Exhibit 10.7
SETTLEMENT AND ESCROW AGREEMENT
THIS SETTLEMENT AND ESCROW AGREEMENT (the "Agreement") is made and
entered into as of the 7th day of June, 2001, by and between American Mortgage
Acceptance Company ("AMAC"), its successors, designees and assigns, located at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Related Mortgage Corporation (the
"Lender"), its successors, designees and assigns located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000, Columbiana Lakes Limited Partnership ("Mortgagor") located
c/o Wise Construction Company, Inc., at 0000 Xxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxx
00000, Xxxxxxxx X. Xxxx, individually, located c/o Wise Construction Company,
Inc., at 0000 Xxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000,( the "Guarantor") and
Intermark Management Corporation ("Management Agent") located at 000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000.
W I T N E S S E T H:
A. WHEREAS, American Capital Resource, Inc., made a loan to Mortgagor in
the amount of $9,106,100.00 (the "First Lien") which First Lien was
evidenced by a note from Mortgagor and which note was secured by a
mortgage on Columbiana Lakes Apartments in Columbia, South Carolina,
related to the real property described in Exhibit A attached hereto
(the "Property");
B. WHEREAS, documentation evidencing the First Lien is referred to as
"Mortgage Loan Documents;"
C. WHEREAS, American Capital Resource, Inc. assigned its interest in the
First Lien to Lender;
D. WHEREAS, Mortgagor executed a Subordinated Promissory Note (the
"Note"), dated April 26, 1994, for the benefit of American Mortgage
Investors Trust ("AMIT");
E. WHEREAS, Mortgagor executed a second mortgage (the "Second Mortgage"),
dated April 26, 1994, for the benefit of AMIT securing obligations
under the Note;
F. WHEREAS, AMAC is the successor by assignment of the interests of AMIT
and is the Holder of the Note and of the Second Mortgage;
G. WHEREAS, Guarantor executed a Limited Operating Guaranty (the "Limited
Operating Guaranty" or "Guaranty"), dated April 26, 1994, for the
benefit of AMIT;
H. WHEREAS, AMAC is the successor by assignment of the interests of AMIT
and is the Participant (as such term is defined in the Guaranty) under
the Guaranty to whom the benefits of the Guaranty run;
I. WHEREAS, pursuant to Section 2 of the Note, Mortgagor is obligated to
make certain Payments of Additional Interest to AMAC;
J. WHEREAS, pursuant to Article II, Section 2.01 of the Guaranty,
Guarantor has guaranteed payment of Additional Interest to the extent
not paid by the Mortgagor to AMAC under the Note;
K. WHEREAS, Mortgagor has failed to make such payments of Additional
Interest as required under the Note, which constitutes a Event of
Default under the Note, and Guarantor has failed to pay the Additional
Interest to the extent not paid by the Mortgagor, as required under the
Guaranty;
L. WHEREAS, pursuant to Article II, Section 2.04 of the Guaranty,
Guarantor has also guaranteed payment of interest at the Default Rate
(as such term is defined in the Guaranty) to the extent not paid by the
Mortgagor, and have guaranteed payment of the Replenishment Amount (as
such terms is defined in the Guaranty) to secure their obligations to
pay Additional Interest;
M. WHEREAS, the Note, the Second Mortgage, the Limited Operating Guaranty
and other instruments documenting and securing the obligations to pay
Additional Interest are collectively referred to as the "Additional
Interest Documents;"
N. WHEREAS, Guarantor, in his individual capacity, entered into a certain
Equity Loan Note and Equity Loan Agreement for the benefit of AMAC,
both dated April 26, 1994;
O. WHEREAS, the Equity Loan Agreement and the Equity Loan Note and other
loan instruments ("Equity Loan Documents") document the terms of an
Equity Loan in the amount of $563,000.00 made by AMAC to Guarantor;
P. WHEREAS, Mortgagor and Management Agent entered into a management
agreement ("Management Agreement") with respect to the Property dated
October 30, 2000;
Q. WHEREAS, on January 23, 2001, AMAC transmitted to Mortgagor an
"Acceleration Notice, Notice of Default" which provided notice to
Mortgagor of the Event of Default under the Note;
R. WHEREAS, on February 22, 2001, AMAC transmitted to the Guarantor a
"Notice of Default: Limited Operating Guaranty" and a "Notice of
Default: Equity Loan" providing notices of defaults in obligations
under the Guaranty and under the Equity Loan Documents;
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S. WHEREAS, the failures of Mortgagor to perform under the Note and the
failures of the Guarantor to perform under the Guaranty and under the
Equity Loan Documents are referred to collectively as the "Defaults;"
and,
T. WHEREAS, the parties would like to hereby settle and dispose of, fully
and completely, any and all pending and potential claims, demands, and
causes of action between them arising out of, connected with or
incidental to the Defaults, without the expenditure of further time or
the expense of litigation.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
1. Payment. In consideration of Mortgagor's payment to AMAC of
$9,600,000.00, plus extension fees, if applicable, ("Settlement
Amount") pursuant to this Agreement, Mortgagor and Guarantor shall be
released from all liability to AMAC and Lender, as provided in this
Agreement, and all of said parties' obligations to AMAC shall be
considered paid in full and satisfied. Payment to AMAC shall be made as
follows:
a. The sum of $175,000.00 shall be paid to AMAC to be applied to
amounts owed AMAC pursuant to the Note and Guaranty as
follows:
i. AMAC has applied the sum of $146,555.04 from an
escrow fund held by Lender pursuant to an
authorization letter provided Lender by Mortgagor on
May 25, 2001; and
ii. Guarantor shall pay to AMAC the sum of $28,444.96 by
close of business June 8, 2001 ("Second Payment
Date").
b. The balance of $9,425,000.00 shall be paid to AMAC in cash at
closing ("Closing"), which shall occur on or before August 30,
2001 (the "Closing Date"). Mortgagor may extend the Closing
Date for one thirty (30) day period by payment of an extension
fee in the amount of $45,000.00 in cash, to be received by
August 31, 2001.
2. Deed in Escrow. Upon execution of this Agreement, Mortgagor shall
deliver to AMAC or its designee a General Warranty Deed, in the Form of
Exhibit B attached hereto, conveying title to the Property (the
"Deed"). The Deed will be held in escrow by AMAC. Upon payment in full
of the Settlement Amount, pursuant to Section 1 of this Agreement, AMAC
will return the Deed to Mortgagor. If Mortgagor does not make payments
owed on the Second Payment Date or on the Closing Date ("Settlement
Agreement Default"), AMAC or its designee shall, in addition to its
exercise of any other rights under this Agreement, record the Deed and
take title to the Property.
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3. Settlement Agreement Default: Conveyance to Lender. Upon a Settlement
Agreement Default, Mortgagor covenants and agrees as follows:
a. Agreement to Convey. Mortgagor agrees to convey good,
marketable and insurable indefeasible fee simple title to the
Property to AMAC or to a person designated by AMAC subject
only to the Permitted Encumbrances. "Permitted Encumbrances,"
for purposes of this Agreement, are easements and restrictions
listed in the schedules of exceptions to the Mortgagee Title
Insurance Policies issued to American Capital Resource, Inc.
and to American Mortgage Investors Trust by First American
Title Insurance Company, bearing Effective Dates of April 28,
1994 and reflecting Policy Numbers 31-00017 and 31-12280,
respectively.
b. Assignment of Personalty. In addition to conveyance of the
Property, Mortgagor agrees to convey and assign to AMAC by
Xxxx of Sale and Assignment in the form attached as Exhibit C
(the "Xxxx of Sale") the following:
(1) All personal property (the "Personal Property")
located on the Property and not owned by tenants of
the Property and all of Mortgagor's rights, title,
and interest in and to all warranties and guaranties
relating to any portion of the Property or the
Personal Property;
(2) All policies of insurance owned by Mortgagor
pertaining to the Property, the Personal Property, or
any part thereof, and all proceeds payable under
those policies;
(3) All security deposits, rents and other income of any
nature whatsoever derived from or relating to the
Property or Personal Property and held by or for the
benefit of Mortgagor, and all unpaid balances or
amounts owing with respect to all invoices,
obligations, costs, bills, claims, and other expenses
incurred or to be incurred in connection with the
acquisition, ownership, construction, leasing,
maintenance, management and operation of the Property
from the date of Mortgagor's acquisition of the
Property to the date of this Agreement, and any claim
or potential claim of Mortgagor against any party
relating thereto;
(4) All escrow accounts of any nature whatsoever for ad
valorem taxes, casualty or other insurance premiums,
hold backs and/or other expenses held by or for the
benefit of the Mortgagor and any lien holders, other
than Lender, with respect to the Property; and
(5) All rights of the Mortgagor in and to any trade
names, trademarks, service marks and the like,
together with any and all other intangible rights of
Mortgagor associated with the Property.
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c. Conveyance Documents. The Deed, Xxxx of Sale, and all other documents
to be executed and delivered by Mortgagor are collectively called the
"Conveyance Documents".
d. Absolute Conveyance. Mortgagor acknowledges and agrees that the
conveyance of the Property and the Personal Property to AMAC in
accordance with the terms and conditions of this Agreement, is an
absolute conveyance of all of the right, title and interest of
Mortgagor in and to the Property and the Personal Property is not
intended as a mortgage, trust conveyance, or other security agreement
of any nature whatsoever, specifically, but without implied limitation,
any right of redemption or claims in and to the Property, the Personal
Property or the rents, issues or profits and other proceeds that may be
derived therefrom.
e. Merger Not Intended. Mortgagor further acknowledges and agrees that:
(1) The Conveyance Documents are being executed and delivered and
the conveyances effected thereby are accepted in lieu of a
foreclosure upon the Property and the exercise of additional
rights under the Mortgage Loan Documents, the Additional
Interest Documents and the Equity Loan Documents. The
Conveyance Documents shall be interpreted and construed the
same as a foreclosure and the exercise of such rights, and as
an absolute conveyance to Lender of the Property, including
specifically but without limitation, any equity or rights of
redemption of Mortgagor therein or thereto.
(2) Until payment of the Settlement Amount as provided herein,
Lender's and AMAC's liens on the Property, including, without
implied limitation, the First Lien and the Second Mortgage
lien are NOT RELEASED or RELINQUISHED or SATISFIED in any
manner or respect whatsoever. All liens on the Property
benefitting Lender and AMAC shall remain valid and continuous
and in full force and effect. Upon payment of the Settlement
Amount, all such liens on the Property shall be released by
written instrument (the "Release") executed by Lender or AMAC,
or their successors and assigns, and recorded in the Register
of Deeds Offices of Richland and Lexington Counties, South
Carolina.
(3) Neither Lender, nor AMAC nor Mortgagor intend that there shall
be, and there shall not in any event be, a merger of any liens
benefitting Lender or AMAC against the Property with the title
or other interest of AMAC or its designee in the Property by
virtue of the conveyance to be evidenced by the Conveyance
Documents and the parties expressly provide that the liens
against the Property benefitting Lender or AMAC on the one
hand and title to the Property on the other, shall be and
remain at all times SEPARATE and DISTINCT.
(4) For purposes of priority as between (i) intervening or
inferior liens and encumbrances, if any, on or against the
Property, and (ii) the liens against the Property benefitting
Lender or AMAC, any and all rights of Lender or AMAC to
exercise their remedies of foreclosure or by judicial
foreclosure and all other remedies are expressly preserved
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hereby and for purposes of limitations and any other
applicable time bar defense, are expressly extended as
evidenced by this Agreement.
(5) The priority of the liens against the Property benefitting
Lender or AMAC is intended to be and shall remain in full
force and effect and nothing herein or in any instrument
executed in connection herewith shall be construed to
subordinate the priority of those liens to any other liens or
encumbrances whatsoever.
(6) If the conveyance of the Property from Mortgagor to AMAC or
its designee is voided, avoided or set aside for any reason
whatsoever on account of any action taken or caused to be
taken by Mortgagor or anyone claiming by, through, or under
Mortgagor, (i) the indebtedness and liens evidenced by the
Mortgage Loan Documents, the Additional Interest Documents and
the Equity Loan Documents will be automatically revived and
reinstated as if the same shall not have been previously
released, in whole or in part, by Lender or AMAC; (ii) Lender
and AMAC shall have the right to foreclose the liens and take
such other action as is permitted under the Mortgage Loan
Documents, the Additional Interest Documents and the Equity
Loan Documents and applicable law; and (iii) all costs
incurred by Lender and AMAC in connection with this Agreement
and any other cost of enforcement of the rights and remedies
of Lender and AMAC may, at Lender's and AMAC's sole
discretion, be deemed a part of the indebtedness evidenced and
secured by the Mortgage Loan Documents, the Additional
Interest Documents and the Equity Loan Documents and shall be
due and payable by Mortgagor and Guarantor upon demand of
Lender and AMAC.
4. Release of Lender and AMAC. Subject to the terms of this Agreement,
Mortgagor and Guarantor hereby agree to release Lender and AMAC and
their successors, assigns, employees, and agents from any suit, cause
of action, proceeding, remedy, relief or other claim arising out of,
based upon, or associated with, the transactions undertaken pursuant to
this Agreement, or in connection with the Property or any other matters
arising out of the relationship of mortgagor, guarantor and lender.
5. Assignment of Rents. As part of the consideration for this Agreement,
upon a Settlement Agreement Default, Mortgagor absolutely and
unconditionally assigns and transfers to AMAC all rental income
generated by the Property ("Rents"). It is the intention of the parties
to establish an absolute and irrevocable transfer and assignment to
AMAC of all Rents and to authorize and empower AMAC to collect and
receive all Rents without the necessity of further action on the part
of Mortgagor. Promptly upon request by AMAC, Mortgagor agrees to
execute and deliver such further assignments as AMAC may from time to
time require. Mortgagor and AMAC intend this assignment of Rents to be
immediately effective.
Mortgagor authorizes AMAC to collect, xxx for and compromise Rents then
due and payable, including Rents then due and unpaid, and directs each
tenant of the Property to pay all Rents to, or as directed by, AMAC.
Mortgagor shall pay to AMAC upon demand all Rents to
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which AMAC is entitled. At any time on or after the date of AMAC's
demand for Rents, AMAC may give, and Mortgagor hereby irrevocably
authorizes AMAC to give, notice to all tenants of the Property
instructing them to pay all Rents to AMAC, no tenant shall be obligated
to inquire further, and no tenant shall be obligated to pay to
Mortgagor any amounts which are actually paid to AMAC in response to
such a notice. Any such notice by AMAC shall be delivered to each
tenant personally, by mail or by delivering such demand to each rental
unit. Mortgagor shall not interfere with and shall cooperate with
AMAC's collection of such Rents.
Mortgagor represents and warrants to AMAC that Mortgagor has not
executed any prior assignment of Rents (other than an assignment of
Rents made in connection with the Mortgage Loan Documents, the
Additional Interest Documents or the Equity Loan Documents), that
Mortgagor has not performed, and Mortgagor covenants and agrees that it
will not perform, any acts and has not executed, and shall not execute,
any instrument which would prevent AMAC from exercising its rights
under this Section 4.
6. AMAC to Take Control of Property and Personal Property. Upon a
Settlement Agreement Default, AMAC may enter upon and take and maintain
full control of the Property and Personal Property in order to perform
all acts that AMAC in its discretion determines to be necessary or
desirable for the operation and maintenance of the Property, including
the execution, cancellation or modification of Leases (as below
defined), the collection of all Rents, the making of repairs to the
Property and Personal Property and the execution or termination of
contracts providing for the management, operation or maintenance of the
Property and Personal Property, for the purposes of enforcing the
assignment of Rents as above, for the purposes of protecting the
Property and Personal Property or for such other purposes as AMAC in
its discretion may deem necessary or desirable. Alternatively, without
regard to Mortgagor's solvency and without the necessity of giving
prior notice (oral or written) to Mortgagor, AMAC may apply to any
court having jurisdiction for the appointment of a receiver for the
Property and Personal Property to take any or all of the actions set
forth in the preceding sentence. If AMAC elects to seek the appointment
of a receiver for the Property and Personal Property, Mortgagor, by its
execution of this Instrument, expressly consents to the appointment of
such receiver, including the appointment of a receiver ex parte if
permitted by applicable law.
Immediately upon appointment of a receiver or immediately upon AMAC's
entering upon and taking possession and control of the Property and
Personal Property, Mortgagor shall surrender possession of the Property
and Personal Property to AMAC or the receiver, as the case may be, and
shall deliver to AMAC or the receiver, as the case may be, all
documents, records (including records on electronic or magnetic media),
accounts, surveys, plans, and specifications relating to the Property
and all security deposits and prepaid Rents. In the event AMAC takes
possession and control of the Property and Personal Property, AMAC may
exclude and remove Mortgagor and the Management Agent and their
representatives from the Property.
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The Mortgagor represents and warrants to Lender and AMAC that the
Property and Personal Property shall be complete, in place and in good
operating condition and that all expenses paid from and draws against
the Property's operating accounts were for the exclusive benefit of the
Property.
AMAC shall not be liable to Mortgagor, anyone claiming under or through
Mortgagor or anyone having an interest in the Property and Personal
Property, by reason of any act or omission of AMAC under this Section
5, and Mortgagor hereby releases and discharges AMAC from any such
liability to the fullest extent permitted by law.
7. Assignment of Leases. As part of the consideration for this Agreement,
upon a Settlement Agreement Default, Mortgagor absolutely and
unconditionally assigns and transfers to AMAC all of Mortgagor's right,
title and interest in, to and under the each lease relating to the
residential units in the Property ("Lease"), including Mortgagor's
right, power and authority to modify the terms of any such Lease, or
extend or terminate any such Lease. Mortgagor and AMAC intend this
assignment of the Leases to be immediately effective and to constitute
an absolute present assignment.
Upon delivery of notice by AMAC to Mortgagor of AMAC's exercise of
AMAC's rights under this Section 6 and without the necessity of AMAC
entering upon and taking and maintaining control of the Property
directly, by a receiver, or by any other manner or proceeding permitted
by the laws of South Carolina, AMAC immediately shall have all rights,
powers and authority granted to Mortgagor under any Lease, including
the right, power and authority to modify the terms of any such Lease,
or extend or terminate any such Lease.
8. Cancellation of Management Agreement. Upon a Settlement Agreement
Default, the Management Agreement shall be immediately terminated, null
and void and of no force and effect.
9. Mechanics' Liens. No action has been taken, suffered or permitted by or
on behalf of Mortgagor, the effect of which would be to establish or
cause the inception or priority of any mechanics' or materialmen's
lien, statutory, constitutional or otherwise, or other lien, charge or
encumbrance upon the Property or any part thereof or interest therein,
other than the liens evidenced by the Mortgage Loan Documents and the
Additional Interest Documents in favor of Lender and AMAC and any other
matters set forth in the Permitted Encumbrances. Except as expressly
disclosed in writing in this Agreement, Mortgagor has not entered into
any contracts or agreements relating to the use or ownership of the
Property or by which any person or entity has agreed to provide labor,
services or materials in regard to the Property or the business of
Mortgagor. The Mortgagor hereby represents, warrants and affirms that
payment in full has been made to all parties which provided materials
and/or services to the Property.
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10. Additional Indebtedness. Mortgagor warrants that no debt in addition to
the existing indebtedness owed Lender and AMAC has been incurred in
connection with the Property or otherwise except as specifically
disclosed in writing to AMAC.
11. Guaranty. Upon execution of this Agreement, Guarantor shall deliver to
AMAC and Lender an executed copy of the Personal Guaranty attached
hereto as Exhibit D to guaranty the obligations and representations of
Mortgagor and Guarantor under this Agreement, to ensure compliance with
the terms of this Agreement, to indemnify AMAC and Lender against loss
arising out of the failure to so comply and to guaranty the payment of
all costs and expenses incurred by AMAC and Lender in enforcing and
pursuing its remedies under this Agreement, the Mortgage Loan
Documents, the Additional Interest Documents and the Equity Loan
Documents, including, but not limited to, attorneys' fees.
12. Acknowledgment and Priority of Prior Pledges. Mortgagor and Guarantor
confirm and acknowledge the continued priority, validity and
enforceability by AMAC of pledges, assignments and grants to AMAC of
Excess Cash and Capital Proceeds generated by the Property and
individual Partnership Interests in the Mortgagor provided as
collateral for said parties' obligations under the Additional Interest
Documents and the Equity Loan Documents.
Mortgagor and Guarantor further confirm, represent and warrant that
there have been no pledges of Excess Cash and Capital Proceeds and
Partnership Interests other than to AMAC as aforesaid.
13. Mutual Release. Upon receipt of the Settlement Amount, as set forth
above in Section 1 b, and subject to Section 13 below, each party will
irrevocably, absolutely and unconditionally release, remit, forever
discharge and covenant not to xxx the other party, including the other
party's respective parent, subsidiaries and affiliated corporations,
and its and their directors, officers, employees, shareholders and
agents (collectively the "Releasees"), with respect to any and all
claims, actions, causes of action, suits, debts, liens, contracts,
agreements, obligations, promises, liabilities, accounts, rights,
demands, damages, controversies, losses, costs and expenses (including
attorneys' fees and costs actually incurred) of any nature whatsoever,
known or unknown, suspected or unsuspected, fixed or contingent, which
each party has, owns, holds, claims to have, claims to own or claims to
hold against the other party's Releasees in connection with or arising
out of the Mortgage Documents, the Additional Interest Documents and
the Equity Loan Documents (the "Released Matters").
14. Unknown and Unanticipated Claims/ Survival of Representations and
Warranties. The parties acknowledge that by reason of the releases,
discharges and covenants contained herein, the parties expressly assume
the risk of unknown and unanticipated claims
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concerning the Released Matters, and each party agrees that such
releases, discharges and covenants apply to such unknown and
unanticipated claims. The foregoing notwithstanding, specific
representations and warranties of Mortgagor and Guarantor under this
Agreement, and remedies of Lender and AMAC against Mortgagor and
Guarantor under this Agreement, shall survive the payment of the
payment of the Settlement Amount by the Closing Date.
15. No Admissions. This Agreement is a compromise of asserted claims. As
such, it does not constitute and shall not be deemed an admission of
wrongdoing or liability by any party hereto.
16. Representations and Warranties. Each party hereto represents and
warrants that:
a. It has not assigned or transferred any claims covered by this
Agreement; and
b. It has not filed and will not file any complaints, charges or
lawsuits against the other party with any governmental agency or any
court, except with respect to (a) new claims arising after the
execution of this Agreement that are legitimate and completely
unrelated to the Released Matters; and/or (b) any action to enforce the
terms of this Agreement and Release.
17. Each Party to Bear Own Costs. Each party to this Agreement shall bear
its own costs and attorneys' fees in connection with the negotiation
and execution of this Agreement.
18. Advice of Counsel. In executing this Agreement, each party has had the
independent advice and counsel of its attorneys and each has executed
this Agreement without fraud, duress or undue influence.
19. Heirs, Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon all the heirs, successors and assigns of
each of the parties hereto.
20. Choice of Law and Jurisdiction. This Agreement is made and entered into
in the state of South Carolina and shall in all respects be
interpreted, enforced and governed under its substantive laws.
21. No Implied Waiver. No failure on the part of any party to exercise, no
delay in exercising, and no course of dealing with respect to any
right, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right,
power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
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22. Notices. All notices and other communications required or permitted to
be given by this Agreement shall be in writing and shall be delivered
to the intended recipient at the address specified below or at such
other address as shall be designated by a party in a written notice to
the other party. All notices and other communications hereunder shall
be deemed to have been duly given, in the case of hand delivery or
facsimile, when received, or in the case of certified or registered
mail, postage prepaid, three business days after the date deposited in
the mail, addressed as aforesaid.
If to AMAC:
American Mortgage Acceptance Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Copy to:
Xxxxxx Xxxxxxxx, LLP
000 00xx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to Lender:
Related Mortgage Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Copy to:
Xxxxxx Xxxxxxxx, LLP
000 00xx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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If to Mortgagor:
Columbiana Lakes Limited Partnership
c/o Wise Construction Company, Inc.
0000 Xxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxx
Copy to:
Xxxxxxxxx & Xxxxxxxxxxxxx
First Union Center
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, III Esq.
If to Guarantor:
Xx. Xxxxxxxx X. Xxxx
c/o Wise Construction Company, Inc.
0000 Xxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Copy to:
Xxxxxxxxx & Xxxxxxxxxxxxx
First Union Center
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx III, Esq.
If to Management Agent
Intermark Management Corporation
Xxxxx 000
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Copy to:
Turner, Padgett, Xxxxxx & Xxxxx, P.A.
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0000 Xxxx Xxxxxx, Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
23. Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each
of which shall constitute an original, but all of which together shall
constitute one and the same instrument.
24. Paragraph Headings. Paragraph headings contained in this Agreement are
for convenience only and shall not be considered for any purpose in
construing this Agreement.
25. Severability. In the event that any covenant, condition or other
provision herein contained is held to be invalid, void or illegal by
any court of competent jurisdiction, the same shall be deemed severable
from the remainder of this Agreement and shall in no way affect, impair
or invalidate any other covenant, condition or other provision herein
contained.
26. Entire Understanding. This Agreement sets forth the entire
understanding between the parties, and there are no terms, conditions,
representations, warranties or covenants other than those contained
herein. Neither party hereto, nor any agent or attorney of such party,
has made any promise, representation or warranty whatsoever, express or
implied, not contained herein concerning the subject matter hereof, to
induce the other to execute this Settlement Agreement, and each party
hereby acknowledges that it has not executed this instrument in
reliance on any such promise, representation or warranty.
27. Amendment Must be in Writing. No term or provision of this Agreement
may be amended, waived, released, discharged or modified in any respect
except in a writing signed by an authorized representative of each
party hereto.
28. No Third Party Beneficiaries. This Agreement does not grant any rights
or privileges to any person or entity not a party to this Agreement or
not specifically referred to herein.
PLEASE READ CAREFULLY. THIS AGREEMENT OF SETTLEMENT, COMPROMISE AND GENERAL
RELEASE INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS.
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IN WITNESS WHEREOF, this Agreement was executed this ___ day of _______, 2001.
MORTGAGOR:
COLUMBIANA LAKES LIMITED PARTNERSHIP
_____________________________
Name: Xxxxxxxx X. Xxxx
Title: General Partner
GUARANTOR:
XXXXXXXX X. XXXX
_____________________________
-14-
AMAC:
AMERICAN MORTGAGE ACCEPTANCE COMPANY
____________________________________
By: _________________________
Its: _________________________
LENDER:
RELATED MORTGAGE CORPORATION
____________________________________
By: ______________________
Its: ______________________
-15-
MANAGEMENT AGENT:
INTERMARK MANAGEMENT CORPORATION
_______________________________________
By:_________________
Its:_________________
-16-
