DEBT ASSUMPTION, SETTLEMENT AGREEMENT
Exhibit 10.12
DEBT
ASSUMPTION, SETTLEMENT AGREEMENT
AND
GENERAL
RELEASE
This
Agreement and General Release is made and entered into between AMERIRESOURCE TECHNOLOGIES, INC.
(ARIO), MIDNIGHT
HOLDINGS GROUP, INC. (MHGI) and AJW MASTER (AJWM). The
above-named parties are referred to collectively hereinafter as the
Parties.
RECITALS
Whereas,
certain obligations exist between the Parties;
Whereas,
between the dates of June 14, 2004 to November 8, 2007, MHGI made and granted to
AJWM a series of promissory notes in the face amount of
$ 1,872,051.84,
the “Midnight Notes”.
Whereas,
the Parties now desire to resolve all claims, known and unknown, which may exist
among them relating to, or arising out of, the Midnight Notes as set forth in
the schedule, Exhibit A, as attached hereto.
Now
therefore, in consideration of the above premises and the following covenants,
it is hereby agreed as follows:
Purpose
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1.
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The
Parties hereto understand, acknowledge, and agree that the execution of
this Agreement constitutes a compromise and assumption of the obligations
and debts that exist between them, that this Agreement is not to be
considered as any finding of fact nor construed as an admission of
wrongdoing or default by any party, those obligation are represented by
the promissory notes made by MHGI to AJWM as set forth on the attached
schedule, Exhibit A, (the “Midnight
Notes”).
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Reciprocal
Obligation
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2)
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ARIO
will deliver to NIR Group LLC a promissory note in the sum of of the
Recital Amount shown above and in Exhibit A attached to AJWO as the Holder
of the said note (the “New Note”). This New Note would be
delivered to AJWO upon the final execution of this Agreement by the
parties.
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3)
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The
parties hereby agree and stipulate that it is their intention that the New
Note is to be treated as part of the settlement of the obligation due to
AJWM under the terms of the Midnight Notes and that ARIO’s obligation to
satisfy that debt is to be satisfied by the delivery of the New Notes as
set forth herein.
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4)
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The
respective Parties have agreed to jointly draft and execute this Debt
Assumption, Settlement Agreement and General Release, and after the
language is finalized, to provide the other with a copy of the executed
signature page with all due
expediency.
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5)
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The
Parties agree that payment made in the form of items 1 through 5 of this
agreement by ARIO shall constitute full and complete settlement of all
claims and obligations arising from and related to the Midnight Notes that
are listed on the hereto attached schedule and only the obligations as set
forth there, and other notes not listed are not affected by this
Agreement.
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Release of
Claims
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6)
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Each
party agrees for itself, its predecessors, successors, and assigns, to
fully and unconditionally release and forever discharge the other party,
including each party successors, assigns, subsidiaries,
affiliates, transferees, attorneys, representatives, agents, officers,
directors, employees, insurers, and reinsurers, past, present, and future,
from and on account of any and all claims, demands, actions, causes of
action, or charges of any nature or kind whatsoever against the other
party, whether known or unknown, asserted or unasserted, ▇▇▇▇▇▇ or
inchoate, related to or arising out of the Midnight Notes in any
nature.
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Advice of
Counsel
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7.
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In
executing this Agreement, the Parties acknowledge that they have been
advised to consult with and have consulted with and had the advice of an
attorney duly admitted to practice law prior to executing this Agreement
and that they have voluntarily executed this Agreement after a careful and
independent investigation, and not under fraud, duress, or undue
influence.
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Binding on
Successors
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8.
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This
Agreement shall be binding on and inure to the benefit of the Parties
hereto, their heirs, executors, administrators, successors-in-interest,
and assigns.
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Integration
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9.
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All
Parties hereby agree that this Agreement is the complete and exclusive
statement of the mutual understanding of the Parties and supersedes and
cancels all previous written and oral agreements and communications
relating to the Midnight Notes.
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Interpretation
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10.
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The
Parties hereby agree that no inference or rule of inference shall be made
by reason of the fact that one Party caused this Agreement to be drafted.
For purposes of interpretation of the Agreement, it shall be assumed that
all Parties drafted each provision of the Agreement. This Agreement shall
be deemed to have been made in, and shall be construed pursuant to the
laws of the State of Nevada.
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Severability
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11.
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If
any provision of this Agreement shall be adjudged by any court of
competent jurisdiction to be unenforceable or invalid, that provision
shall be limited or eliminated to the minimum extent necessary so that
this Agreement shall otherwise remain in full force and effect and
enforceable.
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Confidentiality
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12.
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The
Parties hereto specifically acknowledge, affirm, agree, and intend on
their own behalf and on the behalf of their attorneys and representatives,
that the terms of this Agreement shall remain entirely confidential unless
disclosure is required by the court, by law, any reporting requirements of
the Securities and Exchange Commission, or otherwise necessary to carry
out the terms and conditions of this
Agreement.
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No
Waiver
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13.
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No
failure to exercise, and no delay in exercising, on the part of any Party,
any privilege, any power or any rights hereunder will operate as a waiver
thereof, nor will any single or partial exercise of any right or power
hereunder preclude further exercise of any right
hereunder.
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Further
Assistance
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14.
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Each
of the parties shall hereafter execute all documents and take all actions
that are reasonably necessary to effectuate the provisions of this
Agreement.
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15.
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ARIO
further warrants and certified the Company is at the time of the execution
of this Agreement, an accredited investor, as that term is defined by the
SEC and that the Company is fully informed of the nature and risk of his
investment in MHGI as represented by the terms of this
Agreement.
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Waiver of
Claims
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16.
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The
Parties hereby acknowledge that there is a risk that subsequent to the
execution of this Agreement, they will discover, incur, or suffer claims
which were unknown or anticipated at the time this Agreement was executed,
which, if known on the date this Agreement is executed, may have
materially affected their decision to execute this Agreement. The Parties
expressly assume the risk of such unknown and unanticipated claims and
agree that this Agreement and the general release contained herein apply
to all such known or unknown or unanticipated
claims.
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Attorney
Fees
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17.
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If
any actual controversy arises as to the enforcement of any provision of
this Agreement, the prevailing party, in any action or arbitration to
enforce this Agreement, shall be entitled to recover all costs and
expenses including, without limitation, attorney
fees.
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Consideration for Assumption
of Debt
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18.
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In
consideration to ARIO to assume the debt shown in both the Recitals above
and highlighted in Exhibit A attached as prepared by the NIR Group,
LLC, MHGI will issue shares of Series A Convertible Preferred
Stock that will be equal to, upon conversion into common stock, the value
of debt being assumed and owed to the Fund managed by the NIR Group, LLC
and/or its affiliate companies.
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[THE REMAINDER OF THIS PAGE
LEFT BLANK INTENTIONALLY]
Execution in
Counterparts
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19.
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The
Parties agree that this Agreement may be executed in counterparts. The
Parties further agree that, in order to expeditiously effect the execution
of this Agreement, a facsimile transmission of the signature pages will be
deemed an original.
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Therefore,
the signatures below constitute an expression of the Parties and by each of
them, that this Agreement is agreed to, and binding as of the date of
execution:
AMERIRESOURCE
TECHNOLOGIES, INC.
▇▇▇▇▇▇
▇▇▇▇▇▇▇
By: _____________________
Dated: _____________________
President
Its: _____________________
MIDNIGHT
HOLDINGS GROUP, INC.
▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
By: _____________________
Dated: _____________________
President &
CEO
Its: _____________________
AJW
MASTER
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
By:
_________________
Dated: December ____,
2008
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Manager
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Its:
_________________
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EXHIBIT
A: Schedule of Debts Assumed by:
AmeriResource
Technologies, Inc. (ARIO)
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ARIO
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AJW
PARTNERS
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NEW
MILLENNIUM
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AJW
MASTER
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AJW
OFF-
SHORE
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AJW
QUALIFIED
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Total
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6/14/2004
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50,000.00 | 10,175.00 | 88,700.00 | 101,125.00 | 250,000.00 | |||||||||||||||||||
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3/31/2005
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39,127.38 | 5,000.00 | 112,500.00 | 92,500.00 | 249,127.38 | |||||||||||||||||||
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9/23/2005
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80,000.00 | 10,000.00 | 225,000.00 | 185,000.00 | 500,000.00 | |||||||||||||||||||
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12/19/2005
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81,600.00 | 10,200.00 | 229,500.00 | 188,700.00 | 510,000.00 | |||||||||||||||||||
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12/19/2005
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(81,600.00 | ) | (81,600.00 | ) | ||||||||||||||||||||
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1/31/2006
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71,400.00 | 9,000.00 | 350,400.00 | 169,200.00 | 600,000.00 | |||||||||||||||||||
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7/3/2006
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29,400.00 | 3,900.00 | 183,000.00 | 83,700.00 | 300,000.00 | |||||||||||||||||||
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9/1/2006
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258,683.49 | 248,476.88 | 216,865.86 | 724,026.23 | ||||||||||||||||||||
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11/17/2006
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450,000.00 | 450,000.00 | ||||||||||||||||||||||
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12/11/2006
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41,850.00 | 5,400.00 | 272,700.00 | 130,050.00 | 450,000.00 | |||||||||||||||||||
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1/17/2007
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15,000.00 | 8,000.00 | 400,000.00 | 27,000.00 | 450,000.00 | |||||||||||||||||||
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5/1/2007
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30,000.00 | 10,000.00 | 410,000.00 | 450,000.00 | ||||||||||||||||||||
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8/14/2007
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39,150.00 | 5,400.00 | 405,450.00 | 450,000.00 | ||||||||||||||||||||
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10/1/2007
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113,932.41 | 17,689.80 | 762,601.84 | 894,224.05 | ||||||||||||||||||||
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11/8/2007
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88,000.00 | 8,000.00 | 704,000.00 | 800,000.00 | ||||||||||||||||||||
| 856,543.28 | 102,764.80 | 1,872,051.84 | 2,970,276.88 | 1,194,140.86 | 6,995,777.66 | |||||||||||||||||||
| 6,995,777.66 | ||||||||||||||||||||||||