On February 21, 2017 a
Exhibit,Appendix
was filed
involving a dispute between
Spark Logistics Us Limited,
Sparx Logistics Hong Kong Ltd.,
and
Brands Unlimited,
Deepak Ramchandani
A K A Deepak Parikh,
Gif Services, Inc.,
Gina Napolitano,
Shoez, Inc.,
for Commercial - Contract
in the District Court of New York County.
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FILED: NEW YORK COUNTY CLERK 01/30/2020 08:34 PM INDEX NO. 650884/2017
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 01/30/2020
SETTLEMENT AND RELEASE AGREEMENT
1*'
THIS SETTLEMENT AND RELEASE AGREEMENT is mad.e on the day of
December 2017
BETWEEN
(1) HABIB BANK ZURICH (HONG KONG) LIMITED of 1701-5, Wing On House,
71 Des Veoux Road Central, Hong Kong (hereinafter referred to as the
"Plaintiff"); and
24th
(2) SPARX LOGISTICS HK LIMITED of Unit 2405, Floor, Worldwide House,
19 Des Voeux Road Central, Hong Kong (hereinafter referred to as the
"Defendant")
WHEREAS
(A) The Plaintiffcommenced legal action against the Defendant in the High Court
of Hong Kong in High Court Action No. 1475 of 2016 (the "High Court
Action") and obtairied final judgment on 22 August 2017 made by Master S.
Lo (the "Judgment").
(B) The Defendant filed and served a Notice of Appeal dated 1 August 2017
against the Decision of Master S. Lo dated 18 July 2017 leading up to the
Judgment in the High Court Action.
(C) The Plaintiff and the Defendant on a without admission of liabilitybasis hereto
have reached a fulland final settlement of the claims and/or cause of action
arising from or in relation to the High Court Action upon the terms and
conditions of this Settlement and Release Agreement.
NOW IT IS HEREBY AGREED as follows:-
SETTLEMENT
1.1 The Defendant hereby agrees to pay the Plaintiff the sum of US$300,000 (the
"Settlement Sum") in full and final settlement of the Plaintiff's claims and the
Judgment in the High Court Action in the following manner:
(a) The Defendant do pay the sum of US$160,000 to the Plaintiff on or
before 8 December 2017 by way of a cheque dated 20 November 2017
issued by the Defendant in favour of the Plaintiff;
(b) The Defendant do pay the balance of US$140,000 to the Plaintiff iri12
equal instalments of US$11,666.67 by way of 12 post-dated cheques
issued by the Defendant in favour of the Plaintiff;
8th
(c) The said balance sum of US$140,000 is payable on the day Of each
consecutive month starting on 8 January 2018, with the last instalment
payable on 8 December 2018; and
CONFIDENTIAL 1
Plaintiffs 454
FILED: NEW YORK COUNTY CLERK 01/30/2020 08:34 PM INDEX NO. 650884/2017
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 01/30/2020
(d) The 13 post-dated cheques issued by the Defendant shall be delivered
to the Plaintiff's solicitors upon the signing of this Settlement and
Release Agreement.
1.2 Upon the Defendant's fullpayment of the Settlement Sum, all of the Plaintiffs
rights under Bill of Lading No. HSZX00005026, Bill of Lading No.
HXMN00002136, Bill of Lading No. HXMN00002148, Bill of Lading No.
HXMN00002319, Bill of Lading No. HXMN00002320, Bill of Lading No.
HXMN00002348 and Bill of Lading No. HXMN00002321 all issued by the
Defendant with Ravissant Limited as Shipper and Shoez Inc as Notify Party
(together the "7 Bills of Lading") shall be immediately cancelled and with no
further legal effect as against any parties.
1.3 The Plaintiff will keep possession of the original 7 Bills of Lading for internal
audit and compliance purposes only and will not surrender possession of the
original 7 Bilis of Lading to any other party.
1.4 Within 7 days from the signing of this Settlement and Release Agreement, the
Defendant do withdraw the appeal against the Decision of Master S. Lo dated
18 July 2017 in the High Court Action by way of consent summons with costs
be to the Plaintiff to be taxed ifnot agreed.
1.5 The costs of the High Court Action and the Defendant's application to appeal
against the Decision of Master S. Lo dated 18 July 2017 in the High Court
Action shall be payable to the Plaintiff, to be taxed ifnot agreed. The Plaintiff
agrees and undertakes to waive their entitlement to these costs and interest
thereof if the Defendant has paid the Settlement Sum in compliance with
paragraph 1.1 above and the Plaintiff shall not enforce any costs orders made
in itsfavour against the Defendant.
1.6 There be a stay of execution of the Judgment in the High Court Action
including but not limited to proceeding with the Statutory Demand dated 3
November 2017 pending the Defendant's payment of the Settlement Sum in
accordance with paragraph 1.1 above.
1.7 Ifthe Defendant fails to comply with any terms of paragraph 1.1 above, the
Plaintiff shall be at liberty to take whatever actions as itthinks fitto recover the
full amount under the Judgment with costs of the High Court Action and the
Defendant's appeal app!!cation, and the stay of execution as stipulated in
paragraph 1.6 above shall be uplifted automatically and immediately.
1.8 Each party hereto shall bear its own legal costs in relation to this Settlement
and Release Agreement.
WARRANTY OF AUTHORITY
2.0 The Plaintiff and the Defendant hereto warrants and represents with respect
to itselfthat it has the full right, power and authority to execute, deliver and
perform this Settlement and Release Agreement.
2
CONFIDENTIAL
Plaintiffs 455
FILED: NEW YORK COUNTY CLERK 01/30/2020 08:34 PM INDEX NO. 650884/2017
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 01/30/2020
ENTIRE AGREEMENT
3.0 This Settlement and Release Agreement constitutes the entire agreement
between the Plaintiff and the Defendant and supersedes all previous
agreements, promises, warranties and representations bêtwasn them,
whether written or oral, relating to the subject matter hereunder,
REPRESENTATIONS AND WARRANTIES
4.0 Each party represents and warrants to the other party that such party has
read and fully understands the terms and provisions hereof, has had an
opportunity to review this Settlement and Release Agreement with lawyers,
and has executed this Settlement and Release Agreement based upon such
party's own judgment and independent legal advice. The parties also declare
that this Settlement and Release Agreement has been entered into at arm's
length, without duress .and coercion.
GOVERNING LAW AND JURISDICTION
5.0 This Settlement and Release Agreement shall be governed by and construed
in accordance with the laws of the Hong Kong Special Administrative Region
and the parties hereto agree to be subject to the exclusive jurisdiction of the
Courts of the Hong Kong Special Administrative Region.
IN WITNESS WHEREOF this Settlement and Release Agreement has been entered
into on the day and year above written.
Signed by )
Mr. Abid Ma sud )
HKlD Card No. K3 3 1 176(7 ) )
Authorised signatory )
for and on behalf of )
HABlB BANK ZURICH (HON KO K/llTED )
a ChungYin.
Solicitor
andS°
Signed by 9 )
a a PLiroAs cr
Mr. Adi Dagan
HKID Card No. HongKong P
74>-[45 G)
)
Authorised signatory )
for and on behalf of )
SPARX LOGilSTICS HK LIMITED )
Leung Wai Lim
Solicitor
Howse WilliamsBowers
27/F Alexandra
House
CONFIDENTIAL 3 -7 18 Chater Road
/ Plain 3119tt58
Hong Kong SAR
Document Filed Date
January 30, 2020
Case Filing Date
February 21, 2017
Category
Commercial - Contract
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FILED: NEW YORK COUNTY CLERK 01/30/2020 08:34 PM INDEX NO. 650884/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 01/30/2020 SETTLEMENT AND RELEASE AGREEMENT 1*' THIS SETTLEMENT AND RELEASE AGREEMENT is mad.e on the day of December 2017 BETWEEN (1) HABIB BANK ZURICH (HONG KONG) LIMITED of 1701-5, Wing On House, 71 Des Veoux Road Central, Hong Kong (hereinafter referred to as the "Plaintiff"); and 24th (2) SPARX LOGISTICS HK LIMITED of Unit 2405, Floor, Worldwide House, 19 Des Voeux Road Central, Hong Kong (hereinafter referred to as the "Defendant") WHEREAS (A) The Plaintiffcommenced legal action against the Defendant in the High Court of Hong Kong in High Court Action No. 1475 of 2016 (the "High Court Action") and obtairied final judgment on 22 August 2017 made by Master S. Lo (the "Judgment"). (B) The Defendant filed and served a Notice of Appeal dated 1 August 2017 against the Decision of Master S. Lo dated 18 July 2017 leading up to the Judgment in the High Court Action. (C) The Plaintiff and the Defendant on a without admission of liabilitybasis hereto have reached a fulland final settlement of the claims and/or cause of action arising from or in relation to the High Court Action upon the terms and conditions of this Settlement and Release Agreement. NOW IT IS HEREBY AGREED as follows:- SETTLEMENT 1.1 The Defendant hereby agrees to pay the Plaintiff the sum of US$300,000 (the "Settlement Sum") in full and final settlement of the Plaintiff's claims and the Judgment in the High Court Action in the following manner: (a) The Defendant do pay the sum of US$160,000 to the Plaintiff on or before 8 December 2017 by way of a cheque dated 20 November 2017 issued by the Defendant in favour of the Plaintiff; (b) The Defendant do pay the balance of US$140,000 to the Plaintiff iri12 equal instalments of US$11,666.67 by way of 12 post-dated cheques issued by the Defendant in favour of the Plaintiff; 8th (c) The said balance sum of US$140,000 is payable on the day Of each consecutive month starting on 8 January 2018, with the last instalment payable on 8 December 2018; and CONFIDENTIAL 1 Plaintiffs 454 FILED: NEW YORK COUNTY CLERK 01/30/2020 08:34 PM INDEX NO. 650884/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 01/30/2020 (d) The 13 post-dated cheques issued by the Defendant shall be delivered to the Plaintiff's solicitors upon the signing of this Settlement and Release Agreement. 1.2 Upon the Defendant's fullpayment of the Settlement Sum, all of the Plaintiffs rights under Bill of Lading No. HSZX00005026, Bill of Lading No. HXMN00002136, Bill of Lading No. HXMN00002148, Bill of Lading No. HXMN00002319, Bill of Lading No. HXMN00002320, Bill of Lading No. HXMN00002348 and Bill of Lading No. HXMN00002321 all issued by the Defendant with Ravissant Limited as Shipper and Shoez Inc as Notify Party (together the "7 Bills of Lading") shall be immediately cancelled and with no further legal effect as against any parties. 1.3 The Plaintiff will keep possession of the original 7 Bills of Lading for internal audit and compliance purposes only and will not surrender possession of the original 7 Bilis of Lading to any other party. 1.4 Within 7 days from the signing of this Settlement and Release Agreement, the Defendant do withdraw the appeal against the Decision of Master S. Lo dated 18 July 2017 in the High Court Action by way of consent summons with costs be to the Plaintiff to be taxed ifnot agreed. 1.5 The costs of the High Court Action and the Defendant's application to appeal against the Decision of Master S. Lo dated 18 July 2017 in the High Court Action shall be payable to the Plaintiff, to be taxed ifnot agreed. The Plaintiff agrees and undertakes to waive their entitlement to these costs and interest thereof if the Defendant has paid the Settlement Sum in compliance with paragraph 1.1 above and the Plaintiff shall not enforce any costs orders made in itsfavour against the Defendant. 1.6 There be a stay of execution of the Judgment in the High Court Action including but not limited to proceeding with the Statutory Demand dated 3 November 2017 pending the Defendant's payment of the Settlement Sum in accordance with paragraph 1.1 above. 1.7 Ifthe Defendant fails to comply with any terms of paragraph 1.1 above, the Plaintiff shall be at liberty to take whatever actions as itthinks fitto recover the full amount under the Judgment with costs of the High Court Action and the Defendant's appeal app!!cation, and the stay of execution as stipulated in paragraph 1.6 above shall be uplifted automatically and immediately. 1.8 Each party hereto shall bear its own legal costs in relation to this Settlement and Release Agreement. WARRANTY OF AUTHORITY 2.0 The Plaintiff and the Defendant hereto warrants and represents with respect to itselfthat it has the full right, power and authority to execute, deliver and perform this Settlement and Release Agreement. 2 CONFIDENTIAL Plaintiffs 455 FILED: NEW YORK COUNTY CLERK 01/30/2020 08:34 PM INDEX NO. 650884/2017 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 01/30/2020 ENTIRE AGREEMENT 3.0 This Settlement and Release Agreement constitutes the entire agreement between the Plaintiff and the Defendant and supersedes all previous agreements, promises, warranties and representations bêtwasn them, whether written or oral, relating to the subject matter hereunder, REPRESENTATIONS AND WARRANTIES 4.0 Each party represents and warrants to the other party that such party has read and fully understands the terms and provisions hereof, has had an opportunity to review this Settlement and Release Agreement with lawyers, and has executed this Settlement and Release Agreement based upon such party's own judgment and independent legal advice. The parties also declare that this Settlement and Release Agreement has been entered into at arm's length, without duress .and coercion. GOVERNING LAW AND JURISDICTION 5.0 This Settlement and Release Agreement shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region and the parties hereto agree to be subject to the exclusive jurisdiction of the Courts of the Hong Kong Special Administrative Region. IN WITNESS WHEREOF this Settlement and Release Agreement has been entered into on the day and year above written. Signed by ) Mr. Abid Ma sud ) HKlD Card No. K3 3 1 176(7 ) ) Authorised signatory ) for and on behalf of ) HABlB BANK ZURICH (HON KO K/llTED ) a ChungYin. Solicitor andS° Signed by 9 ) a a PLiroAs cr Mr. Adi Dagan HKID Card No. HongKong P 74>-[45 G) ) Authorised signatory ) for and on behalf of ) SPARX LOGilSTICS HK LIMITED ) Leung Wai Lim Solicitor Howse WilliamsBowers 27/F Alexandra House CONFIDENTIAL 3 -7 18 Chater Road / Plain 3119tt58 Hong Kong SAR