HomeMy WebLinkAbout95-27 - Comprehensive Settlement Agreement Regarding OC Investment Pools (USBC Case No. SA 94-22272 JER)RESOLUTION NO. '/S-- a 7
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF COSTA MESA, CALIFORNIA, CONCERNING
THE COMPREHENSIVE SETTLEMENT AGREEMENT IN
RE ORANGE COUNTY INVESTMENT POOLS (USBC
CASE NIO. SA 94-22272 JER).
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY
RESOLVE AND FIND AS FOLLOWS:
1. The Comprehensive Settlement Agreement ("Agreement") for the City of Costa
Mesa funds in the Orange County Investment Pools ("OCIP") and OCIP
Bankruptcy Case (USBC Case No. SA 94-22272 JER), attached as Exhibit A, has
been considered at meetings of the City Council on April 3, 1995, and April 12,
1995; and
2. The City Attorney and Finance Director have provided an analysis of the benefits
and risks resulting from the execution of the Agreement, the benefits and risks
associated with choosing one of the options available to the City of Costa Mesa,
and such analysis and accompanying information constitutes adequate information
regarding the benefits and risks of the Agreement under the circumstances; and
3. Based on the information available, the City Council has considered the benefits
and risks of the Agreement and benefits and risks associated with choosing one
of the options available to the City of Costa Mesa.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA
MESA, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
1. The City Council accepts the Agreement, attached as Exhibit A and incorporated
herein, and elects Option B therein as being in the best interest of the City of
Costa Mesa; and
2. The Mayor is hereby authorized to execute the Agreement and election for Option
B, and all other documents necessary to fulfill the obligations of the City of Costa
Mesa under the Agreement and election for Option B.
PASSED AND ADOPTED this 12th day of April, 1995.
ATTEST:
Deputy Cit Clerk of the City of Costa Mesa
Maof the City of Costa Mesa
46
STATE OF CALIFORNIA) PROVED AS TO FORM
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA ) CITY ATTORNEY
I, MARY T. ELLIOTT, Deputy City Clerk and ex -officio Clerk of the City Council of
the City of Costa Mesa, hereby certify that the above and foregoing Resolution No. f 6--
was duly and regularly passed and adopted by the said City Council at a special meeting thereof
held on the 12th day of April, 1995, by the following roll call vote:
AYES: E;, CKS.o&) 3UFF4) I-IDRA.) 3U C 12LL ) GgmS ) ftlo►JA HAt-�
NOES: A%'0") a
ABSENT: t� 0 n1 E
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the City
of Costa Mesa this 13th day of April, 1995.
Deputy City lerk and ex -officio Clerk of
the City Co cil of the City of Costa Mesa
Ext- % iv r 'v4"
March 28, 1995 6:25pm
MASTER
COMPREHENSIVE SETTLEMENT AGREEMENT RE
ORANGE COUNTY INVESTMENT POOLS
THIS AGREEMENT is entered into as of FL', L f;L, , 1995, by and
among the County of Orange (the "County"), on its own behalf and on behalf of the
Orange County Investment Pools, an instrumentality of the County (the "Pools"), and
each of the school districts, special districts, cities and other public agencies and instru-
mentalities identified on Exhibits 1 and 2 hereto (in the singular, each such entity being
a "Non -County Pool Participant," and collectively the "Non -County Pool Participants")
which becomes a party to this Agreement by timely executing an "Agreement to
Become Settling Non -County Pool Participant" in the form of Exhibit 4 hereto on or
before the Deadline specified below (each such Non -County Pool Participant being a
"Settling Non -County Pool Participant"; and the County, the Pools, and the Settling Non -
County Pool Participants being referred to collectively as the "Parties" and individually as
a "Party"), with reference to the following facts and recitals:
RECITALS
A. The County and the Pools are each debtors in cases pending under
chapter 9 of title 11 of the United States Code in the United States Bankruptcy Court for
the Central District of California, which cases have been assigned Case Nos. SA
94 -22272 -JR (the "County Chapter 9 Case") and 94 -22273 -JR (the "Pools Chapter 9
Case"), respectively (collectively, the "Chapter 9 Cases").
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B. The Pool Committee and the Subcommittees (each as defined in Section
1) and their professionals, though involved in the administration of the Pools Chapter 9
Case and the negotiations leading to this Agreement, are not parties to this Agreement
between the County, the Pools and Settling Non -County Pool Participants and make no
representations or warranties regarding the substance of this Agreement or the
accuracy of the Exhibits thereto.
C. Prior to the filing of the Chapter 9 Cases, funds of or administered by the
County and funds of each of the Non -County Pool Participants were invested by the
County Treasurer as part of the Pools.
D. The Pool Assets are insufficient to permit the payment in full of all of the
Pool Balances (as defined in Section 1) of all of the County Claimants (as defined in
Section 1) and of all of the Non -County Pool Participants. Substantial disputes have
developed among the Parties with respect to, among other things, (i) the legal interests
of the Parties in the Pool Assets; (ii) the appropriate allocation of the Pool Assets among
the County Claimants and the Non -County Pool Participants, and (iii) Pool -Related
Claims (as defined in Section 1). Among other assertions, the Settling Non -County Pool
Participants claim that they are entitled to receive the full amount of their investments in
the Pools before any distribution is made therefrom to the County Claimants. The
County disputes this claim.
E. The Parties desire to agree upon an allocation and distribution of the Pool
Assets and the resolution of any and all Pool -Related Claims and Pools -related matters
between or among certain of them.
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IN CONSIDERATION OF THE FOREGOING, and for other good and valu-
able consideration, the receipt of which is hereby acknowledged, it is hereby agreed by
and between the Parties hereto as follows:
meanings:
AGREEMENT
1. Definitions. As used herein, the following terms have the following
a. "Affiliate" of a person or entity means any other person or en-
tity which is controlled by, controls or is commonly controlled with such person
or entity, directly or indirectly.
b. "Agreement" means this Comprehensive Settlement
Agreement Re Orange County Investment Pools.
C. "Agreement to Become Settling Non -County Pool Participant"
means an agreement in the form of Exhibit 4 hereto.
d. I "Assigned Pool -Related Claims" means Pool -Related Claims
which are assigned to the County or which are to be prosecuted by the County
and the proceeds of which are to be received by the County pursuant to the
provisions of Section 12.
e. "Bankruptcy Code" means title 11 of the United States Code,
11 U.S.C. §§ 101 et sea., as in effect on the Petition Date, together with all
amendments, modifications and replacements as the same exist on any relevant
date to the extent applicable to the Chapter 9 Cases.
f. "Bankruptcy Court" means the United States Bankruptcy
Court for the Central District of California or, in the event such court ceases to
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exercise jurisdiction over the Chapter 9 Cases, such court or adjunct thereof that
exercises jurisdiction over the Chapter 9 Cases in lieu of the United States
Bankruptcy Court for the Central District of California.
g. "Business Day" means any day other than a Saturday, a
Sunday, or a "legal holiday," as the term "legal holiday" is defined in Bankruptcy
Rule 9006.
h. "Chapter 9 Cases" has the meaning set forth in the Recitals
hereto.
i. "County" has the meaning set forth in the introductory para-
graph hereof.
j. "County -Administered Accounts" means the accounts admin-
istered by the County which are identified in Exhibit 3 and, notwithstanding
anything to the contrary in this Agreement, the accounts labeled "Irvine Coast
Assessment District" and "Irvine Coast CFD 88-1" on Exhibit 2. All references to
"Irvine Coast CFD 88-1" on Exhibit 2 shall be deemed to be references to "Irvine
Coast Assessment District," and the amounts listed on Exhibit 2 under the
headings 'Total Recovery Notes," 'Total Settlement Secured Claims," "Total
Repayment Claim" and "Professional Reserve" next to the names "Irvine Coast
Assessment District" and "Irvine Coast CFD 88-1" shall be deemed for all
purposes to be zero.
k. "County Chapter 9 Case" has the meaning set forth in the
Recitals hereto.
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I. "County Claimant" means the County and each County Ad-
ministered Account; when used in the plural, "County Claimants" means the
County and all County -Administered Accounts.
M. "County Creditors' Committee" means the Official Committee
of Creditors of the County of Orange appointed in the County Chapter 9 Case
pursuant to section 1102(a)(1) of the Bankruptcy Code.
n. "Deadline" means 5:00 p.m. on April 17, 1995, the latest date
on which a Non -County Pool Participant may elect, without the consent of the
County, to become a Settling Non -County Pool Participant by executing and de-
livering to the County, in the manner specified therein, an Agreement to Become
Settling Non -County Pool Participant.
o. "Deficiency Amount" means, as to each Non -County Pool
Participant listed on Exhibit 1 or 2, the sum of the amounts listed next to the
name of such Non -County Pool Participant on such Exhibit under the headings
'Total Recovery Notes," 'Total Settlement Secured Claims" and 'Total Repayment
Claims."
p. "Effective Date" has the meaning set forth in Section 16.
q. "Excluded Claims" means any claims, demands, obligations,
debts, liabilities, suits, causes of action, remedies or rights: (1) arising under this
Agreement; (2) arising from acts or omissions occurring after the Effective Date
which are not required or specifically contemplated by this Agreement; (3) which
a Settling Option A Pool Participant may have against (i) any underwriter of secur-
ities issued by or for the benefit of such Settling Option A Pool Participant, with
respect to any indebtedness incurred by such Settling Option A Pool Participant
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in connection therewith or (ii) any financial advisor, attorney, accountant or other
professional advisor to such Settling Option A Pool Participant arising out of
advice given or services rendered in its capacity as such to such Settling Option
A Pool Participant regarding a decision to invest in the Pools or the issuance of
debt by such Settling Option A Pool Participant; (4) which the County may have
against (i) any underwriter of securities issued by or for the benefit of the County,
with respect to the issuance of such securities or the incurring of any debt
evidenced thereby or (ii) any financial advisor, attorney, accountant or other
professional advisor to the County arising out of advice given or services
rendered in its capacity as such to the County with respect to matters unrelated
to the management or investment of assets allocated to the Pools; (5) which a
Settling Option A Pool Participant may have respecting the deposit of funds by
such Settling Option A Pool Participant in any court or with the clerk of any court
in accordance with applicable law, but only to the extent that such deposit is not
reflected in such Settling Option A Pool Participant's Pool Balance and does not
form a basis for a distribution to such Settling Option A Pool Participant under
section 3; and (6) resulting from the collection of developer impact fees by the
County for the benefit of any Settling Option A Pool Participant.
r. "Fannie Mae Escrow" means the escrow established pursuant
to the "Stipulation with Respect to Preservation of Claims and Setoff Claims be-
tween Debtors and Federal National Mortgage Association," in which
$118,500,000 has been deposited.
S. "Final Order" means an order or judgment issued by and en-
tered on the docket of the Bankruptcy Court or another court with jurisdiction
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over the matter that has not been reversed, stayed, modified, or amended, and
as to which either (i) the time to appeal has expired and no appeal has been
timely filed, or (ii) if an appeal has been timely filed, such appeal has been
resolved by the highest court to which the order or judgment was timely
appealed or from which certiorari was sought.
t. "Interim Distribution" means, with respect to any County
Claimant or Non -County Pool Participant, any distribution made to such County
Claimant or Non -County Pool Participant subsequent to December 6, 1994, out of
the Pools pursuant to any order of the Bankruptcy Court other than the Tax Dis-
tribution Order, and any other distribution out of the Pools made subsequent to
December 6, 1994, which has been or is to be applied against such County
Claimant's or Non -County Pool Participant's distribution entitlement or Pool
Balance or distributional entitlement in respect thereof pursuant to any order of
the Bankruptcy Court, but does not include any distributions under the Tax Distri-
bution Order.
U. "Litigation Costs" means all costs and expenses incurred by
the County in prosecuting or otherwise attempting to collect or realize upon Pool -
Related Claims against anyone other than a Party to this Agreement (including
Pool -Related Claims of the County and Assigned Pool -Related Claims), the pro-
ceeds of which would constitute Litigation Proceeds, including, without limitation,
the fees and costs of attorneys and other professionals, including experts,
engaged in connection therewith and the cost of computerized document
management systems.
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V. "Litigation Proceeds" means any cash or other property (ex-
cluding any cancellation or modification of indebtedness of the County, but
subject to Section 11(f)) received or recovered from anyone other than a Parry to
this Agreement, including, but not limited to, awards of interest, attorney's fees,
penalties, actual or punitive damages, and increased ownership interests in
property, on account of any Pool -Related Claims of the County and any of the
Assigned Pool -Related Claims, whether by way of settlement, litigation, or
otherwise, but specifically excluding any payment or distribution received by the
County out of Pool Assets or out of the Withheld Proceeds or the Fannie Mae
Escrow and any other payment or other distribution received by the County
under this Agreement.
W. "Net Litigation Proceeds" means the amount which remains
after deducting Litigation Costs from Litigation Proceeds.
X. "Net Proceeds," when used with respect to an asset, means
the proceeds received upon the sale or other disposition of or realization upon
such asset, less (i) commissions and other costs incurred in such sale or other
disposition or realization, and (ii) any payments made or withheld from such
proceeds on account of any claim secured by such asset.
Y_ "Non -County Pool Participant" and "Non -County Pool Partici-
pants" have the meanings set forth in the introductory paragraphs hereof;
provided, however, that notwithstanding anything to the contrary in this
Agreement, the Irvine Coast Assessment District and Irvine Coast CFD 88-1 shall
not be deemed to be Non -County Pool Participants, and shall instead be deemed
to be County -Administered Accounts.
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Z. "Non -School Pool Participant" means, in the singular, each
Non -County Pool Participant that is identified on Exhibit 2, and, in the plural
("Non -School Pool Participants"), all Non -County Pool Participants identified on
Exhibit 2.
aa. "Non -Settling Pool Participant" means any Non -County Pool
Participant which is not a Settling Non -County Pool Participant.
ab. "Option A" means, for any Settling Non -County Pool Particle
pant, the treatment described in Section 7(a).
ac. "Option B" means, for any Settling Non -County Pool Particle
pant, the treatment described in Section 7(b).
ad. "Parry" and "Parties" have the meanings set forth in the intro-
ductory paragraph of this Agreement.
ae. "Petition Date" means December 6, 1994, the date on which
both of the Chapter 9 Cases were filed with the Bankruptcy Court.
af. "Pools" has the meaning set forth in the introductory
paragraph of this Agreement.
ag. "Pool Assets" means the securities, cash and other similar
assets which are or should have been reflected on the books and records of the
County as assets of the Pools as of December 6, 1994 (including any proceeds
thereof), but does not include any amounts paid pursuant to the Tax Distribution
Order.
ah. "Pool Balance" means, as to each County Claimant and Non -
County Pool Participant identified in Exhibit 1, 2 or 3, the aggregate amounts set
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forth next to the name of such County Claimant or Non -County Pool Participant
on such Exhibit under the heading "Pool Cash Value."
ai. "Pool Balance Fraction" means, as to each County Claimant
or Settling Non -County Pool Participant, that fraction, the numerator of which is
such County Claimant's or Settling Non -County Pool Participants' Pool Balance,
and the denominator of which is $5,688,240,393.41 (reflecting the aggregate Pool
Balances).
aj. "Pools Chapter 9 Case" has the meaning set forth in the
Recital "A" hereto.
ak. "Pool Committee" means the Official Investment Pools Partici-
pants' Committee appointed in the Pool Chapter 9 Case pursuant to sections
901(a) and 1102(a)(1) of the Bankruptcy Code. In the event that the Pools
Committee is reconstituted as a separate committee or a subcommittee of the
County Committee in the County Chapter 9 case, "Pools Committee" shall
thereafter mean such reconstituted committee or subcommittee.
al. "Pool -Related Claims" means any and all claims, demands,
obligations, debts, liabilities, suits, causes of action, remedies or rights of any
kind whatsoever, at law, in equity, by statute or otherwise, whenever arising,
whether known or unknown, suspected or unsuspected, fixed or contingent,
liquidated or unliquidated, matured or unmatured, choate or inchoate, pending or
not pending, which in any way relate or pertain to the Pools, the operation or
management of the Pools, any transaction entered into by or on behalf of the
Pools, any investment made in, by, or on behalf of the Pools, the manner in
which assets of the Pools have been invested, purchased or sold, any purchase
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or sale of assets by or on behalf of the Pools, any deposit of funds into the Pools
or withdrawal of funds from the Pools, any other transfer of assets by the Pools
or of assets of the Pools, the conduct, act or omission of any person or entity
(including, without limitation, the County, the Non -County Pool Participants, and
the officers, officials, directors and employees thereof (in their capacity as such))
in connection with the Pools or with any transaction with, or investment of, the
Pools, any statement, representation or omission to state respecting or relating to
the Pools, and any other act or omission which otherwise in any way relates or
pertains to the Pools or the manner in which the affairs of the Pools have been
conducted; provided, however, that the term "Pool -Related Claims" does not
include any Excluded Claims.
am. "Professional Fees Reserve" means a reserve fund to be
created and held for the payment of expenses of the Pool Committee and all
Subcommittees thereof, as approved for payment by the Pool Committee or ap-
propriate Subcommittee, including, without limitation, all fees and expenses of
any attorneys and financial advisors retained by the Pool Committee and all
Subcommittees thereof, as approved for payment by the Pool Committee or
appropriate Subcommittee.
an. "Recovery Notes" means notes to be issued by the County,
which shall be general obligations of the County with a superpriority over all other
administrative, priority and general unsecured claims and have such other terms
and provisions as are agreed upon in writing by the County and the Pool Com-
mittee.
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ao. "Related Parties" means, with respect to any Party, such
Party's successors, predecessors, assigns and present and former officers,
directors, officials, and employees, in each case only in their respective capacities
as such.
ap. "Released Claims" has the meaning set forth in Section 20.
aq. "Releasing Party" means each Settling Non -County Pool Par-
ticipant, the Pools and the County (on its own behalf, and on behalf of any
County Administered Account only to the extent, if any, that the County has
authority to grant a release on behalf of such County Administered Account).
ar. "Repayment Claim" means an allowed, nonpriority, noncontin-
gent, fully liquidated, undisputed claim in the County Chapter 9 case: (i) which
shall be deemed to have arisen prior to the County Chapter 9 Petition Date;
(ii) on account of which the holder shall not be entitled to receive and shall not
receive any payment or other distribution from the County or out of any assets of
the County, whether under a plan of adjustment for the County or otherwise,
other than the Secured Claim Percentage of the Net Litigation Proceeds following
the payment of all Settlement Secured Claims under Section 11(d)(ii), until after
the payment in full of all Senior Claims against the County and the payment in full
of all interest on such Senior Claims which accrues or matures after the County
Petition Date, whether or not any claim for such post -County Petition Date
interest is allowed under the Bankruptcy Code, and even if such claim for post -
County Petition Date interest is disallowed as a claim in the County Chapter 9
Case, whether as a result of section 502(b) of the Bankruptcy Code or otherwise;
(iv) which shall be secured only by a second priority lien on the Secured Claim
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County of Orange California 1994-95 Tax and Revenue Anticipation Notes, Series
B; the County of Orange California 1994-95 Taxable Notes; the County of Orange
1994-95 (Teeter Plan) Taxable Notes; the County of Orange 1994-95 (Teeter
Plan) Tax -Exempt Notes; the County of Orange California 1994-95 Pooled Tax
and Revenue Anticipation Notes; any tax exempt Tax and Revenue Anticipation
Notes which the County issues in the future; the County of Orange Series 1994B
Taxable Pension Obligation Bonds and any extension, renewal, modification,
refunding or refinancing of any of the foregoing to the extent that such extension,
renewal, modification, refunding or refinancing is in a principal amount not in
excess of the amount of the indebtedness which is extended, renewed, modified,
refunded or refinanced; (iii) for goods or services provided, delivered or rendered
to the County or any agency or instrumentality thereof prior to the Petition Date
(other than claims of any County Administered Account) limited, in the case of a
claim described in this clause (iii) for which a County Administered Account is
liable, to the extent that funds are not made available for the payment thereof by
such County Administered Account as a result of the distributions made to such
County Administered Account under this Agreement; (iv) under the Recovery
Notes; (v) which is a Settlement Secured Claim; or (vi) which the County agrees
to grant or allow to any County Administered Account which is a Releasing Party
and is bound by the assignment contained in Section 12, to compensate such
County Administered Account for all or any portion of the amount by which such
County Administered Account's Pool Balance exceeds the amount of the
distributions made to such County Administered Account out of Pool Assets, but
only to the extent of (x) debt containing the same terms and conditions of the
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Recovery Notes in a principal amount equal to up to three percent (3%) of such
County Administered Account's Pool Balance; and (y) debt containing the same
terms and conditions as Settlement Secured Claims in a principal amount equal
to up to nine percent (9%) of such County Administered Account's Pool Balance;
provided, however, that the term "Senior Claim" shall not include any allowed
claim against the County (x) which is subordinated to any other allowed claim
against the County under section 510(b) or 510(c) of the Bankruptcy Code (other
than by reason of any contractual subordination provision governed by Section
510(a)), (y) which is a claim allowed under Section 7(a)(2) or Section 7(b)(3) of
this Agreement; or (z) which is held for the benefit of any bank, broker, dealer or
other third party against which any Party has a Pool -Related Claim (determined
without regard to the provisions of Section 12), or any Affiliate or Related Party of
any such bank, broker, dealer or other third party. The County agrees that it will
not utilize any debt repayment funds reflected in the County Administered
Accounts applicable to claims of the type described in clause (ii) to the extent
that such debt repayment funds are or have been maintained by the County as a
reserve with respect to a claim of the type described in clause (ii), to fund the
County's operating expenses or those of any other County Claimant.
ay. "Settlement Secured Claim" shall mean a non-priority, non -
contingent, fully liquidated, undisputed, allowed general unsecured claim against
the County, which shall be deemed to have arisen prior to the County Petition
Date, which shall not be subject to subordination to any other non-priority
unsecured claim against the County under Section 510 of the Bankruptcy Code
or otherwise and which shall be secured as provided in Section 7 by a first
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priority security interest in and lien on the Secured Claim Percentage of the Net
Litigation Proceeds. Regardless of any valuation of the collateral securing the
Settlement Secured Claim under Section 506(b) of the Bankruptcy Code, the
entire unpaid amount of the Settlement Secured Claim shall be and remain
secured by the Secured Claim Percentage of the Net Litigation Proceeds.
az. "Settling Non -County Pool Participant" has the meaning set
forth in the introductory paragraph hereof.
ba. "Settling Non -School Pool Participant" means each Non -
School Pool Participant who becomes a Party to this Agreement by executing an
Agreement to Become Settling Non -County Pool Participant.
bb. "Settling Option A Pool Participant" means each Settling Non -
County Pool Participant who has elected Option A as of June 8, 1995 or who
timely elects Option A thereafter in accordance with Section 7.
bc. "Settling School Pool Participant" means each School Pool
Participant who becomes a party to this Agreement by executing an Agreement
to Become Settling Non -County Pool Participant.
bd. "Subcommittees" means the Official School and College Dis-
tricts Subcommittee of the Pool Committee, the Official Orange County Cities
Subcommittee of the Pool Committee, and the Official Non -Orange County Cities
Subcommittee of the Pool Committee. In the event that any Subcommittee is re-
constituted as a separate subcommittee in the County Chapter 9 case, the term
"Subcommittees" shall include such reconstituted subcommittee.
be. 'Tax Distribution Order" means the "Order Authorizing Dis-
bursement of Certain Prepetition Real Property and Other Taxes, and Other Col -
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lected Receipts in Accordance with Non -Bankruptcy Law and Otherwise Applic-
able Orange County Regulatory Procedures" entered by the Bankruptcy Court in
the Pools Chapter 9 case on or about January 26, 1995.
bf. "Transfer" has the meaning set forth in section 101 (54) of the
Bankruptcy Code, 11 U.S.C. § 101(54).
bg. "Unallocated Interest" means any interest actually earned by
the Pools, other than on any amounts in the Fannie Mae Escrow, on any
investments described in Exhibit 8, and on any Withheld Proceeds, which was not
taken into account by the accountants for the County and the Pool Committee in
calculating the amounts set forth under the heading "Cash Distribution on
Effective Date" in Exhibits 1, 2 and 3.
bh. "Withheld Proceeds" means any cash or cash equivalents
withheld from the Pools which constitute the proceeds of any Pool Assets, but
which have been withheld by a third parry other than in the Fannie Mae Escrow
under an adverse claim of right to such proceeds. The Withheld Proceeds
include the amounts held by the adverse claimants identified in Exhibit 5 hereto.
In the event that any amounts are recovered from any such adverse claimant
which could only constitute a recovery of Withheld Proceeds or Litigation
Proceeds, whether as a result of a judgment of a court, an award of an arbitrator,
or a settlement with such adverse claimant, then unless such recovery is the
result of a court order or arbitrator's award which is accompanied by findings
which permit an allocation of such recovery as between Withheld Proceeds and
Litigation Proceeds, the amounts so received from such adverse claimant, up to
the amount of the Withheld Proceeds held by and not previously recovered from
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such adverse claimant, shall be deemed to be a recovery of Withheld Proceeds,
and the remainder be deemed to be Litigation Proceeds.
bi. "Withheld Proceeds Fraction" means, as to each County
Claimant or Settling Non -County Pool Participant, that fraction, the numerator of
which is such County Claimant's or Settling Non -County Pool Participants'
Withheld Proceeds Share, and the denominator of which is $121,213,282.32
(representing the total Withheld Proceeds Shares).
bj. "Withheld Proceeds Share" means, as to each County
Claimant or Non -County Pool Participant identified on Exhibit 1, 2 or 3, the
amount set forth next to the name of such County Claimant or Non -County Pool
Participant on such Exhibit under the heading "Withheld Proceeds."
bk. "Withheld Proceeds Shortfall" means, as to each Settling
Option A Pool Participant, the amount by which such Settling Option A Pool Par-
ticipant's Withheld Proceeds Share exceeds the amount of the Withheld Proceeds
distributed to such Settling Option A Pool Participant under section 3(d).
2. Distribution of Pool Assets to County Claimants. Subject to Section
4, the Pools, through the County, shall distribute to each County Claimant the following
amounts out of the Pool Assets:
a. Except as set forth in Section 2(b), the amount set forth next
to the name of such County Claimant under the heading "Cash Distribution on
Effective Date" on Exhibit 3, minus any Interim Distribution to such County
Claimant made after March 17, 1995.
b. Notwithstanding Section 2(a), the Irvine Coast Assessment
District (which includes Irvine Coast CFD 88-1) shall receive, in lieu of the
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distribution specified in Section 2(a): (i) those unliquidated mutual fund securities
which are reflected in the balance listed next to "Irvine Coast Assessment District"
on Exhibit 2 under the heading "Pool Cash Value" — "Specific"; and (ii) the
amount by which the aggregate balances listed next to "Irvine Coast Assessment
District" and "Irvine Coast CFD 88-1" under the heading "Cash Distribution on
Effective Date" on Exhibit 2 exceeds $47,994,429.38, minus any Interim
Distributions made to the Irvine Coast Assessment District (or Irvine Coast CFD
88-1) after March 17, 1995.
C. Such County Claimant's Withheld Proceeds Fraction of any
Withheld Proceeds which are released from the claim of the adverse party by
which they are held and turned over to the Pools.
d. Such County Claimant's ratable portion of any Unallocated
Interest which is in excess of $2,176,493.13 (such $2,176,493.13 representing
amounts owing and unpaid to Salomon Brothers for its services in the liquidation
of Pool Assets, which amount shall be paid to Salomon Brothers out of the
Unallocated Interest), based on the relationship of the weighted average daily
balances of such County Claimant in the Pools subsequent to the Petition Date to
those of all County Claimants and Non -County Pool Participants (in each case,
calculated by excluding any balance attributable to the investments described on
Exhibit 8).
3. Distribution of Pool Assets to Settling Non -County Pool Participants.
Subject to Section 4, the Pools, through the County, shall distribute to each Settling
Non -County Pool Participant the following amounts out of the Pool Assets:
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3865.000 "19"
a. Except as provided in Section 3(b), the amount set forth next
to the name of such Settling Non -County Pool Participant under the heading
"Cash Distribution on Effective Date" on Exhibit 1 or 2, as applicable, minus any
Interim Distributions made to such Settling Non -County Pool Participant after
March 17, 1995.
b. Notwithstanding Section 3(a), each Settling Non -County Pool
Participant who is identified on Exhibit 8 shall receive the following in lieu of the
distribution specified in Section 3(a): (i) the unliquidated Guaranteed Investment
Contract ("GIC") which was included in calculating such Settling Non -County Pool
Participant's balance under the heading "Pool Cash Value" — "Specific" on
Exhibits 1 or 2, as described on Exhibit 8; and (ii) the amount by which the
balance listed next to the name of such Settling Non -County Pool Participant
under the heading "Cash Distribution on Effective Date" on Exhibit 1 or 2 exceeds
the amount set forth next to the name of such Settling Non -County Pool Parti-
cipant on Exhibit 8 under the heading "Balance As of December 6, 1994," minus
any Interim Distributions made to such Settling Non -County Pool Participant after
March 17, 1995.
C. Such Settling Non -County Pool Participant's Withheld Pro-
ceeds Fraction of any Withheld Proceeds which are released from the claim of
the adverse party by which they are held and turned over to the Pools; provided,
however, that following the assignment by a Settling Option A Pool Participant of
its right to distributions out of Withheld Proceeds under this Section 3(c) to the
County in accordance with Section 7(a)(4), any amounts which would otherwise
88-013F
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be paid under this Section 3(c) to such assigning Settling Option A Pool
Participant shall instead be distributed to the County.
d. Such Settling Non -County Pool Participant's ratable portion of
any Unallocated Interest which is in excess of $2,176,493.13 (such $2,176,493.13
representing amounts owing and unpaid to Salomon Brothers for its services in
the liquidation of Pool Assets, which amount shall be paid to Salomon Brothers
out of the Unallocated Interest), based on the relationship of the weighted
average daily balances of such Settling Non -County Pool Participant in the Pools
subsequent to the Petition Date to those of all County Claimants and Non -County
Pool Participants (in each case, calculated by excluding any balance attributable
to the investments described on Exhibit 8).
4. Procedures for Distributions of Pool Assets. On or before the fifth
Business Day after the Effective Date, the Pools, through the County, shall make an
initial distribution out of the amounts available for distribution out of Pool Assets
(i) pursuant to Sections 2(a), 2(b), 3(a) and 3(b); (ii) pursuant to Sections 2(c) and 3(c)
(to the extent, if any, that Withheld Proceeds are then available for distribution); and
(iii). pursuant to Sections 2(d) and 3(d) (to the extent, if any, that the allocation of
Unallocated Interest can be timely determined and the Unallocated Interest exceeds
$2,176,493.13). In the event that, following such initial distribution, additional Withheld
Proceeds or previously undistributed Unallocated Interest in excess of such
$2,176,493.13 are or become available for distribution to County Claimants and Non -
County Pool Participants, the County, on behalf of the Pools, shall make a distribution
therefrom as soon as practicable thereafter in accordance with Sections 2 and 3. Each
Settling Non -County Pool Participant shall furnish the County, acting on behalf of the
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Pools, with its bank wire or other payment instructions in writing; and the County may
rely on such written instructions in making distributions under this Agreement.
5. Professional Fee Reserve. On or before the fifth Business Day fol-
lowing the Effective Date, the County, acting on behalf of the Pools, shall distribute into
the Professional Fee Reserve, out of the amount available for distribution out of Pool
Assets, the aggregate of all amounts listed under the heading "Professional Reserve"
following each Settling Non -County Pool Participant's name on Exhibits 1 and 2 which
have not previously been paid pursuant to Bankruptcy Court order to the professionals
engaged by the Pool Committee and the Subcommittees. This distribution to the
Professional Fee Reserve shall be placed in escrow with an escrow agent selected by
the Pool Committee pursuant to an escrow agreement in a form to be approved by the
Pool Committee. Payments shall be made out of the Professional Fee Reserve only
upon the entry of an order of the Bankruptcy Court authorizing such payments. Any
funds remaining in the Professional Fees Reserve after the payment of all professional
fees and expenses of the Pool Committee and the Subcommittees shall be retained in
such escrow to be used to pay the fees and expenses of the professionals utilized by
the Pool Committee and the Subcommittees as they may be reconstituted in the County
Chapter 9 Case and for such other purposes as may be specified in the escrow
agreement.
6. Assignment by Pools of Rights Respecting Fannie Mae Escrow.
The Parties agree and acknowledge that all amounts presently contained in the Fannie
Mae Escrow, and the securities whose sale generated such amounts, constitute Pool
Assets, and not assets of any particular County Claimant or Non -County Pool
Participants. As a matter of settlement only, and in an effort to achieve an overall
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resolution of their disputes, the Parties have agreed to allocate the amounts in the
Fannie Mae Escrow (and any interest earned thereon or allocable thereto) as part of the
distribution of Pool Assets to the County and to the Non -County Pool Participants with
respect to whose indebtedness such amounts were withheld. This settlement and
allocation in no way constitutes an admission or acknowledgement by any Party that the
amounts in the Fannie Mae Escrow are anything other than Pool Assets or that any par-
ticular County Claimant or Non -County Pool Participant has or had any specific interest
in the amounts in the Fannie Mae Escrow or in any securities whose sale generated
such amounts, and in no way constitutes any other admission or acknowledgement as
among the Parties or as to anyone not a Party to this Agreement. As part of their
settlement, the Parties agree that:
a. The Pools hereby assign, convey and transfer to the County
any and all rights and claims of the Pools with respect to the $90,000,000 amount
reserved in the Fannie Mae Escrow with respect to $90,000,000 of County of
Orange, California 1994-95 Taxable Notes and any interest earned on or allocable
to such amount after the Effective Date. The Parties agree that to the extent that
any amounts so reserved (and any interest earned thereon or allocable thereto)
are released from the Fannie May Escrow, they shall be paid to and become
funds of the County which the County may retain and utilize for its own account.
b. The Pools hereby assign, convey and transfer to the Orange
County Board of Education any and all rights and claims of the Pools with
respect to the $6,300,000 amount reserved in the Fannie Mae Escrow with
respect to $6,300,000 in Orange County Board of Education 1994 Taxable Notes,
and any interest earned on or allocable to such amount after the Effective Date.
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The Parties agree that to the extent that any amounts so reserved (and any
interest earned thereon or allocable thereto) are released from the Fannie Mae
Escrow, they shall be paid to and become funds of the Orange County Board of
Education, which the Orange County Board of Education may retain and utilize
for its own account.
C. The Pools hereby assign, convey and transfer to the
Newport -Mesa Unified School District any and all rights and claims of the Pools
with respect to the $7,000,000 amount reserved in the Fannie Mae Escrow with
respect to $7,000,000 in Newport -Mesa Unified School District 1994 Taxable
Notes, and any interest earned on or allocable to such amount after the Effective
Date. The Parties agree that to the extent that any amounts so reserved (and
any interest earned thereon or allocable thereto) are released from the Fannie
Mae Escrow, they shall be paid to and become funds of the Newport -Mesa
Unified School District, which the Newport -Mesa Unified School District may retain
and utilize for its own account.
d. The Pools hereby assign, convey and transfer to the North
Orange County Community College District any and all rights and claims of the
Pools with respect to the $7,000,000 amount reserved in the Fannie Mae Escrow
with respect to $7,000,000 in North Orange County Community College District
1994 Taxable Notes, and any interest earned on or allocable to such amount
after the Effective Date. The Parties agree that to the extent that any amounts so
reserved (and any interest earned thereon or allocable thereto) are released from
the Fannie Mae Escrow, they shall be paid to and become funds of the North
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Orange County Community College District, which the North Orange County
Community College District may retain and utilize for its own account.
e. The Pools hereby assign, convey and transfer to the Irvine
Unified School District any and all rights and claims of the Pools with respect to
the $8,200,000 amount reserved in the Fannie Mae Escrow with respect to
$8,200,000 in Irvine Unified School District 1994 Taxable Notes, and any interest
earned on or allocable to such amount after the Effective Date. The Parties
agree that to the extent that any amounts so reserved (and any interest earned
thereon or allocable thereto) are released from the Fannie Mae Escrow, they shall
be paid to and become funds of the Irvine Unified School District, which the Irvine
Unified School District may retain and utilize for its own account.
7. Distribution by County in Respect of Deficiency Amounts of Settling
Non -County Pool Participants. Each Settling Non -County Pool Participant may elect
treatment with respect to its Deficiency Amount in accordance with either Option A or
Option B, described below. The election shall be made by initialing the applicable box
marked "Option A" or "Option B" in Paragraph 2 of the Agreement to Become Settling
Non -County Pool Participant. Such election may be changed only as follows: (i) such
election may be changed by submitting to the County, at the address for notice to the
County, a new Agreement to Become Settling Non -County Pool Participant, appropri-
ately executed and with the new option elected by proper initialing, at any time prior to
the eleventh day following the entry of the order of the Bankruptcy Court described in
Section 16(b); (ii) an election of Option B thereafter may be changed to an election of
Option A only until the earlier of (x) 9:00 a.m. PDT on June 5, 1995 and (y) the date and
time on which the County provides written notice that the ability to change an election of
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Option B to an election of Option A is no longer available, provided that for purposes of
this clause (ii), and notwithstanding Section 22, such notice will be deemed to have
been provided and to be effective at 9:00 a.m. PDT of the morning of the date on which
such notice is mailed or otherwise transmitted by the County, regardless of the time of
day on which such notice is actually transmitted and regardless of when such notice is
actually received; and (iii) if and only if the County fails to obtain a liquidity facility
satisfactory to the Pools Committee as described in Section 15 by no later than June 5,
1995, an election of Option A may be changed to an election of Option B until 5:00 P.M.
PDT June 8, 1995. Except as provided in clauses (i), (ii) and (iii) above, an election of
Option A or Option B may be changed only with the written consent of the County,
which may be granted or withheld in the County's sole discretion.
a. Option A: Subject to Sections 8 through 10, inclusive, each
Settling Non -County Pool Participant who elects Option A shall:
(1) receive from the County a principal amount of Recov-
ery Notes equal to the amount set forth next to that Settling Non -County
Pool Participant's name on Exhibit 1 or 2 under the heading 'Total
Recovery Notes;"
(2) in the case of a Settling Non -School Pool Participant
who elects Option A, be allowed a Settlement Secured Claim against the
County in the County Chapter 9 Case in an amount equal to the amount
set forth next to that Settling Non -School Pool Participant's name on
Exhibit 2 under the heading 'Total Settlement Secured Claims;"
(3) be allowed a Repayment Claim against the County in
the County Chapter 9 Case in an amount equal to the amount set forth
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next to that Settling Non -County Pool Participant's name on Exhibit 1 or 2
under the heading "Total Repayment Claims"; and
(4) if and only if such Settling Non -County Pool Participant
has a Withheld Proceeds Shortfall after all distributions to such Settling
Non -County Pool Participant have been made pursuant to Sections 3(c)
and 4, then such Settling Non -County Pool Participant shall receive: (i) an
additional principal amount of Recovery Notes out of the Reserved
Recovery Notes equal to 21.63% of such Settling Non -County Pool Partici-
pant's Withheld Proceeds Shortfall; (ii) be allowed an additional Repayment
Claim against the County in the County Chapter 9 Case in the amount of
46.99% of such Settling Non -County Pool Participant's Withheld Proceeds
Shortfall; and (iii) be allowed a Settlement Secured Claim against the
County in the County Chapter 9 Case in the amount of 31.38% of such
Settling Non -County Pool Participant's Withheld Proceeds Shortfall.
Notwithstanding the foregoing, each Settling Non -County Pool Participant
who elects Option A may, at any time, assign, transfer and convey to the
County, by a writing in form and substance reasonably satisfactory to the
County, all of such Settling Non -County Pool Participant's rights to receive
any further distribution out of Withheld Proceeds under Sections 3(c) and
4. In the event of such assignment, such Settling Non -County Pool
Participant shall receive a principal amount of additional Recovery Notes
out of the Reserved Recovery Notes and be allowed an additional
Repayment Claim and a Settlement Secured Claim calculated in
accordance with the first sentence of this Section 7(a)(4) except that, for
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purposes of making such calculation, such Settling Non -County Pool
Participant's Withheld Proceeds Shortfall shall be deemed to be the
amount by which such Settling Non -County Pool Participant's Withheld
Proceeds Share exceeds the amount theretofore distributed to such
Settling Non -County Pool Participant with respect to Withheld Proceeds
pursuant to Sections 3(c) and 4.
b. Option B: Each Settling Non -County Pool Participant who
elects Option B shall reserve and retain, unimpaired by this Agreement, all rights
and claims it may have, if any, against the County and the other County
Claimants and their Related Parties, including all claims that the County or any
other County Claimant or such Related Parry is liable in damages for any and all
alleged misconduct (whether before or after the Petition Date) of the County, any
other County Claimant, the Pools, the Orange County Treasurer or any other
officers, officials, employees or agents of the County, any other County Claimant
or the Pools, and including specifically with respect to alleged self-dealing by the
Orange County Treasurer and other alleged breaches of fiduciary duty, fraud,
conversion, misappropriation of funds, negligent investments and other alleged
misconduct and the alleged withholding of the funds of such Pool Participants.
Each County Claimant and the Pools shall reserve and retain all of its rights:
(i) to object to, defend against or otherwise challenge the validity, allowability,
amount, priority and any other characteristic of any such reserved right or claim
of any Settling Non -County Pool Participant who elects Option B, (ii) to assert any
rights, claims and remedies it may have against each Settling Non -County Pool
Participant who elects Option B and its Related Parties, and (iii) to seek to
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3865.000 -28-
subordinate any reserved right, remedy or claim of a Settling Non -County Pool
Participant who elects Option B under section 510 of the Bankruptcy Code or any
other provision of applicable law. Notwithstanding anything to the contrary
contained in the foregoing provisions of this Section 7(b) or in any other provision
of this Agreement, the County (for itself and on behalf of each County Adminis-
tered Account, which shall be bound by the allocation of Pool Assets in Section
2) and each Settling Non -County Pool Participant (including, without limitation,
each Settling Non -County Pool Participant who elects Option B) hereby waives,
relinquishes, and releases any right or claim to, and agrees that it shall in no
manner seek to, reallocate and seek to recover, impose a trust upon or other-
wise reclaim as the res of a trust for its benefit, or for any other reason or other-
wise recover any of the cash distributed from the Pools under Sections 2, 3 and
4 of this Agreement or in the form of any Interim Distributions to any County
Claimant or Settling Non -County Pool Participant (the foregoing release being
limited to claims to any such distributions and not applying to the assertion of
general unsecured claims against the County).
The County shall use its best efforts to recover all Withheld Proceeds as
soon as practicable in view of the goal of prosecuting litigation on Pool -Related Claims
against holders of Withheld Proceeds to the fullest extent possible and to pay or cause
to be paid in full all Recovery Notes, Secured Settlement Claims and Repayment Claims
through expense reductions and revenue enhancements; provided, however, that the
foregoing shall in no way be deemed to constitute or require a waiver of any rights of
the County under the Bankruptcy Code or any other applicable law.
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8. Initial Distribution of Recovery Notes and Initial Allowance of Rept
ment Claims and Settlement Secured Claims. By no later than the later of (i) June 13,
1995 and (ii) five (5) Business Days after the Effective Date: (a) the County shall distrib-
ute to each Settling Option A Pool Participant the principal amount of Recovery Notes
which such Settling Option A Pool Participant is entitled to receive under Section 7(a)(1);
and (b) each Settling Option A Pool Participant shall have a Repayment Claim and, in
the case of each Settling Non -School Pool Participant who has elected Option A, a
Settlement Secured Claim, in the respective amounts calculated pursuant to Sections
7(a)(2) and 7(a)(3).
9. Reserve With Respect to Recovery Notes Repayment Claims and
Settlement Secured Claims Relating to Withheld Proceeds Shortfall. Upon the distribu-
tion of Recovery Notes and the allowance of Repayment Claims and Settlement Secured
Claims pursuant to Section 8, and until such time as all distributions required under Sec-
tions 2 and 3 have been completed: (a) additional Recovery Notes in the principal
amount of 21.63% of the sum of the Withheld Proceeds Shares of all Settling Option A
Pool Participants (the "Reserved Recovery Notes") (and any interest paid on or
proceeds from the sale of the Reserved Recovery Notes, which the County shall be
permitted to sell only at face) shall be held in trust by the County in a segregated
account for the benefit of the Settling Option A Pool Participants who become entitled
thereto under Section 7(a)(4); and (b) the distributions (the "Reserved Distributions") that
would be made out of the Net Litigation Proceeds under Section 11 on account of (i) an
additional Repayment Claim in the amount of 46.99% of the sum of the Withheld
Proceeds Shares of all Settling Option A Pool Participants; and (ii) a Settlement Secured
Claim in the amount of 31.38% of the sum of the Withheld Proceeds Shares of all
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Settling Option A Pool Participants, along with any interest earned on the Reserved
Distributions, shall be held in trust by the County in a segregated account for the benefit
of the Settling Option A Pool Participants who are ultimately entitled thereto under
Sections 7(a)(4).
10. Distribution of Reserved Items. The Reserved Recovery Notes, any
interest paid thereon, any proceeds from the sale of the Reserved Recovery Notes and
interest earned on such proceeds, and any Reserved Distributions and interest earned
thereon shall be distributed as follows:
a. In the event that a Settling Option A Pool Participant elects to
assign its rights to a distribution out of Withheld Proceeds to the County in accor-
dance with Section 7(a)(4): (i) such Settling Option A Pool Participant shall re-
ceive, out of the reserve described in Section 9, the principal amount of Recovery
Notes (or, if the Reserved Recovery Notes have been sold, cash proceeds
thereof in such principal amount) that such Settling Option A Pool Participant is
entitled to receive upon such assignment under Section 7(a)(4); any interest
earned on or allocable to such principal amount of Reserved Recovery Notes or
sale proceeds; that portion of the Reserved Distributions which is allocable to the
Settlement Secured Claim and the Repayment Claim which are allowed to such
Settling Option A Pool Participant upon such assignment under Section 7(a)(4);
and any interest in the reserve allocable to such portion of the Reserved
Distributions and (iii) the amount of the Repayment Claim described in Section
9(b)(i) and the Settlement Secured Claim described in Section 9(b)(ii) shall be
reduced, respectively, by the amount of the Repayment Claim and the Settlement
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Secured Claim which are allowed to such Settling Option A Pool Participant upon
such assignment.
b. As soon as practicable after a final determination that there
are no further Withheld Proceeds which may be recovered by the County or the
Pools and distributed under this Agreement, either by Final Order or Final Orders
of the Bankruptcy Court or written agreement of the County and the Pool Com-
mittee following fifteen (15) days' written notice to the County Committee, each
Settling Option A Pool Participant who has not previously assigned its rights to
distributions out of Withheld Proceeds to the County under Section 7(a)(4) shall:
(i) receive, out of the Reserved Recovery Notes (or the cash proceeds thereof), a
principal amount of Recovery Notes (or cash) equal to the principal amount of
the Recovery Notes which such Settling Option A Pool Participant is entitled to
receive under Section 7(a)(4), plus the interest earned on such principal amount
of Recovery Notes (or on the cash proceeds thereof); (ii) be allowed a
Repayment Claim and, a Settlement Secured Claim, computed in accordance
with the provisions of Section 7(a)(4), and be paid, out of the Reserved
Distributions, that portion of the Reserved Distributions which are allocable to the
Repayment Claim and Settlement Secured Claim which are so allowed to such
Settling Option A Pool Participant, plus any interest in the reserve allocable to
such portions of the Reserved Distributions.
C. Any and all property which remains in the reserve established
under Section 9 following the distributions required under Sections 10(a) and
10(b) shall be retained by the County as funds of the County.
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11. Security Interests in and Distribution of Net Litigation Proceeds.
a. The County hereby grants to each Settling Non -School Pool
Participant who elects Option A a first priority security interest in and lien upon
the Secured Claim Percentage of the Net Litigation Proceeds, to secure the
Settlement Secured Claim of such Settling Non -School Pool Participant which is
allowed pursuant to Section 7(a)(2) and (4). Such lien and security interest shall
secure all Settlement Secured Claims on a ratable basis.
b. The County hereby grants to each Settling Option A Pool
Participant a second priority security interest in and lien upon the Secured Claim
Percentage of the Net Litigation Proceeds, to secure the Repayment Claim of
such Settling Option A Pool Participant which is allowed pursuant to
Section 7(a)(3) or (4). Such lien and security interest shall secure all Repayment
Claims on a ratable basis.
C. The County shall execute such financing statements and
other documents to evidence and perfect the liens and security interests granted
under Sections 11(a) and 11(b) as the Pool Committee may reasonably request.
d. Upon the receipt of any Litigation Proceeds in the form of
cash, the County shall be entitled first to reimburse itself therefrom for any and all
Litigation Costs. Promptly following such receipt and reimbursement, the County
shall: (i) pay in cash the Secured Claim Percentage of the Net Litigation
Proceeds which it receives in the form of cash to the holders of Settlement
Secured Claims on a ratable basis, in an amount which shall not exceed the
unpaid portion of such Settlement Secured Claims and; (ii) then pay in cash any
remaining portion of such cash Net Litigation Proceeds to the holders of
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Repayment Claims on a ratable basis, in an amount which shall not exceed the
unpaid amount of such Repayment Claims. To the extent that, prior to the
satisfaction in full of the Settlement Secured Claims and Repayment Claims
allowed or reserved for under Sections 7(a), 8, and 9, the County receives more
than 35% of the Net Litigation Proceeds, the County shall not use such additional
Net Litigation Proceeds received by the County to fund the County's operating
expenses or those of any other County Claimant. After the Repayment Claims
have been paid in full, the County shall be entitled to retain, for its own account,
all remaining Net Litigation Proceeds which are in the form of cash, up to an
amount equal to the sum of: (i) $236,735,199.55; plus (ii) 21.66% of the
difference between (x) $81,979,261.49 and (y) 67.63% of the Withheld Proceeds
which become available for distribution; and (iii) all interest that would have ac-
crued on a principal amount of Recovery Notes equal to the sum of (i) and
(ii) under the terms of the Recovery Notes through the date upon which the
County has been able to recover the full amount of such principal amount of
Recovery Notes and interest hereunder. Following all distributions out of Net
Litigation Proceeds described above, the County shall pay to each Settling Option
A Pool Participant that portion of any additional Net Litigation Proceeds which are
received in the form of cash which equals the product of multiplying such addi-
tional Net Litigation Proceeds by such Settling Option A Pool Participant's Pool
Balance Fraction, and the County shall be entitled to retain for its own account
the remaining portion of such additional Net Litigation Proceeds.
e. Upon the receipt by the County of any Litigation Proceeds
which consist of property which is not cash (including, without limitation, readily
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marketable securities), the County shall hold such property subject to the liens
granted by this Section 11 and may not sell or transfer such non-cash property
without either (i) the written consent of the Pool Committee; or (ii) an order of the
Bankruptcy Court authorizing such sale which is entered at a hearing of which
counsel to the Pool Committee has been provided at least ten (10) days notice.
The County shall use its best efforts to sell or otherwise dispose of such non-
cash property expeditiously on a commercially reasonable basis. Upon the sale
or transfer of any such non-cash property, any cash Net Proceeds thereof shall
be treated and distributed as Litigation Proceeds under Section 11(d), and any
non-cash Net Proceeds shall continue to be treated under this Section 11(e).
f. Notwithstanding anything to the contrary contained in Section
11(d) or 11(e), in the event that a County -Administered Account receives
proceeds of a Pool -Related Claim of such County -Administered Account which
do not constitute Litigation Proceeds, but which would have constituted Litigation
Proceeds but for the inability of the County to assign Pool -Related Claims of such
County -Administered Account in accordance with Section 12, then: (i) the Net
Litigation Proceeds shall be deemed to have been increased by the amount by
which such proceeds received by such County -Administered Account on account
of such Pool -Related Claim exceeds all costs and expenses incurred by the
County or such County -Administered Account in prosecuting or otherwise
attempting to collect upon or realize upon such Pool -Related Claim; and (ii) to the
extent that any additional amounts are payable to Settling Option A Pool
Participants under Section 11(d) or 11(e) as a result of such deemed increase in
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Net Litigation Proceeds, such excess shall be paid out of amounts that would
otherwise have been retained by the County pursuant to Section 11(d) or 11(e).
g. Until all Settlement Secured Claims and all Repayment Claims
have been paid in full, the County shall not settle any Pool -Related Claims of the
County or Assigned Pool -Related Claims on terms whereunder any portion of the
consideration to be received by the County for such Pool -Related Claims of the
County or Assigned Pool -Related Claims would consist of the cancellation or
modification of any indebtedness of the County, whether under a plan of
adjustment or otherwise, without the written consent (which written consent shall
not be unreasonably withheld) of the Pool Committee to such settlement and the
terms on which the holders of Repayment Claims and Settlement Secured Claims
will share in the benefits of such debt cancellation or modification.
12. Assignment of Pool -Related Claims or Proceeds Thereof to County.
a. Each Settling Option A Pool Participant and the County, on
behalf of each County Administered Account, but only to the extent, if any, that
the County has the authority to make such assignment on behalf of such County
Administered Account, hereby assigns, transfers and conveys to the County, to
the fullest extent allowed by law without destruction or material impairment
thereof, any and all Pool -Related Claims of such Settling Option A Pool
Participant or County Administered Account against any person or entity which is
not a Party to this Agreement and which is not specifically released under the
terms of Section 14 and any and all proceeds of such Pool -Related Claims. Such
assignments shall vest in the County all rights to recovery of Litigation Proceeds
for such assigned claims, subject only to the terms provided in this Agreement.
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Each Settling Option A Pool Participant and the County, on behalf of each County
Administered Account (to the extent, if any, that the County has authority to make
the foregoing assignment on behalf of such County Administered Account)
acknowledges the County's ownership of the claims, rights to recovery and pro-
ceeds assigned hereunder and the County's right to prosecute such claims and
rights to recover in the County's name, and/or in the name of the assigning
Settling Option A Pool Participant.
b. All Pool -Related Claims of Settling Option A Pool Participants
or County Administered Accounts which would be assigned to the County under
Section 12(a) but for the fact that such Pool -Related Claims would be destroyed
or materially impaired by their assignment or attempted assignment to the County
under Section 12(a) shall be retained by the Settling Option A Pool Participants to
which they belong prior to the Effective Date. The Settling Option A Pool Particle
pants or County Administered Accounts retaining such Pool -Related Claims shall
cooperate with the County to enable the County to prosecute such Pool -Related
Claims on behalf of and in the name of such Settling Option A Pool Participant or
County Administered Accounts in the same manner and with the same degree of
control by the County and its legal counsel as though such Pool -Related Claims
had been assigned to the County; provided, however, that such Settling Option A
Pool Participant or County Administered Account shall not be obligated to incur
any expense or liability in rendering such cooperation. The Litigation Proceeds
from any such Pool -Related Claims shall be paid over to the County and shall be
subject to all terms of this Agreement as though they had been assigned to the
County under Section 12(a) above. To the extent that any judgment is rendered
BB -013F
3865.000 -37-
against a Settling Option A Pool Participant (including an award of attorneys' fees
and costs to the opposing party in any such litigation) on account of the
cooperation of such Settling Option A Pool Participant in the prosecution of a
Pool -Related Claim of such Settling Option A Pool Participant, the amount of such
judgment shall be considered a Litigation Cost to be paid before any distribution
of Net Litigation Proceeds. In addition, if the County files suit on an Assigned
Pool -Related Claim in the name of a Settling Option A Pool Participant or County
Administered Account and not in its own name, and such Settling Option A Pool
Participant or County Administered Account is adjudged liable for participating in
the filing of such suit without fault on the part of such Settling Option A Pool
Participant or County Administered Account, the amount of such judgment shall
be considered a Litigation Cost to be paid by the County before any distribution
of Net Litigation Proceeds, and, in the event that the Litigation Proceeds are
insufficient to pay such Litigation Cost and such judgment is for a liability in tort
other than an award of attorney's fees, the County shall indemnify and hold
harmless such Settling Pool Participant or County Administered Account as an
administrative expense in the County Chapter 9 case, and any amounts paid on
account therefor by the County shall be a Litigation Cost to be reimbursed to the
County before any distribution of Net Litigation Proceeds.
C. Without in any manner limiting the scope of the foregoing,
each Settling Option A Pool Participant and the County, on behalf of each County
Administered Account (to the extent, if any, the County has the authority to bind
such County Administered Account hereby) hereby agrees that the County shall
have the ability to enter into binding and enforceable settlements and releases of
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Assigned Pool -Related Claims, subject to the provisions of Section 11(f) and any
necessary Bankruptcy Court approval thereof.
d. In connection with the foregoing, each Settling Option A Pool
Participant hereby represents and warrants to the County that such Settling
Option A Pool Participant has not previously assigned, pledged, hypothecated or
otherwise made the subject of a Transfer to any person or entity any Pool -
Related Claim held by such Settling Option A Pool Participant.
e. The County shall use its best efforts to maximize the Net Liti-
gation Proceeds resulting from the Pool -Related Claims assigned to the County
or which the County is being given the right and power to prosecute pursuant to
this Section 12; provided, however, that nothing contained herein shall be
construed to require the County to incur any liability other than for its own
attorney's and other professional fees and other costs in the prosecution of Pool -
Related Claims. Notwithstanding the foregoing, any liability incurred by the
County in prosecuting any Pool -Related Claims shall be treated as a Litigation
Cost to be reimbursed to the County before any distribution of Net Litigation
Proceeds. The provisions of Exhibit 6, the Litigation Review Provisions, are
hereby specifically incorporated into this Agreement; and the County and each of
the Settling Option A Pool Participants agree to observe and shall be bound by
such provisions. No term or provisions of this Section 12 shall be construed to
eliminate or restrict any right or obligation of any Party under Exhibit 6.
13. Joint Powers Authority. As soon as practicable following the
Effective Date, the County and all interested Non -County Pool Participants shall form a
new Joint Powers Authority ("JPA") for the purpose of managing the investment of funds
BB -013F
3865.000.39-
for the County and all public agencies located therein. The charter of the JPA shall be
in such form as may be agreed upon between the County and the Pools Committee.
The JPA shall have a board of directors appointed by the Pool Participants who
participated in the JPA, including the County. The JPA shall have the authority either to
hire its own staff or private management firms to manage and direct the investment of
funds deposited with the JPA, subject in all respects and at all times to appropriate
guidelines established by the JPA board of directors. The JPA board of directors shall
conduct public meetings no less frequently than quarterly.
14. Support For Termination of Certain Distribution Arrangements. The
Settling Non -County Pool Participants shall not oppose (including in proceedings before
the Bankruptcy Court) the discontinuation, effective five (5) Business Days following the
Effective Date, of all interim distribution programs.
15. Recovery Note Liquidity. The County shall use its best efforts to
cause the Recovery Notes to be immediately liquid at par at the time they are to be dis-
tributed, without discount or brokerage commissions, through the use of a credit en-
hancement liquidity facility satisfactory to the Pool Committee which is obtained on or
before June 5, 1995.
16. Conditions to Effectiveness of Agreement and Effective Date. Save
and except for the provisions of Section 17, which shall take effect immediately, the pro-
visions of this Agreement shall not become effective until the first date on which each of
the following conditions shall have been satisfied or, in the case of any condition which
is waivable by its terms, been waived in writing by the Party specified therein as being
entitled to waive such condition (the "Effective Date"):
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a. Non -County Pool Participants who constitute at least 80% in
number of the Non -County Pool Participants and hold at least 90% of the aggre-
gate amount of the Pool Balances of all Non -County Pool Participants shall have
become Settling Non -County Pool Participants by executing Agreements to
Become Settling Non -County Pool Participants by the Deadline; provided,
however, that this condition may be waived in writing by the County, without any
prior notice, in a writing delivered to counsel to the Pools Committee.
b. The Bankruptcy Court in the Chapter 9 Cases shall have en-
tered an order or orders, in form and substance satisfactory to the County, which
shall have become a Final Order or Final Orders, which shall: (i) contain
provisions reasonably satisfactory to the County and the Pool Committee;
(ii) approve and authorize the distribution of unallocated taxes made pursuant to
the Tax Distribution Order and provide that any County Claimant or Settling Non -
County Pool Participant who has received any payments made pursuant to the
Tax Distribution Order shall be released from -any obligation to return all or any
portion of such payments arising under any provision of the Bankruptcy Code;
(iii) approve the settlements, compromises, releases, and all other terms and
conditions contained in this Agreement and authorize the County and the Pools
to enter into and perform all of their respective obligations under this Agreement;
and (iv) provide for the grant of the security interests and liens provided in
Section 11, that such security interests shall be fully perfected without the need
for any filing or other action, and substantially incorporate the provisions of
Section 11; provided, however, that the requirement that any such order or
BB -013F
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orders have become a Final Order may be waived in writing by the County,
without any prior notice, in a writing delivered to counsel to the Pools Committee.
If both of the conditions to the Effective Date have not occurred or been duly waived,
and the Effective Date has not occurred, by June 5, 1995, or by such later date or dates
as may be agreed to in writing by the County and the Pool Committee, then this
Agreement shall terminate and be null and void and of no further force or effect, and
each Agreement to Become Settling Non -County Pool Participant which has been
executed by any Non -County Pool Participant shall become null and void and of no
further force or effect. In such event, nothing contained in this Agreement or any
Agreement to Become Settling Non -County Pool Participant shall in any way constitute
a waiver of any rights by, or in any manner prejudice the rights of, the County Claimants
or any Non -County Pool Participant.
17. Cooperation And Best Efforts In Seeking Bankruptcy Court Orders.
Each Parry agrees to cooperate with the County and the Pools in seeking, and not to
hinder or interfere with any proceedings to obtain, the order or orders described in Sec-
tion 16(b). The County agrees to use its best efforts to (i) file an appropriate motion
with the Bankruptcy Court as soon as reasonably practicable and, thereafter, to obtain
the order or orders described in Section 16(b); and (ii) to obtain the authority to grant
the release provided in Section 19(b) and make the assignment described in Section 12
on behalf of County Administered Accounts by the Effective Date.
18. Reconstitution of Pool Investors' Committee. The Parties shall use
their best efforts, including supporting any necessary requests to the Bankruptcy Court
or the United States Trustee, to have the Pool Committee be reconstituted as a sub-
committee of the County Creditors' Committee and to have certain of its members
BB -013F
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become members of the County Creditors' Committee, or to have the Pool Committee
be reconstituted as a separate committee in the County Chapter 9 Case. Any expenses
of such subcommittee or separate committee, including without limitation professional
fees, shall be paid out of the Professional Fees Reserve in accordance with Section 5;
provided, however, that nothing in this Agreement shall prejudice professionals
representing such separate committee, such subcommittee and/or any individual Non -
County Pool Participant from applying for and receiving compensation from the County
pursuant to Section 503(b) of the Bankruptcy Code "in making a substantial contri-
bution" in the County Chapter 9 Case after the Effective Date, as the quoted phrase is
used in Section 503, if the Bankruptcy Court determines such committee, subcommittee
or individual Non -County Pool Participant or professional has made a "substantial
contribution" in the County Chapter 9 Case after the Effective Date, or prejudice the
County from opposing any such request.
19. Release.
a. Each Settling Option A Pool Participant hereby fully, finally,
and forever irrevocably releases, relieves, quitclaims, and discharges the County,
any County Administered Account which does not attempt to prosecute a claim
that would be released under Section 19(b) if such County Administered Account
was bound by Section 19(b) (a "Released County Administered Account"), the
Pools, each other Settling Option A Pool Participant and all the County's, the
Pool's, each such Released County Administered Account's and each such other
Settling Option A Pool Participant's Related Parties from, and waives and
relinquishes, any and all Pool -Related Claims which such Settling Option A Pool
Participant, or any person or entity claiming from, through, or under such Settling
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Option A Pool Participant, ever had, now has, or hereafter can, shall, or may
have against the County, the Pools, any Released County Administered Account,
any other Settling Option A Pool Participant or any of the County's, the Pool's,
each such Released County Administered Account's and each such other
Settling Option A Pool Participant's Related Parties (and any right of indemnity,
contribution or subrogation arising therefrom or relating thereto), including,
without limitation, with respect to any distribution from the Pools to the County,
any County Administered Account or any Settling Option A Pool Participant;
provided, however, that nothing contained herein shall release (i) any claims
against, or obligations of, any Party arising under this Agreement or (ii) the claim
of any Settling Option A Pool Participant against a Related Party of the County or
the Pools to whom the County or the Pools has denied indemnification for Pool -
Related Claims under the County's indemnification policies or applicable law if
and only if such Settling Option A Pool Participant provides the County with a
written agreement, in form and substance reasonably satisfactory to the County,
to indemnify the County and the Pools against any claim for indemnification which
such Related Party of the County or the Pools may assert against the County as
a result of such Settling Option A Pool Participant's assertion of a Pool -Related
Claim against such Related Parry of the County or the Pools, if such Related
Party is adjudged by a court to have any such right of indemnification against the
County or the Pools.
b. The County (on its own behalf and on behalf of each County
Administered Account which is a Releasing Party) hereby fully, finally, and forever
irrevocably releases, relieves, quitclaims, and discharges each Settling Option A
88-013F
3965.000 -44-
Pool Participant and all of each such Settling Option A Pool Participant's Related
Parties from, and waives and relinquishes, any and all Pool -Related Claims which
the County, any County Administered Account which is a Releasing Party, or the
Pool, or any person or entity claiming from, through, or under the County, any
County Administered Account which is a Releasing Party, or the Pool, ever had,
now has, or hereafter can, shall, or may have against any Settling Option A Pool
Participant or any such Settling Option A Pool Participant's Related Parties (and
any right of indemnity, contribution or subrogation arising therefrom or relating
thereto), including, without limitation, with respect to any distribution from the
Pools to such Settling Option A Pool Participant, provided, however, that nothing
contained herein shall release any claims against, or obligations of, any Party
arising under this Agreement.
C. Each Settling Non -County Pool Participant hereby fully, finally,
and forever irrevocably releases, relieves, quitclaims, and discharges each and
every other Settling Non -County Pool Participant and all of each such other
Settling Non -County Pool Participant's Related Parties from, and waives and
relinquishes, any and all Pool -Related Claims which such Settling Non -County
Pool Participant, or any person or entity claiming from, through, or under such
Settling Non -County Pool Participant, ever had, now has, or hereafter can, shall,
or may have against any other Settling Non -County Pool Participant or any of
such other Settling Non -County Pool Participant's Related Parties (and any right
of indemnity, contribution or subrogation arising therefrom or relating thereto),
including, without limitation, with respect to any distribution from the Pools to any
Settling Non -County Pool Participant; provided, however, that nothing contained
88-013F
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herein shall release any claims against, or obligations of, any Party arising under
this Agreement.
d. Each Parry hereby fully, finally, and forever irrevocably re-
leases, relieves, quitclaims, and discharges the Pool Committee and any
individual members thereof, each Subcommittee and any individual members
thereof, each individual who has acted as an independent intermediary (in its
capacity as such) between the County and the Pools Committee in connection
with this Agreement, and the attorneys, accountants and other professionals
employed by the Pool Committee or any Subcommittee from, and waives and
relinquishes, any and all claims, demands, obligations, debts, liabilities, suits,
causes of action, remedies or rights which in any way relate to services rendered
to, on, or on behalf of the Pools Committee, any Subcommittee or any individual
member thereof through the Effective Date, which such Parry, or any person or
entity claiming from, through, or under such Party ever had, now has, or
hereafter can, shall, or may have against the Pool Committee, any individual
member thereof, any Subcommittee, any individual member thereof, each
individual who has acted as an independent intermediary (in its capacity as such)
between the County and the Pools Committee in connection with this Agreement,
or the attorneys, accountants or other professionals employed by the Pool
Committee or any Subcommittee and any right of indemnity, contribution or
subrogation arising therefrom or relating thereto; provided, however, that nothing
contained herein shall release any claims against, or obligations of, any Party
arising under this Agreement.
BB -013F
3865.000 -46-
e. Each Settling Non -County Pool Participant listed on Exhibit 8
hereby fully, finally and forever irrevocably releases, relieves, quitclaims and
discharges the County, any County -Administered Account, the Pools, and all of
the County's, the Pools' and the County -Administered Accounts' Related Parties
from, and waives and relinquishes, any and all claims, demands, obligations,
debts, liabilities, suits, causes of action, remedies or rights which arise out of or
relate to the investment of funds in Guaranteed Investment Contracts or securities
which are reflected or taken into account in the balance set forth next to the
name of such Settling Non -County Pool Participant under the heading "Pool Cash
Value" — "Specific" in Exhibit 1 or 2, whenever arising, whether known or
unknown, suspected or unsuspected, fixed or contingent, liquidated or
unliquidated, matured or unmatured, choate or inchoate, pending or not pending,
which such Settling Non -County Pool Participant, or any person or entity claiming
from, through, or under such Settling Non -County Pool Participant ever had, now
has, or hereafter can, shall or may have against the County, any County -
Administered Account, the Pools, or any of the County's, any County -
Administered Account's, or the Pools' Related Parties (and any right of indemnity,
contribution or subrogation arising therefrom or relating thereto); provided,
however, that nothing contained in this Section 19(e) shall release any claims
against, or obligations of, any Party arising under this Agreement, or any Pool -
Related Claims other than those relating to the investments described in this
Section 19(e) or in Section 3(b) or 3(c).
f. EACH RELEASING PARTY EXPRESSLY UNDERSTANDS
THAT section 1542 of the Civil Code of the State of California provides as follows:
88-013F
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A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
g. EACH RELEASING PARTY HEREBY AGREES THAT THE
PROVISIONS OF SECTION 1542 of the Civil Code of the State of California and
all similar federal or state laws, rights, rules, or legal principles, legal or equitable,
which may be applicable hereto, to the extent that they may apply to any of the
matters released herein, ARE HEREBY KNOWINGLY AND VOLUNTARILY
WAIVED AND RELINQUISHED BY EACH RELEASING PARTY in each and every
capacity, to the full extent that such rights and benefits pertaining to the matters
released herein may be waived, and each Party to this Agreement hereby agrees
and acknowledges that this waiver and relinquishment is an essential term of this
Agreement, without which the consideration provided to it would not have been
given.
h. In connection with such waiver and relinquishment, each Re-
leasing Party acknowledges that it is aware that it may hereafter discover claims
presently unknown or unsuspected, or facts in addition to or different from those
which it now knows or believes to be true, with respect to the matters released
herein. Nevertheless, it is the intent of each Releasing Party in executing this
Agreement or an Agreement to Become Settling Pool Participant, as applicable,
fully, finally, and forever to settle and release all such matters, and all claims rela-
tive thereto, which exist, may exist or might have existed (whether or not previ-
ously or currently asserted in any action) which are the subject of the releases
granted under subsections (a), (b) and (c). Each Releasing Party acknowledges
BB -013F
3865.000 '48'
that it has received or had the opportunity to obtain independent legal advice
regarding any release which it is granting under this Agreement and that is has
conducted such investigation as it deems appropriate, necessary and possible
with respect to any such release.
20. Nonassionment of Released Claims. Each Releasing Party hereby
represents and warrants that every claim, demand, debt, liability, obligation, action,
cause of action, suit and other matter released by such Releasing Party pursuant to the
provisions of Section 19 ("Released Claims") has not heretofore been assigned, en-
cumbered, or hypothecated, and is not the subject of a Transfer, by such Releasing
Parry. Each Releasing Party hereto agrees to indemnify each other Releasing Party and
such other Releasing Party's Related Parties, and hold them harmless, from the
assertion of any Released Claims which is based upon or arises in connection with any
such prior assignment, hypothecation, Transfer, or encumbrance.
21. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally or by facsimile transmission on the Party to
whom directed with confirmation of transmission; or on the third Business Day after
mailing if mailed to the Party to whom directed, by first class mail, postage prepaid,
registered or certified, return receipt requested, and properly addressed to such Party's
address as set forth next to such Party's signature line in this Agreement or in the
Agreement to Become Settling Pool Participant executed by such Party. Any Party may
change its address by giving written notice to the other parties in the manner set forth
above.
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22. Entire Aqreement: Modification• Waiver. This Agreement, including
the Exhibits hereto, constitutes the entire agreement between the Parties and
supersedes all prior and contemporaneous agreements, representations, warranties,
and understandings of the Parties, whether oral, written or implied, as to the subject
matter hereof. No supplement, modification, or amendment of this Agreement shall be
binding unless executed in writing by all Parties affected thereby. No waiver of any of
the provisions of this Agreement shall be deemed or constitute a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No
waiver shall be binding unless executed in writing by the Parry making the waiver.
23. No Third -Party Beneficiaries. Except as otherwise specifically pro-
vided in this Section 23, nothing contained in this Agreement is intended to confer any
rights or remedies under or by reason of this Agreement on any person or entity other
than the Parties hereto; provided, however, that solely for purposes of enforcing the re-
strictions on the payment of Repayment Claims set forth in clause (ii) of the definition
thereof in Section 1: (i) each holder of a Senior Claim who becomes such as a result of
the lending of money or other extension of credit to the County following the Effective
Date (whether or not such holder relied on such restrictions in lending money or
otherwise extending credit to the County); and (ii) each holder of a Senior Claim who
the County agrees in writing shall be a third parry beneficiary of such restriction, shall be
deemed to be a third -party beneficiary of such restriction on the payment of Repayment
Claims with the right to enforce such restrictions directly for its own benefit. Nothing
contained in this Agreement is intended to relieve or discharge the obligation or liability
of any third parry to any Parry to this Agreement except as expressly provided herein,
nor shall any provision give any third party any right of subrogation or action over or
88-013F
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against any Party to this Agreement or any third party released under this Agreement.
Nothing in this Agreement shall in any way affect the rights of, or confer any rights
upon, any Non -County Pool Participant who elects not to become a Party to this
Agreement by executing this Agreement or an Agreement to Become Settling Non -
County Pool Participant.
24. Assianment. This Agreement shall be binding upon, and shall inure
to the benefit of, the Parties and their respective successors and assigns.
25. Further Assurances. Each Party hereto agrees to execute any and
all documents and to do and perform any and all acts and things necessary or proper
to effectuate or further evidence the terms and provisions of this Agreement.
26. No Representations or Warranties. Except as expressly set forth in
this Agreement, none of the Parties hereto makes any representation or warranty,
written or oral, express or implied.
27. Severability. If any portion of this Agreement shall be held to be in-
valid or unenforceable, then that portion shall be deemed to have been modified to the
minimum extent necessary in order to cause it to be valid and enforceable and to ac-
complish its intent as evidenced by the entirety of this Agreement; and the Parties ac-
knowledge that the balance of this Agreement shall be unaffected by such modifications
and remain valid and enforceable.
28. Headings. The descriptive headings of the several Sections of this
Agreement are inserted for convenience of reference only and do not constitute a part
of this Agreement.
29. Applicable Law. This Agreement shall be governed in all respects,
including the validity, interpretation and effect, by title 11 of the United States Code and
88-013F
3865.000 'S1-
the laws of the State of California, without giving effect to the principles of conflicts of
law thereof.
30. Consent to Entry of Orders and Judgments by Bankruptgy Court.
Each Party hereto hereby consents to the determination by the Bankruptcy Court, as a
"core proceeding" within the meaning of 28 U.S.C. § 157 or any successor provision,
and to have the Bankruptcy Court hear and determine and enter appropriate orders and
judgments subject to review under 28 U.S.C. § 158, as provided in 28 U.S.C. § 157(c)(1)
or any successor provision, in any action brought to enforce, interpret, reform or rescind
this Agreement or any of the provisions hereof and over any action to determine or
declare the rights of any of the Parties under this Agreement.
31. Counterparts. This Agreement 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. The execution of an Agreement to Become
Settling Pool Participant shall be deemed to constitute the execution of this Agreement.
32. No Admissions. Neither this Agreement, nor any of the terms
hereof, nor any negotiations or proceedings in connection herewith, shall constitute or
be construed as or be deemed to be evidence of an admission on the part of any Party
of any liability or wrongdoing whatsoever, or the truth or untruth, or merit or lack of
merit, of any claim or defense of any Party or directly or indirectly impair or adversely
affect any rights or claims not released, modified, waived or otherwise affected under
this Agreement; nor shall this Agreement, or any of the terms hereof, or any ne-
gotiations or proceedings in connection herewith, or any performance or forbearance
hereunder, be offered or received in evidence or used in any proceeding against any
Parry, or used in any proceeding, or otherwise, for any purpose whatsoever except with
BB -013F
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respect to (a) effectuation and enforcement of this Agreement and (b) any proceedings
in the Bankruptcy Court to approve this Agreement and the execution and delivery
hereof.
33. Due Authorization. Each Party to this Agreement hereby represents
and warrants that (i) such Party is duly -authorized to enter into this Agreement; and
(ii) the person purporting to execute this Agreement or an Agreement to Become
Settling Pool Participant on behalf of such Party has been duly authorized to execute
this Agreement or such Agreement to Become Settling Pool Participant on behalf of and
to bind such Party.
34. Attorneys' Fees. In any action or proceeding brought by a Parry
against any another Party to enforce any provision of this Agreement, or to seek
damages for a breach of any provision hereof, or where any provision hereof is validly
asserted as a defense, the prevailing Party shall be entitled to recover reasonable
attorneys' fees from the other Party in addition to any other available remedy.
35. Construction. The Parties acknowledge that each Party and its
counsel have reviewed this Agreement, and each Party has had its interests represented
in the drafting of this Agreement, and that the rule of construction to the effect that
ambiguities are to be resolved against the drafting parry shall not be employed in the
interpretation of this Agreement, the Agreement to Become Settling Non -County Pool
Participant, or any document executed and delivered by any Party in connection with the
transactions contemplated by this Agreement.
36. Terms Generally. The defined terms in this Agreement shall apply
equally to both the singular and the plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine, feminine
BB -013F
3865.000 -53-
and neuter forms. The term "person" includes individuals, corporations, partnerships,
trusts and other entities and associations. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation." The words
"approval," "consent" and "notice" shall be deemed to be preceded by the word "written."
37. 1994-95 School Pooled Notes. To the extent that the County has
and continues to intercept and retain property taxes and other revenues ("School
Property Taxes") to be collected and retained by the County as security for the payment
of those certain School District Notes ("School District Notes"), the proceeds of which
School District Notes were pledged for payment of those certain 1994-95 School Pooled
Tax and Revenue Anticipation Notes ("1994-95 School Pooled Notes") issued by the
County in connection with the School District Notes, the County shall timely pay equal
amounts owing under the 1994-95 School Pooled Notes which the County issued to
purchase the School District Notes of those Settling Non -County Pool Participants listed
in Exhibit 7" ("Participants"). The County acknowledges that it has collected and
deposited in segregated accounts, and agrees to continue to collect and deposit in
segregated accounts, the School Property Taxes as security for the repayment of the
School District Notes of the Participants in connection with which those 1994-95 School
Pooled Notes were issued. The County shall use the School Property Taxes to pay the
amounts owing under the School District Notes and the 1994-95 School Pooled Notes
issued to purchase the School District Notes of the Participants. Nothing in this Section
38 shall affect any right or claim reserved and retained under Section 7(b) by a Settling
Non -County Pool Participant listed on Exhibit 1, which is not a Settling Option A Pool
Participant.
BB -013F
3865.000 -54.
IN WITNESS WHEREOF, each of the Parties hereto has caused this
Agreement or an Agreement to Become Settling Pool Participant to be executed on its
behalf by its officers or other official representatives thereunto duly authorized, all as of
the day and year first above written.
BB -013F
3865.000 -55-
LIST OF EXHIBITS TO COMPREHENSIVE
SETTLEMENT AGREEMENT
Exhibit 1 School Pool Participants
Exhibit 2 Non -School Pool Participants
Exhibit 3 County Claimants
Exhibit 4 Agreement to Become Settling Non -County Pool Participant
Exhibit 5 List of Brokers Withholding Proceeds and Amount Withheld by Each
Broker
Exhibit 6 Litigation Oversight Provisions
Exhibit 7 TRANS Participants
Exhibit 8 Specific Investment Funds — Not Held by Bank of America
68-014
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AGREEMENT TO BECOME SETTLING NON -COUNTY POOL PARTICIPANT
(Insert Name of Settling Non -County Pool Participant) -
1. As used in this Agreement to Become Settling Non -
County Pool Participant ("Agreement"), the following terms have
the following meanings:
a. "Comprehensive Settlement Agreement Re Orange
County Investment Pools" means that certain Comprehensive
Settlement Agreement Re Orange County Investment Pools, dated
as of March a8, 1995, by and among the County, on its own
behalf and on behalf of the Pools, and each of the school
districts, special districts, cities, and other public agen-
cies and instrumentalities identified on Exhibits 1 and 2
thereto which becomes a Party thereto by timely executing an
"Agreement to Become Settling Non -County Pool Participant" in
the form of this Agreement. A copy of the Comprehensive
Settlement Agreement, without the exhibits thereto, is
attached hereto as Exhibit "A".
b. "County" means the County of Orange.
C. "Non -County Pool Participants" has the meaning
set forth in.the Comprehensive Settlement Agreement.
d. "Pools" means the Orange County Investment
Pools, an instrumentality of the County.
2. The undersigned acknowledges that the execution of
this Agreement to Become Settling Non -County Pool Participant and
joinder as a party to the Agreement will substantially modify the
legal right of the undersigned with regard to its interest in the
Pools and other matters described in the Agreement. The under -
IMP -002A =IBIT 4
3865.000 - 1-
signed represents and warrants that, prior to executing this
Agreement to Become Settling Non-County Pool Participant, the
undersigned has obtained separate legal and financial advice re-
garding this Agreement.
3. In consideration for the benefits to be received by
the undersigned under the Comprehensive Settlement Agreement, the
execution of other agreements in the form of this Agreement by
other Non-County Pool Participants, and other good and valuable
consideration, the undersigned, being designated as a Non-County
Pool Participant in the Comprehensive Settlement Agreement,_hereby
joins as a Party to the Comprehensive Settlement Agreement as if
the undersigned had executed the Comprehensive Settlement Agree-
ment and agrees to be bound by all of the terms and conditions
thereof and to be a "Settling Non-County Pool Participant" there-
under.
4. In accordance with Section 7 of the Comprehensive
Settlement Agreement, the undersigned elects the following treat-
ment in respect of its "Deficiency Amount" (as defined in the Com-
prehensive Settlement Agreement):
IMP -002A MMIBIT 4
3865.000 - 2 -
(Please initial the appropriate box)
[ l The undersigned elects Option A, providing for the
treatment described in Section 7(a) of the Compre-
hensive Settlement Agreement.
The undersigned elects Option B, providing for the
VVV treatment described in Section 7(b) of the Compre-
hensive Settlement Agreement.
DATED: 4Ri L / 19 9S
C; --/-� 04 CoEsf3
[Name of Settling Pool Participant]
S
By - - - V't' (_ _
Its A
Address to which all notices under the
Comprehensive Settlement Agreement
should be transmitted:
C� f Cdm & SA [Name of Settling Pool Participant]
7 Fri 62 l�lz i ✓C [Street Address]
COST -F1
[City,
State, and Zip Code]
PNvNG �7S'
-S3F9--
F -4X
'754-53,30
[Phone
and Fax Number]
Attention: T40MAS A. WA 46
Ci 4'_1 4TT'0p_�Jeq
IMP -002A EXHIBIT 4
3865.000 - 3 -
EXHIBIT 5
0
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EXHIBIT 5
I'
EXHIBIT 1v6"
LITIGATION REVIEW PROVISIONS
1. RECITALS
March 24, 1995 10:47pm
MASTER
a. Under Section 12 of the Settlement Agreement of which this Exhibit is a
part, certain Pool -Related Claims are either being assigned to the County or
the County is being given the right and power to prosecute such claims and
receive the proceeds thereof (collectively, the "Assigned Pool -Related
Claims") by Settling Option A Pool Participants.
b. The County and the Settling Option A Pool Participants (collectively, the
"Exhibit V Parties") desire to establish a method for efficiently and confi-
dentially reviewing the litigation of the Assigned Pool -Related Claims in a
manner reasonably necessary to accomplish the common goals of the Exhibit
"6"Parties. (Throughout this Exhibit "6","litigation" shall refer to all types of
dispute resolution, including court proceedings, arbitration, and mediation.)
2. REPORTING
a. Each law firm representing the County in the prosecution of the Assigned
Pool -Related Claims, through litigation or otherwise (a "County Law Firm"),
will meet periodically (and at least monthly) with the "Designated Counsel"
(as defined in subparagraph (b)) regarding the prosecution of the Assigned
Pool -Related Claims.
b. The meetings will be confidential and will include one or more counsel (not
to exceed representatives of 3 law firms) designated by the Pools Committee,
BB -015
3865.000
or if such a designation cannot be made, then one or more counsel (not to
exceed representatives of 3 law firms) designated by the Bankruptcy Court
(the "Designated Counsel").
C. Each meeting shall include, at the request of Designated Counsel a discus-
sion of the following information:
(1) The general status of the prosecution of the Assigned Pool -Related
Claims, particularly including a timely discussion of hearing dates and
deadlines.
(2) The causes of action and claims for relief filed by any side- in litiga-
tion on the Assigned Pool -Related Claims and the reasons for includ-
ing or excluding possible causes of action and claims for relief.
(3) The defendants in the litigation on the Assigned Pool -Related Claims,
and the reasons for including or excluding possible defendants.
(4) The defenses asserted by any side in litigation on the Assigned Pool -
Related Claims.
(5) Significant information concerning the Assigned Pool -Related Claims
obtained through discovery, investigation, or otherwise.
(6) The future plans and prospects for discovery by any party to the liti-
gation on the Assigned Pool -Related Claims.
(7) The future plans and prospects for motions by any party to the litiga-
tion on the Assigned Pool -Related Claims, particularly including sum-
mary judgment motions.
(8) The status of settlement discussions and proposals, provided that ini-
tial settlement proposals and settlement strategy will be disclosed at
BB -015
3865.000 -2-
ft
I
least 10 days prior to communication to adverse parties unless Desig-
nated Counsel otherwise agrees.
3. REVIEW
The Designated Counsel will have reasonable opportunity to review strategy with
each County Law Firm regarding the prosecution of the Assigned Pool -Related
Claims, and will have reasonable opportunity to suggest strategy in prosecuting the
Assigned Pool -Related Claims.
4. PLEADINGS AND DOCUMENTS
a. Each County Law Firm will deliver in a timely manner to Designated Coun-
sel all pleadings, including all motions and supporting papers and all filings
responsive thereto, served on or by such law firm as part of any litigation on
the Assigned Pool -Related Claims, unless Designated Counsel agrees that
such delivery is unnecessary or burdensome.
b. Each County Law Firm will make available for review by the Designated
Counsel, at reasonable times, any documents provided or made available as
part of any discovery or investigation in any litigation on the Assigned Pool -
Related Claims (other than documents which are subject to a protective
order that would require such County Law Firm to restrict such access) and
shall provide access to all computer databases in which data produced in
such discovery have been stored. Copies of any documents and access to
computer databases to be made available hereunder will be provided to
Designated Counsel and the County Law Firm providing such copies shall be
reimbursed any direct costs of providing access thereto by the Settling
Option A Pool Participants.
BB -015
3865.000 -3-
5. CONFIDENTIALITY
a. All information, knowledge, and documents provided to any Designated
Counsel pursuant to this Exhibit "6"(other than documents which are avail-
able as a matter of public record or nonprivileged documents which Desig-
nated Counsel is required to produce by court order or legal process) shall
be held in the strictest confidence by the Designated Counsel. In the event
that Designated Counsel is asked to disclose or produce any such informa-
tion, knowledge, or documents in connection with any legal proceeding, such
Designated Counsel shall give prompt written notice of such request to each
County Law Firm and shall cooperate with the County Law Firms in oppos-
ing such production or disclosure.
b. The information, knowledge, and documents exchanged under this Exhibit
"6" may include confidential communications, mental impressions, or other
matters that are privileged or otherwise protected from disclosure because of
the attorney-client privilege, the work -product doctrine, or any other appli-
cable privileges or protections; any such privileged information and docu-
ments shall be held in confidence.
C. The Exhibit "6"Parties shall enter into a Joint Prosecution Agreement, in a .
form acceptable to counsel to the County and the Designated Counsel,
which agreement shall preserve all applicable privileges and work product
doctrine rights of the County and shall cause their legal counsel to cooperate
and consult with each other so as to assert and preserve all privileges that
may apply. No such privileges and other protections shall be waived without
the express, written approval of the County's counsel and the Designated
BB -015
3865.000 -4-
Counsel. Any inadvertent waiver or disclosure, or any other waiver or dis-
closure of privileged or otherwise protected materials by one Exhibit "6"
Parry shall not constitute a waiver of the privilege on the part of any other
Exhibit "6"Party.
d. Notwithstanding anything to the contrary in this Exhibit "6",any attorney at
any County Law Firm may refuse to provide information (whether orally or
in writing) or documents to any Designated Counsel, if such attorney reason-
ably believes that the disclosure or production of any such information or
document would result in the waiver or other loss of an otherwise applicable
privilege.
6. MISCELLANEOUS
a. The Exhibit "6" Parties agree to execute any and all documents and to do
and perform any and all acts and things necessary or proper to effectuate or
further evidence the terms and provisions of this Exhibit "6".
b. The cost of providing documents to Designated Counsel will be paid by the
Settling Option A Pool Participants.
88-015
3865.000 -$-
r
EXHIBIT 17"
TRANS PARTICIPANTS
PRINCIPAL
SCHOOL DIST mn�v.
Anaheim City
$8,700,000
Brea -Olinda Unified
3,300,000
Capistrano Unified
28,000,000
Centralia Elementary
5,000,000
Coast Community College
15,000,000
Cypress
4,395,000
Fountain Valley
3,400,000
Fullerton Elementary
5,000,000
Fullerton Joint Union High
9,790,000
Garden Grove Unified
20,000,000
Huntington Beach City
5,000,000
Huntington Beach Union High
17,500,000
La Habra City
3,000,000
Laguna Beach Unified
3,500,000
Los Alamitos Unified
3,500,000
Magnolia
5,000,000
Newport -Mesa Unified
22,300,000
North Orange County Community College
16,000,000
Ocean View
5,000,000
Orange County Department of Education
18,300,000
Orange Unified
17,400,000
Placentia-Yorba Linda Unified
18,500,000
Saddleback Community College
14,800,000
Santa Ana Unified
33,900,000
Savanna
2,200,000
Tustin Unified
6,175,000
Westminster
5,000,000
TOTAL
$299,660,000
Orange County Investment Pool
Secific Investment Funds - Not Held at Bank of America
Faced Faced Balance as of
Number N=w Iuvestmad Desedpdon December 6, 1994
4885 RANCH SANTA MARGARITA CFD 8&1
GIC w/ Union Bank of Fiatand (6/28/95) - 7.8%
4965 LOMAS LAGUNA CFD 88-2
GIC w/ Crown Life (next coupon 8/14/95) - 8.5%
SMS FORTOLA HILIS CFD 87-2A
GIC w/ Union Banc of Finand (next coupon 8/14/95) - 7.8%
5066 IRVINE COAST ASS DW1RICT
Fidelity Tax -Exempt Mutual Fund .5.79%
Dreyfus Tax -Exempt Mutual Fund- 3.66X►
5096 RANCHO SANTA MARGARITA 87-56
GIC w/ Crown Life (Tact coupon 8/14/95) - 8.5%
S1SS SANTA 7MMA CFD 87-9
GIC w/ Crown We (next coupon 8/14/95) - 8.6%
5175 RANCHO SANTA MARGARITA CFD V -5C
GIC w/ Algemene Bark (neat coupon 8/14/95) - 8.4%
EXHIBIT 8
$ 1rL85,593.74
213,000.00
15561500.00
47,994,429.38
230;000.00
SWOOA0
680,000.00