Exhibit 10.13
AGREEMENT
WHEREAS, Gyrodyne Company of America, Inc. ("Gyrodyne") and DPMG, Inc.
d/b/a Landmark National ("Landmark"), entered into two agreements dated April 9,
2002, the "Development Agreement" and the "Golf Operating Agreement"; and
WHEREAS, after the monthly payments due under the Development Agreement
were exhausted in October 2004, Landmark continued to perform services under the
Development Agreement, during the period October 2004 through October 2006 (the
"Past Services"); and
WHEREAS, Gyrodyne is desirous of maintaining a relationship with Landmark
in the future and to have Landmark provide consulting services (the "Future
Services") to Gyrodyne in connection with the Eminent Domain Case (as defined
below); and
WHEREAS, Landmark has asserted that it may be entitled to certain
additional payments as a result of the condemnation of the property subject to
the Development Agreement (the "Condemnation Claim"); and
WHEREAS, Gyrodyne wants to terminate its obligations to Landmark under the
Development Agreement and the Golf Operating Agreement (the "Termination"); and
WHEREAS, the parties wish to resolve all claims they have against each
other and to enter into an agreement for the Future Services;
NOW, Gyrodyne and Landmark hereby agree as follows:
1. In consideration of: (a) Landmark's Past Services, (b) Landmark agreeing
to provide the Future Services, and (c) Landmark agreeing to the Termination,
Gyrodyne shall pay to Landmark the sum of Three Million and 08/100
($3,000,000.08) Dollars payable as follows:
A. Two Million ($2,000,000) Dollars upon execution of this Agreement;
and
B. One Million ($1,000,000.08) Dollars in Thirty Six (36) equal
monthly installments of Twenty Seven Thousand Seven Hundred Seventy Seven
Dollars and Seventy Eight Cents ($27,777.78) commencing on March 1, 2007 and
ending on February 1, 2010, regardless of the date the Eminent Domain Case is
resolved. These payments shall be due on the first business day of each month.
2. Upon execution of this Agreement, the Development Agreement and the Golf
Operating Agreement are hereby terminated and shall have no further force and
effect.
3. Landmark agrees to act as Gyrodyne's consultant for use in the eminent
domain proceeding captioned Gyrodyne Company of America, Inc. -against- The
State University of New York at Stony Brook for the People of the State of New
York, Claim No. 112279, and any and all related proceedings (the "Eminent Domain
Case"). Landmark's agreement to act as a consultant for Gyrodyne in the Eminent
Domain Case will be hereinafter referred to as the "Consulting Retention." As
part of the Consulting Retention, Landmark shall consult with and advise the
attorneys, officers and employees of Gyrodyne concerning the Eminent Domain Case
as reasonably requested. Landmark's services shall also include the review of
pertinent documents, as well as consultation and advice concerning land
planning, economic feasibility studies, coordinating with project engineers and
any other matters relating to the Eminent Domain Case. Landmark further agrees
that it shall not be entitled to receive any additional compensation for its
performance under the Consulting Retention. The term of the Consulting Retention
shall commence upon execution of this Agreement and shall terminate upon the
earlier of February 1, 2010 or the completion of the Eminent Domain Case
(including any appeals or subsequent proceedings on remand). The Consulting
Retention shall not be assignable by Landmark, but shall be assignable by
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Gyrodyne. Landmark acknowledges that in the course of the Consulting Retention
it may acquire knowledge of confidential and proprietary information belonging
to Gyrodyne. Landmark shall not at any time, whether during or after its
employment with Gyrodyne, disclose to any person (other than Gyrodyne, as
consented to by Gyrodyne or as may be ordered by a court of competent
jurisdiction) or use for its own account any confidential or proprietary
information of Gyrodyne.
4. Upon execution of this Agreement, Landmark shall execute and deliver to
Gyrodyne the Release attached hereto as Exhibit "A."
5. Upon execution of this Agreement, Gyrodyne shall execute and deliver to
Landmark the Release attached hereto as Exhibit "B."
6. Gyrodyne and Landmark agree that the execution of this Agreement does
not constitute an admission by any party of the validity of any allegations that
may have been presented in a lawsuit.
7. The terms of this Agreement shall be held in strict confidence and used
only to carry out the obligations of this Agreement, and will not be disclosed
to anyone other than the parties, their officers, directors, staff, employees,
representatives and agents who may need to know such information to carry out
the obligations of this Agreement or to perform their responsibilities in
connection with the parties' internal operations and proceedings, as required by
law, or in response to a request from a government agent, state or federal. The
parties recognize that as publicly traded companies they will be required to
disclose certain terms of this Agreement. The contents of any such disclosures
will be substantially the same as those contained in Exhibit "C" hereto.
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8. Landmark and Gyrodyne further represent that they have not transferred,
assigned, sold or otherwise encumbered any of their rights pursuant to the
Development Agreement and the Golf Operating Agreement.
9. No party shall be deemed to have waived any of the provisions of this
Agreement unless such waiver is in writing and is signed by the party against
which enforcement of the waiver is sought.
10. The parties to this Agreement acknowledge and agree that this Agreement
constitutes the entire understanding of the parties with respect to its subject
matter and that no representations, statements, or stipulations contrary to the
provisions of this Agreement whether verbal or in writing regarding such subject
matter are valid or binding, except that an amendment or modification of this
Agreement shall be effective if, and only if, it is in writing and signed by
both of the parties.
11. If any provision or provisions of this Agreement shall be held by any
court or other tribunal of competent jurisdiction to be invalid or
unenforceable, such provision or provisions shall be enforced to the maximum
extent permissible and the remaining portions of this Agreement shall remain in
full force and effect.
12. This Agreement may be executed in separate counterparts, both of which
taken together shall constitute one and the same instrument.
13. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
14. If any action is commenced to enforce the terms of this Agreement, the
Court may award the prevailing party its costs and reasonable attorneys' fees
incurred in connection with any such action. This remedy is in addition to any
other legal or equitable remedy which may be available to any party under New
York law.
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15. Facsimile signatures below shall be deemed original signatures.
Dated: New York, New York
February 12, 2007
GYRODYNE COMPANY OF AMERICA, INC. DPMG, INC. d/b/a LANDMARK NATIONAL
By: /s/ Stephen V. Maroney By: /s/ Gerald G. Barton
---------------------------- ---------------------------
Name: Stephen V. Maroney Name: Gerald G. Barton
Title: President Title: President
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EXHIBIT A
---------
GENERAL RELEASE
---------------
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, know that DPMG,
INC., d/b/a Landmark National, as Releasor, in consideration of One Dollar
($1.00) and other good and valuable consideration received from Gyrodyne Company
of America, Inc., as Releasee, the receipt and sufficiency whereof is hereby
acknowledged, do hereby release and forever discharge said Releasee, as well as
Releasee's respective subsidiaries, divisions, parent corporations, successor
corporations, predecessor corporations, affiliated corporations, present and
former officers, directors, employees, shareholders, principals, attorneys,
consultants, agents and assigns from any and all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims and
demands whatsoever, in law, admiralty or equity, which Releasor, as well as,
Releasor's respective subsidiaries, divisions, parent corporations, successor
corporations, predecessor corporations, affiliated corporations, present and
former officers, directors, employees, shareholders, agents and assigns had, now
have or hereafter can, shall or may have against the Releasee whatsoever from
the beginning of time to the date of this RELEASE.
Whenever the text hereof requires, the use of singular number shall include
the appropriate plural number.
The effect of this GENERAL RELEASE shall be governed by the laws of the
State of New York without regard to its conflict of laws rules.
Notwithstanding anything herein to the contrary, nothing herein shall
release or affect in any way any party's rights or obligations under the
Agreement.
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IN WITNESS WHEREOF, Releasor has caused this GENERAL RELEASE to be executed
by it duly authorized officer on this 9th day of February, 2007.
DPMG, INC. d/b/a Landmark National
By: /s/ Gerald G. Barton
-----------------------------
Name:
Title:
STATE OF Maryland )
) ss.
COUNTY OF Prince Georges )
On February 9, 2007 before me, personally came Gerald G. Barton, to me
known and known to me to be the individual who executed the foregoing GENERAL
RELEASE, who, by me duly sworn, did depose and say that deponent is the
President of DPMG, INC. d/b/a Landmark National.
In Witness Whereof, I hereunto set my hand and official seal.
/s/ Georgene A. Feather
-----------------------------------
Notary Public
My Commission Expires: 10-1-2007
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EXHIBIT B
---------
GENERAL RELEASE
---------------
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, know that GYRODYNE
COMPANY OF AMERICA, INC., as Releasor, in consideration of One Dollar ($1.00)
and other good and valuable consideration received from DPMG, INC. d/b/a
Landmark National, as Releasee, the receipt and sufficiency whereof is hereby
acknowledged, do hereby release and forever discharge said Releasee, as well as
Releasee's respective subsidiaries, divisions, parent corporations, successor
corporations, predecessor corporations, affiliated corporations, present and
former officers, directors, employees, shareholders, principals, attorneys,
consultants, agents and assigns from any and all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims and
demands whatsoever, in law, admiralty or equity, which Releasor, as well as,
Releasor's respective subsidiaries, divisions, parent corporations, successor
corporations, predecessor corporations, affiliated corporations, present and
former officers, directors, employees, shareholders, agents and assigns had, now
have or hereafter can, shall or may have against the Releasee whatsoever from
the beginning of time to the date of this RELEASE.
Whenever the text hereof requires, the use of singular number shall include
the appropriate plural number.
The effect of this GENERAL RELEASE shall be governed by the laws of the
State of New York without regard to its conflict of laws rules.
Notwithstanding anything herein to the contrary, nothing herein shall
release or affect in any way any party's rights or obligations under the
Agreement.
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IN WITNESS WHEREOF, Releasor has caused this GENERAL RELEASE to be executed
by it duly authorized officer on this 9th day of February, 2007.
GYRODYNE COMPANY OF
AMERICA, INC.
By: /s/ Stephen V. Maroney
----------------------------
Name: Stephen V. Maroney
Title: President
STATE OF New York )
) ss.
COUNTY OF Suffolk )
On February 9, 2007 before me, personally came Stephen V. Maroney, to me
known and known to me to be the individual who executed the foregoing GENERAL
RELEASE, who, by me duly sworn, did depose and say that deponent is the
President of Gyrodyne Company of America, Inc.
In Witness Whereof, I hereunto set my hand and official seal.
/s/ Lynn Ierardi
---------------------------
Notary Public
My Commission Expires: 2/22/11
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