Exhibit 10.1
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SETTLEMENT AGREEMENT AND TERMINATION OF LEASE
THIS SETTLEMENT AGREEMENT AND TERMINATION OF LEASE (the "Agreement") is
made and entered into effective this 6th day of June, 2008 (the "Effective
Date") by and between Ardmore, LLC, a Kentucky limited liability company
("Landlord") and 1st Independence Bank, Inc., a Kentucky banking corporation
("Tenant").
RECITALS
A. Landlord and Tenant have entered into that certain ground lease
dated May 18, 2006 (the "Ground Lease") for certain leased premises at the
southeast corner of Xxxxxx Xxxxx Road and Outer Loop in Jefferson County,
Kentucky (the "Leased Premises")
B. The parties are dispute as to whether the Ground Lease was properly
terminated by Tenant and the parties desire to compromise each other's claims
and to enter into a full and complete release of all matters and liabilities
arising under the Ground Lease.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
considerations set forth below, the receipt and sufficiency of which is
acknowledged, Landlord and Tenant hereby agree as follows:
1. Consideration to Landlord. Tenant has paid to Landlord the sum of
$325,000, as payment in full, and in full compromise and settlement, of all
amounts due by Tenant under the Ground Lease. In addition, Landlord shall
further retain the $10,000 security deposit made by Tenant under Article 19 of
the Ground Lease.
2. Termination of Lease. The parties hereby terminate the Ground Lease
which shall be null and void and of no further force and effect.
3. Releases.
a. The Tenant's Release of Landlord. For and in consideration of the
mutual promises and covenants set forth herein, the receipt and sufficiency of
which is hereby acknowledged, the Tenant (for itself and its successors and
assigns) hereby unconditionally RELEASES AND FOREVER DISCHARGES Landlord and its
predecessors, successors, subsidiaries and affiliates (and their current or
former officers, directors, members, employees, agents, partners, principals,
managers, insurers, successors and assigns), from any and all claims (including,
but not limited to, claims for attorneys' fees), demands, losses, damages,
agreements, actions, liens, promises or causes of action (known or unknown)
which the Tenant now has or may later discover or which may hereafter exist
against them, or any of them, in connection with or arising directly or
indirectly out of or in any way related to the Ground Lease, and whether
pursuant to contract, common law, statute, ordinance, regulation or otherwise.
b. Landlord's Release of the Tenant. For and in consideration of the
mutual covenants set forth herein and conditioned upon the payment by the Tenant
to Landlord of the amounts set forth in Paragraph 1 above, Landlord (for itself
and its successors and assigns) hereby RELEASES AND FOREVER DISCHARGES the
Tenant and its predecessors, successors, subsidiaries and affiliates (and their
current or former officers, directors, members, employees, agents, partners,
principals, managers, insurers, successors and assigns) from any and all claims
(including, but not limited to, claims for attorneys' fees), demands, losses,
damages, agreements, actions, liens, promises or causes of action (known or
unknown) which Landlord now has or may later discover or which may hereafter
exist against them, or any of them, in connection with or arising directly or
indirectly out of or in any way related to the Ground Lease, and whether
pursuant to contract, common law, statute, ordinance, regulation or otherwise.
4. No Admission. Landlord and the Tenant agree that this Agreement
shall not operate as an admission of liability on the part of any party.
5. Cooperation. The parties agree that after the execution of this
Agreement they will, without further consideration, execute, acknowledge and
deliver in proper form any further instruments, forms, or other documents, and
take such other action as the other party to this Agreement may reasonably
require, in order effectively to carry-out the intent of this Agreement.
6. Severability. The parties stipulate and agree that all clauses and
provisions of this Agreement are distinct and severable, and it is their intent
that in the event this Agreement is ever held to be invalid or unenforceable (in
whole or in part) as to any particular type of claim or charge or as to any
particular circumstances, it shall remain fully valid and enforceable as to all
other claims, charges, and circumstances.
7. Successors in Interest Bound. This Agreement shall inure to the
benefit of, may be enforced by, and shall be binding on, the parties and their
heirs, executors, administrators, personal representatives, trustees, receivers,
corporate affiliates, partnership affiliates, assigns and successors in
interest.
8. Power and Authority to Execute Agreement. The parties each
respectively warrant that (a) each has full power and authority to enter into
this Agreement, (b) where required, the execution, delivery and performance of
this Agreement have been duly authorized by its governing body, whether a board
of directors, partnership, individual, or some other entity, and (c) any
individual signing this Agreement on behalf of a business entity or corporate
party is authorized to sign the Agreement on its behalf and as its agent. Each
party represents and warrants that they have not assigned, transferred, conveyed
or encumbered their interest in the Ground Lease, and has full right and
authority to enter into the Settlement Agreement and the termination of the
Ground Lease thereunder.
9. Advice of Counsel. The parties each respectively agree: that each
has obtained the advice of legal counsel prior to the execution of this
Agreement; that each has read this Agreement carefully; that each has been
advised of its meaning and consequences by its respective counsel; that each
fully understands each and every provision of this Agreement; that each
understands that in signing this Agreement, that party is giving up possible
future equitable and/or legal claims; and that each signs this Agreement of its
own free will.
10. Confidentiality; Non-Disparagement. Landlord and Tenant may
disclose to individuals, businesses and government agencies the termination of
the Ground Lease by mutual agreement, as of the Effective Date. Landlord and
Tenant agree not to discuss the specific circumstances surrounding this
Agreement with any third party other than legal counsel, except that (a) the
parties may discuss and disclose such terms and/or circumstances with lenders,
insurers, fidelity bond carriers and other third parties who have a relationship
with the party, (b) the parties may discuss and disclose such terms and
circumstances in connection with any legal or equitable action or proceeding in
any state or federal court or before any governmental agency, and (c) any
information which becomes known to the public through the exceptions permitted
herein, authorized publication or otherwise through no breach of this Agreement
by the disclosing party. Notwithstanding the foregoing, Tenant is expressly
permitted to make such disclosures regarding this Agreement as it or its counsel
determine necessary in order to comply with Tenant's disclosure obligations
under the Federal securities laws and regulations, and the rules of the NASDAQ
Stock Market. The Landlord and Tenant agree to refrain from any defamation,
libel or slander of each other, and any tortious interference with contracts or
relationships.
11. Consideration Represents Reasonably Equivalent Value. The parties
hereby acknowledge and agree that the consideration set forth herein represents
fair consideration and reasonably equivalent value for the transactions,
covenants and agreement herein set forth, which consideration was agreed upon as
the result of arm's length, good-faith negotiations between the parties and
their respective representatives.
12. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts by means of original and/or facsimile signatures, each of
which counterparts shall be deemed an original, but all of which together shall
constitute one and the same instrument.
13. Non-waiver; Cumulative Remedies. Any delay or failure on the part
of either of the parties to this Agreement to insist upon performance of any of
the provisions of this Agreement or to pursue any of their respective rights or
remedies hereunder shall not be construed as a waiver of any such provision or
the relinquishment of any such rights or remedies. The parties' rights and
remedies provided hereunder are cumulative and may be exercised singly or
concurrently, and are not exclusive of any rights and remedies provided by law.
In the event of any litigation with regard to this Agreement, the prevailing
party or parties shall be entitled to receive from the non-prevailing party or
parties, and the non-prevailing party or parties immediately shall pay, all
reasonable attorneys' fees, court costs and related expenses incurred by the
prevailing party or parties.
14. Amendments; Headings; Interpretation; Governing Law; Entire
Agreement. The parties agree and acknowledge that this Agreement, including the
Recitals set forth herein, contains the entire agreement of the parties; that it
supersedes all previous negotiations, whether written or oral; and that the
terms of this Agreement are contractual and not a mere recital. In executing and
delivering this Agreement, the parties warrant that each has relied upon its own
judgment and that of its counsel, and that each has in no way relied upon or
been induced by any representation, statement or act by the other party or its
representatives, except as contained or referred to herein. This Agreement may
not be modified or amended in any respect except by a written instrument
executed by all the parties or their respective attorneys. The parties agree
that there shall be no presumption that this Agreement should be construed
against any of the parties merely because of the involvement of either party in
its drafting. The parties agree that the headings used in the various paragraphs
and sections of this Agreement are inserted for convenience only and shall not
constitute a part of this Agreement. This Agreement shall be deemed to have been
entered into and shall be construed and enforced in accordance with the laws of
the State of Kentucky.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the Effective Date set forth above.
LANDLORD:
ARDMORE, LLC, a Kentucky limited
liability company
By: /s/ X.X. Xxxxx, Xx.
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Name: X.X. Xxxxx, Xx.
Title: Manager
TENANT:
1ST INDEPENDENCE BANK, INC., a
Kentucky banking corporation
By: /s/ N. Xxxxxxx Xxxxx
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Name: N. Xxxxxxx Xxxxx
Title: President and Chief Executive Officer