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EXHIBIT 1
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SETTLEMENT AND RELEASE AGREEMENT
THIS AGREEMENT is made and entered into as of the 25th day of November,
1996, to be effective as of the 22nd day of November, 1996, ("Effective Date")
by, between and among the Federal Deposit Insurance Corporation, acting as
receiver for the institutions designated in the SAMDA as hereinafter defined or
as exclusive manager of the FSLIC Resolution Fund (the "FRF") or in its
corporate capacity, as the case may be (the "FDIC" shall mean the FDIC in any
of the capacities identified above unless otherwise stated), and Crown Revenue
Services, Inc., a Corporation formed under the laws of the State of Ohio, with
its principal place of business located at 0000 Xxxxxx Xxxx, Xxxxxxxx, Xxxx,
00000, which entity was labeled as Crown Revenue Service, Inc. in the
assumption agreement hereinafter described, ("Contractor").
WITNESSETH:
WHEREAS, by operation of law on December 31, 1995, the Resolution Trust
Corporation (the "RTC") terminated and the FDIC succeeded the RTC as receiver
for the institutions designated in the SAMDA; and
WHEREAS, by operation of law on December 31, 1995, the RTC terminated
and the FRF assumed all of the liabilities and obtained all of the assets of
the RTC which were held in RTC's corporate capacity at that time; and
WHEREAS, the RTC, as receiver or conservator, and Contractor entered
into six (6) Asset Management and Disposition Agreements, as amended,
(####-##-####, ####-##-####, ####-##-####, #731-90-
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1505, ####-##-####, and ####-##-####) (collectively the "SAMDA") pursuant to
which Contractor agreed to perform certain asset management and disposition
services on behalf of the RTC; and
WHEREAS, the SAMDA have expired or terminated; and
WHEREAS, Contractor has invoiced or made claims or demands for various
disposition fees, management fees, costs, setoffs, retentions and interest
associated with the SAMDA (the "Disputed Contractor Claims"); and
WHEREAS, the FDIC has contested the validity of the Disputed Contractor
Claims, including amounts, methods of calculation, and contractual and
equitable grounds for recovery; and
WHEREAS, the FDIC has known claims against and disputes with Contractor;
and
WHEREAS, Contractor has contested the validity of the FDIC's known
claims and disputes, including amounts, methods of calculation, and contractual
and equitable grounds for recovery; and
WHEREAS, in order to amicably resolve the Disputed Contractor Claims
and the known claims of and disputes with the FDIC, but without admissions of
liability by any of the parties, the parties desire to settle this matter on
the terms hereinafter provided;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the FDIC and Contractor, intending to be legally bound, agree as
follows:
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ARTICLE I
COMPROMISE TRANSACTION
1.1 Compromise Amount. Subject to the retention of the reserve
amount of $200,000.00 provided in Section 3.1(h) below the FDIC as receiver or
as manager of the FRF, as the case may be, shall pay to Contractor within a
reasonable time following execution of this Agreement by both parties (the
"Execution Date"), the sum of Two Million Four Hundred Ninety-Nine Thousand
Eight Hundred Fifty-Seven Dollars and 52 Cents ($2,499,857.52) ("the Compromise
Amount") which upon payment shall constitute full settlement, all as more fully
described below, of all claims relating to the SAMDA by Contractor against the
FDIC, including without limitation, the Disputed Contractor Claims, except for
any obligation of the FDIC as Receiver or as manager of the FRF, as the case
may be, to provide indemnification to the Contractor under Article XIV of the
SAMDA, provided, however, that Contractor shall have no right to submit or
recover all or any portion of the Disputed Contractor Claims under said Article
XIV of the SAMDA.
1.2 Indemnification Under Article XIV. In addition, the FDIC
agrees that any new indemnification matters shall be processed in accordance
with the indemnification procedure provided in the SAMDA, it being clearly
understood, however, that the FDIC will, except in clearly inappropriate
situations, provide a defense and pay directly the associated fees and expenses
subject to a reservation of rights agreement or undertaking as provided by the
SAMDA and in accordance with 93-XXX-231 as modified by 95-XXX-265,
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both as attached hereto as Exhibit "A". The FDIC further agrees that with
regard to matters that would have been covered by a property owner's insurance
policy but for RTC's decision to self-insure, FDIC shall provide the same level
of protection to Contractor as would have been provided under such owner's
policy if Contractor had been named as an additional insured.
1.3 Contractor Waiver. Upon payment of the Compromise Amount,
Contractor waives any and all claims it may have to, and assigns to the FDIC,
all funds held by the FDIC pursuant to, or in connection with, the SAMDA,
including without limitation any funds held under Article XI of the SAMDA.
1.4 Manner of Payment. FDIC will transfer the above mentioned
settlement amounts to the Contractor via separate wire transfers of the net
amount due to the Contractor. FDIC shall not be responsible for delay in such
transfers.
ARTICLE II
REPRESENTATIONS
2.1 Representations by Contractor. Contractor represents and
warrants to the FDIC that:
(a) Contractor has full and complete authority to enter into this
Agreement and to carry out the transactions contemplated hereby. Each person
signing on behalf of Contractor has full authority to bind Contractor. All
actions required to be taken by Contractor under and pursuant to the terms of
this Agreement have been duly authorized to the extent required by law; such
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authorization is in full force and effect and such actions will not conflict
with, or constitute a default under, the provisions of any instrument to which
Contractor is now a party or by which any of Contractor's properties or assets
may be bound or affected.
(b) This Agreement constitutes the valid and binding obligation of
Contractor, enforceable against Contractor in accordance with its terms, except
to the extent limited by applicable provisions of bankruptcy, reorganization,
insolvency, moratorium or other similar laws of general application relating to
or affecting the enforcement of creditors' rights generally.
(c) By signature below, Contractor affirms that it is not insolvent or
bankrupt and has not committed any act of bankruptcy. Contractor further
affirms that it has not made any general assignment for the benefit of
Contractor's creditors, and no proceeding seeking (i) relief under any
bankruptcy or insolvency law, (ii) the rearrangement or readjustment of debt,
(iii) the appointment of a receiver, custodian, liquidator or trustee to take
possession of substantially all of the assets, or (iv) the liquidation of
Contractor has been commenced or is threatened against or with respect to
Contractor.
(d) As of the Execution Date, to the knowledge of Contractor, there
are no suits or proceedings by or before any court, commission, board or other
governmental body pending, or to the knowledge of Contractor threatened, which
involve or affect the validity or enforceability of the SAMDA or this Agreement.
(e) Contractor has not assigned or pledged, directly or by
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operation of law, to any other individual, firm, partnership, corporation,
trust or any other entity any right, title or interest in any claims or
disputes being released hereby.
(f) As of the Execution Date, to the knowledge of Contractor,
Contractor acknowledges that it is not aware of any claims of Contractor, or
any party directly or indirectly affiliated with Contractor, against, demands
of, or invoices to the RTC or the FDIC regarding the SAMDA or this Agreement,
of which Contractor has not already notified the RTC or the FDIC in writing.
(g) The representations of Contractor with respect to each of the
agreements listed for inclusion in the SAMDA shall be effective from the
effective date of each such agreement:
2.2 REPRESENTATIONS BY THE FDIC.
(a) The FDIC represents and warrants to Contractor that, upon
execution by an authorized individual, acting in conformity with his or her
delegated authority, this Agreement shall constitute a legal, valid and binding
agreement of the FDIC enforceable in accordance with its terms, except to the
extent limited by law.
(b) The FDIC represents and warrants to Contractor that the person
signing on behalf of the FDIC is an authorized individual who has full
authority to bind the FDIC.
(c) The FDIC represents and warrants to Contractor that the FDIC has
not assigned or pledged, directly or by operation of law, to any individual,
firm, partnership, corporation, trust, or any other entity any right, title or
interest in any claims or disputes being released hereby.
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(d) As of the Execution Date and except as to the Surviving Issues, to
the personal knowledge of the FDIC, the FDIC acknowledges that it is not aware
of any claims of the FDIC against or demands of the Contractor regarding the
SAMDA or this Agreement, of which the FDIC has not already notified Contractor.
For the purposes of this Section 2.2 (d), "the personal knowledge of the FDIC"
shall mean the personal knowledge of those people employed by the FDIC who, as
of the Execution Date, are assigned to the FDIC's Division of Administration
Acquisition Services Branch SAMDA Closeout Section.
ARTICLE III
COMPROMISE AND RELEASE
3.1 RELEASE BY CONTRACTOR.
(a) After execution hereof and upon payment of the Compromise Amount,
Contractor for itself and its successors and assigns or any person or entity
claiming through or under it, does hereby remise, release and forever discharge
the FDIC its employees, officers, directors, and agents and their respective
successors and assigns, and any subsidiaries, and any subsidiary officers,
directors, employees, consultants, agents and other representatives,
(collectively, the "FDIC Released Parties"), of and from all manner of actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialities, covenants, conditions, contracts, controversies,
agreements, promises, trespasses, damages, judgments, executions, claims,
liabilities, responsibilities and demands whatsoever, at law or in equity, which
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the Released Contractor Parties (as hereinafter defined) ever had, now have, or
may hereafter have, whether known or hereafter discovered, against the FDIC
Released Parties, and their successors and assigns, evidenced by, arising out
of, in connection with, or in any manner relating to, the SAMDA, including the
Disputed Contractor Claims, except that this release shall not release the FDIC
Released Parties from any obligation under this Agreement or under Article XIV
of the SAMDA. This provision shall survive the execution, delivery and
consummation of this Agreement.
(b) Contractor acknowledges and agrees that the FDIC does not purport
to have the ability to release Contractor from, and that this Settlement and
Release Agreement does not apply to and shall have no bearing upon,
administrative or judicial proceedings or actions or claims, including, but not
limited to, any action or proceeding under the False Claims Act, 31 U.S.C.
Section 3729, et seq., which may be brought by any governmental agencies,
including the Office of the Inspector General and the Department of Justice.
Contractor additionally acknowledges and agrees that they may not use or assert
this Settlement and Release Agreement as a defense in any administrative or
judicial proceedings or actions or claims brought by any governmental agency
other than the FDIC relating to any Task Orders or to any other contract
between Contractor and the FDIC, in any of its capacities. By this
acknowledgment and agreement, Contractor agrees, INTER ALIA, to not plead or
argue or claim that the existence or terms of this Settlement and Release
Agreement constitute(s) evidence and/or include(s) any admission,
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ratification, or failure to mitigate damages by any governmental agency, or
that the existence or terms of this Settlement and Release Agreement estop(s)
any governmental agency, excluding the FDIC, from constituting or bringing any
administrative or judicial proceeding or action or claim. Nothing in this
Settlement and Release Agreement shall be deemed to preclude or in any way
limit or restrict any action or claim by any entity or governmental agency
other than the FDIC or its successors including but not limited to, the
Department of Justice or the Office of Inspector General.
(c) The parties hereto acknowledge that except as explicitly stated
herein, this Agreement does not relieve them from, or in any way reduce or
affect, the parties' respective obligations to comply with and honor those
obligations which, pursuant to the terms of the SAMDA, survive expiration of
the SAMDA.
(d) Contractor further acknowledges that, except with regard to
Known Claims, this Agreement shall in no way affect or diminish the FDIC's
rights under the SAMDA or otherwise to claim or assert in any administrative or
judicial proceeding, including, without limitation, for any pending or future
matters, any acts or omissions by or on behalf of Contractor, its officers,
directors, partners, consultants, representatives, employees or agents which
create or may create or give rise to an obligation of Contractor to indemnify
the FDIC or which may relieve the FDIC of indemnification obligations under the
provisions of the SAMDA and assert and obtain recovery for any legally
sustainable findings against Contractor in
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the Property Management Expiration Reviews listed on Exhibit "B" attached
hereto and made a part hereof. The obligations and rights described in
Subsections 3.1(b), 3.1(c), and 3.1(d) hereof may be referred to collectively
as the "Surviving Issues."
(e) Notwithstanding any other provisions of this Agreement,
Contractor acknowledge that no claims that arise out of or are related to the
SAMDA can be asserted in a manner that obligates the Bank Insurance Fund as
established in 12 USC Section 1821(a)(5).
(f) The parties acknowledge and agree that Agreements ####-##-####
and ####-##-#### cited above are meant to include Agreements incorporating the
additional suffices of -0258 and -0255 as were appended to such Agreements by
the Kansas City office of the FDIC from time to time.
(g) The parties acknowledge and agree that open issues remain
unresolved with respect to the subsidiary SAMA (Modification #15) associated
with Agreement ####-##-#### cited above, no settlement provisions contained in
this Agreement shall apply and such SAMA shall not be settled between the
parties until after the completion of a performance audit on same by the Office
of Inspector General. Nothing contained in this Agreement shall in any way limit
the parties with respect to any claims by either party with respect to the SAMA
(Modification #15).
(h) The parties acknowledge and agree that the sum of Two Hundred
Thousand Dollars ($200,000.00) shall be deducted from the gross settlement
amount set forth hereinabove and held by FDIC as a reserve pending the
completion of said audit and the resolution
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of all issues relating to that SAMA.
3.2 Release by the FDIC. Except for the Surviving Issues, and any
issues involving the SAMA cited above, the FDIC for itself and its successors
and assigns and any person or entity claiming through or under it, does hereby
remise, release and forever discharge Contractor, its partners, employees,
officers, directors and agents, subsidiaries, officers, directors, employees,
partners, consultants, agents and representatives and their respective
successors and assigns (collectively, the "Released Contractor Parties"), of
and from all known manner of actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, convenants,
conditions, contracts, controversies, agreements, promises, trespasses,
damages, judgments, executions, claims, liabilities, responsibilities and
demands whatsoever, at law or in equity which the FDIC Released Parties ever
had or now have against the Released Contractor Parties, and their successors
and assigns, evidenced by or arising out of the SAMDA (individually a "Claim",
collectively "the Known Claims"). Without limiting the generality of the
foregoing, a Claim shall be considered "Known" if (i) the FDIC or the RTC has
given notice to Contractor of the existence or possible existence of such Claim
by the FDIC or the RTC against Contractor (such notice can include informal
correspondence or other communications from RTC or the FDIC to Contractor),
(ii) the Claim is set forth as a finding in an audit report, alert memorandum,
or other writing prepared and delivered to the FDIC or the RTC prior to the
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Effective Date hereof, (iii) the Claim is related to calculations of Management
Fees, Disposition Fees, Incentive Fees, Portfolio Management Fees or Transfer
Fees, (iv) the Claim is identified on Exhibit "C" attached hereto and made a
part hereof or related to the writings referred to on Exhibit "C", or (v) the
Claim is substantially related or similar to other "Known Claims". This
provision shall survive the execution, delivery and consummation of this
Agreement.
ARTICLE IV
AGREEMENT NOT AN ADMISSION
4.1 The parties hereto acknowledge that the payment of the Compromise
Amount and the parties' acceptance of the releases is not an admission of
liability of any sort by either party in connection with the Disputed
Contractor Claims or the Known Claims, and that the payment of the Compromise
Amount and the exchange of releases have been made solely to terminate further
controversy and claims respecting the Disputed Contractor Claims and the Known
Claims.
ARTICLE V
GOVERNING LAW
5.1 Governing Law. This Agreement, all the documents executed in
connection herewith, and the rights and obligations of the parties hereunder
and thereunder, shall be governed by, and construed and interpreted in
accordance with, federal statutory or common law; provided, however, that if
there is no applicable rule or precedent under federal law, and insofar as it
would not
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frustrate the purpose of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended, or any provision of this Agreement, the
laws of the District of Columbia shall govern.
ARTICLE VI
JURISDICTION
6.1 Jurisdiction. Any legal action, suit, or proceeding arising out of
or relating to this Agreement, or the transactions contemplated hereby, may be
instituted in any federal court located in the District of Columbia, and
Contractor agrees not to assert, by way of motion, as a defense, or otherwise,
in any such action, suit or proceeding, any defense or claim that it is not
subject personally to the jurisdiction of such court, that Contractor's
property is exempt or immune from attachment or execution, that the action,
suit or proceeding is brought in an inconvenient forum, that the venue of the
action, suit or proceeding is improper or that this Agreement or the subject
matter hereof or thereof may not be enforced in or by such court. Contractor
further irrevocably submits to the jurisdiction of any such court in any such
action, suit or proceeding.
ARTICLE VII
MISCELLANEOUS
7.1 Entirety. This instrument constitutes the entire agreement between
Contractor and the FDIC relating to the SAMDA and supersedes any prior
understandings or written or oral agreements between each Contractor and the
FDIC respecting the
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compromise and settlement contained herein. No variations, amendments,
modifications or changes herein or hereof shall be binding upon the FDIC unless
set forth in a document duly and fully executed by Contractor and the FDIC.
7.2 Captions. The titles and headings of the Articles, Sections and
Paragraphs in this Agreement have been included only for convenience and
reference, and shall not be construed to extend, limit, describe or define the
substance of any Article, Section or Paragraph contained herein.
7.3 Successors and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the FDIC and Contractor and their respective
successors and assigns, except that the provisions of Section 1.2 of this
Agreement shall not inure to the benefit of any insurance carrier because the
Contractor is not indemnified by the FDIC for claims that are covered by
insurance.
7.4 Partial Invalidity. The invalidity or unenforceability in any
particular circumstance of any provision of this Agreement shall not extend
beyond such provision or such circumstance, and no other provision of this
Agreement shall be affected thereby.
7.5 Execution of Instruments. Contractor and the FDIC covenant and
agree to execute such other and further instruments and documents as are or may
become necessary or convenient to effectuate and carry out the purpose of this
Agreement.
7.6 Survival. The representations, warranties, convenants, and
releases made or given herein shall survive the execution and
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delivery hereof.
7.7 Gender, Number and Status. Whenever used herein, the singular
number shall include the plural and the plural the singular, and the use of any
gender shall include all genders.
IN WITNESS WHEREOF, each party has caused this instrument to be signed
on its behalf by its duly authorized agent.
Witness as to the FDIC: FEDERAL DEPOSIT INSURANCE
CORPORATION AS RECEIVER OF THE
VARIOUS INSTITUTIONS DESIGNATED IN
THE SAMDA
__________________________________ By:_______________________________
Date
Name:_____________________________ Name:_____________________________
Warranted Contracting Officer
Witness as to the FDIC: FEDERAL DEPOSIT INSURANCE
CORPORATION AS MANAGER OF THE FSLIC
RESOLUTION FUND
__________________________________ By:_______________________________
Date
Name:_____________________________ Name:_____________________________
Warranted Contracting Officer
Witness as to the FDIC: FEDERAL DEPOSIT INSURANCE
CORPORATION IN ITS CORPORATE
CAPACITY
__________________________________ By:_______________________________
Date
Name:_____________________________ Name:_____________________________
Warranted Contracting Officer
Witness as to Contractor: Crown Revenue Services, Inc., An
Ohio CORPORATION
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. (illegible) 11/25/96
__________________________________ By:_______________________________
Date
Xxxxxx X. Xxxxx Xxxxxx X. (illegible)
Name:_____________________________ Name:_____________________________
President
Title:____________________________
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Exhibit A
((INSERT 2 SAMDA INTERPRETATIONS))
Exhibit B
As to Contractor
Exhibit C
As to Contractor:
Agreement ####-##-#### (Subsidiary SAMA)
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