judgment against Xxxxxxxxxx in the amount computed as set forth in this
paragraph. Should an evidentiary hearing be required, the
prevailing party shall be entitled to an award of attorneys’ fees and costs
incurred. In any judgment entered against Xxxxxxxxxx, there shall be a specific
finding that Xxxxxxxxxx is entitled to a dollar for dollar setoff for any
additional net rental amounts received by Xxxxxx, attributable to rental of the
Premises during the initial term of the Lease, if any, over and above the
amounts used to compute the total due at the time of the entry of
judgment.
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5.
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Mutual
Release. As referenced herein, this Agreement and
the payments and/or judgment to be received or obtained by Xxxxxx
hereunder shall constitute the total consideration to be paid
hereunder. In consideration of the foregoing and the
execution of this Agreement by all parties, and except for the obligations
arising under this Agreement, Xxxxxx and Xxxxxxxxxx shall release and
forever discharge each other and their officers, affiliates, employees,
agents, attorneys, and/or contractors, affiliates, personal
representatives, successors, heirs or assigns of and from all manner of
action and actions, cause and causes of action, suits, debts, dues, sums
of money, accounts, reckonings, bonds, bills, specialities, covenants,
contracts, controversies, agreements, promises, variances, trespasses,
damages, judgments, executions, claims and demands whatsoever, in law or
in equity, which either party ever has had, now has or which any personal
representative, successor, heir or assign of the parties hereafter ever
had, now have or hereafter can or may have, for, upon or by reason of any
matter, cause or thing whatsoever, from the beginning of the world to the
Effective Date hereof. This release specifically
includes, but is not limited to all claims, counterclaims, actions and
causes of action which may have been made by the parties in this
litigation.
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6.
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Authorization to Make
Agreement. Each party hereto represents and
warrants to the other party that the execution, delivery and performance
of this Agreement has been: (1) duly authorized by the requisite corporate
actions; and (2) will not violate any provision of law, governmental rule
or regulation, order of court or other governmental agency, its articles
of incorporation, bylaws, or any provision of any indenture, agreement or
other instrument to which it is a party.
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7.
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Amendments,
etc. No amendment, modification, termination or
waiver of any provision of this Agreement or consent to any departure from
the terms hereof, shall in any event be effective unless the same shall be
in writing and signed by the party against whom enforcement of the
amendment, modification, termination or waiver is
sought.
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8.
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Counterparts. This
Agreement may be executed in any number of counterparts, each of which
shall be a duplicate original, but all of which taken together shall
constitute one and the same instrument; any of the parties hereto may
execute this Agreement by signing any such counterpart or
counterparts. Facsimile copies shall be deemed originals
for all purposes, including enforcement.
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9.
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Construction of
Documents. This Agreement shall be deemed to have
been prepared and negotiated through the efforts of both parties;
consequently, this Agreement shall not be construed more strictly against
any party than against the other party.
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10.
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No Third Party
Beneficiaries. There are no third party
beneficiaries of this Agreement. Except as expressly
provided herein, the parties intend that this Agreement is solely for
their benefit and no person not a party hereto, shall have any rights or
privileges whatsoever under this Agreement.
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11.
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Complete
Agreement. This Agreement, including any exhibits
hereto, embodies the complete, entire agreement between the parties
relating to the subject matter hereof.
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12.
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Severability. If
any provision of this Agreement is held to be invalid or unenforceable,
the remaining provisions shall remain in effect without impairment
provided their enforcement will achieve the purpose for which the parties
entered into this Agreement.
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13.
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Governing
Law. This Agreement shall be construed in all
respects in accordance with, and governed by the laws of the State of
Florida.
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14.
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Attorneys’
Fees. In any action or proceeding to enforce this
Agreement, including any appeal, the prevailing party shall be entitled to
recover its reasonable attorneys’ fees including fees for
paralegals. Except as otherwise provided herein, however,
each party shall bear their own attorneys’ fees and costs incurred prior
to the Effective Date of this Agreement.
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15.
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General
Terms. For the purposes of this Agreement,
if the context so requires, the singular includes the plural and the
plural includes the singular. The terms “herein” and
“hereof” shall refer to this Agreement in its entirety and shall not be
limited in context to the provisions in which such words were
used.
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16.
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Miscellaneous
Provisions. The parties further acknowledge and
represent that:
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a.
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the
provisions of this Agreement shall inure to the benefit of and shall be
binding upon the heirs, executors, administrators, successors and assigns
of each of the parties. Except as otherwise expressly
provided herein, the parties agree that this Agreement shall not and does
not create any rights in any third persons;
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b.
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each
party agrees and acknowledges that he, she or it has not assigned any
existing or possible claims against another party to any person or
entity;
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c.
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the
parties further acknowledge and represent that they have reviewed and
understand this Agreement and that they have entered into this Agreement
freely and voluntarily. Each party has cooperated in the
preparation of this Agreement. Hence, this Settlement
Agreement shall not be construed to any party’s favor or detriment;
and
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d.
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the
parties agree that if any provision of this Agreement or the application
thereof to any party or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby and each provision
of this Agreement other than such invalid or unenforceable provision,
shall be valid and enforceable.
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17.
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Headings. The
headings in this Agreement are intended to be for convenience of reference
only, and shall not define or limit the scope, extent or intent or
otherwise affect the meaning of any portion
hereof.
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IN WITNESS WHEREOF,
the parties have executed this Agreement effective July 2,
2008.
| WITNESSES: | XXXXXX OFFICES, LLC | |
| BY: | ||
| ITS: | ||
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| WITNESSES: | XXXXXXXXXX HOLDING CORPORATION | |
| BY: | ||
| ITS: | ||
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