Preview
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK . index No.:65T/95/2019
58 BEER LLC O/B/A URBAN VILLAGE BREWING COMPANY 5TIPUlATION OF SETFLEMENT
Plaintiff, AND GENERAL RELEA5ES
-against-
PROSPERO EQUIPMENT CORPORATION,and 5KRU D.O.O.
Defendants.
This SettlementAgreement and Release ("Agreement") ismade as ofJuly 22, 2020, by
and among the&!kwing parties:
• Plaintiff
SB Beer LLC D/B/A Urban Village Brewing Company ("SB Beer"), a
Pemsylvania Limited Company,
Liability with place
its principal of b::in::: at 1001
2'"I PA 19123.
N Philadelphia,
Street,
• Defendan: Pmspcm Equipment Corporation ("Prospero"), a New York Domestic
Corporation(DOS ID# 894228),with itsprincipalplace of businessat 123 Castleton
Street, NY
Pleasantville, 10570.
• hf=d=: $KR1J D.O.O. ("SK"), organized
a corporation under the lawsofSlovenia,
European with itsprincipalplace of business at Batuje 90, 5262 dmice,
Union,
Slovenia,EU. .
:
The above persons be referred as"Party."
shall as "Parties"and
to co!!cctively L,d:-:Lally
WHEREAS, on or aboutDecember 31,2019, SB Beer brought an actionin theSupreme !
Court of the Stateof New York County of New York, bearing Index Number 657795/2019,
seeking damages against bothProspero and SK (the"Action"),NYSECF Documents # Ithrouglt
WHEREAS, on January 8,2020, Prospero was piiissantBCL 306(b) served through the
NY Secretary of State,NYSECF D-:cmnm #? filedJanuary 8,2020, and service thereon was
camplete on January I8,2020.
WHEREAS, pursuant to an Admisice of Servicedated February 25, 2020, NYSECF
Document # 9, Prosperc also ::dmatedto serviceof process ofthe Summons, Complaird, and
Notice of Electronic Filing,allas of January 18, 2020,and Prospero waived alfjurisdicticñal
defenses; moreover the-eneder,Prospero's time to respond to theC:m;!:! ± was c×tended to
March 27, 2020.
WHEREAS, Prospera is according!y
now subjectto the SupremeCourt's jurisdiction.
WHEREAS, Prospero hasnotre:por,dedto the C:m;:!_!sor moved with respectthesame,
WHEREAS, Prospero'stime to answeror otherwi:c move withrespect has now
thereto,
expired.
2
F
WHEREAS, on June I8,2020, in co-;U-9 with CPLR 3215(g)(4),SB Beer forwarded
to Prospero,a copyof the Summons by first
class mail,
WHEREAS, SK was not formallyserved,but on or aboutJanuary 1, 2020 has received
copiesof theS:-=;s, the Complaint,and ofthe Noticeof ElectronicFiling.
WHEREAS, on theadvice of SK
its counsel, now wishes hereby to waive serviceof the
Summons, the C-;!:!:‡ and ofthe Notice of Electronic and submit
Filing, to the jur;sdict:õr.
of
the Supreme Court.
WHEREAS, SB Beer,Prospero, and SK, aftercc:=!±n with theirrespectivelegal
counsel,or having been affordedsüificiciit
:;;:±:!±y to do so, have
agreed to settle
the Action,
and fullyresolvethe disputesbetween them, except as expressly
provided herein.
NOW, THEREFORE, in exchange forgood and valuable consideration,inchding the
mutual c r±rent and ob:;gst;õñsspecifiedbelow, the receipt
and adequacy of which are .
hereby acknowicdged, the Partiesintendingto be fullybound and intcadiagto fullysettletheir
dispute,hereby agreeto the recitals
above and to the se**!ement
terms as follows:
I. .lurisdictiep.
Prospero and SK, eachfully submits to theSo me Court'sjurisdictiañ.
2. SettlepientPayment. Within live(5)days of thisAgreement, Prospero shallpay to SB
Beer, net$15,000.00 (the"Se!±ment Payment"), with any wiring or banking fees tobe paidby
!
Prospero.SB Beer shallreceive theSettlement Payment in full.
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. . I
!
3. . Prospero's falloreto timelyremit the Settlement Payment, In theevent SB Beer does
notreceive theSettleme;;tPayment byJuly 30, 2020,SB may pursuant to CPLR 3215(i)(I),and
without furthernotice,cause the JudgmentClerk toenter judgment againstPros pero,for15,000,
with interestthereon from lanuary I,2020 at thestatatcry9% rate,together with costs and
disbursements.
4. Repairs and Addin;:::! Work. Inadditionto theforegoing SeM!-eat Payment:
(A) Within thirty(30) days ofthe dateof thisAgrea=::::, SK shallatitssole costand
expense, supply and cause to be deliveredto SB Beer, one (1)teme-±r and one (1)
replacement arm, each brand new. SB Beer shallthen at its
convenience, and at sole
its costand
place"
expense, attemptor cause a repair
to attempt, tothe "clean in (CIP) featureon one of the
sixteen(16) tanks manufactured by SK and which Prospem previously sold toSB Beer. In the
event thatSB Beer shallnot have timelyreceived the ±e===Mer or thereplacement ann, SK
shallpromptly pay a delayfee to SBBeer of One Had=d Dollars ($100.00),foreach day or part
of day overthirty
(30) that
days thereafter, deliveryof the ±:=:-eter or ofthereplacement arm,
shallhave been delayed toSB Beer.
.
(B) Upon receipt
of the replacementarm, SB Beer shall and expense,
at its sole cost install
or causeto be ire!!ed the replacement arm on any one of SB Beer'stanks. At Prospero's sole
cost and expense,Pros peroshallpro:::ptlypick up or causeto be picked up, thedefective arm
removed in lieu
ofthe rep!:ce:=entarm. Prospero
Thereafter, shallpro-pt!y examine the defective
arm removed by SB Beer. Upon SB Beer's satisectionwith the replacement arm and with its
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performarice, SB Beer shallso notifyProspero of itsacceptancethereof (hereafter"SB Beer's
Replacernent Arm Acceptance")
(C) Within (60) days after SB Beer's Replacement Arm Acceptance. Prospero shall
.
formulate and convey to SB Beer, a plan toreplace withnew tank arms, alltankarms on the
remaining fifteen(15) tanksthatProspero previouslysold to SB Beer,allat Prospero'ssolecost
and expense (the "Plan"). Prospero shallpay prompty SB Beer,a delay fee ofOne Hundred
Dollars($100.00) foreach day or partof day over sixty(60)days themeRer, thatProspero shall
not have T---s:::d or conveyed the Plan toSB Beer. Acceptance of any Pion,shall be atSB
Beer'ssole discretion:
SB Beer may acceptany Plan, reject
it, or require
m~'T:±ns thereto
(D) Within fifteen(15) days after
SB Beer shallhave requestedany m~8iGeetbas to the
Plan, Pre3pers shall fe--bte and convey to SB Beer,Prospero's revised Plan, reasonably
icec;:r±g any such equested modifications.Within thirty(30)days afterSB Beer shallhave
rejectedthe Plan,Prospero shallprovide to SB Beer,Prospero 's . :::.,;a
Plan, allayingSB
Beer'sconcerns about Prospero'srep!ecement tank
of all arms on the re--es-g fifteen(15)tanks
thatProspero previouslysold to SBBeer.
(E) Fe"ewkg SB Beer's SB Beer's acceptance of Prospero'srevisedPlan, or Prospero s
5:2::.*:Plan,as the case maybe, Prosperoshallat Prospero's
sole costand expense,deliverand
replacealltankarms in SB Beer's tanksthatProspero p=We !y soldto SBBeer. Prospero agrees
and ack¡icMedges thatno tank atSB Beer's premises,shallbe put outof servicefor more than
one business
( i) day. For each :dd al dayor partof daythata tankis outof Prospero
service,
shall to SB Beer a delayfee ofOne Hand:cd Dollars(S100,00) per day pertank.
p==pdy pay
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I
(F) Upon receiptof the replacement the-emeter, SS Beer shallat itssole cost and
expense, install
or causeto be installed,
the said thermometeron any one of SB Beer's tanks. At
Prospero'ssolecost and expense,SB Beer shallretum to Prospero,thethe--rer removed in
lieuofthe replacement Upon SB Beer's satidhreco with thc:-ommr
the rep!:cemer.t and with
itsperfemence, SB Beer shall so notifyProspero ofits acceptancethereof
(he:caecr "SB Beer's
Thermometer Acceptance").
(G) Within thirty(30) days of SB Beer's The-emeter Acceptance, SK shallat its
sole
costand expense, deliveran add!ticr£fifteen
(15) thermometers toSB Beer. In the eventthatany
ofsaidthe===:c-:is not timelydeliveredto SB Beer,SK shallpromptly pay to SB Beer,a delay
fee ofOne Hundred Dollars ($100.00)for cach day
or partof day over (30)
thirty days thatdelivery
of any of saidthe===ters is delayed. Following SB Beer's Theremeter Acceptance, at
Prospero'ssolecost and expense,Prospero shallreplacealltF-ese±±ters inSB Beer's(anks that
Prospero previouslysoldto SB Beer.
(H) Within one hundred and eighty(180) days ofthe dateof this Agreement, Prospero
shallat cost
its sole and expense, purchase and supply one (1)SiFA 208v keg washer. Prospero
shallordersaid keg washer,pramptly upon fullexecutionnfthisAgreement. Prospei·oshallatits
own costand expense,deliveror causesaid keg washer tobe delivered toSB Beer. Withinthirty
(30) daysafterthe date of
thisAgreement, Prospero shall
deliverto SB Beer,a spedfkah sheet
forthe foregoingkeg washer. Prospero shallpay to SBBeer,a delay fee of
One Hundred Dollars
(S100.00)for eachday or part
of day overone hundred and eighty(I80) days,thardelivery ofsaid
keg washer is delayedto SB Beer.
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(1) The Partieshave agreed,thatat Prospero'ssolecost andexpense, Mr Nyle Baker has
been retainedto perform welding work atSB Beer's plant,and thatsaid welding work isnow
complete. · ·
.
(3) Thedelay feeshe-atefe-s are nota penalty,but •-pr--enta fairand rewr,‡:a good-
faithestimate of SB Beer's damages by reason of Prospero'sand/or SK's delays in complying
with their
respectiveoblig=tionshereof.Fede-ere, the said delay
fees are based
upon SB Beer's .
reasonablec::;:t:!::: of the damage toits business
by reason ofProspero's and/or SK's delay
of performance,of their
respectivechiigatiee hereinabove.
(K) Upon SK's timelydeliveryof the sixteen
(16) the--:==ter,,(one (1)±e-•ester as
per Article
4(A),plus fifteen
(15)thes c:±s as per Article
4(G), bothbre!e:Eew), and timely
delivery of the =;!a~2mentarm as perArticle 4(A),allbrand new, allto SBBeer, and upon SK's
pay-ent to SB Beer of any and alldelayfees if all
applicable, as aforesaid,SK shallbe deemed
satisfiedto havefullysatisfied
allof SK's obligaticña Ag-ement.
in this
5. SB Beer's remedies in the eventof Prospero or SK's failureto comply with their
respec.tive._o-htimations.
In the event Prospero or SK shallhave failed to comply with their
respectiveobligationshereunder to SB Beer's SB
satisfaction, Beer may apply to theSupreme
.
Court,foran order enforcingthisStipe!±!!enand grantingleaveto enteran appropriatejudgmeat
afterinquestor ather,vise,
or foran orderamending any judgent.
existing
6. Time beine of the essence.With respectto all
deadlines in.this
Agreement, time is ofthe
essence.
7. Stay of theAction. The Partiesagree thisActionshallbe hereby stayedfor up totwelve
(12)months to enable
Prospero and SK to fully
comply with their
respectiveobliga:ians
hereunder.
8. Stip;;h:tio=sof Discontin=ance. Within ten (10) days of SK's completion of its
obligat:;asdescribed in4 (A) and 4 (G)of thisAgreement, toSB Beer's SB
satisfaction, Beer
shallfilewith the Court a S:!;:!:±: of Disc;±;r.:c of the Action as to SK only, with
prejudice.Within ten (10)days of Prospero's c=;!:62 of its;i:‡;uens described in 4 (B)
through4 (F),and 4 (H)of thisAgreement, toSB Beer's SB
satisfactica, Beershall file
with the
Courf of
a Stipula*ien Disce±±ece ofthe Action as toProspero,with prejudice.
. -
9. Mutual General Releases. .
in exchange forthe Settlement Payment setforth inthisAgmeens, and othergood and
valuable consideration,includingthe mutuni commitments and ablig::Eonsspecifiedherein,the
receipt of which c::;!!::-
and adequacy are herebyacknow:cdged, and upon Prospero's e ofits
ab: an;as in this
Ag:ce=nt to SB Beer's SB Beer,
satisfaction, its agents
on behalfofitself, and
assigns,does hereby remise,waive,releaseand foreverdischarge Prospero,along withitsagents
..,,....tatives,
attomeys,employm successors,and assigns,of and from,any and allactions,
causes ofaction,suits,
claims, thirdpartyclaims,gamishmems, ind::aninestian, and
contribution,
de.cnds whatsoever, known or unknown, which SB Beer ever had,now has,or he=fier can,
shall,ormay have, from thebeginning of the worldtothe dateof thisAgreement, iñdüding but
not limitedto the claims
SB Beer assertedin the Action.
Inexchange forthe mutualcrrr!!:±s and ;h!!g::icasspecifiedherein,and othergood
and valuableconsidemden, and
the receipt adequacy ofwhich are herebyacknowledged,and upon
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SK's c::f!:re ofitsob:igatisasin this Agreementto SB Beer's SB
satisfactica, Beer, on behalf
its agents
ofitself, and assigns,
does hereby remise,waive,release and forever
dischargeSK, along
with itsagents,representatives,
attomeys,employees, successors, and assigns,of and from, any
and all causes
actions, ofaction,suits,claims,thirdpartyclaims, gar-!::hm--ts,f adcinñiñcation,
and
contribution, dcmañds wh±eever, known or unknown, which SB Beer ever had,now has,or
hereaftercan,shall,or may have, from thebeghñkg of the worldtothe dateof thisAgreement,
inc:üdiñgbut notlimitedtothe claimsSB Beer assertedin the Action.
In exchange forgood and valuableconsideration,includingthe mutual ::m=!±:nts and
ab|iga:is,aspecified herein, the receiptand edcýsâcy of which are hereby acknowledged,
Prospero, on behalf of its
itself, agents and assigns,does hereby immediebly, remise, waive
discharge
release and forever SB Beer,along with its agents,
representatives, employees
attorneys,
i
successors,and assigns,ofand from any and all
actions,causes ofaction,suits,
claims,thirdparty
claims, indca -= contribution,and demands known or
garnishments, -5 whatsoever,
unknown, which Prospero ever had, now have or hereaftercan, shall,or may have, from the
beginning of theworld to the date
of thisAg••ement, includingwithout !!mh:!:: the S12,689.75
balance or whateverbalance thatProsperoalleged thatSB Beer owed to Prospero.
In exchange forgood and valuableconsidention, includingthe mutual ::mr!:m::5 and
c‡-:!::: specifiedherein,the receipt
and adequacy of which are herebyacknow!edged, SK, on
behalfof and
itself itsagents and assigns,does hereby immed!::ely, remise, waive, releaseand
forever discharge SB Beer, along with its agents, representatives,attorneys,cmp!cy-ces,
successors,and assigns,ofand from any and all
actions,causes ofaction,suits,
claims,thirdparty
claims, garnishments, indemniEeetion, contribution,and demands whatsoever, known or
9
I
unknown, which SK, ever had,now have or hereafter
can,shall,or may have,from the bci;:nning
of the worldto the date
of thisAgreement.
10. NoRelease of claims arisinPout ofthe provisions of this
Ag reem_ep_t. NGive!:b::nd|:g
=nything to thecontraryhereof,the Mutual Relea::: clauscat Article
9 inthis Agreement. shall
notaffect,discharge,or releaseany rightsor ±!!g±::: of thePartieshereto,arising out ofthe
provisionsofthisAgreement.
I l. No admission of wrongdphig. The Partiesagree that thisAgroomeñt representsa
seM!eme± of disputed claims. The Partiesfurtheragree thatupon SK's and Prospero's fulland
timely cc--!i:::c herewith, neitherthisAgicc:r.catnor thefurnishingof consideration forthis
Agreement shallbe deemed or construed atany time forany purpose as an admiss!en of any
fault
liability, or wrongdoing, or as an Em!::ion by any Partyof ü lawful conduct of any kind.
The Partiesacknowledge thatthey are cateringintothisAgreement solelyin ordertoput to rest
allconizeveniesbetween them. Notecf;hranding the foregoing,
or::3±!;g hereinto the contrary,
thisAgreement and/orthe co-.dd:md;n paid forp=uant thisAgreamcat may be used by SB Beer
to establish
its darnages
by reason ofProspero'sand/orSK's breachof their obligations
respective
hereof,in anyproceeding againstProspero and/or SK.
12. M;d!s:=tion. This Age.ent cannot be =:dif:d or waivedexcept in writingsigned by
each ofthe Parties. waiverof any of the terms
or cWM=ofthis Agreementon any occasion
Any
shallnot co=tit± a waiver orthose terms and conditionsor ofany other termsor conditions of
thisAgreemeñ:on any otheror futureoccasion.
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13. No ma•hmment. The Parties
expressly warrantand represent toeach other thatno Party
willassign, this
or transfer, Agreement in wholeor in part
without the writtenconsent ofthe other
two (2) except
Parties, thatSB Beer may assignor transfer
this Agreement inwhole or inpart,
days'
upon seven (7) writtennoticeto SK and Prospero,in the eventofa sale or other
disposition
. .
by SB Beer of itsbusiness.
14. Af fE±:al Oblientions. Each of the Partiesagrees atno cost to theother Parties,to
i==;:!y execute allsuch furtherand otherdocuments, and totake allsuch further
action,as an
IAS Judge may instructinorder to so-orderthisAgreement or otherwise,or as may be deemed
reasonably necessary or re=onabFf advisable to effectuatethe intentand purposes of this
Agreement .
15. Binding Effect. This Agreement shallbe binding upon and inureto the benefitof the
Partiesand their
managers, partners,officers,
directors,members, shareholders, agents,
principals,
employees, predecessors,successors,assigns,parents,subsidiaries
and affiliates,
16. Severability. ifany term ofthisAgst is to anyextent otherwise
illegal, or
invalid,
incapable of being enforced, such term shall be excluded to the extentof such invalidityor
unenfe:-3mty; allother tenns hereofshalltemain in full
force and effect;and, tothe extent
permittedand possible,the or unenfeeb!e
invalid term shallbe deemed replaced by a termthat
isvalid and enforceable and that comes closest toe:çm=°:;g the eten'be of such invalidor . .
enenfer-eb!e term. Ifapp4cetbn of thisSeverabilityi:::±!:: should =:::-i:!jyand adversely
affect the ecenemic substance of the transactionscontemplated hereby, the Party adversely
impacted shallbe entitled
to compensation forsuch adverse impact, provided the reason forthe
!-- or unenfarccat"iti
:Ediry of a termis not
due to seriousmist--dect by the Partyseekingsuch
compensation.
Attorneys' attorneys'
17. fee)and expenses. The Partiesshalleach bear theirown feesand
other expenses ifany, incurred in conacction with the negotieth of thisAg-e==t and/or
compinace with theirrespective
obligâtkas hereof.
I 8. Entire Agreement. This Agreement ce=titutesthe entireagement of theParties,and
supersedes sil prior and conto--enne:::3 written and oral agreements, understandings, and
negotiations.
19. Contro frofctmtat. No Partyshallbe viewed as thedrafterof thisAgreement as all
Partiesparticipated
inthe ::ej;otict!=
of its terms.
20. Hcadi=zs. The headings contained inthis Agreement are force.rz=!=:c only and shall
not be interpre::d
to limit
or otherwiseaffectthe provisions
hereof.
J
21. Reeltats. Allof the recital
(WHEREAS) clausesabove are incorporatedas if
fullyset forth
herein.
22. Initiating.Each Party was instructed
to initial
every page in additiontosigning the last
page ofthisAg-m=•, however the failure
to so initiaicach
page shallnotrelieveany such Party
from the legal
effectof thisAgreement.
!-
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23. No contractspreven tingthis Agreement. The Partiesfurther representand warrant to
each other,thatneitheris a party
to any agreements howsoever innature, thatiswfully prevent
theirentering intothisAgreement.
;
24. Acknow!+ment of Advice of,and repres=!:t!:: by Counsel, Each of the Parties
hereby represents and warrantsto theothers, thatpriorto executing thisAgreement cach such
Pady:
a. Has had the advice
of tegalcounselof its chsdag in acr±±r forand in the preparation
of this
Agreemcr.t, or has had hadsufficient
apportunityto do so;
b. Has read theAgreement, and aware
is fully of and legal
its contents effect,and ofitsrights
and chlig=donshereunder; and
c. Has been advised by legalcounselof itschandng, on allof theterms and effectsof this
Agreement, and that and
it is freely voluñ::dly enteringintoand executingthisAgreement
with no coercion of any kind, and upon the recommendation of theirown respective
counsellorsthattheydo so.
Individuals' warrantles.
25. mpresentations and
Dave naldman thisAgreement on behalfof SB Beer, represents
and warrants to Prospero
signing
and to SK,that:
a. He is authorizedto signthisAgreement on SB Beer'sbehalf,and thatallcorporate ±=r!!±2
on SB Beer'spart,necessary tothe entry intoforceand performance of thisAgnement, have
been complied with;and
13
b. SB Beer is not
a partyto any agreements with thidp=•+Eesthatpreclude theentry intoforce of
cer;" e herewith.
thisAgreement, or thatimpede SB Beer's fulland timely
Danny Prospero,signing thisAg•*ement on behalfof Prospero, r:prescñtsand w:=± to SB
Beer and toSK, that:
c. He is authorizedto signthisAgreement on Prospero'sbehalf,and thatallcorporate farma|ities
on Prospero's part,necessarytothe entryinto forceand perfemance of thisAgreemmt, have
been complied with;and .
d. Prospero is not
a party to anyagreements with third-parties
thatpreclude the entryintoforce of
thisAgreement, or thatimpede Prospero's fulland timelyc:r;!!:::e herewith.
Marko $krijsigning thisAgreement on behalfof SK, representsand warrants to SB Beer and to
that·
Prospero,
a. He is acacritedto signthisAgreement on SK's behalf, and thatallcorporate fo=a!!ties on
SK's part,necessary to theentry into forceand pe-fe:mace of thisAg==:=:, have been
complied with;and
b. SK is nota partyto anyagreements with ±!rd ;:-tiesthatpreclude the entryintoforce of this
Agreement, or thatimpede SK's fulland timelycompliance herewith.
. .
26. $_ogggs.Any notice,demand,requestor otherbermer!:etion given or =;ñed to be given
under thisAgreement shallbe deemed given
siifficierd:y or rendered ifin writing,and sent by
email only,and addressed as follows:
14
a. To SB Beer:To Dave Goldman atdaveiüturbunvillasehrewinn.com. each time witha copy
toAlan Reuter,Esq.at A Reuter!itthenashimentm.com,
b. To Prospero:: ToDanny Prospero at do.rnspero@orosm,-wn,.bia each timewith a copy to
Mario P. Musilli,
Esq. at 1purio@musillila c,gna.
c. To SK: To Marko $krijat markoskrijGsk-skrli,com, each time with a to Karmen
copy
Zalesjakat Karmen.Zalesiakesic-skrli.com.
Notices shallbe deemed given as ofthe nextbusinessday fe!!owingany such emails.
27. Rennest thatSh••h&= be so-ordered. Upon execution ofthisStipehtie,SB Beer may
but is not
obligated to at anytime, a request
file forjudicial to seek an IAS
intervention, Judge to .
so-orderthis Stip±f:ñ. However, failure
of an IAS Judge to so-order
thisE:‡±2:ñ shallaffect
neitheritsvalidity nor itscafarceability.
The Partieshereby agree to be fully bound by this :
Sti;±±n, irrespective
of whether itis so-ordered. In the event thatan IAS Judge, requires
Prospero and/orSK to retain
Preview
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK . index No.:65T/95/2019 58 BEER LLC O/B/A URBAN VILLAGE BREWING COMPANY 5TIPUlATION OF SETFLEMENT Plaintiff, AND GENERAL RELEA5ES -against- PROSPERO EQUIPMENT CORPORATION,and 5KRU D.O.O. Defendants. This SettlementAgreement and Release ("Agreement") ismade as ofJuly 22, 2020, by and among the&!kwing parties: • Plaintiff SB Beer LLC D/B/A Urban Village Brewing Company ("SB Beer"), a Pemsylvania Limited Company, Liability with place its principal of b::in::: at 1001 2'"I PA 19123. N Philadelphia, Street, • Defendan: Pmspcm Equipment Corporation ("Prospero"), a New York Domestic Corporation(DOS ID# 894228),with itsprincipalplace of businessat 123 Castleton Street, NY Pleasantville, 10570. • hf=d=: $KR1J D.O.O. ("SK"), organized a corporation under the lawsofSlovenia, European with itsprincipalplace of business at Batuje 90, 5262 dmice, Union, Slovenia,EU. . : The above persons be referred as"Party." shall as "Parties"and to co!!cctively L,d:-:Lally WHEREAS, on or aboutDecember 31,2019, SB Beer brought an actionin theSupreme ! Court of the Stateof New York County of New York, bearing Index Number 657795/2019, seeking damages against bothProspero and SK (the"Action"),NYSECF Documents # Ithrouglt WHEREAS, on January 8,2020, Prospero was piiissantBCL 306(b) served through the NY Secretary of State,NYSECF D-:cmnm #? filedJanuary 8,2020, and service thereon was camplete on January I8,2020. WHEREAS, pursuant to an Admisice of Servicedated February 25, 2020, NYSECF Document # 9, Prosperc also ::dmatedto serviceof process ofthe Summons, Complaird, and Notice of Electronic Filing,allas of January 18, 2020,and Prospero waived alfjurisdicticñal defenses; moreover the-eneder,Prospero's time to respond to theC:m;!:! ± was c×tended to March 27, 2020. WHEREAS, Prospera is according!y now subjectto the SupremeCourt's jurisdiction. WHEREAS, Prospero hasnotre:por,dedto the C:m;:!_!sor moved with respectthesame, WHEREAS, Prospero'stime to answeror otherwi:c move withrespect has now thereto, expired. 2 F WHEREAS, on June I8,2020, in co-;U-9 with CPLR 3215(g)(4),SB Beer forwarded to Prospero,a copyof the Summons by first class mail, WHEREAS, SK was not formallyserved,but on or aboutJanuary 1, 2020 has received copiesof theS:-=;s, the Complaint,and ofthe Noticeof ElectronicFiling. WHEREAS, on theadvice of SK its counsel, now wishes hereby to waive serviceof the Summons, the C-;!:!:‡ and ofthe Notice of Electronic and submit Filing, to the jur;sdict:õr. of the Supreme Court. WHEREAS, SB Beer,Prospero, and SK, aftercc:=!±n with theirrespectivelegal counsel,or having been affordedsüificiciit :;;:±:!±y to do so, have agreed to settle the Action, and fullyresolvethe disputesbetween them, except as expressly provided herein. NOW, THEREFORE, in exchange forgood and valuable consideration,inchding the mutual c r±rent and ob:;gst;õñsspecifiedbelow, the receipt and adequacy of which are . hereby acknowicdged, the Partiesintendingto be fullybound and intcadiagto fullysettletheir dispute,hereby agreeto the recitals above and to the se**!ement terms as follows: I. .lurisdictiep. Prospero and SK, eachfully submits to theSo me Court'sjurisdictiañ. 2. SettlepientPayment. Within live(5)days of thisAgreement, Prospero shallpay to SB Beer, net$15,000.00 (the"Se!±ment Payment"), with any wiring or banking fees tobe paidby ! Prospero.SB Beer shallreceive theSettlement Payment in full. 3 . . I ! 3. . Prospero's falloreto timelyremit the Settlement Payment, In theevent SB Beer does notreceive theSettleme;;tPayment byJuly 30, 2020,SB may pursuant to CPLR 3215(i)(I),and without furthernotice,cause the JudgmentClerk toenter judgment againstPros pero,for15,000, with interestthereon from lanuary I,2020 at thestatatcry9% rate,together with costs and disbursements. 4. Repairs and Addin;:::! Work. Inadditionto theforegoing SeM!-eat Payment: (A) Within thirty(30) days ofthe dateof thisAgrea=::::, SK shallatitssole costand expense, supply and cause to be deliveredto SB Beer, one (1)teme-±r and one (1) replacement arm, each brand new. SB Beer shallthen at its convenience, and at sole its costand place" expense, attemptor cause a repair to attempt, tothe "clean in (CIP) featureon one of the sixteen(16) tanks manufactured by SK and which Prospem previously sold toSB Beer. In the event thatSB Beer shallnot have timelyreceived the ±e===Mer or thereplacement ann, SK shallpromptly pay a delayfee to SBBeer of One Had=d Dollars ($100.00),foreach day or part of day overthirty (30) that days thereafter, deliveryof the ±:=:-eter or ofthereplacement arm, shallhave been delayed toSB Beer. . (B) Upon receipt of the replacementarm, SB Beer shall and expense, at its sole cost install or causeto be ire!!ed the replacement arm on any one of SB Beer'stanks. At Prospero's sole cost and expense,Pros peroshallpro:::ptlypick up or causeto be picked up, thedefective arm removed in lieu ofthe rep!:ce:=entarm. Prospero Thereafter, shallpro-pt!y examine the defective arm removed by SB Beer. Upon SB Beer's satisectionwith the replacement arm and with its 4 performarice, SB Beer shallso notifyProspero of itsacceptancethereof (hereafter"SB Beer's Replacernent Arm Acceptance") (C) Within (60) days after SB Beer's Replacement Arm Acceptance. Prospero shall . formulate and convey to SB Beer, a plan toreplace withnew tank arms, alltankarms on the remaining fifteen(15) tanksthatProspero previouslysold to SB Beer,allat Prospero'ssolecost and expense (the "Plan"). Prospero shallpay prompty SB Beer,a delay fee ofOne Hundred Dollars($100.00) foreach day or partof day over sixty(60)days themeRer, thatProspero shall not have T---s:::d or conveyed the Plan toSB Beer. Acceptance of any Pion,shall be atSB Beer'ssole discretion: SB Beer may acceptany Plan, reject it, or require m~'T:±ns thereto (D) Within fifteen(15) days after SB Beer shallhave requestedany m~8iGeetbas to the Plan, Pre3pers shall fe--bte and convey to SB Beer,Prospero's revised Plan, reasonably icec;:r±g any such equested modifications.Within thirty(30)days afterSB Beer shallhave rejectedthe Plan,Prospero shallprovide to SB Beer,Prospero 's . :::.,;a Plan, allayingSB Beer'sconcerns about Prospero'srep!ecement tank of all arms on the re--es-g fifteen(15)tanks thatProspero previouslysold to SBBeer. (E) Fe"ewkg SB Beer's SB Beer's acceptance of Prospero'srevisedPlan, or Prospero s 5:2::.*:Plan,as the case maybe, Prosperoshallat Prospero's sole costand expense,deliverand replacealltankarms in SB Beer's tanksthatProspero p=We !y soldto SBBeer. Prospero agrees and ack¡icMedges thatno tank atSB Beer's premises,shallbe put outof servicefor more than one business ( i) day. For each :dd al dayor partof daythata tankis outof Prospero service, shall to SB Beer a delayfee ofOne Hand:cd Dollars(S100,00) per day pertank. p==pdy pay 5 I (F) Upon receiptof the replacement the-emeter, SS Beer shallat itssole cost and expense, install or causeto be installed, the said thermometeron any one of SB Beer's tanks. At Prospero'ssolecost and expense,SB Beer shallretum to Prospero,thethe--rer removed in lieuofthe replacement Upon SB Beer's satidhreco with thc:-ommr the rep!:cemer.t and with itsperfemence, SB Beer shall so notifyProspero ofits acceptancethereof (he:caecr "SB Beer's Thermometer Acceptance"). (G) Within thirty(30) days of SB Beer's The-emeter Acceptance, SK shallat its sole costand expense, deliveran add!ticr£fifteen (15) thermometers toSB Beer. In the eventthatany ofsaidthe===:c-:is not timelydeliveredto SB Beer,SK shallpromptly pay to SB Beer,a delay fee ofOne Hundred Dollars ($100.00)for cach day or partof day over (30) thirty days thatdelivery of any of saidthe===ters is delayed. Following SB Beer's Theremeter Acceptance, at Prospero'ssolecost and expense,Prospero shallreplacealltF-ese±±ters inSB Beer's(anks that Prospero previouslysoldto SB Beer. (H) Within one hundred and eighty(180) days ofthe dateof this Agreement, Prospero shallat cost its sole and expense, purchase and supply one (1)SiFA 208v keg washer. Prospero shallordersaid keg washer,pramptly upon fullexecutionnfthisAgreement. Prospei·oshallatits own costand expense,deliveror causesaid keg washer tobe delivered toSB Beer. Withinthirty (30) daysafterthe date of thisAgreement, Prospero shall deliverto SB Beer,a spedfkah sheet forthe foregoingkeg washer. Prospero shallpay to SBBeer,a delay fee of One Hundred Dollars (S100.00)for eachday or part of day overone hundred and eighty(I80) days,thardelivery ofsaid keg washer is delayedto SB Beer. 6 (1) The Partieshave agreed,thatat Prospero'ssolecost andexpense, Mr Nyle Baker has been retainedto perform welding work atSB Beer's plant,and thatsaid welding work isnow complete. · · . (3) Thedelay feeshe-atefe-s are nota penalty,but •-pr--enta fairand rewr,‡:a good- faithestimate of SB Beer's damages by reason of Prospero'sand/or SK's delays in complying with their respectiveoblig=tionshereof.Fede-ere, the said delay fees are based upon SB Beer's . reasonablec::;:t:!::: of the damage toits business by reason ofProspero's and/or SK's delay of performance,of their respectivechiigatiee hereinabove. (K) Upon SK's timelydeliveryof the sixteen (16) the--:==ter,,(one (1)±e-•ester as per Article 4(A),plus fifteen (15)thes c:±s as per Article 4(G), bothbre!e:Eew), and timely delivery of the =;!a~2mentarm as perArticle 4(A),allbrand new, allto SBBeer, and upon SK's pay-ent to SB Beer of any and alldelayfees if all applicable, as aforesaid,SK shallbe deemed satisfiedto havefullysatisfied allof SK's obligaticña Ag-ement. in this 5. SB Beer's remedies in the eventof Prospero or SK's failureto comply with their respec.tive._o-htimations. In the event Prospero or SK shallhave failed to comply with their respectiveobligationshereunder to SB Beer's SB satisfaction, Beer may apply to theSupreme . Court,foran order enforcingthisStipe!±!!enand grantingleaveto enteran appropriatejudgmeat afterinquestor ather,vise, or foran orderamending any judgent. existing 6. Time beine of the essence.With respectto all deadlines in.this Agreement, time is ofthe essence. 7. Stay of theAction. The Partiesagree thisActionshallbe hereby stayedfor up totwelve (12)months to enable Prospero and SK to fully comply with their respectiveobliga:ians hereunder. 8. Stip;;h:tio=sof Discontin=ance. Within ten (10) days of SK's completion of its obligat:;asdescribed in4 (A) and 4 (G)of thisAgreement, toSB Beer's SB satisfaction, Beer shallfilewith the Court a S:!;:!:±: of Disc;±;r.:c of the Action as to SK only, with prejudice.Within ten (10)days of Prospero's c=;!:62 of its;i:‡;uens described in 4 (B) through4 (F),and 4 (H)of thisAgreement, toSB Beer's SB satisfactica, Beershall file with the Courf of a Stipula*ien Disce±±ece ofthe Action as toProspero,with prejudice. . - 9. Mutual General Releases. . in exchange forthe Settlement Payment setforth inthisAgmeens, and othergood and valuable consideration,includingthe mutuni commitments and ablig::Eonsspecifiedherein,the receipt of which c::;!!::- and adequacy are herebyacknow:cdged, and upon Prospero's e ofits ab: an;as in this Ag:ce=nt to SB Beer's SB Beer, satisfaction, its agents on behalfofitself, and assigns,does hereby remise,waive,releaseand foreverdischarge Prospero,along withitsagents ..,,....tatives, attomeys,employm successors,and assigns,of and from,any and allactions, causes ofaction,suits, claims, thirdpartyclaims,gamishmems, ind::aninestian, and contribution, de.cnds whatsoever, known or unknown, which SB Beer ever had,now has,or he=fier can, shall,ormay have, from thebeginning of the worldtothe dateof thisAgreement, iñdüding but not limitedto the claims SB Beer assertedin the Action. Inexchange forthe mutualcrrr!!:±s and ;h!!g::icasspecifiedherein,and othergood and valuableconsidemden, and the receipt adequacy ofwhich are herebyacknowledged,and upon 8 SK's c::f!:re ofitsob:igatisasin this Agreementto SB Beer's SB satisfactica, Beer, on behalf its agents ofitself, and assigns, does hereby remise,waive,release and forever dischargeSK, along with itsagents,representatives, attomeys,employees, successors, and assigns,of and from, any and all causes actions, ofaction,suits,claims,thirdpartyclaims, gar-!::hm--ts,f adcinñiñcation, and contribution, dcmañds wh±eever, known or unknown, which SB Beer ever had,now has,or hereaftercan,shall,or may have, from thebeghñkg of the worldtothe dateof thisAgreement, inc:üdiñgbut notlimitedtothe claimsSB Beer assertedin the Action. In exchange forgood and valuableconsideration,includingthe mutual ::m=!±:nts and ab|iga:is,aspecified herein, the receiptand edcýsâcy of which are hereby acknowledged, Prospero, on behalf of its itself, agents and assigns,does hereby immediebly, remise, waive discharge release and forever SB Beer,along with its agents, representatives, employees attorneys, i successors,and assigns,ofand from any and all actions,causes ofaction,suits, claims,thirdparty claims, indca -= contribution,and demands known or garnishments, -5 whatsoever, unknown, which Prospero ever had, now have or hereaftercan, shall,or may have, from the beginning of theworld to the date of thisAg••ement, includingwithout !!mh:!:: the S12,689.75 balance or whateverbalance thatProsperoalleged thatSB Beer owed to Prospero. In exchange forgood and valuableconsidention, includingthe mutual ::mr!:m::5 and c‡-:!::: specifiedherein,the receipt and adequacy of which are herebyacknow!edged, SK, on behalfof and itself itsagents and assigns,does hereby immed!::ely, remise, waive, releaseand forever discharge SB Beer, along with its agents, representatives,attorneys,cmp!cy-ces, successors,and assigns,ofand from any and all actions,causes ofaction,suits, claims,thirdparty claims, garnishments, indemniEeetion, contribution,and demands whatsoever, known or 9 I unknown, which SK, ever had,now have or hereafter can,shall,or may have,from the bci;:nning of the worldto the date of thisAgreement. 10. NoRelease of claims arisinPout ofthe provisions of this Ag reem_ep_t. NGive!:b::nd|:g =nything to thecontraryhereof,the Mutual Relea::: clauscat Article 9 inthis Agreement. shall notaffect,discharge,or releaseany rightsor ±!!g±::: of thePartieshereto,arising out ofthe provisionsofthisAgreement. I l. No admission of wrongdphig. The Partiesagree that thisAgroomeñt representsa seM!eme± of disputed claims. The Partiesfurtheragree thatupon SK's and Prospero's fulland timely cc--!i:::c herewith, neitherthisAgicc:r.catnor thefurnishingof consideration forthis Agreement shallbe deemed or construed atany time forany purpose as an admiss!en of any fault liability, or wrongdoing, or as an Em!::ion by any Partyof ü lawful conduct of any kind. The Partiesacknowledge thatthey are cateringintothisAgreement solelyin ordertoput to rest allconizeveniesbetween them. Notecf;hranding the foregoing, or::3±!;g hereinto the contrary, thisAgreement and/orthe co-.dd:md;n paid forp=uant thisAgreamcat may be used by SB Beer to establish its darnages by reason ofProspero'sand/orSK's breachof their obligations respective hereof,in anyproceeding againstProspero and/or SK. 12. M;d!s:=tion. This Age.ent cannot be =:dif:d or waivedexcept in writingsigned by each ofthe Parties. waiverof any of the terms or cWM=ofthis Agreementon any occasion Any shallnot co=tit± a waiver orthose terms and conditionsor ofany other termsor conditions of thisAgreemeñ:on any otheror futureoccasion. 10 13. No ma•hmment. The Parties expressly warrantand represent toeach other thatno Party willassign, this or transfer, Agreement in wholeor in part without the writtenconsent ofthe other two (2) except Parties, thatSB Beer may assignor transfer this Agreement inwhole or inpart, days' upon seven (7) writtennoticeto SK and Prospero,in the eventofa sale or other disposition . . by SB Beer of itsbusiness. 14. Af fE±:al Oblientions. Each of the Partiesagrees atno cost to theother Parties,to i==;:!y execute allsuch furtherand otherdocuments, and totake allsuch further action,as an IAS Judge may instructinorder to so-orderthisAgreement or otherwise,or as may be deemed reasonably necessary or re=onabFf advisable to effectuatethe intentand purposes of this Agreement . 15. Binding Effect. This Agreement shallbe binding upon and inureto the benefitof the Partiesand their managers, partners,officers, directors,members, shareholders, agents, principals, employees, predecessors,successors,assigns,parents,subsidiaries and affiliates, 16. Severability. ifany term ofthisAgst is to anyextent otherwise illegal, or invalid, incapable of being enforced, such term shall be excluded to the extentof such invalidityor unenfe:-3mty; allother tenns hereofshalltemain in full force and effect;and, tothe extent permittedand possible,the or unenfeeb!e invalid term shallbe deemed replaced by a termthat isvalid and enforceable and that comes closest toe:çm=°:;g the eten'be of such invalidor . . enenfer-eb!e term. Ifapp4cetbn of thisSeverabilityi:::±!:: should =:::-i:!jyand adversely affect the ecenemic substance of the transactionscontemplated hereby, the Party adversely impacted shallbe entitled to compensation forsuch adverse impact, provided the reason forthe !-- or unenfarccat"iti :Ediry of a termis not due to seriousmist--dect by the Partyseekingsuch compensation. Attorneys' attorneys' 17. fee)and expenses. The Partiesshalleach bear theirown feesand other expenses ifany, incurred in conacction with the negotieth of thisAg-e==t and/or compinace with theirrespective obligâtkas hereof. I 8. Entire Agreement. This Agreement ce=titutesthe entireagement of theParties,and supersedes sil prior and conto--enne:::3 written and oral agreements, understandings, and negotiations. 19. Contro frofctmtat. No Partyshallbe viewed as thedrafterof thisAgreement as all Partiesparticipated inthe ::ej;otict!= of its terms. 20. Hcadi=zs. The headings contained inthis Agreement are force.rz=!=:c only and shall not be interpre::d to limit or otherwiseaffectthe provisions hereof. J 21. Reeltats. Allof the recital (WHEREAS) clausesabove are incorporatedas if fullyset forth herein. 22. Initiating.Each Party was instructed to initial every page in additiontosigning the last page ofthisAg-m=•, however the failure to so initiaicach page shallnotrelieveany such Party from the legal effectof thisAgreement. !- 12 ! 23. No contractspreven tingthis Agreement. The Partiesfurther representand warrant to each other,thatneitheris a party to any agreements howsoever innature, thatiswfully prevent theirentering intothisAgreement. ; 24. Acknow!+ment of Advice of,and repres=!:t!:: by Counsel, Each of the Parties hereby represents and warrantsto theothers, thatpriorto executing thisAgreement cach such Pady: a. Has had the advice of tegalcounselof its chsdag in acr±±r forand in the preparation of this Agreemcr.t, or has had hadsufficient apportunityto do so; b. Has read theAgreement, and aware is fully of and legal its contents effect,and ofitsrights and chlig=donshereunder; and c. Has been advised by legalcounselof itschandng, on allof theterms and effectsof this Agreement, and that and it is freely voluñ::dly enteringintoand executingthisAgreement with no coercion of any kind, and upon the recommendation of theirown respective counsellorsthattheydo so. Individuals' warrantles. 25. mpresentations and Dave naldman thisAgreement on behalfof SB Beer, represents and warrants to Prospero signing and to SK,that: a. He is authorizedto signthisAgreement on SB Beer'sbehalf,and thatallcorporate ±=r!!±2 on SB Beer'spart,necessary tothe entry intoforceand performance of thisAgnement, have been complied with;and 13 b. SB Beer is not a partyto any agreements with thidp=•+Eesthatpreclude theentry intoforce of cer;" e herewith. thisAgreement, or thatimpede SB Beer's fulland timely Danny Prospero,signing thisAg•*ement on behalfof Prospero, r:prescñtsand w:=± to SB Beer and toSK, that: c. He is authorizedto signthisAgreement on Prospero'sbehalf,and thatallcorporate farma|ities on Prospero's part,necessarytothe entryinto forceand perfemance of thisAgreemmt, have been complied with;and . d. Prospero is not a party to anyagreements with third-parties thatpreclude the entryintoforce of thisAgreement, or thatimpede Prospero's fulland timelyc:r;!!:::e herewith. Marko $krijsigning thisAgreement on behalfof SK, representsand warrants to SB Beer and to that· Prospero, a. He is acacritedto signthisAgreement on SK's behalf, and thatallcorporate fo=a!!ties on SK's part,necessary to theentry into forceand pe-fe:mace of thisAg==:=:, have been complied with;and b. SK is nota partyto anyagreements with ±!rd ;:-tiesthatpreclude the entryintoforce of this Agreement, or thatimpede SK's fulland timelycompliance herewith. . . 26. $_ogggs.Any notice,demand,requestor otherbermer!:etion given or =;ñed to be given under thisAgreement shallbe deemed given siifficierd:y or rendered ifin writing,and sent by email only,and addressed as follows: 14 a. To SB Beer:To Dave Goldman atdaveiüturbunvillasehrewinn.com. each time witha copy toAlan Reuter,Esq.at A Reuter!itthenashimentm.com, b. To Prospero:: ToDanny Prospero at do.rnspero@orosm,-wn,.bia each timewith a copy to Mario P. Musilli, Esq. at 1purio@musillila c,gna. c. To SK: To Marko $krijat markoskrijGsk-skrli,com, each time with a to Karmen copy Zalesjakat Karmen.Zalesiakesic-skrli.com. Notices shallbe deemed given as ofthe nextbusinessday fe!!owingany such emails. 27. Rennest thatSh••h&= be so-ordered. Upon execution ofthisStipehtie,SB Beer may but is not obligated to at anytime, a request file forjudicial to seek an IAS intervention, Judge to . so-orderthis Stip±f:ñ. However, failure of an IAS Judge to so-order thisE:‡±2:ñ shallaffect neitheritsvalidity nor itscafarceability. The Partieshereby agree to be fully bound by this : Sti;±±n, irrespective of whether itis so-ordered. In the event thatan IAS Judge, requires Prospero and/orSK to retain