EXHIBIT 99.2
PROPOSED SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is entered into as of the
5th day of February 2003, by and among Xxxxxxx X Xxxxxxxxx (the "Trustee"),
solely in his capacity as the chapter 7 trustee for the bankruptcy estates of
Commercial Money Centers, Inc. ("CMC") and Commercial Servicing Corporation
("CSC" and together with CMC, the "Debtors") in the bankruptcy cases (the
"Bankruptcy Cases") jointly administered under U.S.B.C. Case No. 02-09721-H7 and
currently pending before the United States Bankruptcy Court for the Southern
District of California (the "California Bankruptcy Court"), NetBank, a federal
savings bank ("NetBank"), and Lakeland Bank ("Lakeland"), with reference to the
following facts:
RECITALS
A. During approximately 1999 and 2000, NetBank and the Debtors entered
into a series of transactions (the "NetBank Transactions") under which NetBank
purchased certain rights with respect to lease pools or portfolios (the "NetBank
Portfolio Leases") from CMC pursuant to written agreements between the parties
(the "NetBank Documents"). The rights purchased by NetBank under the NetBank
Documents included: (i) the contractual right to receive scheduled payments due
under the NetBank Portfolio Leases (the "NetBank Income Stream"); (ii) the funds
in certain collection accounts (the "NetBank Collection Accounts"); (iii) all
rights under the insurance policies and surety bonds obtained to guarantee
payment of the NetBank Income Stream (the "NetBank Surety Bonds") issued by
Illinois Union Insurance Company, Safeco Insurance Company, and Royal Indemnity
Company (the "NetBank Sureties"); and (iv) the proceeds derived from the
foregoing (together with the NetBank Income Stream, the NetBank Collection
Accounts, and the NetBank Surety Bonds, the "NetBank Transferred Assets"). In
connection with the purchase of the NetBank Surety Bonds, certain funds were
placed into reserve accounts (the "NetBank Surety Bonds Cash Reserves") to pay
for claims against the NetBank Surety Bonds.
B. Pursuant to the NetBank Documents, and as part of the NetBank
Transactions, CMC also granted NetBank a security interest in certain assets
related to the NetBank Transferred Assets, including the NetBank Portfolio
Leases, the underlying equipment (the "NetBank Equipment"), and CMC's rights
under the Property, Casualty and Skip Insurance Policies (the "Skip Policies")
purchased by CMC with respect to the NetBank Equipment (together, "NetBank
Collateral").
C. Pursuant to the NetBank Documents, the NetBank Sureties acted as the
servicers for the NetBank Portfolio Leases and CMC initially acted as
sub-servicer. As sub-servicer, CMC was responsible for collecting the payments
due from the lessees under the NetBank Portfolio Leases and remitting the agreed
upon monthly amount to NetBank. In those instances where the collections on the
NetBank Portfolio Leases for any given month were less than the minimum amount
promised to NetBank, CMC often advanced funds (the "NetBank Servicer Advances")
to NetBank to make up the difference between the actual collections and the
payment due to NetBank.
D. In or about 2001, Lakeland and the Debtors entered into a series of
transactions (the "Lakeland Transactions") under which Lakeland purchased rights
with respect to lease pools or portfolios (the "Lakeland Portfolio Leases") from
CMC pursuant to written agreements between the parties (the "Lakeland
Documents"). The rights purchased by Lakeland under the Lakeland Documents
included: (i) the contractual right to receive scheduled payments due under the
Lakeland Portfolio Leases (the "Lakeland Income Stream"); (ii) the funds in
certain collection accounts (the "Lakeland Collection Accounts"); (iii) all
rights under the insurance policies and surety bonds obtained to guarantee
payment of the Lakeland Income Stream (the "Lakeland Surety Bonds") issued by
RLI Insurance Company, Royal Indemnity Company, and American Motorists Insurance
Company (the "Lakeland Sureties"); and (iv) the proceeds derived from the
foregoing (together with the Lakeland Income Stream, the Lakeland Collection
Accounts, and the Lakeland Surety Bonds, the "Lakeland Transferred Assets"). In
connection with the purchase of the Lakeland Surety Bonds, certain funds were
placed into reserve accounts (the "Lakeland Surety Bonds Cash Reserves") to pay
for claims against the Lakeland Surety Bonds.
E. Pursuant to the Lakeland Documents, and as part of the Lakeland
Transactions, CMC also granted Lakeland a security interest in certain assets
related to the Lakeland Transferred Assets, including the Lakeland Portfolio
Leases, the underlying equipment (the "Lakeland Equipment"), and CMC's rights
under the Skip Policies purchased by CMC with respect to the Lakeland Equipment
(together, the "Lakeland Collateral").
F. Pursuant to the Lakeland Documents, the Lakeland Sureties acted as
the servicers for the Lakeland Portfolio Leases and CMC and/or CSC initially
acted as sub-servicer. As sub-servicer, CMC was responsible for collecting the
payments due from the lessees under the Lakeland Portfolio Leases and remitting
the agreed upon monthly amount to Lakeland. In those instances where the
collections on the Lakeland Portfolio Leases for any given month were less than
the minimum amount promised to Lakeland, CMC often advanced funds (the "Lakeland
Servicer Advances") to Lakeland to make up the difference between the actual
collections and the payment due to Lakeland.
G. On May 30, 2002 (with respect to CMC, the "Petition Date"), CMC
commenced a case under chapter 11 of title 11 of the United State Code (the
"Bankruptcy Code") with the United States Bankruptcy Court for the Southern
District of Florida (the "Florida Bankruptcy Court"). On June 13, 2002 (with
respect to CSC, the "Petition Date"), CSC also filed for chapter 11 protection
with the Florida Bankruptcy Court.
H. On June 24, 2002, each of the Debtors consented to the appointment
of a chapter 11 trustee in the Bankruptcy Cases. On June 27, 2002, the Debtors
each filed motions to convert the Bankruptcy Cases to chapter 7. On June 28,
2002, Xxxxxxx Xxxx (the "Prior Trustee") was appointed as chapter 11 trustee for
both of the Debtors. On July 12, 2002, the Florida Bankruptcy Court granted the
motion to convert and entered orders converting both of the Bankruptcy Cases to
chapter 7, at which time the Prior Trustee began acting as chapter 7 trustee for
both of the Debtors.
I. On September 18, 2002, the Florida Bankruptcy Court entered an Order
Granting, in Part, Emergency Motion by Trustee, Xxxxxxx X. Welt, to Compel
Turnover of Property of the
2
Bankruptcy Estate and an Order Granting, in Part, Trustee's Motion for Entry of
Order Authorizing Retention of U.S. Bancorp Portfolio Servicing Company as
Servicing Agent (together, the "Servicing Orders"), under which Xxxxxx Xxxxx &
Associates and U.S. Bancorp Portfolio Servicing Company (together, the
"Servicing Companies") were permitted to continue to act as servicers with
respect to certain of the leases to which the Debtors were a party, including
the NetBank Portfolio Leases and the Lakeland Portfolio Leases.
J. On September 18, 2002, the Florida Bankruptcy Court entered orders
in each of the Bankruptcy Cases transferring venue to the Southern District of
California and, on October 2, 2002, the clerk of the Florida Bankruptcy Court
filed a notice that the records in these Bankruptcy Cases had been transferred
to the California Bankruptcy Court. On October 3, 2002, the order transferring
venue was filed with the California Bankruptcy Court.
K. The Bankruptcy Cases are currently pending before the California
Bankruptcy Court. The Trustee is the duly authorized chapter 7 trustee in the
Bankruptcy Cases for the bankruptcy estates of both of the Debtors (together,
the "Bankruptcy Estates").
L. The Trustee has asserted that the Bankruptcy Estates hold claims
against both NetBank and Lakeland under the avoidance provisions of the
Bankruptcy Code. Specifically, the Trustee has alleged the rights to avoid: (i)
NetBank's rights in the NetBank Transferred Assets and the NetBank Collateral;
and (ii) Lakeland's rights in the Lakeland Transferred Assets and the Lakeland
Collateral. NetBank and Lakeland contest the Trustee's claims, and believe they
are currently the rightful holders of unavoidable ownership interests in all the
NetBank Transferred Assets and Lakeland Transferred Assets and have unavoidable
security interests in the NetBank Collateral and Lakeland Collateral.
M. Based on the Debtors' books and records, the Trustee believes that,
as of the Petition Date, the Debtors were holding approximately $3,207,867 in
cash, approximately $1,060,084 of which was held in CSC's money market account
(the "Money Market Funds") and approximately $2,147,783 of which was contained
in various accounts associated with the lease pools or portfolios (the "Pool
Account Funds") with respect to which CMC and/or CSC acted as sub-servicer,
including certain accounts associated with the NetBank Portfolio Leases totaling
$1,087,107 (the "NetBank Pool Account Funds") and the Lakeland Portfolio Leases
totaling $170,856 (the "Lakeland Pool Account Funds"). The Trustee contends that
the Money Market Funds and the Pool Account Funds, including the NetBank Pool
Account Funds the Lakeland Pool Account Funds, have been commingled with the
Bankruptcy Estates' funds prior to being deposited into their respective
accounts, are untraceable, and constitute unencumbered property of the
Bankruptcy Estates. NetBank and Lakeland claim that the Money Market Funds, the
NetBank Pool Account Funds, and the Lakeland Pool Account Funds are held in
trust by the Trustee.
N. Since the Petition Date, the Servicing Companies have collected
certain additional amounts paid under the NetBank Portfolio Leases (the "NetBank
Postpetition Collections") and the Lakeland Portfolio Leases (the "Lakeland
Postpetition Collections"). These amounts (less certain amounts deducted by the
Servicing Companies) are currently being held by the Trustee under the terms of
the Servicing Orders pending a final resolution of the parties' rights to these
funds.
3
O. On November 8, 2002, Lakeland filed Proofs of Claim asserting a
secured claim against the Debtors in the amount of $19,352.409.33 (the "Lakeland
Proof of Claim").
P. On November 12, 2002, NetBank filed Proofs of Claim asserting a
secured claim against the Debtors in the amount of $123,989,772.62 (the "NetBank
Proof of Claim").
Q. NetBank has asserted certain claims for relief and rights to
recovery under the NetBank Surety Bonds against the NetBank Sureties in the
multidistrict litigation ("MDL") currently pending as Case No. 1:02CV16000 in
the United States District Court for the Northern District of Ohio, Eastern
Division (the "MDL Court").
R. Lakeland has asserted certain claims for relief and rights to
recovery under the Lakeland Surety Bonds against the Lakeland Sureties in the
MDL currently pending in the MDL Court.
S. The parties believe it to be in their respective best interests to
fully and finally resolve any and all claims between them including, but not
limited to, those relating to these Recitals. For valuable consideration,
receipt of which is hereby acknowledged, the Trustee, NetBank, and Lakeland, and
each of them, hereby agree to the following:
AGREEMENT
1. INCORPORATION OF RECITALS. Subject to this Agreement and conditions
stated herein, Recitals A through S, inclusive, are incorporated herein by this
reference.
2. BANKRUPTCY COURT APPROVAL/EFFECTIVENESS. The Trustee shall file a
motion to approve pursuant to Federal Rule of Bankruptcy Procedure 9019 with
respect to this Agreement with the California Bankruptcy Court within ten (10)
business days after the date of this Agreement. The effectiveness of this
Agreement is subject in all respects to approval of the California Bankruptcy
Court. This Agreement shall become effective (the "Effective Date") immediately
upon the entry of the Order by the California Bankruptcy Court approving the
terms of this Agreement and authorizing the Trustee to settle the Bankruptcy
Estates' claims against NetBank and Lakeland as contemplated herein (the
"Approval Order") and, absent a stay pending appeal with respect to the Approval
Order pursuant to Federal Rule of Bankruptcy Procedure 8005, the parties shall
perform their obligations under this Agreement notwithstanding the filing of an
appeal of the Approval Order.
3. DISPOSITION OF MONEY MARKET FUNDS AND POOL ACCOUNT FUNDS. In order
to resolve the dispute over the Money Market Funds and the Pool Account Funds,
the parties agree as follows:
a. Both NetBank and Lakeland agree and acknowledge that the
Money Market Funds are property of the Bankruptcy Estates and are not
subject to any secured claims by NetBank or Lakeland or held in trust
for NetBank or Lakeland. Both NetBank and Lakeland hereby release and
waive any and all claims of any nature whatsoever against the Money
Market Funds. The entry of the Approval Order shall constitute an order
of the California Bankruptcy Court authorizing the Trustee to use the
Money Market Funds in accordance with sections 363 and 721 of the
Bankruptcy Code.
4
b. The Trustee agrees that, for purposes of this Agreement
only and solely with respect to NetBank and Lakeland, the NetBank Pool
Account Funds and the Lakeland Pool Account Funds shall be deemed held
in trust for NetBank and Lakeland, respectively. The NetBank Pool
Account Funds and the NetBank Postpetition Collections shall, for
purposes of this Agreement, be included in the definition of the
"NetBank Portfolio Funds." The Lakeland Pool Account Funds and the
Lakeland Postpetition Collections shall, for purposes of this
Agreement, be included in the definition of the "Lakeland Portfolio
Funds." The Trustee expressly reserves all of the Bankruptcy Estates'
rights with respect to any Pool Account Funds other than the NetBank
Pool Account Funds and the Lakeland Pool Account Funds, and nothing in
this Agreement shall in any way affect the Bankruptcy Estates' rights
with respect to such Pool Account Funds.
4. SETTLEMENT PAYMENT BY NETBANK. NetBank hereby agrees to pay to the
Trustee, as the duly authorized representative of the Bankruptcy Estates, the
sum of Six Million Two Hundred Forty-Eight Thousand Two Hundred and Fifty
Dollars ($6,248,250), paid exclusively as follows:
a. Two Million Seven Hundred Seven Thousand Five Hundred
Seventy-Five Dollars ($2,707,575) payable in cash or immediately
available funds immediately on the Effective Date. The amount payable
under this subparagraph (a) shall be taken from the NetBank Portfolio
Funds held by the Trustee on the Effective Date. The Trustee shall,
after payment of the amounts due to the Bankruptcy Estates, remit any
and all remaining NetBank Portfolio Funds to NetBank on or before the
fifth (5th) business day after the Effective Date along with a full
accounting of the NetBank Portfolio Funds.
b. Five percent (5%) of any amounts recovered, directly or
indirectly, from the NetBank Sureties, not to exceed Three Million Five
Hundred Forty Thousand Six Hundred Seventy-Five ($3,540,675), whether
recovered through the MDL or otherwise, arising out of, or related to,
any of the matters or facts alleged or set forth in Recitals A through
S of this Agreement; PROVIDED, HOWEVER, the amount with respect to
which the Trustee shall receive the five percent (5%) payment under
this subparagraph (b) shall not include amounts solely constituting
payment of the NetBank Portfolio Funds, the proceeds from NetBank
Collateral, the NetBank Income Stream, the NetBank Collection Accounts,
the NetBank Surety Bonds Cash Reserves, or any other amount, paid to
NetBank by the NetBank Sureties in their capacity as the servicer of
the NetBank Portfolio Leases. The amounts payable to the Trustee under
this subparagraph (b) shall be paid in cash or immediately available
funds within five (5) business days after receipt of payment from the
NetBank Sureties. If NetBank does not recover from the NetBank Sureties
with respect to the matters set forth herein (by judgment, settlement,
or otherwise), the Trustee will receive no funds from NetBank under
this subparagraph (b) and the Trustee's sole recovery under paragraph 4
of this Agreement shall be the amount stated in paragraph 4(a).
5. SETTLEMENT PAYMENT BY LAKELAND. Lakeland hereby agrees to pay to the
Trustee, as the duly authorized representative of the Bankruptcy Estates, the
sum of One Million Two
5
Hundred Fifty-One Thousand Seven Hundred Fifty Dollars ($1,251,750), paid as
exclusively follows:
a. Five Hundred Forty-Two Thousand Four Hundred Twenty-Five
Dollars ($542,425) payable in cash or immediately available funds
immediately on the Effective Date. The amount payable under this
subparagraph (a) shall be taken from the Lakeland Portfolio Funds held
by the Trustee on the Effective Date and, in the event that the
Lakeland Portfolio Funds are insufficient to pay the full amount due,
paid in cash or immediately available funds by Lakeland on or before
the fifth (5th) business day after the Effective Date. In the event
that Lakeland Portfolio Funds held by the Trustee on the Effective Date
are greater than the amount required to be paid under this subparagraph
(a), the Trustee shall, after payment of the amount due to the
Bankruptcy Estates, remit any and all remaining Lakeland Portfolio
Funds to Lakeland on or before the fifth (5th) business day after the
Effective Date along with a full accounting of the Lakeland Portfolio
Funds to Lakeland.
b. Five percent (5%) of any amounts recovered, directly or
indirectly, from the Lakeland Sureties, not to exceed Seven Hundred
Nine Thousand Three Hundred Twenty-Five ($709,325), whether recovered
through the MDL or otherwise, arising out of, or related to, any of the
matters or facts alleged or set forth in Recitals A through S of this
Agreement; PROVIDED, HOWEVER, the amount with respect to which the
Trustee shall receive the five percent (5%) payment under this
subparagraph (b) shall not include amounts solely constituting payment
of the Lakeland Portfolio Funds, the proceeds from Lakeland Collateral,
the Lakeland Income Stream, the Lakeland Collection Accounts, the
Lakeland Surety Bonds Cash Reserves, or any other amount, paid to
Lakeland by the Lakeland Sureties in their capacity as the servicer of
the Lakeland Portfolio Leases. The amounts payable to the Trustee under
this subparagraph (b) shall be paid in cash or immediately available
funds within five (5) business days of the entry after receipt of
payment from the Lakeland Sureties. If Lakeland does not recover from
the Lakeland Sureties with respect to the matters set forth herein (by
judgment, settlement, or otherwise), the Trustee will receive no funds
from Lakeland under this subparagraph (b) and the Trustee's sole
recovery under paragraph 5 of this Agreement shall be the amount stated
in paragraph 5(a).
6. NETBANK ALLOWED UNSECURED CLAIM. As of the Effective Date, NetBank
shall have an allowed unsecured claim in the full amount stated in the NetBank
Proof of Claim (the "NetBank Allowed Unsecured Claim"). Notwithstanding the
provisions of this paragraph 6, the amount of NetBank Allowed Unsecured Claim
shall be reduced by any payments NetBank actually receives under this Agreement
or in the future on account of the NetBank Income Stream or the NetBank Surety
Bonds, or any other right arising out of the NetBank Transactions; PROVIDED,
HOWEVER, that the amount deemed received by NetBank for the purpose of reducing
the NetBank Allowed Unsecured Claim shall not include any amounts paid over to
the Trustee pursuant to paragraph 4(b) of this Agreement or otherwise.
7. LAKELAND ALLOWED UNSECURED CLAIM. As of the Effective Date, Lakeland
shall have an allowed unsecured claim in the full amount stated in the Lakeland
Proof of Claim (the "Lakeland Allowed Unsecured Claim"). Notwithstanding the
provisions of this paragraph 7,
6
the amount of Lakeland Allowed Unsecured Claim shall be reduced by any payments
Lakeland actually receives under this Agreement or in the future on account of
the Lakeland Income Stream or the Lakeland Surety Bonds, or any other right
arising out of the Lakeland Transactions; PROVIDED, HOWEVER, that the amount
deemed received by Lakeland for the purpose of reducing the Lakeland Allowed
Unsecured Claim shall not include any amounts paid over to the Trustee pursuant
to paragraph 5(b) of this Agreement or otherwise.
8. ASSIGNMENT OF NETBANK TRANSFERRED ASSETS AND THE NETBANK SURETY
BONDS CASH RESERVES TO NetBank. The Trustee agrees and acknowledges that,
pursuant to the NetBank Documents, NetBank is the owner of the NetBank
Transferred Assets. The Trustee hereby assigns, as of the Effective Date, all of
the Bankruptcy Estates' rights, title, and interests in the NetBank Transferred
Assets and the NetBank Surety Bonds Cash Reserves to NetBank.
9. ASSIGNMENT OF LAKELAND TRANSFERRED ASSETS AND THE LAKELAND SURETY
BONDS CASH RESERVES TO LAKELAND. The Trustee agrees and acknowledges that,
pursuant to the Lakeland Documents, Lakeland is the owner of the Lakeland
Transferred Assets. The Trustee hereby assigns, as of the Effective Date, all of
the Bankruptcy Estates' rights, title, and interests in the Lakeland Transferred
Assets and the Lakeland Surety Bonds Cash Reserves to Lakeland.
10. PERFECTION OF NETBANK'S INTERESTS. Entry of the Approval Order
shall constitute an order of the California Bankruptcy Court granting relief
from the automatic stay under section 362 of the Bankruptcy Code for the limited
purpose of permitting NetBank and its agents, and the servicers of the NetBank
Portfolio Leases, to take whatever actions NetBank deems necessary, appropriate,
or desirable to perfect any of its interests in the NetBank Transferred Assets
and the NetBank Collateral, including, but not limited to, filings of U.C.C.
forms and possession of the NetBank Portfolio Leases.
11. PERFECTION OF LAKELAND'S INTERESTS. Entry of the Approval Order
shall constitute an order of the California Bankruptcy Court granting relief
from the automatic stay under section 362 of the Bankruptcy Code for the limited
purpose of permitting Lakeland and its agents, and the servicers of the Lakeland
Portfolio Leases, to take whatever actions Lakeland deems necessary,
appropriate, or desirable to perfect any of its interests in the Lakeland
Transferred Assets and the Lakeland Collateral, including, but not limited to,
filings of U.C.C. forms and possession of the Lakeland Portfolio Leases.
12. DISPOSITION OF THE NETBANK COLLATERAL. The NetBank Collateral shall
be retained by the Bankruptcy Estates subject to the terms and conditions of
this Agreement. Both the Trustee and NetBank agree and acknowledge that the
security interest in the NetBank Collateral granted to NetBank pursuant to the
NetBank Documents secured NetBank's right to collect on the NetBank Portfolio
Leases on a lease-by-lease basis and was not cross-collateralized between
leases. As such, NetBank and the Trustee agree as follows:
a. The payment in full of the NetBank Income Stream with
respect to any of the individual NetBank Portfolio Leases shall fully
discharge the secured obligation with respect to such lease and all of
the NetBank Collateral associated with such lease (including, without
limitation, the right to receive any "residual" or "buy-out" payment
under the NetBank Portfolio Lease, the NetBank Equipment under such
lease, and all
7
rights under the Skip Policies with respect to the NetBank Equipment
under such lease) shall be retained by the Bankruptcy Estates free and
clear of any secured claims by NetBank.
b. Until such time as NetBank receives the full payment of the
NetBank Income Stream with respect to a particular NetBank Portfolio
Lease, NetBank shall retain all of its rights to the NetBank Collateral
associated with such lease. In the event that there is or has been a
default under such a NetBank Portfolio Lease and the NetBank Equipment
under that defaulted lease is repossessed and sold by the Servicing
Company, the Trustee shall turnover to NetBank within thirty (30) days
of receipt from the Servicing Company the net proceeds of the sale of
the repossessed NetBank Equipment (after deducting the Trustee's costs
directly attributable to the repossession or sale and allowable
pursuant to section 506(c) of the Bankruptcy Code) for the purpose of
paying NetBank's secured claim under that specific defaulted NetBank
Portfolio Lease. Notwithstanding the immediately preceding sentence, in
the event that the NetBank Sureties or the Servicing Companies are
later determined by the Bankruptcy Court to hold a claim against the
Bankruptcy Estates relating to, or arising out of, the postpetition
servicing of any NetBank Portfolio Leases, NetBank shall reimburse the
Trustee for any such claim within thirty (30) days of written demand by
the Trustee. If the net proceeds of such a sale of repossessed NetBank
Equipment exceeds the amount due to NetBank with respect to that
particular NetBank Portfolio Lease, any excess amounts shall be
retained by the Bankruptcy Estates free and clear of any claims by
NetBank. With respect to any NetBank Portfolio Lease where a default
occurs, or has occurred, and the NetBank Equipment cannot be located,
the Trustee shall be deemed to have assigned to NetBank the exclusive
right to pursue any and all claims against the applicable Skip Policy
covering the NetBank Equipment, and such claims shall be pursued
exclusively by NetBank at its expenses; PROVIDED, HOWEVER, in the event
that NetBank collects net proceeds on any such claim against the Skip
Policy (after deducting NetBank's reasonable costs directly
attributable to the collection of that particular claim under the Skip
Policy) that results in payment in full of the NetBank Income Stream
under the related NetBank Portfolio Lease, any excess amounts collected
under the Skip Policy shall be paid to the Bankruptcy Estates free and
clear of any claims by NetBank within thirty (30) days of receipt by
NetBank.
13. DISPOSITION OF THE LAKELAND COLLATERAL. The Lakeland Collateral
shall be retained by the Bankruptcy Estates subject to the terms and conditions
of this Agreement. Both the Trustee and Lakeland agree and acknowledge that the
security interest in the Lakeland Collateral granted to Lakeland pursuant to the
Lakeland Documents secured Lakeland's right to collect on the Lakeland Portfolio
Leases on a lease-by-lease basis and was not cross-collateralized between
leases. As such, Lakeland and the Trustee agree as follows:
a. The payment in full of the Lakeland Income Stream with
respect to any of the individual Lakeland Portfolio Leases shall fully
discharge the secured obligation with respect to such lease and all of
the Lakeland Collateral associated with such lease (including, without
limitation, the right to receive any "residual" or "buy-out" payment
under the Lakeland Portfolio Lease, the Lakeland Equipment under such
lease, and all rights under the Skip Policies with respect to the
Lakeland Equipment under such lease)
8
shall be retained by the Bankruptcy Estates free and clear of any
secured claims by Lakeland.
b. Until such time as Lakeland receives the full payment of
the Lakeland Income Stream with respect to a particular Lakeland
Portfolio Lease, Lakeland shall retain all of its rights to the
Lakeland Collateral associated with such lease. In the event that there
is or has been a default under such a Lakeland Portfolio Lease and the
Lakeland Equipment under that defaulted lease is repossessed and sold
by the Servicing Company, the Trustee shall turnover to Lakeland within
thirty (30) days of receipt from the Servicing Company the net proceeds
of the sale of the repossessed Lakeland Equipment (after deducting the
Trustee's costs directly attributable to the repossession or sale and
allowable pursuant to section 506(c) of the Bankruptcy Code) for the
purpose of paying Lakeland's secured claim under that specific
defaulted Lakeland Portfolio Lease. Notwithstanding the immediately
preceding sentence, in the event that the Lakeland Sureties or the
Servicing Companies are later determined by the Bankruptcy Court to
hold a claim against the Bankruptcy Estates relating to, or arising out
of, the postpetition servicing of any Lakeland Portfolio Leases,
Lakeland shall reimburse the Trustee for any such claim within thirty
(30) days of written demand by the Trustee. If the net proceeds of such
a sale of repossessed Lakeland Equipment exceeds the amount due to
Lakeland with respect to that particular Lakeland Portfolio Lease, any
excess amounts shall be retained by the Bankruptcy Estates free and
clear of any claims by Lakeland. With respect to any Lakeland Portfolio
Lease where a default occurs, or has occurred, and the Lakeland
Equipment cannot be located, the Trustee shall be deemed to have
assigned to Lakeland the exclusive right to pursue any and all claims
against the applicable Skip Policy covering the Lakeland Equipment, and
such claims shall be pursued exclusively by Lakeland at its expenses;
PROVIDED, HOWEVER, in the event that Lakeland collects net proceeds on
any such claim against the Skip Policy (after deducting Lakeland's
reasonable costs directly attributable to the collection of that
particular claim under the Skip Policy) that results in payment in full
of the Lakeland Income Stream under the related Lakeland Portfolio
Lease, any excess amounts collected under the Skip Policy shall paid be
to the Bankruptcy Estates free and clear of any claims by Lakeland
within thirty (30) days of receipt by Lakeland.
14. MUTUAL GENERAL RELEASES.
a. THE TRUSTEE'S RELEASE OF NETBANK. Provided that NetBank
performs its obligations under this Agreement, the Trustee, on behalf
of the Bankruptcy Estates, and his successors and assigns shall and
does hereby forever relieve, release and discharge NetBank, its agents,
attorneys, employees, representatives, shareholders, officers,
directors, subsidiaries, affiliates, successors and assigns, from any
and all claims, debts, liabilities, demands, obligations, promises,
acts, agreements, costs and expenses (including, but not limited to,
attorneys' fees), damages, injuries, actions and causes of actions
(including but not limited to all avoidance actions of any type), of
whatever kind or nature, whether legal or equitable, known or unknown,
suspected or unsuspected, contingent or fixed, based upon, arising out
of, appertaining to, or in connection with any matter whatsoever, of
any kind or type, from the beginning of time to and including the
9
date of this Agreement, including, without limitation any of the
matters or facts alleged or set forth in Recitals A through S
inclusive.
b. THE TRUSTEE'S RELEASE OF LAKELAND. Provided that Lakeland
performs its obligations under this Agreement, the Trustee, on behalf
of the Bankruptcy Estates, and his successors and assigns shall and
does hereby forever relieve, release and discharge Lakeland, its
agents, attorneys, employees, representatives, shareholders, officers,
directors, subsidiaries, affiliates, successors and assigns, from any
and all claims, debts, liabilities, demands, obligations, promises,
acts, agreements, costs and expenses (including, but not limited to,
attorneys' fees), damages, injuries, actions and causes of actions
(including but not limited to all avoidance actions of any type), of
whatever kind or nature, whether legal or equitable, known or unknown,
suspected or unsuspected, contingent or fixed, based upon, arising out
of, appertaining to, or in connection with any matter whatsoever, of
any kind or type, from the beginning of time to and including the date
of this Agreement, including, without limitation any of the matters or
facts alleged or set forth in Recitals A through S inclusive.
c. NETBANK'S RELEASE OF THE TRUSTEE/BANKRUPTCY ESTATES.
Provided that the Trustee performs the Bankruptcy Estates' obligations
under this Agreement, NetBank, its successors and assigns, and each of
them, shall and does hereby forever relieve, release and discharge the
Trustee, his agents, attorneys, employees and representatives, and the
Bankruptcy Estates, and their successors and assigns, from any and all
claims, debts, liabilities, demands, obligations, promises, acts,
agreements, costs and expenses (including, but not limited to,
attorneys' fees), damages, injuries, actions and causes of actions, of
whatever kind or nature, whether legal or equitable, known or unknown,
suspected or unsuspected, contingent or fixed, based upon, arising out
of, appertaining to, or in connection with any matter whatsoever, of
any kind or type, from the beginning of time to and including the date
of this Agreement without limitation any of the matters or facts
alleged or set forth in Recitals A through S inclusive.
d. LAKELAND'S RELEASE OF THE TRUSTEE/BANKRUPTCY ESTATES.
Provided that the Trustee performs the Bankruptcy Estates' obligations
under this Agreement, Lakeland, its successors and assigns, and each of
them, shall and does hereby forever relieve, release and discharge the
Trustee, his agents, attorneys, employees and representatives, and the
Bankruptcy Estates, and their successors and assigns, from any and all
claims, debts, liabilities, demands, obligations, promises, acts,
agreements, costs and expenses (including, but not limited to,
attorneys' fees), damages, injuries, actions and causes of actions, of
whatever kind or nature, whether legal or equitable, known or unknown,
suspected or unsuspected, contingent or fixed, based upon, arising out
of, appertaining to, or in connection with any matter whatsoever, of
any kind or type, from the beginning of time to and including the date
of this Agreement without limitation any of the matters or facts
alleged or set forth in Recitals A through S inclusive.
e. As to the matters released herein, the parties expressly
waive any and all rights under section 1542 of the Civil Code of the
State of California, which provides as follows:
10
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
f. THE PARTIES EXPRESSLY WAIVE AND RELEASES ANY RIGHT OR
BENEFIT WHICH THEY HAVE OR MAY HAVE UNDER SECTION 1542 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA, AND ANY SIMILAR STATUTE, CODE, LAW
AND/OR REGULATION OF THE UNITED STATES, OR ANY STATE THEREOF, TO THE
FULL EXTENT THAT IT MAY WAIVE ALL SUCH RIGHTS AND BENEFITS PERTAINING
TO THE MATTERS RELEASED HEREIN. IN CONNECTION WITH SUCH WAIVER AND
RELINQUISHMENT, EACH PARTIES ACKNOWLEDGES THAT IT IS AWARE THAT IT MAY
HEREAFTER DISCOVER CLAIMS PRESENTLY UNKNOWN OR UNSUSPECTED, OR FACTS IN
ADDITION TO OR DIFFERENT FROM THOSE WHICH IT NOW KNOWS OR BELIEVES TO
BE TRUE. NEVERTHELESS, IT IS THE INTENTION OF EACH PARTY, THROUGH ITS
RELEASE, TO RELEASE ALL MATTERS THAT ARE SUBJECT TO THIS RELEASE, AND
ALL CLAIMS RELATIVE THERETO, WHICH NOW EXIST, MAY EXIST, OR HERETOFORE
HAVE EXISTED. IN FURTHERANCE OF SUCH INTENTION, THE RELEASE HEREIN
GIVEN SHALL BE AND REMAIN IN EFFECT AS A FULL AND COMPLETE
RELEASE OF SUCH MATTERS NOTWITHSTANDING THE DISCOVERY OR EXISTENCE OF
ANY SUCH ADDITIONAL OR DIFFERENT CLAIMS OR FACTS RELATIVE THERETO.
Trustee's Initials: /s/ RMK
-------
NetBank's Initials:
-------
Lakeland's Initials:
-------
g. In entering into the release provided for in this
Agreement, each party recognizes that no facts or representations are
ever absolutely certain; accordingly, each party assumes the risk of
any mistake, and if it should subsequently discover that any
understanding of the facts or of the law was incorrect, neither party
shall not be entitled to set aside this release by reason thereof,
regardless of any mistake of fact or law.
h. None of the releases or waivers contained in this paragraph
9 are intended to, or shall be interpreted as, releasing, waiving, or
limiting any parties' rights under this Agreement.
15. THE TRUSTEE'S RELEASE AND WAIVER OF SERVICER ADVANCE CLAIMS. The
Trustee hereby releases and waives all of the Bankruptcy Estates' rights to
recover the NetBank Servicer Advances and/or the Lakeland Servicer Advances from
any party, including, without limitation, NetBank, Lakeland, the NetBank
Sureties, and the Lakeland Sureties.
11
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
f. THE PARTIES EXPRESSLY WAIVE AND RELEASES ANY RIGHT OR
BENEFIT WHICH THEY HAVE OR MAY HAVE UNDER SECTION 1542 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA, AND ANY SIMILAR STATUTE, CODE, LAW
AND/OR REGULATION OF THE UNITED STATES, OR ANY STATE THEREOF, TO THE
FULL EXTENT THAT IT MAY WAIVE ALL SUCH RIGHTS AND BENEFITS PERTAINING
TO THE MATTERS RELEASED HEREIN. IN CONNECTION WITH SUCH WAIVER AND
RELINQUISHMENT, EACH PARTIES ACKNOWLEDGES THAT IT IS AWARE THAT IT MAY
HEREAFTER DISCOVER CLAIMS PRESENTLY UNKNOWN OR UNSUSPECTED, OR FACTS IN
ADDITION TO OR DIFFERENT FROM THOSE WHICH IT NOW KNOWS OR BELIEVES TO
BE TRUE. NEVERTHELESS, IT IS THE INTENTION OF EACH PARTY, THROUGH ITS
RELEASE, TO RELEASE ALL MATTERS THAT ARE SUBJECT TO THIS RELEASE, AND
ALL CLAIMS RELATIVE THERETO, WHICH NOW EXIST, MAY EXIST, OR HERETOFORE
HAVE EXISTED. IN FURTHERANCE OF SUCH INTENTION, THE RELEASE HEREIN
GIVEN SHALL BE AND REMAIN IN EFFECT AS A FULL AND COMPLETE
RELEASE OF SUCH MATTERS NOTWITHSTANDING THE DISCOVERY OR EXISTENCE OF
ANY SUCH ADDITIONAL OR DIFFERENT CLAIMS OR FACTS RELATIVE THERETO.
Trustee's Initials:
-------
NetBank's Initials: /s/ CM
-------
Lakeland's Initials:
-------
g. In entering into the release provided for in this
Agreement, each party recognizes that no facts or representations are
ever absolutely certain; accordingly, each party assumes the risk of
any mistake, and if it should subsequently discover that any
understanding of the facts or of the law was incorrect, neither party
shall not be entitled to set aside this release by reason thereof,
regardless of any mistake of fact or law.
h. None of the releases or waivers contained in this paragraph
9 are intended to, or shall be interpreted as, releasing, waiving, or
limiting any parties' rights under this Agreement.
15. THE TRUSTEE'S RELEASE AND WAIVER OF SERVICER ADVANCE CLAIMS. The
Trustee hereby releases and waives all of the Bankruptcy Estates' rights to
recover the NetBank Servicer Advances and/or the Lakeland Servicer Advances from
any party, including, without limitation, NetBank, Lakeland, the NetBank
Sureties, and the Lakeland Sureties.
11
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor.
f. THE PARTIES EXPRESSLY WAIVE AND RELEASES ANY RIGHT OR
BENEFIT WHICH THEY HAVE OR MAY HAVE UNDER SECTION 1542 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA, AND ANY SIMILAR STATUTE, CODE, LAW
AND/OR REGULATION OF THE UNITED STATES, OR ANY STATE THEREOF, TO THE
FULL EXTENT THAT IT MAY WAIVE ALL SUCH RIGHTS AND BENEFITS PERTAINING
TO THE MATTERS RELEASED HEREIN. IN CONNECTION WITH SUCH WAIVER AND
RELINQUISHMENT, EACH PARTIES ACKNOWLEDGES THAT IT IS AWARE THAT IT MAY
HEREAFTER DISCOVER CLAIMS PRESENTLY UNKNOWN OR UNSUSPECTED, OR FACTS IN
ADDITION TO OR DIFFERENT FROM THOSE WHICH IT NOW KNOWS OR BELIEVES TO
BE TRUE. NEVERTHELESS, IT IS THE INTENTION OF EACH PARTY, THROUGH ITS
RELEASE, TO RELEASE ALL MATTERS THAT ARE SUBJECT TO THIS RELEASE, AND
ALL CLAIMS RELATIVE THERETO, WHICH NOW EXIST, MAY EXIST, OR HERETOFORE
HAVE EXISTED. IN FURTHERANCE OF SUCH INTENTION, THE RELEASE HEREIN
GIVEN SHALL BE AND REMAIN IN EFFECT AS A FULL AND COMPLETE
RELEASE OF SUCH MATTERS NOTWITHSTANDING THE DISCOVERY OR EXISTENCE OF
ANY SUCH ADDITIONAL OR DIFFERENT CLAIMS OR FACTS RELATIVE THERETO.
Trustee's Initials:
-------
NetBank's Initials:
-------
Lakeland's Initials: /s/ RV
-------
g. In entering into the release provided for in this
Agreement, each party recognizes that no facts or representations are
ever absolutely certain; accordingly, each party assumes the risk of
any mistake, and if it should subsequently discover that any
understanding of the facts or of the law was incorrect, neither party
shall not be entitled to set aside this release by reason thereof,
regardless of any mistake of fact or law.
h. None of the releases or waivers contained in this paragraph
9 are intended to, or shall be interpreted as, releasing, waiving, or
limiting any parties' rights under this Agreement.
15. THE TRUSTEE'S RELEASE AND WAIVER OF SERVICER ADVANCE CLAIMS. The
Trustee hereby releases and waives all of the Bankruptcy Estates' rights to
recover the NetBank Servicer Advances and/or the Lakeland Servicer Advances from
any party, including, without limitation, NetBank, Lakeland, the NetBank
Sureties, and the Lakeland Sureties.
11
16. PARTIAL ASSIGNMENT OF NETBANK ALLOWED UNSECURED CLAIM. Subject to
the provisions of this paragraph, NetBank hereby assigns, as of the Effective
Date, any and all rights, title and interests to distributions that NetBank
would otherwise be entitled from the Bankruptcy Estates on account of the
NetBank Allowed Unsecured Claim to the creditors listed in Schedule 1 to this
Agreement (the "Unsecured Trade Creditors"). All distributions from the
Bankruptcy Estates on account of the NetBank Allowed Unsecured Claim shall be
paid as follows: (a) first, pro rata to the Unsecured Trade Creditors until the
full principal amount of the Unsecured Trade Creditors' allowed non-priority
unsecured claims against the Debtors are paid; and (b) after all the Unsecured
Trade Creditors' allowed non-priority unsecured claims against the Debtors are
paid in full (through the combination of distributions on account of the
Unsecured Trade Creditors' allowed non-priority unsecured claims and from this
assignment), to NetBank. All parties reserve the right to object in part or in
total to the Unsecured Trade Creditors' claims listed on Schedule 1 and those
claims shall not be deemed allowed by operation of this Agreement.
17. PARTIAL ASSIGNMENT OF LAKELAND ALLOWED UNSECURED CLAIM. Subject to
the provisions of this paragraph, Lakeland hereby assigns, as of the Effective
Date, any and all rights, title and interests to distributions that Lakeland
would otherwise be entitled from the Bankruptcy Estates on account of the
Lakeland Allowed Unsecured Claim to the Unsecured Trade Creditors. All
distributions from the Bankruptcy Estates on account of the Lakeland Allowed
Unsecured Claim shall be paid as follows: (a) first, pro rata to the Unsecured
Trade Creditors until the full principal amount of the Unsecured Trade
Creditors' allowed non-priority unsecured claims against the Debtors are paid;
and (b) after all the Unsecured Trade Creditors' allowed non-priority unsecured
claims against the Debtors are paid in full (through the combination of
distributions on account of the Unsecured Trade Creditors' allowed non-priority
unsecured claims and from this assignment), to Lakeland. All parties reserve the
right to object in part or in total to the Unsecured Trade Creditors' claims
listed on Schedule 1 and those claims shall not be deemed allowed by operation
of this Agreement.
18. CONDITIONS PRECEDENT TO THE TRUSTEE'S PERFORMANCE. The Trustee's
obligation to perform under this Agreement is expressly conditioned solely on:
(a) entry of the Approval Order by the California Bankruptcy Court; (b)
execution of this Agreement by an authorized representative for NetBank and
Lakeland; and (c) that all representations made by NetBank and Lakeland in
paragraph 20 of this Agreement are true at the time of this Agreement and all
times thereafter.
19. CONDITIONS PRECEDENT TO THE NETBANK'S AND LAKELAND'S PERFORMANCE.
NetBank's and Lakeland's obligation to perform under this Agreement is expressly
conditioned solely on: (a) entry of the Approval Order by the California
Bankruptcy Court; (b) execution of this Agreement by the Trustee; and (c) that
all representations made by the Trustee in paragraph 20 of this Agreement are
true at the time of this Agreement and all times thereafter.
20. MUTUAL REPRESENTATIONS AND WARRANTIES. The Trustee, NetBank, and
Lakeland hereby represent and warrant to each other the following, each of which
is a continuing representation and warranty:
12
a. Subject to approval by the California Bankruptcy Court,
this Agreement is a valid and binding obligation of the Trustee,
NetBank, and Lakeland, enforceable against them in accordance with its
terms.
b. Except as expressly provided in this Agreement, no consent
or approval is required by any other person or entity in order for the
Trustee, NetBank, and Lakeland to carry out the provisions of this
Agreement.
c. Each of the parties hereto has received independent legal
advice from attorneys of its or his choice with respect to the
advisability of making the agreements provided herein and with respect
to the advisability of executing this Agreement, and prior to the
execution of this Agreement by the parties hereto, their attorneys
reviewed this Agreement at length with them and have made all desired
changes.
d. Except as expressly stated in this Agreement, the Trustee,
NetBank, and Lakeland have not made any statement or representation to
each other regarding any facts relied upon by them in entering into
this Agreement, and each of them specifically does not rely upon any
statement, representation or promise of the other party hereto or any
other person in entering into this Agreement, or in making the
settlement provided for herein, except as expressly stated in this
Agreement. Each party has relied upon its own investigation and
analysis of the facts and not on any statement or representation made
by any other party in choosing to enter into this Agreement and the
transactions contemplated herein.
e. The parties hereto and their respective attorneys have made
such investigation of the facts pertaining to this Agreement and all of
the matters pertaining thereto, as they deem necessary.
f. The terms of this Agreement are contractual, not mere
recitals, and a result of negotiation among the parties.
g. This Agreement has been carefully read by, the contents
hereof are known by, and it has been signed freely by each person
executing this Agreement.
21. VOLUNTARY SETTLEMENT. The parties to this Agreement acknowledge and
agree that each of them is entering into this Agreement freely and voluntarily
and not acting under any misapprehension as to the effect hereof, and has acted
and does hereby act freely and voluntarily and not under any coercion or duress,
and acknowledge that good and valuable consideration was and has been received.
The parties hereto declare that this Agreement is freely and fairly made and
that, except as specifically referenced in this Agreement, there are no other
agreements, oral or written or otherwise, pertaining to the subject matter of
this Agreement.
22. NO ADMISSION AGAINST INTEREST. Nothing contained in this Agreement
or negotiations and communications leading up to it shall be construed as
admissions against the interest of any of the parties hereto. Except to enforce
this Agreement, the terms of this Agreement including, without limitation, the
Recitals, representations and releases made by any party shall have no force or
effect and will not be binding upon, enforceable against or deemed an admission
or acknowledgment of any fact, liability, claim, or defense by any party. This
13
Agreement shall not be admissible as evidence in any action or proceeding except
one to enforce this Agreement, or to carry forward the actions contemplated
herein.
23. MISCELLANEOUS.
a. Except as provided herein, all covenants, releases,
warranties, representations and indemnities made by the parties to one
another pursuant to this Agreement shall survive this Agreement and
shall be and remain in full force and effect thereafter.
b. The parties agree to execute and deliver such other
instruments and perform such acts, in addition to the matters herein
specified, as may be appropriate or necessary, from time to time, to
effectuate the agreements and understandings of the parties, whether
the same occurs before or after the date of this Agreement.
c. This Agreement is the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
prior agreements, oral or written, between the parties hereto with
respect thereto. No claim of waiver, modification, consent or
acquiescence with respect to any provision of this Agreement shall be
made against any party, except on the basis of a written instrument
executed by or on behalf of such party. The waiver of breach of this
Agreement shall not constitute a waiver of any subsequent breach.
d. This Agreement shall inure to the benefit of and shall be
binding upon the successors and assigns of the parties hereto.
e. The headings of all paragraphs of this Agreement are
inserted solely for the convenience of reference and are not a part of
and are not intended to govern, limit or aid in the construction or
interpretation of any term or provision hereof.
f. To the extent that performance is to be governed by time,
time shall be deemed to be of the essence hereof.
g. This Agreement is to be governed by and construed in
accordance with federal bankruptcy law, to the extent applicable, and,
where state law is implicated, the laws of the State of California
shall govern.
h. This Agreement may be executed and delivered in any number
of counterparts, each of which, when executed and delivered, shall be
deemed an original, and all of which together shall constitute the same
agreement. This Agreement may also be executed by facsimile followed by
delivery of the original executed Agreement. Except as expressly
provided in this Agreement, each of the parties hereto represents,
warrants and covenants that it has full power and authority to execute
this Agreement and that it has obtained all necessary approvals,
consents and authorizations required for it to execute and deliver this
Agreement. Each individual executing this Agreement on behalf of a
party hereto has been duly authorized and empowered to execute and
deliver this Agreement on behalf of said party.
14
i. This Agreement is the product of negotiations of the
parties, and in the enforcement or interpretation hereof, is to be
interpreted in a neutral manner, and any presumption with regard to
interpretation for or against any party by reason of that party having
drafted or caused to be drafted this Agreement, or any portion hereof,
shall not be effective in regard to the interpretation hereof.
j. Each party hereto shall bear all of their respective costs
and expenses, including attorneys' fees, incurred in connection with
the Bankruptcy Cases and the preparation, negotiation, and execution of
this Agreement. In the event it becomes necessary for any party to this
Agreement to take any action to interpret or enforce this Agreement, or
any of its terms, and any party thereafter incurs attorneys' fees as a
result thereof, the prevailing party shall be entitled, in addition to
any judgment or award, to an award for all fees (including attorneys'
fees), costs and expenses, including court or arbitration costs and
expenses. The prevailing party shall further be entitled to an award
for attorneys' fees and related costs in connection with enforcement of
any judgment, including enforcement following any appeal.
k. In the event any provision of this Agreement is determined
by any court of competent jurisdiction to be invalid or unenforceable
to any extent, the remainder of said provision and this Agreement shall
nevertheless remain fully valid and enforceable.
l. The California Bankruptcy Court shall retain jurisdiction
to resolve any and all disputes arising under or relating to this
Agreement. Each of the parties hereby consents to such jurisdiction.
m. Except as expressly stated herein, nothing contained in
this Agreement shall in any way affect or limit any claims or rights
against third parties, including, without limitation, the NetBank
Sureties and the Lakeland Sureties, and each party to this Agreement
expressly reserves all of its rights and claims against all such third
parties.
15
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
XXXXXXX X XXXXXXXXX,
SOLELY IN HIS CAPACITY AS CHAPTER 7 TRUSTEE FOR
THE BANKRUPTCY ESTATES OF COMMERCIAL MONEY
CENTER, INC. AND COMMERCIAL SERVICING CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------------------
Name: Xxxxxxx X Xxxxxxxxx
Title: Trustee
NETBANK, FSB
By:
---------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
LAKELAND BANK
By:
---------------------------------------------
Name:
Title:
16
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
XXXXXXX X XXXXXXXXX,
SOLELY IN HIS CAPACITY AS CHAPTER 7 TRUSTEE FOR
THE BANKRUPTCY ESTATES OF COMMERCIAL MONEY
CENTER, INC. AND COMMERCIAL SERVICING CORPORATION
By:
---------------------------------------------
Name: Xxxxxxx X Xxxxxxxxx
Title: Trustee
NETBANK, A FEDERAL SAVINGS BANK
By: /s/ XXXXXXX XXXXXX
---------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
LAKELAND BANK
By:
---------------------------------------------
Name:
Title:
16
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
XXXXXXX X XXXXXXXXX,
SOLELY IN HIS CAPACITY AS CHAPTER 7 TRUSTEE FOR
THE BANKRUPTCY ESTATES OF COMMERCIAL MONEY
CENTER, INC. AND COMMERCIAL SERVICING CORPORATION
By:
---------------------------------------------
Name: Xxxxxxx X Xxxxxxxxx
Title: Trustee
NETBANK, FSB
By:
---------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: General Counsel
LAKELAND BANK
By: /s/ XXXXXXX XXXXXXXXXXX
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Executive Vice President
16
