HomeMy WebLinkAbout952077.tiffRESOLUTION
RE: APPROVE SETTLEMENT AND RELEASE FOR STEVEN D. WYMER QUALIFIED
SETTLEMENT FUND AND AUTHORIZE CHAIRMAN TO SIGN
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Settlement and Release for the Steven D.
Wymer Qualified Settlement Fund, with terms and conditions being as stated in said settlement and
release, and
WHEREAS, after review, the Board deems it advisable to approve said settlement and
release, a copy of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Settlement and Release for the Steven D. Wymer Qualified Settlement
Fund be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chairman be, and hereby is, authorized
to sign said settlement and release.
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 4th day of October, A.D., 1995.
cuet
i'jty Clerk to the Board
ecA
Deputy Cle
APP
S TO FORM:
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
FXCI ISFII nATF r)F SIfNINf (AYF
Dale K. Hall, Chairman
arbara J. Kirkmeyer! Pro-Tem
Georg e. Baxter
Constance L. Harbert
ebsfer b1
.-'1
/=/1 iyoivo
952077
CA0007
rpm yn„ g
?:rirlT{ lkfi
SETTLEMENT AND RELEASE
The undersigned acknowledges and agrees that upon receipt by
Wells Fargo Bank, N.A., as Liquidating Agent for the Steven D. Wymer
Qualified Settlement Fund, of good funds, by cashier's check or wire
transfer, in the amount of 215,000.00 from Donald C. Andrews
("Andrews"), the Liquidating Agent is authorized: (1) to mark "Paid -in -
Full across the face of the original promissory note dated December 3,
1991, in the face amount of $200,000.00, made by Donald C. Andrews
payable to the order of Steven D. Wymer("Andrews Note") and to mark
"Paid -in -Full across the face of the original promissory note dated
December 3, 1991, in the face amount of $200,000.00, made by Wazee
Street Partners, Ltd., a Colorado limited partnership and The Wazz
Corporation, a Colorado corporation, payable to the order of Steven D.
Wymer ("Wazee Note") (the Andrews Note and the Wazee Note are
collectively referred to as the "Andrews/Wazee Obligations"); (2) to
mark "Cancelled" on the face of the Conditional Stock Pledge,
Assignment of Limited Partnership Interest and Security Agreement dated
December 3, 1991, by and between Donald C. Andrews as Debtor, Wazee
Street Partners, Ltd., as Partnership, and Steven D. Wymer, as Secured
Party, securing the Andrews Note, and to mark "Cancelled" on the face
of the Conditional Stock Pledge, Assignment of Limited Partnership
Interest and Security Agreement dated December 3, 1991, by and between
Wazee Street Partners, Ltd., and The Wazz Corporation, as Debtors and
Donald C. Andrews, an individual, and Steven D. Wymer, as Secured
Party, securing the Wazee Note (both security agreements collectively
are referred to as the "Security Agreements"); and (3) to deliver the
original Andrews/Wazee Obligations and Security Agreements to Andrews
or his designated representative.
The undersigned further agrees that this authorization shall
act as an irrevocable waiver, covenant not to sue, release and promise
to forever discharge any right the undersigned, and any owner,
shareholder, partner, agent, assign, director, officer, beneficiary,
attorney, subsidiary and affiliate may have to take any action as a
creditor or otherwise against that certain property located at 1617-21
Wazee Street, Denver, Colorado (Lots 21 and 22, Block 15, East Denver,
City and County and Denver, State of Colorado), or against Donald C.
Andrews, Linda Andrews, Wazee Street Partners, Ltd., a Colorado limited
partnership, The Wazz Corporation, a Colorado corporation, Erik K.
Foster, the Erik K. Foster P.C., or Moye, Giles, O'Keefe, Vermeire &
Gorrell, or any of their officers, directors, partners, shareholders,
employees or attorneys, (collectively, the "Released Parties") for any
reason whatsoever relating to the Andrews/Wazee Obligations and
Security Agreements, including but not limited to any claim for any
alleged fraudulent conveyance (collectively the "Released Claims").
The undersigned further acknowledges that there is a risk
that subsequent to the execution of this Settlement and Release, the
undersigned will discover claims before unknown or unanticipated at the
time this Settlement and Release was executed which are Released Claims
and which, if they were known by the undersigned on the date this
Settlement and Release was executed, may have materially affected the
undersigned's decision to execute this Settlement and Release. The
952977
undersigned expressly acknowledges and agrees by reason of this
Settlement and Release the undersigned is assuming the risk of such
unknown claims and agrees that the release of the Released Parties and
Released Claims identified herein applies to such unknown claims. In
connection therewith, the undersigned expressly waives the benefit of
Section 1542 of the California Civil Code, which section reads as
follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exi-st in his favor at
the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
This Settlement and Release shall be construed in accordance
with and all disputes hereunder shall be governed by the laws of the
State of California.
Dated: OCTOBER 4. 1995
/
71803.1
Weld County, CO
By:
10/04/95
Typed Name: DALE K HALL
CHAIRMAN, WELD COUNTY BOARD
Title: OF COMMISSIONERS
952977
HARKINS & MICIIELMAN
ATTORNEYS AT LAW
2301 DUPONT DRIVE, SUITE 41O
IRVINR, CALIFORNIA 92716
(7141553-1800
FACSIMILE (714) 553-1680
September 28, 1995
Lee D. Morrison
Assistant County Attorney
Weld County Colorado
915 10th Street
Greeley CO 80631
Re: Wazee
Dear Lee:
Enclosed is correspondence relative to the settlement on Wazee. The cover letter is fairly self
explanatory. Please have the Settlement and Release signed and forward it to Riordan & McKinzie.
If you have any questions give me a call. Please send a copy for our files.
Best regards,
Daniel M. Harkins
September 28, 1995
952077
ORANGE COUNTY OFFICE
695 TOWN CENTER DRIVE
SUITE 1500
COSTA MESA. CALIFORNIA 92626
(714) 433 -tan)
FAX (714) 549-3244
L. ANDREW GIFFORD
DIRECT DIAL
(2131 229-8417
RIORDAN 8c McKINZIE
A PROFESSIONAL LAW CORPORATION
CALIFORNIA PLAZA
300 SOUTH GRAND AVENUE
TWENTY-NINTH FLOOR
LOS ANGELES. CALIFORNIA 90071
TELEPHONE (213) 629-4824
FAX (213) 229-8550
September 22, 1995
Weld County, CO
Daniel Harkins, Esq.
Harkins & Michelman
2301 Dupont Drive, Suite 410
Irvine, CA 92715
1 ZFCFTL ED
SEP 2 5 1995
BY:
VTLUE OCI EC_E
5743 CORSA AVENUE. SUITE 116
WESTLAKE VILLAGE. CA 91362
(818) 706-1800 (805) 496-4688
FAX (818) 706-2956
RICHARD J. RIORDAN
(RETIRED)
FILE NO.
24-125-007
Re: Donald C. Andrews/Wazee Street Partners
Dear Wymer Qualified Settlement Fund Participant:
In my letter to you dated September 7, 1995, I forwarded
to you on behalf of our client Wells Fargo Bank, N.A.., the
Liquidating Agent of the Steven D. Wymer Qualified Settlement Fund
("Fund"), the offer from Donald C. Andrews ("Andrews") to pay the
Fund $200,000.00 in full satisfaction of any liability that
Andrews, the Wazz Corporation ("Wazz"), or Wazee Street Partners,
Ltd. ("Wazee") may have regarding two promissory notes each in the
face amount of $200,000.00, that are made payable to Stephen D.
Wymer ("Wymer"). That letter requested that you respond in writing
to the undersigned and indicate what action you requested the
Liquidating Agent to take with respect to Andrews's offer.
The initial response of the Federal Deposit Insurance
Corporation ("FDIC"), which holds a 46.2238% interest in the Fund,
was to reject the Andrews offer. However, subsequent negotiations
between Andrews and the FDIC resulted in Andrews increasing his
settlement offer to $215,000.00, which the FDIC has accepted. In
addition to the FDIC, I have received written or oral replies from
the remaining beneficiaries of the Fund stating their wish that the
Liquidating Agent accept the initial Andrews offer of $200,000.00
or the revised Andrews offer of $215,000.00.
Erik Foster, Andrews's attorney, has requested that each
of the beneficiaries of the Fund, and the Liquidating Agent, sign
the enclosed Settlement and Release, which shall be delivered to
Andrews or his designated representative, along with the original
promissory notes and security agreements when the Liquidating Agent
receives payment of good funds in the amount of $215,000.00 from
952077
RIORDAN & McKINZIE
A PROFESSIONAL LAW CORPORATION
Wymer Qualified Settlement Fund Participant
September 22, 1995
Page 2
Andrews by cashier's check or wire transfer. So as to minimize
delay and legal expenses to the Fund and to the beneficiaries of
the Fund, at my suggestion Mr. Foster drafted the enclosed
Settlement and Release in as simple a form that he believed would
provide the appropriate protection for his client. For example,
you will note that the Settlement and Release contains no
indemnifications, and only releases against the released parties
relating to the Andrews/Wazee Obligations and Security Agreements.
I made some modifications to the Settlement and Release to make it
comply with California law since the administration of the Fund is
in California.
I ask each of you to sign and date the original of the
enclosed Settlement and Release and return the original to me for
delivery to Andrews or his representative, along with the original
promissory notes and the security agreements, upon the Liquidating
Agent's receipt of $215,000.00 from Andrews. The payment from
Andrews will be deposited to the Fund's general account and shall
be distributed, forthwith, to the beneficiaries in their
proportionate interest.
The hearing scheduled for September 18, 1995, at
10:00 a.m. on the Liquidating Agent's Memorandum of Points and
Authorities in Support of Motion for Disbursement and Report for
the Period from January 1, 1995 through June 30, 1995 and Request
for Orders was continued by the court, at my request, to October 2,
1995, at 10:00 a.m. At the continued hearing on October 2, 1995,
I will advise the judge of the beneficiaries' acceptances of the
Andrews settlement and request that the judge authorize the
Liquidating Agent to mark the promissory notes "paid in full," mark
the security agreements "cancelled," and deliver the original
promissory notes and security agreements, along with such other
documents as are mutually acceptable to Andrews, the Liquidating
Agent, and the beneficiaries of the Fund upon payment of
$215,000.00 from Andrews. If the judge is agreeable, I will submit
a new proposed order requesting all of the relief of the prior
proposed order, except that the authorization for the settlement of
the promissory notes will be substituted in place of the requested
authorization by the Liquidating Agent to assign the promissory
notes in proportionate interests to the beneficiaries of the Fund.
This procedure, if acceptable to the judge, will avoid the need for
a further continuance of the hearing, immediately give the
Liquidating Agent the order it desires authorizing the Liquidating
Agent to accept the Andrews settlement and to deliver the
promissory notes and security agreements, all without requiring the
952077
RIORDAN 8c McKINZIE
A PROFESSIONAL LAW CORPORATION
Wymer Qualified Settlement Fund Participant
September 22, 1995
Page 3
Liquidating Agent to formally supplement and amend
petition. If you have any objections to this procedure
me know immediately.
I am informed by Erik Foster that funds for
payment will soon be available. I, therefore, urge you
sign and return the enclosed Settlement and Release.
questions, please contact me.
Very t
ours,
L. Andr-w Gifford
of RIORDAN & MCKINZIE
its pending
, please let
the Andrews
to promptly
If you have
LAG:mr
Enclosure
cc: Connie M. Lopez
952077
Hello