Exhibit 10.79
RELEASE AND SETTLEMENT AGREEMENT
THIS AGREEMENT made and entered into by and between Dallas Parkway
Properties, Incorporated ("DPPI") and Polyphase Corporation ("Polyphase").
RECITALS
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WHEREAS on or about the 29th day of August, 1997, DPPI loaned Polyphase
approximately $1.1 Million Dollars ($1,100,000.00) from the proceeds of a loan
obtained by DPPI and which Polyphase guaranteed to the lender. (See Guarantee
Agreement, a copy of which is attached hereto and made a part hereof as Exhibit
A):
WHEREAS Polyphase in a transaction of even date herewith exchanged its
stock in DPPI for shares of stock of Tollway Properties, Inc. DPPI and
Polyphase have agreed that by this agreement any amounts due and owing by
Polyphase to DPPI shall be settled pursuant to the terms and conditions of this
agreement and that Polyphase shall be forever released from any further
obligations which may be due and owing to Dallas Parkway Properties.
Therefore, in consideration the premises and other good and valuable
consideration the parties hereby agree as follows:
I.
In exchange for its Guarantee Agreement as described in Exhibit A and for
the payments made by Polyphase for the preservation of the assets of DPPI
beginning on the 29th day of August, 1997, DPPI agrees to accept such
consideration as full and final settlement for that certain loan made to
Polyphase on or about the 29th day of August, 1997, in the amount of
approximately $1.1 Million Dollars ($1,100,000.00).
II.
Except for the obligations and rights especially set forth and reserved by
this agreement, DPPI does hereby release, quit and forever discharge Polyphase
and its respective agents, servants and employees, successors, heirs, legal
representatives and its, officers, directors, shareholders and all persons
natural or corporate, in privity with them, from any and all claims, causes of
action (including without limitation all claims for injunctive or declaratory
relief), or controversies of any kind whatsoever, whether known or unknown,
whether accrued or to accrue, including but not limited to, claims at common
law, pursuant to the laws of the United States and any state thereof, or
pursuant to any laws or statutes arising out of, or in connection with, that
certain loan to Polyphase herein above described.
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III.
This document contains the entire Agreement between the parties and
supersedes any and all prior agreements, arrangements or understandings with
regard to the subject matter hereof. Amendments to this Agreement may only be
made in writing and shall be signed by all the parties hereto.
IV.
The parties agree that as a part of the consideration for this Agreement
and before executing this instrument each party hereto has been fully informed
of the terms, contents conditions and effects of this document; that in
executing this document and negotiating the terms thereof, each has had the
benefit of the advice of attorneys of its own choosing; and that no promise or
representation of any kind has been made to any party by another party hereto,
or anyone acting for them, except as is expressly stated in this instrument.
The parties represent that they have relied completely and solely on their own
judgement and the advice of their own attorneys in executing this instrument.
V.
The parties agree that the consideration described in this document, and
the agreement and covenants set forth herein are given by the parties in
compromise and settlement of a disputed claim in order that each party may buy
its peace. Such consideration, agreement and covenants are in no way to be
construed as an admission of liability on the part of any party hereto. Each
party specifically denies any such liability or responsibility and specifically
denies all such allegations made against such party.
VI.
The parties agree that the statements, representations, agreements and
covenants contained herein are to be contractual in nature and not mere
recitations of fact. The agreement and covenants herein shall be binding upon
the parties, their heirs, successors, assigns, administrators, executors and
legal representatives forever.
VII.
Whenever herein the singular number is used, the same shall include the
plural where appropriate, the words of any gender shall include each other
gender where appropriate.
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VIII.
All parties agree that they shall bear their own costs and attorney fees in
relation to this Agreement.
IX.
The parties agree that if it is determined by any court that any party has
failed to perform its obligations herein, then the prevailing party or parties
shall be entitled to recover reasonable attorneys fees, court costs, and other
reasonable expenses incurred in the enforcement of the rights and obligations
set forth in this agreement.
X.
That parties agree that upon the request of any of the parties, they will
execute and deliver such further documents as may reasonably be required to
effect any of the terms contained in this Agreement.
XI.
It is understood and agreed that this Agreement may be executed in any
number of identical counterparts, each of which shall be deemed an original for
all purposes.
XII.
Each party executing this document on behalf of an entity warrants that he
is fully authorized to do so and agrees that he will fully indemnify any and all
damages incurred by the other parties if he is not so authorized.
Each party further warrants and represents that each said party will not
discuss any of such matters with any person other than his or her attorney after
the date hereof, except as provided herein.
AGREED and ACCEPTED this 1st day of November, 1997.
POLYPHASE CORPORATION DALLAS PARKWAY PROPERTIES, INC.
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Chairman President
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