SETTLEMENT AGREEMENT
EXHIBIT
99.1
This
Settlement Agreement (“Agreement”) is made effective October 27, 2005, between
and among American Realty Equities, Inc., a Nevada corporation (“American”),
Capital Center Associates, L.L.C., a Michigan limited liability company
(“Capital
Center”),
L/M
Associates, LLC, a Michigan Limited Liability Company (“L/M”),
Xxx X.
Xxxx (“Xxxx”),
and
Maxco, Inc., a Michigan corporation (“Maxco”).
(American, Capital Center, L/M, Xxxx and Maxco are sometimes hereinafter
collectively referred to as the “Parties” and individually as a
“Party”).
RECITALS
| A. |
On
or about December 28, 2004, American purchased the interest of Charter
One
Bank, N.A. (f/k/a First Federal of Michigan) as lender in that certain
Promissory Note dated February 20, 2001, and related loan documents,
executed and delivered by Capital Center, as borrower, in the original
principal amount of $10,440,000 or such sums as were actually advanced
by
Charter One Bank, N.A. or American from time to time (“Note”) and all
documents evidencing and securing the loan represented by the Note,
and
all rights arising thereunder, including without limitation the
Construction Mortgage dated February 20, 2001 and executed by Capital
Center (“Mortgage”) and the Guaranty executed February 20, 2001
(“Guaranty”) and executed by Xxxx, Xxxxxx Xxxxxxxx (“Xxxxxxxx”)
and Xxxx Xxxxxx (“Xxxxxx”),
hereinafter collectively referred to as the “Loan”and/or“Loan
Documents.”
|
| B. |
The
Loan Documents evidence a secured loan from Charter One Bank, N.A.
to
Capital Center relative to the real property and improvements located
at
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx (the
“Property”).
|
| C. |
L/M
is the majority owner of Capital Center. Maxco is a 50% owner of
L/M.
|
| D. |
Capital
Center was and is in default of the Promissory Note as of December
28,
2004.
|
| E. |
In
lieu of American exercising its statutory and other rights to collect
the
rents on the Property, on February 1, 2005, American and Capital Center
entered into an Assignment Agreement, whereby, among other things,
American has been collecting the rents on the Property (“Rent Assignment
Agreement”).
|
| F. |
On
or about March 7, 2005, American commenced an action against Capital
Center to foreclose the Construction Mortgage in the 30th
Judicial Circuit Court for Xxxxxx County, Michigan, File No. 05-308
(“Foreclosure
Litigation”),
and an action to enforce the Guaranty against Xxxx and the other
guarantors in the 30th
Judicial Circuit Court for Xxxxxx County, Michigan, File No. 05-282
(“Guaranty
Litigation”).
The foregoing actions may hereinafter be collectively referred to as
the
“Litigation.”
|
| G. |
Subsequent
to filing the above referenced actions, American paid all delinquent
taxes, penalties and interest applicable to the Property for tax years
2001 through 2004, totaling $1,481,232.81, which sum became part of
the
indebtedness owing under the Loan
Documents.
|
| H. |
Without
admitting any liability or fault, and to avoid the expense and
uncertainties of litigation, the Parties wish to settle the Litigation
and
all rights and obligations under the Loan Documents as provided by
this
Agreement.
|
| I. |
The
Parties intend that to the extent it is reasonable and practical, they
shall attempt to satisfy the amounts owed under this Agreement first
from
the sale of the Property, second from L/M assets, third from Maxco
assets,
and finally from Xxxx’x assets.
|
| J. |
L/M
and Maxco admit and agree that they are legally obligated to pay for
any
debt or personal liability of Xxxx to American arising out of the
Guaranty, the Litigation and/or this
Agreement.
|
| K. |
L/M
and Maxco join this Agreement (a) to preserve Capital Center’s assets, in
which they each have an interest; (b) in consideration for Xxxx’x partial
loan guaranty for the benefit of L/M, Maxco and Capital Center; and
(c) in
order to limit their liability to Xxxx arising out of Xxxx’x partial loan
guaranty to American for the benefit of L/M, Maxco and Capital
Center.
|
NOW,
THEREFORE, the parties agree as follows:
The
parties agree to settle the Litigation and all claims that could have been
brought as follows:
| 1. |
Settlement
Amount.
The Parties agree that, in full satisfaction of any claim against Capital
Center, Xxxx, Maxco, or L/M, under the Guaranty, the Loan Documents,
and
the Litigation, American shall be paid the Settlement Amount, or the
Default Amount or the Bankruptcy Amount, whichever shall first occur,
as
set forth below:
|
| a. |
Except
in the event of a material breach of this Agreement by Capital Center,
Xxxx, Maxco or L/M (“Material Breach”), if paid on or before September 1,
2006, the total amount to be paid to American by or on behalf of Capital
Center shall be Eight Million Five Hundred Thousand Dollars ($8,500,000)
in immediately available funds (the “Settlement
Amount”).
|
| b. |
In
the event of a Material Breach that is not cured by the date after
the
right to cure ends, or if the Settlement Amount is not paid on or before
September 1, 2006, except as provided in Section 1(c) below, the total
amount to be paid to American by the other Parties shall be the sum
of the
“Real Property Proceeds,” (as defined below) plus an amount equal to sixty
percent (60%) of the amount obtained by subtracting the Real Property
Proceeds from the amount then due and owing under the Loan Documents,
including but not limited to unpaid principal, accrued interest, costs,
attorneys fees incurred in the Litigation, and amounts advanced for
payment of delinquent taxes, and/or for payment of the liens of T.H.
Xxxxxx and Xxxxxx Creek Builders, LLC, such liens identified in the
Estoppel Affidavit attached to the Deed in Lieu of Foreclosure (defined
below)) (the “Default Amount”). For purposes hereof, Real Property
Proceeds shall mean an amount equal to the amount realized by American
from the sale of the Property net of attorneys fees, closing costs,
transfer tax, real estate taxes, title insurance premiums and any other
customary seller’s expense.
|
| c. |
In
the case of an Insolvency Event before payment on or before September
1,
2006 of the Settlement Amount, the total amount to be paid to American
shall be $5,000,000.00 (“Insolvency Event Amount”), plus American shall
receive the proceeds or such other benefits derived from the sale or
other
disposition of the Property in the insolvency proceeding (collectively,
the "Bankruptcy Amount"). The parties agree not to contest American's
claim in any insolvency proceeding occasioned by an Insolvency Event.
The
following event(s) are "Insolvency Event(s)": If Capital Center
shall be adjudicated bankrupt; or if Capital Center shall file a voluntary
petition for relief or seek any other order in the bankruptcy of Capital
Center; or if Capital Center shall file an answer to a creditor's claim,
petition or other petition against it (admitting the material allegations
thereof) for an adjudication or reorganization in bankruptcy of Capital
Center; or if any order shall be entered by any court approving an
involuntary petition seeking reorganization of Capital Center; or if
liquidation or reorganization proceedings are instituted against Capital
Center, in Bankruptcy or any other Court, and are not dismissed within
thirty (30) days. Provided however, notwithstanding anything
to the
contrary, an Insolvency Event shall not include any Insolvency Event
which
is initiated, or which is the result of participation in the initiation,
directly or indirectly, by American, its shareholders, officers,
directors, employees, agents, representatives, successors, assigns,
or
affiliates of any kind, but this exclusion does not mean an Insolvency
Event initiated by others (other than American, its shareholders,
officers, directors, employees, agents, representatives, successors,
assigns, or affiliates of any kind) solely due to the existence of
indebtedness owing to American. Further, an Insolvency Event shall
not be
deemed to be a Material Breach for purposes of Section 1 of this
Agreement.
|
| 2. |
Deed-in-Lieu
of Foreclosure.
Concurrent with the execution of this Agreement, Capital Center shall
execute a deed-in-lieu of foreclosure of the Mortgage in favor of American
and shall expressly waive in writing any and all redemption rights,
the
form of which is attached as Exhibit 1 (collectively the “Deed-in-Lieu of
Foreclosure”). Except as otherwise provided by this Agreement, the
execution and subsequent recording, if any, of the Deed-in-Lieu of
Foreclosure shall have no effect on American’s rights to collect any
amounts owing under the Guaranty or under this Agreement. American
may
record the Deed-in-Lieu of Foreclosure, at its option and in its sole
discretion, on or after the earliest of the following dates: (i) the
date
after the right to cure ends following a Material Breach; (ii) the
date on
which a voluntary Insolvency Event occurs; (iii) the 31st
day following an involuntary Insolvency Event if the involuntary
Insolvency Event has not then been dismissed; or (iv) September 2,
2006.
However, if American is paid the Settlement Amount by or on behalf
of
Capital, L/M, Maxco or Xxxx on or before September 1, 2006, American
shall
not record the Deed-in-Lieu of Foreclosure, but shall instead return
it to
Capital Center with the Loan Documents, and all amounts owing under
the
Loan Documents and under this Agreement shall be deemed fully
satisfied.
|
| 3. |
Consent
Judgment.
Xxxx and Capital Center shall each, concurrent with the execution of
this
Agreement, execute a Consent Judgment, the forms of which are attached
to
the Settlement Order in the Guaranty Litigation (referenced in Section
11
and which Order is attached as Exhibit 2) (“Xxxx Consent Judgment”) and
attached to the Settlement Order in the Foreclosure Litigation (referenced
in Section 11 and which Order is as Exhibit 3) (“Capital Center Consent
Judgment”). The Xxxx Consent Judgment and the Capital Center Consent
Judgment shall collectively be referred to in this Agreement as “Consent
Judgments”. If the Settlement Amount is paid in full to American on or
before September 1, 2006, then Xxxx and Capital Center shall have no
further liability. However, if the Settlement Amount is not paid in
full
to American on or before September 1, 2006, as stated in the Consent
Judgments, Xxxx and Capital Center shall owe the Default Amount, except
in
the event of an Insolvency Event, in which case Xxxx and Capital Center
shall owe the Insolvency Event Amount made part of the Bankruptcy Amount.
American will not file or record the Consent Judgments until on or
after
September 2, 2006, or until the date after the right to cure ends
following a Material Breach, whichever occurs first, at which time
American may file the Consent Judgments by ex parte application to
the
Xxxxxx County Circuit Court. Said Consent Judgments shall be final
and
nonappealable. Upon entry of the Consent Judgment(s), American may
record
and enforce the Consent Judgment(s) in the manner and to the extent
allowed by law. Notwithstanding the foregoing to the contrary, in the
event the parties are diligently and in good faith performing their
obligations under this Agreement, American may, in its sole discretion,
forbear from filing the Consent Judgment(s), which forbearance may
be
suspended, with or without notice by American in its sole
discretion.
|
| 4. |
Guaranty
of Payment.L/M
and Maxco, having already admitted and acknowledged their responsibility
for Xxxx’x personal debts to American under the Guaranty, the Litigation
and this Agreement, hereby unconditionally guaranty payment of, assume
and
agree to pay and perform as and when due, all obligations of Xxxx to
American under this Agreement, including under Xxxx’x Consent Judgment.
L/M and Maxco further consent to being joined as parties to the Guaranty
Litigation and consent to the entry of a judgment against them, jointly
and severally, in the Guaranty Litigation providing relief to American
consistent with L/M and Maxco’s guaranty of payment under this paragraph 4
and in all the instances under this Agreement in which American is
permitted to seek to enforce Xxxx’x obligations to American under this
Agreement, whether or not American has first sought to enforce Xxxx’x
obligations to American under this Agreement and/or Xxxx Consent
Judgment.
|
| 5. |
Sale
of the Property.
|
| a. |
Prior
to September 1, 2006, Capital Center, L/M, Maxco and Xxxx will use
their
best efforts to sell the Property to a third party on or before September
1, 2006 in order to pay all or a part of the Settlement Amount. Capital
Center, L/M, Maxco, and Xxxx hereby agree that any cash offer sufficient
to pay the Settlement Amount to American shall be acceptable. Offers
to
purchase the Property which are less than the Settlement Amount but
which
are equal to or in excess of $6,500,000.00 shall require the sole approval
of Maxco, which approval shall not be unreasonably withheld. Capital
Center, L/M and Xxxx hereby irrevocably vest Maxco with authority to
approve all offers to purchase the Property in any amount on their
behalf.
American shall not be required to discharge the Mortgage upon the
consummation of any sale of the Property which results in less than
a
$6,500,000.00 cash payment to American. If the closing of sale of the
Property is before September 1, 2006, and American is not paid the
full
amount of the Settlement Amount by September 1, 2006, the proceeds
received by American from such sale shall be credited as of the date
of
such closing against the amount then owing under the Loan Documents
and
used in calculating the Default Amount.
|
| b. |
Commencing
July 1, 2006, (concurrently with Capital Center, L/M, Maxco and Xxxx’x
obligations to market the Property) American may begin marketing the
Property for sale by any commercially reasonable means it selects in
its
sole discretion, including, but not limited to, a commercially reasonable
auction sale. The consummation of any such sale shall not take place
until
on or after on September 2, 2006 except as otherwise provided by this
Agreement. Provided however, before beginning any such independent
marketing of the Property, American shall: (i) consult with Capital
Center
about its desire to so market the Property and (ii) use its best efforts
to join Capital Center, Maxco, L/M and Xxxx in any existing or planned
marketing of the Property. Further, notwithstanding anything to the
contrary in this Agreement, American, its shareholders, officers,
directors, employees, agents, representatives, successors, assigns
or
affiliates of any kind, shall not, directly or indirectly, compete
with
Capital Center, Maxco, L/M or Xxxx in the sale of the Property before
September 1, 2006. Making arrangements for a sale, including for a
commercially reasonable auction sale, and marketing after July 1, 2006
for
such auction, to be held after September 1, 2006, is not in and of
itself,
to be considered a violation of the previous sentence.
|
| c. |
If
the Property has not been sold to a third party and American has not
been
paid the Settlement Amount by September 1, 2006: (i) American may,
without
notice or consent of any of the Parties or of any court: (a) record
the
Deed-in-Lieu of Foreclosure, if it has not already done so as allowed
under this Agreement; (b) sell the Property to any party in a commercially
reasonable manner; and (c) file the Consent Judgment(s) and commence
all
post-judgment collection procedures; and (ii) American may seek an
Order
or other relief from the Xxxxxx County Circuit Court enforcing the
terms
of this Agreement, joining L/M and Maxco to the Litigation, and entering
judgment against L/M, Maxco, and Xxxx, jointly and severally, for the
Default Amount, or in the case of an Insolvency Event, for the Insolvency
Amount made part of the Bankruptcy Amount.
|
| 6. |
Best
Efforts.
Capital Center, L/M, Maxco and Xxxx shall use their best efforts to
pay
the Settlement Amount to American on or before September 1, 2006 and
shall
not act inconsistently with this covenant.
|
| 7. |
Operation
of the Property.
|
| a. |
American
shall consult Capital Center and L/M on all its leasing decisions
regarding the Property, including the execution of new leases, lease
renewals and lease terminations prior to September 1, 2006, however,
American shall retain the exclusive authority over such matters except
as
limited by the Rent Assignment Agreement between Capital Center, L/M
and
American dated February 1, 2005 (“Rent Assignment
Agreement”).
|
| b. |
Maxco,
L/M, Capital Center, and Xxxx release and waive any and all claims
arising
out of or relating to American’s or its agent’s management actions on any
matter relating to the question of whether to lease any part of the
Property, and the terms thereof, to any other party. This includes
but is
not limited to claims relating to or arising out of American’s or its
agent’s lease related marketing activities, and lease negotiations;
provided, however, that claims for breach of this Agreement are expressly
reserved.
|
| c. |
Notwithstanding
this Agreement, or any provisions of the Rent Assignment Agreement
to the
contrary, the Rent Assignment Agreement shall continue in effect until
the
earlier to occur of (collectively, “Rent Assignment Expiration Event”):
(i) September 2, 2006; (ii) the date upon which American reassigns
the
leases and rents at Capital Center’s direction as provided under Sections
8.a and 8.b of the Rent Assignment Agreement after American is paid
the
Settlement Amount; or (iii) the date upon which American records the
Deed-in-Lieu of Foreclosure. Provided however, notwithstanding a Rent
Assignment Agreement Expiration Event, the Parties’ obligations as to
their liabilities and indemnifications as to the Property as provided
under Section 8.c of the Rent Assignment Agreement shall continue.
Provided further, in the event of reassignment of the leases and rents
by
American to or as directed by Capital Center, Capital Center and American
shall prorate between them the then outstanding liabilities for any
expenses for tenant improvements permitted by the Rent Assignment
Agreement, by taking into account all reasonable allocations, including
but not limited to, monies received and to be received by either of
them,
from the tenant for whom the improvements were made.
|
| d. |
Notwithstanding
this Agreement, or the provisions of the Rent Assignment Agreement,
to the
contrary, all Parties acknowledge and agree that any and all payments
received by American pursuant to the Rent Assignment Agreement shall
not
be deemed a credit against any part of either the Settlement Amount,
or
the Bankruptcy Amount, provided however, such payments are to be applied
as provided by the Rent Assignment Agreement and credited against the
amount owing under the Loan Documents and used in calculating the Default
Amount.
|
| 8. |
Revival
and Reinstatement of Obligations.
If the payment of either the Settlement Amount, the Default Amount
or the
Bankruptcy Amount, or any other obligation of Capital Center to American
under the Loan Documents or otherwise, or the transfer to American
of any
property, including the Property, should for any reason, after a written
claim by a third party has been made, subsequently be declared to be
void
or voidable under any state or federal law relating to creditors’ rights,
including provisions of the Bankruptcy Code relating to fraudulent
conveyances, preferences, or other voidable or recoverable payments
of
money or transfers of property (collectively, a “Voidable Transfer”), and
if American is required to repay or restore, in whole or in part, any
such
Voidable Transfer, or elects to do so upon the reasonable advice of
its
counsel, then, as to any such Voidable Transfer, or the amount thereof
that American is required or elects to repay or restore, and as to
all
reasonable costs, expenses, and attorneys fees of American, such amounts
and obligations shall automatically shall be revived, reinstated, and
restored and shall exist as though such Voidable Transfer had never
been
made.
|
| 9. |
Property
Tax Appeal.
Capital Center hereby represents and warrants that it timely appealed
the
2005 real property taxes assessed against the Property (the “Tax Appeal”),
and agrees that it shall, upon execution of this Agreement or as soon
thereafter as reasonably practical, provide to American copies of all
documents and filings related to the Tax Appeal. Capital Center agrees
to
diligently pursue this appeal during the pendency of this Agreement,
to
pay all costs and fees, including professional fees incurred as a result
of the Tax Appeal, and shall not agree to settle the Tax Appeal without
American’s prior written consent. Capital Center hereby assigns to
American any and all proceeds or monies refunded pursuant to the Tax
Appeal to the extent that American has previously paid the proceeds
or
monies being refunded.
|
| 10. |
Obligations
Under Loan Documents.
Except as otherwise specifically stated in this Agreement and in the
Rent
Assignment Agreement, the Parties’ obligations under the Loan Documents
are not affected by this Agreement, and such obligations continue in
full
force and effect.
|
| 11. |
Dismissal
of Litigation.
Upon execution of this Agreement, the Parties (i) consent to entry
of an
Order from the Court in the Guaranty Litigation, in the form attached
as
Exhibit 2, dismissing, with prejudice and without costs to any party,
all
claims against Xxxx except as provided by this Agreement and the Xxxx
Consent Judgment, and dismissing without prejudice and without costs
all
claims against Xxxxxxxx and Xxxxxx (“Settlement Order in the Guaranty
Litigation”); and (ii) consent to entry of an Order from the Court in the
Foreclosure Litigation, in the form attached as Exhibit 3, dismissing
without prejudice and without costs to any party, all claims against
all
parties to the Litigation, except as to Capital Center under this
Agreement and the Capital Center Consent Judgment (“Settlement Order in
the Foreclosure Litigation”). The Settlement Order in the Guaranty
Litigation shall incorporate by reference the terms of this Agreement;
and
retain jurisdiction over all matters relating to the enforcement of
this
Agreement as to American, Xxxx, L/M, Maxco, Xxxxxxxx and Xxxxxx,
including, but not limited to, for entry of the Xxxx Consent Judgment
and
any future judgment, consent or otherwise, and for the joinder of L/M
and
Maxco, and the Settlement Order in the Foreclosure Litigation shall
incorporate by reference the terms of this Agreement, and retain
jurisdiction over all matters relating to the enforcement of this
Agreement as to American and Capital Center, and any other parties
in the
Foreclosure Litigation, including but not limited to, for entry of
the
Capital Center Consent Judgment.
|
| 12. |
Mutual
Release of Claims.
Except as provided in this Agreement, and except for the required
fulfillment of the obligations of each of the Parties under this
Agreement: (i) each Party, and its respective successors, assigns,
and
affiliated or related entities, mutually release and discharge the
other
from any and all claims and causes of action existing now or in the
future
related to the Property, and (ii) such release includes, but is not
limited to, all lender liability claims against American related to
operation of the Property or any other matter related to the Property.
|
| 13. |
Claims
Reserved.
The Parties acknowledge and agree that American reserves all claims
against Xxxxxxxx and Xxxxxx, which shall be dismissed without prejudice
upon execution of this Agreement as provided in paragraph
11.
|
| 14. |
Representations
and Warranties.
The Parties represent as follows:
|
| a. |
The
Parties have been represented by counsel of their choice throughout
the
negotiations that preceded the execution of this Agreement and in
connection with the preparation and execution of this Agreement. The
Parties agree that they have executed this Agreement voluntarily, without
coercion or duress of any kind, and on the advice of their independent
counsel.
|
| b. |
Except
as expressly set forth in this Agreement, no Party is relying upon
any
statement or representation of any other Party or their respective
agents,
whether made before, after or in the course of the Lawsuit or in the
process of negotiating or finalizing this Agreement. Each Party agrees
that the consideration recited in this Agreement is the sole and only
consideration for this Agreement, and no representations, promises,
or
inducements have been made by any party or its officers, employees,
agents
or attorneys thereof other than those appearing in this Agreement.
This
Agreement contains the entire agreement and understanding concerning
settlement of the Litigation and, except as otherwise provided by this
Agreement, supersedes and replaces all prior negotiations of proposed
agreements, written or oral, if any, and may be modified or amended
only
by a writing signed by all of the
parties.
|
| c. |
The
parties have read this Agreement and understand its
contents.
|
| d. |
Each
party has cooperated in the drafting and preparation of this Agreement.
This Agreement is to be interpreted in accordance with the plain meaning
of its terms and not strictly for or against any party. This Agreement
shall be construed and enforced in accordance with the laws of the
State
of Michigan without regard to its conflict of laws
provisions.
|
| e. |
Should
any provision or part of a provision of this Agreement be held invalid,
the invalidity does not affect other provisions of the Agreement which
can
be given effect without the invalid provision, and to this end the
provisions of this Agreement are
severable.
|
| f. |
The
persons who have executed this Agreement on behalf of the parties are
duly
authorized and have the full power and authority of the parties to
do so
and represent that any and all actions necessary to obtain such
authorization have been taken.
|
| g. |
This
Agreement and all the documents delivered or to be delivered by the
parties hereto (a) are duly authorized, executed, and delivered, (b)
are
the legal, valid, and binding obligations of the parties named herein,
enforceable in accordance with their respective terms, and (c) do not
violate any provision of any agreement to which the parties are a party
or
by which they are bound.
|
| 15. |
Right
to Notice and Cure.
In the event that any party contends that any other party is in breach
of
the terms of this Agreement, that party shall provide the allegedly
breaching party with written notification of the alleged breach. The
allegedly breaching party shall then have fifteen calendar days to
cure
the alleged breach. Any notices hereunder shall be sent by fax and
first
class regular mail to the following, or at such other addresses and
fax
numbers as may from time to time be provided in
writing:
|
| If to American: | 0000
Xxxxx Xxx Xxxxx
Xxxxxxxx
0, Xxxxx 000
Lake
Oswego, Oregon, 97034
Fax
number: 000-000-0000
|
|
If to Capital Center, L/M,
|
|
| Xxxx, and/or Maxco: |
0000 Xxxxxxxxxx Xxx
Xxxxxxx,
XX 00000
Fax
number: 000-000-0000
|
|
With
a copy
to:
|
J.
Xxxxxxx Xxxxxx
Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxxxx, P.C.
X.X.
Xxx 00000
Xxxxxxx,
XX 00000
Fax
number: 000-000-0000
|
| 16. |
No
Admission.
The parties acknowledge and agree that this Agreement is entered into
as
part of a compromise and settlement of disputed claims. The parties
further acknowledge and agree that the recitals to this Agreement are
incorporated into and made a part of this Agreement, and are hereby
acknowledged by each Party as true statements of fact. Except as to
the
agreements made in this Agreement, acceptance of the Agreement is not
an
admission of any fact, matter or thing. Neither this Agreement nor
any of
its terms shall be offered or received as evidence in any proceeding
in
any forum as an admission of any liability or wrongdoing on the part
of
any person released by this Agreement except a proceeding related to
this
Agreement.
|
| 17. |
Attorney’s
Fees and Costs.
In the event that any action, suit, or other proceeding (including
any and
all appeals or petitions therefrom) is instituted to remedy, prevent,
or
obtain relief from a breach of this Agreement, or arising out of or
related to this Agreement, the prevailing party shall recover all
reasonable attorney’s and experts’ fees and costs, in addition to any
other relief to which that party may be
entitled.
|
| 18. |
Effect
of Headings.
The subject headings of the paragraphs of this Agreement are included
for
the purposes of convenience only and shall not affect the construction
of
interpretation of any of its provisions.
|
| 19. |
Counterparts.
This Agreement may be executed in counterparts, each of which when
so
executed shall be deemed to be an original and such counterparts shall
together constitute one and the same
instrument.
|
IN
WITNESS WHERE the parties have signed this Agreement effective as of the date
first written above.
Capital
Center Associates, L.L.C.
By:
L/M Associates, L.L.C., its Manager
By:
Maxco, Inc., its Manager
By: _____________________________
Name: Xxxxxxx
Xxxxxxx
Title: Vice-President
Date: ____________________
STATE
OF MICHIGAN )
)
SS
COUNTY
OF XXXXXX )
The
foregoing was acknowledged before me this _____day of October, 2005, by Xxxxxxx
Xxxxxxx, in his capacity as Vice-President of Maxco, Inc., in its capacity
as
Manager of L/M Associates, L.L.C., in its capacity as Manager of Capital Center
Associates, L.L.C., a Michigan limited liability company.
|
Xxxxx
Xxxxx Xxxxxxxx,
Notary
Public, State of Michigan, County of Xxxxxx
My
Commission Expires: 12/06/11
Acting
in the County of Xxxxxx, Michigan
|
Maxco,
Inc.
By:
_________________________
Name: ______________________
Title: ______________________
Date: ______________________
STATE
OF MICHIGAN )
)
SS
COUNTY
OF XXXXXX )
The
foregoing was acknowledged before me this __day
of
October, 2005, by Xxxxxxx Xxxxxxx, in his capacity as Vice-President of Maxco,
Inc., a Michigan Corporation.
|
Xxxxx
Xxxxx Xxxxxxxx,
Notary
Public, State of Michigan, County of Xxxxxx
My
Commission Expires: 12/06/11
Acting
in the County of Xxxxxx, Michigan
|
L/M
Associates, L.L.C.
By:
Maxco, Inc., Its Manager
By: ___________________________
Name: Xxxxxxx
Xxxxxxx
Title: Vice-President
Date: ____________________
STATE
OF MICHIGAN )
)
SS
COUNTY
OF XXXXXX )
The
foregoing was acknowledged before me this ____ day of October, 2005, by Xxxxxxx
Xxxxxxx, in his capacity as Vice-President of Maxco, Inc., in its capacity
as
Manager of L/M Associates, L.L.C., a Michigan limited liability
company.
|
Xxxxx
Xxxxx Xxxxxxxx,
Notary
Public, State of Michigan, County of Xxxxxx
My
Commission Expires: 12/06/11
Acting
in the County of Xxxxxx,
Michigan
|
Xxx
X. Xxxx
_____________________________
Xxx
X.
Xxxx, an individual
STATE
OF MICHIGAN )
)
SS
COUNTY
OF _______ )
The
foregoing was acknowledged before me this _____ day
of
October, 2005, by Xxx X. Xxxx, an individual.
|
,
Notary Public
State
of California, County of ____________
My
Commission Expires: _______________
|
American
Realty Equities, Inc.
By:
_________________________
Name: ______________________
Title: ______________________
Date: ______________________
STATE
OF _________ )
)
SS
COUNTY
OF _______ )
The
foregoing was acknowledged before me this _____day of October, 2005, by
__________________,
Officer
of American Realty Equities, Inc., a Nevada Corporation, on behalf of the
Corporation.
|
Notary
Public, State of Michigan, County of
_____________________________________
My
Commission Expires: _____________________________________
Acting
in the County of
_____________________________________
|
