SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (this "AGREEMENT") is made
and entered into as of the 12th day of February, 1999 (the "EFFECTIVE DATE")
by and between BINKS XXXXX CORPORATION, a Delaware corporation ("BINKS") and
CWA INVESTMENT COMPANY, L.L.C., an Illinois limited liability company
("CWA"). Binks and CWA are sometimes collectively referred to as the
"PARTIES," and individually as a "PARTY."
RECITALS:
A. CWA has brought certain claims against Binks and Binks has brought
certain counterclaims against CWA pertaining to a lease for a build-to-suit
office building to have been located in Vernon Hills, Illinois (the
"PROJECT"), which claims and counterclaims are the subject of certain
litigation entitled "CWA INVESTMENT COMPANY, L.L.C. V. BINKS XXXXX
CORPORATION, NO. 98L 03378" in the Circuit Court of Xxxx County, Illinois,
County Department, Law Division (the "LANDLORD LITIGATION").
B. Incident to the Landlord Litigation, Binks has filed a third-party
complaint against The Xxxx Xxxx Company, an Illinois corporation (the "REAL
ESTATE BROKER") alleging, among other things, that the Real Estate Broker is
liable to Binks for any and all amounts owed by Binks to CWA (the "BROKER
LITIGATION").
C. Attached as EXHIBIT A to this Agreement and by this reference made
a part hereof, is a list of the third-party expenses incurred by CWA in
connection with the cancellation of the Project (collectively, the
"OUT-OF-POCKET COSTS"). In the Landlord Litigation, CWA has asserted that
Binks is liable to CWA for both the Out-of-Pocket Costs and lost profits, and
Binks has denied liability to CWA therefore and made counterclaims.
D. The Parties recognize that continued pursuit of the Landlord
Litigation will be costly and time-consuming, and therefore desire to adjust
and compromise all of the issues arising from and as a result of the Landlord
Litigation, without prejudice to any claims of Binks against the Real Estate
Broker or any former officers or directors of Binks, by Binks' payment to CWA
of its Out-of-Pocket Costs and CWA's withdrawal of demand for lost profits
and other damages.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing Recitals, which are
incorporated herein by this reference, and for the other good and valuable
consideration herein below set forth, the receipt and sufficiency of which
are hereby expressly mutually acknowledged by the Parties, the Parties do
hereby agree as follows:
1. INCORPORATION OF RECITALS. The Recitals contained in this
Agreement are hereby incorporated into the body of this Agreement as
substantive agreements of the Parties.
2. SETTLEMENT PAYMENT. Binks agrees to pay to CWA its Out-of-Pocket
Costs in the aggregate sum of TWO MILLION FOUR HUNDRED AND NO/100THS
($2,400,000.00) DOLLARS, by certified check, cashier's check or wire transfer
on or before February 22, 1999.
3. DISMISSAL. Within four (4) business days following the date that
Binks has made the payment to CWA set forth in Section 2 hereof, the Parties
shall cause to be dismissed with prejudice their respective claims in the
Landlord Litigation, but not, in the case of Binks, the Broker Litigation.
4. CWA RELEASE OF BINKS. Subject to the provisions of Section 2
hereof, CWA, for and on behalf of itself and its past and present members,
directors, officers, employees, agents, representatives, subsidiaries and
affiliates, does hereby release and forever discharge Binks, its subsidiaries
and affiliates, and its and their past and present shareholders, directors,
officers, employees, agents, representatives and attorneys, of and from any
and all claims, demands, liabilities, responsibilities, causes of action,
legal or equitable, in contract, tort or otherwise, whether known or unknown,
accrued or unaccrued, fixed or contingent, arising out of, related to,
resulting from or otherwise concerning, in whole or in part: (i) any and all
claims or potential claims that were or could have been asserted by CWA in
the Landlord Litigation, including without limitation, the filing,
prosecution or defense of the Landlord Litigation; or (ii) any transactions,
acts, occurrences or omissions, whether related to the Project or otherwise,
occurring or failing to have occurred on or before the Effective Date.
5. BINKS RELEASE OF CWA. Subject to the provisions of Section 6
hereof, Binks, for and on behalf of itself and its past and present
shareholders,
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directors, officers, employees, agents and representatives, does hereby
release and forever discharge CWA, Van Vlissingen and Co., and its and their
past and present members, directors, officers, employees, agents,
representatives, subsidiaries and affiliates, and attorneys, of and from any
and all claims, demands, liabilities, responsibilities, causes of action,
legal or equitable, in contract, tort or otherwise, whether known or unknown,
accrued or unaccrued, fixed or contingent, arising out of, related to,
resulting from or otherwise concerning, in whole or in part: (i) any and all
claims or potential claims that were or could have been asserted by Binks in
the Landlord Litigation, including without limitation, the filing,
prosecution or defense of the Landlord Litigation; or (ii) any transactions,
acts, occurrences or omissions, whether related to the Project or otherwise,
occurring or failing to have occurred on or before the Effective Date.
6. RESERVATION OF BINKS CLAIMS AGAINST REAL ESTATE BROKER, FORMER
OFFICERS AND DIRECTORS OF BINKS AND OTHERS. The Parties expressly
acknowledge and agree that the release made by Binks of CWA set forth in
Section 5 of this Agreement shall not, in any way whatsoever, constitute or
be construed as a release by Binks, either in whole or in part, of:
(a) the Real Estate Broker, its officers, employees and agents,
generally, or a release by Binks of any claims against the Real Estate
Broker made in connection the Broker Litigation, specifically, it being
the express intention of the Parties that no such release of the Real
Estate Broker, its officers, employees and agents of any kind whatsoever
is being given by Binks under this Agreement; or
(b) any former officer or director of Binks, it being the express
intention of the Parties that no such release of any former officer or
director of Binks of any kind whatsoever is being given by Binks under
this Agreement; or
(c) any other person or party whatsoever (other than CWA and its
past and present members, directors, officers, employees, agents,
representatives, subsidiaries and affiliates, and attorneys), it being
the express intention of the Parties that no such release of any such
other person or party of any kind whatsoever is being given by Binks
under this Agreement.
7. CWA INTERVIEWS. CWA covenants to Binks that CWA shall (at its sole
cost and expense) cause its chief executive officer, Xxxxxxx Xxxxxxxx
("XXXXXXXX") and its real estate attorney, Ms. Xxxxx Head ("HEAD"), to appear
at
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the offices of Binks' litigation counsel, XxXxxxx Xxxxx & Xxxxx, of Chicago,
Illinois ("BINKS COUNSEL") to be separately interviewed by Binks Counsel
about each such person's personal knowledge of facts deemed by Binks Counsel
to be relevant to the Broker Litigation (the "INTERVIEWS"), each of which
shall be (x) for a duration not to exceed one (1) business day, and
(y) conducted on a date mutually agreeable to the Parties, but in no event
more than ten (10) business days following the date that Binks has made the
payment to CWA set forth in Section 2 hereof. If requested by Binks Counsel
to do so, Xxxxxxxx and/or Head, as the case may be, shall individually
execute a separate written statement (or if Binks Counsel shall so elect, an
affidavit) to be prepared by Binks Counsel in accordance with the provisions
of the penultimate sentence of this Section 7 (a "STATEMENT"), each such
Statement to truthfully set forth in summary form the facts disclosed by the
Interview deemed relevant by Binks Counsel and known to Xxxxxxxx and/or Head,
as the case may be. Any Statement shall be prepared in accordance with the
following procedures: (i) the Statement shall be prepared by Binks Counsel
and submitted to Xxxxxxxx and/or Head, as the case may be, by the close of
business on the fifth business day following the date of the completion of
his or her Interview, which shall be in draft form; and (ii) Xxxxxxxx and/or
Head, as the case may be, shall thereupon promptly review such draft of his
or her Statement (for not more than five (5) business days following receipt
of the draft), make such corrections, deletions and/or additions thereto as
he or she may deem necessary to make such Statement truthfully reflect his or
her knowledge of the facts, and thereupon promptly execute and return to
Binks Counsel the said Statement (provided that if Binks Counsel has
requested an affidavit, such Statement shall be duly signed and sworn to by
Xxxxxxxx or Head, as the case may be).
8. NO ADMISSION OF LIABILITY. Nothing contained in this Agreement (or
in any other document or instrument relating to the allegations made by the
Parties against each other in the Landlord Litigation) shall constitute an
admission by either Party (a) of any liability whatsoever to the other Party,
or (b) that either Party has committed any act or failed to take any act,
alleged by the other Party in the Landlord Litigation.
9. EXPENSES. Each Party shall bear its own expenses in connection
with the Landlord Litigation, this Agreement and the transactions
contemplated thereby.
10. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants contained in this Agreement shall
survive the execution and delivery of this Agreement and shall remain in full
force and effect until a claim based thereon is barred by applicable statutes
of limitation.
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11. WAIVER. Failure of CWA or Binks, as the case may be, to not insist
upon strict compliance with any of the terms, covenants or conditions of this
Agreement shall not be deemed a waiver of such term, covenant or condition,
nor shall the relinquishment of any right or power hereunder or at any one or
more times be deemed a waiver or relinquishment of such right or power at any
other time or times.
12. SEVERABILITY. If applicable law prohibits or invalidates any
provision of this Agreement, such provision shall be rendered ineffective and
severable for the remainder of this Agreement without affecting or impairing
the enforceability or validity of the remainder of this Agreement.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire contract
between the Parties relating to the subject matter hereof and is the final
and complete expression of their intent. No prior or contemporaneous
negotiations, promises, agreements, covenants or representations of any kind
or nature, oral or written, have been made by the Parties, or any of them, in
negotiations leading to this Agreement or relating to the subject matter
hereof, which are not expressly set forth in this Agreement, or which have
not become merged and finally integrated into this Agreement; it being the
intention of the Parties hereto that in the event of any subsequent
litigation, controversy, or dispute concerning the terms and provisions of
this Agreement, no Party shall be permitted to offer to introduce oral or
extrinsic evidence concerning the terms and conditions hereof that are not
included or referred to herein and not reflected in writing in this Agreement.
14. AMENDMENT. This Agreement may be changed, modified or amended only
by a written instrument duly executed by the Parties.
15. NON-ASSIGNMENT. Binks and CWA, for themselves, their respective
members, shareholders, directors, officers, employees, agents,
representatives, subsidiaries and affiliates, do hereby represent and warrant
to each other that it has not assigned, transferred or otherwise disposed of
any right, claim, cause of action or demand that, but for such assignment,
transfer or other disposition, would be subject to one of the above set forth
releases.
16. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors-in-interest or
assigns.
17. NOTICES. Any notice or other communication required to be given
hereunder by one Party to the other shall be in writing addressed to that
Party at the address set forth below (or to such other address set forth in
writing
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delivered to such other Party), and may be personally served, sent by
overnight courier service or U.S. mail, provided that such notice shall be
deemed to have been given: (a) if delivered in person, when delivered; (b) if
delivered by overnight courier, one (1) business day after delivery to the
courier properly addressed; and (c) if delivered by U.S. mail, four
(4) business days after deposit with postage prepaid and properly addressed.
If to Binks:
Binks Xxxxx Corporation
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx, President
With a copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
XxXxxxx Xxxxx & Xxxxx
000 Xxxx Xxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
If to CWA:
CWA Investment Company, L.L.C.
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
With a copy to:
Xxxxx X. Xxxxxxxxx, Esq.
Xxxxx & Xxxxxx
000 Xxxxx XxXxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
18. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Illinois as
to interpretation, enforcement, validity, construction, effect, choice of law
and in all other respects.
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19. THIRD PARTY BENEFICIARIES. Except as expressly provided in
Sections 4 and 5 hereof, neither this Agreement nor any provision of this
Agreement is intended to confer upon anyone other than the Parties and their
successors-in-interest any rights or remedies hereunder.
20. MUTUAL REPRESENTATIONS AND WARRANTIES. Each Party represents and
warrants to the other that: (a) it has the capacity and authority to enter
into and perform this Agreement; and (b) the execution, delivery and
performance of this Agreement by such Party have been duly authorized by all
necessary corporate, partnership, limited liability company or other action
of such Party and do not and will not conflict with, result in a breach or
violation of or constitute a default under any of the governing documents or
instruments of such Party or any material agreement, instrument, judgment or
decree to which such Party is a party or by which it is bound.
21. LEGAL REPRESENTATION AND DRAFTING PRESUMPTIONS. The Parties,
through their attorneys, have each actively participated in and contributed
to the preparation of this Agreement. The Parties hereby agree that there
shall not presumption favoring or burdening any Party based upon the drafting
of this Agreement.
22. FURTHER INSTRUMENTS. The Parties agree to execute such further
instruments as necessary to effectuate the intents and purposes of this
Agreement.
23. HEADINGS. The section headings contained in this Agreement are for
convenience only, and shall not affect the construction or interpretation of
any of the provisions of this Agreement.
24. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which shall constitute
one and the same Agreement.
BINKS XXXXX CORPORATION, CWA INVESTMENT COMPANY,
a Delaware corporation L.L.C., an Illinois limited liability
company
By: Xxxxxxxx Rental Sub-Partnership,
an Illinois general partnership, a
By: /s/ Xxxxxx Xxxxx Managing Member
-----------------------------
Xxxxxx Xxxxx, President & CEO
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, a
General Partner
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