Case 2:09-cv TPG ECF No filed 02/17/12 PageID.1700 Page 1 of 8 MUTUAL RELEASE AND SETTLEMENT AGREEMENT

Transcription

1 Case 2:09-cv TPG ECF No filed 02/17/12 PageID.1700 Page 1 of 8 MUTUAL RELEASE AND SETTLEMENT AGREEMENT This Mutual Release and Settlement Agreement (hereinafter Settlement Agreement ) is entered into, among and between The Interlake Steamship Company and its vessel the M/V DOROTHY ANN (hereinafter, Interlake ), on the one hand, and VanEnkevort Tug & Barge, Inc., Great Lakes Marine Leasing, LLC., and the M/V JOYCE L. VANENKEVORT, on the other (collectively hereinafter, VanEnkevort ). This Settlement Agreement shall be dated on the date the last party executes this Settlement Agreement. I. RECITALS A. WHEREAS, Interlake has filed an action against VanEnkevort that is captioned The Interlake Steamship Company v. VanEnkevort Tug & Barge, Inc., et al., United States District Court for the Western District of Michigan Case No. 2:09-cv-74 (hereinafter, the Lawsuit ), the claims alleged by Interlake arise out of allegations of property and related damage that the M/V DOROTHY ANN sustained as a result of a casualty that occurred April 21, 2008 (hereinafter, the Occurrence ), as more fully set forth in the pleadings of the Lawsuit. B. WHEREAS, VanEnkevort asserted and filed certain counterclaims against Interlake in the Lawsuit. C. WHEREAS, VanEnkevort has denied the material allegations made by Interlake in the pleadings of the Lawsuit, denied liability to Interlake and further denied that VanEnkevort committed any wrongful conduct. D. WHEREAS, Interlake has denied the material allegations made by VanEnkevort in the pleadings of the Lawsuit, denied liability to VanEnkevort and further denied that Interlake committed any wrongful conduct. E. WHEREAS, the Lawsuit is pending and undetermined before the Court, and, Interlake and VanEnkevort now desire to resolve the disputes between them by way of compromise and settlement of all claims, whether asserted or not asserted, known or unknown, direct or indirect, liquidated or contingent. II. SETTLEMENT AGREEMENT NOW, THEREFORE, FOR AND IN CONSIDERATION of the promises, covenants, and conditions contained in this Settlement Agreement, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, Interlake and VanEnkevort hereby agree, covenant, and represent as follows: A. Required Payment 1. VanEnkevort, and/or their agents, insurers, or otherwise, shall pay to Interlake the total sum of ONE MILLION, FOUR-HUNDRED THOUSAND and 00/100 DOLLARS ($1,400,000.00) within 30 days of execution of this Agreement. Page 1 of 6

2 Case 2:09-cv TPG ECF No filed 02/17/12 PageID.1701 Page 2 of 8 B. Stipulated Dismissal with Prejudice As soon as practicable Interlake shall cause to be filed a Stipulated Dismissal with Prejudice in the form attached hereto as Exhibit A. C. Mutual Release Interlake and VanEnkevort, individually, and on behalf of their respective officers, employees, servants, attorneys, agents, predecessors, successors, stockholders, security holders, investors, underwriters, lenders, additional insureds, loss payees, subsidiaries, parent companies, affiliated companies, assigns, heirs, executors, administrators, estates, attorneys, representatives, vessels and all other persons (whether individuals, corporations, partnerships, or other legal entities, acting by, through, under, or in concert with Interlake and VanEnkevort, respectively), hereby release, acquit, and forever discharge each other and their respective officers, employees, servants, attorneys, agents, predecessors, successors, stockholders, security holders, investors, underwriters, lenders, additional insureds, loss payees, subsidiaries, parent companies, affiliated companies, assigns, heirs, executors, administrators, estates, attorneys, representatives, vessels and all other persons (whether individuals, corporations, partnerships, or other legal entities, acting by, through, under, or in concert with Interlake and VanEnkevort, respectively), jointly and separately, of and from all actions, claims, causes of action, suits, debts, liabilities, demands, accounts, damages, losses, obligations, complaints, breaches, rights, proceedings, suits in law and equity, contractual claims not relating to this Settlement Agreement, tort claims, statutory claims, common law claims, arbitration claims, property damage or loss, repairs, survey costs, salvage, transportation, towage, drydocking, storage, spoliation, property recover or retrieval, drivers, pollution, business interruption, loss of use, loss of business, loss of property, diminution in value, loss of charter income, overtime, willful and wanton conduct claims, punitive damages claims, attorneys fees claims, interest claims, claims for sanctions and any and all other actions and causes of action of whatsoever kind or nature which Interlake and/or VanEnkevort has, claims to have, or may hereafter have against Interlake and/or VanEnkevort in any way, directly or indirectly, relating to, or arising out of the subject matter of the Occurrence or the Lawsuit. Without limiting the generality of this Mutual Release, Interlake and VanEnkevort acknowledge, that by executing this Settlement Agreement, Interlake and VanEnkevort, respectively, are settling and releasing any and all claims that each may have against the other in any way, directly or indirectly, relating to, or arising out of the subject matter of the Occurrence and/or asserted in the Lawsuit. Interlake and VanEnkevort acknowledge they may have suffered some damages or losses, or had some potential claim to raise, in any way, directly or indirectly, relating to, or arising out of the subject matter of the Occurrence or the Lawsuit that may not have been asserted, or that may not be known at the present time. These possibilities were considered by Interlake and VanEnkevort, respectively, in the course of negotiations leading to this Settlement Agreement. Interlake and VanEnkevort, respectively, acknowledge that a complete, final and full settlement of all of their claims and damages against the other, asserted or not asserted, known and unknown, direct or indirect, liquidated or contingent, in any way, directly or indirectly, relating to, or arising out of the subject matter of the Occurrence and/or the Lawsuit was expressly contemplated and intended by Interlake and VanEnkevort, respectively, in executing this Settlement Agreement. Page 2 of 6

3 Case 2:09-cv TPG ECF No filed 02/17/12 PageID.1702 Page 3 of 8 D. Costs, Expenses and Attorney Fees The Parties shall each bear their own costs, expenses, and attorney fees in any way related to the Lawsuit and/or this Settlement Agreement. E. Governing Law The validity, construction and performance of this Settlement Agreement shall be determined in accordance with the General Maritime Law and statutes of the United States. F. Retention of Exclusive Jurisdiction The parties consent to retention of exclusive jurisdiction by the United States District Court for the Western District of Michigan, and specifically the Honorable Magistrate Judge Timothy Greeley for as long as he shall serve such Court, to resolve any disputes related to enforcement of this Settlement Agreement. The parties agree that proceedings to resolve any disputes or litigation related to enforcement of this Settlement Agreement shall be filed in Case No. 2:09-cv-74, in the United States District Court for the Western District of Michigan. G. Warranty of Capacity to Execute Settlement Agreement Interlake and VanEnkevort, respectively, represent and warrant that no other person or entity has any interest in claims, demands, obligations, or causes of action referred to in the Settlement Agreement and that Interlake and VanEnkevort, respectively, have the sole right and exclusive authority to execute this Settlement Agreement, and that Interlake and VanEnkevort, respectively, have not sold, assigned, transferred, conveyed, or otherwise disposed of any of the claims, demands, obligations, or causes of action referred to in this Settlement Agreement. H. Partial Mutual Indemnification Interlake and VanEnkevort (each as an Indemnifying Party ) further agree to fully defend, protect, indemnify and hold the other (a Released Party ) harmless (including payment of attorneys fees and costs) only if any third party person, firm, law firm or corporation shall assert or attempt to assert any claim against the Released Party released by the Indemnifying Party in this Agreement. I. Return of Letter of Undertaking Interlake further agrees to destroy all copies of the Letter of Undertaking issued by VanEnkevort and its insurers on or about June 2, 2009 (the original was never provided to Interlake or its counsel) and agrees to warrant that it has not sought and will not seek to enforce or otherwise benefit from said Letter of Undertaking, which will be deemed null and void upon the execution of this Agreement. J. Parties in Interest This Settlement Agreement shall be binding upon and inure to the benefit of Interlake and VanEnkevort, respectively, and on behalf of their respective officers, employees, servants, Page 3 of 6

4 Case 2:09-cv TPG ECF No filed 02/17/12 PageID.1703 Page 4 of 8 agents, predecessors, successors, stockholders, security holders, investors, underwriters, lenders, additional insureds, loss payees, subsidiaries, parent companies, affiliated companies, assigns, heirs, executors, administrators, estates, attorneys, representatives, vessels and all other persons (whether individuals, corporations, partnerships, or other legal entities, acting by, through, under, or in concert with Interlake and VanEnkevort, respectively). K. Voluntary and Knowing Assent 1. Interlake and VanEnkevort, respectively, agree that they have carefully read and fully understand all of the provisions of this Settlement Agreement and that they are entering into this Settlement Agreement voluntarily. By signing this Settlement Agreement, Interlake and VanEnkevort, respectively, hereto state that they have read this Settlement Agreement, understand that they are giving up important rights and further understand and agree with everything in it, and have signed it knowingly and voluntarily. 2. Interlake and VanEnkevort, respectively, represent and acknowledge that in executing this Settlement Agreement, they have not relied upon any representations or statements not set forth herein, made by Interlake or VanEnkevort, individually, or by Interlake s or VanEnkevort s respective agents, representatives, or attorneys with regard to the subject matter of this Settlement Agreement. L. No Waiver The failure of Interlake or VanEnkevort to exercise their rights under this Settlement Agreement or to insist upon strict performance of the terms hereof shall not operate as a waiver or preclude such party from later exercising their rights hereunder. M. Drafting This Settlement Agreement reflects the negotiations of Interlake and VanEnkevort and drafting efforts of both Interlake and VanEnkevort, and no construction or interpretation shall take into account the identities of the drafters hereof. N. Headings The headings in this Settlement Agreement are inserted for convenience only and do not control or influence the meaning or interpretation of the terms hereof. O. Effectiveness/Counterparts This Settlement Agreement shall become effective immediately following execution by each of the Parties. This Settlement Agreement may be executed in counterparts, in which case, upon delivery, each such counterpart shall be sufficient as against the party or parties executing it. Further, a facsimile signature of a party to the Settlement Agreement shall have the same force and effect as an original signature. Page 4 of 6

5 Case 2:09-cv TPG ECF No filed 02/17/12 PageID.1704 Page 5 of 8 P. Further Assurances The parties agree to take all reasonable steps necessary to implement and effectuate the terms of this Settlement Agreement. Q. Entire Settlement Agreement This Settlement Agreement and Exhibit A constitute the entire agreement between Interlake and VanEnkevort concerning the subject matter hereof. With the exception of the representations and inducements set forth herein, neither Interlake nor VanEnkevort has relied on any representation or inducement in connection with his entry into this Settlement Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE TO FOLLOW] Page 5 of 6

6 Case 2:09-cv TPG ECF No filed 02/17/12 PageID.1705 Page 6 of 8 IN WITNSS WHREOF, Interlake Steamship Company, the M/V DOROTH ANN, VanEnkevort. Tug & Barge, Inc., Great Lakes Marine Leasing, LLC, and the MI JOYCE L. V ANNKVORT have executed this Settlement Ageement on the dates wrtten below: By: The InterlakeSteamshi /V I ~~"'Qs.vl\' vj~~~ve Printed Name:. Its: C;ec,(-\o.j k ~e.\ c.(\~. VanEnkevort Tug & Barge, Inc. By: Printed Name: Its: Date: te/b. \l, d-o\~ ~~&l~ -t~'lqs tv. W \. A l) - Printed Name: ~ 'Se:(~.. ~eæ\ Û\~l.-\ Its: ~Ç\'" ol.i'er\,\f \~if\a \:e.. S~~'-P~~~ Date: 'Ç \0. \1 ~O\ ~. I Date: Great Lakes Marine Leasing, LLC By: Printed Name: Its: Date: MI JOYCE IJo V ANENKEVORT By: Printed Name: Its: Date: As attorneys for The Interlake Steamship Company, I acknowledge that I and my law firm have received payment from Interlake for servces relating to this matter, and that the settlement proceeds referred to in section II(A)(l) may be paid directly to Interlake. By Tucker Ells & West ~ LLP S' Henr E. Billngsley, II fj g w. ljt~ Attorneys for The Interlake Steamship Company ~ì~s:~ ~ J. f;1f4 cs ) (, Có Page 6 of6

7 Case 2:09-cv TPG ECF No filed 02/17/12 PageID.1706 Page 7 of 8 Kottha, Arun J. From: Sent: To: Cc: Subject: George Velcich <GVelcich@bodpc.com> Friday, February 17, :51 PM Wynne,Thomas Kottha, Arun J.; Billingsley, Henry; Steven Belgrade RE: Release - Execution Copy Tom, Henry & Arun: We can accept the Mutual Release in the form sent to me by Tom at 3:25 pm today. My clients will sign that version. However, I can't get an executed signature page to you today, due to logistical issues. I will have it for you on Monday. So I suggest that today you file the Stipulation to Dismiss with the court, in compliance with the Magistrate's orders. George George M. Velcich Belgrade and O'Donnell, PC 20 North Wacker Suite 1900 Chicago, IL tel: fax: gvelcich@bodpc.com From: Wynne,Thomas [mailto:twynne@interlake-steamship.com] Sent: Friday, February 17, :25 PM To: George Velcich Cc: Kottha, Arun J.; Billingsley, Henry (Henry.Billingsley@TuckerEllis.com) Subject: Release - Execution Copy George, Further to our discussion of a few minutes ago, we are in agreement that the last version of the release that I sent you at 2pm EST is acceptable. I have accepted all of the redline changes in that version to create a clean version, and it is attached hereto. The only change that I made from the one I sent you at 2pm is that I deleted a blank line on the signature page to get it all to fit on one page (so now there are 6 pages instead of 7). I will sign in all of the appropriate places for Interlake and get the document to Arun, with a copy to you. Thanks. Tom 1

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