Exhibit 10.59
SETTLEMENT AND LEASE SURRENDER
AND TERMINATION AGREEMENT
-------------------------
THIS SETTLEMENT AND LEASE SURRENDER AND TERMINATION AGREEMENT
("Agreement") made and entered into on October 16, 2002 (the "Effective Date"),
by and between Deerfield Holdings, L.P. ("Landlord"), Xxxxx Real Estate
Companies, Inc., Landlord's agent with respect to the Lease (as hereinafter
defined) and Premises (as hereinafter defined) ("Landlord's Agent"), and
Integrated Information Systems, Inc. ("Tenant").
W I T N E S S E T H:
WHEREAS, by Office Lease, dated on or about March 12, 2000, Landlord
entered into a lease ("Lease") with Tenant for Xxxxx 000, 000 Xxxxxxxxx Xxxxx,
00000 Xxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 ("Premises");
WHEREAS, on or about May 8, 2002, Landlord through Landlord's Agent
commenced a dispossessory action to regain possession of the premises and to
recover monetary damages in a case styled: Deerfield Holdings, L.P., by and
through its authorized agent Xxxxx Real Estate Companies v. Integrated
Information Systems, Inc., civil action no. 02DD000785F, State Court of Xxxxxx
County, State of Georgia ("Dispossessory Proceeding");
WHEREAS, on or about June 6, 2002, a default judgment, granting
Landlord possession of the Premises and $373,732 in monetary damages, was
entered in the Dispossessory Proceeding in the State Court of Xxxxxx County
("Default Judgment");
WHEREAS, on or about July 31, 2002, Tenant's motion to set aside and
vacate the Default Judgment was granted and final judgment in favor of Tenant
was entered ("Final Judgment");
WHEREAS, on or about August 6, 2002, Landlord served its notice of
appeal to the Georgia Court of Appeals with respect to the Final Judgment;
WHEREAS, on or about August 14, 2002, Tenant filed its notice of cross
appeal to the Georgia Court of Appeals with respect to the Final Judgment;
WHEREAS, Landlord and Landlord's Agent desire to accept Tenant's
surrender of the Premises "AS IS" and the parties want to terminate the Lease;
1
WHEREAS, on or about September 12, 2002, Tenant filed a motion in the
Dispossessory Proceeding seeking an assessment of attorney's fees and expenses
of litigation under O.C.G.A. ss. 9-15-14 against Landlord ("Tenant's Motion");
and
WHEREAS, Landlord, Landlord's Agent, and Tenant are desirous of
terminating the Lease and settling the Dispossessory Proceeding as well as
settling any and all claims, known or unknown, demands, actions, and potential
lawsuits of any kind or nature between them, based in whole or in any part upon
any contracts, agreements, promises, leases, facts, conduct, activities,
transactions, events, or occurrences, known or unknown, which have or allegedly
have existed, occurred, happened, arisen, or transpired from the beginning of
time to the date of this Agreement, including but not limited to the
Dispossessory Proceeding.
NOW, THEREFORE, in consideration of the foregoing, of certain payments
described below, the mutual undertakings of the parties, and the terms,
conditions, warranties, mutual general releases and mutual covenants not to xxx
hereinafter contained, the sufficiency and receipt of which are hereby
acknowledged, the parties agree as follows:
1. SURRENDER OF PREMISES AND LEASE TERMINATION.
-------------------------------------------
Notwithstanding anything to the contrary in this Agreement, immediately
upon the execution of this Agreement by all parties, Landlord accepts the
surrender of the Premises by Tenant in an 'AS IS' condition.
Notwithstanding anything to the contrary in this Agreement, immediately
upon the execution of this Agreement by all parties, the Lease is terminated and
of no further force and effect for any purpose. The parties mutually release
each other from any and all further obligations of any sort or nature whatsoever
under the Lease.
Tenant will leave any remaining trade fixtures and equipment now in the
Premises and hereby assigns and transfers its interest in these to Landlord.
2. PAYMENTS BY TENANT.
------------------
Subject only to the parties executing this Agreement and the dismissals
in favor of Tenant referred to herein, Tenant shall pay Landlord a total of
$172,608 (the "Settlement Funds") as follows:
a. $86,304 (the "Initial Payment") shall be paid on the Effective Date,
by means of a cashier's check, or a check drawn upon the escrow or trust account
of Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P. ("Tenant's Counsel"), made payable
to Landlord. Landlord agrees to accept the Initial Payment at the offices of
Tenant's Counsel at First Union Plaza, Suite 1400, 999
0
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000 in exchange for execution and
delivery of this Agreement and the execution and delivery of the dismissal
referred to herein.
b. The balance of $86,304 shall be paid in twenty (20) equal quarterly
installments of $4315.20 each (individually, an "Installment Payment";
collectively, the "Installment Payments"). The initial Installment Payment shall
be due on January 2, 2003. Thereafter, each quarterly Installment Payment shall
be due on the first business day following the close of each quarter-year, which
closing dates the parties hereby agree are March 31 (the close of the first
quarter), June 30 (the close of the second quarter), September 30 (the close of
the third quarter), and December 31 (the close of the fourth quarter), until the
entire amount of the Settlement Funds has been paid in full. The Installment
Payments may be made by means of Tenant's company checks, and shall be delivered
to Landlord c/o Barry Real Estate Companies, Inc., 0000 Xxxxxx Xxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxxx ("Landlord's Address").
3. MUTUAL GENERAL RELEASE IN FAVOR OF LANDLORD AND LANDLORD'S AGENT.
-----------------------------------------------------------------
Subject only to the obligations set forth in this Agreement and the
execution and delivery of the dismissals referred to herein, Tenant hereby
releases, acquits, remises and forever discharges Landlord and Landlord's Agent
and their respective directors, officers, agents, assigns, representatives,
attorneys, heirs, executors, administrators, beneficiaries, and all persons
acting by, through, under or in concert with either of them, or any of them of
and from any and all claims, demands, rights, liabilities, losses, judgments,
actions, causes of action, suits, obligations, or liability of any kind or
nature (including but not limited to, attorneys' fees, expenses of litigation,
bad faith and punitive damages and damages for abusive litigation) that have
arisen or occurred or that may arise or occur at any time in the future based in
whole or in any part upon any promises, agreements, contracts, leases, facts,
conduct, activities, transactions, events or occurrences, known or unknown,
which have or allegedly have existed, occurred, happened, arisen or transpired
from the beginning of time to the date of this Agreement, including but not
limited to, all claims asserted or that could have been asserted in the
Dispossessory Proceeding and/or in any other civil action related in any way to
the Lease.
4. MUTUAL GENERAL RELEASE IN FAVOR OF TENANT.
------------------------------------------
Subject only to the obligations set forth in this Agreement, the
execution and delivery of the dismissals referred to herein, and Tenant's
payment of the Initial Installment of the Settlement Funds, as provided above,
Landlord and Landord's Agent hereby release, acquit, remise and forever
discharge Tenant and its directors, officers, agents, assigns, representatives,
attorneys, heirs, executors, administrators, beneficiaries, and all persons
acting by, through, under or in concert with either of them, or any of them of
and from any and all claims, demands, rights, liabilities, losses, judgments,
actions, causes of action, suits, obligations, or liability of any kind or
nature (including but not limited to, attorneys' fees, expenses of litigation,
bad faith
3
and punitive damages and damages for abusive litigation) that have arisen or
occurred or that may arise or occur at any time in the future based in whole or
in any part upon any promises, agreements, contracts, leases, facts, conduct,
activities, transactions, events or occurrences, known or unknown, which have or
allegedly have existed, occurred, happened, arisen or transpired from the
beginning of time to the date of this Agreement, including but not limited to,
all claims asserted or that could have been asserted in the Dispossessory
Proceeding and/or in any other civil action related in any way to the Lease.
5. MUTUAL COVENANTS NOT TO XXX.
----------------------------
Subject only to the obligations set forth in this Agreement and the
execution and delivery of the dismissals referred to herein, Tenant on the one
hand and Landlord and Landlord's Agent on the other hand do hereby mutually
covenant not to institute any suit or action at law or in equity against each
other in any way related to the Lease, Dispossessory Action, or any claims that
were raised or could have raised in the Dispossessory Action or in any other
civil action between them. ("Subject Matter of the Mutual Covenants"). These
mutual covenants not to xxx xxx be plead and treated as a complete defense to
any action or proceeding that may be brought, instituted, or taken by any party
to this Agreement against the other party with regard to the Subject Matter of
the Mutual Covenants, and they shall forever be a complete bar to the
commencement or prosecution of any such action, litigation, arbitration, or
proceeding with respect to the Subject Matter of the Mutual Covenants. The
purpose of these mutual covenants not to xxx is to avoid further litigation.
6. CONFIDENTIALITY.
----------------
The parties to this Agreement agree to maintain in confidence the terms
and conditions of this Agreement, except that they may disclose the same as
needed among themselves, their counsel and accountants and as required by any
regulatory or taxing authority or the rules of any stock exchange, and in
response to lawful process. If any party is served with legal process that may
require it to testify regarding any aspect of this Agreement or the
circumstances surrounding it then that party shall immediately tender the
defense of the legal process to the other parties, allowing the other parties to
defend against the process at their own expense and, if the defense is
unsuccessful and the other party is required to testify regarding this
Agreement, or the circumstances surrounding it the defending party may at its
own expense endeavor to limit such testimony to the minimum amount of
information required to be given by law. Any breach of this provision by any
party shall subject that party to any and all damages allowed in law as well as
to equitable relief. This confidentiality provision shall not apply to any legal
process brought by any of the parties to this Agreement to enforce any of the
obligations under it.
4
7. TENANT'S MOTION.
----------------
Subject only to the parties executing this Agreement and the dismissal
with prejudice of the Dispossessory Proceeding and dismissal of Appeal No.
A03A0226 by Landlord, Tenant shall dismiss (or withdraw) Tenant's Motion within
two (2) business days of its counsel's receipt of date stamped file marked
copies of both of the aforesaid dismissals. Tenant shall thereafter deliver to
Landlord's Counsel via fax and mail a date stamped file-marked copy of said
dismissal of Tenant's Motion
8. TERMINATION OF THE DISPOSSESSORY PROCEEDING AND ALL APPEALS
-----------------------------------------------------------
RELATED THERETO.
----------------
Subject only to the parties executing this Agreement and the execution
and delivery of the dismissals referred to herein, Landlord will immediately,
upon Landlord's receipt of the Initial Installment of the Settlement Funds,
dismiss the Dispossessory Proceeding, with prejudice, and dismiss or withdraw
its Appeal No. A03A0226 with prejudice, and Tenant will immediately dismiss or
withdraw its cross appeal Appeal No. A03A0227 with prejudice. The parties will
exchange via fax and mail date-stamped, filed copies of these dismissals within
three (3) business days following the Effective Date of this Agreement.
After execution of this Agreement, the only remedies that the parties
have against each other will be for breach of this Agreement except as expressly
stated in this Agreement.
9. NO ADMISSION OF LIABILITY.
--------------------------
The parties agree and understand that the above-recited considerations
are being paid or given in full accord, satisfaction, and compromise of disputed
claims and that the payments and considerations are not admissions of liability
by any party, but are being made for the purpose of terminating all disputes and
litigation, pending or proposed, between the parties hereto.
10. ENTIRE AGREEMENT.
-----------------
This Agreement and its exhibits contain the entire agreement between
the parties and fully supersedes any and all prior agreements or understandings
between the parties with respect to the subject matter, and any and all prior
discussions, negotiations, communications, commitments, and understandings
related hereto are merged herein. This Agreement is executed on behalf of and is
intended to bind the parties and their respective successors and assigns.
5
11. REMEDIES IN EVENT OF BREACH OF THIS AGREEMENT.
----------------------------------------------
Except as expressly stated herein, this Agreement is fully effective
upon delivery to the parties. Except as expressly stated herein, it is not
dependent upon and may not be defeated by any further performance or
non-performance of any obligations, conditions, covenants, promises, warranties
or similar undertakings to be performed or not to be performed in the future by
the parties. Except as expressly stated herein, the breach of any such duties or
this Agreement shall give rise only to a cause of action for that breach and
shall not reinstate the claims released under this Agreement.
12. MODIFICATION.
-------------
This Agreement may not be amended, modified, or terminated, in whole or
in part, except by a written agreement executed by the parties.
13. VOLUNTARY.
----------
This Agreement is executed voluntarily by each of the parties after
full disclosure hereto without any duress or undue influence on the part of or
on behalf of any of them. The parties hereto acknowledge that they have been
represented, or have had the opportunity to be represented, in the negotiations
for and in the performance of this Agreement by counsel of their own choice;
they have read this Agreement; they have had it fully explained to them by such
counsel or have had such opportunity; and they are fully aware of the contents
of this Agreement and of its legal effect.
14. CONTROLLING LAW.
----------------
The validity, performance, construction, interpretation, enforcement,
and effect of this Agreement shall be governed by and enforced in accordance
with the substantive laws of the State of Georgia.
15. MISCELLANEOUS.
--------------
a. If any provision of this Agreement is adjudged illegal, invalid, or
unenforceable, the entire Agreement shall not be construed to be invalid and all
remaining terms or provisions shall continue in full force and effect.
6
b. This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original and all of which, taken together, shall
constitute one and the same instrument.
c. The Agreement is a fully-negotiated document, and it shall be deemed
to have been jointly drafted by the parties. It shall not be more strictly
construed against any party as the draftsman.
d. Each party hereby represents and warrants that it has not assigned
or otherwise transferred any claim(s) which otherwise would be released under
this Agreement.
e. The parties to this Agreement hereby swear and affirm on oath that
all representations of fact appearing in them are true and correct to the best
of their knowledge.
f. Each party shall be responsible for its own fees and expenses,
including attorney's fees.
g. The parties hereto warrant that those persons signing on behalf of
the entities have the requisite corporate authority to execute and deliver this
Agreement on behalf of the parties hereto.
h. The parties to this Agreement shall, without delay, execute any
documents, perform all acts, and do all things necessary to effectuate any of
the terms and provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed, sealed and delivered as of the date first set forth above.
[SIGNATURES ON NEXT PAGES]
7
ATTEST: DEERFIELD HOLDINGS, L.P.,
Landlord
/s/ X. Xxxxx
By: /s/ X. Xxxxxx
Title: Manager
-------
Sworn to and subscribed before me
this __ day of October, 2002.
------------------------------
Notary Public for Georgia
My Commission Expires:
-----------------------------
[SEAL]
This Agreement was read and approved by me as counsel for Landlord
prior to its execution by the Landlord.
This 16th day of October, 2002.
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Esq.
XXXXXXX & XXXXXXX, LLP
8
ATTEST: XXXXX REAL ESTATE COMPANIES, INC.
Landlord's Agent
/s/ X. Xxxxx
By: /s/ X. Xxxxxx
Title: President
---------
Sworn to and subscribed before me
this __ day of October, 2002.
------------------------------
Notary Public for Georgia
My Commission Expires:
-----------------------------
[SEAL]
This Agreement was read and approved by me as counsel for Landlord's
Agent prior to its execution by Landlord's Agent.
This 16th day of October, 2002.
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Esq.
XXXXXXX & XXXXXXX, LLP
9
ATTEST: INTEGRATED INFORMATION SYSTEMS, INC.
Tenant
/s/ Xxxxxx X. Xxxxxx
By: /s/ Xxxxxxx X. Xxxxx
Title: EVP & CFO
This Agreement was read and approved by me as counsel for Tenant prior
to its execution by Tenant.
This 16th day of October, 2002.
/s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx, Esq.
XXXXXX XXXXXXX XXXXX & SCARBOROUGH
10
