SETTLEMENT AGREEMENT
AND GENERAL RELEASE
This Settlement Agreement and General Release ("Agreement") is entered into
effective this ___ day of June, 2002 by and between Anza Capital, Inc. a Nevada
corporation ("Anza"), and Laguna Pacific Partners, LP, ("Laguna"). Anza and
Laguna shall each be referred to as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, on or about June 27, 2001, Laguna loaned $200,000 to Anza, which
is evidenced by an Investment Agreement dated June 27, 2001, executed by e-Net
(now Anza) and Laguna, and a Secured Promissory Note dated June 27, 2001, copies
of which are attached hereto as Exhibit A ("the Loan");
WHEREAS, a dispute has arisen between the Parties regarding concerning the
repayment of the Loan, (the "Dispute");
NOW, THEREFORE, for good and adequate consideration, the receipt of which
is hereby acknowledged, without admitting or denying any wrongdoing by any Party
hereto, the Parties wish to resolve the Dispute in full and therefore, covenant,
promise and agree as follows:
AGREEMENT
1. Anza agrees to pay Laguna a total of $209,000, payable in full upon
final execution of this Agreement.
2. Laguna agrees to accept the sum in Section 1 as full and complete
payment of any and all obligations and amounts due to Laguna arising under the
Loan, including interest, and in settlement of the Dispute. Additionally,
Laguna has agreed to release any and all collateral Laguna holds as security for
the repayment of the Loan, including releasing any and all interest Laguna holds
in Anza or any of Anza's subsidiaries and the cancellation of any and all
security instruments, including any UCC-1 Financing Statements Laguna may have
filed to evidence its security interest in Anza or any of Anza's subsidiaries.
Pursuant to this Agreement, Laguna agrees to return to Anza any and all Anza and
Anza's subsidiary stock certificates that Laguna possesses and supply Anza
with proof that any and all security instruments, including UCC-1 Financing
Statements, that Laguna filed with any local or state agency, have been
cancelled.
3. Effective on the date hereof, both Anza and Laguna (the "Parties"),
and their respective agents, affiliates, divisions, predecessors, successors and
assigns, hereby release the other Party, and each and all of their present
and former agents, officers, directors, attorneys, and employees, from and
against any and all claims, agreements, contracts, covenants, representations,
obligations, losses, liabilities, demands and causes of action which it may now
or hereafter have or claim to have against that Party, as a result of the Loan
or the Dispute. This release of claims and defenses shall not alter the
prospective duties between the Parties under this Agreement.
4. The Parties acknowledge and agree that this release applies to all
claims that one Party may have against the other Party arising out of, or
pertaining to, the Loan or the Dispute, including, but not limited to, causes of
action, injuries, damages, claims for costs or losses to a Party's person and
property, real or personal, whether those injuries, damages, or losses are known
or unknown, foreseen or unforeseen, or patent or latent. The Parties agree not
to file any complaints, causes of action, or grievances with any governmental,
state or county entity against the other Party arising out of, or pertaining to
the Loan or the Dispute.
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5. Each Party expressly agrees and understands that the above releases
will be effective as of the date of this Agreement and any Party's sole remedy
against any other Party regarding the Dispute will be for breach of this
Agreement.
6. Section 1542 Release. It is understood and agreed by the Parties
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hereto that all rights under Section 1542 of the Civil Code of California, which
provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect 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,"
are hereby expressly waived. The Parties acknowledge, agree and understand the
consequences of a waiver of Section 1542 of the California Civil Code and
assumes full responsibility for any and all injuries, damages, losses or
liabilities that may hereinafter arise out of or be related to matters released
hereunder. Releasing Party understands and acknowledges that the significance
and consequence of this waiver of Section 1542 of the Civil Code is that even if
a Party should eventually suffer additional damages arising out of the subject
matter hereof, it will not be permitted to make any claim for those damages.
Furthermore, all Parties acknowledge that they intend these consequences even as
to claims for damages that may exist as of the date of this Agreement but which
the Parties do not know exist, and which, if known, would materially affect the
Parties' decision to execute this Agreement, regardless of whether the Parties'
lack of knowledge is the result of ignorance, oversight, error, negligence, or
any other cause.
7. Each Party hereto will hold and will cause its agents, officers,
directors, attorneys, employees, consultants and advisors to hold in strict
confidence, unless compelled to disclose by judicial or administrative process
or, in the opinion of its counsel, by other requirements of law, the terms of
this Agreement and all other documents and information concerning any other
Party furnished it by such other Party or its representatives in connection with
the subject matter hereof or the underlying loan (except to the extent that such
information can be shown to have been (i) previously known by the Party to which
it was furnished, (ii) in the public domain through no fault of such Party, or
(iii) later lawfully acquired from other sources by the Party to which it was
furnished), and each Party will not release or disclose such information to any
other person, except its auditors, attorneys, financial advisors, bankers and
other consultants and advisors in connection with this Agreement. Each Party
shall be deemed to have satisfied its obligation to hold confidential
information concerning or supplied by the other Party if it exercises the same
care as it takes to preserve confidentiality for its own similar information.
8. Each Party acknowledges and represents that, in executing this
Agreement, such Party has not relied on any inducements, promises, or
representations made by any Party or any party representing or serving such
Party, unless expressly set forth herein.
9. This Agreement pertains to a disputed claim and does not constitute
an admission of liability by any Party for any purpose, except as otherwise
provided herein.
10. The representations and warranties contained in this Agreement are
deemed to and do survive the execution hereof.
11. This Agreement may not be amended, canceled, revoked or otherwise
modified except by written agreement subscribed by all of the Parties to be
charged with such modification.
12. This Agreement shall be binding upon and shall inure to the benefit
of the Parties hereto and their respective partners, employees, agents,
servants, heirs, administrators, executors, successors, representatives and
assigns.
13. All Parties hereto agree to pay their own costs and attorneys' fees
except as follows:
(a) In the event of any action, suit or other proceeding
instituted to remedy, prevent or obtain relief from a breach of this Agreement,
arising out of a breach of this Agreement, involving claims within the scope of
the releases contained in this Agreement, or pertaining to a declaration of
rights under this Agreement, the prevailing Party shall recover all of such
Party's attorneys' fees and costs incurred in each and every such action, suit
or other proceeding, including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the
full and actual costs of any legal services actually performed in connection
with the matters involved, calculated on the basis of the usual fee charged by
the attorneys performing such services.
14. This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of California
including all matters of construction, validity, performance, and enforcement
and without giving effect to the principles of conflict of laws. Venue for any
action brought under this Agreement shall be in the appropriate court in Orange
County, California.
15. The Parties agree and stipulate that each and every term and
condition contained in this Agreement is material, and that each and every term
and condition may be reasonably accomplished within the time limitations, and in
the manner set forth in this Agreement.
16. The Parties agree and stipulate that time is of the essence with
respect to compliance with each and every item set forth in this Agreement.
17. This Agreement sets forth the entire agreement and understanding of
the Parties hereto and supersedes any and all prior agreements, arrangements and
understandings related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statements, certificates, or other documents delivered pursuant hereto
or in connection with the transactions contemplated hereby, and no Party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so set forth.
18. This Agreement may be executed in one or more counterparts, each of
which when executed and delivered shall be an original, and all of which when
executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby,
execute this Agreement upon the date first set forth above.
"Anza" "Laguna"
Anza Capital, Inc., Laguna Pacific Partners, LP,
A Nevada corporation
/s/ Xxxxx Xxxxxxxx signer not known
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By: Xxxxx Xxxxxxxx By:
Its: President Its:
