EXHIBIT 10.35
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE OF ALL CLAIMS
This settlement Agreement and Mutual Release of All Claims
("Agreement"), dated March 28, 1996, is executed by and between Westmark Group
Holdings, Inc. ("WGHI"), a Colorado corporation, and Jehu Hand ("Hand"), and is
made with reference to the following:
RECITALS
WHEREAS, WGHI retained Hand to provide certain services to WGHI; and
WHEREAS, Hand performed services on behalf of WGHI and billed it for
such services on an hourly basis;
WHEREAS, WGHI has informed Hand that it is unable to pay in cash the
amounts owed to Hand for such services and has requested that Hand accept the
form of payment as set forth herein;
WHEREAS, the parties hereby wish to settle and to resolve any and all
disputes, debts, damages, accounts, claims and demands whatsoever between them
arising from Hand representation of WGHI and Hand claims for payments owed by
WGHI to Hand for services rendered by Hand to WGHI.
NOW, THEREFOR, in consideration of the terms set forth below, and the
other covenants and conditions contained herein, WGHI and Hand mutually agree as
follows:
1. WGHI covenants and agrees to pay to Hand the sum of $5,000 and Hand
agrees to accept said sum in full and final settlement of any and all claims by
Hand against WGHI. Payment shall be made by WGHI, in full, no later than April
15, 1996.
2. If at any time WGHI fails to perform its obligations as set forth
hereinabove, WGHI shall be in default of this Agreement and Hand shall be
entitled to proceed with any and all remedies available at law or in equity.
3. Hand hereby releases and forever discharges WGHI, and all of its
past, present and future attorneys, officers, directors, employees, agents,
insurers, successors and assigns from any and all claims, demands, obligations
or causes of action of any nature whatsoever, whether in law or in equity, or
whether for contractual, compensatory or punitive damages, which have arisen or
may arise out of WGHI alleged failure to pay for services rendered on its behalf
by Hand provided, however, that the release set forth herein is subject to the
payment by WGHI as set forth in paragraph 1.
1
4. WGHI hereby releases and forever discharges Hand, and all of its
past, present and future partners, attorneys, officers, directors, employees,
agents, insurers, successors and assigns, from any and all claims, demands,
obligations or causes of action of any nature whatsoever, whether in law or in
equity, or whether for contractual, compensatory or punitive damages, which have
or may arise out of Hand performance of services on behalf of WGHI, or failure
thereof, and any and all other claims or causes of action WGHI may have against
Hand whether real or imaginary or known or unknown at this time.
5. Subject to satisfaction of the terms set forth herein all parties
hereto acknowledge that they execute and agree to this Agreement, and accept the
terms set forth herein, as a complete compromise of all matters involving
disputed issues of law and fact and fully assume, thereby, the risk that the
facts or law may be other than they believe.
6. Each party warrants and represents to the other that it has not
assigned, conveyed or transferred any of the claims or possible claims against
any of the parties hereto (or any interest therein) which are released or
referred to herein and that the releases herein are what they purport to be.
In the event of an adjudication that either party is in breach of
this Section, the party in breach agrees to indemnify and hold harmless the
other party from any resulting liability, claim, demand, damage, cost, expense
and/or attorney's fees incurred by the other party as a result of the breach.
7. Each party represents and warrants that it has full authority to
enter into this Agreement and to release all of the claims, known or unknown,
which are the subject matter of the releases herein.
8. This Agreement contains the entire agreement between the parties and
supersedes and replaces any and all prior or contemporaneous agreements or
understandings, whether written or oral, with regard to the matters set forth
herein. This Agreement may be amended or modified in whole or in part at any
time, but only by a written agreement executed by both parties in the same
manner as this Agreement.
9. This Agreement has been negotiated, and is entered into, in the
State of California, County of Orange. The validity, interpretation,
construction and enforcement of this Agreement shall be construed, interpreted
and governed pursuant to California law.
10. In entering into this Agreement, each party represents that:
(a) It has read the Agreement and has had the opportunity
to consult with its attorneys, who are the attorneys
of its own choice, during the negotiation and
preparation of this Agreement.
2
(b) It fully understands and is aware of the terms of
this Agreement, and the legal consequences thereof,
and voluntarily accepts them; and
(c) Its counsel has reviewed and revised, or has had the
opportunity to review and revise this Agreement, and
accordingly the normal rule of construction, which
states to the effect that any ambiguities are to
resolved against the drafting party, shall not be
employed in the interpretation of this Agreement.
11. Each party represents and warrants that no other person or entity
has or has had any interest in the claims, demands, obligations or causes of
action referred to in this Agreement. Each party further warrants and represents
that the individuals executing this Agreement are duly authorized by the
respective parties to bind the parties to the terms of this Agreement.
12. Failure by either party at any time to require performance of any
provision of this Agreement shall not limit the right of that party to enforce
such performance or provision at any time, nor shall either party's waiver of
any breach by the other party of any provision of this Agreement by a waiver of
any succeeding breach by that other party of that same provision, or of any
other provision of this Agreement.
13. The parties agree that any notices to be provided pursuant to this
Agreement shall be addressed to the respective parties as follows:
Westmark Group Holdings, Inc. Jehu Hand
355 N.E. Fifth Ave., Suite 4 HAND & HAND
Delray Beach, Florida 33483 24901 Dana Point Harbor Drive
Suite 200
and Dana Point, California 92629
Harry C. Coolidge, Esq.
1260 41st Ave., Suite N
Capitola, California 59010
Each party shall notify the other party by certified mail of
any change of address or change of the person designated herein to receive
notices to be provided pursuant to this Agreement. Once a party has received
notice of a change of address or designated person, that party shall send all
future notices to be provided in this Agreement to that address and designated
person.
14. The parties hereto acknowledge and understand that this Agreement
creates
3
new obligations and rights between them. Except as otherwise provided for in
this Agreement, each party expressly waives and assumes the risk of any and all
claims for damages which exist as of this date, but of which it is unaware,
whether through ignorance, oversight, error, negligence or otherwise, and which,
if known to Hand or to WGHI, would materially affect their decision to enter
into this Agreement. Each party further assumes the risk that it may suffer
damages in the future which it does not now anticipate nor suspect. Each party
waives all rights under California Civil Code Section 1542, which states as
follows:
"A general release does not extend to claims which the creditor does
not know or expect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
15. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which shall together constitute one and the
same document. It shall not be necessary, in making proof of this Agreement, to
produce or account for more than one counterpart.
16. Upon receipt of the consideration hereinabove set forth in
Paragraph 1, Hand covenants and agrees to dismiss, with prejudice, any actions
now pending including, but not limited to, the action entitled Hand & Hand, a
law corporation v. Westmark Group Holdings, Inc. filed in the Superior Court of
the State of California, County of Orange, action number 752444.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the dates set forth below.
DATED: DATED:
WESTMARK GROUP HOLDINGS, INC.
By: By:
JEHU HAND
Its:
4