DOJ False Claims Act Settlement Agreement — Massachusetts (USA v. Kabbage / Berteletti Qui Tam)

Record facts

Summary

A False Claims Act settlement agreement among the United States, acting through the Department of Justice and on behalf of the Small Business Administration, KServicing Wind Down Corp. and the bankruptcy estates of Kabbage, Inc. d/b/a KServicing, and relator David Berteletti, signed May 7, 2024. The recitals describe the qui tam action the relator filed November 25, 2020 in the U.S. District Court for the District of Massachusetts under 31 U.S.C. § 3730(b), and the Chapter 11 case, Case No. 22-10951 (CTG). The Wind Down Estates admit and acknowledge that Kabbage included compensation over $100,000, IRS Form 940 Box 4 data and duplicated state and local tax withholdings when calculating loan amounts. Under the agreement the United States has an allowed general unsecured claim of $63,294,270.43, including $25,397,135.21 in restitution.

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Full text

SETTLEMENT AGREEMENT 
This Settlement Agreement ("Agreement") is entered into among the United 
States of America, acting through the United States Department of Justice and on behalf 
of the U.S. Small Business Administration ("SBA") (collectively the "United States"), 
KServicing Wind Down Corp. and the bankruptcy estates of Kabbage, Inc. d/b/a 
KServicing (the "Wind Down Estates") (through its Wind Down Officer Jeremiah Foster 
(the "Wind Down Officer")), and David Berteletti ("Relator") (hereinafter collectively 
referred to as "the Parties"), through their authorized representatives. 
RECITALS 
A. 
The Paycheck Protection Program ("PPP") was a federal program that 
provided emergency relief to small businesses affected by the COVID-19 pandemic. See 
15 U.S.C. § 636(a)(36). The SBA administered the PPP and guarantees loans that were 
made according to PPP rnles. 
B. 
Prior to October 3, 2022, Kabbage, Inc. ("Kabbage") was a Delaware 
corporation headquartered in Atlanta, Georgia. It both made loans as a direct PPP lender 
and se1ved as a processing agent for third-party banks making PPP loans ( collectively 
"Kabbage PPP loans"). 
C. 
The PPP required a lender to certify, for each loan, that it had confinned 
the loan calculation. After the lender processed and approved a borrower's PPP loan 
application, but prior to the closing of the PPP loan, the PPP required a lender to submit 
SBA Form 2484, applying for a guarantee on the loan. SBA Form 2484 required a lender 
to certify that it had complied with paragraphs 3.b(i)-(iii) of 85 Fed. Reg. 20811, 20815, 
which provides that: 

Each lender shall: 
i. 
Confirm receipt of borrower certifications contained in Paycheck 
Protection Program Application form issued by the Administration; 
ii. 
Confirm receipt of information demonstrating that a borrower had 
employees for whom the borrower paid salaries and payroll taxes on or 
around February 15, 2020; [and] 
m. 
Confirm the dollar amount of average monthly payroll costs for the 
preceding calendar year by reviewing the payroll documentation submitted 
with the borrower's application[.] 
Id. at 20815. SBA Form 2484 required a further certification that "[t]he Lender has 
obtained and reviewed the required application (including documents demonstrating 
qualifying payroll amounts) of the Applicant and will retain copies of such documents in 
the Applicant's loan file." 
D. 
The SBA paid PPP lenders a fee for processing each PPP loan and allowed 
agents to be paid by lenders out of the fees the lenders received from the SBA. The 
processing fee for both lenders and agents was a percentage of the amount of each PPP 
loan. See 85 Fed. Reg. 20811, 20816; 86 Fed. Reg. 3692. 
E. 
On November 25, 2020, Relator filed a qui tam action in the United States 
District Court for the District of Massachusetts captioned United States ex rel. David 
Berteletti v. Kabbage, Inc., et al., No. I :20-cv-12114-GAO, pursuant to the qui tam 
provisions of the False Claims Act, 31 U.S.C. § 3730(b) (the "Massachusetts Civil 
Action"). Relator alleged that Kabbage violated the False Claims Act, 31 U.S.C. § 3729, 
by lmowingly inflating borrowe,rs' loans by including improper payroll costs in 
2 

originating and processing PPP loans. Relator alleges that Kabbage's conduct resulted in 
Kabbage issuing inflated PPP loans to businesses, thereby causing inflated claims for 
forgiveness or guarantee payment and inflated claims for processing fees to the SBA. 
F. 
On or around Janua1y 12, 2021, Kabbage received a Civil Investigative 
Demand from the U.S. Attorney's Office for the District of Massachusetts, which 
indicated that the federal government was investigating whether Kabbage caused the 
submission of false claims to the SBA in connection with PPP loans. 
G. 
On October 3, 2022, Kabbage filed for Chapter 11 bankruptcy in the 
Bankruptcy Court for the Dish·ict of Delaware (the "Bankruptcy Court"), In re Kabbage, 
Inc. dlbla KServicing, Inc., et al., Case No. 22-10951 (CTG) (hereinafter "Banla'uptcy 
Case"). 
H. 
On March 15, 2023, the Bankruptcy Court entered the confirmation order 
approving and confirming the Amended Joint Chapter 11 Plan of Liquidation (the "Plan") 
ofK.abbage, Inc. (D/B/A KServicing) and Its Affiliated Debtors (collectively, the 
"Debtors"). The Plan became effective on June 20, 2023, at which time the Wind Down 
Officer began serving and administering the Wind Down Estates. Under the Plan, the 
Wind Down Officer has authority to compromise claims against the Wind Down Estates, 
subject to certain consent and consultation rights held by third parties. 
I. 
On March 31, 2023, SBA filed proof of claim No. 245 (the "SBA Claim") 
asserting certain administrative claims as a claim in the amount of $720,218,115.31, and 
secured to the extent of any setoff right, 11 U.S.C. §§ 506(a) & 553, in the Bankruptcy 
Case. 
J. 
On April 3, 2023, the United States filed proof of claim No. 246 ("POC 
3 

No. 246") as a claim in the amount of $450,182,913, and secured to the extent of any 
setoff right, 11 U.S.C. §§ 506(a) & 553, in the Bankruptcy Case. 
K. 
After the bankruptcy filing referenced in Paragraph G of the recitals 
above, the Wind Down Estates (through counsel and the Wind Down Officer) reviewed 
materials pertinent to the government's investigation, and met with government 
representatives multiple times to discuss the government's allegations. 
L. 
The Wind Down Estates admit and aclmowledge the following facts in 
subparagraphs (a) through (d): 
a. Contrary to PPP regulations, Kabbage included employee annual 
compensation over $100,000 in calculating borrowers' eligible loan 
amounts on some applications for PPP loans processed by 
Kabbage. This "$1 00k Inflation" increased the loan amounts of, at a 
minimum, 1,900 loans, collectively, by at least one hundred million 
dollars. Between April 1, 2020 and May 31, 2021, Kabbage received 
excess processing fees as a result of the $100k Inflation. As of August 
11, 2022, SBA placed "Hold Codes" on forgiveness and guarantee 
purchase applications for certain Kabbage PPP loans potentially 
affected by $1 00K Inflation; the "Hold Codes" triggered additional 
review within SBA in connection with any request for forgiveness or 
guarantee payments on those loans. Prior to August 11, 2022, on some 
loans, Kabbage ( or the lender for whom Kabbage was servicing such 
Kabbage PPP loans) received from SBA excess forgiveness or 
guarantee purchase payments as a result of the $100k Inflation. 
4 

b. In processing PPP loan applications, on some loan applications, 
Kabbage requested and included data from borrowers' IRS Form 940 
Box 4, which includes payments exempt from federal unemployment 
tax. Some of those amounts were not payroll costs eligible for 
inclusion in calculating loan amounts under PPP rules, or were 
duplicative of costs included by Kabbage as inputs from other tax 
documents, resulting in double counting of those amounts. This 
"Form 940 Inflation" improperly increased the loan amounts of, at 
minimum, more than 700 borrowers, collectively, by at least several 
millions of dollars. Between April 1, 2020 and May 31, 2021, on 
some loans, Kabbage received excess processing fees as a result of the 
Form 940 Inflation. As of August 11, 2022, SBA placed "Hold 
Codes" on forgiveness and guarantee purchase applications for 
Kabbage PPP loans potentially affected by Form 940 Inflation; the 
"Hold Codes" triggered additional review within SBA in connection 
with any request for forgiveness or guarantee payments on those loans. 
Prior to August 11, 2022, on some loans, Kabbage ( or the lender for 
whom Kabbage was servicing such Kabbage PPP Loans) received 
from SBA excess forgiveness or guarantee purchase payments as a 
result of the Form 940 Inflation. 
c. In processing PPP loan applications, on some loans, Kabbage double 
counted employees' state and local tax ("SALT") withholdings in 
determining borrowers' average monthly payroll. This "SALT 
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Inflation" increased the loan amount of tens of thousands of 
borrowers, collectively, by at least one hundred million 
dollars. Between April 1, 2020 and August 31, 2020, Kabbage 
received excess processing fees as a result of the SALT Inflation. 
d. As ofMay 3, 2021, Kabbage voluntarily stopped issuing forgiveness 
decisions to SBA on all PPP loans affected by "SALT Inflation." On 
October 22, 2021, the SBA and Kabbage entered into a settlement 
agreement concerning the SALT Inflation, pursuant to which Kabbage 
paid $30 million to the SBA, including $12,500,000 relating to loan 
excess attributable to the SALT Inflation for approximately 8,994 
loans that had already been forgiven by the SBA at the time of the 
agreement (hereinafter, the "SBA SALT Settlement"). The SBA 
accepted Kabbage's representations that Kabbage did not include 
eligible healthcare and retirement expenses in its calculations of 
borrowers' loans, which offset the inflated SALT amounts for 
numerous loans. See SBA SALT Settlement, Recitals L & M. The 
SBA SALT Settlement did not release Kabbage for False Claims Act 
liability for past SALT inflation, and expressly reserved such claims, 
but did permit going-forward submission ofKabbage PPP loans 
potentially affected by SALT Inflation for forgiveness or guaranty 
purchase at the full loan amount. Id. ii 8. 
Any claims that Kabbage submitted or caused to be submitted to the SBA related to the 
$100K Inflation, Form 940 Inflation, and SALT Inflation, including with respect to any 
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claims arising from or related to processing fees, guarantee purchase payments, or 
forgiveness payments, which SBA paid, as set out in subparagraphs (a) through (d) of 
Paragraph L, are referred to below as the "Covered Conduct." 
M. 
The United States contends that it has certain civil claims against Kabbage 
based on the Covered Conduct for submittit!g or causing the submission of false claims to 
the SBA. 
N. 
Relator claims entitlement under 31 U.S.C. § 3730(d) to a share of the 
proceeds of this Agreement. Relator has agreed to waive any claim for reasonable 
expenses, attorneys' fees, and costs related to the Massachusetts Civil Action, as 
contemplated by 31 U.S.C. § 3730(d). Relator is not entitled under 31 U.S.C. § 3730(d) 
to a share of the proceeds of any recovery pursuant to the SBA Claim. 
0 . 
SBA and the Wind Down Estates have been and continue to be engaged in 
separate discussions regarding a potential settlement or compromise of their respective 
claims, rights, and defenses, including as to the SBA Claim but not as to the claims 
released in Paragraph 3 below. This Agreement is not intended to and does not resolve or 
impact any claims, rights, or defenses of the SBA or the Wind Down Estates against one 
another except as related to the claims released in Paragraph 3 below. 
In consideration of the mutual promises and obligations of this Agreement, the 
Parties agree and covenant as follows: 
TERMS AND CONDITIONS 
1. 
The Wind Down Estates agree that the United States has an Allowed 
General Unsecured Claim (as that term is defined in the Plan) that is not subject to 
subordination or reconsideration against Kabbage in the Bankruptcy Case for the 
7 

Covered Conduct in the amount of sixty-three million two hundred ninety-four thousand 
two hundred seventy dollars and forty-three cents ($63,294,270.43) (the "Allowed 
Claim"). The Allowed Claim is exclusive of a credit to the Wind Down Estates of twelve 
million five hundred thousand dollars ($12,500,000), which represents a payment by 
Kabbage, Inc. to the SBA in 2021 pursuant to the terms of the SBA SALT Settlement; 
this payment was in connection with loans with SALT Inflation that were forgiven by the 
SBA. The Allowed Claim includes twenty-five million three hundred ninety-seven 
thousand one hundred thirty-five dollars and twenty-one cents ($25,397,135.21) in 
restitution. The Parties agree that the Allowed Claim shall be treated pari passu with all 
other allowed general unsecured claims against Kabbage under the Plan-except that the 
Parties agree that eight million five hundred eighty thousand four hundred eighty-three 
dollars and forty-four cents ($8,580,483.44) (the "Supplemental Amount") shall not be 
used to calculate the pro rata distribution paid to the United States until all other 
unsecured creditors' allowed claims against Kabbage have been paid it1 full. The Parties 
further agree that once, and only if, all other allowed general unsecured claims against 
Kabbage have been paid in full, the United States shall receive payment on account of the 
Supplemental Amount as an allowed general unsecured claim against Kabbage, pari 
passu with Proof of Claim No. 247, also filed by the United States. 
2. 
Upon the United States receiving payment of any portion ofthe Allowed 
Claim from the Wind Down Estates and as soon as feasible after receipt, the United 
States shall pay an 18.75% share of that portion of the Allowed Claim received by the 
United States to Relator by electronic funds transfer pursuant to 31 U.S.C. § 3730(d). In 
addition, as soon as feasible after the Effective Date of this Agreement, the United States 
8 

shall pay Relator two million three hundred forty-three thousand seven hundred fifty 
dollars ($2,343,750.00), which consists of 18.75% of the SBA SALT Settlement 
attributable to the SALT Inflation that has been forgiven by the SBA and which is 
credited toward the Allowed Claim set forth above. The payments in this Paragraph shall 
be referred to as the "Relator's Share." Relator agrees that the United States shall not be 
obligated to pay Relator more than 18.75% of the total portion of the Allowed Claim that 
the United States receives from the Bankruptcy Case. 
3. 
Subject to Paragraph 5 (concerning reserved claims), and upon the 
Effective Date of the Agreement, the United States releases the Wind Down Estates from 
any civil or administrative monetary claim the United States has for the Covered Conduct 
under the False Claims Act, 31 U.S.C. §§ 3729-3733, the Program Fraud Civil Remedies 
Act, 31 U.S.C. §§ 3801-3812, or the common law theories of breach of contract, payment 
by mistake, unjust enrichment, and fraud; or under the setoffprovisions of 11 U.S.C. § 
553 with respect to the Allowed Claim. If any court or arbitrator finds that this Paragraph 
releases, hinders, or otherwise bars any claim pursued by the Wind Down Estates, 
including but not limited to claims brought pursuant to 11 U.S.C. § 544, this Paragraph 
shall be rescinded and void to the extent necessary to avoid any such foregoing effect. 
This Paragraph is likewise rescinded and void if the United States is compelled by court 
order to pay back to the Wind Down Estates, any other trustee appointed in the 
Bankruptcy Case, or any successor ofthe estate any portion of the Allowed Claim. 
4. 
Subject to Paragraph 5 (concerning reserved claims), and upon the 
Effective Date of the Agreement, Rel a tor, for himself and for his heirs, successors, 
attorneys, agents, and assigns, releases the Wind Down Estates, their predecessors, their 
9 

current and former corporate parents, divisions, subsidiaries, successors, and assigns from 
any civil monetaiy claim Relator has on behalf of the United States for the Covered 
Conduct under the False Claims Act, 31 U.S.C. §§ 3729-3733. 
5. 
Notwithstanding the releases in Paragraphs 3 or 4 of this Agreement, or 
any other term of this Agreement, the following claims and rights of the United States are 
specifically reserved and are not released: 
a. 
Any liability arising under Title 26, U.S. Code (Internal Revenue 
Code); 
b. 
Any criminal liability; 
c. 
Any claim that the United States may have to avoid any transfer of 
property of the Debtors or any obligation incurred by the Debtors; 
d. 
Except as explicitly stated in this Agreement, any administrative 
liability or enforcement right, or any administrative remedy, 
including the suspension and debarment rights of any federal 
agency; 
e. 
Any liability to the United States (or its agencies) for any conduct 
other than the Covered Conduct; 
f. 
Any liability based upon obligations created by this Agreement; 
g. 
Any liability of individuals; and 
h. 
Any liability for express or implied warranty claims or other 
claims for defective or deficient products or services, including 
quality of goods and services. 

6. 
Nothing in this Agreement affects, modifies, alters, impairs, or diminishes 
the exculpation provisions at Paragraph 10.7 of the Plan except as limited by Paragraph 
32 of the order confirming the Plan. 
7. 
Relator and his heirs, successors, attorneys, agents, and assigns shall not 
object to this Agreement and agree and confirm that this Agreement is fair, adequate, and 
reasonable under all the circumstances, pursuant to 31 U.S.C. § 3730(c)(2)(B). Upon the 
Effective Date of the Agreement, Relator and his/her heirs, successors, attorneys, agents, 
and assigns fully and finally release, waive, and forever discharge the United States, its 
agencies, officers, agents, employees, and servants, from any claims arising from the 
filing of the Massachusetts Civil Action or under 31 U.S.C. § 3730, and from any claims 
to a share of the proceeds of this Agreement and/or the Massachusetts Civil Action. 
8. 
Relator, for himself, and for his heirs, successors, attorneys, agents, and 
assigns, releases the Wind Down Estates, and their officers, agents, and employees, from 
any liability to Relator arising from the filing of the Massachusetts Civil Action, or under 
31 U.S.C. § 3730(d) for expenses or attorneys' fees and costs. 
9. 
Relator further agrees to cooperate trnthfully with the Wind Down Estates' 
investigation into claims vested and retained by the Wind Down Estates under the Plan, 
whether or not such claims have been filed or otherwise initiated. Such cooperation 
includes, but is not limited to, producing relevant non-privileged documents, making 
himself reasonably available for interviews with counsel for the Wind Down Estates, and 
offering truthful testimony at both deposition and trial. 
10. 
The Wind Down Estates fully and finally release the United States, its 
agencies, officers, agents, employees, and servants, from any claims (including attorneys' 
11 

fees, costs, and expenses of every kind and however denominated) that Kabbage or the 
Wind Down Estates have asserted, could have asserted, or may assert in the future against 
the United States, its agencies, officers, agents, employees, and servants, related to the 
Covered Conduct or the United States' investigation or prosecution thereof. 
Notwithstanding the foregoing, this Agreement does not affect or limit the Wind Down 
Estates' claims, rights, or defenses with respect to the SBA except as related to the claims 
released in Paragraph 3. SBA and the Wind Down Estates have been and continue to be 
engaged in separate discussions regarding a potential settlement or compromise of any 
claims, rights, and defenses other than the claims released in Paragraph 3. 
11 . 
The Wind Down Estates fully and finally releases Relator from any claims 
(including attorneys' fees, costs, and expenses of every kind and however denominated) 
that Kabbage or the Wind Down Estates has asserted, could have asserted, or may assert 
in the future against Relator, related to the Covered Conduct and Relator's investigation 
and prosecution thereof. 
12. 
a. 
Unallowable Costs Defined: All costs (as defined in the Federal 
Acquisition Regulation, 48 C.F .R. § 31.205-4 7) incurred by or on behalf of Kabbage and 
the Wind Down Estates, and their present or former officers, directors, employees, 
shareholders, and agents in connection with: 
i. 
the matters covered by this Agreement; 
11. 
the United States' audit(s) and civil investigation(s) of the 
matters covered by this Agreement; 
iii. 
Kabbage's investigation, defense, and corrective actions 
undertaken in response to the United States' audit(s) and 
12 

civil investigation(s) in connection with the matters 
covered by this Agreement (including attorneys' fees); 
1v. 
the negotiation and performance of this Agreement; 
v. 
the payment the Wind Down Estates makes to the United 
States pursuant to this Agreement and any payments that 
the Wind Down Estates may make to Relator, including 
costs and attorneys' fees, 
are unallowable costs for government contracting purposes (hereinafter referred to as 
Unallowable Costs). 
b. 
Future Treatment ofUnallowable Costs: Unallowable Costs will 
be separately determined and accounted for by the Wind Down Estates, and the Wind 
Down Estates shall not charge such Unallowable Costs directly or indirectly to any 
contract with the United States. 
c. 
Treatment of Unallowable Costs Previously Submitted for 
Payment: Within 90 days of the Effective Date of this Agreement, the Wind Down 
Estates shall identify and repay by adjustment to future claims for payment or otherwise 
any Unallowable Costs included in payments previously sought by Kabbage or the Wind 
Down Estates or any of their subsidiaries or affiliates from the United States. The Wind 
Down Estates agree that the United States, at a minimum, shall be entitled to recoup from 
the Wind Down Estates any overpayment plus applicable interest and penalties as a result 
ofthe inclusion of such Unallowable Costs on previously submitted requests for 
payment. The United States, including the Department ofJustice and/or the affected 
agencies, reserves its rights to audit, examine, or re-examine Kabbage's books and 
13 

records and to disagree with any calculations submitted by Kabbage or the Wind Down 
Estates or any of their subsidiaries or affiliates regarding any Unallowable Costs 
included in payments previously sought by Kabbage or the Wind Down Estates, or the 
effect of any such Unallowable Costs on the amount of such payments. 
13. 
The Wind Down Estates agree to cooperate fully and truthfully with the 
United States' investigation of individuals and entities not released in this Agreement. 
Upon reasonable notice, the Wind Down Estates shall encourage, and agrees not to 
impair, the cooperation of their directors, officers, and employees, and shall use their best 
efforts to make available, and encourage, the cooperation offormer directors, officers, 
and employees for interviews and testimony, consistent with the rights and privileges of 
such individuals. The Wind Down Estates further agree to furnish to the United States, 
upon request, complete and umedacted copies of all non-privileged documents, reports, 
memoranda ofinterviews, and records in their possession, custody, or control concerning 
any investigation of the Covered Conduct that they have undertaken, or that has been 
performed by another on their behalf. 
14. 
The Wind Down Estates waive and shall not assert any defenses Kabbage 
or the Wind Down Estates may have had or may have to any criminal prosecution or 
administrative action relating to t_he Covered Conduct that may be based in whole or in 
part on a contention that, under the Double Jeopardy Clause in the Fifth Amendment of 
the Constitution, or under the Excessive Fines Clause in the Eighth Amendment of the 
Constitution, this Agreement bars a remedy sought in such criminal prosecution or 
administrative action. 
14 

15. 
The Wind Down Estates agree that any amended bankruptcy plan, 
confirmation order, or any material agreement or other order of the Bankruptcy Court 
shall not in any manner, by their terms, contain any provisions that amend, modify, 
supplement, supersede or conflict with, any of the provisions of this Agreement in any 
manner that is materially adverse to, or materially prejudicial to the United States or the 
Relator, in each case, with respect to their rights under this Agreement. Any amended 
plan or confirmation order shall be in form and substance reasonably acceptable to the 
United States. 
16. 
The United States may, in its sole discretion, declare that the occurrence of 
any of the following events is a default of the Wind Down Estates' obligations under this 
Agreement (each "an Event of Default"): 
a. 
the Bankruptcy Case is converted to a case under Chapter 7 of the 
Bankruptcy Code or dismissed; 
b. 
the Bankruptcy Court enters an order that amends, modifies, 
supplements, supersedes, or conflicts with, any of the provisions of 
this Agreement; 
c. 
the Bankruptcy Court or any other court of competent jurisdiction, 
issues any ruling, judgment or order enjoining the consummation 
of this Agreement or denying approval of this Agreement; 
d. 
the filing of a pleading by the Wind Down Estates seeking to 
withdraw, amend or modify the Plan, the Confirmation Order, or 
any motion to assume or approve this Agreement, which 
15 

withdrawal, amendment, modification or filing is not consistent 
with this Agreement in any material respect; or 
e. 
any court of competent jurisdiction enters a judgment or order 
declaring this Agreement to be unenforceable. 
17. 
Upon the occurrence of an Event of Default the United States shall have 
the rights and protections contemplated in Paragraphs 13 through 15. An Event of 
Default may be waived by the written consent of the United States. 
18. 
This Agreement is intended to be for the benefit of the Parties only. 
19. 
Within a reasonable time after the Effective Date of this Agreement, the 
United States and Relator shall promptly sign and file in the Massachusetts Civil Action a 
Notice of Dismissal of the Massachusetts Civil Action pursuant to Rule 41(a)(l). 
20. 
Each Party shall bear its own legal and other costs incurred in connection 
with this matter, including the preparation and performance of this Agreement. 
21. 
Each Party and signatory to this Agreement represents that it freely and 
voluntarily enters into this Agreement without any degree of duress or compulsion. 
22. 
This agreement is governed by the laws of the United States. The 
exclusive venue for any dispute relating to this Agreement is the United States District 
Court for the District of Massachusetts except to the extent that the Bankruptcy Court has 
exclusive statut01y jurisdiction. For purposes of construing this Agreement, this 
Agreement shall be deemed to have been drafted by all Parties to this Agreement and 
shall not, therefore, be construed against any Party for that reason in any subsequent 
dispute. 
16 

23. 
This Agreement constitutes the complete agreement between the Parties. 
This Agreement may not be amended except by written consent of the Parties. 
Forbearance by the United States from pursuing any remedy or relief available to it under 
this Agreement shall not constitute a waiver of rights under this Agreement. Nothing in 
this Agreement shall be construed as limiting the ability of the SBA to enter into a 
potential agreement with the Wind Down Estates, as contemplated in Paragraph O of the 
recitals herein. 
24. 
The undersigned counsel represent and warrant that they are fully 
authorized to execute this Agreement on behalf of the persons and entities indicated 
below. 
25. 
This Agreement may be executed in counterparts, each of which 
constitutes an original and all of which constitute one and the same Agreement. 
26. 
This Agreement is binding on the Wind Down Estates' successors, 
transferees, heirs, and assigns. 
27. 
This Agreement is binding on Relator's successors, transferees, heirs, and 
assigns. 
28. 
All Parties consent to the United States' disclosure of this Agreement, and 
information about this Agreement, to the public. 
29. 
This Agreement is effective on the date of signature ofthe last signatory to 
the Agreement (Effective Date of this Agreement). Facsimiles of signatures shall 
constitute acceptable, binding signatures for purposes of this Agreement. 
[SIGNATURE PAGES FOLLOW] 
17 

- ---------- --
THE UNITED STATES OF AMERTCA 
Digitally signed by BRIAN
BRIAN 
LAMACCHIA 
Date: 2024.05.07 14:55:32
5/7/2024 
LAMACCHIA 
-04'00'
DATED: ____ 
BY: 
BRIAN M. LaMACCHIA 
DIANE SEOL 
Assistant U.S. Attorneys 
U.S. Attorney's Office for the 
District of Massachusetts 
DATED: 5} 7 / 2-lj 
BY: ~b­
_S_A...IIC.R_A_H_E_•.-L-0 -,,.U'---C-K_S____ 
Trial Attorney 
Commercial Litigation Branch 
Civil Division 
United Slates Department of Justice 
18 

ffi,Q.~~r, 
•0 
f (Servicing Wind Down Corp.) 
19

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