ASSET PURCHASE
AGREEMENT).
9.
EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT THIS SETTLEMENT
AGREEMENT INVOLVES A COMPROMISE SETTLEMENT OF CERTAIN CLAIMS AND DISPUTES
BETWEEN THE PARTIES AND THAT THE AGREEMENTS, COVENANTS, PROVISIONS, TERMS AND
CONDITIONS IN THIS SETTLEMENT AGREEMENT SHALL NOT CONSTITUTE OR BE DEEMED TO BE
AN ADMISSION OF ANY LIABILITY, FAULT, OR RESPONSIBILITY WHATSOEVER ON THE PART
OF ANY PARTY HERETO.
THIS SETTLEMENT AGREEMENT SHALL NOT BE ADMISSIBLE AS
EVIDENCE IN ANY ACTION EXCEPT AN ACTION TO INTERPRET OR ENFORCE THIS SETTLEMENT
AGREEMENT, INCLUDING ANY AMENDMENTS AND MODIFICATIONS THERETO.
10.
EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT THIS SETTLEMENT
AGREEMENT IS A COMPLETE COMPROMISE OF MATTERS INVOLVING DISPUTED ISSUES OF LAW
AND FACT AND FULLY ASSUMES THE RISK THAT THE INVESTIGATION CONDUCTED, IF ANY,
RELATING TO THE CLAIMS RELEASED PURSUANT TO THIS SETTLEMENT AGREEMENT, MAY BE
INADEQUATE AND THAT THE FACTS WITH RESPECT TO WHICH THIS SETTLEMENT AGREEMENT IS
EXECUTED MAY HEREAFTER BY FOUND TO BE DIFFERENT FROM THE
4
FACTS THAT EACH PARTY NOW BELIEVES TO BE TRUE.
EACH PARTY ASSUMES THE RISK OF
SUCH POSSIBLE DIFFERENCES OF FACTS AND HEREBY AGREES THAT THIS SETTLEMENT
AGREEMENT SHALL REMAIN IN EFFECT, NOTWITHSTANDING SUCH DIFFERENCES OF FACT.
11.
THE PARTIES HERETO REPRESENT AND WARRANT TO THE OTHER THAT (I)
THAT THEY HAVE ALL REQUISITE POWER AND AUTHORITY TO ENTER INTO AND EXECUTE THIS
SETTLEMENT AGREEMENT AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY AND
(II) THIS SETTLEMENT AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED
BY SUCH PARTY AND CONSTITUTES THE LEGAL AND VALID OBLIGATION OF EACH SUCH PARTY,
ENFORCEABLE AGAINST SUCH PARTY IN ACCORDANCE WITH ITS TERMS.
EACH OF REAL MEX
AND JW CHILDS REPRESENTS AND WARRANTS THAT SUCH PARTY IS THE OWNER OF ITS
RESPECTIVE RELEASED CLAIMS AND HAS NOT ASSIGNED ANY INTEREST IN THEM.
EACH OF
REAL MEX AND JW CHILDS SHALL INDEMNIFY AND HOLD HARMLESS THE OTHER WITH RESPECT
TO ANY ACTION BROUGHT BY ANY ALLEGED ASSIGNEE OF THEIR RESPECTIVE INTERESTS IN
THE RELEASED CLAIMS.
12.
IT IS THE INTENTION OF REAL MEX AND JW CHILDS, AND EACH OF THEM,
IN EXECUTING THIS SETTLEMENT AGREEMENT, THAT THIS INSTRUMENT SHALL BE EFFECTIVE
AS A FULL AND FINAL ACCORD AND SATISFACTION, AND A GENERAL RELEASE BY EACH SUCH
PARTY OF EACH AND EVERY RELEASED MATTER.
IN FURTHERANCE OF THIS INTENTION, REAL
MEX AND JW CHILDS, AND EACH OF THEM, FOR THEMSELVES AND THEIR AGENTS, SUCCESSORS
AND ASSIGNS, AND EACH OF THEM, EXPRESSLY WAIVE ANY AND ALL RIGHTS UNDER SECTION
1542 OF THE CALIFORNIA CIVIL CODE (OR ANY OTHER SIMILAR LAW OR REGULATION) WITH
RESPECT TO THE RELEASED MATTERS, WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
13.
THIS SETTLEMENT AGREEMENT CONSTITUTES, EMBODIES AND CONTAINS THE
ENTIRE AGREEMENT OF THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF, AND SUPERSEDES ALL