MUTUAL GENERAL RELEASE OF PAST CLAIMS
THIS MUTUAL GENERAL RELEASE OF PAST CLAIMS (this "Release"), dated
____________, 2003, is executed and delivered by each of the persons or entities
set forth on the signature pages hereto under the caption "Crow Parties" (each
individually a "Crow Party" and collectively the "Crow Parties") and each of the
persons or entities set forth on the signature pages hereto under the caption
"Winthrop Parties" (each individually, a "Winthrop Party" and collectively, the
"Winthrop Parties"). The Crow Parties and the Winthrop Parties are collectively
referred to in this Release as the "Parties".
WHEREAS, Crow Irvine #2, a California limited partnership ("CI"), is
the General Partner, and Winthrop California Investors Limited Partnership, a
Delaware limited partnership ("WCI"), is the Limited Partner, of Crow Winthrop
Development Limited Partnership, a Maryland limited partnership (the
"Partnership");
WHEREAS, CI and WCI, and certain Crow Parties and Winthrop Parties,
have had various disputes, including the disputes which are the subject of the
cases pending in the Superior Court of the State of California, County of
Orange, Case No. 00CC004296 and Case No. 812346 (the "Lawsuits");
WHEREAS, concurrently with the execution of this Release, CI and WCI
are executing a settlement agreement to settle the disputes between them,
including the Lawsuits (the "Settlement Agreement");
WHEREAS, in connection with the Settlement Agreement, the Parties have
agreed to execute this Release; and
WHEREAS, each Party understands and agrees that this Release is a
compromise of disputed claims and the settlement of such claims does not
constitute an admission or acknowledgement of liability or wrongdoing of any
sort.
NOW, THEREFORE, with reference to the foregoing and for valuable
consideration, including the mutual promises and releases as agreed herein, the
receipt, adequacy and sufficiency of which are hereby acknowledged, and the
Parties intending to be legally bound, the Parties hereby agree as follows:
Section 1. Release by Winthrop Parties. Each of the Winthrop Parties,
on its own behalf and on behalf of each of its past, present or future
predecessors in interest, successors in interest, parent entities, divisions,
affiliates, subsidiaries, related business entities, stockholders, members,
partners, general partners, limited partners, directors, officers, managers,
control persons, stockholders, employees, agents, attorneys, administrators,
representatives, heirs,
executors, agents, insurers, subrogees and assigns, and any entity which
purports to claim through one or more of them (collectively, the "Winthrop
Release Parties"), hereby absolutely, unconditionally and irrevocably releases,
remits, acquits and forever discharges each Crow Party and all of such Crow
Party's past, present or future predecessors in interest, successors in
interest, parent entities, divisions, affiliates, subsidiaries, related business
entities, stockholders, members, partners, general partners, limited partners,
directors, officers, managers, control persons, stockholders, employees, agents,
attorneys, administrators, representatives, heirs, executors, agents, insurers,
subrogees and assigns, and any entity which purports to claim through one or
more of them (collectively, the "Crow Release Parties"), from any and all manner
of action or actions, causes of action, in law or in equity, suits, debts,
liens, torts, contracts, agreements, promises, liabilities, claims, demands,
interests, damages, losses, costs and/or attorneys' fees and expenses of any
nature whatsoever, known or unknown, anticipated or unanticipated, fixed or
contingent, which it now has or may hereafter have, by reason of any matter,
cause or act from the inception of time until, but not including, the date of
the Settlement Agreement, arising out of, relating to or otherwise in respect of
the Partnership, Crow Winthrop Operating Partnership (the "Operating
Partnership"), any entity in which either the Partnership or the Operating
Partnership has a direct or indirect interest, and/or any asset of the
Partnership, the Operating Partnership or any such other entity, including,
without limitation, the Lawsuits.
Section 2. Release by Crow Parties. Each of the Crow Parties, on its
own behalf and on behalf of each of the Crow Release Parties, hereby absolutely,
unconditionally and irrevocably releases, remits, acquits and forever discharges
each Winthrop Release Party from any and all manner of action or actions, causes
of action, in law or in equity, suits, debts, liens, torts, contracts,
agreements, promises, liabilities, claims, demands, interests, damages, losses,
costs and/or attorneys' fees and expenses of any nature whatsoever, known or
unknown, anticipated or unanticipated, fixed or contingent, which it now has or
may hereafter have, by reason of any matter, cause or act from the inception of
time until, but not including, the date of the Settlement Agreement, arising out
of, relating to or otherwise in respect of the Partnership, the Operating
Partnership, any entity in which either the Partnership or the Operating
Partnership has a direct or indirect interest, and/or any asset of the
Partnership, the Operating Partnership or any such other entity, including,
without limitation, the Lawsuits.
Section 3. Jamboree LLC. The Parties acknowledge and agree that
Jamboree LLC (i) is neither a Winthrop Release Party nor a Crow Release Party,
and (ii) is not being released from any actions, causes of action, suits, debts,
liens, torts, contracts, agreements, promises, liabilities, claims, demands,
interests, damages, losses, costs and/or expenses pursuant to this Release.
Section 4. Waiver of Civil Code Section 1542. Each Party agrees that
the releases provided for in this Release (i) extend to all claims known or
unknown, anticipated or unanticipated, from the inception of time until, but not
including, the date of the Settlement Agreement, whether or not claimed or
suspected by the Parties, or any of them, arising out of, relating to or
otherwise in respect of the Partnership, the Operating Partnership, any entity
in which either the Partnership or the Operating Partnership has a direct or
indirect interest, and/or any asset of the Partnership, the Operating
Partnership or any such other entity, including, without limitation, the
Lawsuits, and (ii) constitute a WAIVER of each and all of the provisions of the
California Civil Code Section 1542, which reads as follows:
SECTION 1542. GENERAL RELEASE--CLAIMS EXTINGUISHED. A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM
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MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Each Party hereby expressly acknowledges that the effect and import of
this provision has been fully explained to it by its own counsel. It is
understood by each Party that claims of the sort released hereinabove may exist
in their favor against some person or entity released as provided hereinabove,
but which are not presently known, suspected or understood by the releasing
party and which, if known, suspected or understood by it would have materially
affected the existence, form or extent of the releases provided in this Release.
However, each Party assumes the risk of such claims and of their discovery
subsequent to the execution of this Release. Each Party agrees that the releases
set forth in this Release shall be in all respects effective and not subject to
termination, rescission, alteration or reformation as a result of, or in
connection with, any such subsequently discovered facts or claims. In the event
that any waiver set forth in this Release or under or pursuant to the provisions
of Section 1542 of the Civil Code of the State of California should be
judicially determined to be invalid, voidable or unenforceable, for any reason,
such waiver to that extent shall be severable from the remaining provisions of
this Release, and the invalidity, voidability or unenforceability thereof shall
not affect the validity, effect, enforceability or interpretation of the
remaining provisions of this Release or any portion hereof.
Each of the Parties represents and warrants that such Party has the
full right, power, legal capacity and authority to enter into and perform such
Party's respective obligations hereunder and that such obligations shall be
binding upon such Party without the requirement of the approval or consent of
any other person or entity in connection herewith. Each of the Parties to this
Release represents that no assignment of any right to sue concerning the actions
covered by this Release has been made.
Section 5. No Assignment of Claims. Each of the Parties hereto
represents and warrants that it has not assigned or transferred to any other
person or entity, in any manner, including by way of subrogation or operation of
law or otherwise, all or any portion of any claim, demand, right, action, or
cause of action that it had, has or might have arising out of the matters
released in this Release nor all or any portion of any recovery or settlement to
which it might be entitled. In the event that any claim, demand or suit should
be made or instituted against any Party released in this Release by reason of
any undisclosed assignment, subrogation or transfer, then the Party from whom
such purported assignment, subrogation or transfer was made shall fully
indemnify and hold every other Party harmless against such claim, demand or suit
and shall pay and satisfy any such claim, demand or suit and any expenses of
investigation, attorneys' fees and costs incurred in the defense of such claim,
demand or suit.
Section 6. Voluntary Agreement. This Release is executed voluntarily
and without duress or undue influence on the part of or on behalf of any Party.
Section 7. Parties Represented by Counsel. Each Party hereby
acknowledges that it has been represented in negotiations for and in the
preparation of this Release by counsel of its own choosing, that it has read
this Release and has had it fully explained to it by such counsel, and that it
is fully aware of the contents of this Release and of its legal effect.
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Section 8. Entire Agreement. This document constitutes the entire
agreement and understanding between the Parties concerning the subject matter
hereof, and supersedes and replaces all prior negotiations and agreements
between the Parties, whether written or oral, concerning the subject matter
hereof. Each of the Parties acknowledges and represents and warrants that no
other party or agent or attorney of any other Party has made a promise,
representation or warranty whatsoever, express or implied, not contained herein
concerning this Release or the terms hereof, and that this is a fully integrated
document. Each Party further acknowledges, warrants and represents that it has
not executed this Release in reliance upon any promise, statement,
representation or warranty, written or verbal, not expressly contained herein or
in the Settlement Agreement, and that it has entered into this Release freely
and voluntarily based on its own independent judgment and advice of its counsel.
Section 9. Agreement to Bind Successors. This Release shall bind and
inure to the benefit of the respective successors, assigns, legatees, heirs, and
personal representatives of the Parties.
Section 10. Venue. Each of the Parties agrees that the state courts
located in the County of Orange, State of California shall have exclusive
subject matter jurisdiction hereunder and personal jurisdiction over each of the
Parties. Each such Party hereby consents thereto, and hereby waives any right it
may have to assert the doctrine of forum non conveniens or to object to venue to
the extent that any proceeding is conducted in accordance with the foregoing
provision.
Section 11. Governing Law. This Release is entered into in
accordance with the laws of the State of California in connection with contracts
to be performed in said state and shall be governed by and interpreted in
accordance with those laws.
Section 12. Modifications and Amendments. No amendment, change or
modification of this Release shall be valid unless in writing signed by the
Party to be charged.
Section 13. Severability. Should any part, term or provision of this
Release be declared or determined by any court or other tribunal to be illegal,
invalid or unenforceable, any illegal, invalid or unenforceable part, term or
provision shall be deemed stricken from this Release and all of the other parts,
terms and provisions of this Release shall remain in full force and effect to
the fullest extent permitted by law.
Section 14. Counterparts. This Release may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute together one and the same instrument. Facsimile copies of this
Release shall have the same force and effect as an original.
Section 15. Headings. The various headings used in this Release are
solely for the convenience of the Parties and shall not be used to interpret
this Release.
Section 16. Authority. The Parties signing this Release are individuals
and duly authorized corporations, partnerships or entities with the full right
and authority to enter into this Release and any Parties executing this Release
on behalf of corporations, partnerships and other entities hereby represent and
warrant that they are duly authorized to execute this Release on
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behalf of the entities for whom they have signed, and that this Release is
binding on the entities on whose behalf they have signed.
Section 17. Effectiveness of Release. This Release shall not become
effective until such time as all 22 Crow Parties and all 13 Winthrop Parties
have executed the Release.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the Parties has executed this Mutual
General Release of Past Claims effective as of the date first above written.
CROW PARTIES:
CROW WINTHROP DEVELOPMENT LIMITED
PARTNERSHIP, a Maryland limited partnership
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
CROW ORANGE COUNTY MANAGEMENT
COMPANY, INC., a Texas corporation
By:
----------------------------
William H. Lane, Jr.
President
CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
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CROW IRVINE #2, a California limited partnership
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited
partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
SHOPS AT PARK PLACE LLC,
a Delaware limited liability company
By: CROW WINTHROP DEVELOPMENT
LIMITED PARTNERSHIP,
a Maryland limited partnership
its managing member
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
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3121 MICHELSON DRIVE LLC,
a Delaware limited liability company
By: CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
PARK PLACE PARKING COMPANY LLC,
a Delaware limited liability company
By: CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
its managing member
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
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PARK PLACE HOTEL COMPANY LLC,
a Delaware limited liability company
By: CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
its managing member
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
3161 MICHELSON DRIVE LLC,
a Delaware limited liability company
By: CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
its managing member
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
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PARK PLACE RESIDENTIAL REALTY LLC,
a Delaware limited liability company
By: CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
its sole member and manager
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
PARK PLACE RESIDENTIAL REALTY LAND LLC,
a Delaware limited liability company
By: CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
its sole member and manager
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
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PARK PLACE PARTNERS LLC,
a Delaware limited liability company
By: CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
its sole member and manager
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
IRVINE COMMUNICATIONS LLC,
a Delaware limited liability company
By: CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
its sole member and manager
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
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PARK PLACE RESIDENTIAL HIGHRISE I LLC,
a California limited liability company
By: CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
its sole member and manager
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
PARK PLACE DEVELOPMENT LLC,
a Delaware limited liability company
By: CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
its sole member and manager
By: CROW IRVINE #2,
a California limited partnership
its general partner
By: CROW IRVINE #1 LIMITED PARTNERSHIP,
a Texas limited partnership
its general partner
By:
----------------------------
William H. Lane, Jr.
Managing General Partner
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SOUTH ORANGE COUNTY OVERHEAD
LIMITED PARTNERSHIP,
a Texas limited partnership
By: TCC SOUTH ORANGE COUNTY, INC.,
a Texas corporation
its managing general partner
By:
------------------------------
William H. Lane, Jr.
President
TCC SOUTH ORANGE COUNTY, INC.,
a Texas corporation
By:
------------------------------
William H. Lane, Jr.
President
----------------------------------
THOMAS A. BAILEY
individually and as a general partner of
CROW IRVINE #1 Limited Partnership
----------------------------------
WILLIAM H. LANE, JR.,
individually and as a general partner of
CROW IRVINE #1 Limited Partnership
----------------------------------
JOEL C. PETERSON
individually and as a general partner of
CROW IRVINE #1 Limited Partnership
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----------------------------------
J. MCDONALD WILLIAMS
individually and as a general partner of
CROW IRVINE #1 Limited Partnership
TRAMMELL CROW FOUNDATION, LTD.,
a Texas limited partnership
By: TCF, INC.,
a Texas corporation
Its general partner
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WINTHROP PARTIES:
WINTHROP CALIFORNIA INVESTORS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Winthrop Financial Associates,
a Limited Partnership,
Managing General Partner
By:
------------------------------
Peter Braverman
Executive Vice President
WINTHROP FINANCIAL ASSOCIATES,
A Limited Partnership, a
Maryland limited partnership
By:
----------------------------------
Peter Braverman
Executive Vice President
WINTHROP CALIFORNIA MANAGEMENT LIMITED PARTNERSHIP,
a Maryland limited partnership
By: First Winthrop Properties, Inc.
General Partner
By:
------------------------------
Peter Braverman
Executive Vice President
WINTHROP MANAGEMENT LLC,
a limited liability company
By: Win Manager Corp.
Manager
By:
------------------------------
Peter Braverman
Executive Vice President
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QUADRANGLE ASSOCIATES II LLC, a Delaware limited
liability company
By: Win Manager Corp.
Manager
By:
------------------------------
Peter Braverman
Executive Vice President
WIN MANAGER CORP., a Delaware corporation
By:
----------------------------------
Peter Braverman
Executive Vice President
PETER BRAVERMAN, an individual
--------------------------------------
Peter Braverman
MICHAEL L. ASHNER, an individual
--------------------------------------
Michael L. Ashner
CAROLYN B. TIFFANY, an individual
--------------------------------------
Carolyn B. Tiffany
APOLLO ADVISORS, L.P.,
a Delaware limited partnership
By:
----------------------------------
Peter Braverman
Authorized Person
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APOLLO REAL ESTATE ADVISORS, L.P.,
a Delaware limited partnership
By: Apollo Real Estate Capital Advisors, Inc.,
General Partner
By
-------------------------------
Peter Braverman
Authorized Person
LONDONDERRY ACQUISITION LIMITED PARTNERSHIP,
a Delaware limited partnership
By: ------------------------------
Peter Braverman
Authorized Person
CROW WINTHROP OPERATING LIMITED PARTNERSHIP
(formerly known as Crow Winthrop Operating
Partnership)
By: Winthrop California Investors
Limited Partnership, General Partner
By: Winthrop Financial Associates, a Limited
Partnership,
Managing General Partner
By:
--------------------------
Peter Braverman
Executive Vice President
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