Exhibit 1 281-1... · 2019-07-09 · 9. Settlement Pøyment, Collectively, the HSP/Harbour Parties shall pay $550,000,00 in the aggregate to the Receiver for the benefrt of the Receivership

Exhibit 1

Case 4:11-cv-00655-RC-ALM Document 281-1 Filed 10/10/13 Page 1 of 19 PageID #: 6048

COMPROMISE AND SETTLEMENT AGREEMENTAND FULL. FINAL. A¡ID MUTUAL RELDASE OF CLAIMS

This Compromise and Settlement Agreement and Full, Final, and Mutual Release ofClaims (the "settlement Agreement") is made and entered into by and between Keith M.Aurzada (the "ReoeiveÍ"), in his capacity as receiver for Jay Temme, Stewardship Fund, LP, and

all of their affiliates or other entities under their direct or indirect control, together with theirrespective suocessors or assigns, including any suocessor receiver, trustee, or custodian ofany ofsuch parties (collectively, the "Receivership Entitid'), on the one hand, and Cha¡les A. Vose,

III, Edward C. Lasater, II, Duncan A, Lee, Home Solutions Capital, LLC, Home Solutions GP,

LP, Home Solutions Advisors, LLC, Home Solutions Partners I, LP, Home Solutions Partners IREO, LLC, Home Solutions Partners III, LP, Home Solutions Partners III REO, LLC, Home

Solutions PaÉners IV, LP, Home Solutions Partners IV REO, LLC, Harbour Portfolio Advisors,

LLÇ, Harbour Portfolio Capital, LLC, Harbour Portfolio GP, LP, Harbour Portfolio V, LLC,Harbour Portfolio VI, LP, and any of their respective relativeso heirs, successors, assigns,

affiliates, agents, parent companies, partners, subsidiaries, employees, and anyone acting by or

throughthem(collectively,the..HWIb@'),ontheotherhand,asofthedateofitsexecution by all parties. The Settlement Agreement will become effective only following its

approval by the United States District Court for the Eastern District of Texas (the "DistrigtCourt").

1, On October 14,2011, the U,S. Securities and Exchange Commission (the "SEC")filed a Complaint in the lawsuit styled, SEC v. Temme & Stewardship Fund,IP, Civil Action

No. 4:11-cv-655, in the U,S. District Court for the Eastem District of Texas, Sherman Division

Ithe "SEC Matter").

2. In the SEC Matter, the Court ordered the appointment of the Receiver and vested

the Receiver with the duties, powers, and obligations stated in the: (l) Agreed Order Appointing

Receiver over Entities Under Control of James G, Temme entered October 28,2011 (Doc. 24);

(2) Agreed Order Appointing Receiver over Stewardship Fund, LP and Related Entities entered

Octobir 28, 2OIl (Do", 25); and (3) Order Appointing Receiver over James G. Temme dated

November 3,20II (Doc. 30) (collectively, the "Begçiyi$hip-@!9¡g,").

3. The Receiver has alleged certain claims against the HSP/Harbour Parties arising

out of their transactions and business dealings with the Receivership Entities.

4. The HSP/Harbour Parties deny and vigorously dispute the claims the Receiver

purports to have against them, and the HSP/Harbour Pa¡ties specifically deny and dispute all

wróngdoing or fault allegèd by the Receiver and/or the Receivership Entities.

5. The Receiver and the HSP/tlarbour Parties (collectively, the "Palties") desire to

resolve their disputes and avoid tl,re inherent uncertainties associated with litigation, the

substantial investment of time, costs and atûorney's fees that would be involved irl' legal

proceedings, all of which are being avoided by their agreement to enter into and accept the terms

COMPROMISE AND SETTLEMENT AGREEMENTAND tr'ULL, tr'INAL, AND MUTUAL RELEASE OF CLAIMS Page I


and conditions of this Settlement Agreement. The Parties hereby agree and represent that this

Settlement Agreement does not apply to any claims by or against Home Solutions Partners II, LP

and Home Solutions Partners Il REO, LLC, and any challenges or defenses to such claims, and

that Home Solutions Partners II, LP and Homs Solutions Partners II REO, LLC are specificallyexcluded from the defined term "HSPÆIarbour Partnors."

6. Upon execution of this Settlement Agreement by all of the parties, tho Receiver

will petition the Distriot Court for the entry of an Order (as defined in paragraph 10, below)

approving allterms of this Settlement Agreement.

II. CONDITIONS PRECEDENT

The Receiver and the HSP/Harbour Parties acknowledge and agree that the terms and

conditions of this Settlement Agreement are entered into subject to and conditioned upon the

satisfaction of the following conditions precedent:

7. Court Approvat, The Settlement Agreement shall only become effective after the

District Court enters a final, non-appealable Order (as defined in paragraph 10, below) approving

the Settlement Agreement. In the event that the District Court does not approve the Settlement

Agreement or enter the Order, or in the event the District Court's approval of the Settlement

Agreement and entry of the Order is reversed on appeal, this Settlement Agreement shall be

terminated and shall not affect the rights, claims, causes of action, or defenses of the Receiver orthe HSP/Harbour Parties, except as expressly agreed in this Settlement Agreement. Anymodification of the terms of this Settlement Agteement shall be in writing and governed by

paragraph 23 below.

III. SETTLEMENT AGREEMENT

Subject to, in accordance with, and after the occurrence of the Conditions Precedent

stated above, the Receiver and the HSP/Harbour Parties agree to the following:

8. Survívøl of Tolting Agreemenl, The Second Tolling Agreement effective May

31,2013 between the Receiver and the HSP/FIarbour Parties, as well as the Tolling Agreement

between the Receiver and the HSP/Harbour Parties in paragraph 14 of this Settlement

Agreemen! shall survive and remain in full force and cffect until thirty (30) days after: (a) the

nistrict Court approves the Settlement Agreement and enters the Order (as defined in paragraph

10, below), and üntil thirty (30) days after such Order becomes hnal and non-appealable, and

until the HSP/Harbour Parties satisfy the Settloment Payment (as defined in paragraph 9, below)

in accordance with the terms and conditions of this Settlement Agreement; or (b) the District

Court enters an order denying approval of the Settlement Agreement and denying entry of the

Order (as defined in paragraph 10, below),

COMPROMISE AND SETTLEMENT AGREEMENTAND FULL, f,'INAL, AND MUTUAL RELEASE OI'CLAIMS Page2


9. Settlement Pøyment, Collectively, the HSP/Harbour Parties shall pay

$550,000,00 in the aggregate to the Receiver for the benefrt of the Receivership Entities (the

"E!g!qg4üavment]') in consideration of the full and complete release and settlement of any

and all claims that the Receiver or any of the Receivership Entities may now or hereafter possess

against such parties, which consideration includes, but is not limited to, the releases provided bythe Receiver in this Settlement Agreement and in any Order (as defined in paragraph 10, below)entered by the Court authorizing and approving this Settlement Agreement and the releases

provided herein, as well as any other relief to the parties provided in this Agreement and granted

or approved by the Order to be sought by the Receiver. Unless otherwise agreed by the Parties,

the HSP/Harbour Parties will deposit the Settlement Payment into the trust acoount of BryanCave, LLP (the "Trqst Accounf') at least ten days prior to the hearing by the Court on the

Receiver's motion for approval of this Settlement Agreement or at least fourteen (14) days afterthe full execution of this Settlement Agreement, whichever is earlier. The Settlement Payment

will become properly of the Receivership Estate upon the entry by the District Court of the Orderand such Order becoming final and non-appealable, The Settlement Payment shall be released

from the Trust Account only as follows:

(a) If the District Court denies the Receiver's motion for entry of the Order,

then, unless the parties jointly agree in writing, the Receiver will release

the Settlement Payment to the HSP/Harbour Parties within ten (10) daysfollowing the entry of the order denying the Receiver's motion.

(b) If the District Court enters the Order, then, unless there is a timely appeal

of the Ordor, the Settlement Payment will be released to the,Receiversixty-one (61) days following the Dishict Court's entry of the Order.

(c) If the District Court enters the Order and there is a timely appeal of the

Order, the Settlement Payment will be released to the Reoeiver ten (10)

days following the date when the Order beoomes final and no longer

appealable or the subjeot ofany petition for certiorari.

(d) If the District Court enters the Order and there is a timely appeal of theOrder, and the Order is reversed and rendered on appeal, the SettlementPayment will be released to the HSPÆIarbour Parties remitting such

payment no later than thirty-one (31) days following the expiration of allappellate remedies.

(e) If the District Court enters the Order and there is a timely appeal of theOrder, and the Order is reversed and remanded on appeal, the Settlement

Payment will be released pursuant to subparagraph 9(a) if the DistrictCourt withdraws the Order and denies the Receiver's rnotion for entry, and

pursuant to subparagraphs 9(b)-(d) if the District Court enters tho Order on

remand.

(Ð Regardless of subparagraphs 9(a)-(e) set forth above, the Settlement

Payment will be released or retained pursuant to any subsequent writtenagreement by the Parties.

COMPROMISE AND SET"TLEMENT AGREEMENTAND FULL, FINAL, AND MUTUAL RELEASE OF CLAIMS Pnge 3


10, Order, The Receiver, with the support of the HSP/Harbour Parties, will petition

the District Court for the enhy of an order substantially in the form attached hereto as E4bib!!-Aauthorizing and approving this Settlement Agreement, the settlement and releases provided

herein, and the "bar order and injunction" required by the HSP/Harbour Parties as an integralpart and oondition of such settlement. In response to any statements by the District Court orissues raised by creditors of the Receivership Entities, or otherwise, the Parties may agree tomodifr the Order attached hereto as Exhibit A. The term "Order" in this Settlement Agreementrefers to Exhibit A, any revised version of Exhibit A to which the Parties mutually agree, or any

court order (including any order entered by District Court, the U.S. Court of Appeals for the

Fifth Circuit, or other court of competent jurisdiction) that the Parties mutually agree isacceptable as set forth in the next sentenoe of this paragraph, Any acceptable Order shall

authorize and approve the Settlement Agreement, the Settlement Payment, the releases provided

by the Settlement Agreement, and provide a "bar order and injunction" in favor of all of the

HSP/Harbour Parties through provisions substantially similar to those set forth at paragraph 4(o)

of Exhibit A, which provisions shall bar and enjoin any and all future suits against the

HSP/Harbour Parties and related persons and entities based on any of the alleged claims relating

to the Receivership Entities, In the event that the Parties do not agtee to the form or substance ofany modifrcations or amendments to the form of the Order attached as Exhibit A, this Agreementshall terminate (except as to paragraph l4), and the Parties may litigate whatever claims and

defenses they may have.

11. Releøse ønd Discharge by Receiver and All Receivershíp Entilies, Upon

satisfaction of the Conditions Precedent stated in Section II of this Settlement Agreement, and

based on the consideration set forth in this Settlement Agreement (including, but limited to, the

performanoe by the HSP/Harbour Parties in making the Settlement Payment), and the mutual

promises, oovenants, tems, and oonditions contained in this Settlement Agreement, the Receiver

and all of the Receivership Entitios, for themselves and their sucoessors, assigns, affiliates,

shareholders, partners, and members, completely release and forever disoharge each of the

respective HSP/FIarbour Parties, and their respective past, present, and future relatives, heirs,

successors, assigns, personal representatives, attomeys, officers, managers, employees, agents,

servants, insurers, representatives, parent companies, afiìliates, general partners, promoters,

limited partners, and anyone acting by or through them (the "HSP/Harbour Releasees'), of and

from any and all past, present or future claims, demands, obligations, causes of action, rights,

damages, costs, losses of services, expenses and compensation of any nature whatsoever,

whether based on a tort, contraot, in equity, or other theory of reoovery, and whether for

compensatory or punitive damages, whioh the Receiver (in his capacity as Receiver) and any ofthe Receivership Entities now have, or which may hereafter aocrue or otherwise be acquired. The

Receiver for himself and on behalf of all Receivership Entities intends by this full and flrnal

release of the HSP/Harbour Releasees that no claim of any kind for damages, legal, equitable, or

any other relief shall ever be made in the future by the Receiver and Reoeivership Entities

agâinst the HSPÆIarbour Releasees arising out of or relating to any of the claims that are being

released in this Settlement Agreement by the Receiver and the Receivership Entities.

COMPROMISE AND SETTLEMENT AGREEMENTAND FULL, FINAL, AND MUTUAL RELEASE OF CLAIMS Page 4


12. Release ønd Discharge by HSP/Ifarbour Parlies, Upon satisfaction of the

Conditions Precedent stated in Section II of this Settlement Agreement, and based on the

consideration set forth above (including, but not limited to, the performance by the HSP/HarbourParties in making the Settlement Payment), and the mutual promises, covenants, terms, and

oonditions contained in this Settlement Agreement, the HSP/Harbour Parties, for themselves and

their successors, assigns, affîliates, shareholders, partners, and members completely release and

forever discharge the Receiver and the Receivership Entities, and their respective past, present,

and future successors, assigns, attorneys, employees, agents, servants, insurers, representatives,

and affiliates, of and from any and all past, present or future olaims, demands, obligations, causes

of action, rights, damages, costs, losses of services, expenses and compensation of any nature

whatsoever, whether based on a tort, contract, in equity, or other theory of recovery, and whetherfor compensatory or punitive damages, which the HSP/Harbour Parties no\ry have, or which mayhereafter accrue or otherwise be acquired. The HSP/Harbour Parties intend by this full and finalrelease of the Receiver and Receivership Entities that no claim of any kind for damages, legal,

equitable or any other relief shall ever be made in the future by the HSP/Harbour Parties against

the Receiver and the Receivership Entities arising out of or relating to the claims that are beingreleased in this Settlement Agreement by the HSP/Harbour Parties.

13. Court ApprovaL The parties acknowledge and agree that the terms and

conditions of this Settlement Agreement are subject to the approval of the Court in the SEC

Matter, after notice deemed appropriate by the Court.

14, Totling, As part of the consideration of this Settlement Agreement, the

HSP/Harbour Parties expressly acknowledge and agree to a moratorium and tolling of any and

all limitations periods prescribed by statute, common law, or other authority applicable to allclaims, causes of action, demands, requests for equitable or injunctive relief and any other

rights, duties, and powers of the Receiver and the Receivership Entities, whether under the

Receivership Orders or any and all equitable or legal powers that the Receiver has or acquires,

that are available to the Receiver or the Receivership Parties with respect to the HSP/HarbourParties (the "Tolligg¿greemeû"). The Parties hereby adopt and incorporate herein the terms oftheSeoondTollingAgreement(tlre..@')effectiveMay3l,2073between the Receiver and the HSP/Harbour Parties, including, but not limited to, the TollingPeriod as defined in the Second Tolling Agreement. The Tolling Agreemênt shall commence and

become effective as of May 1,2013, inclusive of the Tolling Period as defrned in the Second

Tolling Agreement, upon the execution of this Settlement Agreement by all Parties and shall

continue in full force and effect until and only in the event that the terms and conditions for

termination of the Tolling Agreement are fully satisfied pursuant to the terms of this Settlement

Agreement. While the Tolling Agreement remains in effect, the HSP/Harbour Parties

aoknowledge and agree that the defenses of expiration of limitations period(s), expiration of any

statute of timitations, and laches shall not be raised or asserted in any action which may be

instituted by the Receiver or the Receivership Entities against the HSP/Harbour Parties where the

defense hai become available as a consequence of the passage of time during the moratorium or

tolling period. Neither this Tolling Agreement nor any action taken pursuant to the Settlement

Agreement or the Tolling Agreement shall be offered as evidence in any aotion or proceeding as

an admission of liability or wrongdoing by the HSP/FIarbour Parties for the claims tolled by

COMPROMISE AND SET'TLEMENT AGREEMENTAND FULL, FINAL, AND MUTUAL RELEASE OF CLAIMS Page 5


virtue of this Settlement Agreement, and the Parties do not intend for this Settlement Agreement

to be construed to create a cause of action where there was none prior to its execution,

15. Scope. All Parties to this Settlement Agreement agree that the consideration set

forth in this Settlement Agreement is a complete compromise of matters involving disputed

issues of law and fact. All Parties assume the risk that the facts or law may be other than theybelieve. It is understood and agreed by the Partìes that this Settlement Agreement is a

comproñ,rise of doubtful and disputed claims, and the consideration and compliance with thisSettlement Agroement is not to be construod as an admission of liability on the part of the

Parties. This Settlement Agreement is entered into, at least in part, in order to avoid the time,expense, and uncertainty that would accompany litigation. It is expressly agreed and understood

by the Parties that neither the releases nor any other provisions of this Settlement Agreement are

intended to release the Parties to this Settlement Agreement from olaims arising out of the

obligations created by this Settlement Agteement.

16. Choice of Law & Venue. This Settlement Agreement shall be construed,

interpreted, and enforced in accordanoe with the laws of the State of Texas. In the event of a

dispute involving this Settlement Agreement or any other documents exeouted in connection

with this Settlement Agreement, the Parties agree that venue and jurisdiction shall exclusively lie

in the United States District Court for the Eastern District of Texas, Sherman Division, or, ifsuch court does not have subjeot matter jurisdiction, in any oourt of competent jurisdiction ïn

Texas.

17. Represenlatíons & Warrønlìes, In entering into this Sottlement Agreement, the

Parties represent that they have completely read tlre terms of this Settlement Agreement, and that

the terms are fully understood and voluntarily accepted by each of the Parties. The Parties each

represent and wanant that prior to the execution of this Settlement Agreement, each Party has

had an opportunity to consult with independent counsel of its own choice in negotiating this

Settlement AgreemenÇ and this Settlement Agreement is the result of arm's length negotiation

among the Parties. The Parties acknowledge that each has had the benefit of counsel of its ohoice

and has been afforded an opportunity to review this Settlement Agreement and the documents

relating to the settlement with its chosen counsel. Each signatory Parly ropresents and wanants

that it has the sole right and exclusive capacity to exeoute this Settlement Agreement on behalf ofthe Party to this Settlement Agreement on whose behalf the signatory purports to act. Each of the

signatories to this Settlement Agreement expressly represents and wanants that he has executed

this Settlement Agreement with authority to act for the Party for which the signatory has signed

and to bind said Party to the rights and obligations set forth herein.

18. Attorney's Fees. Each Party agrees to pay all of its own legal fees, costs, and

expenses that the Party inourred in regard to the negotiating, drafting, and signing of this

Setttement Agreement and in regard to the investigation of the claims asserted by the Receiver

and the defenses raised by the HSP/FIarbour Parties.

COMPROMISE AND SETTLEMENT AGREEMENTÂND FULL, FINAL, AND MUTUAL RELEASE OF CLAIMS Pnge 6


19. Construction. Should any clause, sentence, provision, paragraph or part of thisSettlement Agreement for any reason whatsoever be adjudged by any court of competentjurisdiction, or be held by any other competent govemment authority having jurisdiction, to beinvalid, unenforceable, or illegal, such judgment or holding shall not affect, impair, or invalidatethe remainder of this Settlement Agreement, but shall be confined in its operation tothe clause,sentence, provision, paragraph, or part of this Settlement Agreement directly involved, and theremainder of this Settlement Agreement shall remain in full force and effect. Each Party hascooperated in the drafting and preparation of this Settlement Agreement. Therefore, in anyconstruction to be made of this Settlement Agreement, this Settlement Agreement shall not beconstrued against the Party who drafted the Settlement Agreement.

20. Entfue Agreemenl, This Settlement Agreement, along with Exhibit A and theSecond Tolling Agreement, contain the entire agreement between the parties with regard to thematters set forth in it and shall be binding upon and inure to the benefit of the partners, members,successors, and assigns of each, and that no promise, representation, warranty, or covenant that isnot included herein has been, or is, relied upon by the Parties. This Settlement Agreementsupersedes all prior agreements and understandings of the parties relating to the subject matter ofthis Settlement Agreement, other than as fully incorporated herein.

21. No lYaiven The failure of any Party to this Settlement Agreement to enforce atany time, or for any period of time, any one or more of the terms and conditions of thisSettlement Agreement shall not be a waiver of such terms or conditions or of such parly's rightthereafter to enforce each and overy term and condition of this Settlement Agreement.

22. Desuiptíve Headlngl The descriptive headings of the paragraphs in thisSettlement Agreement are inserted for refercnce purposes only and do not constitute a part of thisSettlement Agreement, nor are they intended in any way to affect the meaning or interpretationsof this Settlement Agreement.

23, Modìfication. No modifïcation or amendment of this Settlement Agreement shallbe of any force or effect unless made in writing and executed by all of the Parties.

24, Multiple Counterparls, Thís Settlement Agreement may be executed by the

Parties in multiple counterparts, including facsimile copies, each of which shall be considered an

original of this Settlement Agreement and all of which, taken together, shall constitute one in thesame instrument.

25. Elfectíve Date. This Settlement Agreement shall be effective as of the date

approved by the District Court in the SEC Matter, except as otherwise agreed in this Settlement

Agreement.

COMPROMISE AND SET'TLEMENT AGREEMENTAND FULL, FINAL, AND MUTUAL RELEASE OF CLAIMS PageT


AGREED TO AND APPROVED BY:

The

By: Dated: August ft,ZOtZM. Aurzada, as Receiver for

and on behalfofeach oftheReceivership Entities

Home Solutions Capital, LLC:

By:Name:Title:..

Ðâ"¿ €'óþ.vrr^¿'{ Dated: AugustzT ,2013c g

ry, éZqßàû-;e.jat+Z ,.æ.ræ At+rJ lrftL

Ilome Solutions GP, LP:

By:Name:

- Title: r+.rvt*æ

Ilome doiutions Advisors, LLC:

Dated: Ausust 29 .2013

August+,C

Title:F 6e

Home Solutions Partners I REO' LLC:

By:Name: cTitle | .7,

o? 6? 6? ¿t ScvútaturtevHome Solutions Partners III' LP:

Title:ØE af { êlt

By:Name:Titlat trrL+-

Home Solutions PaÉners I, LP:

By:Namet 6>'u¡1rl¡t ¿ . . Lrls ¡¡¡Z-- Ú,

Daæd:Aueust 27.2013- -1-è7ttæ

Dated: nuwstâT.ZOtz

Datedl

Dated: August

(fIrfq

2013

By: I e"Lt"*'EName: Ð.v,È-lo ¿- L 4 s*øt> Ú V

,zors

COMPROMISE AND SETTLEMENT AGREEMENTAND FULL, FINAL, AND MUTUAL RELEASE OF CLAIMS Pege I


Home Solutions Partners III REOr LLC:

By:Name:

Dated: AvBustL7. ,2013e

.Titlet ñr¿*.r¡, ¿

Home Solutions Partne¡rs IV, LP:

By: 1¿.r-¿ c- 2.-4¿Z Dated: August ?-? .,2013Nâtne: *;r* .. ¿¿ç,¡øe-DTitle:

þê.,Yt t77TL3 ¿ç êPt CP

Home Solutions Partnens IV REO' LLC:

By:Name: lãrr.ezá¡rrlr C. lt!¡*a- lLTitle:

t'F óP3 cP ,+ "czã.rÁ$fv

Harbour Portfolio Advisors, LLC:

By:Name:Title:

Harbour Portfolio Capital' LLC:

By:Name:Title:

Harbour Portfolio GP' LP

By:Name:Title:

Harbour Portfolio V' LLC:

By:Name:Title:

Dated: Aueust LJ .2013

t-tZt?E{

Dated:August .2013

Dated: August

-,2013

Dated: August ,2013

Dated: August

-,2013

c-

COMPROMISE AND SETTLEMENTAND FULL, FINAL, ANDMUTUAL RELEASE OF CLAIMS Prge 9


Home Solutlons Pot'tltcl's III REOr LLCI

By:Namo:Title:

Home Solulions Partne¡'s IVr LP:

By:NamelTitle:

Honc Solutlons Parhters IV RDO' LLC¡

By;Name:Title:

Harbour Portfolio

ByrNarne:Title;

Halbour Portfollo

By:Na¡ne:Title I -?lla¿tt*

Harbour Portfollo

By:Name:Title:

Harboul'Porlfollo

By:Narne:Title:

Dated: August

--, 2013

Dated: August _, 2013

Dated; August ,2013

Dated: August,,/-9,2013

Dated: Avgust ?92013

Date<l: ¡iueust Jg,z}l3

Dated: Angust 23 ,2013

COMPROMISE /tND SEffLEMENT AGREEMENTAND ITULL, IINAL, AND MUTUAL RELEASE OF CLAIMS Pago 9


Hnrbor¡r VI, LP

By:Name:Title:

Charles A. Vose,

By:A, Vose,III

Edward C. Lasater,II:

Dnted: August /e,z0l3

Datecl: August lg,zOtl

Dated: August

-,2013

Dated: August-,2013

Edward C, Lasater,ll

Duncan A, Lee¡

By:

By:Duncan A, Lee

COMPROMISE AND SDTTLDMDNTAND FULL, FINAL, AND MUTUAL RELEASE OF CLAIMS Page l0


Harbour Portfolio VI, LP

By:NameTitle:

Dated: August _, 2013

Charles A. Vose,III

By: Dated: August ,2013Charles A. Vose, III

Edward C, Lasater,II:--tBy: ? c- )"4,n-Dated:

AusustÇ'2013

Edward C. Lasater,II

Dated: Aueu*tä, ZOlgBy:

Duncan A. Lee

COMPROMISE ANII SETTLEMENT AGREEMENTAN II F'U LL, FINAL, AN D M UTUAL RELEASE OF CII\IMS Pege l0


birE, x


IN THE UNITED STATED DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

sEcuRrrIES AND EXCHANGE COMn{ISSTON,

Plaintffi

v.

JAMES G. TDMME and STEWARDSHIP FIIND, LP'

Defendants,

$

$

$

$

$

$$

$

$

Civ. Act. No. 4:11-cv-655

ORDER

Before the Court is Receiver Keith M. Aurzada's (the "Receiver") Motion to Approve

Settlement and for Entry of Bar Order and Injunction (the "Motion"). The Court, having

considered the Motion, the evidence, the responsive briefing, the arguments of counsel, the

objections of any creditors or claimants, if any, and the relevant legal princþles, ftnds and

concludes that the Motion and the relief requested therein should be GRANTED and therefore

orders that:

l. For purposes of this Order, the following terms shall have the following

meanings:

(a) The term ,.@[4¡" refers to Keith M. Aurzada, in his capacity as receiver forJay Temme ("Temme"), Stewardship Fund, LP ("stewardship Fund"), and all oftheir affiliates or other entities under their direct or indirect control together withtheir respective successors or assigns, including any successor receiver, trustee, or

custodian for any of such parties, (collectively, the "Receivership EntftH').

Thc term "@' refers to Charles A. Vose, III, Edward C'

Lasater, II, Duncan A, Lee, Home Solutions Capital, LLC, Home Solutions GP,

LP, Home Solutions Advisors, LLC, Home Solutions Partners I, LP, Home

Solutions Partners I REO, LLC, Home Solutions Partners III, LP, Home Solutions

Partners III REO, LLC, Home Solutions Partners IV, LP, Home Solutions

Partners IV REO, LLC, Harbour Portfolio Advisors, LLC, Harbour PortfolioCapital, LLC, Harbour Portfolio GP, LP, Harbour Portfolio V, LLC, Harbour

Portfolio VI, LP and any of their respeotive relatives, heirs, successors, assigns,

(b)

ORDER Page I


affiliates, agents, parent companies, partners, subsidiaries, employees, and anyone

acting by or through them, except that Home Solutions Partners II, LP and HomeSolutions Partners II REO, LLC are specifically excluded from this term.

(o) The term "Bgggjvgçhip_Orders" refers to the following orders entered by the

Court in the above-styled action (the "SEC Matter'): (1) Agreed OrderAppointing Receiver over Entities Under Control of James G. Temme entered

Ootober 28, 20ll (Doo. 2Ð; (2) Agreed Order Appointing Receiver over

Stewardship Fund, LP and Related Entities entered October 28,2011 (Doc. 25);and (3) Order Appointing Receiver over James G. Temme dated November 3,

2011 (Doc. 30),

(d) The term "settlement Agreement" refers to the Compromise and Settlement

Agreement and Ful[, Final, and Mutual Release of Claims by and between the

Receiver and the HSP/Harbour Parties, a hue and correct copy of which was

included as Exhibit A in the appendix in support of the Motion, as suoh agreement

may have been or may hereafter be modifred, amended, supplemented, or restated

in whole or in part.

(e) The term "stewardship Inves ' refers to the various investment plans

arranged, executed, or orchestrated by Temme or Stewardship Fund, LP callingfor investments into any one or more of the Receivership Entities'

(Ð The term "stewardship Credi " refers to any and all persons or entities

(including any of their direct or indirect relatives, heirs, successors, assigns,

affïliates, agents, parent companies, partners, subsidiaries, employees, and anyone

acting by or through them) heretofore or hereafter asserting any claims of any

type or nature directly or indirectly against any of the Receivership Entities or on

account of any transaction with any of the Receivership Entities. Such term shall

include, without limitation, (i) any porson or entity who files a olaim or enters an

appearance in this receivership proceeding at any time, (ii) any person or entity

asserting any claim al any time on account of any investment, loan, transfer ofmoney or other property, or other transaction involving any of the Receivership

Entities, regardless of whether such person, entity, creditor or claimant files a

claim with the Receiver or enters an appearance in the receivership proceeding,

and (iii) any person or entity who invested in any Stewardship Investment Plan.

2, The Receiver's Motion seeks authorization and approval for the Receiver to enter

into and perform the Settlement Agreement with the HSP/Harbour Parties and requests that the

Court:

(a) determine that the proposed Settlement Agreement between the Receiver and the

HSPÆIarbour Parties be deemed fair, equitable, reasonable, and ín the best

ORDER Page2


(b)

interests of the Receivership Entities and the receivership estate, and thus be

authorized and approved by the Court; and

enter an order, as a condition of the proposed settlement, permanently baning or

enjoining any and all Stewardship Creditors from commencing or continuing anyjudicial, administrative, arbitration, of other proceeding, and from asserting orprosecuting any claims or causes of action, against any of the HSP/HarbourParties and certain persons and entities affiliated with the HSPÆIarbour Parties,

arising out of, in connection with, or relating in any way to the ReceivershþEntities, the Stewardship Investment Plan, any investments made in any of the

Receivership Entities by the Stewardship Creditors, and any transfers made to orreceived by any of the HSP/Harbour Parties, directly or indirectly, from any of the

Receivership Entities.

The Receiver provided due and proper notice of the Motion, the Settlement

Agreement, the proposed settlement, and any hearing on the Motion, to all interested persons,

and the Court has considered the papers filed and arguments made by the Receiver in support of

the Motion, as well as any objections to the Motion, and such other and further evidence as has

been presented to the Court.

4. The Court has found, concluded, and determined that the Motion should be

GRANTED, and it is therefore ORDERED that:

(a) the Motion is herebY GRANTED;

(b) The Settlement Agleement between the Receiver and the HSP/Harbour Parties is

hereby AUTHORIZED and APPROVED; and

(c) Any and all of the Stewardship Creditors and any and all holders of any equity

interests in any of the Receivership Entities are hereby permanently BARRED,RESTRAINED, and ENJOINED, consistent with general equitable principles and

in accordance with this Court's ancillary equitable jurisdiction in the SEC Matter,

from: (i) commencing or continuing any judicial, administrative, arbitration, or

other proceeding of any kind whatsoever and asserting or prosecuting any claims

and causes of action against any of the HSP/Harbour Parties or their respective

past, present, and future agents, officers, directors, employees, heirs,

beneficiaries, representatives, managers, relations by blood and marriage,

affrliates, predecessors, successors, assigns, and related entities, including theircurrent or former general partners and limited partners, arising out of, inconnection with, or relating in any way to the Receivership Entities, the

Stewardship InvesÍnent Plan, any investrnents made in any of the Receivership

J

ORDER Pnge 3


Entities by the Stewardship Creditors, or any transfers made to or received by any

of the HSP/Harbour Parties, directly or indirectly, from any of the ReceivetshipEntities, (ii) enforoing, attaching, collecting, or recovering by any manner ormeans, whether directly or indirectly, from any of the HSP/Harbour Parties anyjudgment, award, decree, or other order on account of such party's claims againstor interests in any of the Receivership Entities, (iii) creating, perfecting, orenforcing in any manner, directly or indirectly, any encumbranoe of any kind as toany property of any of the HSP/Harbour Parties whether currently existing orhereafter acquired, and (iv) asserting any right of setoff, recoupment, orsubrogation of any kind as to any of the HSP/Harbour Parties.

5. Neither the HSP/tlarbour Parties' settlement with the Receiver, nor any of the

terms or provisions of the Settlement Agreement, nor any of the negotiations or proceedings in

connection with the settlement, nor any of the documents or statements referred to therein shall

be construed as or deemed in any judicial, administrative, arbitration, or other type of proceeding

to be evidence of a presumption, concession, or an admission by the HSP/Harbour Parties of the

truth of any fact alleged or the validity of any claim that has been, could have been, or in the

future might be asserted in the SEC Matter, or in any other judicial, administrative, arbitration, or

other proceeding.

6, The rights of the Stewardship Creditors and any equity holders of any of the

Receivership Entities to participate in the claims process for the Receiver's ultimate plan of

distribution for the Receivership Entities shall not be impaired by this Order.

7. This Order is a collateral and appealable Order as of the date of its entry.

8. The Court shall have and retain jurisdiction over all matters related to the

administration, interpretation, effectuation, or enforcement of this Order, the Settlement

Agreement, and any related disputes.

g. The Clerk of Court shall promptly serve copies of this Order upon all parties to

the SEC Matter.

ORDER Page 4


IT IS SO ORDERED,

SIGNED this _ day of 2013.

LINITED STATES DISTRICT JUDGE

ORDER Pnge 5


Documents

Exhibit 1 281-1... · 2019-07-09 · 9. Settlement Pøyment, Collectively, the HSP/Harbour Parties shall pay $550,000,00 in the aggregate to the Receiver for the benefrt of the Receivership