SETTLEMENT AGREEMENT DATED AS OF OCTOBER 28, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ AND
ROYAL INDEMNITY COMPANY
EXHIBIT 10.40
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT dated as of October 28, 2005, by and between (a)
Wilmington Trust Company of Pennsylvania and (b) Royal Indemnity Company.
BACKGROUND
A. On January 22, 1999, Royal issued the First Policy. In April 2000, Royal
issued the Second Policy. On August 17, 2001, the Second Policy was replaced by
the Tail Policy. Disputes arose between the Parties regarding claims made by
Wilmington Trust under the Policies for payment.
B. The disputes under the Policies were included in litigation in the
District Court in Wilmington Trust Company of Pennsylvania v. Royal Indemnity
Company, Case No. 02 1361 (United States District Court, District of Delaware).
C. On or about August 6, 2004, Judgment was entered against Royal and in
favor of Wilmington Trust in the amount of $12,908,966.43 plus applicable
interest and any additional sums that had become due under the Policies.
D. Thereafter, Royal appealed to the Court of Appeals.
E. In order to obtain a stay, Royal entered into the Pledge and Security
Agreement.
F. On October 3, 2005, the Court of Appeals entered its Opinion affirming
in part and vacating in part, Wilmington Trust Company of Pennsylvania v. Royal
Indemnity Company, C.A. No. 04-2207 (United States Court of Appeals for the
Third Circuit).
G. On October 17, 2005, Royal filed a Petition for Rehearing and Rehearing
En Banc in the Court of Appeals.
H. Wilmington Trust and Royal have determined that it is in their mutual
interest to settle all of their disputes embodied in and all amounts owing or
that may become
owing pursuant to the District Court's Order and Judgment, and the Court of
Appeals's Judgment, and all amounts owing or that may become owing under or
relating to the Policies.
NOW, THEREFORE, for and in consideration of the promises and mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the parties, intending to be legally bound hereby, agree:
1. Definitions. As used in the foregoing recitals and the provisions of
this Agreement and all exhibits annexed to this Agreement, the following terms
shall have the following meanings:
(a) "Agreement" shall mean this Settlement Agreement;
(b) "Court of Appeals" shall mean the United States Court of Appeals
for the Third Circuit;
(c) "Credit Agreement" shall mean that certain Student Loan Warehouse
Line of Credit Agreement between SFC Financial LLC, as Borrower, and Wilmington
Trust, as Lender, dated January 22, 1999, as the same has been amended or
supplemented from time to time;
(d) "District Court" shall mean the United States District Court for
the District of Delaware;
(e) "District Court's Order" shall mean the Order entered by the
District Court on March 26, 2004 with respect to Royal and Wilmington Trust;
(f) "Effective Date" shall mean the date upon which both Wilmington
Trust and Royal have signed this Agreement;
(g) "Eligible Letters of Credit" and "Eligible Institutions" shall
have the meanings ascribed to them in the Pledge and Security Agreement;
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(h) "First Policy" shall mean Credit Risk Insurance Policy No.
RST321276 issued by Royal to SFC, naming Wilmington Trust as beneficiary;
(i) "Joint Written Instructions" shall mean joint written instructions
from Wilmington Trust and Royal, in the form of Exhibit A-1 hereto, directing
JPMorgan to: (a) release the Collateral in the Securities Account from the
security interest and lien created under the Pledge and Security Agreement; (b)
deliver the Collateral to Royal; and (c) present any Eligible Letters of Credit
to any Eligible Institutions that issued them for surrender and termination;
"Alternative Joint Written Instructions" shall mean joint written instructions
from Wilmington Trust and Royal, in the form of Exhibit A-2 hereto, to be used
solely in the event that Royal fails to pay the Settlement Sum by the Payment
Date, directing JPMorgan to: (a) liquidate so much of the Collateral in the
Securities Account as is necessary to raise the Settlement Sum, and pay the
Settlement Sum to Wilmington Trust; and promptly thereafter (b) release the
remaining Collateral in the Securities Account from the security interest and
lien created under the Pledge and Security Agreement; (c) deliver the remaining
Collateral to Royal; and (d) present any Eligible Letters of Credit to any
Eligible Institutions that issued them for surrender and termination;
(j) "JPMorgan" shall mean JPMorgan Chase Bank, the Securities
Intermediary under the Pledge and Security Agreement;
(k) "Judgment" shall mean Final Judgment Pursuant to Rule 54(b)
entered by the District Court on August 6, 2004, against Royal and in favor of
Wilmington Trust;
(l) "NCO Financial" shall mean NCO Financial Systems, Inc.;
(m) "NCO Financial Servicing Agreement" shall mean the agreement
between Wilmington Trust and NCO Financial dated August 16, 2002, as
supplemented by an
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Addendum dated August 16, 2002 and amended by an Addendum dated August 19, 2002,
relating to the servicing of the Student Loans;
(n) "Other Student Loans" shall mean all of the student loans
purchased by SFC or any SFC Securitization Entity, acquired by SFC or any SFC
Securitization Entity or submitted for securitization by SFC or any SFC
Securitization Entity, except for the Student Loans;
(o) "Parties" shall mean Wilmington Trust and Royal;
(p) "Payment Date" shall mean the date ten (10) business days after
the Effective Date;
(q) "Pledge and Security Agreement" shall mean that certain Pledge and
Security Agreement dated as of May 26, 2004 among JPMorgan, Wilmington Trust,
and Royal;
(r) "Policies" shall mean the First Policy, the Second Policy, and the
Tail Policy;
(s) "Releases" shall mean the releases annexed hereto as Exhibits C &
D;
(t) "Royal" shall mean Royal Indemnity Company;
(u) "Second Policy" shall mean Credit Risk Insurance Policy RST147522
issued by Royal to SFC, naming Wilmington Trust as beneficiary, which was
replaced by the Tail Policy;
(v) "Settlement Sum" shall mean the sum of Eleven Million Dollars
($11,000,000);
(w) "SFC" shall mean Student Finance Corporation;
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(x) "SFC Bankruptcy" shall mean the Chapter 7 bankruptcy proceeding
captioned In re Student Finance Corporation, Debtor, Case No. 02-11620, pending
before the United States Bankruptcy Court for the District of Delaware;
(y) "SFC Securitization Entity" shall mean SFC Acceptance II, LLC, SFC
Acceptance III, LLC, SFC Acceptance IV, LLC, SFC Acceptance V, LLC, SFC
Acceptance VI, LLC, SFC Acceptance VII, LLC, SFC Acceptance VIII, LLC, SFC
Acceptance IX, LLC, SFC Financial I, LLC, SFC Financial II, LLC, and any other
entities formed for the purpose of purchasing Other Student Loans, acquiring
Other Student Loans, or submitting Other Student Loans for securitization;
(z) "SFC Trustee" shall mean the Chapter 7 Trustee in the SFC
Bankruptcy;
(aa) "Student Loans" shall mean (i) all of the performing and
nonperforming student loans that have been pledged to Wilmington Trust from time
to time pursuant to the Credit Agreement, except those student loans that, after
being pledged to Wilmington Trust, were thereafter included in a securitization
and removed from the pledge to Wilmington Trust (ii) any note, document, chattel
paper or other instrument evidencing such student loans, (iii) all instruments,
general intangibles, property, rights, proceeds and payments relating to such
student loans, (iv) all payments and prepayments of principal, interest and
other income due or to become due on any of such student loans, and (v) all
right, title and interest of every nature whatsoever of Wilmington Trust in and
to the same and every part of such property including, without limitation, all
rights, liens and security interests existing with respect thereto or as
security therefor, and all prepayment premiums and late payment charges with
respect thereto, excluding any and all payments received prior to the Payment
Date;
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(bb) "Successor Servicing Agreements" shall mean the ▇▇▇▇▇ Fargo
Financial Servicing Agreement and the NCO Financial Servicing Agreement;
(cc) "Tail Policy" shall mean Credit Risk Insurance Policy RST147533
issued by Royal to SFC naming Wilmington Trust as beneficiary, replacing the
Second Policy;
(dd) "▇▇▇▇▇ Fargo Financial" shall mean ▇▇▇▇▇ Fargo Financial
Servicing Solutions, LLC;
(ee) "▇▇▇▇▇ Fargo Financial Servicing Agreement" shall mean the
agreement between Wilmington Trust and ▇▇▇▇▇ Fargo Financial dated June (with no
day stated) 2002 relating to the servicing of the Student Loans; and
(ff) "Wilmington Trust" shall mean Wilmington Trust Company of
Pennsylvania.
2. Binding Agreement. This Agreement shall become valid and binding upon
the Effective Date, and shall remain valid and binding whether or not, prior to
the completion of all actions contemplated by this Agreement (including, without
limitation, the payment of the Settlement Sum and the release of the
Collateral), events occur that would or could otherwise affect the obligations
of Wilmington Trust and Royal to each other (including, without limitation, a
decision by the Court of Appeals on Royal's Petition for Rehearing and Rehearing
En Banc).
3. Compromise. This Agreement reflects the settlement and compromise of
disputed claims, and does not constitute an acknowledgement or admission by any
party of the validity or invalidity of any claim or defense, and does not
constitute an acknowledgement or admission by Royal of the validity of the
Policies or any claim thereunder.
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4. Settlement Sum. Within ten (10) business days after the Effective Date,
in full settlement of all amounts owing or that may become owing to Wilmington
Trust under the District Court's Order and Judgment, and all amounts claimed to
be owing under the Policies, Royal shall pay Wilmington Trust the Settlement Sum
by wiring Eleven Million Dollars ($11,000,000) (without deduction for transfer
or other fees) to Wilmington Trust pursuant to the following wiring
instructions:
Wilmington Trust of Pennsylvania
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA # ▇▇▇▇▇▇▇▇▇
Pennsylvania Clearing Account #100410
For further credit to SFC Financial I LLC, account # ▇▇▇-▇▇▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
5. Joint Written Instructions and Liquidation of Collateral.
(a) Upon the Effective Date, and prior to Wilmington Trust's receipt
of the Settlement Sum, Royal and Wilmington Trust shall jointly seek the
approval of JPMorgan of the form of the Joint Written Instructions and the
Alternative Joint Written Instructions, to ensure JPMorgan's expeditious
compliance with the Joint Written Instructions or the Alternative Joint Written
Instructions upon execution and subsequent delivery.
(b) If Royal pays the Settlement Sum on or before the Payment Date,
Royal and Wilmington Trust shall immediately deliver the Joint Written
Instructions to JPMorgan and shall destroy the Alternative Joint Written
Instructions.
(c) In the event that Royal fails to pay the Settlement Sum on or
before the Payment Date, Wilmington Trust and Royal shall immediately deliver
the Alternative Joint Written Instructions to JPMorgan and shall destroy the
Joint Written Instructions.
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(d) Until Royal pays the Settlement Sum, Cozen ▇'▇▇▇▇▇▇, as attorneys
for Wilmington Trust, shall hold the executed Joint Written Instructions and
executed Alternative Joint Written Instructions in escrow.
(e) In the event that the Alternative Joint Written Instructions are
used, and the proceeds from the liquidation of the Collateral are insufficient
to pay the Settlement Sum in full, Wilmington Trust shall give Notice to Royal
of the amount of any deficiency, and shall transmit to Royal a copy of the wire
transfer advice reflecting the amount of the wire transfer that it received as a
result of liquidation of the Collateral, and Royal shall pay such deficiency
within five (5) business days.
6. Cancellation and Termination of Policies. Upon Wilmington Trust's
receipt of the Settlement Sum (whether through payment by Royal or pursuant to
the Alternative Joint Written Instructions), the Policies shall be automatically
and irrevocably cancelled and terminated, and Wilmington Trust shall return the
original Policies to Royal (however, if Wilmington Trust fails to return the
original Policies to Royal, such failure shall not affect the automatic and
irrevocable cancellation and termination of the Policies).
7. Student Loans. Effective upon Wilmington Trust's receipt of the
Settlement Sum (whether through payment by Royal or pursuant to the Alternative
Joint Written Instructions), Wilmington Trust shall assign all of its right,
title and interest in and to the Student Loans, without representation, warranty
or recourse of any kind, to Royal. The assignment shall be in the form of
Exhibit B-1. Wilmington Trust represents to Royal that (a) ▇▇▇▇▇ Fargo Financial
and NCO Financial have been the successor servicers of the Student Loans
pursuant to their respective Successor Servicing Agreements and Wilmington Trust
has provided to Royal copies of all agreements relating to the servicing of the
Student Loans, (b) Wilmington Trust has
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provided to Royal all information as of September 30, 2005 that has been made
available to Wilmington Trust by ▇▇▇▇▇ Fargo Financial and NCO Financial
regarding the Student Loans (including, without limitation, as of September 30,
2005 the aggregate amount of the Student Loans that are performing, and which
Student Loans are performing), and (c) while Wilmington Trust has not sought to
independently verify such information, Wilmington Trust has no reason to doubt
its accuracy and Wilmington Trust has received no notices since September 30,
2005 regarding the illegitimacy of the performing Student Loans (such as a
letter from a borrower on a performing Student Loan stating that he had not been
a student at a school operated by the CDI Defendants, or had not undertaken the
loan). Wilmington Trust shall also execute such other documentation as may be
reasonably required by Royal to evidence the assignment of such Student Loans,
including instructions to any servicer of such Student Loans. If Royal so
desires, Wilmington Trust shall at Royal's expense remove ▇▇▇▇▇ Fargo Financial
and/or NCO Financial as servicer(s) of the Student Loans and designate
servicer(s) chosen by Royal. If Royal so desires, Wilmington Trust shall assign
either or both of the Successor Servicing Agreements to Royal. Wilmington Trust
represents that all fees and expenses relating to the servicing of the Student
Loans including, without limitation, all fees and expenses of ▇▇▇▇▇ Fargo
Financial and NCO Financial have been paid for all services rendered through the
Payment Date. Any funds received by ▇▇▇▇▇ Fargo Financial and NCO Financial on
the Student Loans on or after the Payment Date (net of ▇▇▇▇▇ Fargo Financial and
NCO Financial's respective servicing fees) shall be paid to Royal.
8. Rights Against ▇▇▇▇▇▇ ▇▇▇, Lore ▇▇▇, ▇▇▇▇▇▇ Whelans, and ▇▇▇▇▇▇ ▇▇▇▇▇.
Effective upon Wilmington Trust's receipt of the Settlement Sum (whether through
payment by Royal or pursuant to the Alternative Joint Written Instructions),
Wilmington Trust
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shall assign all of its right, title and interest in and to its causes of
action, rights, claims, judgments, and remedies against ▇▇▇▇▇▇ ▇▇▇, Lore ▇▇▇,
▇▇▇▇▇▇ Whelans, and ▇▇▇▇▇▇ ▇▇▇▇▇, including but not limited to (a) all causes of
action, rights, claims, judgments, and remedies in Wilmington Trust Company of
Pennsylvania v. ▇▇▇▇▇▇ ▇. ▇▇▇, et al., No. 03-10188 (Court of Common Pleas,
▇▇▇▇▇▇▇▇▇▇ County, Pennsylvania) (the "▇▇▇▇▇▇▇▇▇▇ County Action"), including,
without limitation, the Consent Judgment and Order dated May 25, 2005 (the
"Pennsylvania Consent Judgment and Order"); (b) all causes of action, rights,
claims, judgments, and remedies in Wilmington Trust Company of Pennsylvania v.
▇▇▇▇▇▇ ▇. ▇▇▇, et al., NACV2005-00027 (Superior Court, Nantucket, Commonwealth
of Massachusetts); and (c) all causes of action, rights, claims, judgments, and
remedies relating to or against the real property known as 209 and ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and County, Commonwealth of Massachusetts (the "Nantucket
Property"), which was part of the subject matter of the Pennsylvania Consent
Judgment and Order, and all interests in and to the Nantucket Property.
Wilmington Trust has advised Royal, with respect to the ▇▇▇▇▇▇▇▇▇▇ County
Action, that: (a) although it has obtained a judgment against ▇▇▇▇▇▇ Whelans, it
is aware of no assets owned by Mr. Whelans, who has died, (b) the claims against
▇▇▇▇▇▇ ▇▇▇▇▇ in the ▇▇▇▇▇▇▇▇▇▇ County Action were withdrawn, and (c) with the
entry of the Pennsylvania Consent Judgment and Order, there are no pending
proceedings in the ▇▇▇▇▇▇▇▇▇▇ County Action. The assignment shall be in the form
of Exhibit B-2.
9. Royal's Release to Wilmington Trust. Upon Wilmington Trust's receipt of
the Settlement Sum (whether through payment by Royal or pursuant to the
Alternative Joint Written Instructions), and the filing in the courts of
Exhibits E and F (described below), Royal
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shall provide Wilmington Trust with the executed Release in the form of Exhibit
C, the terms of which are incorporated by this reference into this Agreement.
10. Wilmington Trust's Release to Royal. Upon Wilmington Trust's receipt of
the Settlement Sum (whether through payment by Royal or pursuant to the
Alternative Joint Written Instructions), and the filing in the courts of
Exhibits E and F (described below), Wilmington Trust shall provide Royal with
the executed Release in the form of Exhibit D, the terms of which are
incorporated by this reference into this Agreement.
11. Notice to the District Court and Court of Appeals, Withdrawal of
Petition for Rehearing, and Satisfaction of Judgment. Wilmington Trust and Royal
shall file Exhibit E in the District Court and shall simultaneously file Exhibit
F in the Court of Appeals promptly after Wilmington Trust's receipt of the
Settlement Sum (whether through payment by Royal or pursuant to the Alternative
Joint Written Instructions).
12. Authorization. (a) Royal represents that (i) it is duly authorized to
execute this Agreement and to enter into the settlement described herein and the
Releases and other documents annexed hereto and (ii) it has obtained all
approvals and consents necessary to take such actions. (b) Wilmington Trust
represents that (i) it is duly authorized to execute this Agreement and to enter
into the settlement described herein and the Releases and other documents
annexed hereto and (ii) it has obtained all approvals and consents to execute
this Agreement and to enter into the settlement described herein and the
Releases and other documents annexed hereto.
13. Governing Law and Retention of Jurisdiction. This Agreement, and all
claims and disputes arising in connection with this Agreement or the
transactions contemplated hereby, shall be governed by and construed in
accordance with the laws of the State of Delaware
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without giving effect to conflicts of laws principles. The parties agree that
the District Court shall retain jurisdiction to enforce this Agreement and all
exhibits hereto.
14. Multiple Counterparts. This Agreement may be executed in two
counterparts, both of which shall constitute collectively one agreement.
15. Entire Agreement; Amendments. This Agreement and the Releases and other
documents annexed hereto contain all the representations and warranties, express
and implied, oral and written, of the parties and constitute the entire
understanding and agreement between the parties with respect to the subject
matter hereof and thereof. No other agreements, covenants, representations or
warranties, express or implied, oral or written, have been made by either party
with respect to the subject matter of this Agreement and the Releases and other
documents annexed hereto. All prior and contemporaneous conversations,
negotiations, proposed agreements, representations, covenants and warranties
with respect to the subject matter hereof and the Releases and other documents
annexed hereto are merged herein, waived, superseded and replaced in total by
this Agreement and the Releases and other documents annexed hereto. This
Agreement and the Releases and other documents annexed hereto have been jointly
drafted by the Parties and their counsel. This is an integrated agreement. No
amendment, waiver or modification of any provision of this Agreement and the
Releases and other documents annexed hereto shall be effective unless the same
shall be in writing and signed by both of the parties. The parties agree to
execute such additional documents as may be necessary to bring into effect the
terms and conditions of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date hereof.
ROYAL INDEMNITY COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: V.P., Assistant General Counsel
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WILMINGTON TRUST COMPANY OF PENNSYLVANIA
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
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Title: VP
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