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SETTLEMENT AGREEMENT AND MUTUAL
RELEASE
THIS
SETTLEMENT AGREEMENT AND MUTUAL RELEASE ("Agreement") is
entered into
as of the 30th day of August, 2007, by and
between ALPHA ENERGY (
" Alpha"),
CLEAR
SKIES GROUP, INC. ("Clear Skies"), and QUIXOTIC SYSTEMS, INC.
("Quixotic"). For the purposes of this Agreement, the term "Alpha"
shall be defined to include Alpha Energy, Alpha Technologies
Services, Inc. as well
as
all other Alpha Group entities. All of the above referenced
entities and individuals shall be referred to collectively as the
"Parties."
RECITALS
A.
Alpha
has commenced a lawsuit against Quixotic titled
Alpha
Energy, et al. v.
Quixotic , Systems,
Inc., United
States District Court for the Western District of Washington
Case
No.
2:07-CV-01130 MJB (the "Lawsuit"), which is presently pending.
I n
the
Lawsuit, Alpha
has asserted claims for breach of contract and unjust enrichment in
relation to the
failure to
pay for certain goods Quixotic purchased from
Alpha.
With limited exception, at the direction of
Quixotic,
these goods
were
shipped to Clear Skies.
B.
In
the interest of avoiding the expense, uncertainty and
delay
of further
litigation,
the
Parties have agreed to compromise and settle the
Lawsuit
and
all claims raised therein on the terms and conditions set
forth below. The purpose of this Agreement is
to
achieve
a full and complete settlement and compromise of all claims
asserted in the Lawsuit.
TERMS
AND CONDITIONS
1.
Quixotic
and Clear Skies collectively shall pay Alpha, or its assign,
the total sum
of Two Hundred Six Thousand Seven Hundred and Seventy Eight
and 00/100 U.S. Dollars ($206,778.00) (the "Settlement
Amount"). Quixotic and Clear
Skies
are jointly and severally liable
for the entire Settlement Amount- In the event of the
insolvency, bankruptcy, receivership, or any other
reorganization of either Clear Skies or Quixotic, the other
entity will
remain
liable for the remaining Settlement Amount. Payments of the
Settlement Amount shall be made in
accordance
with the following payment schedule.
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(a)
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Seventy-Five
Thousand Dollars ($75,000.00) to be paid within 72 hours of the
execution of this Agreement;
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(b) |
Beginning
on September 15, 2007, Quixotic and Clear Skies shall pay to Alpha
the sum of Twenty—Five Thousand Dollars ($25,000) each month
for five (5)
consecutive
months. The final
payment of Six
Thousand Seven Hundred Seventy Eight Dollars
($6,778.00) shall be made in the sixth consecutive month. Each of
these payments must be wired to Alpha pursuant to the terms
specified in section (c) below no later than the 15
th day
of each month in which the payment is due;
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(c) |
In
the absence of farther written notice by Alpha or its assignee,
payments shall be made by wire transfer to the
following:
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ALPHA
ENERGY
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Beneficiary
Address
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Account
No:
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ABA
Routing No:
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Swift
Number
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Bank
and Address:
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2.
Concurrent
with the execution of this Agreement, Quixotic and Clear Skies
will execute and deliver to counsel for Alpha the Confession
of Judgment attached to this Agreement as
Exhibit A. In
the event of a default by Quixotic and Clear Skies in the timely
payment of any payment due in a
accordance with
paragraph 1, if such default is not cured within three (3) business
days after notice of said default, then Alpha shall be entitled to
file the Confession of Judgment for entry. Notice of
default
to
Quixotic and Clear Skies shall be deemed given upon
the e-wiling
of such notice
to Richard@quixotic-systems.com
on behalf of Quixotic and to rparker@clearskiesgroup.com on behalf
of Clear Skies. In such event, all payments previously received by
Alpha from Quixotic and Clear Skies pursuant to paragraph 1 of this
Agreement shall be credited against the principal amount of the
Confession of Judgment in partial satisfaction
thereof.
Alpha
shall hold the Confession of Judgment in trust until Quixotic
and Clear Skies have paid the full settlement amount of
$206,778.00, as described in Paragraph 1, at which time Alpha
shall destroy
the
judgment or, at
Quixote's
or Clear Skies' option,
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