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R-14-10VILLAGE OF DEERFIELD LAKE AND COOK COUNTIES, ILLINOIS RESOLUTIONNO. R -14 -10 A RESOLUTION AUTHORIZING A SETTLEMENT AGREEMENT WITH RESPECT TO THE LAWSUIT KNOWN AS VILLAGE OF DEERFIELD v. RICHMOND, No. 08 CH 4876 WHEREAS, the Village of Deerfield commenced a lawsuit in the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois, Case No. 08 CH 4876 (the "Floodplain Lawsuit'), for the correction of floodplain and zoning violations that arose in connection with the construction of a new single - family residence on the property commonly known as 755 Summit Drive, Deerfield, Illinois (the "Subject Property "); and WHEREAS, the Subject Property is also the subject of a mortgage foreclosure lawsuit entitled Bank of New York, etc., et al. v. Denise Richmond, et al., Case No. 08 CFI 03122 (the "Foreclosure Lawsuit'), which seeks the foreclosure of a Bank of New York mortgage on the Subject Property; and WHEREAS, the parties to the Floodplain Lawsuit and the Foreclosure Lawsuit desire to compromise and settle the disputes between and among them; and, WHEREAS, the material terms and conditions of the settlement negotiated by the parties to the Floodplain Lawsuit and the Foreclosure Lawsuit are set forth in the Settlement Agreement attached hereto as Exhibit A (the "Settlement Agreement'); and WHEREAS, the Village Attorney of the Village of Deerfield has recommended that the Village compromise and settle the Floodplain Lawsuit in accordance with the material terms and conditions set forth in the Settlement Agreement, subject to any final negotiations or modifications to the Settlement Agreement that are not materially inconsistent with the terms and conditions of the Settlement Agreement attached hereto; and WHEREAS, the corporate authorities of the Village of Deerfield have determined that it is in the best interests of the Village of Deerfield to compromise and settle the Floodplain Lawsuit as provided herein; and WHEREAS, the corporate authorities of the Village of Deerfield have further determined and do hereby authorize and direct the Village Manager of the Village of Deerfield to execute and enter into the final Settlement Agreement negotiated by and between the parties, provided only that the terms and conditions of the final negotiated Settlement Agreement, as determined by the Village Manager and the Village Attorney, are not materially inconsistent with the terms and conditions of the Settlement Agreement attached hereto; NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF DEERFIELD, LAKE AND COOK COUNTIES, ILLINOIS, in the exercise of its home rule powers, as follows: SECTION 1: That the above and foregoing recitals, being material to this Resolution, are hereby incorporated and made a part of this Resolution as if fully set forth herein. SECTION 2: That the corporate authorities of the Village of Deerfield hereby authorize, approve and direct the compromise and settlement of the Floodplain Lawsuit, and the execution of a Settlement Agreement for and on behalf of the Village of Deerfield as approved by the Village Manager in its final form, all as provided for and authorized in this Resolution. SECTION 3: That The Village Manager and the Village Attorney for the Village of Deerfield are further authorized and directed to execute and deliver such other and further -2- documents for and on behalf of the Village as may be necessary, appropriate or convenient to finally conclude and settle the Ploodplain Lawsuit in accordance with the Settlement Agreement and this Resolution. SECTION 4: That this Resolution shall be in full force and effect from and after its passage and approval as provided by law. PASSED this 21st day of_ July 2014. AYES: Benton, Farkas, Jester, Nadler, Seiden, Struthers NAYS: None ABSENT: None ABSTAIN: None APPROVED this 21st day of July 2014. ATTEST: ' k4;. V!illagc�lfflerkl -3- i Village President ROSENTHAL-, MURPHEY GOBLENTZ & DONAHUE LAW OFFICES 30 NORTH LA SALLE STREET SUITE 1624 CHICAGO, ILLINOIS 60602 PETER D. COBLENTZ (312) 541-1070 JOHN F. DONAHUE FAX (312) 541-9191 JUDITH N. KOLMAN JOHN B. MURPHEY PETER M. ROSENTHAL- (1950-2010) September 9, 2014 YANCEY L. PINKSTON, JR. MATTHEW D. ROSE Kent S. Street Village Manager Village of Deerfield 850 Waukegan Road. Deerfield, IL 60015-3206 Re: Village of Deerfield v. Richmond, 08 CH 4876 Dear Kent: q-r/ /If ',e C9� e 4- - Z-, -C-/ C. WRITER'S DIRECT LINE (312) 541-1073 Enclosed for your files is a copy of the fully executed Settlement Agreement in this matter; with signed counterpart signatures attached. I expect that a Final Dismissal Order will be entered not later than October 8, 2014 when this matter is next set for status hearing. ery truly Peter PDC:bb Enclosure SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made and entered as of August , 2014, ("Effective Date") by and between THE BANK OF NEW YORK AS SUCCESOR IN INTEREST TO JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR THE HOLDERS OF STRUCTURED ASSET MORTGAGE INVESTMENTS II TRUST 2004-AR5, MORTGAGE PASS -THROUGH CERTIFICATES, SERIES 2004-AR5 ("BONY"), and DENISE H. RICHMOND ("Denise") and Mark Richmond ("Mark")(Denise and Mark are collectively hereafter referred to as the "Richmonds"), CHICAGO TITLE LAND TRUST COMPANY AS SUCCESSOR TRUSTEE TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE UNDER TRUST AGREEMENT DATED OCTOBER 22, 2001 AND KNOWN AS TRUST NUMBER 128367 (the "Trust") and VILLAGE OF DEERFIELD, an Illinois municipal corporation ("Deerfield") (BONY, the Richmonds, the Trust, and Deerfield are collectively hereinafter referred to as the "Parties"). Recitals A. On December 26, 2003, BONY made a loan to Denise and Chicago Title Land Trust Company as successor trustee to LaSalle Bank National Association, as trustee under Trust Agreement dated October 22, 2001 and known as Trust Number 128367 (the "Trust") by that certain note of same date ("Note") in the principal amount of Three Million Two Hundred Fifty Thousand Dollars and Zero Cents ($3,250,000.00). B. To secure the Note, Denise and the Trust executed that certain mortgage dated January 20, 2004 recorded as Document No. 5481368 with the Office of the Recorder of Lake County, Illinois ("Mortgage") for the property commonly known as 755 Summit Drive, Deerfield, Illinois 60015 (the "Property"). The Note, Mortgage and any other documents executed in connection herewith shall be referred to herein collectively as the "Loan Documents." C. Defaults and events of default have occurred and exist under the Loan Documents. Based on the events of default under the Loan Documents, BONY filed a lawsuit entitled The Bank of New York as successor in interest to JP Morgan Chase Bank N.A., as Trustee for the Holders of Structured Asset Mortgage Investments II Trust 2004-AR5, Mortgage Pass Through Certificates,_ Series 2004-AR5 v. Denise Richmond, et al., Case No. 2008 CH 03122 pending in the Circuit Court for the Nineteenth Judicial Circuit, Lake County, Waukegan, Illinois which seeks foreclosure of the Property ("Foreclosure Case") Without any admission of liability by any of the parties to the Foreclosure Case, BONY, the Trust, and the Richmonds desire to comprise, resolve, settle and terminate all of the claims and disputes between them existing at or arising on or before the Effective Date which were or could have been raised by either party in the Foreclosure Case and which relate to BONY's Loan Documents. D. The Village of Deerfield ("Deerfield") filed a complaint for Declaratory Judgment and Other Relief (the "Village of Deerfield Complaint") against the Richmonds, Case No. 2008 CH 4876 (the "Floodplain Case"), seeking an injunction to require the performance of floodplain mitigation Work on the Property, more fully described in Paragraph 2 of this Agreement, penalties for zoning violations, and other relief as more fully described in the Complaint. The C:1UsersljcruzlAppD�italLocaATemp\I5�motesFEB62MSettlement Agreement -FINAL -EXECUTION COPY.doex I Floodplain Case has been consolidated with the Foreclosure Case for settlement purposes. Without any admission of liability by any of the parties hereto, Deerfield, the Richmonds and BONY desire to comprise, resolve, settle and terminate all of the claims and disputes between them relating to the Complaint or to completing the Foodplain mitigation work on the Property existing at or arising on or before the Effective Date which were or could have been raised by either party in the Floodplain Case. NOW, THEREFORE, in consideration of the recitals which are incorporated herein by this reference and constitute an integral pant hereof, the execution and delivery of this Agreement and the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows: 1. Recitals. The Recitals stated above are incorporated herein and made a part of this Agreement. 2. Settlement Terms. In full consideration of the mutual promises set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, BONY, the Richmonds, and the Village hereto agree that concurrent with the execution and delivery of this Agreement, to the following: a. The Richmonds shall be responsible for submitting payment to the BONY or its agent of the sum of $3,363.63 as the estimated cost of obtaining the necessary building permit from Deerfield to commence construction of the retaining wall on the Property in accordance with the Retaining Wall Plans (`Building Permit Check"). The Building Permit Check will be placed in escrow with BONY's counsel, Latimer LeVay Fyock LLC, ("Escrowee") on the date of the execution of this Agreement and shall remain in escrow until either an order confirming sale is entered in favor of BONY granting title of the Property to BONY or its agent in the Foreclosure Case or an order confirming sale is entered in favor of a third party purchaser in the Foreclosure Case. In the event an order confirming sale is entered in the Foreclosure Case in favor of BONY, Escrowee shall deliver the Building Permit Check to BONY or its agent, BONY or its agent shall cash the Building Permit Check, and shall submit (1) an application to Deerfield (the "Application") for the necessary building permit to permit construction of a retaining wall on the Property in accordance with plans prepared by Christopher B, Burke Engineering Ltd. and authorized by a Conditional Letter of Map Revision ("CLOMR') issued by FEMA on or about November 26, 2012 in Case No. 12-05-7821R, and conditionally approved by the Village of Deerfield on or about June 5, 2013 to be submitted to and approved by Deerfield (the "Retaining Wall Plans'), and (2) the proceeds from the Building Permit Check to the Village of Deerfield for the cost of obtaining the necessary building permit to commence construction of the retaining wall on the Property in accordance with the Retaining Wall Plans. Deerfield shall waive its ordinance requirement for a $10,000 performance guarantee deposit in connection with the issuance of a building permit for the retaining wall. Deerfield further agrees that it will accept the C:\Users\jcruz\AppData\LocallTempU5\notesFEB6231Settlenient Agreement -FINAL -EXECUTION COPY.doox 2 sum of $3,363.63 (based on an estimated construction cost of $148,969.00 for the retaining wall) as the building permit fee for construction of the retaining wall provided that (1) the Application and permit fee is submitted by BONY or its agent to Deerfield, (2) approved by Deerfield and (3) Bony or its agent commences construction of the retaining wall in 2014. In the event an order confirming sale is entered in favor of a third party purchaser and not BONY or its agent, Escrowee shall return to the Richmonds the Building Permit Check. b. The Richmonds shall pay the sum of $10,000.00 to Deerfield (the "Settlement Payment") on or before July 30, 2014 in settlement of all fines, costs or penalties that may or could have been imposed upon or assessed against the Richmonds as set forth in the Complaint filed by the Village of Deerfield's Complaint against Richmond and Mark Richmond in the Circuit Court of Nineteenth Judicial Circuit, Lake County, Waukegan, Illinois, Case No. 2008 CH 4876 ("Village of Deerfield Complaint'), and shall provide written documentation to BONY that the Settlement Payment has been made. c. The Richmonds and the Trust shall withdraw, if any, any and all defenses, claims, causes of actions, counterclaims, damages, losses, breaches, controversies, claim for attorneys' fees and costs, alleged in the Foreclosure Case; d. Simultaneously with the execution of this Agreement, the Richmonds and the Trust shall execute an Agreed Judgment of Foreclosure and Sale Order and Summary Judgment Order related to the Foreclosure Case, which are attached hereto as Group Exhibit "A"; e. Upon completion of the judicial sale, the Richmonds and the Trust shall not object, contest, raise any defense to the entry of an order confirming the judicial sale of the Property, entry of a deficiency judgment against Denise, which shall include the costs advanced by BONY or its agent for construction of the retaining wall, if any have been advanced at the time the sale is confirmed, and granting possession of the Property to BONY or its agent thirty (30) days after entry of the order confirming sale; f. BONY or its agent shall commence and complete the construction of the retaining wall on the Property in accordance with the Retaining Wall Plans during the 2015 construction season. However, in the event BONY or its agent is the successful bidder at the judicial sale and an order confirming sale of the Property has been an entered in the Foreclosure Case in favor of BONY or its agent prior to the end of the 2014 construction season and if the weather conditions permit commencement and completion of construction of the retaining wall during the 2014 construction season, BONY or its agent will make every effort to commence and complete construction of the retaining wall during the 2014 construction season; CaUsersljcruz\AppbatalLocal\TcmpNI5�ictesFEB6231Settlenient Agreement -FINAL -EXECUTION COPY.docx 3 g. BONY or its agent shall be responsible for the payment of costs associated with the construction of the retaining wall on the Property, including the construction costs of approximately $148,969.00, plus fees and costs for obtaining (1) an "as -built" topographical survey of the completed floodway mitigation plan, (2) letter of map revision request application ("LOMR"), (3) letter of map revision -based on fill request application ("LOMR-F"), (4) review fees charged by the Illinois Department of Natural Resources -Office of Water Resources ("IDNR-OWR fees"), and (5) review fees charged by the Federal Emergency Management Agency ("FEMA fees"). In the event BONY is not the successful purchaser at the judicial sale of the Property, BONY shall have no obligation for payment of the fees set forth in paragraph 2(g)(1)- 2(g)(5); h. The Richmonds, their agents, heirs, successors, and assigns shall not prohibit access to the Property during the construction of the retaining wall on the Property; i. The Richmonds, their agents, heirs, successors, and assigns shall not interfere with construction of the retaining wall on the Property; j. In the event that BONY or its agent is the successful bidder at the judicial sale of the Property and after an order confirming the sale of the Property has been entered in the Foreclosure Case in favor of BONY or its agent, BONY or its agent shall enter into a six (6) month rental lease agreement ("Lease") with the Richmonds for the Property, with rent payable to BONY or its agent commencing on the day immediately after the entry of the order confirming sale and which is attached hereto as Exhibit `B". k. Upon completion of the retaining wall, BONY or its agent shall take the necessary steps to obtain an "as built" topographical survey of the completed floodway mitigation plan; 1. Upon completion of the retaining wall, BONY or its agent shall prepare and submit as -built drawings, updated hydraulic modeling, and any other supporting material required for LOMR approval by Federal Emergency Management Agency ("FEMA") showing that regulatory floodplain has been relocated away from the Property and toward the river per the approved plans; m. Upon completion of construction of the retaining wall, BONY or its agent shall prepare or have prepared the appropriate documentation to submit to FEMA to obtain a Final Letter of Map Revision (LOMR-F) in accordance with FEMA Technical Bulletin 10-01 to justify removing the Property from the regulatory 100-year floodplain; n. In the event BONY or its agent is the successful bidder at judicial sale, upon completion of construction of the retaining wall, and after obtaining the C:\Users\jcnizWppDalaTocal\Temp1151notesFEB6231Settlemenl Agreement-FINAL-MCUTION COPY.docx 4 LOMR and LOMR-F from FEMA, BONY or its agent shall file the required application with the Village requesting to vacate the north building Iine which is encroached by the Property, and the establishment of a new building line in a location acceptable to the Village; o. In the event Property is sold to a third parity purchaser at the judicial sale and not to BONY or its agent, then neither BONY nor its agent shall be obligated to comply with paragraphs 2(g)(1)-2(g)(5), 20), 2(k), 2(1), 2(m) or 2(n); p. Deerfield shall not be obligated to issue a certificate of occupancy permitting the Property to be occupied by BONY or its agent, or by a third party purchaser or tenant, until after the approvals identified in paragraphs 2(g), 2(1), 2(m) and 2(n) have been obtained. q. The parties agree to execute or cause to be executed all documents required to achieve the above results, if any, with each of the parties bearing their respective costs and fees incurred in connection with the Foreclosure Case, the Village of Deerfield Complaint, and in implementing the provisions of this Agreement. 3. Event of Default: An Event of Default ("Event of Default") under this Agreement shall exist if any of the following shall occur: (a) If the Richmonds fail to pay any amounts due as set forth in paragraphs 2(a) and 2(b) pursuant to this Agreement, on the date when due and fail to cure such payment default within five (5) days; (b) Default shall be made in the performance or. observation by the Richmonds or the Trust of any other term or provision of this Agreement; (c) Institution of any proceeding by or against any of the Richmonds, under any bankruptcy or insolvency statute; and (d) The death or declaration of legal incompetency of any of the Richmonds. 4. Remedies upon Default. Upon an Event of Default under. this Agreement, this Agreement shall be declared null and void and BONY or its agent shall seek immediate possession of the Property from the Richmonds and the Trust. The Richmonds and/or the Trust waive, and will not plead, any defense to the immediate possession of the Property and/or entry of the judgment against the Richmonds for the amount due under the Agreement. 5. No Liability. The terms of this settlement and the mutual and several covenants and agreements contained herein in consideration therefor are not acknowledgements, concessions or admissions by any of the parties hereto of any of the allegations raised or which could have been raised in the Foreclosure Case, or otherwise, all of which the parties have expressly and categorically denied and continue to expressly and categorically deny. This settlement reached is given to comprehensively settle disputed claims and the parties do hereby C:\UsersljcruzlAppDatall-4ca6Temp1151notesFEB6231settiement Agmement-FINAL-EXECUTION COPY.docx 5 repeat their complete and categorical denials of having engaged in any wrongful conduct or any unlawful act alleged by the other party in connection with the Foreclosure Case, 6. Release by BONY of the Richmonds. Except for the obligations created by this Agreement, BONY and its agents remise, release and forever discharge the Richmonds with respect to any and all actions, causes of action, claims, counterclaims, breaches, controversies, demands, damages, expenses, losses, costs, attorneys' fees, court costs, loss of income, loss of value or loss of services of any type whatsoever, known or unknown, past, present or future, whether under foreign or domestic tort or contract law and/or any foreign or domestic statute, law, regulation, ordinance, certificate of incorporation or by-law relating in any way to the Loan Documents and/or the claims or defenses alleged in the Foreclosure Case or which could have been raised in the Foreclosure Case. 7. Release by the Richmonds of BONY. Except for the obligations created by this Agreement, the Richmonds remise, release and forever discharge BONY (its present and former officers, directors, shareholders, employees, attorneys, agents, successors, subsidiaries, affiliates, and assigns) with respect to any and all actions, causes of action, claims, counterclaims, breaches, controversies, demands, damages, expenses, losses, costs, attorneys' fees, court costs, loss of income, loss of value or loss of services of any type whatsoever, known or unknown, past, present or future, whether under foreign or domestic tort or contract law and/or any foreign or domestic statute, law, regulation, ordinance, certificate of incorporation or by-law relating in any way to the claims or defenses alleged in the Foreclosure Case or which were or could have been raised in the Foreclosure Case effectively immediately. 8. Release by BONY of the the Trust. Except for the obligations created by this Agreement, BONY and its agents remise, release and forever discharge the Trust with respect to any and all actions, causes of action, claims, counterclaims, breaches, controversies, demands, damages, expenses, losses, costs, attorneys' fees, court costs, loss of income, loss of value or loss of services of any type whatsoever, known or unknown, past, present or future, whether under foreign or domestic tort or contract law and/or any foreign or domestic statute, law, regulation, ordinance, certificate of incorporation or by-law relating in any way to the Loan Documents and/or the claims or defenses alleged in the Foreclosure Case or which could have been raised in the Foreclosure Case. 9. Release by the Trust of BONY. Except for the obligations created by this Agreement, the Trust and its agents remise, release and forever discharge the BONY (its present and former officers, directors, shareholders, employees, attorneys, agents, successors, subsidiaries, affiliates, and assigns) with respect to any and all actions, causes of action, claims, counterclaims, breaches, controversies, demands, damages, expenses, losses, costs, attorneys' fees, court costs, loss of income, loss of value or loss of services of any type whatsoever, known or unknown, past, present or future, whether under foreign or domestic tort or contract law and/or any foreign or domestic statute, law, regulation, ordinance, certificate of incorporation or by-law relating in any way to the Loan Documents and/or the claims or defenses alleged in the Foreclosure Case or which could have been raised in the Foreclosure Case. C:1Users%jeruz\AppData\Local TcmpkI MnotesPEB623\Settlement Agreement -FINAL -EXECUTION COPY.docx 6 10. Release by. the Village of BONY. Except for the obligations created by this Agreement, the Village remise, release and forever discharge BONY (its present and former officers, directors, shareholders, employees, attorneys, agents, successors, subsidiaries, affiliates, and assigns) with respect to any and all actions, causes of action, claims, counterclaims, breaches, controversies, demands, damages, expenses, losses, costs, attorneys' fees, court costs, loss of income, loss of value or loss of services of any type whatsoever, known or unknown, past, present or future, whether under foreign or domestic tort or contract law and/or any foreign or domestic statute, law, regulation, ordinance, certificate of incorporation or by-law relating in any way to the claims or defenses alleged in the Foreclosure Case and the Floodplain Case or which were or could have been raised in the Foreclosure Case and/or the Floodplain Case effectively immediately. 11. Release bN! BONY of the Village. Except for the obligations created by this Agreement, BONY and its agent remise, release and forever discharge the Village (its present: and former officers, directors, shareholders, employees, attorneys, agents, successors, subsidiaries, affiliates, and assigns) with respect to any and all actions, causes of action, claims, counterclaims, breaches, controversies, demands, damages, expenses, losses, costs, attorneys' fees, court costs, loss of income, loss of value or loss of services of any type whatsoever, known or unknown, past, present or future, whether under foreign or domestic tort or contract law and/or any foreign or domestic statute, law, regulation, ordinance, certificate of incorporation or by-law relating in any way to the claims or defenses alleged in the Foreclosure Case or which were or could have been raised in the Foreclosure Case and/or the Floodplain Case effectively immediately. 12. Release by the Richmonds of the Village. Except for the obligations created by this Agreement, the Richmonds remise, release and forever discharge the Village with respect to any and all actions, causes of action, claims, counterclaims, breaches, controversies, demands, damages, expenses, losses, costs, attorneys' fees, court costs, loss of income, loss of value or loss of services of any type whatsoever, known or unknown, past, present or future, whether under foreign or domestic tort or contract law and/or any foreign or domestic statute, law, regulation, ordinance, certificate of incorporation or by-law relating in any way to the claims or defenses alleged in the Floodplain Case, or which were or could have been raised in the Floodplain Case effectively immediately. 13. Release by the Village of the Richmonds. Except for the obligations created by this Agreement, the Village remises, releases and forever discharges the Richmonds with respect to any and all actions, causes of action, claims, counterclaims, breaches, controversies, demands, damages, expenses, losses, costs, attorneys' fees, court costs, loss of income, loss of value or loss of services of any type whatsoever, known or unknown, past, present or future, whether under foreign or domestic tort or contract law and/or any foreign or domestic statute, law, regulation, ordinance, certificate of incorporation or by-law relating in any way to the claims or defenses alleged in the Floodplain Case, or which were or could have been raised in the Floodplain Case effectively immediately. 14. Notices. All notices required or desired to be given in connection with this Agreement shall be in writing and shall be deemed delivered on the date received, if delivered C;\Users\jcroz\AppDatalLocai\Temp\I MnotesFEB62MSetl1ement Agreement -FINAL -EXECUTION COPY.doox personally, on the third day after mailing if sent by registered or certified mail, return receipt requested, postage pre -paid, on the date following delivery if sent by overnight courier, or on the first business day following transmission if sent by confirmed facsimile, to the following: if to BONY, then in care of its attorney, Tejal S. Desai, Latimer LeVay Fyock LLC, 55 West Monroe Street, Suite 1100, Chicago, Illinois 60603, Facsimile No. 312.422,8001, if to the Richmonds, then in care of their attorney, John W. Quinn, Churchill Quinn Richtman & Hamilton, Ltd., 2 S. Whitney Street, Grayslake, Illinois 60030, Facsimile No. 847.223-1700; and if to the Village, then care of its attorney, Peter Coblentz, Rosenthal, Murphey, Coblentz, & Donahue, 30 N. LaSalle Street, Suite 1624, Chicago, Illinois 60602, Facsimile No. 312.541.9191; and if to the Trust, then care of Chicago Title Land Trust Company, 10 S. LaSalle Street, Suite 2750, Chicago, Illinois 60603. 15. Authori(N% This Agreement constitutes a valid and legally binding obligation of each party signing the Agreement. The execution of this Agreement and the transactions and performances contemplated herein has been duly authorized by the requisite action on the part of each party. Each person signing this Agreement represents and warrants that he or she has full authority to execute the Agreement on behalf of, and to bind to the Agreement the party on whose behalf he or she is signing. 16. Construction. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to the choice of law rules, or conflicts of laws principles of such laws. Any lawsuit arising out of or related to this Agreement shall be filed in the Circuit Court of Lake County, Illinois, and BONY, the Trust, the Richmonds, and the Village submit to jurisdiction of that court. a. If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction, than this Agreement shall be considered divisible and inoperative as to such provision to the extent it is deemed to be unenforceable and, in all other respects, this Agreement shall remain in full force and effect; provided, however, if any provision of this Agreement is deemed to be unenforceable as written, though such provision may be enforceable by limitation thereof, then such provision shall be enforceable to the maximum extent permitted by law. b. The various titles of the paragraphs in this Agreement are used solely for convenience and reference only and do not construe nor shall they be deemed to construe or interpret any word, clause, paragraph or provision of this Agreement; reference herein to "Paragraph" or "Subparagraph" means the various paragraphs and subparagraphs of this Agreement. c. No provision of this Agreement may be modified except by a writing duly signed by and delivered to all of the parties hereto. d. The provisions contained herein constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede all previous C:\UsersljcruzlAppDatalLocahTemp\I5lnotesFFB6231settlement Agreement -FINAL -EXECUTION COPY.doox 8 communications or representations, whether verbal or written, between the parties with respect to the subject matter hereof. 17. Enforcement. If either BONY, the Trust, the Richmonds, or the Village fails to perform any of his or her respective obligations hereunder in accordance with the terms and conditions of this Agreement, the other party(ics) shall be entitled to enforce, through legal action, this Agreement and shall be entitled to his/her/its reasonable costs of collection, including court costs and attorney's fees. 18. Voluntary Settlement Agreement. The Agreement is signed by all parties voluntarily and without duress or undue influence on the part of or on behalf of BONY, the Trust, the Richmonds, or the Village. 19. Non -Disparagement. The parties agree that any public statements concerning this Agreement shall be factual and non -disparaging. 20. Binding Nature of Agreement, This Agreement shall be binding upon and inure to the benefit of the BONY, the Trust, the Richmonds, and the Village and their respective heirs, personal representatives, successors and assigns. 21. Execution in Counterparts. The Agreement may be signed in counterparts. A party's signature by facsimile or email shall have the effect of and be deemed an .original signature. [Signature page follows] C:\Usersljcniz\AppDatalLocallTemp\I 5\notesFEI3623\Sett1ement Agreement -FINAL -EXECUTION COPY.doox 9 The parties have executed this Agreement as of the Effective Date. THE BANK OF NEW YORK as successor in interest to JP Morgan Chase Bank, N.A., as Trustee for the holders of Structured Asset Mortgage Investments II Trust 2004-AR5, Mortgage Pass -Through Certificates, Series 2004-AR5B By: Its: Title: The Village of Deerfield By: Its: Title: Chicago Title Land Trust Company as Successor Trustee of Trust Agreement dated October 22, 2001 And known as Trust Number 128367 By: Its: Title: Denise Richmond Mark Richmond C.NUsersljcruz\AppData\LocahTempU 5lnotesFEB62313ettlement Agreement -FINAL -EXECUTION COPY.docx to The parties have executed this Agreement as of the Effective Date. THE BANK OF NEW YORK as successor in interest to JP Morgan Chase Bank, N.A., as Trustee for the holders of Structured Asset Mortgage Investments II Trust 2004-AR5, Mortgage Pass -Through Certificates, Series 2004-AR5B By: Its: Title: The Village of Deerfield Its: Title: Chicago Title Land Trust Company as Successor Trustee of Trust Agreement dated October 22, 2001 And knowlp as Tq?t Ny i. er 128367 and not personally By: Its: Trust Officer Title: Denise Richmond hkRiLehmond M instikrit is executed by fhe.0dertignt3ii Land Trus4s, S sim `" '' '•� �'"'` not parsonally but soles as Trustee in the exercise of the power authority conferre upon and vested in it as such Trustee; Ifli'ea ressl understood and agreed that all the warranties . p . Y g indemnities, representations, covenants, undertakings an agreements herein made on the part of the Trustee are undertaken by It sole) in its capacity as Trustee and not personally. No persona liability or personal responsibility.is.. __. ��-. >y a»d by or shall at any time be asserted or enforces against the Trustee on account of any warranty, indemnity representation,covenant, undertaking or agreement of the - Trustee in this instrument. C:1UserslsusanllAppData\Local\MicrosofllWindo%vs\Temporary Internet FileslContent.Outlook13KO5B3L81Settlement Agreement -FINAL - EXECUTION COPY.docx 10 The parties have executed this Agreement as of the Effective Date. THE BANK OF NEW YORK as successor in interest to JP Morgan Chase Bank, N.A., as Trustee for the holders of Structured Asset Mortgage Investments II Trust 2004-AR5, Mortgage Pass -Through Certificates, Series 2004-AR5B L00 Its: Title: The Village of Deerfield By: 4#- Its: S' S+r-,fe f Title: Chicago Title Land Trust Company as Successor Trustee of Trust Agreement dated October 22, 2001 And known as Trust Number 128367 By: Its: Title: Denise Richmond Mark Richmond C:\Users\KSTREE-1.DEEWppData\Local\Temp\notesB28C3D\Settlement Agreement -FINAL -EXECUTION COPY.doex 10