SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE, made this ninth day of February,
2001, is by and between Xxxxxxx Enterprises, Ltd. ("Xxxxxxx") and 5280
Properties, Limited Liability Company, Colony Square Properties, Limited
Liability Company, The Silverthorne Group, Inc., and Xxxxx X. Xxxxx
(collectively, the "Entities").
WHEREAS, Xxxxxxx is a Member in Colony Square Properties, LLC; and,
WHEREAS, various conflicts have arisen between Xxxxxxx and the Entities
that threaten to disrupt the orderly conduct of the business of Colony Square
Properties, LLC, which may injure all of the Members; and,
WHEREAS, the parties to the Agreement have agreed that it would be in the
best interest of Colony Square Properties, LLC for Xxxxxxx to withdraw as a
Member, and Xxxxxxx is willing to withdraw upon the terms and conditions
contained in the Agreement; and,
WHEREAS, Xxxxxxx and the Entities have agreed that the distribution to
which Xxxxxxx is entitled upon its withdrawal under the Operating Agreement of
Colony Square Properties, LLC must be made in-kind with property owned by Colony
Square Properties, LLC due to the lack of cash available to Colony Square
Properties, LLC; and,
WHEREAS, Xxxxxxx and the Entities have agreed that the amount of
distribution to which Xxxxxxx is entitled is $250,000; and,
WHEREAS, Xxxxxxx and the Entities have agreed that the in-kind distribution
will be made with Lot 3, with $250,000 of the value of Lot 3 treated as a
distribution and the remainder of the fair market value of Lot 3 being paid by
Xxxxxxx to Colony Square Properties, LLC in cash; and,
WHEREAS, Xxxxxxx and Entities agree that Lot 3 has a fair market value of
$550,000 based upon previous and comparable sales and that, therefore, the
amount payable by Xxxxxxx to purchase the undistributed portion of Lot 3 at its
fair market value from Colony Square Properties, LLC is $300,000;
NOW THEREFORE, in consideration of the performance and exchanges as set
forth herein, the parties agree as follows:
1. Contemporaneous with the delivery of an executed original of this
Settlement Agreement and Release (the "Agreement") by Xxxxxxx and the Entities,
Xxxxxxx shall pay FirsTier Bank, through cashier's check or certified funds, the
sum of $300,000 (Three Hundred Thousand Dollars and No Cents), delivered to
Xxxxxxx X. Xxxxx, Esq., Xxxxx, Xxxxxxxxx & Xxxxxxx, P.C., 0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 or to such other person or
entity as FirsTier Bank may designate. Additionally, Xxxxxxx shall execute all
documents necessary to withdraw from membership in Colony Square Properties,
Limited Liability Company.
2. Simultaneous with the tender of funds referenced in paragraph 1, above,
the Entities shall execute all documents necessary to transfer to Xxxxxxx, or
any other entity designated by Xxxxxxx, by special warranty deed, all of Colony
Square Properties, LLC's right, title and interests in that certain parcel of
real property more fully described as:
XXX 0
XXXXXX XXXXXX, 0XX XXXXXXXXXX,
RECORDED SEPTEMBER 25, 1998 IN FILE 17, MAP 932, RECEPTION XX.
000000
XXXXXX XXXXXX, 0XX XXXXXXXXX,
RECORDED JANUARY 21, 2000 AT RECEPTION NO 634163,
COUNTY OF XXXXX,
STATE OF COLORADO
subject to the identified items listed on Schedule B-2 of that certain title
commitment number 1311987, specifically, and limited to, items 8 through 19,
inclusive, of said Schedule, the relevant portion of which is attached as an
exhibit hereto and incorporated herein. Xxxxxxx acknowledges that the subject
property is conveyed to Xxxxxxx subject to outstanding real property taxes for
the calendar year 2000 and Xxxxxxx assumes responsibility for the payment of
those taxes.
3. The parties to this Agreement expressly acknowledge that the
performances contemplated and set forth in paragraphs 1 and 2, are undertaken
and performed in satisfaction of all claims that Xxxxxxx may have against the
Entities, and that the Entities may have against Xxxxxxx.
4. For good an valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Xxxxxxx, on his own behalf and on behalf of his agents,
heirs, successors, and assigns, and all persons claiming under or through
Xxxxxxx, does hereby fully and forever release and discharge 5280 Properties,
Limited Liability Company, Colony Square Properties, Limited Liability Company,
The Silverthorne Group, Inc. and Xxxxx X. Xxxxx, and all of their employees,
officers, directors, shareholders, manager, insurers, successors,
representative, assigns, agents and attorneys, past and present, or any of them,
of and from any and all claims, demands, actions or causes of action, whether at
law or equity, including, without limitation, claims for recovery of attorney's
fees, expert witness fees or costs, which may now have, or claim at any future
time to have, without regard to present actual knowledge of any act or omission
which Xxxxxxx may now have or may arise in the future in connection with
Xxxxxxx'x membership in any of the Entities, except for and expressly reserving
the rights and obligations created by this Agreement.
5. For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, 5280 Properties, Limited Liability Company,
Colony Square Properties, Limited Liability Company, The Silverthorne Group,
Inc., and Xxxxx X. Xxxxx, on their own behalf and on behalf of their agents,
heirs, successors and assigns, and all persons claiming under or through the
Entities, do hereby fully and forever release and discharge Xxxxxxx, and all of
his employees, officers, directors, shareholders, managers, insurers,
successors, representative, assignees, agents and attorneys, past and present,
or any of them, of and from any and all claims, demands, actions or causes of
action, whether at law or equity, including, without limitation, claims for
recovery of attorney's fees, expert witness fees or costs, which it may now
have, or claim at any future time to have, without regard to present actual
knowledge of any act or omission which the Entities may now have or may arise in
the future in connection with Xxxxxxx'x membership in any of the Entities,
except for and expressly reserving the rights and obligations created by this
Agreement.
6. Nothing contained in this Agreement shall be construed in any manner to
release any claim, demand, action or cause of action that any of the parties may
have against any person or entity, other than the parties to this Agreement, who
is now, or may have been a member of any of the Entities identified in this
Agreement. Specifically, none of the parties, by executing this Agreement,
releases or discharges any claims any of them may have against Xxxxxx X. Xxxxxx.
7. The parties to this Agreement each warrant and represent to the other,
that each is the sole and lawful owner and holder of all title to and interest
in each and every claim, demand, action or cause of action released pursuant to
paragraphs 4 and 5 above and that none of the parties has heretofore assigned or
transferred, or purported to assign or to transfer to any person or entity not a
party to this Agreement, any of the claims released herein. Any party in breach
of this paragraph shall indemnify, defend and hold harmless the other parties
for any and all claims, demands, losses, costs (including, without limitation,
for all attorney's fees, costs and expenses thereby incurred), expenses
obligations, liabilities, damages, recoveries and deficiencies arising out of or
relating to any assignment or transfer, or any purported or attempted assignment
or transfer, contrary to the terms of this paragraph.
8. 5280 Properties, Limited Liability Company and Colony Square Properties,
Limited Liability Company agree to indemnify and save Xxxxxxx harmless from any
liability imposed by a court of competent jurisdiction or an arbitrator in
determining any claims that may arise against Colony Square Properties, Limited
Liability Company or 5280 Properties, Limited Liability Company, that accrued
during the time of Xxxxxxx'x membership in Colony Square Properties, Limited
Liability Company. Xxxxxxx acknowledges that full disclosure of the assets of
the Entities has been disclosed and agrees that nothing in this Agreement shall
prevent the operation, in favor of the Entities, of 11 U.S.C.ss.523 and its
subparts or 11 U.S.C.ss.727 and its subparts.
9. It is understood and agreed by the parties to this Agreement that this
settlement is not construed as an admission of wrongful conduct or liability on
the part of any person or entity released, liability and wrongful conduct being
expressly denied, and that the parties are settling solely to avoid cost and
uncertainty.
10. The parties acknowledge that they have had a full opportunity to
consult with counsel of their choosing in determining whether to enter into, and
whether to agree to the terms and conditions contained in this Agreement.
11. No waiver or indulgence of any breach or series of breaches of any
terms or conditions of this Agreement shall be deemed or construed to be a
waiver of any other breach of the same or any other provision heron or affect
the enforceability of the remainder of this Agreement, and no waiver shall be
valid unless executed in writing by the party providing the waiver.
12. In the event that a court of competent jurisdiction enters a final
judgment holding invalid any material provision of this Agreement in the
adjudication of a claim arising from the future conduct of any of the parties
hereto, the remainder of this Agreement shall be fully enforceable to the extent
and so long as such court determines that such enforcement would result in the
parties to this Agreement equitably obtaining the essential benefit of the
bargain memorialized by this Agreement.
13. 5280 Properties, LLC and Colony Square Properties, LLC warrant that in
the event they determine that it is necessary to file a voluntary petition
seeking protection from their creditors pursuant to Title 11 of the United
States Code, such filing shall not be made until one hundred eighty on (181)
days following the closing of this transaction.
14. In the event that any dispute arises in connection with the performance
of any of the promises of performance contained in this Agreement, jurisdiction
and venue for resolution of such disputes shall be the District Court of the
City and County of Denver, Colorado. The prevailing party shall be entitled to
his/its reasonable costs and attorney's fees.
15. This Agreement shall not be amended except in a writing signed by the
authorized representatives of all of the parties.
16. The Agreement constitutes the parties' entire agreement, and is a
complete merger of all antecedent offers, counteroffers, negotiations and
agreements.
17. This Agreement shall be governed by the laws of the state of Colorado.
18. This Agreement may be executed in counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
This Agreement shall be binging upon the parties when they have exchanged
facsimile copies executed by all parties. The parties shall exchange manually
executed copies of this Agreement as soon as reasonably practicable.
19. The parties hereto shall bear their own respective costs, expenses and
attorneys' fees incurred in connection with the negotiation and drafting of this
Agreement.
Xxxxxxx Enterprises, Ltd.
Dated: 2/9/01 By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
SUBSCRIBED to before me this 9th day of February, 2001 by Xxxx X
Xxxxxxx, Partner of Xxxxxxx Enterprises, Ltd..
WITNESS my hand and official seal.
/s/Xxxxxx X. Xxxxxxxxx
Notary Public
My commission expires: 3/17/2002
(SEAL)
