Exhibit 10.10
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE OF ANY AND ALL CLAIMS
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ANY AND ALL CLAIMS,
hereinafter referred to as the "Agreement", is made, executed, delivered, and
entered into by XXXXXXX INVESTMENT CORPORATION, a South Carolina corporation
hereinafter referred to as "Xxxxxxx"; and FIRSTPLUS FINANCIAL GROUP, INC., a
Nevada corporation hereinafter referred to as "FirstPlus".
WITNESSETH
WHEREAS, on January 19, 1999 the parties hereto and FirstPlus Consumer
Finance, Inc. ("FPCF"), a Delaware corporation controlled by FirstPlus, entered
into a contract (the "Purchase Agreement") pursuant to which Xxxxxxx agreed to
buy from FPCF, and FPCF agreed to sell to Xxxxxxx, substantially all of the
assets of FPCF; and
WHEREAS, on February 1, 1999 the parties to the Purchase Agreement
consummated all of the transactions contemplated therein; and
WHEREAS, disputes subsequently arose between the parties to the
Purchase Agreement which were arbitrated on October 4, 2000 in Charlotte, NC
under the rules of the American Arbitration Association in a manner consistent
with terms of the Purchase Agreement resulting in an aware (the "Award") in
favor of Xxxxxxx in the amount of $515,491.15; and
WHEREAS, on December 11, 2000 Xxxxxxx caused to be filed a related
Motion and Application to Confirm Arbitration Award in the US District Court for
the Western District of North Carolina giving rise to Case No. 3:00 CV 624-V
(the "Civil Action"); and
WHEREAS, on April 16, 2001 the parties executed a Letter of Interest
pursuant to which the parties agreed to explore a good faith settlement of the
issues giving rise to the Award and the Civil Action; and
WHEREAS, on or about April 7, 2000 FirstPlus Financial, Inc. (the
"Bankruptcy"), a subsidiary of FirstPlus, filed a Modified Third Amended Plan of
Reorganization (the "Plan of Reorganization") in Case No. 99-31869-HCA-11 in the
US Bankruptcy Court for the Northern District of Texas - Dallas Division (the
"Bankruptcy Court"); and
WHEREAS, under the Plan of Reorganization FirstPlus has the right to
certain "Residual Assets" of Bankrupt to the extent they are realized by the
Bankrupt which FirstPlus will receive, if at all, over a period of years; and
WHEREAS, the parties hereto are willing to settle all matters hereto
arising between them on the terms and conditions herein contained.
NOW THEREFORE, for and in consideration of the mutual covenants and
conditions contained herein, and for other good and valuable consideration, the
parties heretofore agree as follows:
I. CONSIDERATION TO XXXXXXX
1.1 Value of Residual Assets. The parties agree that the value, if any,
of the Residual Assets is speculative since it is not now known whether
FirstPlus, or Xxxxxxx as a result hereof, will ever derive any value out of its
rights with respect to said Residual Assets. Therefore, the parties hereby agree
that each dollar of Residual Assets realized by FirstPlus shall have a value of
$.50 for the purposes of this Agreement.
1.2 Total Consideration due Xxxxxxx. In consideration for Xxxxxxx'x
satisfaction of its obligations to FirstPlus hereunder, FirstPlus agrees to pay
Xxxxxxx a sum not exceeding $515,500 as follows:
(a) Current Cash Payment. Contemporaneously herewith, FirstPlus
shall pay Xxxxxxx, in US legal tender by wire transfer, the
sum, of FIFTY THOUSAND AND 00/100 DOLLARS; and
(b) Assignment. FirstPlus hereby assigns, transfers and conveys
to Xxxxxxx 1.86% of each dollar of Residual Assets to which
FirstPlus becomes entitled to receive, if any, under the
terms of the Plan of Reorganization until Xxxxxxx has
received the sum of $931,00 in cash in addition to the
Current Cash Payment due Xxxxxxx under the terms of
subsection 1.2(a) above. All such sums due Xxxxxxx under
this subsection 1.2(b) shall be due and payable by FirstPlus
to Xxxxxxx within 15 days after the calendar quarter in
which FirstPlus has the right to such sums under the Plan of
Reorganization. Xxxxxxx shall only be entitled to receive
sums from FirstPlus under this subparagraph to the extent
FirstPlus is entitled to receive Residual Assets under the
terms of the Plan of Reorganization. Xxxxxxx assumes no
liability whatsoever of FirstPlus, including without
limitation any liability relating to or derived from the
Residual Assets, as a result of its execution of this
Agreement.
II. RELEASE AND SETTLEMENT PROVISIONS
2.1 Release of Claims by Xxxxxxx. Xxxxxxx forever and completely
releases, acquits and discharges FirstPlus and its successors, assigns, past and
present directors and officers, agents, parents, subsidiaries, affiliates,
insurers, servants, representatives, and employees and each of them from and of
each and every hereto arising right, claim, demand, and cause of action in
contract or tort, whether common law or statutory, known or unknown, liquidated
or unliquidated, relating to or arising out of any act(s), transaction(s), or
occurrence(s), including without limitation those facts set forth above, which
could on this date have been made a subject of a lawsuit and/or administrative
action. Nothing herein shall be construed as a release or waiver of FirstPlus'
obligations under the terms of this Settlement Agreement. In particular, Xxxxxxx
shall, as soon as practicable hereafter, cause any judgment it has obtained
against
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FirstPlus pursuant to the Civil Action to be reflected of record as being
satisfied in full; or, to the extent said Civil Action has not yet resulted in a
judgment, to cause such Civil Action to be dismissed with prejudice.
2.2 Release of Claims by FirstPlus. FirstPlus forever and completely
releases, acquits and discharges Xxxxxxx and its successors, assigns, past and
present directors and officers, agents, parents, subsidiaries, affiliates,
insurers, servants, representatives, and employees and each of them from and of
each and every hereto arising right, claim, demand, and cause of action in
contract or tort, whether common law or statutory, known or unknown, liquidated
or unliquidated, relating to or arising out of any act(s), transaction(s), or
occurrence(s) which was made or could have on this date have been made a subject
of a Lawsuit. Nothing herein shall be construed as a release or waiver of
Xxxxxxx'x obligations under the terms of this Settlement Agreement.
2.3 Future Actions. Each party agrees that it will not file any action
in any court or pursue any administrative action against the other with respect
to any alleged legal claims or cause of action or conduct whatsoever arising
from or relating to facts occurring on or before the date of this agreement, or
to otherwise attempt to collect sums from the other party with respect to any
such alleged claim or cause of action or conduct, or to otherwise attempt to
enforce any alleged heretofore existing agreement between the parties it being
hereby mutually agreed by both parties that all duties of each party arising
pursuant to any such heretofore existing agreement between the parties are
extinguished by their execution of this agreement.
2.4 Fees and Costs. Xxxxxxx, and FirstPlus agree that each party shall
bear their own fees (including without limitation any attorney's fees) and all
other costs of whatever description incurred in connection with this Settlement
Agreement, the facts and/or dispute giving rise to it and each parties effort(s)
to prevail with respect to such disputes and/or matters set forth above.
2.5 Representations and Warranties. Xxxxxxx and FirstPlus each
represent and warrant to the other (1) that the signatories to the Agreement
have full legal right, power, and authority to execute the Agreement and bind
the party for whom that signatory acts; (2) that the execution, delivery, and
performance of the Agreement and the stipulations and terms herein have been
duly authorized by appropriate action; (3) that they have read the Agreement;
and, (4) that they are not relying on any representations not contained herein.
In addition, FirstPlus represents and warrants to Xxxxxxx that this Agreement is
not in violation of any order of the Bankruptcy Court.
2.6 No Assignment of Claims. Each party represents and warrants that it
is the full and sole owner of the claims, demands, or causes of action referred
to in the Agreement at the time of the execution of the Agreement, that it has
full authority to execute the Agreement, and that the claims, demands, or causes
of action the parties have against one another, whether known or unknown, which
arose or might arise out of any heretofore existing facts, have not been, and
will not be, assigned, transferred, or otherwise encumbered. In particular,
FirstPlus represents and warrants that it has not, and will not, assign or
otherwise transfer any of its rights to any of its rights to any of the Residual
Assets herein assigned to Xxxxxxx by FirstPlus.
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III. CONSTRUCTION
3.1 Confidentiality. The parties agree not to in any way publicize,
disclose or discuss the terms of this dispute or settlement to or with persons
other than those named herein except as otherwise required by law, or as
necessary to effectuate the intent of this Agreement, or to the extent either
party deems disclosure of the terms of the dispute or settlement necessary to
defend against any demand or claim made by any party, whether a party to the
Agreement or any third-party. While not limiting the generally of the foregoing
sentence, disclosure includes a statement, written, or oral, to any person,
newspaper, magazine, radio or television station.
3.2 Choice of Law. The Agreement is governed by and shall be construed
in accordance with the laws of the State of South Carolina.
3.3 Binding Effect. The Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
if any.
3.4 Copies. It is understood and agreed that the Agreement may be
executed in a number of identical counterparts or with detachable signature
pages and shall constitute one agreement, binding upon all parties thereto as if
all parties signed the same document.
3.5 Additional Documents. Each of the parties agrees to execute such
additional documents as may be necessary to effectuate the terms of the
Agreement.
3.6 Headings. The headings of the Agreement are inserted for
conveniences only and shall not control or affect the meaning, construction, or
effect of the Agreement or any of its provisions.
3.7 Amendment. The Agreement and any of its terms may be amended,
modified or waived only by a writing signed by all parties hereto.
3.8 Entire Agreement. The Agreement embodies, merges and integrates all
prior and current agreements and understandings of the parties hereto. No oral
understandings, statements, promises, or inducements contrary to the terms of
the Agreement exist. The Agreement cannot be changed or terminated orally.
3.9 Contractual Matters. The statements and representations contained
herein are considered contractual in nature and not merely recitations of fact.
3.10 Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under any present or future law, and if the
rights or obligations of either party under this Agreement will not be
materially and adversely affected thereby (a) such provision will be fully
severable; (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised of a part hereof; (c) the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the illegal, invalid or unenforceable provision or by
its severance therefrom; and (d) in lieu of such illegal, invalid or
unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms as such
illegal, invalid or unenforceable provision as may be possible.
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3.11 Third Parties. This Agreement is not intended to confer upon any
person or entity who or which is not a party to this Agreement any rights or
remedies hereunder.
3.12 Affiliates. For the purpose of this Agreement, any corporation or
entity shall be deemed to be an affiliate of Xxxxxxx if, directly or indirectly,
it is controlled by Xxxxx X. Xxxxxxx. For the purpose of this Agreement, any
corporation or entity shall be deemed to be an affiliate of FirstPlus if,
directly or indirectly, it is controlled by FirstPlus.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on this the 12th day of October, 2001.
Xxxxxxx Investment Corporation
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, President
FirstPlus Financial Group, Inc.
By: /s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx, President
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