Exhibit 10.n
SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT made and entered into as of December
29, 1995, by and between PRUDENTIAL SECURITIES, INCORPORATED
("Prudential" or "Plaintiff"); XXXXXXXX X. XXXXXX, XXXXXXX X.
XXXXXX, X. X. XXXXXX BUILDING COMPANY, XXXXXX BUILDING COMPANY, and
XXXXX XXXXXX (the "Garners" or "Xxxxxx Defendants"); ESTATE OF XXXX
XXXXXXX XXXX, by and through its personal representative, XXXXX
XXXX XXXX ("Xxxx Estate"); FIRST BANK, XXXXXX X. XXXXXXXXX and
XXXXXXX X. XXXXXXX ("First Bank Defendants"); XXXXXX, XXXXX & BALL,
P.A., administrator of XXXXXX, XXXXX & BALL, P.A. PROFIT SHARING
PLAN ("WV&B") acting herein by and through its assignee Prudential;
and XX. XXXXXX X. XXXXX (co-trustee and personally), XXXXXXX XXXX,
XXXXXXXX XXXXXX and XXXXXX XXXXXXXX ("Xxxxx Defendants"); (each of
the parties hereto may be referred to generally as a "Party" and
collectively as the "Parties");
WITNESSETH
WHEREAS, a lawsuit is pending in the United States District
Court for the Middle District of North Carolina, Durham Division,
bearing case number 1:94CV00444 entitled, "PRUDENTIAL SECURUTIES,
INCORPORATED, PLAINTIFF, VS. XXXXXXXX X. XXXXXX, XXXXXXX X. XXXXXX,
X. X. XXXXXX BUILDING COMPANY, XXXXXX BUILDING COMPANY, XXXXX
XXXXXX, FIRST BANK, THE ESTATE OF XXXX XXXXXXX XXXX (BY AND THROUGH
ITS PERSONAL REPRESENTATIVE, XXXXX XXXX XXXX, XXXXXX X. XXXXXXXXX,
XXXXXXX X. XXXXXXX, STANDARD BANK & TRUST COMPANY, AND XXXXXX,
XXXXX & BALL, P.A., ADMINISTRATOR OF XXXXXX XXXXX & BALL, P.A.
PROFIT SHARING PLAN, P. XXXXXXXX XXXXX (CO-TRUSTEE), XX. XXXXXX X.
XXXXX (CO-TRUSTEE AND PERSONALLY), XXXXXXX XXXX, XXXXXXXX XXXXXX
AND XXXXXX XXXXXXXX, DEFENDANTS" (hereinafter, the "Lawsuit"); and
WHEREAS, claims were asserted in the Lawsuit on behalf of
Prudential against all defendants and the defendants asserted
various cross-claims and counterclaims against other Parties, all
of which claims principally concerned and arose out of the alleged
actions of the Xxxxxx Defendants and Xxxx Xxxxxxx Xxxx and his
relationship with the Xxxxxx Defendants ("Xxxx/Xxxxxx Acts") and
the relationships between Prudential and the Xxxxxx Defendants and
between First Bank and the Xxxxxx Defendants (the "Relationships");
and
WHEREAS, on or about January 11, 1993, Prudential loaned
$4,140,000.00 to Xxxxxxxx X. Xxxxxx (the "PSI Loan"); on or about
February 4, 1993 Prudential Bank & Trust loaned approximately
$1,650,000 to Xxxxxxxx X. Xxxxxx (the "PBT Loan"); on or about
September 13, 1993 Standard Bank extended a loan to Xxxxxxxx X.
Xxxxxx in the amount of $175,000 (the "Standard Bank Loan"); on or
about January 31, 1994, WV&B extended a $300,000 loan to Xxxxxxxx
X. Xxxxxx and his wife, Xxxxx Xxxxxx, which Xxxxx Xxxxxx denies,
(the "WV&B Loan"); on about March 10, 1994, the Xxxxx Defendants
loaned Xxxxxxxx X. Xxxxxx $350,000 (the "Xxxxx Loan"); and
WHEREAS, prior to the date of this Agreement, one or more of
the Xxxxxx Defendants, by or through their various affiliates,
affiliated persons, employees, relatives and entities borrowed sums
of money, obtained credit, or received some or all of the proceeds
thereof from the following on one or more occasions (the "Related
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Loans"): Xxxxxx X. Xxxxxxx, one of which loans resulted in
litigation instituted by First Bank in Xxxxxxxxxx County, North
Carolina entitled FIRST BANK X. XXXXXX, XXXXXXX AND XXXXXXX, 94 CVS
374; Xxxxx X. Xxxxx, one of which loans resulted in litigation
commenced by First Bank in Xxxxxxxxxx County, North Carolina
entitled FIRST BANK X. XXXXX AND GARNER, 94 CVS 375; Xxxxxx and
Xxxxxx Xxxxxxx, one of which loans resulted in litigation commenced
by Xxxxxx Xxxxxxx in Xxxxx County, North Carolina entitled XXXXXXX
V. FIRST BANK AND GARNER, 94 CVS 807; Coastal Leasing Corporation;
First Federal Savings Bank; the Alpha Group; Institutional
Funding/Multifamily Resources of New Jersey; American Bankers
Insurance Company; Xxxxxxx Savings Bank; Highland Savings Bank;
First Carolina Bank; SOR Marina, Inc.; Xxxxx Xxxxxxxxxx; Xxx
Xxxxxxxx; Xxxxx Xxxx; Xxxxx Xxxxxxxx; Xxxxxxxx Xxxxxxx; Arab
International Group; Midwest Indemnity Corp; First Union National
Bank; NationsBank; and
WHEREAS, one or more of the Xxxxxx Defendants, by or through
various affiliates, affiliated persons and entities, obtained loans
from First Bank, or received some or all of the proceeds thereof,
which loans resulted in the following state court lawsuits
commenced by First Bank (the "State Court Actions"): FIRST BANK V.
SUGAR FINANCIAL SERVICES, INC. AND XXXXXXX X. SUGAR; Xxxxxxxxxx
County, 94 CvS 486; FIRST BANK V. XXXXX X. XXXXXXXX AND XXXXXXX
XXXXXX, Xxxxx County, 94 CvS 01193; FIRST BANK V. XXXXXXX X.
XXXXXXX AND XXXXXXXX X. XXXXXX, Xxxxx County, 94 CvS 01037; FIRST
BANK X. XXXXXXXX X. XXXXXX, D/B/A XXXXXX BUILDING CO., Xxxxxxxxxx
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County, 94 CvD 433; FIRST BANK V. XXXXX X. XXXXXX, XXXXXXX X.
XXXXXXX AND XXXXXXXX X. XXXXXX, Xxxxx County, 94 CvS 01038; FIRST
BANK V. ENTERPRISE BUILDING CORP. AND XXXXXXXX XXXXXX, Xxxxxxxxxx
County, 94 CvS 447; FIRST BANK V. XXXXX X. XXXXXXXXX AND PRUDENTIAL
SECURITIES, INCORPORATED, Xxxxx County, 94 CvS 01123; FIRST BANK V.
LESRO CONSTRUCTION CORP., XXXXXX SMALL AND XXXXXXX XXXXX, Xxxxx
County, 94 CvS 00172; FIRST BANK V. XXXXXX X. XXXXXXX, XXXXXX X.
XXXXXX AND XXXXXXXX X. XXXXXX, Xxxxxxxxxx County, 94 CvS 484; FIRST
BANK V. XXXXX XXXXX XXXXXX AND XXXXXXXX X. XXXXXX, Xxxxx County, 94
CvS 01049; and
WHEREAS, First Bank represents that the State Court Actions
and the civil actions described in the Related Loans constitute
each and every civil action filed by First Bank in the courts of
North Carolina arising out of the Xxxx/Garner Acts and the
Relationships; and
WHEREAS, one or more of the Garner Defendants, by or through
various affiliates, affiliated persons, employees, relatives and
entities, received funds from First Bank loan or deposit accounts
in the names of following customers, some of which the Xxxxxx
Defendants contend they were unaware (the "First Bank Accounts"):
Xxxxxxxx X. Xxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxx Xxxxxx, Xxxxx and
Xxxxx Xxxxxxxx, Xxxxxx and Xxxxxx Xxxxxxx, Xxxxx Xxxxxxxxx,
Enterprise Building Corp., Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxxxxx Xxxxxxx, Lesro Construction Co., Xxxxxx and
Xxxxxxx Xxxxx, Sugar Financial Services, Xxxx Xxxxx, River Road
Properties, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxx
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Building Company, X. X. Xxxxxx Building Company, Xxxxxxxx Xxxxxx,
Xxxxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxx and Xxxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxx, Diversified
Properties, Xxxx Xxxxxxxxx, Xxxxxxxxx Homes, Xxxxxx Xxxxx, Xxxxx
Xxxxxxx, and
WHEREAS, the claims brought by and against Standard Bank &
Trust Company in the Lawsuit have been previously settled and
dismissed as evidenced by the Stipulation of Voluntary Dismissal
attached hereto as Exhibit A; and
WHEREAS, claims by or against P. Xxxxxxxx Xxxxx will be
dismissed on or before December 29, 1995, pursuant to the
Stipulation of Voluntary Dismissal attached hereto as Exhibit B;
and
WHEREAS, Prudential has heretofore settled the claims of WV&B
and has taken an assignment of the claims of WV&B as evidenced by
the Settlement Agreement attached hereto as Exhibit C; and
WHEREAS, the Parties have agreed upon a compromise settlement
of all claims asserted in the Lawsuit, whether by complaint,
counterclaim, cross-claim, and they enter into this SETTLEMENT
AGREEMENT for the purpose of memorializing the settlement of all
such claims, as well as all other matters set forth herein;
NOW, THEREFORE, for and in consideration of the mutual
covenants and promises contained herein and in further
consideration of the monetary payments described below, the Parties
do hereby covenant, contract and agree with each other as follows:
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A. COVENANT NOT TO XXX
1. Prudential and First Bank, on behalf of themselves and
their officers, directors, agents, servants, employees,
representatives, attorneys, predecessors, successors, parent and
subsidiary corporations, and assigns, hereby covenant that they
will never institute, nor prosecute, nor aid in the prosecution
except as required by applicable statute, rule, or order, against
each other or any other Party (or any officer, director, agent,
servant, employee, representative, attorney, predecessor,
successor, parent or subsidiary corporation, or assign of any
Party) any suit at law or in equity, claim, demand, action, or
cause of action for compensation, damages, consequential damages,
punitive damages or statutory penalties, whatsoever, including, by
way of illustration and not limitation, all costs and expenses,
including attorney's fees, for or on account of any loss or injury,
past, present or future, arising directly out of the PSI Loan, the
PBT Loan, the Standard Bank Loan, the WV&B Loan, the Xxxxx Loan,
the Related Loans, and the loans at issue in the pleadings in the
State Court Actions; the First Bank Accounts, or any assignment of
any asset made in connection with any of the aforesaid accounts or
loans, including those causes of action relating to said loans
asserted by any of the Parties hereto in the Fourth Amended
Complaint and First Bank's Answer to the Third Amended Complaint
filed with the Court in the Lawsuit; except that Prudential and
First Bank each may xxx to enforce the terms of this Settlement
Agreement. This paragraph is a covenant not to xxx, and not a
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release. Neither First Bank nor Prudential hereby covenants not to
xxx regarding loans, assignments, or accounts not specifically
enumerated herein.
2. The Xxxxxx Defendants, Xxxx Estate, Xxxxxx X. Xxxxxxxxx,
Xxxxxxx X Xxxxxxx, WV&B (by and through its assignee, Prudential,
only regarding assigned claims) and the Xxxxx Defendants,
themselves and their officers, directors, agents, servants,
employees, representatives, attorneys, predecessors, successors,
parent and subsidiary corporations, and assigns, (As to WV&B, by
and through its assignee, Prudential, only regarding assigned
claims) hereby covenant that they will never institute, nor
prosecute, nor aid in the prosecution except as required by
applicable statute, rule, or order, against each other or any other
Party (or any officer, director, agent, servant, employee,
representative, attorney, predecessor, successor, parent or
subsidiary corporation, or assign of any Party) any suit at law or
in equity, claim, demand, action, or cause of action for
compensation, damages, consequential damages, punitive damages or
statutory penalties, whatsoever, including, by way of illustration
and not limitation, all costs and expenses, including attorney's
fees, for or on account of any loss or injury, past, present or
future, whether known or unknown, and whether presently existing or
arising hereafter, for, by reason of, related to or arising out of
the PSI Loan, the PBT Loan, the Standard Bank Loan, the WV&B Loan,
the Xxxxx Loan, the Related Loans, and the loans at issue in the
pleadings in the State Court Actions, the First Bank Accounts, any
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assignment of any asset made in connection with any of the
aforesaid accounts or loans, or the Relationships, including those
causes of action relating to said loans asserted by any of the
Parties hereto in the Fourth Amended Complaint and First Bank's
Answer to the Third Amended Complaint filed with the Court in the
Lawsuit, or any other of the Xxxx/Xxxxxx Acts; except that the
Xxxxxx Defendants, Xxxx Estate, Xxxxxx X. Xxxxxxxxx, Xxxxxxx X
Xxxxxxx, WV&B, and the Xxxxx Defendants, each may xxx to enforce
the terms of this Settlement Agreement. This paragraph is a
covenant not to xxx, and not a release.
3. The covenants not to xxx set forth in the preceding two
paragraphs shall in no way be construed so as to prevent any Party
from asserting any affirmative defense in any subsequent litigation
to which it is a party, including, but not limited to, defenses
based upon the Xxxx/Xxxxxx Acts and the Relationships.
4. Upon the execution of this SETTLEMENT AGREEMENT, and on
or before Friday, December 29, 1995, the Parties will execute and
file with the Court the Stipulation of Voluntary Dismissal attached
hereto as Exhibit B, dismissing, with prejudice, all claims which
were asserted or which are barred pursuant to this SETTLEMENT
AGREEMENT.
B. PAYMENT
5. Upon the execution of this SETTLEMENT AGREEMENT, and on
or before Friday, December 29, 1995, First Bank, on behalf of the
First Bank Defendants and the Xxxxxx Defendants, shall pay to
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Prudential, by wire transfer, the full sum of $4,325,000.00 in full
and complete settlement of Prudential's claims as set forth above.
6. Upon the execution of this SETTLEMENT AGREEMENT, and on
or before Friday, December 29, 1995, the claims of the Xxxxx
Defendants will be fully settled by the following payments:
(a) Prudential shall pay the sum of $100,000.00 to
counsel for the Xxxxx Defendants; and
(b) First Bank shall pay the sum of $340,000.00 to
counsel for the Xxxxx Defendants, $25,000.00 of this amount being
paid on behalf of Prudential, which $25,000.00 will be recovered by
First Bank from Prudential as set forth herein in paragraph C.10(b)
hereof.
X. XXXXXX DEFENDANTS' ASSETS
7. Upon the execution of this SETTLEMENT AGREEMENT, and on
or before Friday, December 29, 1995, the Xxxxxx Defendants shall:
(a) transfer, assign and convey to First Bank or its
designee all shares of stock held by the Xxxxxx Defendants, or any
of them, individually or jointly, in Southern National Corporation,
including but not limited to, the 1,400 shares of Southern National
Corporation stock owned by Xxxxxxxx Xxxxxx and evidenced by
Certificate Number SN34363, the 916 shares of Southern National
Corporation stock owned by Xxxxxxxx and Xxxxx Xxxxxx, jointly, and
evidenced by Certificates Number SN34364, 4724, U9435, U41321,
AN19181, U14077, UT818166, 0006429, U4241, AN41162, AN64196, and
any dividend reinvestment accounts associated with said stock, a
portion of which stock First Bank contends is pledged as collateral
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for Enterprise Building Co., Inc., loan number 0070014949 at First
Bank, and which stock, or the proceeds thereof, shall be applied
against said loan balance; and
(b) transfer, assign and convey to First Bank or its
designee all right, title, and interest in First Bank Certificates
of Deposit 55010494, 55010498, 55010499, 55010952, 55010966 and
55,010,967
(c) execute and deliver the Assignment Agreement
documents attached hereto as Exhibit D so as to convey, transfer
and assign to First Bank or its designee all legal, equitable and
beneficial right, title and interest in and to GMP Properties,
Inc., including, but not limited to, all rights, benefits, income,
receivables or other monies that the Xxxxxx Defendants, or any one
of them, may have or may be entitled to which relate, in any way,
to GMP Properties, Inc. or its assets, and to cause GMP Properties,
Inc. to acknowledge receipt of such assignment;
(d) and by this SETTLEMENT AGREEMENT do, warrant and
represent that, as to Institutional Funding, Inc., and as of the
date of this SETTLEMENT AGREEMENT, neither they nor their spouses
or children have any such right, title or interest, including, but
not limited to, any present rights to any future payments,
dividends, receivables, or other monies, except in exchange for the
provision of labor or services, and, further, that neither they nor
their spouses or children have made any direct or indirect
investment in Institutional Funding, Inc., financial or otherwise,
including, but not limited to, any loan, gift, advance or capital
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contribution, and further represent that they have delivered to
Institutional Funding, Inc. this warranty and representation.
Should the Xxxxxx Defendants, or any one of them, or their spouses
or children, have any present right, title or interest, including,
but not limited to, any present rights to any future payment,
dividends, receivables, or other monies, if said payments,
dividends, receivables or other monies are based upon any direct or
indirect investment they have made in Institutional Funding, Inc.,
financial or otherwise, prior to the date of this SETTLEMENT
AGREEMENT, except in exchange for the provision of labor or
services, then the Xxxxxx Defendants agree to convey, transfer and
assign to First Bank or its designee all of their legal, equitable
and beneficial right, title and interest in and to Institutional
Funding, Inc., a North Carolina corporation, as of the date of this
SETTLEMENT AGREEMENT, including, but not limited to, all rights,
benefits, income, receivables or other monies that, as of the date
of this SETTLEMENT AGREEMENT, the Xxxxxx Defendants, or any one of
them, may have or may be entitled to which relate, in any way, to
Institutional Funding, Inc. or its assets, and to cause
Institutional Funding, Inc. to acknowledge receipt of such
assignment. Any legal, equitable and beneficial rights, title and
interest which is obtained by the Xxxxxx Defendants or their
spouses or children after December 29, 1995, is not subject to this
assignment;
(e) convey, transfer and assign to First Bank or its
designee all right, title and interest, whether legal or equitable,
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in and to GMP Properties, Inc. including, but not limited to, all
capital stock of GMP Properties, Inc.; and
(f) at First Bank's direction and in its sole
discretion, convey, transfer and assign to First Bank or its
designee all right, title and interest, whether legal or equitable,
that the Xxxxxx Defendants or any of them, or their spouses or
children, have in any asset (including cash, real property,
personal property, cash equivalents, receivables or other monies
due) in which single asset, standing alone, the Xxxxxx Defendants,
or any one of them, or their spouse or children, have an equity
interest in excess of $10,000.00 as of the date of this SETTLEMENT
AGREEMENT, except for those assets described in Exhibit E, which
assets the Xxxxxx Defendants shall retain.
8. Upon the execution of this SETTLEMENT AGREEMENT, and on
or before Friday, December 29, 1995, the Xxxxxx Defendants shall
convey, assign and transfer, by general warranty deed, all of their
right title and interest in the assets set forth below to First
Bank, which assets First Bank may sell or otherwise dispose of
pursuant to the exercise of its sole and exclusive discretion:
(a) 26.68 acres of real property located in
Fayetteville, Cumberland County, North Carolina and recorded in the
Cumberland County Public Registry in Book 3409, at page 0389;
(b) 30 acres of real property located near Carthage,
Xxxxx County, North Carolina and recorded in the Xxxxx County
Public Registry in Book 409, at page 132;
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(c) real property located at 000 X. Xxxxxxx Xxxxxx,
Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxxxx and recorded in the
Xxxxx County Public Registry in Book 696, at page 310;
(d) real property located at 0000 X. Xxxxx Xxxxx, Xxxx
Xxxxx, Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx and recorded in the
Brunswick County Public Registry in Book 645, at page 376;
(e) real property located at 0000 X. Xxxxx Xxxxx, Xxxx
Xxxxx, Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx and recorded in the
Brunswick County Public Registry in Book 715, at page 584; and
(f) .47 acres of real property located in Niagara, Xxxxx
County, North Carolina and recorded in the Xxxxx County Public
Registry in Book 465, page 52(lot 114, .17 acres) and Book 665,
page 615 (lots 112 and 113, .30 acres).
9. Upon the execution of this SETTLEMENT AGREEMENT, and on
or before Friday, December 29, 1995, the Xxxxxx Defendants shall
transfer, assign and convey to First Bank and Prudential all right,
title and interest in that certain insurance policy insuring the
life of Xxxxxxxx X. Xxxxxx, known as The Travelers Life Insurance
Policy Number L4657346 (the "Policy"), and shall cause First Bank
and Prudential to be designated as owners and beneficiaries under
the Policy, and to receive all notices and correspondence relating,
in any way, to said Policy. First Bank and Prudential shall each
hold an undivided one-half interest in the Policy and shall receive
any benefits under the Policy by joint check.
(a) On December 15, 1995, First Bank paid the December,
1995 premium payment due on the Policy in the amount of $1,411.24.
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First Bank may, at its option and in its sole discretion, continue
making premium payments when due under the Policy, but in no event
shall First Bank incur any liability to any Party or anyone on
account of its failure to make said payments.
(b) In the event First Bank chooses not to make any
particular premium payment, it shall give notice thereof to
Prudential at least 20 days prior to the due date of any premium
and Prudential shall have the option to continue making premium
payments under the Policy. Notice shall be in writing sent by
telecopy and Federal Express (or the equivalent) to General
Counsel, Prudential Securities, Incorporated, Xxx Xxxxxxx Xxxxx,
Xxx Xxxx, XX 00000-0000, telefax no. (000) 000-0000, and Xxxxx X.
XxXxxxxxxx, Xx., Xxxxx and Xxx Xxxxx, P.L.L.C., 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 00, Xxxxxxxxx, XX 00000-0000, telefax no. (704) 331-
1159. Likewise, if Prudential chooses not to make any particular
premium payment, it shall give notice thereof to First Bank at
least 10 days prior to the due date of any premium and First Bank
shall have the option to continue making premium payments under the
Policy. Notice shall be in writing, sent by telecopy and Federal
Express (or the equivalent) to President, First Bank, X.X. Xxx 000,
Xxxx, XX 00000, telefax no. (000) 000-0000, and to Xxxxx X. Xxxxxx,
Xxxxx Xxxxxxxxx Xxxxx Xxxxxx & Xxxxx, 000 Xxxxx Xxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, XX 00000, telefax no. (000) 000-0000.
10. The proceeds from First Bank's sale or other disposition
of the Garner assets as described in paragraphs 7 through 9 above,
including the receipt by First Bank and Prudential of any death
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benefits under the Policy, shall be disbursed in the following
order of priority:
(a) non-insurance assets:
1. First, First Bank shall recover 115% of its out
of pocket expenses, including attorney fees, incurred in the
liquidation of the assets after December 29, 1995;
2. Second, First Bank shall recover $350,000.00;
and
3. Third, any remaining proceeds, as evidenced by
a full, complete and accurate accounting provided by First Bank
shall be divided equally by First Bank and Prudential within a
reasonable time after receipt of said proceeds by First Bank, but
not to exceed ninety days.
(b) insurance assets:
1. First, First Bank shall recover 115% of its out
of pocket expenses, including attorney fees, incurred in the
liquidation of the assets after December 29, 1995; and Policy
premiums, plus simple interest thereon at the rate of First Bank's
prime rate less 1% from the date of payment until reimbursement;
2. Second, First Bank shall recover the $25,000.00
it paid on Prudential's behalf to the Xxxxx Defendants as described
in paragraph B.6(b) hereof;
3. Third, Prudential shall recover 115% of the
Policy premiums it paid, plus simple interest thereon at the rate
of First Bank's prime rate less 1% from the date of payment until
reimbursement; and
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4. Fourth, any remaining proceeds, as evidenced by
a full, complete and accurate accounting provided by First Bank and
Prudential, shall be divided equally by First Bank and Prudential
within a reasonable time after receipt of said proceeds by First
Bank, but not to exceed ninety days.
11. The Xxxxxx Defendants agree to execute all other
documents and take any action necessary to effectuate the above
transfers, conveyances and assignments, to effectuate the renewal,
exchange, replacement or conversion of the Policy and to otherwise
effectuate the purposes and intentions of this SETTLEMENT
AGREEMENT, it being the intention of the Xxxxxx Defendants to
provide hereby a full and absolute warranty of further assurance to
First Bank.
12. The Parties agree to waive any claims against First Bank
for its conduct of the sale or disposition of the Xxxxxx Defendant
assets as set forth above.
X. XXXXXX DEFENDANTS' WARRANTIES AND REPRESENTATIONS
13. The Xxxxxx Defendants jointly and severally represent,
warrant, and covenant that the real and personal properties
described in paragraphs 7 through 9 constitute all assets
(including all cash or cash equivalents) in which the Xxxxxx
Defendants, or any of them, or their spouses or children, have any
legal or beneficial interest whatever, whether direct or indirect,
of greater than $10,000.00 in equity per asset with the sole
exception of those assets described in Exhibit E hereto.
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14. The Xxxxxx Defendants jointly and severally represent,
warrant, and covenant that except as set forth in Exhibit F hereto,
they have received no loans nor any proceeds of any loans whether
directly or indirectly, for which they have any current or future
obligation to repay. Further, the Parties represent that they have
no knowledge of any assignment, pledge or liens regarding the
Xxxxxx Defendants other than those set forth herein and in the
attached exhibits, and regarding property being transferred
pursuant to this SETTLEMENT AGREEMENT. As to any of the debts set
forth in Exhibit F, the Xxxxxx Defendants represent there has been
no pledge or assignment of any asset ever held, issued by or
deposited with First Bank or Prudential.
15. In the event the Xxxxxx Defendants breach the warranties,
representations and covenants set forth herein, this SETTLEMENT
AGREEMENT shall be null and void as to the Xxxxxx Defendants only.
In the event of such breach, as determined by a court of competent
jurisdiction, the Xxxxxx Defendants, except for Xxxxx Xxxxxx, shall
be jointly and severally liable to First Bank for the principal sum
of $5,271,039.20 plus court costs, attorneys' fees and interest
thereon at the maximum legal rate from and after December 29, 1995,
until paid, and the Xxxxxx Defendants, with the exception of Xxxxx
Xxxxxx, shall be jointly and severally liable to Prudential for the
principal sum of $1,589,000.00 plus court costs, attorneys' fees
and interest thereon at the maximum legal rate from and after
December 29, 1995, until paid. In such event, Prudential and First
Bank shall also be entitled to pursue any other claims against the
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Xxxxxx Defendants at law or in equity. The merit of any claims
against Xxxxx Xxxxxx shall be reserved to be decided by Court
action. The Xxxxxx Defendants shall be barred from asserting as a
defense to any claim hereunder, any statute of limitations, statute
of repose, laches, estoppel or similar defense for a period of two
years from the date First Bank or Prudential discovered or should
have discovered such breach. In the event that First Bank or
Prudential recovers from the Xxxxxx Defendants, or any of them, any
sums pursuant to this paragraph, Prudential and First Bank shall be
entitled to share in such recovery, after recoupment of expenses
incurred in obtaining said recovery.
E. MISCELLANEOUS
16. Prudential warrants and represents that it is the
assignee and owner of the claims of WV&B as set forth in the
Lawsuit and that it has full power and authority to release any
such claims and sign this SETTLEMENT AGREEMENT, the Stipulation of
Dismissal of the Lawsuit, and the "Consent Motion for Order
Transferring PaineWebber Accounts from Xxxxxxxx X. Xxxxxx to
Counsel for Xxxxx X. Xxxxx" on behalf of WV&B.
17. The Parties agree that this SETTLEMENT AGREEMENT is a
compromise and settlement of disputed claims, and is not to be
construed as an admission of liability by any of the Parties,
liability being expressly denied by the same.
18. Xxxxx Xxxx Xxxx hereby warrants and covenants that she is
the duly appointed, qualified and acting personal representative of
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the Estate of Xxxx Xxxxxxx Xxxx, all as evidenced by the Letters
Testamentary attached hereto as Exhibit G.
19. The Parties agree that they have executed this SETTLEMENT
AGREEMENT based on their own knowledge and their own investigation
of the facts, and that, aside from the warranties and
representations made herein, this SETTLEMENT AGREEMENT is not
executed in reliance upon any statement of any person connected
with, representing or represented by any of the Parties to whom
covenants not to xxx have been given herein.
20. The Parties declare that they have carefully read this
SETTLEMENT AGREEMENT, that they have been fully advised in
connection with this SETTLEMENT AGREEMENT by legal counsel of their
own choice, that this SETTLEMENT AGREEMENT has been fully explained
to them prior to its execution and that they understand its terms
and legal effect, and they sign this SETTLEMENT AGREEMENT of their
own free will.
21. The Parties agree that the breach of any term or
provision of this SETTLEMENT AGREEMENT by any Party hereto shall
give all other non-breaching Parties the right to bring suit
against the breaching Party and recover all costs and expenses,
including attorneys' fees, incurred by the non-Breaching Party in
the prosecution of said suit. The Parties further agree that any
breach of this SETTLEMENT AGREEMENT will cause damage that will be
impractical and exceedingly difficult to measure in full. The
Parties therefore agree that this SETTLEMENT AGREEMENT may be
enforced by means of a temporary restraining order or preliminary
19
injunction, or both, and that all other available remedies at law
or in equity, including, but not limited to, money damages and
specific performance, may be had for breach of this SETTLEMENT
AGREEMENT.
22. The Parties agree that this SETTLEMENT AGREEMENT shall be
governed and construed according to the laws of the State of North
Carolina.
23. The Parties agree that in executing this SETTLEMENT
AGREEMENT they are relying upon all representations and warranties
made herein by the Parties.
24. The Parties have had the opportunity to participate in
the drafting of this SETTLEMENT AGREEMENT, which is the result of
negotiations among the Parties. It is, therefore, specifically
agreed that, in the event of any dispute with respect to the proper
interpretation of any term of this SETTLEMENT AGREEMENT, no one
Party shall be deemed to be the drafter.
25. The Parties agree that this SETTLEMENT AGREEMENT contains
the ENTIRE AGREEMENT between the Parties as a whole and the terms
hereof are contractual in nature and not merely recitals and shall
not be modified or amended except by written instruments signed by
all the Parties or their representatives.
26. The Parties agree that this SETTLEMENT AGREEMENT may be
executed in a number of counterparts, each of which shall be
considered an original instrument, but all of which together shall
be considered but one and the same instrument. This SETTLEMENT
20
AGREEMENT shall be binding on all signatories hereto, even if
executed in any number of counterparts.
IN WITNESS WHEREOF, the individual Parties hereto have
hereunto set their hands and adopted the word "(SEAL)" following
their names as personal seals, and the corporate Parties hereto
have caused this SETTLEMENT AGREEMENT to be entered into and
executed by the properly authorized corporate officers this the
28th day of December, 1995.
INTENTIONALLY LEFT BLANK
21
FIRST BANK
By: /s/ Xxxxxx Xxxxxx
---------------------
Title: Vice President
ATTEST:
Xxxx X. Xxxxxxx
-----------------------
__________ Secretary
(Affix corporate seal)
STATE OF North Carolina
ACKNOWLEDGEMENT AND VERIFICATION
Guilford COUNTY
I, XXXXXX X. XXXXX Notary Public for said County and
State, certify that XXXX XXXXXXX personally came before me
this 28TH day of December, 1995, and having been duly sworn,
states that she is Secretary of First Bank a corporation;
that she has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof, and the same is true of her own knowledge; and
that by authority duly given and as an act of the Corporation, the
foregoing SETTLEMENT AGREEMENT was signed in its name by its
VICE President, sealed with its corporate seal, and
attested by her as its Secretary.
WITNESS my hand and official seal, this the 28TH day of
December, 1995.
Xxxxxx X. Xxxxx
-----------------------
Notary Public
[ OFFICIAL SEAL ]
[ XXXXXX X. XXXXX ]
My Commission Expires: 1/16/97 [ NOTARY PUBLIC ]
[GUILFORD COUNTY, NC]
[Comm. Exp. 1/16/97 ]
/s/ Xxxxxxx X. Xxxxxxx
-------------------------
XXXXXXX X. XXXXXXX
STATE OF North Carolina
VERIFICATION
Guilford COUNTY
Xxxxxxx X. Xxxxxxx, being first duly sworn, deposes and says
that she has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof and that the same is true of her own knowledge.
This the 28TH day of December, 1995.
/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
Sworn to and subscribed before me,
this the 28TH day of December, 1995.
[ OFFICIAL SEAL ]
Xxxxxx X. Xxxxx [ XXXXXX X. XXXXX ]
----------------------- [ NOTARY PUBLIC ]
Notary Public [GUILFORD COUNTY, NC]
[Comm. Exp. 1/16/97 ]
My Commission Expires: 1/16/97
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------
XXXXXX X. XXXXXXXXX
STATE OF North Carolina
VERIFICATION
Guilford COUNTY
Xxxxxx X. Xxxxxxxxx, being first duly sworn, deposes and says
that she has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof and that the same is true of her own knowledge.
This the 28TH day of December, 1995.
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxx X. Xxxxxxxxx
Sworn to and subscribed before me,
this the 28TH day of December, 1995.
[ OFFICIAL SEAL ]
Xxxxxx X. Xxxxx [ XXXXXX X. XXXXX ]
----------------------- [ NOTARY PUBLIC ]
Notary Public [GUILFORD COUNTY, NC]
[Comm. Exp. 1/16/97 ]
My Commission Expires: 1/16/97
________________________________
/s/ Xxxxx Xxxx Xxxx
-------------------------
ESTATE OF XXXX XXXXXXX XXXX, by and
through its personal representative,
XXXXX XXXX XXXX
STATE OF North Carolina
VERIFICATION
Xxxxx COUNTY
Xxxxx Xxxx Xxxx, being first duly sworn, deposes and says that
she has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof and that the same is true of her own knowledge.
This the 29TH day of December, 1995.
/s/ Xxxxx Xxxx Xxxx
-------------------------
XXXXX XXXX XXXX
Sworn to and subscribed before me,
this the 29TH day of December, 1995.
[ OFFICIAL SEAL ]
Xxxxx X. Xxxxxxxx [ Xxxxx X. Xxxxxxxx ]
----------------------- [ NOTARY PUBLIC ]
Notary Public [ XXXXX COUNTY, NC ]
My Commission Expires: 8-22-98
/s/ Xxxxxxx Xxxx
-------------------------
XXXXXXX XXXX
STATE OF North Carolina
VERIFICATION
New Hanover COUNTY
Xxxxxxx Xxxx, being first duly sworn, deposes and says that
she has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof and that the same is true of her own knowledge.
This the 27TH day of December, 1995.
/s/ Xxxxxxx Xxxx
-------------------------
Xxxxxxx Xxxx
Sworn to and subscribed before me,
this the 27TH day of December, 1995.
[ OFFICIAL SEAL ]
Xxxx X. Scoffins [ XXXX X. XXXXXXXX ]
----------------------- [ NOTARY PUBLIC ]
Notary Public [BRUNSWICK COUNTY NC]
[Comm. Exp. 2-27-96 ]
My Commission Expires: 2-27-96
/s/ Xxxxxx Xxxxxxxx
-------------------------
XXXXXX XXXXXXXX
STATE OF North Carolina
VERIFICATION
New Hanover COUNTY
Xxxxxx Xxxxxxxx, being first duly sworn, deposes and says that
she has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof and that the same is true of her own knowledge.
This the 27TH day of December, 1995.
/s/ Xxxxxx Xxxxxxxx
-------------------------
Xxxxxx Xxxxxxxx
Sworn to and subscribed before me,
this the 27TH day of December, 1995.
[ OFFICIAL SEAL ]
Xxxx X. Scoffins [ XXXX X. XXXXXXXX ]
----------------------- [ NOTARY PUBLIC ]
Notary Public [BRUNSWICK COUNTY NC]
[Comm. Exp. 2-27-96 ]
My Commission Expires: 2-27-96
/s/ Xxxxxxxx Xxxxxx
-------------------------
XXXXXXXX XXXXXX
STATE OF Vermont
VERIFICATION
Bennington COUNTY
Xxxxxxxx Xxxxxx, being first duly sworn, deposes and says that
she has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof and that the same is true of her own knowledge.
This the 28TH day of December, 1995.
/s/ Xxxxxxxx Xxxxxx
-------------------------
Xxxxxxxx Xxxxxx
Sworn to and subscribed before me,
this the 28TH day of December, 1995.
_____ X. Xxxxxxxx [signature illegible, no official seal]
-----------------------
Notary Public
My Commission Expires: 2-10-99
/s/ Xx. Xxxxxx X. Xxxxx
-------------------------
XX. XXXXXX X. XXXXX
STATE OF Florida
VERIFICATION
Dade COUNTY
Xx. Xxxxxx X. Xxxxx, being first duly sworn, deposes and says
that he has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof and that the same is true of his own knowledge.
This the 27TH day of December, 1995.
/s/ Xx. Xxxxxx X. Xxxxx
-------------------------
Xx. Xxxxxx X. Xxxxx
Sworn to and subscribed before me,
this the 27TH day of December, 1995.
[ OFFICIAL SEAL ]
Xxxxxxxx X. Xxxxx [ XXXXXXXX X. XXXXX ]
----------------------- [ NOTARY PUBLIC ]
Notary Public [ DADE COUNTY FL ]
[Comm Exp Jul24,1996]
My Commission Expires: July 24, 1996
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxxxxx X. Xxx
-------------------------
Title: Senior Vice President
ATTEST:
Xxxx X. Fennile [signature illegible]
--------------------
Assistant, Secretary
(Affix Corporate Seal)
VERIFICATION
STATE OF NEW YORK
NEW YORK COUNTY
Xxxxxxxx X. Xxx, being first duly sworn, deposes and says that
she is the Senior Vice President of Prudential Securities
Incorporated; that she has read the foregoing Settlement Agreement
and knows the contents thereof, and that the same is true of her
own knowledge.
This the 22nd day of December, 1995.
/s/ Xxxxxxxx X. Xxx
-------------------------
Xxxxxxxx X. Xxx
Senior Vice President
PRUDENTIAL SECURITIES INCORPORATED
Sworn To and subscribed before me,
this the 22nd day of December, 1995.
Xxxxx Xxxxxx
-----------------------
Notary Public
My Commission Expires: 7-18-97
[ OFFICIAL SEAL ]
[ Xxxxx Xxxxxx ]
[Notary Public, State of New York ]
[ No. 00-0000000 ]
[ Qualified in Kings County ]
[ Commission Expires July 8, 1997 ]
GARNER BUILDING COMPANY
By: /s/ Xxxxxxxx Xxxxxx
-------------------------
Title: President
ATTEST:
Xxxxxxx X. Xxxxxx
--------------------
Vice President
(Affix Corporate Seal)
STATE OF North Carolina
ACKNOWLEDGEMENT AND VERIFICATION
Guilford COUNTY
I, XXXXX X. XXXXXX, Notary Public for said County and
State, certify that XXXXXXX X. XXXXXX personally came before
me this 28TH day of December, 1995, and having been duly sworn,
states that he is VICE PRESIDENT of Xxxxxx Building Company a
corporation; that he has read the foregoing SETTLEMENT AGREEMENT
and knows the contents thereof, and the same is true of his own
knowledge; and that by authority duly given and as an act of the
Corporation, the foregoing SETTLEMENT AGREEMENT was signed in its
name by its President, sealed with its corporate seal,
and attested by him as its VICE PRESIDENT.
WITNESS my hand and official seal, this the 28TH day of
December, 1995.
Xxxxx X. Xxxxxx
-------------------------
Notary Public
My Commission Expires: 5/26/98
[ OFFICIAL SEAL ]
[ XXXXX X. XXXXXX ]
[ NOTARY PUBLIC ]
[ GUILFORD COUNTY, NC ]
[Commission Expires 5/26/98]
/s/ Xxxxxxx X. Xxxxxx
-------------------------
XXXXXXX X. XXXXXX
STATE OF North Carolina
VERIFICATION
Guilford COUNTY
Xxxxxxx X. Xxxxxx, being first duly sworn, deposes and says
that he has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof and that the same is true of his own knowledge.
This the 28TH day of December, 1995.
/s/ Xxxxxxx X. Xxxxxx
-------------------------
Xxxxxxx X. Xxxxxx
Sworn to and subscribed before me,
this the 28TH day of December, 1995.
Xxxxx X. Xxxxxx
-----------------------
Notary Public
My Commission Expires: 5-26-98
[ OFFICIAL SEAL ]
[ XXXXX X. XXXXXX ]
[ NOTARY PUBLIC ]
[ GUILFORD COUNTY, NC ]
[Commission Expires 5/26/98]
/s/ Xxxxx Xxxxxx
-------------------------
XXXXX XXXXXX
STATE OF North Carolina
VERIFICATION
Guilford COUNTY
Xxxxx Xxxxxx, being first duly sworn, deposes and says that
she has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof and that the same is true of her own knowledge.
This the 28TH day of December, 1995.
/s/ Xxxxx Xxxxxx
-------------------------
Xxxxx Xxxxxx
Sworn to and subscribed before me,
this the 28TH day of December, 1995.
Xxxxx X. Xxxxxx
-----------------------
Notary Public
My Commission Expires: 5-26-98
[ OFFICIAL SEAL ]
[ XXXXX X. XXXXXX ]
[ NOTARY PUBLIC ]
[ GUILFORD COUNTY, NC ]
[Commission Expires 5/26/98]
/s/ Xxxxxxxx X. Xxxxxx
-------------------------
XXXXXXXX X. XXXXXX
STATE OF North Carolina
VERIFICATION
Guilford COUNTY
Xxxxxxxx X. Xxxxxx, being first duly sworn, deposes and says
that he has read the foregoing SETTLEMENT AGREEMENT and knows the
contents thereof and that the same is true of his own knowledge.
This the 28TH day of December, 1995.
/s/ Xxxxxxxx X. Xxxxxx
-------------------------
Xxxxxxxx X. Xxxxxx
Sworn to and subscribed before me,
this the 28TH day of December, 1995.
Xxxxx X. Xxxxxx
-----------------------
Notary Public
My Commission Expires: 5-26-98
[ OFFICIAL SEAL ]
[ XXXXX X. XXXXXX ]
[ NOTARY PUBLIC ]
[ GUILFORD COUNTY, NC ]
[Commission Expires 5/26/98]
X.X. XXXXXX BUILDING COMPANY
By: /s/ Xxxxxxxx Xxxxxx
-------------------------
Title: President
ATTEST:
Xxxxxxx X. Xxxxxx
--------------------
Vice President
(Affix Corporate Seal)
STATE OF North Carolina
ACKNOWLEDGEMENT AND VERIFICATION
Guilford COUNTY
I, XXXXX X. XXXXXX, Notary Public for said County and
State, certify that XXXXXXX X. XXXXXX personally came before
me this 28TH day of December, 1995, and having been duly sworn,
states that he is VICE PRESIDENT of X.X. Xxxxxx Building Company a
corporation; that he has read the foregoing SETTLEMENT AGREEMENT
and knows the contents thereof, and the same is true of his own
knowledge; and that by authority duly given and as an act of the
Corporation, the foregoing SETTLEMENT AGREEMENT was signed in its
name by its President, sealed with its corporate seal,
and attested by him as its VICE PRESIDENT.
WITNESS my hand and official seal, this the 28TH day of
December, 1995.
Xxxxx X. Xxxxxx
-------------------------
Notary Public
My Commission Expires: 5/26/98
[ OFFICIAL SEAL ]
[ XXXXX X. XXXXXX ]
[ NOTARY PUBLIC ]
[ GUILFORD COUNTY, NC ]
[Commission Expires 5/26/98]
end settlement
begin exhibit A-settlement
EXHIBIT A
UNITED STATES DISTRICT COURT FOR [Filing Stamp Here]
THE MIDDLE DISTRICT OF NORTH CAROLINA [ Filed ]
DURHAM DIVISION [JUN 16 1995; 9:30]
No. 1: 94-CV-00444 [Clerk US Dist. Ct]
[ Greensboro, NC ]
PRUDENTIAL SECURITIES, )
INCORPORATED, )
)
Plaintiff, )
)
vs. ) Stipulation of Dismissal
) With Prejudice Pursuant
) to F.R.Civ. P. 41(a)
XXXXXXXX B. XXXXXX, XXXXXXX )
X. XXXXXX, X.X. XXXXXX BUILDING )
COMPANY, XXXXXX BUILDING COMPANY, )
XXXXX XXXXXX, FIRST BANK, )
the ESTATE OF XXXX XXXXXXX )
XXXX (by and through its )
personal representative, Xxxxx Xxxx )
Xxxx), XXXXXX X. XXXXXXXXX, XXXXXXX )
X. XXXXXXX, STANDARD BANK & TRUST )
COMPANY, and XXXXXX, XXXXX & BALL, )
P.A., administrator of XXXXXX, XXXXX )
& BALL, P.A. PROFIT SHARING PLAN, )
)
Defendants. )
NOW COME the parties to this action, by counsel, pursuant to Rule 41(a)
of the Federal Rules of Civil procedure, and stipulate as follows:
1. All causes of action and claims for relief which have been asserted,
or which would be barred if not asserted, against Standard Bank & Trust
Company ("Standard Bank") by each and every other party to this action are
hereby voluntarily dismissed with prejudice.
2. All causes of action and claims for relief which have been asserted,
or which would be barred if not asserted, by Standard Bank against each and
every other party to this action are hereby voluntarily dismissed with
prejudice.
3. All causes of action and claims for relief which have been asserted,
or which
would be barred if not asserted, by any party against each and every other
party to this action in connection with the Garner Note, the Enterprise Note
and the Assignment (as defined in the terms of the Settlement Agreement of
record in this action) are hereby dismissed with prejudice. No other claims
by any party against any other party is affected by this stipulation.
4. Each party will bear its own costs and attorneys' fees.
5. In connection with this Stipulation of Dismissal, the parties to this
action have entered into a settlement agreement dated March 8, 1995, the terms
of which are incorporated herein by reference as though fully set forth.
This the 15 day of June, 1995.
XXXXX & STORY
Registered Limited Liability Partnership
/s/ Xxxxxx X. Xxxxx
--------------------------------
N. Xxxxxx Xxxxx, Xx.
N.C. State Bar No. 9533
Xxxxxx X. Xxxxx
N.C. State Bar No. 19686
Attorneys for Standard Bank & Trust
Company
Xxxx Xxxxxx Xxxxxx 0000
Xxxxxxx, XX 276O2-l389
Telephone: (000) 000-0000
2
XXXXX & XXX XXXXX, PLLC
/s/ Xxxxx X. XxXxxxxxxx, Xx.
--------------------------------
Xxxxx X. XxXxxxxxxx, Xx.
X.X. Xxxxx Xxx Xx. 00000
Attorneys for Prudential Securities, Inc.
lOO X. Xxxxx Xxxxxx Xxxxx 00
Xxxxxxxxx, XX 00000-0000
Telephone: (7O4) 000-0XXX
0
XXX XXXX, XXXX, XXXXX & XXXXXXX, P.A.
/s/ Xxxxxx X. Xxx Xxxx
--------------------------------
Xxxxxx X. Xxx Xxxx
X.X. Xxxxx Xxx Xx. 00000
Attorneys for Xxxxxxxx X. Xxxxxx,
Xxxxxxx X.
Xxxxxx, X.X. Xxxxxx Building Company,
Garner Building Company and Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxx 000
Xxxxxxxx, XX 00000
Telephone: (910) 947-l7ll
4
ADAMS, KLEEMEIER, XXXXX,
XXXXXX & XXXXX
/s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
N.C. State Bar No. 12549
Attorneys for First Bank, Xxxxxx X.
Xxxxxxxxx
and Xxxxxxx X. Xxxxxxx
Xxxx Xxxxxx xxx 0000
Xxxxxxxxxx, XX 00000
Telephone: (91O) 000-0000
0
XXXXXXX, XXXXXXX, XXXXXXX & XXXXXXX
/s/ X.X. Xxxxxxx, Xx.
--------------------------------
X.X. Xxxxxxx, Xx.
X.X. Xxxxx Xxx Xx. 0000
Xxxxxxxxx for Xxxxxx, Xxxxx & Ball,
P.A.,
Administrator of Xxxxxx, Xxxxx & Ball,
P.A.
Profit Sharing Xxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-XX00
6
XXXXX & XXXXXX LAW OFFICES
/s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
X.X. Xxxxx Xxx Xx. 0000
Xxxxxxxxx for the Estate of Xxxx Xxxxxxx
Xxxx
One Xxxxxxxxx Xxxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000
(000) 000-0000
7
BROOKS, PIERCE, XxXXXXXX,
XXXXXXXX & XXXXXXX, L.L.P.
/s/ Xxxxx X. Xxxxx, XX
--------------------------------
Xxx X. Xxxxxxxx, Xx.
State Bar No. 12516
Xxxxx X. Xxxxx, XX
State Bar No. 18063
Attorneys for Defendants P. Xxxxxxxx
Xxxxx, (co-
trustee),Xx. Xxxxxx X. Xxxxx (co-trustee
and
personally), Xxxxxx Xxxx, Xxxxxxxx
Xxxxxx
and Xxxxxx Xxxxxxxx
Xxxx Xxxxxx Xxx 00000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: 910/000-0000
8
end exhibit A-settlement
begin exhibit B-settlement
EXHIBIT B
IN THE UNITED STATES MIDDLE DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DURHAM DIVISION
Case No. 1:94CV00444
PRUDENTIAL SECURITIES, )
INCORPORATED, )
)
Plaintiff, )
)
v. )
)
XXXXXXXX X. XXXXXX, XXXXXXX X. )
GARNER, X. X. XXXXXX BUILDING )
COMPANY, XXXXXX BUILDING COMPANY, )
FIRST BANK, the ESTATE OF XXXX )
XXXXXXX XXXX (by and through its )
personal representative, Xxxxx )
Wood Gore), XXXXXX X. XXXXXXXXX, )
XXXXXXX X. WALDROP, WILLIS, XXXXX )
& BALL, P.A., administrator of )
XXXXXX, XXXXX & BALL, P.A. PROFIT )
SHARING PLAN, XXXXX XXXXXX, )
P. XXXXXXXX XXXXX (co-trustee), )
XX. XXXXXX X. XXXXX (co-trustee )
and personally), XXXXXX XXXX, )
XXXXXXXX XXXXXX and XXXXXX )
XXXXXXXX, )
)
Defendants. )
STIPULATION OF DISMISSAL WITH PREJUDICE
---------------------------------------
(Rule 41(a)(1)(ii))
-------------------
This action was previously dismissed as to Standard Bank &
Trust Company by way of Stipulation of Voluntary Dismissal dated
June 16, 1995. With the exception of Standard Bank & Trust
Company, all parties who have appeared in this action and P.
Xxxxxxxx Xxxxx, by and through their undersigned counsel, do hereby
stipulate and agree that this action, including all claims, cross-
claims and counterclaims asserted in this action, shall be, and
the same hereby is, DISMISSED WITH PREJUDICE. The parties further
stipulate and agree that the preliminary injunction previously
entered in this action on January 31, 1995 may be dissolved. Each
party shall bear his, her or its own costs.
This the ____ day of December, 1995.
-----------------------------
Xxxxx X. XxXxxxxxxx, Xx.
Counsel for Prudential Securities,
Incorporated
OF COUNSEL:
XXXXX & XXX XXXXX
47th Floor
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone: 704/000-0000
2
-----------------------------
Xxxxxx X. Xxx Xxxx
Counsel for Xxxxxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxx, X. X. Xxxxxx
Building Company, Garner Building
Company, and Xxxxx Xxxxxx
OF COUNSEL:
VAN CAMP WEST XXXXX
& XXXXXXX, P.A.
Xxxx Xxxxxx Xxxxxx 000
Xxxxxxxx, XX 00000
Telephone: 910/000-0000
3
-----------------------------
Xxxx X. Xxxxx
Counsel for the Estate of Xxxx
Xxxxxxx Xxxx (by and through its
personal representative, Xxxxx Xxxx
Xxxx)
OF COUNSEL:
XXXXX & XXXXXX
Law Xxxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, XX 00000
Telephone: 910/000-0000
4
-----------------------------
Xxxxx X. Xxxxxx
Counsel for First Bank, Xxxxxx X.
Xxxxxxxxx, and Xxxxxxx X. Xxxxxxx
OF COUNSEL:
XXXXX XXXXXXXXX XXXXX XXXXXX & XXXXX
A Professional Limited Liability Company
North Carolina Trust Center
000 X. Xxx Xxxxxx - Suite 000
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, XX 00000
(000) 000-0000
5
-----------------------------
X. X. Xxxxxxx, Xx.
Counsel for Xxxxxx, Xxxxx & Ball, P.A.,
Administrator of Xxxxxx, Xxxxx & Ball,
P.A. Profit Sharing Plan
OF COUNSEL:
XXXXXXX XXXXXXX XXXXXXX
& XXXXXXX
Xxxx Xxxxxx Xxx 000
Xxxxxxx, XX 00000
6
-----------------------------
Xxx X. Xxxxxxxx, Xx.
Counsel for P. Xxxxxxxx Xxxxx
(co-trustee), Xx. Xxxxxx X. Xxxxx
(co-trustee and Personally),
Xxxxxx Xxxx, Xxxxxxxx Xxxxxx and
Xxxxxx Xxxxxxxx
OF COUNSEL:
XXXXXX XXXXXX XXXXXXXX
XXXXXXXX & XXXXXXX, LLP
Xxxx Xxxxxx Xxx 00000
Xxxxxxxxxx, XX 00000
Telephone: 910/000-0000
7
The foregoing STIPULATION OF DISMISSAL is hereby APPROVED and
the preliminary injunction heretofore entered in this cause on
January 31, 1995, is hereby dissolved as of the entry of this
Stipulation on December 28, 1995, and it is so ORDERED. It is
further ORDERED that the parties make the transfers set forth in
the Release and Setttlement Agreement entered into between them.
DATE: December ____, 1995 -----------------------------
Xxxxxxx X. Xxxxxx
United States District Judge
8
end exhibit B-settlement
begin exhibit C-settlement
EXHIBIT C
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DURHAM DIVISION
CASE NO. 1:94-CV-00444
PRUDENTIAL SECURITIES )
INCORPORATED, )
)
Plaintiff, )
)
v. )
) SETTLEMENT AGREEMENT
XXXXXXXX X. XXXXXX, et al., )
)
Defendants. )
___________________________________)
This Settlement Agreement is made as of the 27th day of November, 1995
between the Xxxxxx Xxxxx & Ball, P.A. Pension and Profit Sharing Plan (the
"Plan") and Prudential Securities Incorporated ("Prudential").
The parties to this Settlement Agreement have agreed to resolve the
issues between them.
THEREFORE, the Plan and Prudential agree as follows:
1. On January 5, 1996 Prudential shall pay to the Plan the total sum of
$345,000 in principal, interest and reimbursement of litigation costs,
including attorneys' fees, by check made payable to the Plan.
2. The Plan hereby assigns to Prudential all of its right, title and
interest in the loan to Xxxxxxxx X. Xxxxxx and Xxxxx Xxxxxx, including the
note, the assignment, and any collateral pledged by Xxxxxxxx X. Xxxxxx and
Xxxxx Xxxxxx as security for the loan. Further, the Plan assigns any and all
claims, causes of action, rights, and remedies it may have against any person
whatever (including First Bank, Xxxxxxxx X. Xxxxxx and Xxxxx
Xxxxxx) with respect to the loan, the note, the assignment, and any and all
collateral pledged by Xxxxxxxx X. Xxxxxx and Xxxxx Xxxxxx for the loan.
3. On January 5, 1996, Prudential shall deliver to the Plan a fully
executed Covenant Not to Xxx, in the form attached hereto. On January 5,
1996, the Plan shall deliver to Prudential a reciprocal Covenant Not to Xxx.
4. On January 5, 1996, or as soon thereafter as is practical, Prudential
shall take all necessary steps to effect a dismissal without prejudice of all
claims they have asserted one against the other. The Plan shall cooperate as
reasonably required to effect the dismissals.
5. The Plan will cooperate with Prudential as reasonably necessary in
pursuit of the claims assigned to Prudential.
6. After trial or settlement of this case, if Prudential receives any
monies in excess of its principal balance and interest thereon at the North
Carolina legal rate, Prudential shall pay to the Plan any additional monies
received up to a maximum of $37,000 to further reimburse the Plan for its
litigation expenses, including attorneys' fees. Payment shall be made within
15 business days of receipt and clearance of said monies pursuant to the
settlement or judgement. If for any reason Prudential is compelled to return
the funds (by virtue of a bankruptcy filing or otherwise) the Plan shall
return the monies up to $37,000 to Prudential. If said funds are subsequently
returned to Prudential, said funds will be returned to the Plan.
7. The parties hereto agree that they have executed the Settlement
Agreement based on their own knowledge and their own investigation of the
facts, and that this Settlement Agreement and attached Covenants Not to Xxx
are the complete and exclusive agreements among the parties regarding these
matters and none is executed in reliance upon
- 2 -
any statement of any person connected with, representing or represented by any
of the parties hereby released.
8. The parties agree that this Settlement Agreement may be executed in a
number of counterparts, each of which shall be considered an original
instrument, but all of which together shall be considered but one and the
same instrument. This Settlement Agreement shall be binding on all
signatories hereto, even if executed in any number of counterparts.
FOR PRUDENTIAL SECURITIES, INC.
Xxxxx Xxxxxx By: /s/ Xxxxxxxx X. Xxx
----------------------- ----------------------------
Witness
FOR THE PLAN:
By:
----------------------- ----------------------------
Witness Trustee
By:
----------------------- ----------------------------
Witness Trustee
By:
----------------------- ----------------------------
Witness Trustee
By:
----------------------- ----------------------------
Witness Trustee
- 3 -
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DURHAM DIVISION
CASE NO. 1:94-CV-00444
PRUDENTIAL SECURITIES )
INCORPORATED, )
)
Plaintiff, )
)
v. )
) COVENANT NOT TO XXX
XXXXXXXX X. XXXXXX, et al., )
)
Defendants. )
___________________________________)
This covenant is executed as of November 27, 1995 by the Xxxxxx, Xxxxx &
Ball, P.A. Profit Sharing Plan (hereinafter the "Plan") by its Trustees.
In consideration of the Settlement Agreement executed between the Plan
and Prudential Securities Incorporated (hereinafter, with its officers,
directors and agents, "Prudential") dated November 27, 1995 the Plan
covenants as follows:
1. The Plan will never institute any action, or suit at law or in equity
against Prudential, nor institute, nor prosecute against Prudential, (nor aid
in the prosecution except as required by applicable statute, rule, or order)
any claim, demand, action, or cause of action for damages, costs, expenses,
or compensation for or on account of any damage, loss or injury, whether
known or unknown, past, present or future arising out of the loan made by the
Plan to Xxxxxxxx X. Xxxxxx and Xxxxx Xxxxxx dated as of January 31, 1994 in
the principal amount of $300,000 (the "Plan's Loan"); except that the Plan
may xxx to enforce the terms of the Settlement Agreement with Prudential
dated November 27, 1995.
- 1 -
2. The Plan expressly acknowledges that in the Settlement Agreement it
has assigned to Prudential all rights of action, claims, and demands against
any and all persons or entities, arising from the Plan's Loan.
3. This instrument is a covenant not to xxx, and not a release.
4. This covenant shall enure to the benefit of Prudential, its
employees, officers and directors. It shall bind the Plan, its trustees and
its beneficiaries. This covenant shall not prevent he Plan from taking any
action, including prosecuting a lawsuit, or breach for the Settlement
Agreement.
5. The Settlement Agreement and the Covenants Not to Xxx attached
thereto reflect the entire covenant between the Plan and Prudential. No
statements, promises, or inducements made by any person that are not contained
in this covenant and the Settlement Agreement shall be valid or binding.
6. Covenantor has carefully read the foregoing and knows and understands
it.
FOR THE PLAN:
By:
----------------------- ----------------------------
Witness Trustee
By:
----------------------- ----------------------------
Witness Trustee
By:
----------------------- ----------------------------
Witness Trustee
By:
----------------------- ----------------------------
Witness Trustee
- 2 -
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DURHAM DIVISION
CASE NO. 1:94-CV-00444
PRUDENTIAL SECURITIES )
INCORPORATED, )
)
Plaintiff, )
)
v. )
) COVENANT NOT TO XXX
XXXXXXXX X. XXXXXX, et al., )
)
Defendants. )
___________________________________)
This covenant is executed as of November 27, 1995 by Prudential
Securities, Incorporated (hereinafter, with its officers, directors and
agents, "Prudential").
In consideration of the Settlement Agreement executed between Prudential
and the Xxxxxx, Xxxxx & Ball, P.A. Profit Sharing Plan (hereinafter the
"Plan") and dated November 27, 1995 covenants as follows:
1. Prudential will never institute any action, or suit at law or in
equity against the Plan, nor institute, nor prosecute against the Plan, (nor
aid in the prosecution except as required by applicable statute, rule, or
order) any claim, demand, action, or cause of action for damages, costs,
expenses, or compensation for or on account of any damage, loss or injury,
whether known or unknown, past, present or future arising out of the loan made
by the Plan to Xxxxxxxx X. Xxxxxx and Xxxxx Xxxxxx dated as of January 31,
1994 in the principal amount of $300,000 (the "Plan's Loan"); except that
Prudential may xxx to enforce the terms of the Settlement Agreement with the
Plan dated November 27, 1995.
2. This instrument is a covenant not to xxx, and not a release.
- 1 -
3. This covenant shall enure to the benefit of the Plan, its trustees
and its beneficiaries. It shall bind Prudential its employees, officers and
directors. This covenant shall not prevent Prudential from taking any
action, including prosecuting a lawsuit, or breach for the Settlement
Agreement.
4. The Settlement Agreement and the Covenants Not to Xxx attached
thereto reflect the entire covenant between Prudential and the Plan. No
statements, promises, or inducements made by any person that are not contained
in this covenant and the Settlement Agreement shall be valid or binding.
5. Covenantor has carefully read the foregoing and knows and understands
it.
PRUDENTIAL SECURITIES INCORPORATED:
Xxxxx Xxxxxx By: /s/ Xxxxxxxx X. Xxx
----------------------- ----------------------------
Witness Title: SR. VICE PRESIDENT
-------------------------
- 2 -
end exhibit C-settlement
begin exhibit D-settlement
EXHIBIT D
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT is made this the ______ day of December, 1995, by
XXXXXXXX X. XXXXXX, XXXXXXX X. XXXXXX, X. X. XXXXXX BUILDING COMPANY, a North
carolina corporation, GARNER BUILDING COMPANY, a North Carolina corporation,
and XXXXX XXXXXX (hereinafter referred to collectively as "Assignor") to FIRST
BANK ("Assignee") in connection with the execution of the Release and
Settlement Agreement dated as of the date hereof by and among Assignor,
Assignee and others.
Pursuant to the terms of the Settlement Agreement, Assignor has agreed to
assign to Assignee all of Assignor's right, title and interest in and to GMP
Properties, Inc. ("GMP"). The parties acknowledge that the purpose of this
Assignment Agreement is to effectuate the assignment of all of Assignor's
right, title and interest in and to GMP, including, but not limited to, all
current and future rights to payments or monies paid to, or on behalf of, the
Assignor. Assignor understands and acknowledges that Assignor's execution of
this Assignment Agreement is a material condition to Assignee's agreement to
settle its claims against Assignor pursuant to the terms of the Settlement
Agreement.
NOW, THEREFORE, for and in consideration paid to Assignors, the adequacy
and sufficiency of which are acknowledged, the Assignor agrees as follows:
1. Each Assignor hereby assigns to Assignee all of his legal, equitable
and beneficial right, title and interest in and to GMP including, but not
limited to, all interests in, and rights with respect to, all distributions,
income, receivables or other monies due to Assignee from GMP Properties, Inc.
2. Each of the undersigned hereby directs GMP Properties, Inc. to make
payable and deliver to Assignee all payments to First Bank that may now or
hereafter become due to any Assignor.
3. This Assignment shall be binding upon the assigns, successors, heirs,
executors and administrators of each Assignor. This Assignment is made free
and clear of all liens, claims, advances, assignments, or encumbrances of any
kind. This Assignment is not made as collateral security, but is an outright
conveyance and assignment and is not subject to redemption or rescission.
4. Assignor agrees to execute and endorse to Assignee all instruments
and such other and further documents as may from time to time in the sole
opinion of Assignee be necessary, to effectuate and complete the assignment,
transfer and all such other purposes and intentions of this Agreement, it
being the intention of the Assignor to provide hereby a full and absolute
warranty of further assurance to the Assignee. If the Assignor fails to
execute any such documents within ten (10) days of being requested to do so by
the Assignee, the Assignor
appoints the Assignee or any officer of the Assignee as the Assignor's
attorney-in-fact for purposes of executing such documents in the Assignor's
name, place and stead, which power of attorney shall be considered as coupled
with an interest and irrevocable. This power of attorney shall not be
affected by the subsequent disability or incompetence of the principal and
shall be irrevocable.
5. The Assignor acknowledges that any breach of this Agreement will
cause damage to Assignee that will be impractical and exceedingly difficult to
measure in full. The Assignor and Assignee therefore agree that this
Agreement may be enforced by means of a temporary restraining order or
preliminary injunction, or both, and that all other available remedies at law
or in equity including, but not limited to, money damages and specific
performance, may be had for breach of this Agreement.
6. This Agreement shall be governed and construed in accordance with the
laws of the State of North Carolina.
7. This Agreement shall bind and inure to the benefit of the parties
hereto, their successors, heirs, executors, administrators, legatees, personal
and representatives, and permissible assigns and transferees.
8. Whenever the context of this Agreement permits, the masculine gender
shall include the feminine and neuter genders and any reference to singular or
plural shall be interchangeable with the other.
IN WITNESS WHEREOF, each Assignor has signed this instrument as of the
date set forth above.
--------------------------------
XXXXXXXX X. XXXXXX
--------------------------------
XXXXXXX X. XXXXXX
--------------------------------
XXXXX XXXXXX
X. X. XXXXXX BUILDING COMPANY
By:_____________________________
Name:___________________________
Title:__________________________
ATTEST:
-----------------------
____________ Secretary
[Affix Corporate Seal]
GARNER BUILDING COMPANY
By:_____________________________
Name:___________________________
Title:__________________________
ATTEST:
-----------------------
____________ Secretary
[Affix Corporate Seal]
NORTH CAROLINA
GUILFORD COUNTY
I, ____________________________________, a Notary Public for said county
and state, do hereby certify that XXXXXXXX X. XXXXXX personally appeared
before me and acknowledged the execution of the foregoing instrument.
Witness my hand and notarial seal, this the _________ day of December,
1995.
--------------------------------
Notary Public
My commission expires:
-----------------------
NORTH CAROLINA
GUILFORD COUNTY
I, ____________________________________, a Notary Public for said county
and state, do hereby certify that XXXXXXX X. XXXXXX personally appeared
before me and acknowledged the execution of the foregoing instrument.
Witness my hand and notarial seal, this the _________ day of December,
1995.
--------------------------------
Notary Public
My commission expires:
-----------------------
NORTH CAROLINA
GUILFORD COUNTY
I, ____________________________________, a Notary Public for said county
and state, do hereby certify that XXXXX XXXXXX personally appeared before me
and acknowledged the execution of the foregoing instrument.
Witness my hand and notarial seal, this the _________ day of December,
1995.
--------------------------------
Notary Public
My commission expires:
-----------------------
NORTH CAROLINA
GUILFORD COUNTY
I, ____________________________________, a Notary Public for said county
and state, do hereby certify that __________________________________________
personally appeared before me this day and acknowledged that he is
____________ Secretary of X. X. XXXXXX BUILDING COMPANY, a North Carolina
corporation, and that by authority duly given and as the act of the
corporation, the foregoing instrument was signed in its name by its __________
President, sealed with its corporate seal and attested by him as its
____________ Secretary.
Witness my hand and notarial seal, this the _________ day of December,
1995.
--------------------------------
Notary Public
My commission expires:
-----------------------
NORTH CAROLINA
GUILFORD COUNTY
I, ____________________________________, a Notary Public for said county
and state, do hereby certify that __________________________________________
personally appeared before me this day and acknowledged that he is
____________ Secretary of GARNER BUILDING COMPANY, a North Carolina
corporation, and that by authority duly given and as the act of the
corporation, the foregoing instrument was signed in its name by its __________
President, sealed with its corporate seal and attested by him as its
____________ Secretary.
Witness my hand and notarial seal, this the _________ day of December,
1995.
--------------------------------
Notary Public
My commission expires:
-----------------------
IRREVOCABLE STOCK POWER
------------------------------
Date
FOR VALUE RECEIVED, the undersigned does (do) hereby sell, assign and
transfer to First Bank One Thousand Four Hundred Twenty-Eight (1,428) shares
of the common stock of GMP Properties, Inc. represented by Certificate No. 4
standing in the name of the undersigned on the books of said Company.
The undersigned does (do) hereby irrevocably constitute and appoint
_______________________________________ Attorney to transfer the said stock(s)
on the books of said Company, with full power of substitution in the premises.
-------------------------------------------
Xxxxxxxx X. Xxxxxx
[MEDALLION STAMP]
SIGNATURE GUARANTEED
BY:________________________________________
(Authorized signature - authorizing resolutions
must be filed with New York Stock Exchange)
IMPORTANT: The signature(s) to this power must correspond with the name(s) as
written upon the face of the Stock Certificate(s) or Bond(s) in every
particular, without alteration or enlargement or any change whatever and must
be guaranteed by a commercial bank or a trust company having its principal
office or a correspondent in the City of New York or by a firm having
membership in the New York Stock Exchange. The commercial bank or trust
company guaranteeing the signature(s) must affix its Medallion Stamp as
indicated.
[Letterhead of First Bank]
December ___, 1995
GMP Properties, Inc.
Re: Xxxxxxxx Xxxxxx - Assignment of Interest
Gentlemen:
You are hereby notified that Xxxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, X. X.
Xxxxxx Building Company, Xxxxxx Building Company and Xxxxx Xxxxxx
(collectively, the "Garners") have executed and delivered to us an assignment
of all their legal, equitable and beneficial right, title and interest in and
to GMP Properties, Inc. including, but not limited to, an assignment of all
the capital stock of GMP Properties, Inc. held in the name of Xxxxxxxx X.
Xxxxxx and the right to all distributions, income, receivables or other monies
due. A copy of such assignment is attached hereto.
Accordingly, you are hereby advised and directed to pay over to First
Bank all amounts currently due or otherwise payable to the Garners and all
amounts that may hereafter be due to or otherwise paid to the Garners for any
reason whatsoever.
Please acknowledge your receipt of this notice of assignment and return
the same to Xxxxx X. Xxxxxx, Esq. Xxxxx Xxxxxxxxx Xxxxx Xxxxxx & Xxxxx, P. O.
Xxx 0000, Xxxxxxxxxx, XX 00000 on or before ____________________, 199___.
FIRST BANK
By:_____________________________
Name:___________________________
Title:__________________________
Acknowledged and agreed to
this the __________ day of
___________________, 199___.
GMP PROPERTIES, INC.
By:_____________________________
Name:___________________________
Title:__________________________
begin exhibit D-settlement
begin exhibit E-settlement
EXHIBIT E
XXXXXX ASSETS WITH POSSIBLE EQUITY VALUE
IN EXCESS OF $10,000 WHICH GARNERS WILL RETAIN
AFTER THE EXECUTION OF TUE SETTLEMENT AGREEMENT
-----------------------------------------------
1. Real property at 0000 Xxxxxxx Xxxx, Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxx
2. Real property at 000 Xxxxxxx Xxxxx, Xxxxxxxx Xxxxx, North Carolina
3. Lake Xxxxxxx lot
4. MiniVan driven by Xxxxx Xxxxxx
5. Note Receivable from Xxxxxxx Xxx - $25,000
6. GMP contingent receivable of $30,000 (First Bank gets assignment of GMP
interest pursuant to the Federal Settlement Agreement)
end exhibit E-settlement
begin exhibit F-settlement
EXHIBIT F
*LIST OF XXXXXX DEFENDANTS' ACTUAL AND CONTINGENT LIABILlTIES
AFTER SETTLEMENT AGREEMENT IS EXECUTED
--------------------------------------
X.X. Xxxxxx Building Company
----------------------------
Payroll taxes $ 6,362.96**
Employment Security Commission 58,216.98**
Xerox 5,764.64
Accountant Xxxxx Xxxxxxx 11,272.01
Chamber of Commerce 275.00
Xxx Xxxxxx Chevrolet 237.00
UPS 348.00
Target Programs 489.00
Xxxxxx Travel 2,059.00
Home Life 3,903.00
Xxxx Tire 788.00
Newspaper 148.00
American Contractors 5,515.00
BP Oil 8,000.00
Sprint Cellular 1,200.00
BEQ job -- contingent liability -- future debt unknown
FTCC job -- contingent liability -- debt unknown
Xxxxxx Xxxxxx 30,000.00
Xxx Xxxxxx and Xxxxxxxx Xxxxxx:
-------------------------------
FDIC $659,000.00
NBNA Credit Card (Xxx Xxxxxx) 69,000.00
BB&T Credit Card (Xxx Xxxxxx) 5,400.00
BB&T Credit Card (Xxxxxxxx Xxxxxx) 2,100.00
Citibank (Xxx Xxxxxx) 5,500.00
Diners Club (Xxx Xxxxxx) 750.00
Chase Bank (Xxx Xxxxxx) 10,000.00
American Express (Xxxxxxxx Xxxxxx) 7,900.00
Van Camp, West, Xxxxx & Xxxxxxx -- significant debt
The preceding debts DO NOT include any of the debts that are listed on the
deeds of trust for the properties being transferred in connection with this
settlement, or taxes due and owing on the particular pieces of property being
transferred. The list of debts also does not include liens or mortgages on
Xxxxxxxx and Xxxxx Xxxxxx s home or on Xxx and Xxxxx Xxxxxx'x home.
* These debts are not exact and to the xxxxx, but are accurate
approximations. These debts do not include normal household debt such as
utility bills, etc.
** These are the taxes that are due as a result of the FTC and BEQ job, and
the fact that pay requests have been withheld.
end exhibit F-settlement
begin exhibit G-settlement
EXHIBIT G
STATE OF NORTH CAROLINA File No. 94-E-436
-------------------
In The Xxxxxxx Xxxxx 0x Xxxxxxx
XXXXX Xxxxxx Superior Court Division
---------------
In The Matter Of The Estate Of:
Name LETTERS
XXXX XXXXXXX XXXX, XX. TESTAMENTARY
-------------------
G.S. 00X-0-0
Xxx Xxxxx in the exercise of its jurisdiction of the probate of xxxxx and the
administration of estates, and upon application of the fiduciary. has adjudged
legally sufficient the qualification of the fiduciary named below and orders
that Letters be issued in the above estate.
The fiduciary is fully authorized by the laws of North Carolina to receive and
administer all of the assets belonging to the estate, and these Letters are
issued to attest to that authority and to certify that it is now in full force
and effect.
Witness my hand and the Seal of the Superior Court.
Name And Title Of Fiduciary Date Of Qualification
Xxxxx Xxxx Xxxx, Personal Representative August 17, 1994
Address Clerk Of Superior Court
000 Xxxxxxx Xxxx Xxxxxxxxx X. Xxxxxx
City, State, Zip
Xxxxxxxx, XX 00000 EX OFFICIO JUDGE OF PROBATE
Name And Title Of Fiduciary
Address Date Of Issuance
Dec 20, 1995
City, State. Zip Signature
Xxxxxx X. Xxxxx
XXXX [X] Deputy CSC [ ] Assistant CSC
AOC-E-403
Rev 6/87
