EXHIBIT 10.1
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release ("AGREEMENT") is
entered into and is effective this 6th day of August, 2002 ("EXECUTION DATE") by
and between IPET Holdings, Inc., a Delaware corporation ("IPET"), and National
Distribution Agency, Inc., a Delaware corporation ("NDA") (collectively, the
"PARTIES").
RECITALS
WHEREAS, IPET and NDA entered into a written agreement entitled
"Industrial Real Estate Sublease" dated July 1, 1999 under which IPET subleased
from NDA certain real property, consisting of a portion of the premises at 00000
Xxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx (the "PREMISES"), and this agreement was
subsequently amended by various riders and a written agreement entitled "First
Amendment to Industrial Real Estate Sublease" (the July 1, 1999 sublease and all
subsequent riders and amendments are collectively referred to as the "IPET
SUBLEASE");
WHEREAS, a dispute has arisen regarding the Parties' respective rights and
responsibilities under the IPET Sublease and the Parties' respective use of the
Premises (the "DISPUTE");
WHEREAS, IPET filed a lawsuit regarding the Dispute in Alameda County
Superior Court against NDA on August 31, 2001 titled IPET Holdings, Inc. v.
National Distribution Agency, Inc. et al., case number 01-022329 (the
"LAWSUIT"); and
WHEREAS, the Parties wish to resolve the Dispute under the terms and
conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and consideration
contained herein, the receipt and adequacy of which is acknowledged, the Parties
agree as follows:
1. TERMINATION OF THE IPET SUBLEASE: The IPET Sublease shall terminate
on July 31, 2002 (the "TERMINATION DATE").
2. PAYMENT FROM IPET TO NDA: Within five days after the Execution Date,
IPET shall pay to NDA by wire or check the sum of Four Hundred Eighty Five
Thousand Dollars ($485,000).
3. COMMON AREA MAINTENANCE COSTS: Within five days after the Execution
Date, IPET shall pay to NDA by wire or check the sum of Three Thousand Eight
Hundred Four Dollars and Nineteen Cents ($3804.19) as full settlement for any
and all outstanding common area maintenance costs under the Agreement.
4. SECURITY DEPOSIT: Within five days after the Execution Date, NDA
shall refund to IPET by wire or check the deposit in the amount of One Hundred
Thousand Two Hundred Sixty Four Dollars ($100,264.00) currently held by NDA
under the IPET Sublease.
5. BROKERS' FEES: IPET agrees to pay any and all fees for the Procuring
and Listing Brokers for the remainder of the sublease.
6. CONTINGENT UPON AGREEMENT WITH SOUTHERN WINE AND SPIRITS:
Notwithstanding any of the other terms and conditions of this Agreement, this
Agreement is contingent upon NDA entering into a sublease of the Premises to
Southern Wine & Spirits of America, Inc. ("Southern Wine"). If NDA does not
enter into a sublease with Southern Wine, this Agreement is void and without
effect.
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7. DISMISSAL: Within ten days after the payments specified in
Paragraphs 2 and 3 are made, and after NDA enters into a sublease agreement with
Southern Wine, IPET will dismiss the Lawsuit with prejudice.
8. MUTUAL RELEASE OF LIABILITY WITH RESPECT TO THE IPET SUBLEASE: Each
of the parties, to the extent of their respective rights and benefits under the
IPET Sublease, covenants to each other that IPET and NDA shall be fully and
unconditionally released and discharged on the Termination Date from their
respective obligations arising from or connected with the provisions of the IPET
Sublease, other than those obligations arising out of, or reiterated in, this
Agreement. This Agreement shall fully and finally settle all demands, charges,
claims, accounts, or causes of action of any nature, including, without
limitation, both known and unknown claims and causes of action that arose out of
or in connection with the IPET Sublease, and it constitutes a mutual release
with respect to the IPET Sublease.
9. MUTUAL RELEASE OF LIABILITY WITH RESPECT TO THE DISPUTE: Each of the
Parties hereby releases the other, and its predecessors, successors, parents,
subsidiaries, individuals, affiliates, directors, officers, agents, attorneys,
heirs, assigns and employees, from any and all claims, liabilities, debts, and
causes of action related to the Dispute, whether any of such claims are known or
unknown, suspected or unsuspected.
10. WAIVER OF CIVIL CODE SECTION 1542: Each of the Parties specifically
waives the benefits of the provisions of California Civil Code section 1542,
which section provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM
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MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
11. REPRESENTATIONS OF THE PARTIES
a. Each of the Parties represents, warrants and covenants that it
has not made any assignment, sublease, transfer, conveyance, or other
disposition of the IPET Sublease, or any claim, demand, obligation, liability,
action, or any cause of action arising from the IPET Sublease.
b. Each person executing this Agreement on behalf of a
corporation or other entity represents, warrants and covenants that he or she
has the right, power, legal capacity, and authority to execute and enter into
this Agreement on behalf of such corporation or other entity and to execute all
other documents and perform all other acts as may be necessary in connection
with the performance of this Agreement, and he or she has obtained any approval
or consent by any person or entity which is necessary in connection with the
execution of this Agreement or the performance of such corporation's or other
entity's obligations under this Agreement.
c. Each of the Parties represents and warrants that it has
consulted with and had the advice and counsel of an attorney of its choosing
concerning the advisability of executing this Agreement and the meaning of
California Civil Code section 1542. Each party acknowledges it has entered into
this Agreement for reasons of its own, without relying upon any representations
or agreements other than those contained in this Agreement. Each party has made
such investigation of the facts pertaining to the Dispute and this Agreement as
it deems necessary.
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d. Either of the Parties may hereafter discover claims or facts
that were unknown or unanticipated at the time this Agreement was executed in
addition to or different from those it now knows or believes to be true with
respect to the matters related herein, which might have affected its decision to
execute this Agreement. Nevertheless, it is the intention of the Parties to
fully, finally and forever settle all claims relating to or arising out of the
Dispute. EACH PARTY EXPRESSLY ASSUMES THE RISK OF SUCH UNKNOWN AND UNANTICIPATED
CLAIMS AND AGREES THAT THIS AGREEMENT APPLIES TO ALL SUCH UNKNOWN AND
UNANTICIPATED CLAIMS.
12. NO ADMISSION OF LIABILITY: Each party has entered into this
Agreement in recognition of the risks of litigating the Lawsuit and in order to
avoid the cost and expense of such litigation. Nothing contained in this
Agreement constitutes an admission of liability or an admission that any of the
facts asserted by any party are true or that any of the claims asserted by any
party regarding the Dispute are well-founded.
13. INTEGRATION: This Agreement constitutes the entire understanding
between the Parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous oral and written agreements and discussions. This
Agreement may be amended only by an agreement in writing signed by the Parties.
14. GOVERNING LAW: This Agreement shall in all respects be interpreted,
enforced and governed under the laws of the State of California. The Parties
agree that any action arising out of, connected with, or relating to the subject
of this Agreement shall be brought in the Superior Court, State of California,
County of Alameda, which court shall have exclusive jurisdiction over any such
action, and each of the parties hereby consents to the personal jurisdiction of,
and waives any objection to venue in such court. Each of the Parties
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has cooperated in the drafting and preparation of this Agreement and therefore
agrees that any law, legal decision or rule of construction of contracts
(including Civil Code Section 1654) resolving ambiguities against the drafting
party shall be inapplicable.
15. SUCCESSORS AND ASSIGNS: This Agreement is binding upon and shall
inure to the benefit of the Parties and their respective agents, employees,
representatives, trusts, trustees, trustors, beneficiaries, officers, directors,
divisions, parents, subsidiaries, affiliates, assigns, heirs, predecessors,
successors-in-interest and shareholders.
16. SEVERABILITY: Should any part of this Agreement be declared or
determined by any court to be illegal or invalid, such illegality shall not
invalidate the whole of the Agreement, but rather, the Agreement shall be
construed as if it did not contain the illegal or invalid part, and the rights
and obligations of the Parties shall be construed and enforced accordingly.
17. COUNTERPARTS: This Agreement may be executed by facsimile and in
counterparts, each of which shall be deemed an original, but all of which
together constitute one and the same instrument with the same force and effect
as if executed in one complete document.
18. HEADINGS: The headings in this Agreement are for convenience or
reference only, and shall not limit or otherwise affect the meaning of the
Agreement.
19. ATTORNEYS' FEES AND COSTS: Each Party shall bear its own costs,
including attorneys' fees, with respect to the Dispute and the negotiation and
preparation of this Agreement.
20. ENFORCEABILITY: The mutual release given in this Agreement does not
release either of the Parties from any obligation created under this Agreement,
and this
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Agreement does not impair any legal or equitable right of either Party to
enforce this Agreement. If any legal action or other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute, breach,
default, or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing Party shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which such party may be entitled.
IN WITNESS WHEREOF, each of the Parties hereto has duly executed this
Settlement Agreement as of the date and year first written above.
National Distribution Agency, Inc.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxx
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Its: Corporate Secretary
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IPET Holdings, Inc.,
a Delaware corporation
By: /s/ Xxx Charter
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Its: Agent
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