ex101.htm


    Exhibit
10.1

     

    IN
THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT

    IN AND FOR SARASOTA COUNTY,
FLORIDA

    


    CANNON
OFFICES, L.L.C., a Florida

    limited
liability company,

    


    Plaintiff,

    


    
      	
              vs.

            	
              Case
      Number 2008 CA 002375 NC

            


    

    


    KESSELRING
HOLDING CORPORATION,

    a
Delaware corporation,

    


    Defendant.

    __________________________________________/

    


    SETTLEMENT AGREEMENT AND
MUTUAL RELEASE

    


    THIS SETTLEMENT AGREEMENT AND MUTUAL
RELEASE (“Agreement”) is made and entered into between CANNON OFFICES, LLC, a
Florida limited liability company (“Cannon”) and KESSELRING HOLDING CORPORATION,
a Delaware Corporation (“Kesselring”).   Cannon and Kesselring
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

     

    
      	
              A.

            	
              This
      litigation arises under an Office Lease Agreement dated August 31, 2007
      (the “Lease”) under which Kesselring leased from Cannon a unit of
      commercial property identified as 6710 Professional Parkway West, Suite
      301, Sarasota, Florida 34240 (the
“Premises”).

            


    

    
      	 	 


    

     

     

     

    
      
         

      

      
        1

        
          

        

      

      
         

      

    

     

     

     

    
      	 	 
	 	 
	
              B.

            	
              The
      Lease provided for an initial term of five years commencing on August 29,
      2007.   Kesselring failed to make payment under the Lease
      as agreed and ultimately vacated the Premises shortly after the filing of
      this litigation.

            
	 	 


    

    
      	
              C.

            	
              The
      amount of unpaid rent due to Cannon through the initial term of the Lease
      (less payments previously received from Kesselring) equals the sum of
      $709,044.82.

            
	 	 


    

    
      	
              D.

            	
              Kesselring
      has defended this action, claiming among other things that Cannon has
      failed to mitigate its damages and that the officer who purportedly signed
      the Lease on behalf of Kesselring lacked authority to do
    so.

            
	 	 


    

    
      	
              E.

            	
              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.

            


    

     

        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, Cannon and Kesselring,
intending to be legally bound, do hereby agree as follows:

     

    
      	
              1.  

            	
              Recitals.   The
      foregoing recitals are true, correct and incorporated herein by this
      specific reference and form an integral part of this
      Agreement.

            
	 	 


    

    
      	
              2.  

            	
              Initial Payment by
      Kesselring.   Kesselring shall make an initial
      payment to Cannon 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 “Icard Merrill Trust
      Account” and shall be delivered to Cannon’s counsel, Charles J.
      Bartlett, Esq., Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A.,
      2033 Main Street, Suite 600, Sarasota, Florida 34237 on or before the
      respective due dates, time being of the essence
      hereof.   In the event that Kesselring shall fail to make
      any installment payment due hereunder on or before its due date, Cannon
      shall be entitled to an immediate money judgment against Kesselring 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 Cannon in the agreed
      amount of $5,000.00, less the amount of any installment payments actually
      made by Kesselring pursuant to this paragraph.   Cannon
      shall be entitled to obtain the Final Judgment upon three (3) business
      days notice to counsel for Kesselring, during which period Kesselring
      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 Cannon shall be entitled to obtain Final Judgment ex parte
      on the affidavit of its counsel attesting to the failure to make payment
      as agreed.

            


    

    
      	 	 


    

     

     

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

     

     

    
      	 	 
	 	 
	 	 
	
              3.  

            	
              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 Cannon shall continue its diligent efforts to lease the
      Premises.   In the event that Cannon shall be successful in
      reletting all or a portion of the Premises within the abatement period,
      then Kesselring shall be entitled to a credit against any further monies
      owed to Cannon 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
      Cannon from the new tenant(s) of the Premises.  The credit to
      which Kesselring 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.

            
	 	 


    

    
      	
              4.  

            	
              Entry of Final
      Judgment Following Abatement.   At the conclusion of
      the abatement period, Cannon shall be entitled to a Final Judgment against
      Kesselring equal to the lesser of the following
amounts:

            
	 	 


    

    
      	
               
      

            	
              a.

            	
              the
      sum of $312,500.00, or

            
	 	 	 


    

    
      	
               
      

            	
              b.

            	
              the
      sum computed by subtracting from the unpaid rental due to Cannon for the
      balance of the initial lease term (the sum of $709,044.82), the following
      sums:

            
	 	 	 


    

    
      	
               
      

            	
              i.

            	
              the
      initial payment of $75,000.00 made by Kesselring pursuant to paragraph 2
      hereof;

            
	 	 	 


    

    
      	
               
      

            	
              ii.

            	
              the
      net rental received or to be received by Cannon (computed as set forth
      above) during the balance of the initial lease term under the
      Lease.

            


    

     

    At least
30 days prior to the end of the abatement period, Cannon shall provide to
Kesselring, 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 Kesselring 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 Kesselring would be entitled), the Court shall enter
a Final Judgment against Kesselring 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 Kesselring, there shall be a specific
finding that Kesselring is entitled to a dollar for dollar setoff for any
additional net rental amounts received by Cannon, 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.

     

     

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

     

     

    
      	
              5.  

            	
              Mutual
      Release.   As referenced herein, this Agreement and
      the payments and/or judgment to be received or obtained by Cannon
      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, Cannon and Kesselring 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.

            
	 	 


    

    
      	
              6.  

            	
              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.

            
	 	 


    

    
      	
              7.  

            	
              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.

            
	 	 


    

    
      	
              8.  

            	
              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.

            
	 	 


    

    
      	
              9.  

            	
              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.

            
	 	 


    

    
      	
              10.  

            	
              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.

            
	 	 


    

    
      	
              11.  

            	
              Complete
      Agreement.   This Agreement, including any exhibits
      hereto, embodies the complete, entire agreement between the parties
      relating to the subject matter hereof.

            
	 	 


    

    
      	
              12.  

            	
              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.

            
	 	 


    

    
      	
              13.  

            	
              Governing
      Law.   This Agreement shall be construed in all
      respects in accordance with, and governed by the laws of the State of
      Florida.

            
	 	 


    

    
      	
              14.  

            	
              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.

            
	 	 


    

    
      	
              15.  

            	
              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.

            
	 	 
	 	 


    

     

     

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

     

     

    
      	 	 
	 	 
	 	 


    

    
      	
              16.  

            	
              Miscellaneous
      Provisions.   The parties further acknowledge and
      represent that:

            
	 	 


    

    
      	
               
      

            	
              a.

            	
              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;

            
	 	 	 


    

    
      	
               
      

            	
              b.

            	
              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;

            
	 	 	 


    

    
      	
               
      

            	
              c.

            	
              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

            
	 	 	 


    

    
      	
               
      

            	
              d.

            	
              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.

            
	 	 	 


    

    
      	
              17.  

            	
              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.

            


    

     

     

     

        IN WITNESS WHEREOF,
the parties have executed this Agreement effective July 2,
2008.

     

     

    
    

     

    
      	WITNESSES:	 	CANNON OFFICES,
      LLC
	 	 	 
	 	 	 
	 	 	 
	 	 	BY:
	 	 	 
	 	 	ITS:
	 	 	 
	 	 	 


    

     

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

     

     

    
       

      
        	WITNESSES:	 	KESSELRING HOLDING
      CORPORATION
	 	 	 
	 	 	 
	 	 	 
	 	 	BY:
	 	 	 
	 	 	ITS:
	 	 	 
	 	 	 


      

       

       

       

       

       

       

       

      6