CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE

Transcription

1 CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE PAGE 15 of 105

2 TABLE OF CONTENTS RECITALS... 1 DEFINITIONS Defined Terms... 6 TERMS AND RELEASES... 9 Preliminary Approval Preliminary Approval Order... 9 Administration and Class Notice Form of Class Notice Co-Lead Class Counsel Duties PAGE 16 of Publication of Class Notice Class Notice Dates Govern Payment of Settlement Administration Costs Class Member Options to Opt Out or Object Opt Outs Plaintiffs Agreement Not to Opt Out or Object Objections Appearance at Final Approval Hearing Injunction and Prohibition of Further Litigation Preliminary Injunction Permanent Injunction Settlement Consideration, Release of Claims by the Class and Dismissal of Action Settlement Consideration Release of Claims Dismissal of Claims with Prejudice Attorney Fee Award i

3 17. Attorneys Fees and Service Awards Final Approval and Judgment Final Order Representations and Warranties No Action to Defeat Jurisdiction of the Court Authority to Settle No Solicitation of Opt-Outs of, or Objections by, Class Members No Opposition to Preliminary Approval Order or Final Order Authority to Execute Agreement/No Assignment Own Judgment and Use of Counsel Construction PAGE 17 of Binding on All (except Excluded Class Members) including Unknown, Unborn, Minors, Successors and Assigns; Third-Party Beneficiaries Right to Withdraw From Agreement Termination of Agreement Effective Date Definition of Final Judgment Timing of Effective Date Confidentiality Exceptions Non-Disparagement Privacy of Documents and Information No Concession or Admission of Fault or Liability; Agreement Not Admissible Additional Provisions Tax Consequences Headings and Captions ii

4 38. No Oral Modifications/No Other Representations Severability Choice of Law Other Accounts/Future Events Dispute Resolution Retained Jurisdiction of the Court; Venue Entire Agreement Counterparts Integration of Exhibits Execution of Additional Necessary Documents PAGE 18 of Delivery; Notice Timing Signature Recitals iii

5 CLASS ACTION SETTLEMENT AGREEMENT AND RELEASE This Class Action Settlement Agreement and Release (the Agreement ) is made and entered into this 2nd day of October, 2017, by and between Plaintiff Linda S. Kagan, and Plaintiff Elliot Samuels, acting as trustee for the Abe Samuels Trust and as the executor of the Estate of Diane Samuels (hereinafter, Plaintiffs ), on behalf of themselves and a class of similarly situated persons as defined below, Bank of America, N.A. (hereinafter the Bank ), David Gail, Rosemont Park, Inc., Waldheim Cemetery Co., and Zion Gardens, Inc. The parties to this Agreement are individually referred to in this Agreement as a Party and collectively as the Parties. Any capitalized term used herein not elsewhere defined shall have the meaning set forth in Section 1 hereof. PAGE 19 of 105 RECITALS This Agreement is entered into with reference to the following facts and recitals, which are true to the best of the Parties knowledge, information and belief, and are made part of this Agreement: WHEREAS, Plaintiffs asserted claims against the Bank, Waldheim Cemetery Co., Zion Gardens, Inc., Rosemont Park, Inc., and David Gail, in the lawsuit captioned under the case styled: Linda S. Kagan, on behalf of plaintiff and a class v. Waldheim Cemetery Co.; Zion Gardens, Inc.; Rosemont Park, Inc.; Bank of America National Association, successor to LaSalle Bank, N.A.; and David B. Gail, Case No. 11-CH-22722, and Elliot Samuels, acting as the trustee for the Abe Samuels Trust, as the executor of the Estate of Diane Samuels, and on behalf of all others similarly situated v. Rosemont Park, Inc., David Gail, Waldheim Cemetery Company, Bank of America, N.A. (successor in interest to LaSalle Bank, N.A.), and Zion Gardens, Inc., Case No. 11-CH (consolidated) (hereinafter referred to as the Kagan/Samuels Action or the Action ) currently pending in the Circuit Court of Cook County, Chancery Division before the Honorable Judge Anna 1

6 Demacopoulos; WHEREAS, Plaintiffs have alleged in the pending Third Amended Consolidated Class Action Complaint, among other things, that Defendants variously knowingly violated the Illinois Cemetery Care Act and, as such, violated the Illinois Consumer Fraud Act by disbursing the corpus of the Cemetery Care Trusts held by Bank of America, N.A. as Trustee for endowed care at the Cemeteries as defined in Section 1(c) below; failing to deposit proceeds into the Cemetery Care Trusts held by Bank of America, N.A.; repudiating the endowed care contracts, and requesting additional payments for the same services, including but not limited to purchasing second endowed care contracts and/or paying annual maintenance fees in order to receive a semblance of the endowed care services they initially contracted and paid to be performed; PAGE 20 of 105 WHEREAS, the Kagan/Samuels Action involves a controversy with respect to Illinois real estate, namely cemetery lots, graves and appurtenances thereto and is governed by the law of the State of Illinois; WHEREAS, various Defendants asserted claims against one another; WHEREAS, each of Defendants vigorously denies Plaintiffs allegations and dispute both the legal and allegedly factual foundations of the claims, and deny any and all wrongdoing or liability in connection with the Action, including all claims that have or could have been alleged against them in the Kagan/Samuels Action; WHEREAS, the Defendants have specific legal and factual defenses including those described below, as they pertain to some of the Defendants; WHEREAS, for purposes of settlement only, none of the Parties takes a position on the accuracy or validity of any position asserted by any other Party, except that Rosemont does not agree with certain of the below statements; 2

7 WHEREAS, Defendants Zion Gardens, Inc. and Waldheim Cemetery Co. contend, among other matters, (a) Zion Gardens, Inc. was not formed and did not exist at the time of the dissipation of the Cemetery Care Trusts (defined below); (b) Waldheim Cemetery Co. had no knowledge of any of the wrongdoing at the time it took place; (c) that prior to March 1, 2011, the Comptroller, an Illinois official regulating cemeteries, found that Rosemont Park, Inc. and its managed cemeteries were insolvent, and pursuant to her powers under an Illinois statute known as the Cemetery Care Act, requested Waldheim Cemetery Co. to assume control of those Cemeteries; (d) that in pursuit of complying with the Comptroller s request, Waldheim Cemetery Co. formed Zion Gardens, Inc.; (e) Zion Gardens, Inc. entered into an agreement as of March 1, 2011 succeeding to the ownership of all assets of Rosemont Park, Inc. and its three associated PAGE 21 of 105 cemeteries, collectively renamed Zion Gardens, free of their respective liabilities (including those contained in its endowed care contracts), on certain conditions, including that Zion Gardens, Inc. restore the approximately $1.2 million loss of the principal of the endowed care fund held in trust by the Bank of America within 8 to 10 years and was permitted to solicit lot and grave owners for new funds (including in the form of new endowed care contracts) in order so to do; (f) that in no event was the amount dissipated from the Cemetery Care Trusts adequate to perform the endowed care contracts as originally entered into, thereby rendering the endowed care contracts impossible to perform in any event, and further, because the Cemetery Care Act provides that care is limited to the net income, Zion Gardens, Inc. effectively could not perform the original endowed care contracts because there was not sufficient principal so to do; (g) the Comptroller specifically approved the agreement and issued a license to Zion Gardens, Inc., thereby absolving Zion Gardens, Inc. of any liability; (h) prior to communicating the proposal resulting in her approval of the transfer to Zion Gardens, Inc., the Comptroller had exhausted all 3

8 other statutory means at her disposal to remedy the loss in question, and (i) after taking ownership and possession pursuant to the conditions approved by the Comptroller, Zion Gardens, Inc. restored the aforesaid loss in approximately 3 years. Upon assuming ownership and possession, Zion Gardens, Inc. discovered that substantially all of the predecessor Cemeteries records were missing. Waldheim Cemetery Co. was never a party to the transaction; WHEREAS, Defendant Bank of America, N.A. (the Bank ), contends that it fully complied with its obligations under Illinois law and the trust agreement, and did not improperly disburse trust principal. The Bank also contends that neither any Plaintiff nor any member of the Class has suffered any recoverable damages due to any act or omission by the Bank. After Rosemont Park, Inc. ("Rosemont") failed to file its annual reports for several years, its financial PAGE 22 of 105 difficulties were identified by the Illinois Comptroller. The Illinois Comptroller's Office ("the Comptroller") audited Rosemont and determined that the purchase of the cemeteries by a new operator with a larger care fund was in the best interest of the public and those whose loved ones are interred at the cemeteries. Pursuant to its authority under the Cemetery Care Act ("the Care Act"), 760 ILCS 100/1 et seq., the Comptroller brokered the sale of the cemeteries to Zion Gardens, Inc. ("Zion") in exchange for a commitment from Zion that Zion would restore the cemeteries' care funds. Zion has replenished the cemeteries' depleted care funds and is currently operating and maintaining the cemeteries. As a result, the Bank contends that the Plaintiffs are in no worse position than they would be if trust principal had not been disbursed. Due to the Comptroller's successful handling of the situation pursuant to its authority under the Care Act, as intended by the legislature, the Bank maintains there is no identifiable harm to any of the Plaintiffs or to any Class member. It is also not disputed that most if not all of the withdrawn funds were used for the care and maintenance of the cemeteries, a further reason that the Bank 4

9 contends that neither any of the Plaintiffs nor any member of the Class has suffered any recoverable harm; WHEREAS, the Parties, through their counsel, have engaged in vigorous, multiple armslength negotiations that led to this Agreement, and have reached an agreement to compromise and settle all controversies and matters now pending between them relating to the Cemetery Care Trusts (defined below), including, but not limited to, the Kagan/Samuels Action, on the terms set forth below, subject to approval by the Court; WHEREAS, Plaintiffs are represented in the Kagan/Samuels Action by Edelman, Combs, Latturner & Goodwin, LLC and Heffner Hurst (collectively Co-Lead Class Counsel ); the Bank is represented in the Kagan/Samuels Action by McDermott Will & Emery LLP; David Gail and PAGE 23 of 105 Rosemont Park, Inc. are represented by The Law Office of William J. Factor; and Zion Gardens, Inc. and Waldheim Cemetery Co. are represented by Jack Joseph and Sarah J. Isaacson; WHEREAS, the Plaintiffs and Co-Lead Class Counsel have concluded, after carefully considering the circumstances of the case, including the claims asserted and remaining after the decision of the Illinois Appellate Court in Kagan v. Waldheim Cemetery Co., 2016 IL App (1st) (1st Dist. 2016), and possible legal and factual defenses thereto, that the terms referenced in this Agreement are fair, reasonable, and adequate and in the best interests of the Plaintiffs and all members of the Class; WHEREAS, the Bank, David Gail, Rosemont Park, Inc., Waldheim Cemetery Co., and Zion Gardens, Inc., despite the belief of each Defendant that the claims in the Kagan/Samuels Action against said Defendant lack merit and that each Defendant has full and complete defenses to each such claim against that Defendant, have all agreed to enter into this Agreement to avoid further expense, inconvenience, and distraction of litigation, and thereby to put these claims to rest; 5

10 WHEREAS, the Parties recognize that the Comptroller of the State of Illinois is an official of the State of Illinois charged with regulating cemeteries under the Cemetery Care Act; WHEREAS, this Agreement is entered into to effect, upon Court approval, a full and final settlement and dismissal with prejudice of all claims asserted in the Kagan/Samuels Action; NOW, THEREFORE, the Parties agree as follows: DEFINITIONS 1. Defined Terms. As used in this Agreement, the following terms shall be defined as follows: (a) Agreement means this Class Action Settlement Agreement and Release, including all attachments and exhibits. The term shall include any amendments to the Agreement or to the attachments and exhibits, as long as such amendments are in writing, agreed to by all Parties and conform to the requirements of this Agreement. PAGE 24 of 105 (b) Bank means Bank of America, N.A. (c) Cemeteries means cemeteries formerly owned or operated by Rosemont Park, Inc., including without limitation Rosemont Park, Mt. Mayriv-Isaiah Israel, B nai Jehoshua Beth Elohim, and B nai Brith cemeteries located at 3600 North Narragansett Avenue, Chicago, Illinois Prior to March 1, 2011, the Cemeteries were owned by four entities and consisted of four separate cemeteries: Rosemont (a/k/a Rosemont Park), owned by Rosemont Park, Inc., and three adjacent cemeteries under long-term management contracts with Rosemont Park, Inc., including Mt. Mayriv-Isaiah Israel, B nai Joshua Beth Elohim, and B nai Brith. For more than a decade prior to March 1, 2011, Defendant David Gail was managing officer of Rosemont Park, Inc. As of March 1, 2011, the Cemeteries are owned by Zion Gardens, Inc. and operated as the Zion Gardens Cemetery. (d) Cemetery Care Trusts or Trusts means any cemetery care trust established pursuant to 760 ILCS 100/1 et seq. which trust is identified in any pleading in the Kagan/Samuels Action, including without limitation the trust established pursuant to the January 1, 2000 Cemetery Care Trust Agreement for Rosemont Park, Inc. between Rosemont Park, Inc. and LaSalle Bank, N. A. (a Bank predecessor) and any other cemetery care trust for any of the Cemeteries of which the Bank or any predecessor in interest served at any time as trustee, including without limitation Rosemont Park, Mt. Mayriv-Isaiah Israel, B nai Jehoshua Beth Elohim, and B nai Brith cemeteries. (e) Co-Lead Class Counsel means Edelman, Combs, Latturner & Goodwin, LLC, and Heffner Hurst. (f) Class means all persons or entities, including without limitation estates, trusts, heirs, descendants, next of kin and other relatives, who prior to March 1, 2011 entered into 6

11 endowed care (popularly known as perpetual care) contracts, or who otherwise paid any money for endowed care that should have been deposited in the Cemetery Care Trusts held by Bank of America, N.A. (successor in interest to LaSalle Bank, N.A.) as Trustee, and/or made additional payments for the same services after March 1, 2011 that were previously paid for prior to that date for the care of lots and/or gravesites and/or appurtenances thereto in any of the four Cemeteries referred to in Section 1(c) above. Class. (g) Class Member or Class Members means a member or members of the (h) Class Notice means any of the forms of publication notice of the Settlement provided to Class Members which is attached as Exhibit A to this Agreement. (i) Class Notice Date means the first publication date of the Class Notice as set forth in Section 6 of this Agreement. (j) Class Representatives are the Plaintiffs, once the Court has certified the Class for purposes of settlement and appointed them as Class Representatives in the Preliminary Approval Order. PAGE 25 of 105 (k) Court means the Circuit Court of Cook County, Chancery Division. (l) Defendants means Bank of America, N.A., David Gail, Rosemont Park, Inc., Waldheim Cemetery Co., and Zion Gardens, Inc. (m) Effective Date means the date on which all conditions of Section 28 have been met. (n) Excluded Class Members are those Class Members who have validly excluded themselves from the Class pursuant to Section 8 hereof. (o) Fee Application shall have the meaning set forth in Section 17 hereof. (p) Final Approval Hearing means the hearing set by the Court, where, among other things, the Court, in its discretion, will provide for any Class Member who wishes to object to the fairness, reasonableness or adequacy of this Agreement, the proposed Settlement, the appointment of Named Plaintiffs Linda S. Kagan and Elliot Samuels as Class Representatives, the requested Attorney Fee Award and/or the Service Awards to Named Plaintiffs Linda S. Kagan and Elliot Samuels, an opportunity to be heard, and will decide whether to issue a Final Approval Order. The date of the Final Approval Hearing will be set by the Court and communicated to Class Members by the Class Notice. (q) Final Order or Final Approval Order means the order or orders of the Court entered at or after the Final Approval Hearing giving final approval to the terms of the Settlement as fair, reasonable, and adequate and in the best interests of the Class in the Kagan/Samuels Action as defined above. (r) Gail means David Gail. 7

12 (s) Service Award means the award of $5,000 each that Co-Lead Class Counsel may apply to the Court pursuant to Section 17 of this Agreement for the efforts of Named Plaintiffs Linda S. Kagan and Elliot Samuels for serving as Class Representatives. (t) Kagan/Samuels Action means the lawsuit pending with the Court captioned under the case styled: Linda S. Kagan, on behalf of plaintiff and a class v. Waldheim Cemetery Co.; Zion Gardens, Inc.; Rosemont Park, Inc.; Bank of America National Association, successor to LaSalle Bank, N.A.; and David B. Gail, Case No. 11-CH-22722, and Elliot Samuels, acting as the trustee for the Abe Samuels Trust, as the executor of the Estate of Diane Samuels, and on behalf of all others similarly situated v. Rosemont Park, Inc., David Gail, Waldheim Cemetery Company, Bank of America, N.A. (successor in interest to LaSalle Bank, N.A.), and Zion Gardens, Inc., Case No. 11-CH (consolidated). (u) Named Plaintiffs or Plaintiffs means Linda S. Kagan, and Elliot Samuels, acting as trustee for the Abe Samuels Trust and as the executor of the Estate of Diane Samuels, acting for themselves and as Class Representatives. (v) Objection means any Settling Class Member s written objection to the proposed Final Approval Order in accordance with Section 10 herein. PAGE 26 of 105 (w) Parties means the Bank, Plaintiffs, David Gail, Rosemont Park, Inc., Waldheim Cemetery Co., and Zion Gardens, Inc. (x) Preliminary Approval Order means the order or orders of the Court approving the terms and conditions of this Agreement and the Settlement for purposes of providing Class Notice as defined above. Agreement. (y) Release means the release of claims set forth in Section 15 of this (z) Released Claims means those claims that are subject to the Release identified in Section 15 of this Agreement. (aa) Rosemont means Rosemont Park, Inc. (bb) Settlement or Class Action Settlement means the resolutions of the matters within the scope of this Agreement and the Release set forth herein. Members. (cc) Settling Class Members are Class Members who are not Excluded Class (dd) Bank and Gail. Cash Settlement Fund shall mean the payments made by Defendants (ee) Net Cash Settlement Fund means the amount after deducting Courtawarded attorney s fees, expenses, Service Awards, and notice costs from the Cash Settlement Fund. 8

13 (ff) Total Settlement Value is $1.17 million and is comprised of the Cash Settlement Fund and commitment of $150,000 by Zion pursuant to Section 14(c). Cemetery Co. above. (gg) (hh) (ii) Waldheim means Waldheim Cemetery Co. Zion means Zion Gardens, Inc., a subsidiary of defendant Waldheim Zion Gardens Cemetery means the cemetery as defined in Section 1(c) (jj) Zion Gardens Trust means a separate trust fund containing the Net Cash Settlement Fund for capital improvements at Zion Gardens Cemetery, to be created and administered by Zion Gardens, Inc. pursuant to Section 14(c) to this Agreement. The Zion Gardens Trust shall be maintained at an insured financial institution in Illinois. TERMS AND RELEASES Preliminary Approval PAGE 27 of Preliminary Approval Order. As soon as reasonably possible after the execution of this Agreement, Plaintiffs shall file a Motion with the Court substantially in the form of Exhibit C hereto seeking a Preliminary Approval Order preliminarily approving the Settlement, appointing the Plaintiffs as Class Representatives, and conditionally certifying the Class for settlement purposes which: (a) Preliminarily approves the Settlement in this Agreement as sufficiently fair, reasonable, and adequate to provide Class Notice to the Class; (b) Provides that Co-Lead Class Counsel will administer the Settlement in accordance with this Agreement; (c) Certifies the Class for purposes of settlement and appoints Plaintiffs as Class Representatives; (d) (e) Approves the forms of Class Notice; Directs that Class Notice be published as described below; (f) Determines that the Class Notice and the notice methodology proposed to be implemented pursuant to this Agreement (i) constitute the best practicable notice, (ii) are reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Kagan/Samuels Action, their rights to remain in, or to exclude themselves from, the Class, and to object to the proposed Settlement, (iii) are reasonable and constitute due, adequate, and sufficient notice to all persons entitled to receive notice, and (iv) meet all applicable requirements of Due Process; 9

14 (g) Requires Co-Lead Class Counsel to file proof of publication of Class Notice at or before the Final Approval Hearing; (h) Requires each Class Member who wishes to be deemed an Excluded Class Member to comply with Section 8 of this Agreement; (i) Preliminarily enjoins all Settling Class Members from taking certain actions, as provided in Section 12 hereof; (j) Rules that each Class Member will be bound by all proceedings, orders, and judgments in the Kagan/Samuels Action unless and until such Class Member completes all the steps needed to become an Excluded Class Member; (k) Provides that each Settling Class Member who wishes to object to the fairness, reasonableness, or adequacy of this Agreement, the proposed Settlement, the appointment of the Plaintiffs (or any one or more of them) as Class Representatives, the Service Awards, or the Attorney Fee Award, must file and serve an objection ( Objection ), in compliance with Section 10 hereof, or be forever barred from raising an Objection; PAGE 28 of 105 (l) Requires each Settling Class Member who files and serves an Objection in compliance with Section 10 hereof and who wishes to appear at the Final Approval Hearing, either in person or through personal counsel hired at the Class Member s expense, to argue in favor of that Settling Class Member s Objection, to file and serve an appearance and a notice of intention to appear in person to argue at the Final Approval Hearing in compliance with Section 11 hereof; (m) Schedules a Final Approval Hearing; (n) Contains any additional provisions, as agreed to by the Parties that might be necessary to implement the terms of this Agreement; (o) Provides that Gail shall pay $30,000 to Co-Lead Class Counsel in accordance with Section 14(b) of this Agreement not later than 15 days after Preliminary Approval to be held in trust pending entry of the Final Approval Order; and (p) Finds the Kagan/Samuels Action involves a controversy with respect to Illinois real estate, namely cemetery lots, graves and appurtenances thereto and is governed by the law of the State of Illinois. Administration and Class Notice 3. Form of Class Notice. The Parties agree that the Class Notice will be given by publication in the form attached as Exhibit A hereto. Any putative Class Member who inquires in response to the published Class Notice will be mailed or ed the Long-Form Notice attached as Exhibit B hereto. The Parties agree that they shall change the form or contents of the Class Notice and Long-Form Notice to conform to any requirements of the Court. Additionally, pursuant to the recommendation of the Court, Zion Gardens, Inc. agrees to make copies of the Long-Form Notice available in its office at Zion Gardens Cemetery. 10

15 4. Co-Lead Class Counsel Duties. Co-Lead Class Counsel will perform (i) publication of the Class Notice; (ii) any mailings to persons responding to the publication notice; (iii) responding, as necessary, to inquiries from Class Members and potential Class Members; (iv) providing to counsel for Defendants within five (5) business days of receipt copies of all Objections, notices of intention to appear, and requests for exclusion from the Settlement; (v) preparing a list of all Excluded Class Members and submitting an affidavit attesting to the accuracy of that list (the Opt Out List ); and (vi) preparing a list of all persons who submitted Objections to the settlement and submitting an affidavit attesting to the accuracy of that list. Defendants will supply all information and data reasonably available and necessary to implement such responsibilities under this Agreement. 5. Publication of Class Notice. The Class Notice attached hereto as Exhibit A shall be published in the Chicago Jewish News for at least three insertions and shall occupy a full page in each of said publications. PAGE 29 of Class Notice Dates Govern. The dates set forth in the Class Notice, including any subsequent changes ordered by the Court, shall be binding on all Class Members. No Party shall have any duty to give notice to any Class Member of any application to the Court to change any date, nor of any order of the Court making any such change, except to any Class Member inquiring about the status of the Settlement. 7. Payment of Settlement Administration Costs. Upon execution of this Agreement by all Parties, all costs of administration of the Settlement, including without limitation the costs of publication of the Class Notice, shall be paid solely from the Cash Settlement Fund. The Bank shall advance the publication costs, not to exceed $10,000, by delivering $10,000 (to be credited against the payment due pursuant to Section 14(a)) to Co-Lead Class Counsel within 10 days after the entry of the Preliminary Approval Order. Class Member Options to Opt Out or Object 8. Opt Outs. All Class Members shall have forty (40) days from first publication of the Class Notice to file a written request for exclusion with the Clerk of the Circuit Court of Cook County, Chancery Division, Daley Center, 50 West Washington Street, 8 th Floor, Chicago, Illinois and serve via mail on all counsel of record in accordance with Section 48 of this Agreement to be deemed an Excluded Class Member. All requests for exclusion shall be prepared and directed in the manner set forth in this Section. A request for exclusion must including the following information: (i) the Class Member s full name, current address and phone number; (ii) the name and case number identified for this Action; (iii) identification of the lot, grave and/or appurtenance thereto for which perpetual or endowed care was purchased; (iv) when any perpetual or endowed care contract was purchased; (v) identification of how the person seeking exclusion is connected to the payment of any prior, or any subsequent, perpetual or endowed care contract for that lot, grave and/or appurtenance thereto; (vi) a statement that all of the above are made under the penalties of perjury and (vii) unequivocally state an intention not to participate in the Settlement. All requests for exclusion must be file-stamped, postmarked and mailed to all counsel of record in accordance with Section 48 herein within the same forty (40) days from the first publication of Class Notice. If a Class Member timely and properly requests exclusion from the Class in accordance with this Section, that Class Member shall be excluded from the Settlement. 11

16 Any Class Member who does not submit a request for exclusion that meets the requirements of this Section and the Class Notice and/or Long Form Notice, or as required by the Court, shall be bound by this Agreement and the Release. 9. Plaintiffs Agreement Not to Opt Out or Object. The Named Plaintiffs, Linda S. Kagan and Elliot Samuels, agree that they shall not seek to become Excluded Class Members, nor to file any Objection to the proposed Settlement. PAGE 30 of Objections. Any Settling Class Member, except a Named Plaintiff, may assert one or more written Objections to the fairness, reasonableness, or adequacy of this Agreement, the proposed Settlement, the appointment of Named Plaintiffs Linda S. Kagan and Elliot Samuels as Class Representatives, the requested Attorney Fee Award and/or Service Awards to Named Plaintiffs Linda S. Kagan and Elliot Samuels within forty (40) days from first publication of the Class Notice to file such Objection with the Clerk of the Circuit Court of Cook County, Chancery Division, Daley Center, 50 West Washington Street, 8 th Floor, Chicago, Illinois and shall serve a file-stamped copy of same on all counsel of record in accordance with Section 48 of this Agreement postmarked within the same forty (40) days. Objections shall be prepared and directed in the manner set forth in this Section. To be considered by the Court, the Objection must include the following information: (i) the Class Member s full name, current address and phone number; (ii) the name and case number identified for this Action; (iii) identification of the lot, grave and/or appurtenance thereto for which perpetual or endowed care was purchased; (iv) when any perpetual or endowed care contract was purchased; (v) identification of how the person making the objection is connected to the payment of any prior, or any subsequent, perpetual or endowed care contract for that lot, grave and/or appurtenance thereto; (vi) a statement that all of the above are made under the penalties of perjury; and (vii) a statement of the objection or objections, as well as the specific legal and factual reasons, if any, for each Objection, including any evidence or other material the objecting Settling Class Member wishes to introduce in support of such Objection and a statement of the reasons why the Settling Class Member believes that the Court should find the proposed Settlement is not in the best interest of the Class. Any Settling Class Member who has not timely submitted an Objection in accordance with the requirements of this Section shall be forever barred from raising an Objection, and shall be treated as having consented to the Settlement and to the terms of this Agreement. Any other Party may file a response to any Objection and serve all counsel of record in accordance with Section 48 herein as well as the Objector no more than 7 days before the Final Approval Hearing, unless otherwise directed by the Court. Further proceedings in connection with any and all Objections may take place pursuant to the Illinois Civil Practice Act and the Rules of the Illinois Supreme Court. 11. Appearance at Final Approval Hearing. Any Settling Class Member who has filed an Objection to the Settlement and who wishes to appear at the Final Approval Hearing to argue in favor of such Objection, whether in person or through counsel, must file an appearance and notice of intention to appear in person to argue at the Final Approval Hearing with the Clerk of the Circuit Court of Cook County, Chancery Division, Daley Center, 50 West Washington Street, 8 th Floor, Chicago, Illinois and mail file-stamped copies of such notice to Co-Lead Class Counsel and counsel for the Defendants in accordance with Section 48 herein no later than ten (10) days before the Final Approval Hearing or as the Court may otherwise direct. 12

17 Injunction and Prohibition of Further Litigation 12. Preliminary Injunction. The Parties agree that a stipulated preliminary injunction shall be entered by the Court as part of the Preliminary Approval Order that enjoins all Settling Class Members from: (i) filing, commencing, prosecuting, intervening in, or participating as a plaintiff, claimant, or class member in any other lawsuit or administrative, regulatory, arbitration, or other proceeding in any jurisdiction based on, relating to, or arising out of the claims and causes of action, or the facts and circumstances alleged in the Kagan/Samuels Action and/or relating to the Released Claims; (ii) filing, commencing, or prosecuting a lawsuit or administrative, regulatory, arbitration, or other proceeding as a class action on behalf of any Class Members (including by seeking to amend a pending complaint to include class allegations or seeking class certification in a pending action), based on, relating to, or arising out of the claims and causes of action, or the facts and circumstances relating thereto, asserted or alleged in the Kagan/Samuels Action and/or the Released Claims; and (iii) attempting to effect a mass opt-out of Class Members or a class of individuals for claims and causes of action included within the Released Claims. PAGE 31 of Permanent Injunction. The Parties agree that a stipulated permanent injunction shall be entered by the Court as part of the Final Order that bars and permanently enjoins all Settling Class Members from filing, commencing, prosecuting, intervening in, continuing, or participating as a plaintiff, claimant, or class member in any other lawsuit or administrative, regulatory, arbitration, or other proceeding in any jurisdiction based on, relating to, or arising out of the claims and causes of action asserted in, or the facts and circumstances alleged in, the Kagan/Samuels Action and/or relating to the Released Claims. Settlement Consideration, Release of Claims by the Class and Dismissal of Action 14. Settlement Consideration. (a) The Bank agrees to pay $990,000 (less any amounts advanced for publication expenses pursuant to Section 7, above) to be held in trust by Co-Lead Class Counsel not later than 5 days after the Effective Date, provided IRS Form W-9 s from Co-Lead Class Counsel have previously been timely delivered to the Bank. Co-Lead Class Counsel will hold all funds paid by the Bank (not used for publication expenses pursuant to Section 7) in trust until the first to occur of (1) the Final Judgment (as defined in Section 29, below), or (2) termination of the Agreement (pursuant to Section 27, below). (b) Gail agrees to pay $30,000 to be held in trust by Co-Lead Class Counsel not later than 15 days after the Preliminary Approval Order has been entered. Gail also agrees to provide an affidavit to Co-Lead Class Counsel and counsel for the Bank, Zion Gardens, Inc. and Waldheim Cemetery Co. in advance of the Parties execution of this Agreement detailing his and Rosemont s assets from 2009 to present. Gail and Rosemont acknowledge that Plaintiffs settlement is made in direct reliance on this affidavit. If it is later discovered that Gail has more than $75,000 in assets, at any point from 2009 to present, that have not been disclosed, Plaintiffs may elect to vitiate the settlement with Gail and Rosemont, and any and all Releases of Rosemont and Gail set forth in Section 15 herein would be null and void, and any and all further recovery by Plaintiffs from Rosemont and Gail would be dealt with consistent with the provisions herein (i.e., 13

18 any recovery of funds would be paid in trust to Co-Lead Class Counsel and made part of the Cash Settlement Fund and otherwise handled in accordance with this Settlement Agreement). (c) Zion agrees to the following: (i) A commitment of $150,000 in capital improvements at Zion Gardens Cemetery, assuming that it receives at least $600,000 from the Net Cash Settlement Fund; (ii) After receipt of a W-9 from Zion and Final Judgment, Co-Lead Class Counsel shall promptly turn over to Zion the Net Cash Settlement Fund and these funds will be held in a separate account and placed in a safe investment vehicle (the Zion Gardens Trust ); (iii) The funds in the Zion Gardens Trust will be used for capital improvement projects at Zion Gardens Cemetery; PAGE 32 of 105 (iv) Zion would expend at least 1/3 of the total amount each year (e.g., if $600,000 from the Net Cash Settlement Fund, and $150,000 matching from Zion, Zion would spend $250,000/year on capital improvements) unless a waiver is granted by Co-Lead Class Counsel. Any amounts over 1/3 spent in earlier years would be credited against subsequent years (e.g., using prior example, if $350,000 was spent in 1 st year, the minimum 2 nd year would be $150,000); (v) All such capital improvement projects at Zion Gardens Cemetery from the Zion Gardens Trust must be approved by Co-Lead Class Counsel, whose consent is not to be unreasonably withheld, after documentation of the cost is submitted by Zion. Requests shall be responded to within 10 business days. Upon approval of Class Counsel (approval by one of Co-Lead Class Counsel is sufficient), and at the start of each individual capital improvement project, Zion will remove the funds from the Zion Gardens Trust for that project; (vi) Zion will have three (3) years from Final Judgment to exhaust the Zion Gardens Trust for capital improvement projects at Zion Gardens Cemetery; (vii) If any funds remain in the Zion Gardens Trust after the three (3) year period has expired, Co-Lead Class Counsel and/or counsel for Zion will petition the Court in order for the Court to determine how these funds should be applied; (viii) Zion will receive credit for a capital project that may be undertaken before final approval in the amount of $40,300. Such project will be credited to the final year. If approval is not given to the settlement, Zion will exclusively bear the cost of this project; and 14

19 (ix) Zion may petition the Court for redress in the event that the action of Co-Lead Class Counsel in connection with this Section 14(c) are unlawful, inequitable, an abuse of discretion or otherwise unjust or unreasonable. (d) Waldheim agrees to guarantee that any funds transferred to Zion will be maintained and applied in accordance with this Settlement. (e) Defendants have no authority over the actions of Co-Lead Class Counsel, and have no duty to oversee, and shall not be liable to any person or entity for the disposition of the Cash Settlement Fund or any act or failure to act of the Co-Lead Class Counsel with respect to the Cash Settlement Fund or this Agreement, other than what is provided for in this Agreement. Each of the Defendants have a right to enforce provisions of this Agreement affecting that Defendant, even if it has no obligation so do to. 15. Release of Claims. In consideration of the covenants contained herein, the sufficiency of which are hereby expressly acknowledged: PAGE 33 of 105 (a) Plaintiffs, individually, and on behalf of the Settling Class Members, and on behalf of each of them and their current, former and future agents, heirs, assigns, successors, beneficiaries, representatives, executors, administrators, spouses, descendants (whether minor or adult, known or unknown, in being or not yet born), insurers, attorneys, and any other person under each Plaintiff s control or each Settling Class Member s control or any third party and any person claiming by, through or under any one or more of them now or in the future, hereby waive, release and forever discharge the Bank; its past, current and future parents, subsidiaries, and affiliates (including but not limited to Bank of America Corporation); and each of their current, former and future officers, directors, employees, parent companies, affiliates, divisions, predecessors, successors, subsidiaries, administrators, insurers, sureties, assigns, representatives, agents, heirs, attorneys, general and limited partners, and independent managers, as well as any past, present, or future person or entity that had a fiduciary or investment management relationship with the Cemetery Care Trusts and all of its subsidiaries and affiliates, in each case in any individual, corporate, fiduciary, or any other capacity, from and against any and all claims, demands, actions or causes of action, liabilities, debts, damages, or obligations of any kind whatsoever, whether presently known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, which Plaintiffs and Settling Class Members had, now have, or claim to have, in connection with any acts taken or omissions of the Bank while serving as trustee of any of the Cemetery Care Trusts up to, and including, the date this Agreement is approved by the Court. (b) Plaintiffs, individually, and on behalf of the Settling Class Members, and on behalf of each of them and their current, former and future agents, heirs, assigns, successors, beneficiaries, representatives, executors, administrators, spouses, descendants (whether minor or adult, known or unknown, in being or not yet born), insurers, attorneys, and any other person under each Plaintiff s control or each Settling Class Member s control or any third party and any person claiming by, through or under any one or more of them now or in the future, release Zion Gardens, Inc., Waldheim Cemetery Co., David Gail and Rosemont Park, Inc., and each of their current, former and future officers, directors, employees, parent companies, affiliates, divisions, predecessors, successors, subsidiaries, administrators, insurers, sureties, assigns, representatives, agents, heirs, attorneys, general and limited partners, and independent managers, as well as any 15

20 past, present, or future person or entity that had a fiduciary or investment management relationship with the Cemetery Care Trusts from all claims that were or could have been asserted in this Action. Released claims include claims with respect to contracts entered into prior to March 1, 2011, claims for services under contracts entered into prior to March 1, 2011, claims for second payment or annual fees for the same services initially contracted for and paid prior to March 1, 2011, and any other claims or requests for relief asserted against any of the Defendants in this action. Nothing herein affects the obligations of Zion Gardens, Inc. with respect to agreements entered into by it subsequent to the execution and Comptroller approval of Zion s agreement to purchase the assets of the Cemeteries, free of their respective liabilities, with an operative date of March 1, PAGE 34 of 105 (c) The Bank, Zion Gardens, Inc., Waldheim Cemetery Co., David Gail and Rosemont Park, Inc., release all claims against each other and/or Plaintiffs that were or could have been asserted in this Action and the Related Action, namely Zion Gardens, Inc. v. Bank of America, N.A., Case No. 11 CH 33936, pending in the Circuit Court of Cook County, Illinois, Chancery Division. By entering into this Agreement, Defendants do not admit any liability to Plaintiffs, the Class, or any other person or entity including but not limited to any Defendant herein, and expressly deny all such liability. However, in the event the Court does not approve this Agreement and/or a triggering event in this Agreement takes place, including but not limited to vacating, terminating or withdrawing from this Agreement, the Settlement Agreement will be vacated without prejudice to any Party s position on any of the issues in this Action and the Parties shall be restored to their litigation positions existing immediately before the execution of this Agreement; the facts and terms of this Agreement shall not be used in any way or be admissible in any subsequent proceedings in this Action or in any other action, and Defendants will retain all rights to oppose, appeal, or otherwise challenge, legally or procedurally, class certification or any other issue in this Action, including, but not limited to, contesting certification of the Class provided for in this Action. (d) Without limiting the scope of the Released Claims defined above, the Released Claims include any and all claims for attorneys fees, costs, or disbursements incurred by Co-Lead Class Counsel or any other counsel representing Plaintiffs or any Settling Class Members, or by Plaintiffs or Settling Class Members, or any of them, in connection with or related in any manner to the Kagan/Samuels Action, the settlement of the Kagan/Samuels Action, the administration of such settlement, and/or the Released Claims. (e) Plaintiffs and the Settling Class Members expressly acknowledge that they are familiar with principles of law such as Section 1542 of the Civil Code of the State of California, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. To the extent that California or the law of any other State or territory of the United States, or principle of common law or equity, which is similar, comparable or equivalent to Section 16

21 1542 of the California Civil Code, may be applicable notwithstanding the choice of law provisions in this Agreement and this Court s finding that Illinois substantive law applies, Plaintiffs and the Settling Class Members knowing and voluntarily waive and relinquish the provisions, rights, and benefits of Section 1542 of the Civil Code of the State of California and all similar applicable federal or State laws, rights, rules, or legal principles to the fullest extent permitted by law. Plaintiffs and the Settling Class Members acknowledge that they are aware that they may later discover claims presently unknown or unsuspected or facts in addition to or different from those which they now know or believe to be true that are Released Claims. Nevertheless, Plaintiffs and the Settling Class Members acknowledge that a portion of the consideration received herein is for a release of unknown and unsuspected claims and is an essential element of this Settlement that has induced the Defendants to enter into this Agreement and to agree to the Settlement Consideration as set forth in Section 14 herein. It is the intention of the Plaintiffs and the Class Members in executing this Release to resolve and to release fully, finally, and forever all matters, known or otherwise, and all claims relating thereto, which exist, hereafter may exist, or might have existed (whether or not previously or currently asserted in any action) constituting Released Claims. (f) Nothing in this Release set forth in this Section 15 shall preclude any action to enforce the terms of this Agreement. PAGE 35 of 105 (g) Plaintiffs also, to the extent they and/or any Settling Class Member are a beneficiary of any of the Cemetery Care Trusts, as well as Zion, Waldheim, Gail and Rosemont hereby (i) waive any obligation of the Bank as former Trustee to account for the Bank s administration of the Cemetery Care Trusts, and (ii) consent to the Court s full and final discharge of the Bank of any liability to them with respect to such administration, and to such discharge being included in the Preliminary and Final Orders as alleged in the Kagan/Samuels Action. Nothing herein releases the Bank from any legal obligation from agreements unrelated to the Cemetery Care Trusts at issue herein. (h) Subject to Court approval, all Class Members who do not exclude themselves from the Settlement shall be bound by this Agreement, and all of their claims, as provided under this Agreement, shall be dismissed with prejudice and released, even if they never received actual notice of the Kagan/Samuels Action or the Settlement. 16. Dismissal of Claims with Prejudice. On their own behalf and on behalf of the Settling Class Members, Plaintiffs, and each of the other Parties on their behalf, stipulate and agree to dismiss all claims asserted in the Kagan/Samuels Action with prejudice, and the Parties will include the dismissal of the claims with prejudice in the Final Order described in this Agreement. Within 10 days of the Final Judgment, Bank of America, N.A., shall dismiss its counterclaim and third party claims for contribution in Related Case No. 11 CH with prejudice and without costs, or if it fails to do so, any other party to this Agreement may thereafter move that the said counterclaim and third party claims be dismissed with prejudice. 17

22 Attorney Fee Award 17. Attorneys Fees and Service Awards (a) Co-Lead Class Counsel may make an application to the Court, in writing at least ten (10) days before the Final Approval Hearing, for an award of attorneys fees, costs, and expenses. (i) Co-Lead Counsel may petition for fees not to exceed 33.3% of the Total Settlement Value. Additionally, Co-Lead Class Counsel may seek reimbursement of expenses of no more than $30, (ii) Any application for fees, costs and expenses set forth in this Section 17 shall be consistent with this Agreement ( Fee Application ). Co-Lead Class Counsel shall also file, at the same time, any evidence and legal authorities that they deem appropriate in support of such Fee Application. The Fee Application shall be separate from the motion for final approval of this Settlement. PAGE 36 of 105 (iii) Any Fee Application shall include within its scope not only Co- Lead Class Counsel, but all other attorneys, law firms, accounting firms and any other person or entity with a financial interest in such award. In no event shall the total of all fees and the total of all expenses included in the Fee Application, or otherwise ordered by the Court, exceed the limits set forth in other sub-paragraphs of this Section 17. (iv) Any award of fees shall be paid solely to Co-Lead Class Counsel from the Cash Settlement Fund. Neither Defendants nor any Releasee will under any circumstances have any liability to Co-Lead Class Counsel or any other person or entity for paying any portion of any award. (b) Co-Lead Class Counsel will petition the Court for a Service Award of $5,000 each for the two Named Plaintiffs, Linda S. Kagan and Elliot Samuels, for their efforts serving as Class Representatives. (c) In no event shall the combination of the fees, expenses, Service Awards, and notice costs reduce the Cash Settlement Fund below $600,000. To the extent that it would, the fees may be reduced to insure the Net Cash Settlement Fund is at least $600,000. (d) The Parties expressly agree that the terms of this Agreement are not conditioned upon any minimum attorneys fees or Service Awards being approved by the Court. If the Court denies, in whole or in part, Co-Lead Class Counsel s Fee Application, or a Service Award, the remainder of the terms of this Agreement and of the Settlement shall remain in effect. (e) Defendants shall take no position with respect to any Attorney s Fee Application or Service Award so long as the attorney s fee request does not exceed 1/3 rd of the Total Settlement Value of $1.17 million. If the combination of the Service Awards, notice costs, expenses and attorney s fees would reduce the amount of the Cash Settlement Fund of $1.02 million below $600,000, Co-Lead Class Counsel agrees to reduce their attorney s fee request to insure a minimum of $600,000 is available in the Net Cash Settlement Fund to transfer to Zion. 18