AMENDMENT NO. 1 TO SETTLEMENT AGREEMENT
---------------------------------------
WHEREAS, a Settlement Agreement dated as of June 2, 1989, was entered
into by and between the parties listed below.
WHEREAS, the parties to that Settlement Agreement desire to amend the
Settlement Agreement as set forth herein.
ACCORDINGLY, the parties to that Settlement Agreement, through their
respective undersigned counsel, in accordance with paragraph 6.1 of the
Settlement Agreement, agree as follows:
1. Paragraph 1.1 set forth on page three of the Settlement Agreement
is hereby amended to read:
1.1 On or before the effective date of this Settlement
Agreement, as described in Article Three hereof (the "Effective
Date"), Hall will pay or cause to be paid to the Liquidator the sum of
TWENTY SIX MILLION, FOUR HUNDRED THOUSAND DOLLARS ($26,400,000.00)
plus interest as set forth below (the "Down Payment"). The interest
included in the Down Payment shall be eight percent (8%) per annum for
the period commencing with the last day to file a notice of appeal
from entry of the Trial Court's order with respect to the Settlement
Agreement, as described in paragraph 3.3(b) herein, and ending with
the day the Down Payment is received by the Liquidator. Said Down
Payment shall be made by wire transfer in accordance with the written
instructions to be provided by the Liquidator to Hall.
2. Paragraph 1.3 of the Settlement Agreement is hereby amended to
read:
1.3 The Annual Payments (but not the Down Payment) shall be
reduced to the extent that any of the Settling Defendants incurs any
liability for any judgment(s) or settlement(s) and related costs or
expenses ("Paid Loss") as a result of any claim, suit or action brought
at any time against any one or more of them by any person, partnership,
corporation or other legal or governmental
entity on any claim, suit or action arising out of or relating to the
operations, business, insolvency or liquidation of Union as provided
below ("Accepted Claims"). Accepted Claims shall include: (i) any
claims asserted against the Settling Defendants which are based upon
any legitimate proof of claim in the Union liquidation proceeding,
(ii) any claims alleged against any of the Settling Defendants in the
Liquidator Action, and (iii) the claims set forth in the lawsuits
listed in Exhibit F hereto. The Settling Defendants represent and
warrant that as of the date of Amendment No. 1 to this Settlement
Agreement, (i) no Settling Defendant has received any notice of any
claim, suit, or action which constitutes an Accepted Claim other than
those claims which are listed in Exhibit F to the Settlement
Agreement, and (ii) no Paid Loss has occurred. Any suit or action
brought against any of the Settling Defendants prior to the date of
this Amendment No. 1 to this Settlement Agreement which is not listed
in Exhibit F shall not be deemed an Accepted Claim; any claim existing
prior to the date of Amendment No. 1 to this Settlement Agreement of
which the Settling Defendants are aware which is not listed in Exhibit
F shall not be deemed an Accepted Claim; and the Annual Payment shall
not be reduced by the amounts of any Paid Loss incurred prior to the
date of Amendment No. 1 to this Settlement Agreement. Subject to the
foregoing, any Paid Loss incurred in connection with Accepted Claims
shall be subtracted from the next scheduled Annual Payment (but not
any Annual Payments previously paid to the Liquidator); if the Paid
Loss is greater than the next scheduled Annual Payment, the remaining
balance shall be subtracted from the scheduled Annual Payment
immediately following the next scheduled Annual Payment and so on (if
necessary) to continue until the entire Paid Loss is set-off. For
example, if a $1 million Paid Loss is incurred in the first year after
the Effective Date in connection with an Accepted Claim, this Amount
shall be subtracted from the $1.5 million Annual Payment due on the
first anniversary of the Effective Date and Hall shall pay only $.5
million on the first anniversary date of the Effective Date. If a $10
million Paid Loss is incurred in
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the first year after the Effective Date in connection with an Accepted
Claim, then the $29 million Annual Payments owed by Hall shall be
reduced to $19 million, and Hall shall not make any payments until Year
5, when it shall pay $2 million.
3. Paragraph 5.4 of the Settlement Agreement is hereby amended to
read:
5.4 Each Settling Defendant shall individually indemnify and hold
harmless the Liquidator from and against any and all claims, debts,
damages, liabilities, demands, obligations, costs, expenses (including
reasonable attorneys' fees), disputes, actions and causes of action of
every nature in connection with, arising from, or relating to any
breach of warranty or representations made by such Settling Defendant
in, or failure to fulfill his obligations under, this Settlement
Agreement. The Settling Defendants and the Liquidator agree that as of
the date of Amendment No. 1 to this Settlement Agreement, neither the
Liquidator nor any individual Settling Defendant has breached any
representation or warranty or failed to fulfill obligations under this
Settlement Agreement, and that no claims for indemnification or breach
shall be asserted on account of any alleged action or failure to act
prior to the date of Amendment No. 1 to this Settlement Agreement.
4. Paragraph 6.6 of the Settlement Agreement is hereby amended to
read:
6.6 Communications with respect to this Settlement Agreement
shall be in writing and shall be sent certified mail, return receipt
requested, or by Federal Express to:
To the Superintendent:
Xxxxxx Xxxxxxx, Esq.
General Counsel
New York Superintendent of Insurance
Liquidation Bureau
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
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To Hall on behalf of all Settling Defendants,
care of:
Xxxxxx X. Xxxxxxxxx, Esq.
WEIL, GOTSHAL & XXXXXX LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
5. Except as provided herein, this Amendment shall not constitute a waiver
to or modification of any provision, term, condition, representation or warranty
of the Settlement Agreement.
6. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
Dated: April 21, 1997
XXXXXXXX KILL & OLICK, P.C. WEIL, GOTSHAL & XXXXXX LLP
By /s/ R. Xxxx Xxxxxx By /s/ Xxxxxx X. Xxxxxxxxx
------------------------ ---------------------------
R. Xxxx Xxxxxx Xxxxxx X. Xxxxxxxxx
1251 Avenue of the Americas 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000 Xxx Xxxx, XX 00000
(000) 000-0000 (000) 000-0000
Counsel for the Superintendent Counsel for Defendants Prometheus
of Insurance of the State of Funding Corp. (formerly known as
New York Xxxxx X. Xxxx & Co. Inc.), Xxxxx X.
Xxxx & Co. Brokerage, Inc., Xxxxx
XXXXXX X. XXXXXX, ESQ. X. Xxxx Ltd. (Bermuda), FBH
Underwriting Managers Ltd., Xxxxxx
By /s/ Xxxxxx X. Xxxxxx & Co., Interocean Ltd., Xxxxx X.
------------------------ Hall Re of New York, Inc., X.X.
Xxxxxx X. Xxxxxx Saey Insurance Agency, Inc., Union
Group, Inc., Union Treaty and
000 Xxxxx Xxxxxx Excess Co., Inc., Intercontinental
Suite 1922 Re, Inc., Xxxxx X. Xxxx & Co. of
Xxx Xxxx, XX 00000 Alaska, Xxxxx X. Xxxx & Co. of
(000) 000-0000 Connecticut, Inc., Xxxxx X. Xxxx &
Co. of Michigan, Xxxxx X. Xxxx &
Counsel for Defendants Xxxxxxx Co. of Florida,
X. Xxxxxxxx, Xxxxxx X. Xxxxxx
and Xxxxxx X. Xxxxxxxxx
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SKADDEN, ARPS, SLATE, XXXXXXX & XXXX Xxxxx X. Xxxx & Co. of Louisiana,
Xxxxx X. Xxxx & Co. of Illinois,
By /s/ Xxxxx X. Xxxxxxxx Xxxxx X. Xxxx & Co. of
----------------------- Massachusetts, Associated Insurance
Xxxxx X. Xxxxxxxx Agencies Inc., Xxxxx X. Xxxx & Co.
of Pennsylvania, Inc., I.I.U.
000 Xxxxx Xxxxxx Management Inc., Xxxxx X. Xxxx &
Xxx Xxxx, XX 00000 Co. of Wisconsin, Inc., Xxxxx X.
(000) 000-0000 Hall & Co. of Colorado, Great
Plains Insurance Co., Inc., Xxxxx
Counsel for Defendant Xxxxxx X. Xxxxxxx X. Xxxx & Co. of Missouri, Xxxxx X.
Xxxx & Co. of Texas, Inc., Xxxxx X.
Xxxx & Co. of New York, Inc., Xxxxx
XXXXXX, THOMASHOWER & LANDAU X. Xxxx & Co. of California,
Sherwood Insurance Services, Inc.,
By /s/ Xxxx X. Xxxxxx Xxxxx X. Xxxx & Co. of Rhode
----------------------- Island, Inc., Xxxxx X. Xxxx & Co.
Xxxx X. Xxxxxx of Washington, Inc., Xxxxx X. Xxxx
& Co. of Ohio, Inc., Xxxxx X. Xxxx
000 Xxxxx Xxxxxx & Xx. xx Xxxxxxxx Xxxxxx, Inc.
Xxx Xxxx, XX 00000 Global Surplus Insurance Services,
(000) 000-0000 Inc., Xxxxxx & Xxxxxx Holdings Co.
Counsel for Defendant (P.L.C.), Sixty-Seven Brokerage
Xxxx X. Xxxxxxx Corporation, Hall Companies 1-30,
Xxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxx X.
XXXX, MARKS & XXXXX LLP Xxxxxx, Xxxxxx xxXxxxxx, Xxxxxxx X.
Xxxxx, Xxxxxxxxx X. Xxxxxx, Xx.,
By /s/ Xxxx X. Xxxxxx Xxxxx X. Xxxxxxx, Xxxx X. Xxxxxx,
----------------------- Xxxxxxx X. Xxxx, Xxxxxx X. X'Xxxxx,
Xxxx X. Xxxxxx III, Xxxxxx X. Xxxxxxxx and Xxxxxx
X. Xxxxxx.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Counsel for Defendants Xxxxxxx X. Xxxxxx,
Xxxxxx Xxxxxxxx, Xxxxxxx X. Xxxxx,
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxx,
Xxxxxx X. Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxx
X. Xxxx, Xxxxxx Xxxxxx, and Xxxxxxx X.
Xxxxxxxxxx.
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