AGREEMENT DISSOLVING LIMITED LIABILITY COMPANY
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This Agreement Dissolving Limited Liability Company (this "Agreement")
is made effective on January 24, 2003, between Trade Partners, Inc, a Michigan
corporation ("TPI"), and Capitol Development of Arkansas, Inc., an Arkansas
corporation ("CDA").
ARTICLE I
RECITALS
1.01. Description of Company. CDA and TPI (collectively referred to as
the Members) have been and now are all of the Members of TradeArk Properties,
LLC, a limited liability company organized under the laws of the State of
Michigan (the "Company"), whose principal office is located at Grand Plaza
Place, Suite 570, 000 Xxxxx Xxxxx, X.X., Xxxxx Xxxxxx, Xxxxxxxx 00000.
1.02. Description of Certain Tracts of Land of the Company. The Company
is the fee simple owner of the tracts of land situated in Maumelle, Pulaski
County, Arkansas and more particularly described on "Schedule 1.02" (herein
after referred to as "Maumelle Tracts"). The Maumelle Tracts and other lands
were originally contributed to the Company, subject to certain debt, by CDA for
its capital contribution to the Company. The VSC's, as defined hereafter, were
originally contributed to the Company by TPI for its capital contribution to the
Company.
1.03. Organization of the Company. The Company was formed May 20, 1999,
pursuant to Articles of Organization dated and filed that date and no amendments
have been made to those Articles of Organization. The Members executed an
Operating Agreement for the Company dated May 27, 1999 (the "Operating
Agreement"), which has not been modified or amended except as may be provided
herein. In the event of any conflict between the terms of this Agreement and the
Operating Agreement, the terms of this Agreement shall prevail as the agreement
of the Members regarding the conflicting terms.
ARTICLE II
DISSOLUTION
2.01. Effective Date. The Members agree to dissolve the Company,
effective at the close of business on January 23, 2003, and shall thereafter
promptly liquidate and wind up the affairs of the Company.
2.02. Articles of Dissolution. The Members shall cause articles of
dissolution to be filed with the office of the Secretary of State of the State
of Michigan.
2.03. Termination of Business. Except for the purpose of carrying out
the winding up and liquidation of the business of the Company, neither Member
shall transact any further business nor incur any further obligations on behalf
of the Company after the date of this Agreement.
ARTICLE III
LIQUIDATION
3.01. Financial Condition. The Members agree that (i) as of September
30, 2002, the financial statement marked "Exhibit 3.01", affixed hereto and by
this reference made a part hereof, reflects a true and accurate statement of the
financial condition of the Company at that time; (ii) the distributions of
assets, as provided in Section 3.03, present a fair distribution of membership
interest, which consist of 35.16% to CDA and 64.84% to TPI, for all purposes of
dissolution of the Company; (iii) the liability due TPI from the Company for
advances made by TPI to the Company are satisfied with this Agreement, as of the
effective date of this Agreement (the "TPI Advances"), and (iv) the Company is
obligated to Xxxxxx & Grace, P. A. for attorney's fees incurred by the Company
regarding several attempted and concluded real estate transactions in the amount
of $17,969.26 ("H&G Fees"). The Members agree that upon Closing, no other
monies, except those agreed to in this Agreement, are due and payable to any
member or to TPI.
3.02. Indemnification and Disclosure. Except as disclosed in the
financial statements of the Company attached as Exhibit 3.01 or otherwise
disclosed in this Agreement, each of the Members represents and warrants to the
other Member that such Member has not previously contracted for or otherwise
incurred any liability or conducted any unauthorized activity or created any
obligation whatsoever that can or may be charged against the Company or made any
misrepresentation or omission to a third party creating a liability upon the
Company, nor has such Member received or discharged any of the credits, moneys,
or effects of the Company. TPI expressly agrees to indemnify, exonerate and hold
CDA harmless from any breach of this Section 3.02 or claim against the life
insurance contracts, and CDA expressly agrees to indemnify, exonerate and hold
TPI harmless from any breach of this Section 3.02 or claim against the Maumelle
Tracts. CDA agrees to hold harmless the officers of TPI and managing members of
the Company for official acts performed for the Company.
3.03. Liquidating Distributions. Upon execution of this Agreement, the
Company shall make the following liquidating distributions of Company assets to
the Members:
(A) To CDA shall be distributed all of the Maumelle Tracts,
and CDA shall assume at Closing, all the debt in favor of New Era Life
Insurance Company in the principal amount of $3,541,029.96 (the "New
Era Debt"), the delinquent interest due to New Era in the amount of
approximately $271,000, and the H&G fees, and all other liabilities,
including but not limited to taxes, insurance and environmental
liabilities; provided that TPI warrants and represents that as of the
Closing, there is no undisclosed debt on the Maumelle Tract except
those disclosed in this Agreement. Under this Agreement, it shall be
CDA's responsibility to provide the required documentation to transfer,
assign and deed the Maumelle Tract from the Company to CDA. TPI shall
also assign the sales contract for Tract D to CDA upon the execution of
this Agreement.
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(B) To TPI shall be distributed all rights of the Company in
the life insurance contracts (the " VSC's"), if any, which are owned by
the Company as of the date of this Agreement and TPI hereby agrees that
all of the TPI Advances are deemed satisfied. Under this Agreement, it
shall be TPI's responsibility to provide the required documentation to
transfer, assign and quitclaim the VSC's from the Company to TPI.
(C) Each Member hereby agrees that such distributions in (A)
and (B) of this Section 3.03 are in the ratio that the Member's capital
account and income account combined bear to the combined capital and
income accounts of both Members, provided, however, that CDA shall pay
to TPI the sum of Five Hundred and Eighty Thousand Dollars ($580,000)
(the "Advance Repayment"). This Advance Repayment shall be due and
payable to TPI upon the closing on Tract D or the closing from the sale
of any of the Maumelle Tracts, whichever occurs first; provided this
Advance Repayment is not assignable. Notwithstanding, if CDA does not
receive a Schedule K1 in a timely manner for the tax years of 2002,
2003, and any subsequent year until the Company is dissolved and has
filed its final tax report, CDA shall withhold $10,000 in escrow until
the prerequisite Schedule K1(s) is submitted by TPI. If CDA incurs any
liability for late filing fees and penalties due to TPI not submitting
such Schedules in a timely manner, CDA shall have the right to deduct
such fees from the escrowed amount. The Company shall,
contemporaneously with the execution of this Agreement, execute and
deliver to CDA a special warranty deed (the "Deed") conveying fee
simple and merchantable title in Maumelle Tracts to CDA, free and clear
of all encumbrances arising from the Company except for the lien of the
mortgage securing the New Era Mortgage Debt. The Company shall,
contemporaneously with the execution of this Agreement, execute and
deliver to TPI an assignment and quitclaim of any rights which the
Company may have in the VSC's, without any representation or warranty
of any kind including warranty of title. Immediately upon recordation
of the Deed with the Pulaski County Arkansas Clerk and Recorder, CDA
shall order a policy of title insurance insuring fee simple title in
and to the Maumelle Tracts in CDA for the fair market value of same.
Upon receipt by CDA of such title insurance policy insuring fee simple
title in CDA to the Maumelle Tracts, subject to no debt other than the
mortgage securing the New Era Mortgage Debt, then CDA shall pay the
Advance Repayment subject to the sale of the Maumelle Tract, as set
forth above.
3.04. Settling Accounts. On Closing, the Members shall pay all of the
liabilities of the Company, except as specifically provided in Sections 3.02 and
3.03, in accordance with Sections 450.4801 et seq. of the Michigan Compiled Laws
Annotated, though no assets or liabilities of the Company, except as set forth
in Section 3.02 and 3.03 of this Agreement, are known to exist by either Member.
All amounts remaining after payment of the above liabilities shall be
distributed to the Members according to their sharing ratio set forth in Section
3.01(i) hereof, subject to the provisions of Sections 3.02 and 3.02. Except for
a breach of this Agreement of either of the Members, each of the Members release
each other for any other claim or cause of action arising from the ownership or
operation of the Company.
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3.05. Appointment of Liquidating Member. TPI is appointed as the
liquidating Member to carry out the terms and conditions of this Agreement and
to execute and file all documents necessary to dissolve the Company. TPI shall
be responsible for any and all expenses incurred, including attorney's fees, to
complete such dissolution of the Company other than taxes which are due the
State of Michigan with regard to the same.
ARTICLE IV
CONSTRUCTION PROVISIONS
4.01. Governing Law. This Agreement shall be governed by and construed
in accordance with laws of the State of Arkansas. Further, the Company and each
Member consents to venue in, and the exercise of jurisdiction by, the state
courts located in Pulaski County, Arkansas, and waives any jurisdictional or
venue rights the Company may otherwise have with regard to any action regarding
this Agreement.
4.02. Other Instruments. The Members covenant and agree that they will
execute any other instruments and documents that are or may become necessary or
convenient to carry out this Agreement.
4.03. Headings. The headings used in this Agreement are used for
administrative purposes only and are not to be considered in construing the
terms of this Agreement.
4.04. Parties Bound. This Agreement shall be binding on, and inure to
the benefit of, the Members and their respective heirs, executors,
administrators, legal representatives, successors, and permitted assigns.
4.05. Strict Construction. This Agreement shall not be strictly
construed against either Member.
4.06. Severability. If any provision of this Agreement shall for any
reason be held invalid, illegal, or unenforceable in any respect, that
invalidity, illegality, or unenforceability shall not affect any other provision
of this Agreement, and this Agreement shall be construed as if the invalid,
illegal, or unenforceable provision had never been contained in this Agreement.
4.07. Counterparts. This Agreement may be executed in any number of
identical counterpart copies, and each of the counterparts, when at least one
counterpart has been executed by each party, shall for all purposes be deemed to
be an original.
4.08. Prior Agreements Superseded. This Agreement supersedes any prior
understandings or written or oral agreements between the Members respecting the
subject matter of this Agreement, including the Company Agreement, to the extent
that the understanding or agreement conflicts with any provision contained in
this Agreement.
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4.09. Survival of Representations and Warranties. The representations
and warranties set forth in this Agreement shall be continuous and shall survive
the taking of any accounting and the dissolution and winding up of the Company
as contemplated by this Agreement.
The undersigned have executed this Agreement effective on the date
first above mentioned.
Capitol Development of Arkansas, Inc.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, Vice President
Trade Partners, Inc.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, President & CEO
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SCHEDULE 1.02
DESCRIPTION OF "MAUMELLE TRACTS"
TRACT 1:
Tract D-R and Tract D-1, being a Re-Plat of Tract D Maumelle Town
Center Addition to the City of Maumelle, Pulaski County, Arkansas, as
shown on plat recorded as Plat No. G-12, records of Pulaski County,
Arkansas
TRACT 2A:
Lands lying in a part of the Southeast 1/4 of Section 20 and in a part
of the Northeast 1/4 of Section 29 and in a part of the Northwest 1/4
of Section 28 all in Township 3 North, Range 13 West, Pulaski County,
Arkansas and more particularly described as follows:
commencing at the Northeast corner of the Southeast 1/4 of
said Section 20 (Arkansas State Plane Coordinates North
199,211.859, East 1,877,675.875); thence South 1569.86 feet;
thence West 297.58 feet to the point of beginning, said point
of beginning being on the South right of way line of Xxxx
Boulevard and the West right of way line of Woodland Drive;
thence along the said West right of way line of Woodland Drive
South 03E - 45' - 34" East 38.74 feet; thence continuing along
the said West right of way line South 07E - 25' - 38" East
159.60 feet; thence leaving the said west right of way line
South 76E - 48' - 04" West 148.03 feet; thence South 77E - 55'
- 02" West 130.60 feet; thence South 65E - 17' - 48" West
208.10 feet; thence South 45E - 44'- 39" West 222.00 feet;
thence South 30E - 13' - 44" West 196.70 feet; thence South
09E - 48' - 23" West 199.90 feet; thence Xxxxx 00X - 00' - 00"
Xxxx 294.60 feet; thence North 59E -09'-49" West 138.60 feet;
thence South 73E - 24' - 08" West 188.90 feet; Thence South
03E -10' - 42" West 199.30 feet; thence Xxxxx 00X - 00' - 00"
Xxxx 149.20 feet; thence Xxxxx 00X - 00' - 00" Xxxx 209.30
feet; thence South 16E - 57' - 21" East 237. 70 feet: thence
South 03(0) - 45' - 14" East 244.50 feet; thence South 17(0) -
40' - 36" East 118.60 feet; thence Xxxxx 00X - 00' - 00" Xxxx
117.60 feet; thence South 05E - 44' - 56" West 139.70 feet;
thence Xxxxx 00X - 00' - 00" Xxxx 249.90 feet; thence Xxxxx
00X - 00' - 00" Xxxx 232.30 feet; thence Xxxxx 00X - 00' - 00"
Xxxx 257.20 feet; thence South 80E - 56' -51" East 254.20
feet; thence Xxxxx 00X - 00' - 00" Xxxx 248.00 feet; thence
Xxxxx 00X - 00' - 00" Xxxx 265.10 feet; thence Xxxxx 00 - 00'
- 00" Xxxx 431.28 feet to the West right of way line of
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Xxxxxxxx Xxxxx; thence along the said West right of way line
along the following bearings and distances:
along an 11.6219(0) curve to the right 177.95 feet to
a point to which there is a chord bearing and
distance of South 10E - 13' - 56" West 176.99 feet;
thence South 19(0) - 45' - 16" West 67.84 feet;
thence along a 21.8687(0) curve to the left 244.93
feet to a point to which there is a chord bearing and
distance of South 07(0) - 01' - 42" East 236.10 feet;
thence Xxxxx 00X - 00' - 00" Xxxx 31.88 feet;
thence leaving the said west right of way line South 09(0) -
40' - 59" West 36.27 feet to the North right of way line of
Edgewood Drive; thence along the said North right of way line
along a 7.0288(0)curve to the left 186.98 feet to a point to
which there is a chord bearing and distance of South 45E - 43'
- 34" West 186.58 feet; thence leaving the said North right of
way line North 70E - 49' - 40" West 353.98 feet; thence South
06(0) - 51' - 39" West 248.36 feet; thence along a 10.8870(0)
curve to the left 14.00 feet to a point to which there is a
chord bearing and distance of South 43E - 1l' - 14" West 14.00
feet; thence South 09E - 38' - 05" West 76.13 feet; thence
South 12E - 40' - 13" West 128.22; thence North 61E - 20' -
34" West 220.00 feet; thence North 88E - 48' - 07" west 144.03
feet; thence North 67E - 31' - 14" West 139.53 feet; thence
South 24E - 49' - 11" West 111.80 feet; thence North 81E - 52'
- 46" West 147.62 feet to the East right of way line of
Millwood Circle; thence along the said East right of way line
on the following bearings and distances;
North 81(0) - 52' - 46" West 147.62 feet to the East
right of way line of Millwood Circle; thence along
the said East right of way line on the following
bearings and distances:
North 68(0) - 56' - 33" West 241.00 feet;
thence North 68E - 45' - 40" West 185.61
feet; thence along a 5.7104(0) curve to the
left 794.35 feet to a point to which there
is a chord bearing and distance of South
88E - 33' - 31" West 773.77 feet to the
East right of way line of Xxxxxx Drive;
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thence continuing along the said East right of way
line of Xxxxxx Drive on the following bearings and
distances:
North 70(0) - 07' - 39" West 35.54 feet;
thence North 25E - 25' -ll" West 58.77
feet; thence along a 5.4816(0) curve to the
left 406.61 feet to a point to which there
is a chord bearing and distance of North
36(0) - 33' - 51" West 404.05 feet; thence
North 47(0) - 42' - 3l" West 642.29 feet;
thence along a 6.4508E curve to the right
472.22 feet to a point to which there is a
chord bearing and distance of North 32(0)-
28' - 40" West 466.68 feet; thence North
17E - 14' - 48" West 251.54 feet; thence
along a 5.3544(0) curve to the left 383.83
feet to a point to which there is a chord
bearing and distance of North 27E - 3l' -
22" West 381.78 feet;
thence leaving the said East right of way line North 05E - 12'
- 00" East 57.67 feet to the South right of way line of Xxxx
Boulevard; thence along the said South right of way line on
the following bearings and distances:
along a 4.5559(0) curve to the left 317.64 feet to a
point to which these is a chord bearing and distance
of North 40E - 55' - 33" East 316.80 feet; thence
Xxxxx 00X - 00' - 00" Xxxx 950.00 feet; thence along
a 7.6386E curve to the right 449.06 feet to a point
to which these is a chord bearing and distance of
North 50E - 50' - 26" East 442.38 feet; thence North
67(0) - 59' - 30" East 396.69 feet; thence along a
5.8490E curve to the right 372.36 feet to a point to
which here is a chord bearing and distance of North
78E - 52' - 52" East 370.13 feet; thence North 89(0)
- 46' - 15" East 546.46 feet;
thence leaving the said South right of Way line South 43E -
15' - 22" East 38.83 feet to the point of beginning.
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TRACT 2B:
LANDS LYING IN A FRACTIONAL PART OF THE EAST ONE HALF OF SECTION 29,
TOWNSHIP 3 NORTH, RANGE 13 WEST, CITY OF MAUMELLE, PULASKI COUNTY,
ARKANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
Commencing at the Southeast Corner of said Section 29 having Arkansas
State Plain Coordinates of North 191,207.530, East 1,887,569.419;
thence North 731. 17 feet; thence West 1368.79 feet to the point of
beginning, said point of beginning being on the East right of way line
of Millwood Circle; thence along the said East right of way North 09E -
43' - 47" West. 249.96 feet: thence South 80E - 30' - 00' West, 80.00
feet to a point on the West right of way line of Millwood Circle;
thence along the West right of way line along the following bearings
and distances:
along a 4.1826E curve to the left a distance of 385.93 feet to
a point to which there is a chord bearing and distance of
North 17E - 25' - 08" West, 384.65 feet; thence Xxxxx 00X -
00' - 00" Xxxx. 441.69 feet; thence along a 5.7104E curve to
the right a distance of 2397.15 feet to a point to which there
is a chord bearing and distance of North 42E - 47' - 43" East,
1866.36 feet; thence South 68E - 45' - 40" East, 185.61 feet;
thence leaving the said West right of way line South 22E - 51'
- 46" West, 80.03 feet to a point on the East right of way
line of Millwood Circle, said point also being on the West
boundary line of Leisurewood Addition to the City of Maumelle;
thence leaving the said East right of way line and along the said West
boundary line along the following bearings and distances:
South 25E- 45' - 19" West. 258.94 feet; thence South 14E -43'
- 09'" West, 244.01 feet; thence Xxxxx 00X - 00' - 00" Xxxx,
198.64 feet; thence Xxxxx 00X - 00' - 00" Xxxx, 156.12 feet;
thence Xxxxx 00X - 00' - 00" Xxxx, 355.00 feet; thence South
55E - 19' - 17" West, 105.43 feet; thence Xxxxx 00X -00' - 00"
Xxxx, 160.20 feet; thence Xxxxx 00X - 00' - 00" Xxxx, 147.22
feet; thence Xxxxx 00X - 00' - 00" Xxxx, 154.99 feet; thence
Xxxxx 00X - 00' - 00" Xxxx 89.52 feet to a point on the North
boundary line of Edgepark Addition to the City of Maumelle;
thence leaving the said West Boundary line and continuing along the
said North boundary line along the following bearing and distances:
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South 47E - 14' - 20" West, 77.54 feet; thence South 47E - 28'
- 21" West, 503.00 feet; thence South53E - 43' - 27" West,
193.15 feet; thence South 64E - 40' - 12" West, 140.85 feet;
thence South 80E - 09' - 18" West 636.92 feet to the point of
beginning, containing 71.600 acres more or less.
LESS AND EXCEPT THE FOLLOWING PART OF SAID TRACT 2B:
LANDS LYING IN A FRACTIONAL PART OF THE EAST ONE HALF OF SECTION 29,
TOWNSHIP 3 NORTH, RANGE 13 WEST, CITY OF MAUMELLE, PULASKI COUNTY,
ARKANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
Commencing at the Southeast Corner of said Section 29, having Arkansas
State Plain Coordinates of North 191,207.530, and East 1,887,569.419'
thence North 90E 00' 00" West, 941.14 feet to a point; thence North 0E
00' 00" West, 1882.07 feet to the Point of Beginning; thence North 19E
08' 53" West, a distance of 65.00 feet; thence North 11E 50' 26" West,
a distance of 59.98 feet; thence South 81E 39' 58" West, a distance of
58.23 feet; thence South 81E 39' 58" West, a distance of 79.77 feet;
thence North 17E 48' 36" West, a distance of 26.89 feet; thence North
05E 19' 06" East, a distance of 37.52 feet; thence North 05E 19' 06"
East, a distance of 67.43 feet; thence South 77E 40' 44" West, a
distance of 96.34 feet; thence North 86E 50' 02" West, a distance of
142.73 feet; thence South 56E 49' 17" West, a distance of 180.56 feet;
thence South 33E 10' 19" East, a distance of 49.98 feet; thence South
54E 38' 05" West, a distance of 134.35 feet; thence South 42E 18' 55"
East, a distance of 89.52 feet; thence North 47E 47' 53" East, a
distance of 125.70 feet; thence South 60E 13' 31" East, a distance of
170.09 feet; thence South 70E 06' 59" East, a distance of 166.35 feet;
thence South 89E 35' 03" East, a distance of 58.92 feet; thence South
89E 35' 03" East, a distance of 42.65 feet; thence North 25E 33' 26"
West, a distance of 83.61 feet; thence North 67E 03' 06" East, a
distance of 125.63 feet to the Point of Beginning, Containing 2.97
ACRES, more or less.
LESS AND EXCEPT THE FOLLOWING PART TRACT 2B:
LANDS LYING IN A FRACTIONAL PART OF THE EAST ONE HALF OF SECTION 29,
TOWNSHIP 3 NORTH, RANGE 13 WEST, CITY OF MAUMELLE, PULASKI COUNTY,
ARKANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
Commencing at the Southeast Corner of said Section 29 having Arkansas
State Plain Coordinates of North 191,207.530. and East 1, 887, 569.419;
thence North 90E 00' 00" West, 1716.27 feet to a point; thence North 0E
00' 00" West, 1748.72 feet to the Point of Beginning, said point being
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on the East Right of Way Line of Millwood Circle: thence along said
Right of Way Line South 25E 38' 53" East, a distance of 68.07 feet;
thence North 45E 19' 26" East, a distance of 158.04 feet; thence North
42E 08' 52" West, a distance of 52.17 feet; thence South 50E 22' 50"
West, a distance of 138.69 feet to the Point of Beginning, Containing
0.20 ACRES, more or less.
TRACT 3:
Lands lying in the Northwest Quarter of Section 32, and the Southwest
Quarter of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of
Maumelle, Pulaski County, Arkansas, more particularly described as
follows:
Commencing at the Northwest Corner of said Section 32 which is the
Southwest Corner of said Section 29; thence along the common Section
line South 88 degrees 32 minutes 49 seconds East, 590.03 feet to the
point of beginning; thence North 26 degrees 57 minutes 31 seconds East,
173.49 feet; thence South 84 degrees 08 minutes 09 seconds East, 412.97
feet thence South 60 degree 20 minutes 33 seconds East, 482.14 feet to
a point on the West right of way line of Xxxx Boulevard; thence along
said West right of way line of Xxxx Boulevard South 11 degrees 59
minutes 40 seconds West, 596.29 feet; thence continuing along said West
right xx xxx xxxx Xxxxx 00 degrees 28 minutes 36 seconds West, 193.85
feet; Thence leaving said West right of way line of Xxxx Xxxxxxxxx
Xxxxx 00 degrees 09 minutes 38 seconds West, 774.03 feet; thence North
21 degrees 05 minutes 41 seconds West, 437.97 feet; thence North 26
degrees 57 minutes 31 seconds East, 386.48 feet to the point of
beginning.
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