Exhibit 10.4
TERMINATION AGREEMENT AND RELEASE
This Termination Agreement dated March ___, 2006, by and between REIT
Americas, Inc., a Maryland corporation (the "REIT") and Mortgage Capital
Corporation of America, LLC, an Arizona limited liability company ("MCCA") and
all of the undersigned assignees of MCCA as set forth in Schedule 1 hereof and
on the signature page hereto.
WHEREAS, the parties entered into a Letter of Intent dated September
30, 2002 ("LOI") whereby MMCA was going to provide REIT with real estate assets
which were to have a value of not less than $41,000,000 and an expected Closing
Date of November 2002; and
WHEREAS, in exchange for the contribution of real estate assets, the
REIT was to deliver 800,000 shares to MCCA or its assignees (the "Shares"); and
WHEREAS, the REIT never delivered the Shares but did record the Shares
on its internal books to the assignees of MCCA as set forth on Schedule 1 hereof
(the "Assignees"); and
WHEREAS, in order to amicably resolve any issues and avoid future
disputes, the undersigned have all agreed to waive any and claims they may have
against each other and acknowledge the Shares shall be canceled as void ab
initio on the books and records of the Company .
NOW, THEREFORE, for good and valuable good consideration:
1. TERMINATION OF LOI. All parties acknowledge that the LOI is
terminated and of no further force and effect and that no
party shall have any obligation to any other party arising
from any term, covenant or agreement of the LOI.
2. CANCELLATION OF SHARES. Each party hereby acknowledges that
MCCA and each of its Assignees never had any right or claim to
the Shares and hereby waive any and all claims each had or may
have, now or in the future, against the Shares. Each party
hereby acknowledges and agrees that the Shares will be
canceled of record and returned to the treasury of the REIT.
3. RELEASE OF REIT. Each of MCCA and the Assignees and their
respective heirs, successors, assigns, shareholders,
directors, officers, employees, agents, and any corporations,
partnerships or other entities owned or controlled by them and
any parents, subsidiaries, and affiliated companies, hereby
forever releases and discharges the REIT, its successors or
assigns, shareholders, directors, officers, employees, agents,
and any corporations, partnerships or other entities owned or
controlled by it and any of its subsidiaries and affiliated
companies from any and all claims each has or may have against
REIT now or in the future arising out of the LOI or the
cancellation of the Shares. Each of MCCA and the Assignees
specifically acknowledge that this release extinguishes all
claims against REIT, whether past or present, known or
unknown, foreseen or unforeseen, without regard to whether
such claims are liquidated or contingent,
accrued or unaccrued, or whether based upon contract, equity,
tort, statutory violation, rule of the court, including claims
that were or could or might have been asserted by MCCA or the
Assignees with respect to the LOI or the Shares.
4. RELEASE OF MCCA. REIT hereby releases and discharges MCCA,
their heirs, successors or assigns, from any and all claims
REIT has or may have against MCCA arising from the LOI. REIT
specifically acknowledges that this release extinguishes all
claims against MCCA, whether past or present, known or
unknown, foreseen or unforeseen, without regard to whether
such claims are liquidated or contingent, accrued or
unaccrued, or whether based upon contract, equity, tort,
statutory violation, rule of the court, including claims that
were or could or might have been asserted by REIT with respect
to the LOI.
5. NO ADMISSION OF LIABILITY. By entering into this Agreement,
the Parties to this Agreement do not admit to any liability to
the other Party, and each denies liability. This Agreement
does not constitute any admission by either Party of any
liability on the merits of any claim or defense which has been
or could have been asserted by the other Party.
6. EACH PARTY TO BEAR ITS OWN COSTS. Each Party shall bear its
own costs and attorneys' fees relative to the settlement of
this matter.
7. ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the Parties on the matters covered. Any agreement,
statement, or promise made by any Party, or by any employee,
officer, or agent of any Party, as to the matters covered in
the Agreement which is not in writing and signed by both
Parties shall not be binding.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts which together will compromise a binding contract
even though all signatures may not appear on the same
document. Facsimile signatures shall be deemed as legally
binding as original signatures for all purposes.
9. CHOICE OF LAW. This Agreement is entered into the State of
Florida and shall be construed and enforced in accordance with
the Laws of the State of Florida and all actions arising
hereunder shall be brought in the venue of Palm Beach County,
Florida, and each party hereto hereby consents to jurisdiction
in Palm Beach County, Florida.
10. SEVERABILITY OF PROVISIONS. Any provisions of this Agreement
which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent
of such provision or unenforceability without invalidating the
remainder provisions of this Agreement.
REIT AMERICAS, INC
By:_______________________
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Mortgage Capital Corporation of America, LLC
By:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Managing Member
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Razor Realty Consultants, LLC
By:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Manager
Penthouse Franchise Group, LLC
By:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Manager