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
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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
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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
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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
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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;
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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
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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
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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.
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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
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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
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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]
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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