SETTLEMENT AGREEMENT
AND
MUTUAL RELEASE OF ALL CLAIMS
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS
("Settlement") is entered into by and between Westmark Mortgage Corporation, a
California corporation, Westmark Group Holdings, Inc., a Delaware corporation,
hereinafter collectively referred to as "Westmark," and Household Financial
Services, Inc., Household Commercial Financial Services, Inc., hereinafter
collectively referred to as "Household," on the 2nd day of August, 2000, and is
made with reference to the following:
Recitals:
WHEREAS, Westmark and Household previously entered into various written
agreements including, but not limited to, Revolving Credit Agreement, Revolving
Credit Note, Guaranty, Security Agreement, Financing Statements, Continuing Loan
Purchase Agreement, amendments or modifications to such agreements and related
collateral documents, hereinafter collectively referred to as "Agreements"; and
WHEREAS, Westmark and Household mutually desire to settle and resolve
any and all disputes, claims, debts, damages, accounts, obligations and demands
between the parties arising out of or pertaining to the Agreements.
NOW, THEREFORE, in consideration of the terms and conditions set forth
below, Westmark and Household mutually covenant and agree as follows.
1. Upon execution of this Settlement, Westmark will release to
Household all mortgage loan files and documents relating to the existing
Westmark loan portfolio financed by Household pursuant to the Agreements.
2. Westmark waives any and all right, title, claim or interest in and
to said loan portfolio or the proceeds thereof, save and except for principal
and interest that shall accrue through July 31, 2000, regarding loans serviced
and owned by Westmark which are currently financed by Household. Such payments
shall remain the property of and be paid to Westmark. Subsequent payments which
are the property of Household shall immediately be forwarded to Household in the
event of receipt by Westmark.
3. Westmark will assist Household with regard to the liquidation of the
loan portfolio, as reasonably requested by Household.
4. Westmark and Household will prepare an accounting with respect to
the stems of the loan portfolio and reserve account through August 1, 2000.
5. Subject to the performance of the terms and conditions contained in
this Settlement by Household, Westmark hereby forever releases and discharges
Household, and its officers, directors, shareholders, employees, agents,
attorneys, affiliates, subsidiaries, successors and assigns of and front any and
all claims, rights, duties, obligations, debts, liabilities, damages, injuries,
actions and causes of action of every kind and nature, whether in law or in
equity, or whether for contractual, compensatory or punitive damages, foreseen
and unforeseen, contingent and actual, liquidated and unliquidated, suspected
and unsuspected, disclosed and undisclosed. Whether direct or by way of
indemnity, contribution or otherwise, arising out of or relating to the
Agreements, any other prior agreements written or oral, between or among the
parties or any other claim Westmark ever had, now has, arid hereafter can, shall
or may have against Household for any matter, cause or thing whatsoever to the
date of this Settlement.
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6. Subject to the performance of the terms and conditions contained in
this Settlement by Westmark, Household herby forever releases an discharges
Westmark, and its officers, directors, shareholders, employees, agents,
attorneys, affiliates, subsidiaries, successors and assigns of and from any and
all claims, rights, duties, obligations, debts, liabilities, damages, injuries,
actions and causes of action of every kind and nature, whether in law or in
equity, or whether for contractual, compensatory or punitive damages, foreseen
and unforeseen, contingent and actual, liquidated and unliqidated, suspected and
unsuspected, disclosed and undisclosed, whether direct or by way if indemnity,
contribution or otherwise, arising out of or relating to the Agreements, any
other prior agreements, written or oral, between or among the parties or any
other claim Household ever had, now has, and hereafter can, shall or may have
against Westmark for any matter, cause of thing whatsoever to the date of this
Settlement. Provided, however, that Westmark Mortgage Corporation shall not be
released from any act or omission relating or pertaining to servicing of
mortgage loans by Westmark Mortgage Corporation during the period of servicing
and for any loan payments received by Westmark Mortgage Corporation on or after
August 1, 2000 for loans serviced and owned by Westmark Mortgage Corporation
prior to August 1, 2000.
7. The provisions contained in this Settlement constitute a compromise
of disputed issuers. This Settlement shall not in any way be construed as an
admission by either party or any unlawful, wrongful or invalid act.
8. Westmark and Household represent that all requisite corporation
action has been taken to authorize the execution, delivery and performance by
each party to this Settlement. This Settlement is the legal, valid and binding
obligation of each party enforceable against each party in accordance with its
terms, subject as to enforcement only as to applicable bankruptcy, insolvency,
reorganization moratorium and other similar laws of general application relating
to or affecting the rights of creditors generally and to general equitable
principals. This Settlement does not violate any agreement or contract to which
either party is a party hereto.
9. Each party hereto agrees to execute, acknowledge, and/or deliver any
and all documents reasonably necessary to carry out and perform its obligations
hereunder.
10. This Settlement contains the entire settlement an understanding
between the parties as to the settlement of all claims and supersedes and
replaces all prior settlement negotiations and proposed agreements, written or
oral. The parties hereto acknowledge that not other party or agent or attorney
or any other party has made any promise, representation or warranty whatsoever,
express or implied, not contained in this Settlement concerning the subject
matter hereof to induce either party to enter into this Settlement, and each
party acknowledges that it has not executed this Settlement in reliance upon any
such promise, representation or warranty not contained herein.
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11. Every provision of this Settlement is intended to be severable. In
the event any term or provision hereof is declared to be illegal or invalid for
any reason whatsoever by a tribunal of omnipresent jurisdiction, such illegality
or invalidity shall not effect the balance of the terms and provisions hereof,
which terms and provisions shall remain binding and enforceable.
12. The waiver, either expressed or implied, by any party hereto of any
term or condition of this Settlement, shall not constitute a relinquishment by
said party of its right to enforce the term or condition of any later due date
unless this Settlement is amended in writing to so provide for an unconditional
waiver.
13. Prior to the execution of this Settlement and any other documents
to which reference is made herein, each party has fully understood and carefully
read all of the provisions of this Settlement. Each party has consulted with or
had the opportunity to consult with legal counsel of its own choice concerning
the terms and conditions of this Settlement and such other related documents and
each party to this Settlement is voluntarily entering into this Settlement.
14. This Settlement may be executed in any number of original
counterparts. Any such counterpart, when executed shall constitute an original
of this Settlement, and all counterparts together shall constitute one and the
same Settlement.
15. No waiver, modification or amendment of any term, condition or
provision of this Settlement shall be valid or have any force or effect unless
made in writing and signed by the parties against whom was the waive,
modification or amendment asserted.
16. This Settlement shall be governed by and interpreted according to
the laws of the State of Florida.
17. None of the parties hereto, nor their respective counsel, shall be
deemed the drafter of this Settlement for the purposes of construing the
provision hereof. The language in all parts of this Settlement shall in all
cases be construed according to its fair meaning, not strictly for or against
any party hereto.
18. In the event of any litigation arising out of this agreement or the
enforcement thereof, the prevailing party shall be entitled to reasonable
attorneys fees in addition to any other relief provided by law.
IN WITNESS WHEREOF, the parties have executed this Settlement as of the date
first stated above.
WESTMARK MORTGAGE CORPORATION
By: /s/
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Its:
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WESTMARK GROUP HOLDINGS, INC.
By: /s/
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Its:
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HOUSEHOLD FINANCIAL SERVICES, INC.
By: /s/
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Its:
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HOUSEHOLD COMMERCIAL FINANCE SERVICES, INC.
By: /s/
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Its:
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