Notice (2021-05-21) — In re Panthera Enterprises, LLC, Case No. 2:19-bk-00787 (Chapter 7)

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EXHIBIT E
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oebtor i
Panthera Enterprises. LLC
DcUor 2
(Spaus«. II Fling)
Uniied state.1 Banicrupicy Court (or the: Norihem District ofWest Virginia
Case number
19-bk-Q0787
Officiai Fornn 410
Proof of Claim
04/19
Read the Instructions before filiing eut this form. This form is for making a claim for payment in a banknjptcy case. Do rtot use this form to
make a request for payment of an administrative expanse. Make such a request according to 11 U.S.C. §
503.
Fiiers must leave out or redact information that ia entitied to privacy on this form or on any attached documents. Attach redacted copies of any
documents that support the claim. such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments,
mortgages, and security agreements. Do not send original documents; they may be destroyed after scanning. if the documents are not avaiiabie,
explain in an attachment.
A person who files a fraudulent claim coutd be fined up to $500,000, Imprisoned for up to 5 years, or both. 18 U.S.C. §§ 152, 157, and 3571.
Fiii in ail the Information about the claim as of the date the case was fiied. That date is on the notice of bankruptcy (Form 309) that you recelved.
Idenllfy (he Claim
Who is the current
créditer?
Azadian Group LLC
Name of the current creditor (the person or entily to be paid for this claim)
Olher names the créditer used with the debtor
Has this claim been
acquired from
someone eise?
si No
Q Yes. From whom?
Where shouid notices
and payments to the
creditor be sent?
Fédérai Ruie of
Bankruptcy Procédure
(FRBP) 2002(9)
Where shouid notices to the créditer be sent?
Azadian Group LLC
600 Madison Ave 18th FI
Where shouid payments lo the creditor be sent? (if
différent)
New York
Clty
Contact phone 646-849-^205
10022
Contact email raffi@azadiangroup.eom
Contact phone
Contact emaB
Uniform claim identifier (or electronic payments Inchapter 13 (if you use one):
4. Does this claim amend si No
one aiready flied?
□ Yes. Claim number on court daims registry (if known)
MM
/ DD
/ YYYY
5. Do you know If anyone
Sf No
eise has fiied a proof
q Yes. Who made the eariierfiling?
of daim for this claim?
Officiai Form 410
Proof of Claim
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GIve Information About the Clalm as of tho Date the Case Was Flied
6. Do you have any number ^
nû
you use to identlly the
Q
ves. Last 4 digits of the debtor's account or any number you use to Identlfy the debtor:
debtor?
7. How much 1s the claim?
86.829.00. Does this amount include interest or other charges?
Sf No
□ Yes. Attach statement itemizing Interest, fees, expenses, or other
charges required by Bankruptcy Ruie 3001(c)(2)(A).
8. Whal is the basis of ttie
Examples: Goods sold, money ioaned, lease, services performed, personal injury or vnongful death, or crédit card.
Attach redacted copies of any documents supporting the daim required by Bankruptcy RuIe 3001 (c).
Limit disclosing information that Is entitted to privacy. such as heaith care Information.
Judgment entered In the Superlor Court of the State of Delaware
9. Is al! or part of the clalm
secured?
No
Yes. The clalm is secured by a lien on property.
Nature of property:
□ Real estate. If the claim is secured by the debtor's principal resktence, file a Mortgage Proofof Claim
Attechment (Offidal Form 410-A) wilh this Proofof Claim.
LJ Motorvehide
s] Other. Describe;
Ali assets of debtor
Basis for perfecUon:
UCC-1 Rnancing Statement /
irpe
Attach redacted copies of documents, If any, that show evidence of perfection of a security interest (for
example, a mortgage, lien, certiflcate of tille, finandng statement, or other document that shows the lien has
been filed or recorded.)
Value of property:
86.829.00
Amount of the claim that is secured:
$.$
Amount of the claim that Is unsecured: $.
86.829.00
$
0.00,
Amount necessary to cure any defauit as of the date of the pétition:
$.
Annuai interest Rate (when case was filedi 6-75
amounts should match the amount in line 7.)
86,829.00
â
FIxed
Variable
10. Is this ciaim based on a
Sl No
iGdSB?
□ Yes. Amount necessary to cure any defauit as of the date of the pétition.
$_
11. Is this ciaim subject to a
S) No
rightofsetofi?
□ Yes. Idenlify the property;
OfRcial Form 410
Proof of Claim
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Sf No
□ Yes. Check ono:
Amount entitle
12. l8 atl or part of the daim
entitled to priority under
11 U.S.C. § 607(a)?
d to priority
A claim may ba partiy
priority and partiy
nonpriority. For example,
in some catégories, the
law iimits the amount
entitled to priority.
$_
□ tJomestic support obligations {Including allmony and chiW support) under
11 U.S.C. § 507(a)(1)(A) or (a){1)(B).
□ Up to $3,025* of deposits toward purchase, lease, or rental of property or services for
Personal, family, or househcld use. 11 U.S.C. § 507(a)(7).
*
□ V\fages, salaries, or commissions (up to $13,650*) eamed within 180 days before the
bankruptcy pétition Is filed or the debtor's business ends, whlchever is earlier.
*
11 U.S.C.§507(a)(4).
□ Taxes or penallies owed to govemmental unlts. 11 U.S.C. § 507(a)(8).
?
Q Contributions to an employée benefit plan. 11 U.S.C. § 507(a)(5).
^
a Other. Specify subsection of 11 U.S.C. § 507(a)(_J that applies.
5
• Amounts are subjecl to adjustmenl on 4/01/22 and eveiy 3 years after lhal for cases begun on or after the date of adiustmenl.
Sign Below
The person completlng
this proof of claim must
sIgn and date it
FRBP 9011(b].
If you file this claim
electronically, FRBP
5G05(a)(2) authorizes courts
to eslablish local ruies
specifying what a signature
Is.
A person who files a
fraudulent claim could be
finéd up to $500,000,
Imprlsoned for up to 5
years, or both.
18 U.S.C. §§ 152,157, and
3571.
Check the appropriate box:
Sf I am the créditer.
G
I am the creditor's attorney or authorized agent.
□ I am the trustée, or the debtor, or their authorized agent. Bankruptcy Ruie 3004.
G l am a guarantor, surety, endorser, or other codebtor. Bankruptcy RuIe 3005.
I understand that an authorized signature on this Proof of Claitn serves as an acknowiedgment that when calculating the
amount of the claim, the créditer gave the debtor crédit for eny payments received toward the debt
I have examined the inlbrmation in this Proof of C/boti and bave a reasonable belief that the information is true
and correcL
I déclaré under penalty of perjury that the foregoing is true and correct.
Executed on date 10/12/2020
MM / 00 /
YYYY
Print the name of the person who Is completing and signing this claim:
Raffi Azadlan
Name
Tille
Company
Address
Contact phone
First name
CEO
Middie name
Lastname
Azadian Group LLC
Identiiy the corporate seivicer as the ccmpany If the authorized agent Is a servlcer.
600 Madison Ave 18th Fi
Number
Street
New York
NV
10022
City
646-849-4205
State
ZIP Code
Email
raffi@azadianQrouD.com
Officiai Form 410
Proof of Claim
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SVTTï.FMV.NT AGREEMENT AND MTJTUAL RELEASE
This SETTLEMENT AGREEMENT AND MUTUAL RELEASE ("Settlemcnt
Agrément*') is entered into as of this 20''* day of December, 2018 by and between Azadian
Group LLC ("AG"), TenX Group LLC CTenX"), James V. Punelli ÇTunelli") and Raymond G.
Jones ("Jones") (AG, TenX, Punelli, and Jones are coUectively referred to as the "Parties" and,
at times, individually referred to as a "Party").
RECITALS
WHEREAS, on August 18, 2017 and October 24, 2017 the Parties entered into three
Merchant Receivabîes Purchase and Security Agreements (the "Agreements");
WHEREAS, under the terms of the Agreements, AG agreed to purchase TenX's Future
Receivabîes (as defined under the Agreements);
WHEREAS, Punelli and Jones guaranteed TenX's obligations under the Agreements in
their individual capacity;
WHEREAS,
Punelli and Jones are Managing Members of TenX;
WHEREAS, AG fuUy satisfied its obligations under the Agreements;
WHEREAS, under the terms of the Agreements, TenX had a duty to transfer $673,188.00
in Purchased Receivabîes (as defined under the Agreements) to AG;
WHEREAS, TenX, Punelli and Jones have failed to transfer at least $126,829.00 of AG's
property, the Purchased Receivabîes (as defined under the Agreements), and TenX, Punelli and
Jones are therefore in default of the Agreements;
WHEREAS, due to their default of the Agreements, TenX, Punelli and Jones are liable to
AG for at least $25,000.00 in default fees as well as interest and ail reasonable attomeys' fees
and costs associated with collecting the defaulted amount;
WHEREAS, to avoid the expense and inconvenience of leg^ proceedings, and to acliieve
finality, the Parties desire to settle, extinguish and release aU daims and/or disputes that they
have, may have, or could have had regarding the Agreements, and
WHEREAS, the Parties agree that payment of the Settlement Amount (as defined below)
does not render TenX, PuneUi and Jones insolvent, the Settlement Amount constitutes return to
AG of property rightfully belonging to AG pursuant to the Agreements and the Purchase Price
(as defined in the Agreements) paid thereunder, and that the Settlement Amount provides for
new value to TenX, Punelli and Jones, including, but not limited to. the provision of new value
in the form of crédit.
NOW, THEREFORE, in considération of the promises, covenants and undertakings
contained herdn, the Parties, intending to be legally bound, hereby agree as follows;
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PROVISIONS
1.
Conditions to F.ffectiveness. Notwithstanding anything to the contrary
herein, this Settlement Agreement shall not be effective until the date that tois Settlement
Agreement bas been executed by the Parties (the "Effective Date"V The Parties obligations
with respect to this Settlement Agreement are expressly subject to the occnri'ence of the Effective
Date.
2.
Pavment bv TonY. Punelli and Jones to AG. TenX, Punelli and Jones
shall cause to be paid to AG the total amount of One Hundred Twénty Six Thousand Eight
Hundred Twenty Nine Dollars and Zéro Cents ($126,829.00) (the "Settlement Amonnt"), m the
following manner:
a. Forty Thousand Dollars ($40,000.00) on or before December 24,2018, by
wire transfer of funds to AG's designated bank account without setoff or
recoupment (the "First Pavmenf'k
b. Eighty Six Thousand Eight Hundred Twenty Nine Dollars ($86,829.00) or
or before January 30, 2019 by wire transfer of funds to AG's designated
bank account without setoff or recoupment (the "Second PaïiûSaf");
3.
Events of Default/Failure tn Make a Pavment.
a. The Settlement Amount, less any payments made under Paragraph 2, plus
default fees of $25,000.00 plus interest at the rate of ten percent (10) percent per week calculated
beginning on the Effective Date, shall become iramediately due and payable at the option of AG
upon the happening of any one or more of the following events of default (each an "Event of
Defauiri:
i. the nonpayment by TenX, Punelli and/or Jones to AG when due of the First
Payment and/or the Second Payment as set forth in Paragraph 2;
ii. violation of the waiver and prohibitions set forth in Paragraph 9, or
iii. if without the fiirther possibility of appeal or review:
1. TenX, Punelli and/or Jones and/or any entity of whibh TenX, Punelli
and/or Jones is a majority owner, meraber, majority shareholder or
officer is adjudicated as bankrupt or insolvent;
2. a receiver is appointed for ail or substantially ail of any of TenX s,
Punelli's and/or Jones's assets as a resuit of TenX, Punelli and/or
Jones insolvency;
3. a trustée is appointed for TenX, Punelli and/or Jones and/or any entity
of which TenX, Punelli and/or Jones is a majority owner, member,
majority shareholder or officer after a pétition has been fîled for
TenX's reorganization and/or the reorganization of any entity of which
TenX, Punelli and/or Jones is a majority owner, member, majority
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shareholder or officer, under chapter 11 of title 11 of the United States
Code (the 'Ttanlcniptcv Code"\ or any future law of the United States
of America having the same général purpose; or
4. TenX, Punelli and/or Jones shall niake an assignment for the benefit of
TenX's, Punelli's and/or Jones' creditors.
4.
Attorneys' Fees. If any action, matter or proceeding is brought for the
enforcement of this Settlement Agreement, and if AG shall recover judgment in any sum, AG
shall also recover reasonable attorneys' fees and expenses, which said attorneys' fees and
expenses shall be entered, allowed and paid as part of the decree of judgment in said action, suit
or proceeding.
5.
Warrantv. As an inducement to enter into this Settlement Agreement,
TenX, Punelli and Jones represent that, as of the time of exécution of this Settlement Agreement,
TenX, Punelli and Jones have no plans to file a pétition for bankruptcy protection and have no
knowledge that any of its creditors are seeking to require TenX, Punelli and Jones to pursue
involuntary bankruptcy protection. The Parties acknowledge that AG has reasonably relied upon
the foregoing représentations by TenX, Punelli and Jones in deciding to enter into this Settlement
Agreement and that such représentations were a material inducement in AG entering into this
Settlement Agreement. AG fuither expressly reserves the right to bring an action contesting the
dischargeabilily of TenX's and/or Punelli's and/or Jones' obligations to AG should TenX and/or
Punelli and/or Jones seek voluntary or involuntaiy bankruptcy protection during the pendency of
the Payment and, to the extent permitted by law, TenX, PuneUi and Jones agree not to oppose
any such action.
6.
. Acceotance of Service. Punelli and Jones agree to accept service of the
Complaint and ail supporting documents filed in any action by AG on behalf of themselvra and
TenX. TenX, Punelli and Jones waive any and ail available defenses with regard to service of
process. Should TenX, Punelli and/or Jones fail to make the Payment as set forth in P^graph 2,
AG may exercise ail rights and remédiés available to it to obtain a judgment against TenX,
Punelli and/or Jones for the full amount owed to AG under the Agreements.
7.
Defenses Waived. TenX, Punelli and Jones hereby waive any defenses
that may be available to them at law or equity as to any action filed against them by AG. TenX,
Punelli and Jones agree not to contest, dispute or otherwise oppose or seek dismissal of any such
action.
8.
Mutual Releases and Covenants Not to Sue.
a.
In considération for the promises made by TenX, Punelli and Jones
in the Settlement Agreement, AG, on behalf of itself, and ail of its current or former subsidiaries,
parents, partners, paitnerships, divisions, affiliâtes, insurers, members, dealers, officem,
directors, managers, employées, shareholders, assigns, attorneys, agents, and successors in
interest (collectively, the "AG Releasors"T hereby release and forever discharge TenX, Punelli
and Jones, and ail of their current or former subsidiaries, parents, partners, partnerships,
divisions, affiliâtes, insurers, members, dealers, officers, directors, managers, employées.
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shareholders, assigns, attorneys, agents, and successors in interest, and Dreyer from any and ail
daims, defenses, demands, actions, allégations, causes of action, debts, dues, accounts,
agreements, judgments, settlements, obligations, damages (whether incidental, consequential,
liquidated, ensuing or resulting), losses, costs, attorneys' fees and expenses of every kind and
nature whatsoever, known or unknown, fixed or contingent, alleged to have arisen, or related to
occurrences, under the Agreements. The Parties expressly agree and understand that the terms of
this release are not meant to release or limit any right of any AG Releasor to pursue daims, if
any, against TenX, Punelli and Jones other than those alleged to have arisen, or related to
occurrences, under the Agreements prior to the Effective Date. If any claim is ever made upon
AG for the repayment or return of any part of the Settlement Amount, and AG repays or retums
ail or part of said Settlement Amount by reason of (a) any judgment, decree or order of any court
or administrative body having jurisdiction over AG or (b) any settlement or compromise of any
such daim between AG and such claimant, then in such event the release given by AG to TenX,
Punelli and Jones herein shall be automatically null and void and the Parties shall be retumed to
their pre-Settlement Agreements positions, except that AG may retain any portion of the
Settlement Amount not repaid or retumed, crediting same against the amount claimed by AG.
As of December 20, 2018, the total amount claimed by AG against TenX, Punelli and Jones
arising under the Agreements was $126,829.00, which indudes the amount of Future
Receivables (as defîned in the Agreements) owed under the Agreements, related fees pursuant to
the Agreements and attorneys' fees and related costs as allowed under the Agi'eements.
b.
In considération for the promises made by AG in the Settlement
Agreement, Punelli and Jones, on behalf of themselves, and TenX, on behalf of itself, and ail of
their current or former subsidiaries, parents, partners, partnerships, divisions, affiliâtes, insurers,
members, dealers, officers, directors, managers, employées, shareholders, assigna, attorneys,
agents, and successors in interest, including any debtor in possession, trustée, receiver, or
examiner, whether appointed under state or fédéral law (collectively, the **TenX Releasors").
hereby release and forever discharge AG, as well as each of its subsidiaries, parents, partners,
partnerships, divisions, affiliâtes, insurers, members, dealers, officers, directors, managers,
employées, shareholders, assigns, attorneys, agents, and successors in interest, from any and ail
daims, defenses, demands, actions, allégations, causes of action, debts, dues, accounts,
agreements, judgments, settlements, obligations, damages (whether incidental, consequential,
liquidated, ensuing or resulting), losses, costs, attorneys* fees and expenses of every kind and
nature whatsoever, known or unknown, fixed or contingent, alleged to have arisen, or related to
occurrences, under the Agreements. In addition, the TenX Releasors and Punelli and Jones agree
to release any action seeking to avoid or clawback the Payment, including but not lunited to any
future action from TenX and/or Punelli and/or Jones, their successors and assigns, any future
bankruptcy représentative of TenX's and/or Punelli's and/or Jones', bankruptcy estate or the
équivalent under state law, including but not limited to any avoidance actions pursuant to chapter
5 of the Bankruptcy Code, other applicable fédéral non-bankiuptcy law or similar provisions
under state law. The Parties expressly agree and understand that die terms of this release are not
meant to release or limit any right of the TenX Releasors and/or Punelli and/or Jones to pursue
daims, if any, against AG other than those alleged to have arisen, or related to occurrences,
under the Agreements prior to the Effective Date. Further, regardless of any assertion to the
contrary related to this provision, TenX, Punelli and Jones, hereby fiiUy and forever waive any
and ail known and existing daims, demands, controversies, actions, causes ^of action, debts,
liabilities, rights, contracts, damages (direct and consequential), interest, finance charges, costs
(including attomeys' fees, court and litigation costs), expenses, indemnities, obligations, and
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losses of every kind or nature whatsoever, directly or indirectly related to, arising from or which
could be inferred or implied by or included in connection with the payment of légal fees, which
amoiints are incorporated into the Settlemcnt Amount.
9.
Governlng Law. This Settlement Agreement shall be govemed
exclusively by the laws of the State of Delaware, without regard to its choice-of-law principles.
10.
Choice of Forum.
The Parties consent to bring any claim or suit
arising under the Settlement Agi-eement exclusively in a court of compétent jurisdiction in the
State of Delaware.
11.
No Setoff or Recoupment. For the avoidance of doubt, no setoff related
or unrelated to any alleged claim or occurrence arising under the Agreement can be used by
TenX and/or Punelli and/or Jones, for setoff or recoupment of any amounts owed by TenX
and/or Punelli and/or Jones to AG under the Settlement Agreement or of any of the Payment or
portions of the Payment. Further, setoff and recoupment do not apply in any dispute between the
Parties under this Settlement Agreement, including, but not limited to, the payments set forth in
Paragraph 2.
12.
Compromise. It is understood and agreed by the Parties that this
Settlement Agreement is a compromise settlement of disputed claims and potential disputed
daims and counterclaims. This Settlement Agreement is solely the resuit of a good faith
compromise and settlement between the Parties. Nothing contained herein is or is to be
construed as an admission by any of the Parties of liability, wrongdoing, or responsibility, and
the Parties deny any such liability or wrongdoing and continue to disclaim such responsibility.
13.
Confidentialitv. Except as may be necessaiy to enforce this Settlement
Agreement, the Parties, including each party's respective officers, directors, représentatives and
attorneys, but specifîcally excluding accountants, auditors, insurers, reinsurers, officers, directors
and employées of AG and TenX, agree and warrant that they shall keep confidential the terms
and amount of this Settlement Agreement, and agree not to disclose to any other pa^, person or
entity any of the terms of this Settlement Agreement provided for herein, except (i) pursuant to
the written consent of the Parties, (ii) to support a defense based on any theory of claim
preclusion or a claim for breach of Settlement Agreement, (iii) as determined by any of the
Parties to be necessary in any action involving AG, TenX and/or Punelli and/or Jones,, or (iv)
unless required to do so by applicable law or by order of court or to their auditors, tax advisors or
as may be required reporting for AG, TenX and/or Punelli and/or Jones, in order to procure
future work, bonding or the like. In the event that this Settlement Agreement is subject to
requested disclosure by subpoena or other légal process, the party to whom such request is made
shall prompUy notify the Parties. The Pallies agree to take no action which is intended, or would
reasonably be expected, to harm any other Party or their réputations, or which is intended, or
would reasonably be expected, to lead to unwanted or unfavorable publicity for any other Party.
The Parties agree to the following statement goveming what the Parties may saw regarding the
Settlement Agreement and provisions contained hereini "the parties have reached an amicable
resolution."
14.
Acknowledpement bv Parties. The Parties acknowledge that they enter
into this Settlement Agreement with the advice and consent of counsel and that they do so
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knowingly and voluntarily, with the complété understanding of the ternis and conditions of this
Settlement Agreement. The Parties agree to cooperate to the extent reasonably necessary to
effectuate and implement ail terms and conditions of the Settlement Agreement. To the extent
that a Party is not represented by counsel with respect to the Settlement Agreement, such Party
hereby waives any claim related to the Settlement Agreement due to the fact that they are not
represented by counsel with respect thereto.
15.
Construction of Settlement Agreement. This Settlement Agreement is Ae
product of negotiations and préparation by and among the Parties hereto and their respective
attorneys. The Parties expressly acknowledge and agree that this Settlement Agreement shall not
be deemed prepared or drafted by one Party or another, or its attorneys, and will be construed
accordingly.
16.
Binding Effect. This Settlement Agreement shall be binding upon and
inure to the benefit of the Parties and their respective heirs, executors, administrators, settlors,
trustées, beneficiaries, predecessors, successors, assigns, partners, partnerships, parent,
subsidiary, affiliated and related entities, officers, dkectors, principals, agents, servants,
employées, représentatives, and ail persons, fiims, associations or corporations connected with
them, including, without limitation, their insurers, sureties, and attorneys. This Settlement
Agreement will also support a defense based on principles of collatéral estoppel, release, good
faith settlement or any other qjplicable theory of claim preclusion or issue preclusion with regard
to daims arising under the Agreement.
17.
Severabilitv. If any provision or any part of any provision of this
Settlement Agreement is for any reason held to be invalid, unenforceable or contrary to any
public policy, law, statute and/or ordinance, then the remainder of this Settlement Agreement
shall not be affected thereby and shall remain valid and fully enforceable, including, but not
limited to, Payment (Paragraph 2) and Defenses Waived (Paragraph 7).
18.
Counterparts.
This Settlement Agreement may be exècuted in
counterparts, delivered by electronic transmission, and ail so executed shall constitute an
agreement which shall be binding upon ail Parties hereto, notwithstanding that the signatures of
ail Parties' designated représentatives may not appear on the same page and/or may be
transmitted by electronic or facsimile means.
19.
Notices. Any notice, claim, refusai, demand, instructions, process or
communication required or permitted hereunder ("Notices") shall be given and shall be deemed
to have been properly given and served, if mailed by Fédéral Express, addressed as fbllows:
Any Notices to AG:
Azadian Group LLC
c/o Rafïî Azadian
600 Madison Avenue; 18"' Floor
New York, NY 10022
Any Notices to TenX:
215 Dépôt Court SB
Leesburg, VA 20175
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Any Notices to Funelli:
215 Dépôt Com1; SE
Leesburg, VA 20175
Any Notices to Jones:
215 bepot Court SE
Leesburg, VA 20175
20.
Entire Agreement. This Settlement Agreement, including the Récitals,
constitutes the entire understanding between and among the Parties with regard to tfae daims
released referenced herein and supersedes ail previous agreements or understandings wdth
respect to the daims released referenced herein. There are no représentations, warranties,
agreements, airangements or undertakings, oral or wiitten, between the Parties relating to the
subject matter of this Settlement Agreement that are not fuUy expressed herein. This
Settlement Agreement cannot be modified or amended unless said modification or amendment
is written and signed by ail Parties.
21.
Paraeraph Headincs. Paragraph headings in this Settlement Agreement
are for convenience of reference only and shall neither constitute a part of this Settlement
Agreement nor affect its interprétation.
22.
Service of Process. Each of the Parties inevocably consents to service of
process by Fédéral Express, to the address at which such Party is to receive Notice in
accordance with Paragraph 19 of this Settlement Agreement.
23.
No Third-Partv Benefidaries. Except for the Parties that are the subject of
the releases set forth herein, nothing in this Settlement Agreement shall be construed to give to
àny person or entity other than the Parties any légal or équitable right, remedy, interest or claim
under or in respect to this Settlement Agreement,
IN WITNESS WHEREOF, intending to be legally bound hereby, the Parties have
executed this Settlement Agreement on the date set forth below.
Date: Dec» 20, 2018
On Behalf of Azadian Group, LLC
By: Raffi Azadian
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m Behalf of TenX Group, LLC
By: James V. Punelli
Date:
Dec. 20.2018
mes V. Punelli, Indivldually
Date:
Dec. 20,2018
dividually
RaymonavC. Jones
Date:
Dec. 20,2018
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
AZADIAN GROUP, LLC, a
Delaware limited liability company,
Plaintiff,
C.A. No. N19C-04-235 CLS
V.
TENX CROUP, LLC, a Delaware
limited liability company, JAMES
V. PUNELLI, individually, and
RAYMOND C.JONES,
individually.
Défendants.
Date Submitted: Septcmber 24,2019
Date Decided: November 13,2019
Upon PlamUffAzadian Group, LLC's Motion for Summary Judgment
Granted.
Samuel L. Moultrie, Esquire, Greenberg Traurig, LLF, Wilminglon, Delaware,
Attorney for Plaintiff.
Steven T. Margolin, Esquire, Greenberg Iraurig, LLP, Wilmington, Delaware,
Attorney for Plaintiff.
Rolande Diaz, Esquire, Duniap, Bennett &
Ludwig, PLLC, Wilmington, Delaware,
Attorney for Défendants.
Tracy L. Pearson, Esquire, Duniap, Bennett & Ludwig, PLLC, Wilmington,
Delaware, Attorney for Défendants.
SCOTT,
J.
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On September 20, 2019, Défendant TenX Group, LLC—now known as
Panthera Enterprises, LLC—filed a Suggestion of Bankruptcy with this Court.
Accordingly, the proceedings against Panthera Enterprises, LLC/TenX Group, LLC
have been STAYED.
Before the Court is Pialntiff Azadian Group, LLC's ("PiaintifF") Motion for
Sumntary Judgment. For the foiiowing reasons, PiaintifPs motion is GRANTED.
Backeround
On April 25, 2019, Plaintiff filed this action against Défendants James V.
Punnelli and Raymond C. Jones ("Défendants"), alleging breach of contract. On
December 20, 2018, the parties entered into a Seulement Agreement. Plaintiff
allégés Défendants failed to pay $86,829.00 on or before January 30, 2019, as
required by the Seulement Agreement.
Parties* Assertions
On July 23,2019, Plaintiff filed this motion for summary judgment Plaintiff
argues that summary judgment is proper on ail of Défendants affirmative defenses
because Défendants contractually waived their right to defend against any action
Plaintiff would file to enforce the Seulement Agreement. Plaintiff points eut that
Défendants admitted to breaching the terms of the Settlement Agreement. Plaintiff
argues that summary judgment in its favor is appropriate because the terms of the
Settlement Agreement are unambiguous.
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On September 5,2019, Défendants filed their response. Défendants contend
that Plaintiff relies in errer on Great Lakes Chemical Corp, v. Pharmacia Corp, for
the proposition that Défendants waived ail défenses. Pharmacia Corp., Défendants
argue, concemed express disclaimers in a purchase agreement that prohibited daims
for fraud. Défendants further argue that Plaintiff waived its right to assert the
waiver-of-defenses clause because Plaintiff served process on Défendants via
Fédéral Express afler Défendants moved to dismiss for insuffîcient service of
process.^ Finally, Défendants argue that the Settiement Agreement is unenforceable
based on the doctrine of unconscionability.
Plaintiff filed a letter with the Çourt on September 16,2019 making addîtional
arguments in support of its position. Because this Court never gave Plaintiff formai
permission to file a reply brief, the Court has not taken into account the arguments
Plaintiff raised in the letter of September 16.
Standard of Review
Under Superior Court Rule of Civil Procédure 56, summary judgment is
proper when there is no genuine issue of materia! fact and the moving party is
entitled to judgment as a matter of law.^ Summary judgment will not be granted if
material facts are in dispute or if "it seems désirable to inquire more thoroughly into
'
OnNovember 4,2019, the Court denied Défendants* motion to dismiss.
^ Super. Ct. Civ. R. 56(c).
3
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the facts to cJarify the application of the law to the circumstances."^ Tîiis Court
considers ail of the facts in a light most favorable to the non-moving party.'*
Discussion
A.
Défendants' Breach of the Settlement Agreement
Plaintiff sued Défendants for one count: Breach of Agreement.^ Under
Delaware law, the éléments of a breach of contract claim are: 1) a contractual
obligation; 2) a breach of that obligation; and 3) resulting damages.^ Plaintiff and
Défendants entered into a Settlement Agreement Pursuant to the terms of this
Settlement Agreement, Défendants were obllgated to pay Plaintiff $86,829.00 on or
before January 30, 2019.'' Défendants did not make this payment.® Défendants'
failure to pay constitutes a breach of the Settlement Agreement, as expressly laid out
in Paragraph 3(a)(i) of the Agreement.^
Plaintiff suffered damages as a resuit of Défendants' breach. The Settlement
Agreement superseded two previous agreements between the parties where Plaintiff
^ Infante v. Horizon Servs., Inc.f 2019 WL 3992101, at * l (Del. Super. Aug. 23,
2019); Triumph Mortg, Corp. v. Glasgow Citgo, Inc., 2018 WL 1935968, at *3
(Del. Super. Apr. 19,2018),
^ Infante, 2019 WL 3992101, ai *1; Trnmph Mortg. Corp,, 2018 WL 1935968, at
*3.
^ Compl. 4-5.
^IntérimHealthcare, Inc. v. Spherion Corp,, 884 A.2d 513, 548 (DeL Super.
2005).
^ Compl. Ex. A, H 2(b).
® Answerlf 15.
® Compl. Ex. A, f 3(aXi).
4
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agreed to buy future receivables from Défendants. PlaintifF paid Défendants for
these receivables, Plaintiff did net receive $126,829.00 of these receivables.^'^ In
order to try to "avoid the expense and inconvenience of légal proceedings," Plaintiff
and Défendants entered into the Settlement Agreement.'' In this Settlement
Agreement, Défendants agreed to pay Plaintiff $126,829.00 for the receivables that
it never transferred to Plaintiff.'^ Plaintiff has been damaged by Défendants breach;
Plaintiff has paid for items which it did not receive from Défendants and has not
been repaid forthose items.
There is no genuine dispute of material fact regarding Plaintiff s breach of
contract claim. Défendants admit that they entered into the Settlement Agreement
with Plaintiff and admit that they did not pay $86,829.00 on or before January 30,
2019,'^ It is clear from the tenus of the Settlement Agreement that Défendants*
failure to make this payment constitutes a breach of the Agreement.
At issue is whether or not Plaintiff is entitled to judgment as a matter of law.
B.
Unconscionability of the Settlement Agreement
A contract is unconscionable when "no man in his senses and not under
delusion would make [it] on the one hand, and no honest or fair tnan would accept
Compl. Ex. A.
'
'
Compl, Ex. A.
Compl. Ex. A, K 2.
Answerf^ 12, 15.
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[it], on the other."^"* Unconscionability is an affirmative defense which must be
raised in an answer to a complaint.^^ Défendants did not list unconscionability as
one of their affirmative defenses in their Answer. Accordingiy, Défendants are
preciuded firom ralsing the doctrine of unconscionability now.
C.
PlaintifTs Waiver of the Waiver-of-Defenses Clause
Although waiver is an équitable defense, it "has been, for some time, used at
law as a valid defense to contract suits."^^ Waiver is the voiuntary and intentional
relinquishment of a known right. The standards for proving waiver are "quite
exacting," and the tacts relied upon to prove waiver must be unequivocalJ' Three
éléments must be satisfied before this Court will conclude a party has waived a
contractual provision: 1) there is a requirement or condition to be waived; 2) the
waiving party knows of the requirement or condition; and 3) the waiving party
intended to waive that requirement or condition.^®
Tulowitzki V. AîL Richfield Co,, 396 A.2d 956, 960 (Del. 1978).
Super, et Civ. R. 8(c); Jeffery v. Seven Seventeen Corp.y 461 A.2d 1009,1011
(Del. 1983); BAC Home Loans Servicing v. Brooks, 2012 WL 1405703, at *3 n.lO
(Del. Super. Feb. 3, 2012); see Canneîongo v. Fidelity America Small Bus. Iny.
Co.y 540 A.2d 435,440 (Del. 1988) ("The failure to timely assert an affirmative
defense constitutes waiver of the right to do se.")'
VSH Ventures v. Global Telesystems Grp., Inc. y 796 A.2d 7, 19 (Del. Super.
AeroGlobal Capital Mgmt, LLC v. Cirrus Indus.. Inc. y 871 A.2d 428,444 (Del.
2005).
'«M
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In the instant case, there is a requirement or condition to be waived—^the
waiver-of-defenses clause—^and Plaint! ff had knowledge of this requirement or
condition. The waiver-of-defenses clause is found in Paragraph 7 of the Settlement
Agreement Tn Paragraph 7, Défendants agreed to "waive any defenses that may be
available to them at law or equity as to any action filed against them by [Plaintiff],"*^
PlaintifF and Défendants both signed the Settlement Agreement, which évidences
Plaintiff s knowledge of Paragraph 7. The crux of Défendants* waiver argument
tums on whether or not Plaintiff intended to waive Paragraph 7.
Défendants contend that Plaintiff waived its right to assert Paragraph 7 when
Plaintiff served Défendants with process via Fédéral Express after Défendants filed
a motion to dismiss with this Court based on insufQcIent service of process. In
Paragraph 19 of the Settlement Agreement, both parties agreed to send ail process
via Fédéral Express. Contrary co that provision, Plaintiff originally served
Défendants via certified mail. At its cote, Défendants' argument is that: Plaintiff
waived its right to assert Paragraph 7 because it re-served Défendants with process
instead of relying on Paragraph 7 to dispose of Défendants' motion to dismiss.
The Court fmds that Plaintiff dld not intend to waive Paragraph 7. "[A]n
intention to waive must appear clear from the record evidence before summary
Compl. Ex. A., If 7.
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judgment is granted on this issue."^® At most, Plaintiff s actions might reasonably
be construed as a waiver oïParagraph d, where Défendants agreed to "waive any
and ail available defenses with regard to service of process."^* It is not reasonable
to construe Plaintiff s décision to re-serve process on Défendants as a waiver of
Paragraph 7. This Court reads a contract as a whoie and gives efîect to ail provisions
of the comract.^^ If the Court reads Paragraph 7 to cover defenses regarding service
of process, then Paragraph 6 would be rendered superfluous. This Court déclines to
read Paragraph 7 in such a manner. PlaintifPs act of re-serving process on
Défendants does not manifest an intent to waive the provisions of Paragraph 7.
D. Judgment as a Matfer of Law
The Court respects the freedom of contract and will uphold clear and
unainbiguous contracts between sophisticated parties.^^ Paragraph 7 prevents
Défendants from raislng any defenses to Plaintiff s claim.^'^ Thus, Défendants
waived their ability to raise ail of the affirmative defenses listed in their Answer.
AeroGîobaî Capital Mgmt, LLC^ 871 A.2d at 445.
CompL Ex. A,
T[ 6.
o /ta t
Sonitrol Holding Co. v. Marceau Investissements, 607 A.2d 1177, 1184 (Del.
1992); Troumouhis v. State, 2006 WL 1579776, at *4 (Del. Super. May 31,2006).
23 NACCO Indus., Inc. v. Applica, Inc., 997 A.2d 1,35 (Del. Ch. 2009).
2^ This Court finds the language used in the waiver-of-defenses clause to be clear
and unambiguous, Accordingly, the Court shall give effect to the clause s plain-
meaning. Osborn ex rei Osborn v. Kemp, 991 A.2d 1153, 1159-60 (Del. 2010).
8
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Défendants may net assert any of their affirmative defenses. Aiso, Défendants
admitted that they failed to pay $86,829.00 to Plaintiff, as per the terms of the
Settlement Agreement. Therefore, Plaintiff is entitled to judgment as a matter of
law.
Conclusion
For the aforementioned reasons, there are no genuine disputes of material fact
and Plaintiff is entitled to judgment as a matter of law. Accordingly, PlaintifTs
Motion for Summary Judgment is GRANTED.
IT ÏS SO ORDERED.
The Honorable Calvin L. Scott, Jn
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