SETTLEMENT AGREEMENT
Settlement Agreement, dated as of September 6, 2002 (the "Settlement
Agreement"), by and among The Xxxxx Partnership Inc., a Nevada corporation with
an address at 000 Xxxx Xxx., Xxxxx 0000, Xxx Xxxx, XX 00000 (the "Borrower"),
Ocean Strategic Holdings Ltd., a BVI corporation with its administrative office
at 00 Xxxx Xx., Xx. Xxxxxx XX0 XXX Xxxxxx ("Ocean"), and Turbo International
Ltd., a corporation organized under the laws of the Bahamas with its registered
offices at Xxxxxxx House, 00 Xxxxxxx Xxxxxx, X.X. Xxx X-0000, Nassau, Bahamas
("Turbo" and together with Ocean, the "Lenders").
WHEREAS, the Borrower and the Lenders entered into a Loan Agreement dated
as of March 15, 2002 and the exhibits thereto (the "Loan Agreement") pursuant to
which the Lenders loaned the Borrower Two Hundred Fifty Thousand Dollars
($250,000.00) (the "Loan");
WHEREAS, the Borrower is in default under the Loan Agreement and in
connection therewith notice of such default was delivered to the Borrower by
letter dated April 19, 2002 annexed hereto as Exhibit A (the "Default Notice");
WHEREAS, the Borrower has agreed to repay and the Lenders have agreed to
accept the Borrowers repayment of the Loan in accordance with the terms and
conditions hereinafter set forth; and
WHEREAS, all capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Loan Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto, intending to be so bound, do hereby agree as follows:
1. Repayment of the Loan; Releases; Escrow.
1.1 The Borrower hereby acknowledges that it is in default under the Loan
Agreement as set forth in the Default Notice and agrees to repay the Loan to the
Lenders and the Lenders hereby agree to accept the repayment of the Loan from
the Borrower pursuant to the terms and condition set forth herein. Presentment
for payment, notice of dishonor, protest and notice of protest are hereby waived
by the Borrower
1.2 The Borrower agrees to repay the Loan according to the following
schedule:
(a) Eighty Thousand Dollars ($80,000.00) due and payable on or before
August 30, 2002 by wire transfer of immediately available funds (the "First
Payment");
(b) One Hundred Thousand Dollars ($100,000.00) due and payable on or
before September 30, 2002 by wire transfer of immediately available funds
(the "Second Payment"); and
(c) Seventy Thousand Dollars ($70,000.00) plus interest as herein
defined due and payable on or before October 30, 2002 by wire transfer of
immediately available funds (the "Third Payment"). The unpaid Principal Sum
and any penalties due hereunder shall bear interest from March 15, 2002
until paid in full at a rate of twelve percent (12%) per annum. Interest
chargeable hereunder shall be calculated on the basis of a three hundred
sixty (360) day year for actual days elapsed. If interest is not paid as it
becomes due, it shall be added to the Principal Sum, shall become and be
treated as part thereof, and shall thereafter bear like interest as the
interest rate.
1.3 If the First Payment is made when due, the Borrower, Xxxxxx X. Xxxxx
and Xxxxxxx Xxxxxxx shall execute and deliver the release (the "Release")
annexed hereto as Exhibit C and the Lenders shall execute and deliver the
Release annexed hereto as Exhibit D to Xxxxxx, Gottbetter, Levenson, LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 Attn.: Xxxx Xxxxxxxxxx, Esq., as escrow agent
(the "Escrow Agent"), to be held in escrow pursuant to this Settlement
Agreement.
1.4 If the First Payment is not made when due, such failure shall
constitute a material breach and (a) the entire Loan shall be accelerated and
become immediately due and payable, (b) within five (5) business days of said
breach the Release executed by the Borrower and the Release executed by Lenders
shall be released from escrow and delivered by the Escrow Agent to the Lenders,
and (c) the Loan Agreement shall be in full force and effect and the Lenders
shall be entitled to exercise all of their rights and remedies hereunder and
under the Loan Agreement.
1.5 If the First Payment is paid when due and the Second Payment is not
paid when due, the Borrower shall have seven (7) days to cure such default
without penalty (the "First Cure Period") and an additional seven (7) days after
the First Cure Period (the "Second Cure Period") to cure such default with a
penalty in the amount of Ten Thousand Dollars ($10,000.00) added to the amount
of the Second Payment, which shall be due and payable at the time the Second
Payment is made within the Second Cure Period.
1.6 If the First Payment, the Second Payment and the Third Payment are paid
as hereinbefore provided, the Lenders shall cause Escrow Agent to immediately
return to Borrower the following, which are collectively referred to as the
"Escrow Materials," (a) the Warrants, (b) the Windjammer Shares, (c) the
Conversion Shares, (d) the certificate representing the Xxxxx Stock (as defined
in the Security Agreement), together with the stock power, and (e) the Notes.
1.7 If the Borrower shall have paid the First Payment as hereinbefore
provided and failed to pay the Second Payment as hereinbefore provided, such
failure shall constitute a material breach and (a) the entire unpaid balance of
the Loan shall be accelerated and become immediately due and payable, (b) the
First Payment shall be forfeited by the Borrower, (c) within five (5) business
days of said breach the Release executed by the Borrower, Xxxxxx X. Xxxxx and
Xxxxxxx Xxxxxxx and the Release executed by Lenders shall be released from
escrow and delivered by the Escrow Agent to the Lenders, and (d) the Loan
Agreement shall be in full force and effect and the Lenders shall be entitled to
exercise all of their rights and remedies hereunder and under the Loan
Agreement.
1.8 If the First Payment and the Second Payment are paid as hereinbefore
provided and the Third Payment is not made when due, then a penalty in the
amount of Ten Thousand Dollars ($10,000.00) shall be added to the principal of
the Third Payment for each month, on a pro rata basis, that the Third Payment is
not paid in full for the period commencing on the date on which the Third
Payment is due and ending on three months from such date.
1.9 If the Borrower shall have failed to pay the Third Payment as
hereinbefore provided, such failure shall constitute a material breach and (a)
the entire unpaid balance of the Loan shall be accelerated and become
immediately due and payable, (b) the First Payment and the Second Payment shall
be forfeited by the Borrower, (c) within five (5) business days of said breach
the Escrow Materials, the Release executed by the Borrower, Xxxxxx X. Xxxxx and
Xxxxxxx Xxxxxxx and the Release executed by Lenders shall be released from
escrow and delivered by the Escrow Agent to the Lenders, and (d) the Loan
Agreement shall be in full force and effect and the Lenders shall be entitled to
exercise all of their rights and remedies hereunder and under the Loan
Agreement.
1.10 If the First Payment, the Second Payment and the Third Payment are
paid as hereinbefore provided, (a) all obligations of the Borrower with respect
to the Loan and the Loan Agreement will be fully satisfied and cancelled and (b)
within five (5) business days of said full repayment of the Loan (i) the Note
shall be marked cancelled and returned to the Borrower, (ii) the Release
executed by the Lenders and the Escrow Materials shall be released from escrow
and delivered by the Escrow Agent to the Borrower, and (iii) the Release
executed by the Borrower, Xxxxxx X. Xxxxx and Xxxxxxx Xxxxxxx shall be released
from escrow and delivered by the Escrow Agent to the Lenders.
2. Representations and Warranties of the Borrower. In order to induce the
Lenders to enter into this Settlement Agreement, the Borrower hereby represents
and warrants to, and covenants with, the Lenders as follows:
2.1 The Borrower has the full power and authority to enter into this
Settlement Agreement and to execute the Note and the Release and to otherwise
carry out its obligations hereunder and thereunder. The execution and delivery
of this Settlement Agreement, the Note and the Release by the Borrower has been
duly authorized by all necessary action on the part of the Borrower and any and
all other persons or entities required. Each of this Settlement Agreement, the
Note and the Release executed by the Borrower has been or will be duly executed
by the Borrower and when delivered in accordance with the terms hereof will
constitute the valid and legally binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms.
2.2 The execution, delivery and performance of this Settlement Agreement,
the Note and the Release by the Borrower does not and will not (i) be subject to
obtaining any of the consents referred to in Section 2.3, conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under any agreement to which the Borrower is a party, or
give to others any rights against the Lenders or (ii) result in a violation of
any law, rule, regulation, order, judgment, injunction, decree or other
restriction of any court or governmental authority to which the Borrower is
subject.
2.3 The Borrower is not required to obtain any consent, waiver,
authorization or order of, or make any filing or registration with, any court or
other federal, state, local or other governmental authority or other person or
entity in connection with the execution, delivery and performance by the
Borrower of this Settlement Agreement, the Note and the Release executed by the
Borrower.
3. Indemnity
3.1 (a) The Borrower shall, without limitation as to time, indemnify and
hold harmless the Lenders and their agents, affiliates, successors and assigns,
to the fullest extent permitted by applicable law, from and against any and all
losses, claims, damages, liabilities, costs (including, without limitation,
costs of preparation and attorneys' fees) and expenses (collectively, "Losses"),
as incurred, arising out of, or relating to, a breach or breaches of any
representation, warranty, covenant or agreement by the Borrower under this
Settlement Agreement, the Note and the Release executed by the Borrower.
(b) The Lenders shall, without limitation as to time, indemnify and hold
harmless the Borrower to the fullest extent permitted by application law, from
and against any and all Losses, as incurred, arising out of, or relating to, a
breach or breaches of any representation, warranty, covenant or agreement by the
Lenders under this Settlement Agreement and the Release executed by the Lenders.
3.2 If any action, claim, suit, investigation or proceeding (including,
without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or threatened (collectively, "Proceeding") shall
be brought or asserted against any person or entity entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party promptly shall notify
the person or entity from whom indemnity is sought (the "Indemnifying Party") in
writing, and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party and
the payment of all fees and expenses incurred in connection with defense
thereof; provided, that the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Settlement Agreement, except (and only) to the extent that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure
shall have proximately and materially adversely prejudiced the Indemnifying
Party.
An Indemnified Party shall have the right to employ separate counsel in any
such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party or
Parties unless: (1) the Indemnifying Party has agreed to pay such fees and
expenses; or (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impeded parties) include both such Indemnified Party
and the Indemnifying Party, and such Indemnified Party shall have been advised
by counsel that a conflict of interest is likely to exist if the same counsel
were to represent such Indemnified Party and the Indemnifying Party (in which
case, if such Indemnified Party notifies the Indemnifying Party in writing that
it elects to employ separate counsel at the expense of the Indemnifying Party,
the Indemnifying Party shall not have the right to assume the defense of the
claim against the Indemnified Party but will retain the right to control the
overall Proceedings out of which the claim arose and such counsel employed by
the Indemnified Party shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending Proceeding in respect of
which any Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party to which the Indemnified
Party is entitled hereunder (including reasonable fees and expenses to the
extent incurred in connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within ten (10) business days of written notice
thereof to the Indemnifying Party.
No right of indemnification under this Section 3 shall be available as to a
particular Indemnified Party if there is a non-appealable final judicial
determination that such Losses arise solely out of the negligence or bad faith
of such Indemnified Party in performing the obligations of such Indemnified
Party under this Agreement or a breach by such Indemnified Party of its
obligations under this Agreement.
3.3 If a claim for indemnification under this Section 3 is unavailable to
an Indemnified Party or is insufficient to hold such Indemnified Party harmless
for any Losses in respect of which this Section 3 would apply by its terms
(other than by reason of exceptions provided in this Section 3.3), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Party on the one hand and the Indemnified
Party on the other and the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions or omissions that resulted in
such Losses as well as any other relevant equitable considerations. The relative
fault of such Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether there was a judicial determination
that such Losses arise in part out of the negligence or bad faith of the
Indemnified Party in performing the obligations of such Indemnified Party under
this Agreement or the Indemnified Party's breach of its obligations under this
Agreement. The amount paid or payable by a party as a result of any Losses shall
be deemed to include any attorneys' or other fees or expenses incurred by such
party in connection with any Proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this Section was available to such party.
3.4 The indemnity and contribution agreements contained in this Section are
in addition to any obligation or liability that the Indemnifying Parties may
have to the Indemnified Parties.
4. Miscellaneous.
4.1 Binding Effect. All covenants and agreements in this Settlement
Agreement by or on behalf of any of the parties shall bind and inure to the
benefit of their respective successors and assigns. This Settlement Agreement
may not be assigned by the Borrower.
4.2 Validity. Whenever possible, each provision of this Settlement
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Settlement Agreement is held to be
invalid, illegal or unenforceable in any respect under applicable law, then such
invalidity, illegality or unenforceability shall not affect the other provisions
of this Settlement Agreement.
4.3 Counterparts. This Settlement Agreement may be executed in separate
counterparts and delivered by facsimile transmission, each of which when so
executed and delivered shall be deemed to be an original hereof, and all of
which when taken together shall constitute one and the same agreement.
4.4 Headings. Descriptive headings in this Settlement Agreement are
inserted for convenience of reference only and are not intended to be part of or
affect the meaning or interpretation of this Settlement Agreement.
4.5 Governing Law. The parties hereto acknowledge that the transactions
contemplated by this Settlement Agreement and the exhibits hereto bear a
reasonable relation to the state of New York. This Settlement Agreement shall be
enforced in accordance with, and all questions regarding the construction,
validity, interpretation and purpose of this Settlement Agreement shall be
governed by, the internal laws of the state of New York, without giving effect
to provisions thereof regarding conflict of laws. Any action to enforce the
terms of this Settlement Agreement or any of its exhibits shall be brought
exclusively in the state and/or federal courts situate in the county and state
of New York. Service of process in any action by any of the parties to enforce
the terms of this Settlement Agreement may be made by serving a copy of the
summons and complaint, in addition to any other relevant documents, by
commercial overnight courier to any of the other parties at their address set
forth in this Settlement Agreement.
4.6 Notices. Any notice provided for in this Settlement Agreement must be
in writing and must be either (a) hand delivered, (b) mailed by registered or
certified first class mail, postage prepaid with return receipt requested, (c)
sent by reputable overnight courier service for next business morning delivery,
or (d) sent by telecopy to the recipient at the address/telecopy number below
indicated:
If to Ocean: Ocean Strategic Holdings Ltd.
00 Xxxx Xxxxxx
Xx. Xxxxxx XX0 XXX Xxxxxx
Attn.:
Telephone:
Facsimile:
With a copy to: Xxxxxx Gottbetter & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn.: Xxxx X. Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Turbo: Turbo International Ltd.
Xxxxxxx Xxxxx
00 Xxxxxxx Xxxxxx
P.O. Box N-7755
Nassau, Bahamas
Attn.:
Telephone:
Facsimile:
With a copy to: Xxxxxx Xxxxxxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn.: Xxxx X. Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Borrower: The Xxxxx Partnership Inc.
000 Xxxx Xxx., Xxxxx 0000,
Xxx Xxxx, XX 00000
Attn.:
Telephone: 000-000-0000
Facsimile: 212-572-6499
With a copy to: Vanderkam & Xxxxxxx
000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn.: Xxxxx Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address/telecopy number or to the attention of such other person
as the recipient party shall have specified by prior written notice to the
sending party.
Any notice under this Settlement Agreement shall be deemed to have
been given (i) on the date such notice is hand delivered, (ii) three (3) days
after the date of mailing if mailed by certified or registered mail, (iii) on
the business day next following the day notice is sent via overnight courier
service, or (iv) as of the beginning of the next day if such notice is sent by
telecopy.
4.7 Entire Agreement. This Settlement Agreement and all exhibits
and schedules hereto embody the complete agreement and understanding between the
parties with respect to the subject matter hereof and thereof and supersedes and
preempts any prior understandings, agreements and/or representations by or
between the parties, written or oral, related to the subject matter hereof in
any way.
4.8 Interpretation. Notwithstanding any rule of law or custom to
the contrary, neither this Settlement Agreement nor any other agreement or
document collateral to or otherwise relating to this Settlement Agreement shall
be interpreted or construed against any party merely by reason of the fact that
such agreement or document was prepared by or at the direction of such party or
that such party caused this Settlement Agreement to be drafted.
[Signature page to Follow]
IN WITNESS WHEREOF, the parties hereto have duly executed this Settlement
Agreement as of the day and year first above written.
The Xxxxx Partnership Inc.
By: /s/ Xxx Xxxxx
-----------------------------------------
Name: Xxx Xxxxx
Title: Chief Executive Officer
Ocean Strategic Holdings Ltd.
By: /s/ Xx Xxxxx
-----------------------------------------
Name: Xx Xxxxx
Title:
Turbo International Ltd.
By:
-----------------------------------------
Name:
Title:
Xxxxxx, Gottbetter, Levenson, LLP as Escrow
Agent for purposes of Section 1
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Partner
Exhibit A
Default Notice
[LETTERHEAD OF XXXXXX XXXXXXXXXX & XXXXXXXX, LLP]
April 19, 2002
Via FedEx - 00.000.000.0000 Via Fed Ex - (000) 000-0000 Via Express Mail
--------------------------- --------------------------- ----------------
Xx. Xxxxxx X. Xxxxx Xx. Xxxxx Xxxx, Esq. Xx. Xxxxxx X. Xxxxx
The Xxxxx Partnership, Inc. Vanderkam & Xxxxxxx Xxxxxxx Financial Holdings, Ltd.
0 Xxxxx Xxxxxx 440 Louisiana, Suite 475 Cor. Xxxxxxxx St./Freetown Rd.,
Mayfair Xxxxxxx, Xxxxx 00000 0xx Xxxxx
Xxxxxx XXX 0XX Xxxxx Xxxx, Esq. X.X. Xxx 000
Xxxxxx Xxxxxxx Xxxxxx Xxxx, Xxxxxx
Via Express Mail Via Express Mail
Xxxxx Capital Management Xxxxx Windjammer Resorts and Spa
Limited (Bahamas) Ltd.
Craigmuir Xxxxxxxx Sovereign (Bahamas) Limited
P.O. Box 71 East & Xxxxxxx Sts. Xxxxx
Xxxx Xxxx X.X. Xxx X-0000
Xxxxxxx Nassau, Bahamas
British Virgin Islands
Dear Gentlemen:
This firm represents Ocean Strategic Holdings Ltd., a Guernsey corporation
with its administrative office at 00 Xxxx Xx., Xx. Xxxxxx XX0 XXX Xxxxxx
("Ocean"), and Turbo International Ltd., a corporation organized under the laws
of the Bahamas with its registered offices at Xxxxxxx House, 00 Xxxxxxx Xxxxxx,
X.X. Xxx X-0000, Nassau, Bahamas ("Turbo" and together with Ocean, the
"Lenders").
This letter serves as notice of default under the Loan Agreement, dated as
of March 15, 2002 (the "Loan Agreement"), by and among The Xxxxx Partnership
Inc., a Nevada corporation with an address at 0 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx
X0X 0XX, Xxxxxx Xxxxxxx (the "Borrower"), and the Lenders, and its exhibits. In
particular, and without limitation, the Borrower is in default of Section 9.1(d)
of the Loan Agreement in that it represented and warranted to the Lenders that
its total liabilities were $500,000.00 when in fact they were over $2,000,000,
as the Borrower disclosed in its Annual Report on Form 10-K for the fiscal year
ended December 31, 2001 as filed with the Securities and Exchange Commission on
April 10, 2002. Pursuant to Sections 5 and 9 of the Loan Agreement this
constitutes a material default.
As a result of this material default, the Lenders will be exercising all of
their rights and remedies under the Loan Agreement without further notice. This
includes, but is not limited to the Lenders' rights under Paragraph 4 of the
Pledge and Security Agreement dated as of March 15, 2002 among Xxxxxxx Financial
Holdings, Ltd. and the Lenders.
This letter is written without prejudice to any rights, claims, remedies or
defenses available to our clients, all of which are expressly reserved.
Very truly yours,
Xxxxxx Xxxxxxxxxx & Xxxxxxxx, LLP
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxxxx, Partner
cc: Xxxxxx Xxxxxxxx - Via Facsimile - 242.328.2935
Xxxxx Xxxxxx - Via Facsimile - 44.1.534.873.111
Exhibit B
Intentionally Left Blank
Exhibit C
Borrower Release
RELEASE
The undersigned (individually a "Releasor" and collectively, "Releasors")
are executing and delivering this Release to Ocean Strategic Holdings Ltd., a
BVI corporation with its administrative office at 00 Xxxx Xx., Xx. Xxxxxx XX0
XXX Xxxxxx ("Ocean"), and Turbo International Ltd., a corporation organized
under the laws of the Bahamas with its registered offices at Xxxxxxx House, 00
Xxxxxxx Xxxxxx, X.X. Xxx X-0000, Nassau, Bahamas ("Turbo" and together with
Ocean, the "Releasees") in connection with the Settlement Agreement dated as of
August 28, 2002 among The Xxxxx Partnership Inc., a Nevada corporation with an
address at 000 Xxxx Xxx., Xxxxx 0000, Xxx Xxxx, XX 00000 and the Releasees (the
"Settlement Agreement"). All defined terms used herein shall have the meanings
set forth in the Settlement Agreement unless otherwise defined herein. Releasors
hereby agree to release and do hereby release Releasees of, and from, any and
all manners of actions, causes of action, proceedings, suits, debts, dues, sums
of money, accounts, covenants, contracts, controversies, agreements, promises,
damages, judgments, execution claims and demands of whatever nature, in law or
in equity, direct or indirect, known or unknown, matured or not matured,
relating to or arising out of any agreements or understandings, oral or written,
against Releasees from the beginning of the world to the date hereof in
connection with the Loan and the Loan Agreement. Each Releasor expressly
covenants and warrants not to institute any action on any past, present and
future claims, demands, obligations, causes of action or rights which Releasors
now have or which may hereafter accrue that have been released hereby. Each
Releasor agrees and acknowledges that the aforesaid release and covenant not to
xxx includes, but is not limited to, a release of and covenant not to xxx
Releasees' principals, officers, directors, servants, employees, agents,
accountants and attorneys (collectively, "Agents"). This Release is made for the
benefit of Releasees and their Agents and all who succeed to their rights and
responsibilities such as their heirs, devisees, personal representatives,
successors and assigns.
Whenever the text hereof requires, the use of the singular shall include
the appropriate plural as the text of the within instrument may require and vice
versa. This release may not be changed orally. This release shall be governed by
and construed in accordance with the laws of the State of New York.
This Release is not being signed under any duress, threat, undue influence
and is being executed after adequate consultation with counsel of Releasors'
choosing.
IN WITNESS WHEREOF, the Releasors have executed this Release on the
_____ day of ____________, 2002.
The Xxxxx Partnership, Inc. /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
By:
--------------------------------------
Name: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Title: Xxxxxxx Xxxxxxx
Sworn to before me this _____
day of ___________, 2002
-------------------------------
Notary Public
Exhibit D
Lenders' Release
RELEASE
The undersigned (individually a "Releasor" and collectively
"Releasors") are executing and delivering this Release to The Xxxxx Partnership
Inc., a Nevada corporation with an address at 000 Xxxx Xxx., Xxxxx 0000, Xxx
Xxxx, XX 00000 ("Releasee") in connection with the Settlement Agreement dated as
of August 28, 2002 among the Releasors and the Releasee (the "Settlement
Agreement"). All defined terms used herein shall have the meanings set forth in
the Settlement Agreement unless otherwise defined herein. Releasors hereby agree
to release and do hereby release Releasee of, and from, any and all manners of
actions, causes of action, proceedings, suits, debts, dues, sums of money,
accounts, covenants, contracts, controversies, agreements, promises, damages,
judgments, execution claims and demands of whatever nature, in law or in equity,
direct or indirect, known or unknown, matured or not matured, relating to or
arising out of any agreements or understandings, oral or written, against
Releasee from the beginning of the world to the date hereof in connection with
the Loan and the Loan Agreement. Each Releasor expressly covenants and warrants
not to institute any action on any past, present and future claims, demands,
obligations, causes of action or rights which Releasors now have or which may
hereafter accrue that have been released hereby. Each Releasor agrees and
acknowledges that the aforesaid release and covenant not to xxx includes, but is
not limited to, a release of and covenant not to xxx Releasee's principals,
officers, directors, servants, employees, agents, accountants and attorneys
(collectively, "Agents"). This Release is made for the benefit of Releasee and
its Agents and all who succeed to their rights and responsibilities such as
their heirs, devisees, personal representatives, successors and assigns.
Whenever the text hereof requires, the use of the singular shall
include the appropriate plural as the text of the within instrument may require
and vice versa. This release may not be changed orally. This release shall be
governed by and construed in accordance with the laws of the State of New York.
This Release is not being signed under any duress, threat, undue
influence and is being executed after adequate consultation with counsel of
Releasor's choosing.
IN WITNESS WHEREOF, the Releasor has executed this Release on the _____
day of ____________, 2002.
Turbo International Ltd. Ocean Strategic Holdings Ltd.
By: By: /s/ Xx Xxxxx
------------------------------ ----------------------------
Name: Name: Xx Xxxxx
Title: Title:
Sworn to before me this ___
day of ___________, 2002
Notary Public
