Exhibit I to 2.3
FIRST AMENDED AND RESTATED SETTLEMENT AGREEMENT
This FIRST AMENDED AND RESTATED SETTLEMENT AGREEMENT (the "RESTATED AGREEMENT")
is made this 9/th/ day of January, 2001, by and among CREDITRUST CORPORATION
("CREDITRUST"), ASSET GUARANTY INSURANCE COMPANY ("AGI"), ENHANCE FINANCIAL
SERVICES GROUP, INC. ("EFS"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("▇▇▇▇▇▇"), POOL 98-2 - ISSUER: CREDITRUST SPV98-2, LLC ("POOL 98-2 ISSUER"),
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▇▇▇▇ ▇▇-▇▇ ▇▇▇ ▇▇-▇ - WAREHOUSE LINE - ISSUER: CREDITRUST FUNDING I, LLC ("POOL
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99-3A ISSUER"), NCO FINANCIAL SYSTEMS, INC. ("NCO") and NCO PORTFOLIO FUNDING,
INC. ("NPFI").
WHEREAS, on June 21, 2000, Creditrust filed a voluntary petition for relief
under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court
for the District of Maryland ("Bankruptcy Court"), commencing Case No. 00-5-
7812-JS (the "Bankruptcy Case"); and,
WHEREAS, Pool 98-2 Issuer and Pool 99-3A Issuer, each a wholly-owned
subsidiary of Creditrust, have issued certain asset-backed notes, the payment
of which is secured by pools of consumer credit card receivables that the
subsidiaries respectively own, known as "Pool 98-2" and "Pool 99-3A;" and,
WHEREAS, Pool 98-2 has a cash reserve held by ▇▇▇▇▇ Fargo Bank Minnesota,
N.A., as trustee, currently in the amount of approximately $3.25 million, to
secure payment of the Pool 98-2 asset-backed notes (the "98-2 Reserve") and Pool
99-3A has a cash reserve held by ▇▇▇▇▇ Fargo Bank Minnesota, N.A. as trustee,
currently in an amount in excess of $900,000, to secure payment of the Pool 99-
3A asset-backed notes (the "99-3A Reserve"); and,
WHEREAS, AGI has insured the timely payment of interest and the ultimate
payment of principal of the asset-backed notes issued by the Pool 98-2 Issuer
("98-2 Insurance Policy") and the Pool 99-3A Issuer ("99-3A Insurance Policy");
and,
WHEREAS, in April 2000, Creditrust and ▇▇▇▇▇▇ filed a lawsuit known as
Creditrust Corporation, et al. v. Enhance Financial Services Group, Inc., et al;
United States District Court, District Court of Maryland, Reference No. WNNCV966
against EFS, AGI, and ▇▇▇▇▇▇▇▇ (the "Litigation"); and,
WHEREAS, AGI has filed a motion for the appointment of a trustee and an
adversary complaint seeking, among other things, an administrative claim in the
Bankruptcy Case relating to amounts allegedly required to be deposited in the
99-3A Reserve (the "Bankruptcy Litigation"); and,
WHEREAS, AGI asserts that it has numerous claims against Creditrust
including, without limitation, a claim in the amount of $4,550,000.00 as a
result of Creditrust's failure to comply with the provisions of that certain
Amendment No. 3 to the Indenture and Servicing Agreement to which the Pool 99-3A
Issuer is a party ("Third Amendment") dated as of December 21, 1999 ("Reserve
Claim") which claim Creditrust disputes; and,
WHEREAS, ▇▇▇▇▇▇▇▇ asserts that he has numerous claims against Creditrust,
which claims Creditrust disputes, and Creditrust has asserted numerous claims
against ▇▇▇▇▇▇▇▇, which claims ▇▇▇▇▇▇▇▇ disputes; and
WHEREAS, the parties intend to definitively resolve their claims against
each other and settle the Litigation and the Bankruptcy Litigation; and
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WHEREAS, the parties previously entered into a settlement agreement dated
October 19, 2000 (the "Original Agreement") to give effect to this intention;
and
WHEREAS, the Bankruptcy Court denied the motion to approve the Original
Agreement on November 28, 2000; and
WHEREAS, the parties wish to continue to be bound by the terms of the
Original Agreement as modified and amended herein in light of the Bankruptcy's
Court's ruling and subsequent events; and
WHEREAS, NPFI intends to merge with and acquire Creditrust (the merged
entity will be referred to as "Reorganized NPFI") pursuant to a Fifth Amended
Plan of Reorganization dated December 21, 2000 filed by Creditrust in the
Bankruptcy Case, as amended ("the Plan") according to the terms of that certain
Agreement and Plan of Merger dated September 20, 2000, as subsequently amended
and restated, for the Merger of Creditrust Corporation with and into NCO
Portfolio Funding, Inc. ("the Merger Agreement");
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements of the parties contained herein and in the Original Agreement, as
applicable, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. ORIGINAL AGREEMENT
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The parties agree that the terms of the Original Agreement, which
are hereby ratified, reaffirmed, and expressly incorporated by reference herein,
shall constitute the terms of this Restated Agreement, except as provided for in
the following paragraphs.
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2. LOCKUP
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Paragraphs 7 (A), (B), and (C) of the Original Agreement are deleted
from the Restated Agreement. The parties agree to use their reasonable best
efforts to obtain confirmation of the Plan proposed by Creditrust containing,
reflecting, and embodying the terms of the Restated Agreement, and AGI and EFS
shall not object to, and shall support and vote in favor of, the Plan. In the
event confirmation of any competing Plan of Reorganization is sought by the
Official Committee of Unsecured Creditors or any other party, nothing herein
shall preclude AGI or EFS from voting in favor of any such competing Plan, so
long as such Plan provides treatment of the claims of AGI and EFS at least as
favorable as that provided for in this Restated Agreement.
3. RELEASES
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Paragraph 13(B) of the Original Agreement is hereby amended to
eliminate the requirement that the releases formerly executed but not dated or
exchanged by and between the parties are deemed null and void due to the
disapproval of the Original Agreement by the Bankruptcy Court, and all parties
agree that the releases formerly executed shall remain eligible to become
operative and to be exchanged on the Effective Date according to the terms of
the Restated Agreement. Paragraph 6 of the Original Agreement is also modified
to eliminate any requirement that releases be exchanged between Creditrust and
▇▇▇▇▇▇.
4. STAY OF LITIGATION
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In the event confirmation of any competing Plan of Reorganization is
sought by the Official Committee of Unsecured Creditors or any other party, and
such competing Plan fails to provide treatment of the claims of AGI and EFS at
least as favorable as that provided for in this Restated Agreement, Paragraph 8
of the Original Agreement is modified to permit AGI and
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EFS to initiate and engage in such litigation as they may deem necessary in
their sole discretion to establish or defend any claims, rights, or interests
they may have in the Bankruptcy Case (subject to the Debtor's right to oppose
the assertion of any such claims, rights, or interests) unless and until the
terms of any such competing Plan shall be modified to provide treatment of the
claims of AGI and EFS at least as favorable as that provided for in this
Restated Agreement.
5. STIPULATION
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Not later than 5 business days following execution of the Restated
Agreement, the parties shall prepare and submit for approval by order of the
Bankruptcy Court a joint stipulation setting forth and embodying the terms of
this Agreement, with a copy of this Agreement attached thereto as an exhibit.
The parties shall cooperate with one another to obtain a hearing on, and
approval of, such stipulation as expeditiously as possible consistent with the
Bankruptcy Court's calendar.
6. PRODUCTION AND EXECUTION OF DOCUMENTS
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Paragraph 5 of the Original Agreement is hereby amended to refer to
the joint stipulation provided for in paragraph 5 of the Restated Agreement,
rather than Paragraph 9 of the Original Agreement. Paragraph 5 of the Original
Agreement is further amended to provide that the date by which the documents
referenced in that Paragraph must be finalized is not three (3) business days
prior to the date of the Disclosure Statement on the Plan reflecting the terms
of the Original Agreement but rather as soon as practicable, but in no event
later than the date of the confirmation hearing on the Plan.
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7. TERMS OF MERGER
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Within five (5) business days of the execution of this Restated
Agreement, NCO and NPFI agree to provide AGI and EFS with updated information
concerning the terms of the merger with Creditrust and updated pro forma
financial statements reflecting the impact, if any, of changes made to the
original Plan filed by Creditrust. AGI and EFS shall evaluate such information
and financial statements according to the terms of Paragraph 3(B) of the
Original Agreement.
8. NO MODIFICATION OF TRUSTEE RIGHTS AND RESERVATION OF RIGHTS
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Nothing in this Restated Agreement shall be binding on ▇▇▇▇▇ Fargo, as
trustee, backup servicer, or successor servicer for the series 1998-A and 1998-2
securitizations, nor shall anything herein constitute a waiver, limitation,
modification, determination, or in any way adversely affect any rights,
interests, or claims which ▇▇▇▇▇ Fargo, as trustee, backup servicer, or
successor servicer, or its subservicer, Coldata, Inc, has, have, or may have
arising out of or related directly or indirectly to the aformementioned
securitizations. All rights, claims, and causes of action of ▇▇▇▇▇ Fargo, as
trustee, backup servicer, or successor servicer are reserved and deemed not
adversely affected by the provisions hereof. In addition, all rights, claims,
and causes of action of Pool 98-2 Issuer, Pool ▇▇-▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇,
Creditrust, AGI, and EFS against ▇▇▇▇▇ Fargo and Coldata, Inc. are reserved and
deemed not adversely affected by the provisions hereof. Lastly, the failure of
the parties to fully execute this Restated Agreement shall not affect the
parties' rights with respect to the enforceability of the Original Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by each of
the parties hereto as of the date first above written.
Creditrust Corporation Asset Guaranty Insurance Company
by:___________________________________ by:___________________________
Enhance Financial Services Group, Inc.
by:___________________________________ ______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NCO Financial Systems, Inc. NCO Portfolio Funding, Inc.
by:___________________________________ by:___________________________
CREDITRUST SPV98-2, LLC
by:___________________________________
CREDITRUST FUNDING I, LLC
by:___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________________
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