Refco-BANTCO vs City/Settlement Agree 98SETTLEMENT AGREEMENT AND MUTUAL RELEASE
1. PARTIES: The parties to this Settlement Agreement and Mutual Release
("Agreement") are CITY OF LA QUINTA, a California municipal corporation, and
LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and politic
(collectively "LA QUINTA"); and BANK OF AMERICA N.T. & S.A., a national
banking association, successor by merger to BankAmerica National Trust Company,
formerly Security Pacific National Trust Company (New York) ("BANTCO").
facts:
2. RECITALS: This Agreement is made with reference to the following
2.1 In December, 1992, LA QUINTA commenced an action against
various defendants, including BANTCO, entitled City of La Quinta. et al. v. Refco
Group. Ltd., et al. in the United States District Court for the Central District of
California (the "Court"), Case No. CV-92-7626 RJK. This action is referred to herein
as the "Lawsuit".
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2.2 In the Lawsuit, LA QUINTA claimed that BANTCO was liable to
LA QUINTA on a number of theories, including aiding and abetting breach of
fiduciary duty, aiding and abetting the violation of California securities laws and
negligence, in connection with LA QUINTA's loss of funds invested through
Steven Wymer and his companies.
2.3 BANTCO has consistently denied that it is liable for any and/or
all of these claims.
2.4 Without any party admitting the truth of any allegations or
contentions made by any other party concerning the Lawsuit, it is the intention of the
parties to this Agreement to settle and dispose of, fully and completely, any and all
claims, demands, and causes of action in any way arising out of, connected with or
incidental to those claims, demands and causes of action reflected in the Lawsuit.
3. AGREEMENT: In consideration of the promises and agreements
contained herein, and for other good and valuable consideration, the parties hereto
agree as follows:
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3.1 LA QUINTA agrees that it will support a motion which will be
filed by BANTCO to approve this settlement as a good faith settlement. The bringing
of such a motion, the granting of such motion by the Court, and the entry by the Court
of an Order approving the settlement as a good faith settlement are express conditions
precedent to the effectiveness of this Agreement, unless BANTCO waives these
conditions in writing.
3.2 Within a reasonable period of time after satisfaction of all of the
conditions precedent as defined in Section 3.1, LA QUINTA and BANTCO shall
execute the Stipulation for Dismissal of Action in the form attached hereto as
Exhibit "A", and BANTCO shall remit to LA QUINTA by check or wire transfer the
sum of Ninety Thousand Dollars ($90,000.00), pursuant to written instructions from
LA QUINTA's counsel. The allocation of this $90,000.00 between City of La Quinta
and La Quinta Redevelopment Agency is a matter between those two entities and of no
concern to BANTCO.
3.3 Pursuant to said Stipulation for Dismissal of Action, the Lawsuit
will be dismissed with prejudice as against BANTCO, pursuant to Federal Rule of
Civil Procedure 41(a)(1), with each party to bear its own attorneys' fees and costs
incurred in the Lawsuit.
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3.4 Except for such rights, duties and obligations as are established by
this Agreement, each party hereto, on behalf of themselves and their respective
predecessors, successors, assigns, employees, agents, attorneys, representatives,
affiliates, officers, directors and shareholders, and each of them, do hereby release and
forever discharge each other of and from any and all claims, demands, losses, damages,
actions, causes of action, costs, expenses and attorneys' fees of any nature whatever,
heretofore or hereafter arising out of, connected with, or incidental to the claims
asserted in the Lawsuit. This is a special release, and each party hereto acknowledges
and agrees that this release is expressly limited to the claims asserted in, or incidental
to the claims asserted in, the Lawsuit and does not include any other claim of any kind.
4. MISCELLANEOUS:
4.1 This Agreement shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of the parties
hereto shall be construed and enforced in accordance with, and governed by, the laws
of the State of California.
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4.2 This Agreement, together with the attached Stipulation for
Dismissal of Action, is the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous oral and written
agreements and discussions. This Agreement may be amended only by an agreement
in writing signed by all of the parties hereto, and shall not be amended by an oral
agreement.
4.3 This Agreement effects the settlement of claims that are denied
and contested, and nothing contained herein shall be construed as an admission by any
party hereto of any liability of any kind to any other party or any other matter. Each of
the parties hereto deny any liability in connection with the Lawsuit and intends merely
to avoid the expense of protracted litigation.
4.4 This Agreement is binding upon and shall inure to the benefit of
the parties hereto, their respective agents, employees, representatives, officers,
directors, divisions, subdivisions, affiliates, assigns, predecessors in interest,
successors in interest, and shareholders.
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4.5 Each party hereto has cooperated in the drafting and preparation
of this Agreement. Hence, in any construction to be made of this Agreement, the same
shall not be construed against any party hereto.
4.6 In the event of litigation relating to this Agreement, the prevailing
party shall be entitled to recover its reasonable attorneys' fees.
4.7 This Agreement may be executed in counterparts, and when each
party has signed and delivered at least one such counterpart, each counterpart shall be
deemed an original, and, when taken together with the other signed counterparts, shall
constitute one Agreement, which shall be binding upon and effective as to all parties.
4.8 This Agreement is made and entered into as of
1998. The Agreement will be effective as of the date of the entry by the Court of the
Order approving this settlement as a good faith settlement, unless this condition
precedent is waived by BANTCO in writing. In the event that BANTCO waives the
requirement of a good faith settlement hearing, this Agreement will be effective when
it has been signed by all parties.
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4.9 The parties' representative signatories below each represents and
warrants that he or she has the authority to bind his or her respective principal to this
Agreement.
CITY OF LA QUINTA, a California
municipal corporation
By:
Print name:
Title:
LA QUINTA REDEVELOPMENT
AGENCY, a public body corporate and politic
By:�ryt-
Print name:
Title:x�ti �J
BANK OF AMERICA N.T. & S.A., a national
banking association (successor by merger to
BankAmerica National Trust Company)
Print name:
Title:
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APPROVED AS, TO FORM AND CONTENT:
STRADLING YOCCA CARLSON & RAUTH
A PROFESSIONAL CORPORATION
JOHN F. CANNON
Attorneys for
CITY OF LA QUINTA and
LA QUINTA REDEVELOPMENT AGENCY
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Im
PAUL M. REITLER
Professional Corporation
Attorneys for
BANK OF AMERICA N.T.& S.A.
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PAUL M. REITLER, CAL. BAR NO. 35165
JAMES L. SANDERS, CAL. BAR NO. 126291
BEVERLY A: JOHNSON, CAL. BAR NO. 167335
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
333 South Hope Street, 48th Floor
Los Angeles, California 90071
Telephone: (213) 620-1780
JOHN C. FAUVRE, CAL. BAR NO. 50482
ULLAR VITSUT, CAL. BAR NO. 33690
JAMES ROETHE, CAL. BAR NO. 41731
OFFICE OF GENERAL COUNSEL
BANK OF AMERICA N.T. & S.A.
555 South Flower Street, Suite 800
Los Angeles, California 90017-2398
Telephone: (213) 228-3515
Attorneys for Defendant
BANKAMERICA NATIONAL TRUST COMPANY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CITY OF SANGER, et al.,
Plaintiffs,
V.
REFCO GROUP, LTD., et al.,
Defendants.
AND CONSOLIDATED ACTIONS.
LA2:LAM\PLD\BN3\1 1101280.1
Case Nos. CV-92-7284 RJK, CV-92-7294
RJK, CV-92-7626 RJK, CV-92-7628 RJK,
CV-92-7630 RJK, CV-92-7631 RJK,
CV-92-7632 RJK, CV-92-7633 RJK,
CV-93-0056 RJK, CV-93-0057 RJK
(1) STIPULATION FOR
DISMISSAL OF ACTION WITH
PREJUDICE AND WITHOUT
COSTS (Federal Rule of Civil
Procedure 41(a)(1)); and
(2) ORDER THEREON
(Case No. CV-92-7626 RJK)
EXHIBIT A ,
STIPULATION FOR
DISMISSAL AND ORDER
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WHEREAS, City of La Quinta, a California municipal corporation and
La Quinta Redevelopment Agency, a public body corporate and politic (collectively
"LA QUINTA") and Bank of America N.T. & S.A., a national banking association, successor
by merger to BankAmerica National Trust Company, formerly Security Pacific National
Trust Company (New York) ("BANTCO") have entered into a Settlement Agreement and
Mutual Release as of , 1998.
WHEREAS, that Settlement Agreement provides that LA QUINTA's claims
against BANTCO shall be dismissed with prejudice and with each party to bear its own costs
and attorneys' fees;
IT IS HEREBY STIPULATED by and between LA QUINTA and BANTCO,
through their respective counsel, that LA QUINTA's Second Amended Complaint shall be
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STIPULATION
DISMISSAL AND OF
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Dated:
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By:
Attorneys for Plaintiffs
CITY OF LA QUINTA and
LA QUINTA REDEVELOPMENT AGENCY
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
By:
Professional Corporation
Attorneys for Defendant
BANKAMERICA NATIONAL TRUST COMPANY
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S77PULATION FOR
DLSMISSAL AND ORDER
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Pursuant to the foregoing Stipulation,
IT IS HEREBY ORDERED that the Second Amended Complaint is hereby
dismissed as against BANTCO with prejudice, with each side to bear its own costs and
attomeys' fees.
I Dated:
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1998
ROBERT J. KELLEHER
Senior United States District Judge
STIPULATION FOR
-4- DISMISSAL AND ORDER
78-495 CALLE TAMPICO - LA QUINTA, CALIFORNIA 92253 - (760) 777-7000
FAX (760) 777-7101
TOD (760) 777-1227
April 1, 1998
Stradling, Yocca, Carlson & Rauth
Attn: Steven Hanle
660 Newport Center Drive Suite 1600
Newport Beach, California 92660
Dear Mr. Hanle:
Please find enclosed, the executed copies of the Settlement Agreement and Mutual
Release between the City of la Quinta and BANTCO.
Wiring instructions:
Wells Fargo Bank
ABA 121000248
Account No. 4159282482
Attn: John Falconer, Finance Director, (760) 777-7150
If you need any further information, please give me a call.
JUDRA L. JUHOLA, City Clerk
City of La Quinta, California
cc: John Falconer, Finance Director
1.
MAILING ADDRESS - P.O. BOX 1504 - LA QUINTA, CALIFORNIA 92253