This forbearance and settlement agreement and mutual general release is entered into this day, by and between LEGION FOR THE SURVIVAL OF FREEDOM, INC. (hereinafter “Plaintiff") and WILLIS CARTO and ELISABETH CARTO, LEWIS FURR and LAVONNE FURR, and LIBERTY LOBBY (hereinafter “Defendants").
Whereas, Plaintiff filed a complaint and obtained a judgment in the Superior Court of California, County of San Diego, North County Branch, Case Number N64584 against Defendants on November 21, 1996, and whereas Defendants had filed Bankruptcy actions listing all of their assets and liabilities in the United States Bankruptcy Court, and whereas Plaintiff and Defendants then commenced litigation on the dischargeability of Plaintiff’s claims (hereinafter “Subject Lawsuits");
Whereas, the parties hereto have reached a complete and final forbearance and settlement, and now wish to compromise all their rights and claims, including complaints and potential cross-complaints, and to sever, release, discharge and terminate any and all rights, liabilities and relationships, known or unknown, asserted or un-asserted, between them that arise out of the above lawsuit;
This agreement is executed in consideration of the following:
Upon completion of the settlement terms, the parties, for themselves, their officers, directors, employees, members, heirs, executors, administrators and assigns, fully and forever release, acquit and discharge, with prejudice, each other, their employees, agents, attorneys, successors and assigns, and each of them, of and from any and all claims, demands, actions or causes of action which the parties, or any of them, may or might have by reason of any damages, general or special, or any injury or injuries whatsoever, sustained by the parties, or any of them, and occasioned directly or indirectly by the acts alleged in the Subject Lawsuits. Plaintiff further agrees to cancel the pending sale, but not release liens, on Defendants property upon completion of the above.
This settlement is intended as a full and complete release and discharge of any and all claims that the parties, or any of them, may or might have or had against each other by reason of the happening of such incidents. In accepting the sums and considerations set forth above, the parties do so in full settlement, release and discharge of any and all such claims and intend to and do hereby release and discharge all said persons, firms, associations, corporations or employees or agents of the same, of and from any and all liability of any nature whatsoever for all damages, general or special, or injury to the parties, or any of them, specifically including, but not limited to, all expenses to which the parties, or any of them, may have been put, any and all personal injuries, financial injuries, emotional distress and attorney’s fees, and all consequential damage to the parties, or any of them, on account of said conduct, as well as for all consequences, effects and results of such conduct and resulting damages, general or special, for injury to the parties, or any of them, whether the same or any circumstances pertaining thereto are now known or unknown to the parties, or any of them, or to anyone else, expected or unexpected by the parties, or any of them, or anyone else, have already appeared or developed or may now be latent or may in the future appear or develop or become known to the parties, or any of them, or to anyone else.
This mutual release does not apply to the parties ability to enforce the terms of this Forbearance and Settlement Agreement and Mutual General Release and Stipulated Judgment against a breaching party, nor does it apply to recovery of the Jack Graham Trust monies, the pending sanction motion against Mr. Joe A. Izen, Jr., Plaintiff’s claims against Judgment Debtor Henry Fischer, Plaintiff’s claims against Patrick Foetisch, or to future business dealings between the parties hereto, if any.
The parties hereto understand and agree that this Mutual General Release extends to all claims of every nature and kind whatsoever arising from the aforementioned action and facts, unless expressly excluded, and, in that regard, acknowledge that they have considered the provisions of Section 1542 of the California Civil Code which reads 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.”
The parties hereto hereby knowingly and voluntarily waive any and all rights they may have under Section 1542. The parties hereto fully understand that neither they nor any of their successors or assigns can hereinafter make any further claim or seek any further recovery from the parties or persons being released herein by reason of the facts and circumstances giving rise to the claims alleged in the aforementioned lawsuit.
The parties hereto agree forever to refrain and forbear from commencing, instituting or participating, either as a named or unnamed party, in any lawsuit, action or other proceeding against each other, whether brought by a party hereto, or by others on their behalf, based on or arising out of the above matters.
For the purpose of assuring each of the parties to this agreement that they shall not suffer or incur any losses, expenses, costs, liabilities or damages arising out of the assertion of any claims by any third person who claims by, through or under any such party to this agreement, or any claims, demands, causes of action, controversies, obligations or liabilities, intended to be released and forever discharged herein, the parties hereto represent and warrant that he, they or it is presently the sole and exclusive owner thereof, that no other party has any right, title or interest whatsoever in said causes of action or lien related to said causes of action, and other matters referred to herein, and that other than specifically set forth herein, there has been no equitable, implied or contractual assignment, transfer, conveyance or other disposition by him, them, or it of any said causes of action and other matters referred to herein. Each party to this agreement acknowledges that every other party to this agreement has relied and is relying on such representations and warranties by each and every party in entering into this agreement. Each party to this agreement agrees to defend and save, hold harmless and fully indemnify any other party from and against loss, lien, expense, cost, liability or damage incurred by any reason of the assertion by anyone claiming by, through or under such party of such claim, demand or cause of action which was, or could have been, alleged by such party in this action, or separate action, or which is released pursuant to the provisions herein contained.
The parties hereto hereby agree to execute such other documents and to take such other action as may reasonably be necessary to further the purposes of this agreement, including, if necessary, preparing and filing trust deeds, preparing and filing documents to confirm or enforce this agreement in any dissolution, probate or other legal proceedings, including any necessary declarations for determination of good faith settlements.
This agreement shall be governed by, construed and enforced in accordance with the laws of the State of California.
The parties hereto agree that this release is binding upon their heirs, successors, assigns, and legal representatives and that it inures to the benefit of the assigns, successors and legal representatives of each of the parties released herein.
In the event that any condition or covenant herein contained is deemed to be invalid or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this agreement and shall in no way affect any other covenant or condition herein contained. If such a condition, covenant or other provision shall be deemed invalid due to scope or breadth, then such provisions shall be invalid to the extent and scope permitted by law.
No breach of any provision herein can be waived unless in writing. Waiver of any one breach shall not be deemed to be a waiver of any other breach of the same or any other provision hereof. This agreement may be amended only by another written agreement executed by the parties in interest at the time of the modification.
Any individual signing this agreement on behalf of another individual, a corporation or partnership, represents or warrants that he or she has full authority to do so.
Whenever required by the content hereof, the singular shall be deemed to include the plural and the plural shall be deemed to include the singular, and the masculine, feminine and neutral genders shall be deemed to include the others.
This agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and fully supersedes any and all prior understandings, representations, warranties and agreements between the parties hereto, or any of them, pertaining to the subject matter hereof, and may be modified only by a written agreement signed by all of the parties hereto.
The parties hereto, and each of them, represent and declare that in executing this agreement, they rely solely upon their own judgment, belief and knowledge, and the advice and recommendations of their own independently-selected counsel. Further, the parties hereto, and each of them, represent that they have had sufficient opportunity to consult with independent counsel about the terms and conditions of this agreement prior to executing this agreement.
The parties hereto, and each of them, further represent and declare that they have carefully read this agreement and know the contents thereof and that they signed the same freely and voluntarily.
This agreement may be executed in counterparts, each of which shall be an original but all of which shall constitute one and the same instrument.
If, for any reason, the defendant files for bankruptcy protection and if any of the settlement monies are required to be returned or the settlement terms are not yet completed, including but not limited to returning any portion of the settlement monies as a preference, fraudulent conveyance or as an other recoverable transfer under Title 11 of the United States Code (11 U.S.C. §§101-1330 of The Bankruptcy Code), all provisions of this settlement agreement providing that the amount specified in the agreement shall be accepted as full satisfaction, shall be deemed null and void, and the plaintiff shall be entitled to assert all of its claims against the debtor and the debtor’s estate for all damages and claims, including but not limited to any non-dischargeable claims in the bankruptcy, in the full amount sought with interest, costs and attorney fees, as provided by law, from the date of the agreement.
The parties, and each of them, agree that, as between the parties, each of them shall be responsible for paying his, her or its own costs and attorney’s fees. In addition, the parties, and each of them, agree that if they, or any of them, hereafter file a lawsuit or assert a defense, claim, counter-claim or cross-claim, arising out of, based upon, or relating to the matters covered by this release or any provision, term or covenant contained in this release, the prevailing party in such suit or action shall be entitled to receive, in addition to compensation for any other damages sustained, any and all reasonable attorney’s fees and costs incurred by that party in litigating, defending or otherwise responding to such suit or action.
San Diego County shall be the proper venue to enforce the provisions of this settlement agreement, the provisions of the stipulation concerning the payment of funds, and the stipulation concerning the enforceability of this agreement.
AGREED TO BY:
Legion for the Survival of Freedom
DATED: 8/2/99 By: Greg Raven, President
DATED: 7/17/99 By:Willis Carto, an Individual
DATED: 7/21/99 By: Elisabeth Carto, an Individual
DATED: 7/26/99 By: Lewis Furr, an Individual
DATED: 7/26/99 By: Lavonne Furr, an Individual
DATED: 7/29/99 By: Vince Ryan, Chairman
APPROVED AS TO FORM:
SAMPSON & ASSOCIATES
DATED: 8/2/99 By: Bryan D. Sampson, Esq., Attorney for Plaintiff
J. BRIAN URTNOWSKI & ASSOCIATES
DATED: 7/20/99, 7/27/99, 7/28/99 By: J. Brian Urtnowski, Esq., Attorney for Defendants