Settlement Class (f) Approve the method of notice to be provided to the Rule 23(b)(3) Settlement Class and the Rule 23(b)(2) Settlement Class in substantially the form described in the Notice Plan and budget contained in Appendix E hereto, including use of the long-form website and mail notice and the publication notice contained in Appendix F hereto, and direct any further notice (and expenses therefor) that the Court may find necessary to provide due process.
(g) Approve the procedures in substantially the form described in the Notice Plan and below for members of the Rule 23(b)(3) Settlement Class to become Opt Outs and exclude themselves from the Rule 23(b)(3) Settlement Class, and including the provision of the information specified in Paragraph 84 below, and approve the procedures in substantially the form described in the Notice Plan and below for members of the Rule 23(b)(3) Settlement Class or the Rule 23(b)(2) Settlement Class to object to this Class Settlement Agreement.
(h) Schedule a final approval hearing for a time and date convenient for the Court at least two hundred eighty five days after the Court’s entry of the Class Settlement Preliminary Approval Order, at which hearing the Court will conduct an inquiry into the fairness, reasonableness, and adequacy of this Class Settlement Agreement and address any objections to it, and determine whether this Class Settlement Agreement and the Plan of Administration and Distribution should be finally approved, and whether to approve any motions for Attorneys’ Fee Awards, Expense Awards, and Class Plaintiffs’ Awards.
(i) Stay all further proceedings in this Action as between the Class Plaintiffs or any other plaintiff in a putative class action consolidated in MDL 1720, and the Defendants or any other defendant in a putative class action consolidated in MDL 1720, except for proceedings in MDL 1720 related to effectuating and complying with this Class Settlement Agreement, pending the Court’s determination of whether this Class Settlement Agreement should be finally approved or the termination of this Class Settlement Agreement.
(j) Enjoin the members of the Rule 23(b)(3) Settlement Class and the Rule 23(b)(2) Settlement Class, pending the Court’s determination of whether this Class Settlement should finally be approved or the termination of this Class Settlement Agreement, from challenging in any action or proceeding any matter covered by this Class Settlement Agreement or its release and covenant not to sue provisions, except for (i) proceedings in MDL 1720 related to effectuating and complying with this Class Settlement Agreement, and (ii) any Opt Out’s claims for damages based on any conduct, acts, transactions, events, occurrences, statements, omissions, or failures to act of any Rule 23(b)(3) Settlement Class Released Party prior to the date of the Court’s entry of the Class Settlement Preliminary Approval Order.
Settlement Class Certification The Settling Parties agree, for purposes of this settlement only, to the certification of the Settlement Class. If the settlement set forth in this Settlement Agreement is not approved by the Court, or if the Settlement Agreement is terminated or cancelled pursuant to the terms of this Settlement Agreement, this Settlement Agreement, and the certification of the Settlement Class provided for herein, will be vacated and the Litigation shall proceed as though the Settlement Class had never been certified, without prejudice to any Person’s or Settling Party’s position on the issue of class certification or any other issue. The Settling Parties’ agreement to the certification of the Settlement Class is also without prejudice to any position asserted by the Settling Parties in any other proceeding, case or action, as to which all of their rights are specifically preserved.
The Settlement Fund 34. The Escrow Account shall be established as a “qualified settlement fund” as defined in Section 1.468B-1(a) of the U.S. Treasury Regulations or other appropriate escrow account as agreed to by the Settling Parties.
35. After preliminary approval of the Settlement, Co-Lead Counsel may utilize up to $100,000 from the Notice Fund to provide notice of the Settlement to potential members of the Settlement Class and for notice administration, without an order from the Court. The amount spent or incurred for notice and notice administration is not refundable to Settling Defendants in the event the Settlement Agreement is disapproved, rescinded, or otherwise fails to become effective.
36. From the Notice Fund and the Settlement Fund shall be paid the cost of settlement notice, claims administration, class representatives’ incentive awards, attorneys’ fees, reimbursement of all actual expenses of the Action, any other litigation costs of Plaintiffs, and all applicable taxes, if any. The Settling Parties shall have the right to audit amounts paid from the Settlement Fund prior to the final approval of the Settlement.
37. The Settlement Fund shall be invested in United States Government Treasury obligations or United States Treasury money market funds. The Notice Fund may be deposited in a bank account, in which case it will be deposited in a federally insured interest-bearing account.
38. Settling Defendants shall not have any responsibility, financial obligation, or liability whatsoever with respect to the investment, distribution, use, or administration of the Settlement Fund, including, but not limited to, the costs and expenses of such investment, distribution, use or administration except as expressly otherwise provided in this Settlement Agreement.
39. Settling Defendants’ only payment obligation is to pay the Settlement Amount. Settling Defendants shall not be liable for any costs, expenses, or fees of any of Plaintiffs’ respective attorneys, experts, advisors, agents, or representatives. Payment of all such costs, expenses, and fees, as approved by the Court, shall be paid only out of the Settlement Fund or the Opt-Out Fee and Expense Account. No disbursements shall be made from the Notice Fund or the Settlement Fund prior to the Effective Date of this Settlement Agreement except as described in Paragraphs 35 and 36, above.
40. The distribution of the Settlement Fund shall be administered pursuant to a plan of allocation (the “Plan of Allocation”) proposed by Co-Lead Counsel and subject to the approval of the Court. If such approval is not obtained, Co-Lead Counsel shall revise the Plan of Allocation as necessary until approval of the Court is obtained. Settling Defendants shall have no participatory or approval rights with respect to the Plan of Allocation and the Court’s rejection of the Plan of Allocation shall not affect the validity or enforceability of this Settlement Agreement.
41. Settling Defendants will take no position on any application for fees and reimbursement of expenses made by Co-Lead Counsel or by the Settlement Class Members or any application for class representatives’ incentive awards out of the Settlement Fund.
Notice to Class Members 2.6 The Class Notice shall be mailed via first class mail through the United States Postal Service (“USPS”), postage pre-paid. The Class Notice and its envelope or covering shall be marked to denote the return address of the Settlement Administrator.
2.7 Pursuant to order of the Court, within twenty (20) days after the Preliminary Approval Date, Cap Re shall provide to Lead Class Counsel and the Settlement Administrator, conforming to the specifications of the Settlement Administrator, the Class Member List. In preparing the Class Member List, except as discussed herein, Defendants shall have no obligation to look beyond information obtainable from Cap Re’s and GMAC Mortgage’s readily- searchable computer media. The Class Member List shall, for each Reinsured Loan, specify:
(a) the names of all the borrower(s) associated with the Reinsured Loan;
(b) the address of the property securing the Reinsured Loan; and
(c) the loan number of the Reinsured Loan. The costs to GMAC Mortgage and Cap Re in compiling the Class Member List in accordance with the Agreement shall not be considered Administrative Costs to be paid from the Settlement Fund. Named Plaintiffs may conduct reasonable confirmatory discovery of Cap Re, GMAC Mortgage and Ally Bank with respect to the contours and size of the Settlement Class, in a manner to be mutually agreed upon by the Parties.
2.8 After obtaining the Class Member List, the Settlement Administrator shall utilize current USPS software and/or National Change of Address (“NCOA”) searches to update the address records so that Class Members’ most recent addresses will be utilized. If GMAC Mortgage’s or Cap Re’s records or USPS/NCOA searches indicate that co-obligors on a loan now reside at separate addresses, the Settlement Administrator will send notices to each address where a co-obligor is believed to reside. If the most recent address cannot be identified, the Class Member’s Last Known Address will be utilized. The cost to the Settlement Administrator of compiling, updating, or otherwise processing the Class Member List in accordance with the Agreement and Court orders will be paid from the Settlement Fund.
2.9 The Class Member List and its contents are to be used by Lead Class Counsel and the Settlement Administrator solely for the purpose of performing their obligations under this Agreement, and shall not be used for any other purpose at any time. Neither the Class Member List, nor the information contained in it, shall be reproduced, copied, stored, or distributed in any form, electronic or otherwise, to anyone by Lead Class Counsel or the Settlement Administrator and shall be subject to return or destruction pursuant to Section 8.14 of this Agreement.
2.10 Lead Class Counsel, through the Settlement Administrator, will establish a website for communications with Class Members, but the domain name and content of the website must be approved by GMAC Mortgage and Cap Re, and such approval shall not be unreasonably withheld.
2.11 The cost of providing Class Notice to each person on the Class Member List, as well as the cost of the Settlement Administrator, and all expenses incurred by the Settlement Administrator, including, without limitation, postage costs and data processing, will be paid from the Settlement Fund. The Parties, in good faith, will endeavor to minimize these costs to the extent possible or prudent.
2.12 No later than forty-five (45) days after entry of the Preliminary Approval Order, the Settlement Administrator will provide notice of this Settlement and the date of the Final Approval Hearing by mailing to all Class Members a copy of the Class Notice, in substantially the form attached hereto as Exhibit B. Prior to the Final Approval Hearing, Class Counsel shall serve and file a sworn statement by the Settlement Administrator evidencing compliance with the provisions of the Preliminary Approval Order concerning the preparation of and mailing of the Class Notice.
2.13 In the event that a Class Notice is returned to the Settlement Administrator by the United States Postal Service because the address of the recipient is no longer valid, and the envelope contains a forwarding address, the Settlement Administrator shall resend the Class Notice to the address within seven (7) days of receiving such information.
2.14 In the event that subsequent to the first mailing of a Class Notice, and at least fourteen (14) days prior to the Opt-Out Deadline, a Class Notice is returned to the Settlement Administrator by the United States Postal Service because the address of the recipient is no longer valid, i.e., the envelope is marked “Return to Sender,” and does not contain a new forwarding address, the Settlement Administrator shall perform a standard skip trace, in the manner that the Settlement Administrator customarily performs skip traces and to the extent that the information needed to perform a skip trace is available, in an effort to ascertain the current address of the particular Class Member in question and, if such an address is ascertained, the Settlement Administrator will resend the Class Notice within seven (7) days of receiving such information.
2.15 The Class Notice shall inform each Class Member of his or her right to opt-out of the Class and not to be bound by this Agreement, if, by the Opt-Out Deadline, the Class Member mails to the Settlement Administrator a notice of intention to opt out (in no particular format, but which contain the words “opt- out,” “exclusion,” or words to that effect clearly indicating an intent not to participate in the Settlement, and sets forth the Class Member’s name, address, telephone number, and loan number (if available)). The Class Notice shall further inform each Class Member of the impact of confirmation of the Chapter 11 Plan on their individual claims should they decide to opt out. The Parties shall reach an agreement as to whether a communication from a Class Member is a request to opt-out, and shall inform the Court of their position at the Final Approval Hearing if necessary and/or appropriate. In no event shall persons who purport to opt out of the Settlement as a group, aggregate, or class involving more than one
(1) Class Member be considered Successful Opt-Outs.
2.16 Unless the Court directs otherwise, the Class Notices shall provide that requests by any Class Member to opt-out of the Settlement be mailed to the Settlement Administrator and postmarked by the Opt-Out Deadline, or be forever barred. In the event that more than one (1) person is obligated on a Reinsured Loan, all the obligors must submit opt-outs by the Opt-Out Deadline to designate the loan a Successful Opt-Out. Unless a Class Member is deemed a Successful Opt-Out, the Class Member will be deemed a Participating Class Member, subject to all the terms of this Agreement.
2.17 Lead Class Counsel or Defense Counsel may dispute an opt-out or purported opt- out, including an attempt to opt out as a group, aggregate or class, within thirty (30) days of the postmarking of a notice of intention to opt out, or by the Settlement Effective Date, whichever occurs later. The Court shall retain jurisdiction to resolve such disputes. Any decision by Defense Counsel not to dispute an opt-out or purported opt-out shall not be a waiver, determination, or preclusive finding against any of the Defendants as to the truth of the facts in any proceeding other than the Action or of the facts with respect to any other Class Member.
2.18 For a period of three hundred sixty (360) days after the Preliminary Approval Date, or one hundred eighty (180) days after the Final Approval Order is entered, whichever is later, the Settlement Administrator shall maintain a post office box or address, as well as a functioning email address, to receive mail in connection with the Settlement.
Qualified Settlement Fund The Administrator shall establish a settlement fund that meets the requirements of a Qualified Settlement Fund (“QSF”) under US Treasury Regulation section 468B-1.
Full Settlement; Legal Fees The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and except as specifically provided in Section 6(a)(ii), such amounts shall not be reduced whether or not the Executive obtains other employment. The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof) by the Company, the Executive or others of the validity or enforceability of, or liability or entitlement under, any provision of this Agreement or any guarantee of performance thereof (whether such contest is between the Company and the Executive or between either of them and any third party, and including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement), plus in each case interest on any delayed payment at 120% of the applicable Federal rate (that applies to the time period of the delay) provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code"), compounded annually.
Full Settlement The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not the Executive obtains other employment. The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof) by the Company, the Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement), plus in each case interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
Settlement Fund All payments under this Section IV shall be made into the Settlement Fund, except that, where specified, they shall be made into the Settlement Fund Escrow. The Settlement Fund shall be allocated and used only as specified in Section V.
Claims and Settlements Each party shall, within five (5) days after the making of any claim under the Bond, provide UMB Fund Services, Inc. (“UMBFS”) with written notice of the amount and nature of such claim, and UMBFS will provide written notice to all other parties within five (5) days of receipt. Each party shall, within five (5) days of the receipt thereof, provide UMBFS with written notice of the terms of settlement of any claim made under the Bond by such party, and UMBFS will provide written notice to all other parties within five (5) days of receipt. In the event that two or more parties shall agree to settlement with the fidelity company of a claim made under the Bond with respect to a single loss, such parties shall, within five days after settlement, provide UMBFS with written notice of the amounts to be received by each claiming party under Section 4 hereof, and UMBFS will provide written notice to all other parties within five (5) days of receipt. The officer(s) of the respective parties designated as responsible for filing notices required by paragraph (g) of the Rule 17g-1 under the Act shall give and receive any notice required hereby.
Staggered Settlement If upon advice of counsel with respect to applicable legal and regulatory requirements, including any requirements relating to Dealer’s commercially reasonable hedging activities hereunder, Dealer reasonably determines that it would not be practicable or advisable to deliver, or to acquire Shares to deliver, any or all of the Shares to be delivered by Dealer on any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “Nominal Settlement Date”), elect to deliver the Shares on two or more dates (each, a “Staggered Settlement Date”) as follows:
(i) in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date;
(ii) the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date; and
(iii) if the Net Share Settlement terms or the Combination Settlement terms set forth above were to apply on the Nominal Settlement Date, then the Net Share Settlement terms or the Combination Settlement terms, as the case may be, will apply on each Staggered Settlement Date, except that the Shares otherwise deliverable on such Nominal Settlement Date will be allocated among such Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above.