EXHIBIT 10.18
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE OF ALL CLAIMS
This settlement Agreement and Mutual Release of All Claims
("Agreement"), dated , 1996, is executed by and between Westmark Group Holdings,
Inc., a Colorado corporation and Westmark Mortgage Corporation, a California
corporation, hereinafter collectively referred to as "WGHI," and Greentree
Mortgage Company, L.P., a Delaware limited partnership, hereinafter referred to
as "Greentree," and is made with reference to the following:
RECITALS
WHEREAS, WGHI and Greentree entered into an Agreement of Purchase and
Sale of Assets on July 2, 1995 and a subsequent Restated Amendment to Agreement
of Purchase and Sale of Assets on September 1, 1995, hereinafter collectively
referred to as "the Agreement" and;
WHEREAS, WGHI and Greentree have agreed to terminate the Agreement
subject to the terms and conditions herein contained and;
WHEREAS, the parties hereby wish to settle and to resolve any and all
disputes, debts, damages, accounts, claims and demands whatsoever between them
arising out of or pertaining to the aforementioned Agreement.
NOW, THEREFOR, in consideration of the terms set forth below, and other
covenants and conditions herein contained, WGHI and Greentree mutually agree as
follows:
1. Within ten (10) days from the date of execution of this agreement,
WGHI shall deliver to Greentree 150,000 warrants to purchase shares of WGHI's
unregistered common stock on the basis of one (1) share for each warrant. Each
warrant shall be exercisable for a period of three (3) years from the date of
issue and the exercise price for each share shall be _____________. All of such
shares shall be included in the next Registration Statement to be filed by WGHI
with the U.S. Securities and Exchange Commission no later than May 31, 1996.
2. On or before May 31, 1996, WGHI at its own cost and expense will
file with the U.S. Securities and Exchange Commission ("SEC") a Registration
Statement on Form S-1 or SB-1 ("Registration Statement") covering the issuance
to Greentree of such number of shares of WGHI common stock as calculated
pursuant to the terms of this agreement.
3. Immediately upon the effectiveness and qualification of the
Registration Statement, WGHI will issue to Greentree 17,500 shares. All such
WGHI shares shall be
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fully paid, nonassessable, duly authorized and validly issued and will be free
and clear of all preemptive rights, rights of first refusal, liens, charges,
restrictions, claims and encumbrances. WGHI agrees that it will cause the sale
of the Greentree shares in an orderly manner through the brokerage firm
designated by WGHI, or such other brokerage firm as agreed to by the parties.
Westmark shall cause the registration, issuance and sale of sufficient shares to
enable Greentree to receive no less than $5,000 per month commencing August 15,
1996 and continuing on the 15th day of each thereafter until the sum of $35,000
has been paid in full. WGHI agrees to register, qualify and issue to Greentree
additional WGHI shares to the extent the number of WGHI shares originally
registered, qualified and issued are insufficient to net $5,000 per month
commencing August 15, 1996. Once Greentree has netted $35,000, any remaining
WGHI shares will be returned to WGHI and shall be retired.
4. If at any time WGHI fails to perform its obligations as set forth
hereinabove, WGHI shall be in default of this agreement and Greentree shall be
entitled to proceed with any and all remedies provided at law or in equity. In
the event of default, Greentree shall be entitled to file the Confession of
Judgment executed by WGHI, a copy which is attached hereto marked Exhibit "A" or
shall be promptly provided by Greentree, and by this reference made a part
hereof.
5. Greentree hereby releases and forever discharges WGHI, and all of
its past, present and future attorneys, officers, shareholders, directors,
employees, agents, insurers, successors and assigns from any and all claims,
demands, obligations or causes of action of any nature whatsoever, whether in
law or in equity, or whether for contractual, compensatory or punitive damages,
which have arisen or may arise out of the aforementioned Agreement; provided
however, that the release set forth herein does not pertain to WGHI's
obligations to Greentree created by this agreement or any claims or assertions
raised by Greentree in the Conover litigation hereinafter described in paragraph
6. In addition, a separate form of release with regard to the foregoing shall be
executed by Greentree contemporaneously with the execution of this agreement.
6. WGHI hereby releases and forever discharges Greentree, and all of
its past, present and future attorneys, partners, officers, directors,
employees, agents, insurers, successors and assigns, from any and all claims,
demands, obligations or causes of action of any nature whatsoever, whether in
law or in equity, or whether for contractual, compensatory or punitive damages,
which have or may arise out of the aforementioned Agreement and Restated
Amendment thereto; provided however, that the release set forth herein does not
pertain to any of the claims or assertions raised by WGHI in the civil action in
the Superior Court of New Jersey, docket number C155-95, entitled "Robert J.
Conover, plaintiff v. Greentree Mortgage Company, L.P.; Greentree Management
Corporation; Westmark Group Holdings, Inc.; Westmark Mortgage Corporation; and
Michael F. Morrell, defendants." In addition, a separate form of release with
regard to the foregoing shall be executed by WGHI contemporaneously with the
execution of this agreement.
7. Subject to satisfaction of the terms set forth herein all parties
hereto
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acknowledge that they execute and agree to this agreement, and accept the terms
set forth herein, as a complete compromise of all matters involving disputed
issues of law and fact and fully assume, thereby, the risk that the facts or law
may be other than they believe.
8. The parties hereto acknowledge and understand that this agreement
creates new obligations and rights between them. Except as otherwise provided
for in this agreement, each party expressly waives and assumes the risk of any
and all claims for damages which exist as of this date, but of which it is
unaware, whether through ignorance, oversight, error, negligence or otherwise,
and which, if known to Greentree or to WGHI, would materially affect their
decision to enter into this agreement. Each party further assumes the risk that
it may suffer damages in the future which it does not now anticipate nor
suspect.
9. Each party warrants and represents to the other that it has not
assigned, conveyed or transferred any of the claims or possible claims against
any of the parties hereto (or any interest therein) which are released or
referred to herein and that the releases herein are what they purport to be.
In the event of an adjudication that either party is in breach of
this section, the party in breach agrees to indemnify and hold harmless the
other party from any resulting liability, claim, demand, damage, cost, expense
and/or attorney's fees incurred by the other party as a result of the breach.
10. Greentree agrees and acknowledges that it will accept the warrants
and the registration, issuance and sale of the WGHI shares specified hereinabove
as a full and complete compromise of matters involving disputed issues as to the
Agreement hereinabove set forth. Each of Greentree and WGHI agrees and
acknowledges that neither this agreement, nor delivery of the WGHI shares by
WGHI herein, or any event occurring during the negotiations for this agreement
(nor any statement or communication made in connection therewith) by either
party, or their attorneys or representatives, shall be considered an admission
by any party of any act or omission to act, or of any responsibility or
liability for any claims, suits, actions or any facts, representations or
misrepresentations regarding any of the parties, and that no past nor present
wrongdoing on the part of either party shall be implied therefrom.
11. Each party represents and warrants that it has full authority to
enter into this agreement and to release all of the claims, known or unknown,
which are the subject matter of the releases herein.
12. This agreement is binding upon, and shall inure to the benefit of,
each of the parties and their respective officers, directors, employees,
investors, agents, representatives, partners, predecessors, successors and
assigns.
13. This agreement contains the entire agreement between the parties
and
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supersedes and replaces any and all prior or contemporaneous agreements or
understandings, whether written or oral, with regard to the matters set forth
herein. This agreement may be amended or modified in whole or in part at any
time, but only by a written agreement executed by both parties in the same
manner as this agreement.
14. This agreement has been negotiated, and is entered into, in the
State of New Jersey. The validity, interpretation, construction and enforcement
of this agreement shall be construed, interpreted and governed pursuant to New
Jersey law.
15. In entering into this agreement, each party represents that:
(a) It has read the agreement and has had the opportunity
to consult with its attorneys, who are the attorneys
of its own choice, during the negotiation and
preparation of this agreement.
(b) It fully understands and is aware of the terms of
this agreement, and the legal consequences thereof,
and voluntarily accepts them; and
(c) Its counsel has reviewed and revised, or has had the
opportunity to review and revise this agreement, and
accordingly the normal rule of construction, which
states to the effect that any ambiguities are to
resolved against the drafting party, shall not be
employed in the interpretation of this agreement.
16. Each party represents and warrants that no other person or entity
has or has had any interest in the claims, demands, obligations or causes of
action referred to in this agreement. Each party further warrants and represents
that the individuals executing this agreement are duly authorized by the
respective parties to bind the parties to the terms of this agreement.
17. Failure by either party at any time to require performance of any
provision of this agreement shall not limit the right of that party to enforce
such performance or provision at any time, nor shall either party's waiver of
any breach by the other party of any provision of this agreement by a waiver of
any succeeding breach by that other party of that same provision, or of any
other provision of this agreement.
18. The parties agree that any notices to be provided pursuant to this
agreement shall be addressed to the respective parties as follows:
Westmark Group Holdings, Inc. Greentree Mortgage Company, L.P.
4
355 N.E. Fifth Ave., Suite 4 10005 Atriums at Greentree
Delray Beach, Florida 33483 P.O. Box 830
Marlton, New Jersey 08053
and
and
Harry C. Coolidge, Esq.
1260 41st Ave., Suite N Andrew D. Stone, Esq.
Capitola, California 59010 McMahan Financial Center
591 West Putnam Avenue
Greenich, Connecticut 06830
Each party shall notify the other party by certified mail of any
change of address or change of the person designated herein to receive notices
to be provided pursuant to this agreement. Once a party has received notice of a
change of address or designated person, that party shall send all future notices
to be provided in this agreement to that address and designated person.
19. This agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which shall together constitute one and the
same document. It shall not be necessary, in making proof of this agreement, to
produce or account for more than one counterpart.
20. The aforementioned Agreement of Purchase of Sale of Assets and
Restated Amendment to Agreement of Purchase of Sale of Assets is hereby
terminated and each party waives any and all rights, claims or entitlements
pursuant to said Agreement and Restated Amendment except as hereinabove set
forth.
IN WITNESS WHEREOF, the parties have duly executed this agreement on
the dates set forth below.
DATED: DATED:
GREENTREE MORTGAGE CO., L.P. WESTMARK GROUP HOLDINGS, INC.
By: By:
Its: Its:
WESTMARK MORTGAGE CORP.
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By:
Its:
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GREENTREE MORTGAGE COMPANY, ) Case No.:
L.P., a Delaware corporation )
) CONFESSION OF JUDGMENT
Plaintiff, ) STATEMENT
) [CCP 1133]
vs. )
)
WESTMARK GROUP HOLDINGS, )
INC., WESTMARK MORTGAGE )
CORPORATION, )
)
Defendant. )
)
______________________________)
WESTMARK GROUP HOLDINGS, INC., a Colorado corporation and WESTMARK
MORTGAGE CORPORATION, a California corporation hereinafter collectively "WGHI"
hereby confesses judgment in the above-entitled action in favor of GREENTREE
MORTGAGE COMPANY, L.P., a Delaware Limited Partnership, ("GREENTREE"), in the
principal amount of $35,000, plus costs, and interest on said principal amount
at ten percent (10%) per annum from the date of this Confession of Judgment
Statement to the date of entry of judgment herein, less any amounts received by
GREENTREE pursuant to that certain Settlement Agreement and Mutual Release of
all Claims dated _________, 1996, and authorizes entry of judgment against it in
that total amount.
This confession of judgment is for a debt justly due that arises out of
a contractual relationship between Plaintiff and Defendant and subsequent
Settlement Agreement with respect to said contractual relationship. WGHI owes
GREENTREE the sum of $35,000 as
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a result of said settlement. By the terms of a settlement agreement between WGHI
and GREENTREE dated the_____ day of April, 1996, WGHI agreed that, if it
defaulted on its obligations thereunder, GREENTREE could obtain judgment against
it pursuant to this Confession of Judgment Statement.
DATED: WGHI GROUP HOLDINGS, INC.
By:
Norman Birmingham, President
VERIFICATION
I, Norman Birmingham, am the President of WESTMARK GROUP HOLDINGS,
INC., ("WGHI") Defendant in the above-entitled action, and I make this
Verification on WGHI's behalf. I have read the foregoing CONFESSION OF JUDGMENT
STATEMENT and know its contents. The CONFESSION OF JUDGMENT STATEMENT is true of
my own knowledge.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Dated:
Norman Birmingham
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