MUTUAL RELEASE AND SETTLEMENT AGREEMENT

Transcription

1 MUTUAL RELEASE AND SETTLEMENT AGREEMENT This Mutual Release and Settlement Agreement ("Agreement") is made among the following parties (each a "Party" and collectively the "Parties"): a. Wells Fargo Equipment Finance ("WFEF'') and Wells Fargo Securities, LLC (together with WFEF, "Wells Fargo Bank''); and b. The State of Wisconsin, the Board of Regents of the University 6f Wisconsin System, the University of Wisconsin-Oshkosh, and all employees and agents of those entities (collectively, the "State"). WHEREAS, disputes have arisen among Wells Fargo Bank and the State; and WHEREAS, various proceedings and lawsuits have been filed that involve claims Wells Fargo Bank has or might have against the State, including: The Chapter 11 bankruptcy case In re: University of Wisconsin Oshkosh Foundation, Inc., U.S. Bankruptcy Court Eastern District of Wisconsin case number: (the "Bankruptcy Case"). The bankruptcy adversary proceeding University of Wisconsin Oshkosh Foundation, Inc. v. University of Wisconsin System et al. U.S. Bankruptcy Court Eastern District of Wisconsin case number: The. bankruptcy appeal in the U.S. District Court for the Eastern District of Wisconsin, case number: 18CV1378. The Chapter 11 bankruptcy case In Re: UW Oshkosh Foundation Alumni Welcome and Conference Center, LLC, U.S. Bankruptcy Court Eastern District of Wisconsin case number: The bankruptcy adversary proceeding University of Wisconsin Oshkosh Foundation Alumni Welcome and Conference Center, LLC v. Board of Regents of the University of Wisconsin System, U.S. Bankruptcy Court Eastern District of Wisconsin case: The Fond du Lac County Circuit Court Voluntary Amortization of Debts of JJW-Oshlrosh Foundation Rose-ndale-llig)_digester, LLC, ca:8!tlw. ~8C~~:2J:z: ±:10======= (the "Receivership Action"). US

2 The Dane County Circuit Court case Board of Regents of the University of Wisconsin System vs. First Business Financial Services, Inc., case number 17CV2965. The Wisconsin Court of Appeals case Board of Regents of the University of Wisconsin System vs. First Business Financial Services, Inc., case number 18AP2202. These proceedings and lawsuits are collectively the "Lawsuits." WHEREAS, Wells Fargo Bank and the State desire to settle all claims and disputes that each has against the other and that have been, or could have been, raised in the Lawsuits (the "Released Claims"), without the cost, expense, and uncertainty of trial and without admission of fault or liability; NOW THEREFORE, in consideration of the monies, mutual promises, and covenants contained herein, Wells Fargo Bank and the State agree as follows: 1. SETTLEMENT AMOUNT. The State agrees to pay the amount of $1,725, to Wells Fargo Bank within 30 days after both parties execute this Agreement. 2. RELEASE OF CLAIMS. a. In exchange for the consideration listed in this agreement, including the releases set forth in this paragraph 2, Wells Fargo Bank releases and forever discharges the State and the University of Wisconsin Oshkosh Foundation, Inc.; the UW-Oshkosh Foundation-Witzel, LLC; and the UW-Oshkosh Foundation Rosendale Biodigesters, LLC; and all of their officers, agents, employees, successors, personal representatives, and insurers (the "State Released Parties") from any and all manner of action or actions (including cause or causes of action, suits, debts, US

3 covenants, agreements, liabilities, rights, damages, costs, claims of interest, awards of attorney fees, claims and demands of every kind and nature whatsoever, in law or equity, whether based on State or Federal law), that relates in any way to the Released Claims and that arose on any date before this Agreement is fully executed. Wells Fargo Bank shall relinquish any security interest or claim of any kind relating to the Witzel Biodigester in Oshkosh, Wisconsin, and shall sign any necessary UCC or lien releases. In exchange for the surrender, on or before March 31, 2019, of the JCB Telescopic Handler bearing Serial Number by UW-Oshkosh Foundation, Inc. and UW-Oshkosh Foundation Rosendale Biodigesters, LLC regarding which Wells Fargo made a claim in the Foundation's bankruptcy case, Wells Fargo shall also make no further claim. b. In exchange for the consideration listed in this agreement, including the releases set forth in this paragraph 2, the State releases and forever discharges Wells Fargo Bank, and all of its officers, agents, employees, successors, personal representatives, and insurers (the "Wells Fargo Released Parties" and together with the State Released Paxties, the "Released Parties") from any and all manner of action or actions (including cause or causes of action, suits;debts, covenants, agreements, Tia.b:ilities, rights, damages, costs, claims of interest, awaxds of attorney fees, claims and demands of every kind and natuxe whatsoever, in law US

4 or equity, whether based on State or Federal law), that relates in any way to the Released Claims and that arose on any date before this Agreement is fully executed. 3. COVENANT NOT TO SUE. This Agreement shall also be deemed a covenant by each of the Parties not to sue any of the Released Parties for any of the matters released or discharged by this Agreement, not to file any appeal of any court decision, and not to file any new lawsuits, claims, or complaints in any court, or with any ~tate or federal agency or licensing board, or against the other Party or any of its successors, agents, and assigns or any former or current employee, if such claims relate to any action or inaction that any of the Released Parties or their or employees or agents took with respect to the Released Claims on any date before this Agreement is fully executed. 4. RESERVATION OF RIGHTS. Wells Fargo Bank reserves any and all rights it may have to challenge any future acts of the State. 5. COSTS AND ATTORNEYS' FEES. Each party will bear its own costs and attorneys' fees. 6. SCOPE OF AGREEMENT. This Agreement shall bind the undersigned and the heirs, executors, administrators, personal representatives, successors, and assigns of the undersigned. 7. COMPROMISE OF DISPUTED CLAIM. This Agreement is a full, final, and complete compromise of disputed claims. It is understood and agreed by the undersigned that this settlement is the compromise of disputed claims, that any US

5 payment made hereunder is not to be construed as an admission of liability on the part of the Released Parties herein, and that said Released Parties deny liability or wrongdoing and intend merely to avoid litigation and buy their peace. 8. INTEGRATION CLAUSE. This is the entire agreement among the Parties and is intended to be the complete and final statement of the Agreement. All proposals, negotiations, and representations, if any, made prior to the date hereof, whether oral or in writing, are merged or superseded by this Agreement. This Agreement can be modified only by a writing signed by all Parties. 9. EXECUTION IN COUNTERPARTS. This Agreement may be executed in counterparts. 10. THIS RELEASE AND SETTLEMENT AGREEMENT HAS BEEN READ AND UNDERSTOOD BY THE UNDERSIGNED BEFORE SIGNING. [Signature Page Follows] US

6 [Signature Page to Mutual Release and Settlement Agreement] VvELLS FARGO EQUIPMENT FINANCE Dated; I )-Q.3 /l'?i (~~. Loan Adjustment Manager and Assistant Vice President, Wells Fargo Equipment Finance VvELLS FARGO SECURITIES, LLC ~z1z:;t: Director, Wells Fargo Securities, LLC BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM Dated: By;----' Raymond Cross President, University of Wisconsin System US.!

7 [Signature Page to Mutual Release and Settlement Agreement] WELLS FARGO EQUIPMENT FINANCE (~ By~ ~ Pa~e \one Loan Adjustment Manager and Assistant Vice President, Wells Fargo Equipment Finance WELLS FARGO SECURITIES, LLC Dated: By: Andrew Maffucci Director, Wells Fargo Securities, LLC BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM By:~ Ray~~ President, University of Wisconsin System US

8 MUTUAL RELEASE AND SETTLEMENT AGREEMENT This Mutual Release and Settlement Agreement (" Agreement") is made among the following parties (collectively the "Parties"): a. First Business Financial Services, Inc. and First Business Bank ( collectively, "FBB") and all their employees and agents; and b. The State of Wisconsin, the Board of Regents of the University of Wisconsin System, the University of Wisconsin-Oshkosh, and all their employees and agents of those entities ( collectively, the "State"); and c. University of Wisconsin Oshkosh Foundation, Inc.; the UW-Oshkosh Foundation Witzel, LLC; the UW-Oshkosh Foundation Rosendale Biodigester, LLC; and the UW Foundation Alumni Welcome and Conference Center, LLC and all their emplqyees and agents (collectively, "UWOF"). WHEREAS, disputes have arisen among the Parties; and WHEREAS, lawsuits have been filed that involve the disputes, including: The Chapter 11 bankruptcy case In re: University of Wisconsin Oshkosh Foundation, Inc., U.S. Bankruptcy Court Eastem District of Wisconsin case number: The bankruptcy adversary proceeding University of Wisconsin Oshkosh Foundation, Inc. v. University qfwisconsin System et al. U.S. Bankruptcy Court Eastem District of Wisconsin case number: The bankruptcy appeal in the U.S. District Court for the Eastem District of Wisconsin, case number: 18CV1378. The Chapter 11 bankruptcy case In Re: UW Oshkosh Foundation Alumni Welcome and C011ference Center, LLC, U.S. Bankruptcy Court Eastern District of Wisconsin case number: The bankruptcy adversary proceeding University of Wisconsin Osftkosh Foundation Alumni Welcome and Conference Center, LLC v. Board of Regents of the University of Wisconsin System, U.S. Bankruptcy Court Eastern District of Wisconsin case number: The Fond du Lac County Circuit Court Voluntary Amortization of Debts ofuw Oshkosh Foundation Rosendale Biodigester, LLC, case number: 18CV

9 The Dane County Cir~uit Court case Board of Regents of the University of Wisconsin System vs. First Business Financial Services, Inc., case number 17CV2965. The Wisconsin Court of Appeals case Board of Regents of the University of Wisconsin System vs. First Business Financial Services, Inc., case number 18AP2202. These lawsuits are collectively the "Lawsuits," WHEREAS, The Parties desire to settle the Lawsuits, all disputes, and all other claims, including but not limited to current and potential litigation, without the cost, expense, and uncertainty of trial and without admission of fault or liability; NOW THEREFORE, in consideration of the monies, mutual promises, and covenants contained herein, the Parties agree as follows: 1. SETTLEMENT AMOUNT. First Business Bank agrees to return the amount of $500,000 to the University of Wisconsin System within 30 days after this Agreement is executed. First Business Bank may retain any other monies taken from the University of Wisconsin Oshkosh deposit account that were at issue in the Lawsuits. 2. DISMISSAL OF LAWSUIT. Within seven days of receipt of the Settlement Amount, FBB and the State shall dismiss their claims in the Dane County Circuit Court case Board of Regents of the University of Wisconsin System vs. First Business Financial Services, Inc., case number l 7CV2965, with prejudice, and the State shall dismiss its petition for leave to appeal in the Wisconsin court of appeals, Board of Regents of the University of Wisconsin System vs. First Business Financial Services, Inc., case number l 8AP RELEASE OF CLAIMS. In exchange for the consideration listed above, the Parties release and forever discharge each other and their successors, and insurers (the "Released Parties") from any and all manner of action or actions (including cause or causes of action, suits, :).3 2

10 debts, covenants, agreements, liabilities, rights, damages, costs, claims of interest, awards of attomey fees, claims and demands of every kind and nature whatsoever, in law or equity, whether based on State or Federal law), that relate to any action or inaction-of the Released Parties or their or employees or agents-relating to the UW-Oshkosh Foundation-Witzel, LLC; the UW Oshkosh Foundation Rosendale Biodigester, LLC; and the UW Foundation Alumni Welcome and Conference Center, LLC, that took place before this Agreement is fully executed. 4. COVENANT NOT TO SUE. This Agreement shall also be deemed a covenant not to sue any of the Released Parties for any of the matters released or discharged by this Agreement, not to file any appeal of any court decision, and not to file any new lawsuits, claims, or complaints in any court, or with any state or federal agency or licensing board, or against the,--- State or any of its successors, agents, and assigns or any former or current employee, if such claims relate to any action or inaction-of the Released Parties or their or employees or agents-that took place on any date before this Agreement is fully executed, as specified in paragraph 3 above. 5. RESERVATION OF RIGHTS. The Pru.ties reserve any and all rights they may have to challenge any future acts of each other. attorneys' fees. 6. COSTS AND ATTORNEYS' FEES. The Parties will bear their own costs and 7. SCOPE OF AGREEMENT. This Agreement shall bind the undersigned and their successors, and assigns. 8. COMPROMISE OF DISPUTED CLAIM. As specified in paragraph 3 above, this Agreement is a full, final, and complete compromise of disputed claims. It is understood and agreed by the undersigned that this settlement is the compromise of disputed claims, that any ,3 3

11 payment made hereunder is not to be construed as an admission of liability on the part of the Released Parties herein, and that said Released Parties deny liability or wrongdoing and intend merely to avoid litigation and buy their peace. 9. INTEGRATION CLAUSE. This is the entire agreement among the Parties and is intended to be the complete and final statement of the Agreement. All proposals, negotiations, and representations, if any, made prior to the date hereof, whether oral or in writing, are merged or superseded by this Agreement. This Agreement can be modified only by a writing signed by all Parties. counterparts. 10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in 11. THIS RELEASE AND SETTLEMENT AGREEMENT HAS BEEN READ AND UNDERSTOOD BY THE UNDERSIGNED BEFORE SIGNING. [Signature Page Follows.]

12 FIRST BUSINESS FINANCIAL SERVICES, INC. Dated: I z O( C, FIRST BUSINESS BANK Dated: /.. ca d- - 'J-.O IC, BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM Dated: J / 23 } Z..O I f ''----- By:~ RaymonCross, President, University of Wisconsin System Dated: ( ' 1. ) \ 1 UW-OSHKOSH FOUNDATION-WITZEL, LLC; THE UW-OSHKOSH FOUNDATION ROSENDALE BIODIGESTERS, LLC; AND THE UW FOUNDATION ALUMNI WELCOME AND CONFERENCE CENTER, LLC By: University of Wisconsin Oshkosh Foundation, Inc. Dated: \ '1- \ l 1 UNIVERSITY OF WISCONSIN OSHKOSH FOUNDATION, INC. By, ~ cl\:- o o_. _ ft: = C' r}2,-";_~';_,½. c, ~

13 MUTUAL RELEASE AND SETTLEMENT AGREEMENT This Mutual Release and Settlement Agreement ("Agreement") is made among the following parties (collectively the "Parties"): including: a. Bank First National; and b. The State of Wisconsin, the Board of Regents of the University of Wisconsin System, the University of Wisconsin Oshkosh, and all employees and agents of those entities (collectively, the "State"). WHEREAS, disputes have arisen among the Parties; and WHEREAS, lawsuits have been filed that involve claims against the State, The Chapter 11 bankruptcy case In re: University of Wisconsin Oshkosh Foundation, Inc., U.S. Bankruptcy Court Eastern District of Wisconsin case number: The bankruptcy adversary proceeding University of Wisconsin Oshkosh Foundation, Inc. v. University of Wisconsin System et al. U.S. Bankruptcy Court Eastern District of Wisconsin case number: The.bankruptcy appeal in the U.S. District Court for the Eastern District of Wisconsin, case number: 18CV1378. The Chapter 11 bankruptcy case In Re: UW Oshkosh Foundation Alumni Welcome and Conference Center, LLC, U.S. Bankruptcy Court Eastern District of Wisconsin case number: The bankruptcy adversary proceeding University of Wisconsin Oshkosh Foundation Alumni Welcome and Conference Center, LLC v. Board of Regents of the University of Wisconsin System, U.S. Bankruptcy Court Eastern District of Wisconsin case: The Fond du Lac County Circuit Court Voluntary Amortization of Debts of UW.Oshkosh Foundation Rosendale Biodigester, LLC, case number: 18CV320. The Dane County Circuit Court case Board of Regents of the University of Wisconsin System vs. First Business Financial Services, Inc., case number 17CV2965.

14 The Wisconsin Court of Appeals case Board of Regents of the University of Wisconsin System vs. First Business Financial Services, Inc., case number 18AP2202. These lawsuits are collectively the "Lawsuits." WHEREAS, the PARTIES desire to settle the Lawsuits, all disputes, and all other claims, including but not limited to current and potential litigation, without the cost, expense, and uncertainty of trial and without admission of fault or liability; NOW THEREFORE, in consideration of the monies, mutual promises, and covenants contained herein, the PARTIES agree as follows: 1. SETTLEMENT AMOUNT. The State agrees to pay the amount of $5.1 million to Bank First National within 30 days after both parties execute this Agreement. 2. DISMISSAL OF LAWSUIT. Within seven days of receipt of the Settlement Amount, Bank First National shall dismiss its claims in the Dane County Circuit Court case Board of Regents of the University of Wisconsin System vs. First Business Financial Services, Inc., case number 17CV2965, with prejudice, and the State shall dismiss its petition for leave to appeal in the Wisconsin court of appeals, Board of Regents of the University of Wisconsin System vs. First Business Financial Services, Inc., case number 18AP RELEASE OF CLAIMS. In exchange for the consideration listed above, First National Bank releases and forever discharges the State and the University of Wisconsin Oshkosh Foundation, Inc.; the UW-Oshkosh Foundation Witzel, LLC; the UW-Oshkosh Foundation Rosendale Biodigesters, LLC; and the UW Foundation Alumni Welcome and Conference Center, LLC (collectively, the 2

15 "Foundation") (together, the "Released Parties") from any and all manner of action or actions (including cause or causes of action, suits, debts, covenants, agreements, liabilities, rights, damages, costs, claims of interest, awards of attorney fees, claims and demands of every kind and nature whatsoever, in law or equity, whether based on State or Federal law), that relate to the subjects of the lawsuits referred to in this Agreement. 4. COVENANT NOT TO SUE. This Agreement shall also be deemed a covenant by Bank First National not to sue any of the Released Parties for any of the matters released or discharged by this Agreement, not to file any appeal of any court decision, and not to file any new lawsuits, claims, or complaints in any court, or with any state or federal agency or licensing board, or against the Released Parties or any of their successors, agents, and assigns or any former or current employee, if such claims relate to any action or inaction-of the Released Parties or their or employees or agents-that took place on any date before this Agreement is fully executed. 5. RESERVATION OF RIGHTS. Bank First National reserves any and all rights it may have to challenge any future acts of the State or Foundation. 6. COSTS AND ATTORNEYS' FEES. Each party will bear its own costs and attorneys' fees. 7. SCOPE OF AGREEMENT. This Agreement shall bind the undersigned and the heirs, executors, administrators, personal representatives, successors, and assigns of the undersigned. 3

16 8. COMPROMISE OF DISPUTED CLAIM. This Agreement is a full, final, and complete compromise of disputed claims. It is understood and agreed by the undersigned that this settlement is the compromise of disputed claims, that any payment made hereunder is not to be construed as an admission of liability on the part of the Released Parties herein, and that said Released Parties deny liability or wrongdoing and intend merely to avoid litigation and buy their peace. 9. INTEGRATION CLAUSE. This is the entire agreement among the Parties and is intended to be the complete and final statement of the Agreement. All proposals, negotiations, and representations, if any, made prior to the date hereof, whether oral or in writing, are merged or superseded by this Agreement. This Agreement can be modified only by a writing signed by all Parties. 10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in counterparts. 4

17 11. THIS RELEASE AND SETTLEMENT AGREEMENT HAS BEEN READ AND UNDERSTOOD BY THE UNDERSIGNED BEFORE SIGNING. BANK FIRST NATIONAL Dated: s/cjt> 19 By:/My~ Kelly Dvorak General Counsel/Corporate Secretary BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM Dated: t/4 /;?ejf'/ 5