STIPULATION OF SETTLEMENT This Stipulation of Settlement the Settlement Agreement

STIPULATION OF SETTLEMENT This Stipulation of Settlement (the “Settlement Agreement”) dated as of October 30, 2007, is made and entered into by and among the following parties (as defined further below): (a) Plaintiffs Luella Swoboda and Lee Street (together, “Plaintiffs”) (on behalf of themselves and the Class), by and through their counsel of record; and (b) Defendants ista North America, Inc. (“ista”), formerly know as Viterra Energy Services, Inc. (“Viterra”), Aquameter, Inc. (“Aquameter”), and CTL Management Inc. (“CTL”), on behalf of themselves and each other, by and through their counsel of record (collectively, “Defendants”). (Together, Plaintiffs and Defendants are referred to as the “Parties.”) This Settlement Agreement is intended by the Parties to fully, finally and forever resolve, discharge and settle the Released Class Claims (as defined herein), upon and subject to the terms and conditions hereof. I. BACKGROUND A. Proceedings Plaintiffs’Fourth Amended Complaint (the “Complaint”) asserts claims on behalf of Plaintiffs and all others similarly situated in Oregon, alleging violations of the Residential Landlord Tenant Act, the Unfair Debt Collection Practices Act, and fraud. Plaintiffs’claims arise out of Defendants’prior practice of imposing late fees and administrative fees upon Oregon tenants in connection with their billing of tenants for utility services. On or about September 2, 2002, the Court entered an order approving a settlement between Plaintiffs and Guardian Management Corporation which, among other things, provided for the creation of a cost fund to pay for the costs associated with this litigation (hereafter, the “Guardian Cost Fund”). On or about January 19, 2007, the Court entered an order certifying a class composed of all Oregon tenants who were billed administrative charges and/or late fees by Viterra and/or Aquameter from September 2000 to the present (the “Statutory Class”). The Court’ order also s certified a class defined as all Oregon tenants who unknowingly were billed administrative fees (i.e. not separately itemized on the bills) by Defendants from September 1995 to the present (the “Fraud Class”). Lastly, within both the Statutory Class and the Fraud Class, the Court certified a subclass consisting of tenants who reside or resided at properties managed by CTL at which tenants of CTL were billed by Viterra and Aquameter for utility services. For purposes of this settlement, all of the classes certified by the Court shall be collectively referred to as “the Class.” Plaintiffs and their counsel have concluded that it would be in the best interests of the Class to settle this litigation in the manner and on the terms set forth herein, after taking into account (1) the uncertainties involved in establishing liability against Defendants and, if there be liability, the amount of damages recoverable by Class Members; (2) the benefits that will accrue to Class Members by reason of the terms of this settlement, as hereinafter set forth; and (3) the likelihood that this litigation, including any appeal process, if not settled, would be protracted and expensive. 1 Defendants, while denying all material averments of the Complaint and any liability to Plaintiffs or to any Class Member arising out of or related to the subject matter of the Complaint, nevertheless consider that it is in their best interests to enter into this Settlement Agreement in order (1) to relieve themselves of further litigation expense and inconvenience; (2) to relieve themselves of the further loss of time and effort of their directors, officers, partners, agents, and employees necessarily involved if this litigation continues; and (3) to bring to an end and put to rest all controversy and claims that have been or might be asserted against them arising out of the subject matter of the litigation. This Settlement Agreement is intended to settle this action in order (1) to avoid the expense, inconvenience, distraction, and delay of further litigation and (2) to put to rest all controversies among Plaintiffs and the Class Members, on the one hand, and Defendants, on the other hand, arising out of or relating to the subject matter of the Complaint. This Settlement Agreement shall be effective with respect to all claims, demands, rights, and causes of action, known and unknown, which Plaintiffs or Class Members have or could have asserted in the Action against the Defendants, or any of them, or against Defendants’present and former officers, directors, employees, partners, shareholders, trustees, agents, attorneys, accountants, subsidiary and affiliated corporations, affiliates, predecessors, property owners, members or trusts, successors, assigns, heirs, executors, personal representatives, and administrators (collectively, “the Related Parties”), in connection with, arising out of, or relating to any of the acts, omissions, misrepresentations, facts, events, matters, transactions, or occurrences alleged, recited, described, or referred to in the Action, or which could have been so asserted (“the Released Claims”). NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among Plaintiffs, for themselves and for the Class, by and through their counsel of record in this action, and the Defendants, that this action and all claims herein be dismissed with prejudice and on the merits and without costs, subject to the approval of the Court, on the following terms and conditions: II. TERMS OF THE SETTLEMENT AGREEMENT A. below: 1. “Check Cashing Period” means the ninety (90) day period following the day on which the Settlement Checks are issued by the Claims Administrator under Paragraph D.1.e, below. Once the Check Cashing Period expires, neither the Settlement Fund, the Claims Administrator, the Parties nor their counsel shall be responsible for the payment of any settlement checks or other consideration to the Class Members “Claim Form” means the proof of claim in the form attached hereto as Exhibit 1. 2 Definitions As used in this Settlement Agreement, the following terms have the meanings specified 2. 3. 4. 5. “Claimant” means any Class Member who sends a Claim Form to the Claims Administrator. “Claims Administrator” means Epic Systems or RUST. The Claims Administrator shall perform the duties described in Paragraph D, below. “Costs of Administration” includes, without limitation, the cost of administering the Settlement Fund, publishing the Publication Notice, printing and distributing the Mail Notices, Claim Forms and Exclusion Forms, obtaining the necessary court approvals, processing the Claim Forms and Exclusion Forms, issuing and mailing Notices of Rejection, issuing and mailing the Settlement Checks, compiling the Exclusion Forms, employing the locator service as described in Paragraph D.1.c, below, filing tax returns and paying taxes, etc., all as more particularly described in this Settlement Agreement. “CTL Settlement Check” means a check in the amount of Two-Hundred SeventyFive Thousand Dollars ($275,000) to be contributed CTL Management Inc. to the Settlement Fund pursuant to this Settlement Agreement. “ Residual Fund” means those funds, if any, remaining in the Settlement Fund after the expiration of the Check Cashing Period and after which the Claims Administrator has distributed all funds necessary for Eligible Claimants, Costs of Administration and Litigation Expenses in accordance with the terms of this Settlement Agreement, and paid any taxes owed on accrued interest. “Defendants Released Parties” means Defendants and Related Parties, including their respective past and present directors, officers, employees, agents, representatives and attorneys, all of whom are released under, and except as otherwise provided in, Paragraph I.1, below. “Eligible Claimant” means any Claimant whose Claim Form satisfies all of the criteria for eligibility in Paragraph E, below. Where more than one tenant was a party to utility bills which are eligible for a payment as described herein, the settlement benefits shall be provided to both tenants jointly, i.e., there shall be only one Eligible Claimant entitled to recovery, to be distributed jointly under the terms of this Settlement Agreement. “Effective Date” of the settlement means the later of: (a) thirty-five (35) days from entry of the Judgment; or (b) final conclusion of any appeals, assuming the Judgment is affirmed in all respects, such that it is not subject to further judicial review or appeal. “Exclusion Form” means the form to be used for a request by a person in the Class to be excluded from the Class, in the form attached hereto as Exhibit 2. “Final Order Approving Settlement Agreement” means the Order to be entered by the Court, in the form attached hereto as Exhibit 3 (without exhibits). 3 6. 7. 8. 9. 10. 11. 12. 13. “Final Approval Hearing” means the hearing on Plaintiffs’ motion for an order approving the settlement as fair, reasonable and adequate, and approving the Incentive Awards and Litigation Expenses. “Fraud Class” means all persons who were tenants within the State of Oregon who were unknowingly billed administrative charges (i.e. not separately itemized on the bills.) by Viterra and/or Aquameter from September 1995 the present. “Incentive Awards” means the payments to Plaintiffs Luella Swoboda, Susan Schrag and Lee Street, as specified in Paragraph B.1.b, to compensate them for the time, effort and energy they expended in prosecuting the Litigation. “ista Settlement Check” means a check in the amount of Four-Hundred TwentyFive Thousand Dollars ($425,000) to be contributed by ista North America, Inc. (fka Vittera Energy Services, Inc.) to the Settlement Fund pursuant to this Settlement Agreement. “Judgment” means the Final Judgment and Order of Dismissal to be rendered by the Court, in the form attached hereto as Exhibit 4 (without exhibits). “Litigation Costs” means the cost of litigation incurred by Plaintiffs and Class Counsel in this action to be paid from the Guardian Cost Fund. “Attorney Fees” means the attorneys’ fees to be paid from the Settlement Fund to Plaintiffs’ Counsel as specified in Paragraph B.1.c. “Mail Notice” means the Notice of Class Action and Preliminary Approval of Settlement, in the form attached hereto as Exhibit 5. “Notice(s) of Rejection” means the various letters advising Claimants that their Claim Form has been rejected, in the forms attached as Exhibit 6. “Notices” includes both the Mail Notice and the Publication Notice. “Plaintiffs’Counsel” means the law firm of Slater Ross. “Preliminary Approval” means the day on which the Court signs the Preliminary Approval Order. “Preliminary Approval Order “ means the order preliminarily approving the settlement, in the form attached hereto as Exhibit 7 (without exhibits). “Publication Notice” means the condensed Notice of Class Action and Preliminary Approval of Settlement, in the form attached hereto as Exhibit 8. “Released Class Claims” means the claims, actions, demands, rights, liabilities and causes of action released under Paragraph I.1, below. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 4 27. “Class Member” means a person who falls within the definition of the Statutory Class and/or the Fraud Class, but excluding those persons who timely submit an Exclusion Form. “Class Period” means the period from September 2000 to the present for members of the Statutory Class and from September 1995 to the present for members of the Fraud Class. “Settlement Fund” means the aggregate principal amount of Seven Hundred Thousand Dollars ($700,000), which shall be composed of the Ista Settlement Check and the CTL Settlement Check and which Defendants shall tender to the Claims Administrator to be held in escrow in accordance with Paragraph B.1.a, below, and which shall comprise the full and total monetary obligation of Defendants under this Settlement Agreement. “Settling Parties” means, collectively, each of the Defendants, on behalf of themselves and each other, and Plaintiffs on behalf of themselves and each of the other Class Members. “Statutory Class” means all persons who were tenants within the State of Oregon who were billed administrative charges and/or late fees by Viterra and/or Aquameter from September 2000 the present. “Tenant Released Parties” means Plaintiffs, each Class Member, and their respective past and present agents, representatives, attorneys, heirs, successors and assigns, all of whom are released under and except as otherwise provided in Paragraphs F and I. “Unclaimed Funds” means that amount remaining in the Settlement Fund upon expiration of the Check Cashing Period. 28. 29. 30. 31. 32. 33. B. Settlement Terms 1. Monetary Awards: a. Settlement Fund : Within ten (10) days after entry of the Judgment , Defendants shall deposit the ista Settlement Check and the CTL Settlement Check (in the aggregate sum of $700,000) with the Claims Administrator, to be held in an interest bearing escrow account at a banking institution selected by the Claims Administrator . Beginning ten (10) days after the Effective Date, the Settlement Fund shall be distributed by the Claims Administrator to each Eligible Claimant, with each Eligible Claimant being entitled to receive a settlement check in the amount of $31.64, or in the event the total claims exceed the balance of the Settlement Fund, a pro rata distribution of the Settlement Fund. Incentive Awards : The Parties agree that Plaintiffs’Counsel may ask the Court to approve an Incentive Award to each of the named representative 5 b. plaintiffs in the Litigation up to maximum aggregate sum of $45,000. The parties agree that the following proposed amounts are reasonable: $24,075 to Ms. Swoboda for 6 years of service, $16,740 to Mr. Street for four years of service, and $4,185 to Susan Schrag for one year of service. The Claims Administrator shall pay the Incentive Awards approved by the Court, from the Settlement Fund, and shall do so in accordance with this Paragraph. Defendants further agree not to object to Plaintiffs’Counsel’ s request for approval of the Incentive Awards up to the above-referenced aggregate amount and further agree that they will not take any action whatsoever to oppose, or otherwise take any position with respect to, Plaintiffs’Counsel’ application for approval of the Incentive Awards. s The Claims Administrator shall distribute the Incentive Awards to each of the named representative plaintiffs one business day after the Effective Date. c. Attorney Fees: The Parties agree that Plaintiffs’Counsel may ask the Court to approve an award of attorneys’ fees in an amount not to exceed $355,000. Defendants agree not to object to Plaintiffs’Counsel’ request s for approval of an award of Attorney Fees up to $355,000, and Defendants further agree that they will not take any action whatsoever to oppose, or otherwise take any position with respect to, Plaintiffs’Counsel’ s application for approval of Attorney Fees up to the above-referenced amount. One business day after the Effective Date, the Claims Administrator shall distribute to Plaintiffs’Counsel from the Settlement Fund the amount of Attorney Fees approved by the Court. Litigation Costs: The Parties agree that the cost of litigation incurred by Plaintiffs and Class Counsel will come from the Guardian Cost Fund first and from the from the Settlement Fund second. d. 2. 3. Accrued Interest : Any interest accruing on the Settlement Fund shall be added to the Settlement Fund and shall be distributed in accordance with this agreement. Consent Decree: Defendants will agree to be bound by the terms of a consent decree in the form attached hereto as Exhibit 9, which decree shall be subject to Court approval and entry. Costs of Administration : The Claims Administrator shall pay the reasonable Costs of Administration set forth in the contract between Plaintiffs’Counsel and the Claims Administrator, attached hereto as Exhibit 10, from approximately $10,000 of the Guardian Cost Fund (which shall be deposited with the Claims Administrator by Plaintiffs’Counsel within ten (10) days of the Effective Date) with any excess amounts to be paid for from the Settlement Fund. Cost Deposit : Within ten (10) days of the entry of the Preliminary Approval Order, the Defendants shall deposit that portion of the Settlement Fund which is equal to the estimated Cost of Administration as determined by the Claims 6 4. 5. Administrator into the Settlement Fund escrow account. In the event that the Settlement Agreement becomes null and void under Section H.1., the unused portion of the Settlement Fund will be refunded to Defendants, but that portion of the settlement fund used for the Cost of Administration will be forfeited. C. Defendants’ Responsibilities To Provide Information As soon as practicable following Preliminary Approval, Defendants shall deliver to the Claims Administrator, in computer readable format, their available computer data on the Class, including names and addresses, to the extent Defendants’records, computer data or computer records contain such information. D. Claims Administrator Responsibilities 1. Notice Dissemination And Claims Processing : a. Publication Notice : No more than thirty (30) days after Preliminary Approval, the Claims Administrator shall publish the Publication Notice in the Oregonian, once per week for two (2) consecutive weeks , and shall make the Mail Notice, Claim Form and Exclusion Form available to any person in the Class Member upon request. The eligibility criteria in Paragraph E, below, shall apply fully, without exception, to any and all such persons. Mail Notice : The Claims Administrator shall prepare the Mail Notices, Claim Forms and Exclusion Forms. As promptly as possible after Preliminary Approval, the Claims Administrator, using the information provided by Plaintiffs and Defendants, shall send the Mail Notices, together with the Claim Forms and Exclusion Forms, via first class mail to each person in the Class. Locator Service : Prior to sending the Mail Notice, the Claims Administrator shall attempt to obtain the most current address for each member of the Class by using the National Change of Address database to update the address of each member of the Class . The cost of the National Change of Address Database Service is to be negotiated by Plaintiffs’ Counsel with the Claims Administrator and paid for from the Settlement Fund. Requests for Exclusion : The Claims Administrator shall compile any and all Exclusion Forms submitted on a timely basis by any person in the Class and report to the Parties through their counsel the names of those persons requesting exclusion in conjunction with Plaintiffs’application for final approval of the settlement. b. c. d. 7 e. Issuance of Settlement Checks : The Claims Administrator shall process all timely Claim Forms and Exclusion Forms received from Class Members and, within ten (10) days after the Effective Date, or as soon thereafter as practicable, mail the settlement check to each Eligible Claimant. Before issuing the settlement checks, and as soon as practicable after the deadline for Claim Forms specified in Paragraph E.1, below, the Claims Administrator shall provide to the Parties through their counsel the names of all Eligible Claimants, together with such records and/or proof as one or more of the Parties may request to establish compliance with the criteria for eligibility set out in this Settlement Agreement. There shall be only one issuance of settlement checks to Eligible Claimants, such that a single Check Cashing Period applies to all Settlement Checks. Rejected Claim Forms : The Claims Administrator shall prepare the Notices of Rejection. The Claims Administrator shall send each Claimant whose Claim Form is rejected under Paragraph E, below, the Notice of Rejection specified in such Paragraph. The Claims Administrator shall not send more than one Notice of Rejection to a Claimant, even if the Claimant submits more than one Claim Form. Neither the Claims Administrator, the Settling Parties nor their counsel shall be required to correspond or communicate further with a Claimant to whom a Notice of Rejection has been sent. Declaration of Performance : Upon completion of the notice procedures described above, and no later than fourteen (14) days prior to the Final Approval Hearing, the Claims Administrator shall serve and file with the Court a declaration evidencing compliance with these requirements. f. g. 2. Payment of Attorney Fees: Plaintiffs’Counsel shall provide the Claims Administrator with a copy of the Judgment (or any other order finally approving the Attorney Fees). One business day after the Effective Date, the Claims Administrator shall issue a check to Plaintiffs’Counsel, payable in the amount approved by the Court. Incentive Awards : One business day after the Effective Date, the Claims Administrator shall issue a check for the Court-approved Incentive Award to each of the named representative plaintiffs, or in such lesser amount as may be approved by the Court. Filing of Tax Returns/Payment of Taxes : The Claims Administrator or its designee shall file, as and when legally required, all tax returns necessary to report any income earned by the Settlement Fund until such funds are completely and finally disbursed, and shall be responsible for making, as and when legally required, any tax payments due on or with respect to income earned by the Settlement Fund, and shall make all such payments without prior order of the Court. The Parties agree that for federal, state and local tax purposes, the Settlement Fund is intended to be a qualified settlement fund within the meaning 8 3. 4. of Treasury Regulation §1.468B-I or any corresponding successor provision. The Parties agree to cooperate to the extent reasonably necessary to carry out the provisions of this Paragraph. 5. Residual Fund : After payment of the Claims, Attorney Fees, Incentive Awards, and Administration Expenses, the remaining funds, if any, in the Settlement Fund shall constitute the Residual Fund and shall be distributed by the Claims Administrator to the Oregon Law Center provided that an authorized representative of the Oregon Law Center first signs the Designated Use Agreement, a copy of which is attached hereto as Exhibit 11 . E. Determination Of Eligible Claimants To be eligible to receive a Settlement Check, a Claimant must satisfy all of the following criteria: 1. The Claimant must complete and return to the Claims Administrator a signed Claim Form postmarked on or before thirty (30) days after the Mail Notice. Note that CTL has made some reimbursements of fees and charges to some CTL tenants who are potential Class Members, and the amounts of those payments should be credited or accounted for before further payments are made to a tenant who has already been reimbursed. This provision does not change the amount CTL is obligated to pay pursuant to this settlement, but acknowledges those payments that have already been made to Class Members. The Claimant must actually be a Class Member and must not have submitted an Exclusion Form. If the Claimant previously received a refund for late fees and/or administrative fees from Guardian Management of CTL Management, they will be considered eligible to file a claim, assuming all other criteria are satisified, but any sum previously refunded will serve as an offset to the amount recovered by the Claimant. 2. 3. Any and all Class Members who fail to satisfy all of these criteria shall not receive Settlement Checks but will in all other respects be subject to and bound by the provisions of this Settlement Agreement, including the releases contained herein and in the Judgment. The Claims Administrator shall send each Claimant who fails to satisfy the criteria for eligibility a Notice of Rejection in the form attached hereto as Exhibit 6. The Claims Administrator shall make a notation on the Class Member list explaining the reason for their ineligibility (for example, submitted an Exclusion Form, Mail Notice returned undelivered, did not return the Claim Form, did not provide necessary information on the Claim Form, etc.). F. Exclusion Provisions The Notices shall include instructions for submitting Exclusion Forms. Exclusion Forms must be signed and returned to the Claims Administrator postmarked on or before thirty (30) days after the Mail Notice to effectively exclude the Class Member from the Class. Any person 9 in the Class who does not properly and timely submit an Exclusion Form shall be bound to the terms of this Settlement Agreement and the Judgment, including the releases contained therein. If more than five percent (5%) of the Class Members submit an Exclusion Form, Defendants may, but are not required to, at their sole discretion, declare this Settlement Agreement null and void, in which event the provisions of Paragraph H shall fully apply. Any such declaration shall be in writing and be provided to the Court and Class Counsel on or before the Final Approval Hearing. G. Court Approval 1. Preliminary Approval : Promptly upon execution of this Settlement Agreement, Plaintiffs’Counsel shall prepare and submit to the Court all papers necessary to obtain the Preliminary Approval Order. The Judgment : No later than the conclusion of the Final Approval Hearing, Plaintiffs’Counsel shall prepare (and the Parties shall join) a request that the Court enter a Final Order Approving Settlement Agreement in the form attached hereto as Exhibit 3 (without exhibits) and the Judgment, in the form attached hereto as Exhibit 4 (without exhibits). 2. H. Effect Of Disapproval Or Nullification Of Settlement If final approval of the settlement, including such modifications as may be ordered by the Court with the consent of the Parties, is not obtained or is reversed on appeal, or if the Effective Date does not occur, or if the Judgment is finally reversed or modified on appeal, or if Defendants declare this Settlement Agreement null and void pursuant to Paragraph F, then, except for the obligations of the Parties under this Paragraph: 1. This Settlement Agreement shall be null and void, shall have no further force and effect with respect to any of the Settling Parties in the Litigation and shall not be used in the Litigation or in any other proceeding for any purpose; The Defendants shall be refunded the unused portion of the estimated Cost of Administration which was deposited into the Settlement Fund escrow account.; This Settlement Agreement and all negotiations, proceedings, statements, testimony and documents made, produced or given in connection herewith shall be without prejudice to any of the Settling Parties, shall not be deemed or construed to be an admission or concession by any Settling Party of any fact, matter or proposition, and shall not be used in any manner or for any purpose in any subsequent proceeding; The Litigation shall stand in the same position, without prejudice, as if this Settlement Agreement had not been made or filed with the Court. 2. 3. 4. 10 I. Mutual Releases And Dismissal Of Claims 1. Release of The Defendants Released Parties/Related Parties : As of the Effective Date, Plaintiffs and every Class Member shall be deemed to have released and forever discharged the Defendants Released Parties from any and all claims, disputes, actions, liabilities, causes of action and demands of any nature whatsoever, whether foreseen or unforeseen, known or unknown, which Plaintiffs and the Class Members, or any of them, ever had, now have or may have, based upon, in connection with, arising out of or which are in any way directly or indirectly related to (a) the claims made or which could have been made on behalf of the Class in the Litigation; or (b) the contents and/or substance of utility billing statements issued by Defendants during the Class Period. The Judgment will dismiss with prejudice the Litigation in its entirety, except to the extent necessary for the Court to have continued jurisdiction over the administration of the settlement and the Consent Decree. Notwithstanding that Plaintiffs and Class Members may hereafter discover facts in addition to or different from those which they now know or believe to be true with respect to the subject matter of the Released Class Claims, Plaintiffs and each Class Member shall be conclusively deemed, upon the Effective Date and by operation of the Judgment, to fully, finally and forever settle and release any and all Released Class Claims against Defendants and each and all of the other Defendants Released Parties, whether such claims are known or unknown, suspected or unsuspected, contingent or noncontingent, whether or not concealed or hidden, and without regard to the subsequent discovery or existence of such different or additional facts. Defendants’Release of The Tenant Released Parties : Upon the Effective Date, Defendants, for themselves and on behalf of the other Defendants Released Parties, shall be deemed to have released and forever discharged the Tenant Released Parties, from and against any and all causes of action, claims and demands arising out of or relating in any way to the institution, prosecution or resolution of the Litigation, including without limitation claims for malicious prosecution. Nothing in the release in this Paragraph I.2 shall operate to extinguish, release, amend or otherwise modify the legal obligations of any Class Member under any leasing or utility billing agreement between a Class Member and any Defendant, to the extent that such agreement was in existence as of the date of this Settlement Agreement. 2. J. Non-Disparagement Agreement Each Party agrees not to disparage the other in public statements made to the press or any other party or person. Plaintiffs’Counsel and Defendants’counsel shall agree on a press release in this case and neither the Parties nor their counsel shall initiate further direct contact with the media regarding this case. In answering requests for information from the media, counsel for the Parties shall respond in a manner consistent with this Settlement Agreement and the previously agreed press release. Nor shall anything contained herein preclude Plaintiffs from giving truthful 11 testimony about the Litigation if subpoenaed or requested to do so by any law enforcement agency, any law-making body or any court. K. Miscellaneous Provisions 1. Entire Agreement : This Settlement Agreement represents the entire agreement among the Parties relating to the subject matter hereof and may only be modified in writing, signed by an authorized representative of each of the Parties, with, where required by law, the approval of the Court. By signing below, each Party, and each of their counsel, represent and warrant to all other Parties and to all other counsel that they have not entered into any agreements with respect to the subject matter hereof which are not reflected herein. No Waiver : The waiver by one of the Parties of any breach by any other Party shall not be deemed a waiver of any prior or subsequent breach of this Settlement Agreement. In the event any legal action or proceeding is undertaken as a result of an alleged breach of this Settlement Agreement, the prevailing Party shall be entitled to recover all reasonable costs and expenses of said proceeding or action, including reasonable attorneys’ fees or costs. Retention of Jurisdiction : The administration of the settlement as provided herein shall be under the authority of the Court. The Court shall retain jurisdiction for that purpose and for such other matters as may properly come before the Court. In the event any Party brings an action to enforce the terms of this Agreement, the Court shall have the discretion to award reasonable attorneys’ fees and costs to the Party prevailing in any such enforcement action. Communications : Any notices, requests, demands and other communications between or among counsel required or permitted to be given pursuant to this Settlement Agreement shall be in writing and shall be delivered personally, mailed, postage prepaid, by Express Mail or other overnight delivery, or sent by facsimile transmission to Plaintiffs’Counsel and to Defendants’counsel as follows: For Plaintiffs: Michael J. Ross, Esq. SLATER & ROSS 1850 Umpqua Bank Plaza One SW Columbia Street Portland, Oregon 97258 Facsimile (503) 224-7299 2. 3. 4. 12 For Defendants: Per A. Ramfjord, Esq. STOEL RIVES, LLP 900 SW 5th Avenue, Suite 2600 Portland, Oregon 97204 Facsimile: (503) 220-2480 Martha Hodgkinson, Esq. HOFFMAN HART WAGNER LLP 1000 SW Broadway, Suite 1000 Portland, Oregon 97205 Facsimile: (503) 222-2301 5. Binding Settlement Agreement : This Settlement Agreement shall be binding and inure to the benefit of the Tenant Released Parties and the Defendants Released Parties, and any corporation or other entity into or with which any corporate Party may merge or consolidate as third party beneficiaries of this Settlement Agreement. Acknowledgment of Understanding : All Parties acknowledge that they have read and understand the terms of this Settlement Agreement and/or that they have been advised by their respective legal counsel with respect thereto; that they understand and acknowledge the significance and consequences of this Settlement Agreement and each of the material terms hereof, including (without limitation) the releases set forth in Paragraph I, above; that they have agreed and consent thereto knowingly and voluntarily; and that they have not relied upon any representation, declaration, promise or inducement other than as set forth in this Settlement Agreement. No Release of Obligations Agreement : The Parties expressly understand and agree that, by entering into this Settlement Agreement, none of the Parties is releasing any other Party from performance of its obligations under this Settlement Agreement. No New Actions : Pending final determination of whether the settlement reflected in this Settlement Agreement should be approved, no Class Member shall assert or reassert any claim at issue in this case in any action on behalf of himself or any other person against Defendants or any Defendants Released Party for so long as this Settlement Agreement is pending before the Court. Headings : The headings in this Settlement Agreement are solely for the convenience of the attorneys, the Parties and the Court. The headings shall not be deemed to be a part of this Settlement Agreement and shall not be considered in construing or interpreting this Settlement Agreement. 6. 7. 8. 9. 13 10. Additional Representations And Warranties : Each signatory on behalf of a Party to this Settlement Agreement warrants and represents that he or she is a duly authorized representative of that Party, with full power and authority to agree to this Settlement Agreement, and all terms herein, on behalf of that Party. No Assignment of Claims : Each Party represents and warrants to all other Parties that no portion of any claims, debts or liabilities, or any other matter released herein, has been or will be directly or indirectly assigned or transferred to any other person or entity. Each Party acknowledges that this representation is material to this Settlement Agreement and that the other Party is relying upon this representation in entering into this Agreement. Governing Law : This Agreement shall be interpreted, construed, governed and enforced under and pursuant to the laws of the State of Oregon. No Admission of Liability : This Settlement Agreement is the result of compromise and, by entering into this Settlement Agreement, the Parties seek only to resolve finally and forever all disputes between them arising out of the rental-purchase transactions at issue in the Litigation. This Settlement Agreement is not intended by any of the Parties to constitute, and shall not be deemed to be, an admission of liability or wrongdoing by any Settling Party. The Parties agree that this Settlement Agreement, and all communications made in connection with it, shall be deemed to fall within the broadest protections afforded compromises and offers to compromise by the Oregon Evidence Code § 408, and any related provisions. Counterparts : This Settlement Agreement may be executed by facsimile and in separate counterparts, each of which shall be deemed an original but all of which, when taken together, shall constitute one and the same instrument 11. 12. 13. 14. DATED: _________ LUELLA SWOBODA Plaintiff DATED: _________ LEE STREET Plaintiff 14 DATED: __________ ISTA NORTH AMERICA, INC. (FKA VITERRA ENERGY SERVICES INC.) By: Michael Foote, General Counsel Defendants DATED: __________ CTL MANAGEMENT INC. By: ___________________ Defendant APPROVED AS TO FORM: DATED: _________ Michael J. Ross Of Attorneys for Plaintiffs DATED: _________ Per A. Ramfjord Of Attorneys for Defendants Viterra and Aquameter DATED: _________ Martha Hodgkinson Of Attorneys for Defendant CTL 15