THOMAS M. DURKIN, District Judge.
1. Plaintiffs instituted this lawsuit against Defendant Vanguard Services, Inc. ("Vanguard") seeking pension and health and welfare contributions due to the Central States, Southeast and Southwest Areas Pension Fund (the "Pension Fund") and the Central States, Southeast and Southwest Areas Health and Welfare Fund (the "Health Fund" and together with the Pension Fund collectively referred to as the "Funds"). The lawsuit also sought withdrawal liability from all Defendants due as a result of a complete withdrawal from the Pension Fund.
2. This Court entered a Consent Judgment on August 11, 2009, as follows: (a) in favor of the Pension Fund and against Defendant Vanguard for $10,978.20 in contributions and $563.01 in interest; (b) in favor of the Health Fund and against Defendant Vanguard for $14,995.80 in contributions and $769.47 in interest; (c) in favor of the Pension Fund and against all Defendants, for $4,769,353.60 in withdrawal liability, interest and statutory damages; and (d) for post-judgment interest from the date of the judgment computed and charged on the entire judgment balance at an annualized interest rate equal to two percent (2%) plus the prime interest rate established by JPMorgan Chase Bank, NA for the fifteenth (15th) day of the month for which the interest is charged compounded annually. A copy of the Consent Judgment is attached hereto as Exhibit A.
3. The Consent Judgment remains unsatisfied.
4. Rule 69 of the Federal Rules of Civil Procedure directs that Illinois law controls the manner in which judgments entered by this Court are executed. Under 735 ILCS 5/12-108, judgments may not be enforced beyond seven (7) years after the initial entry of judgment, unless revived as provided under 735 ILCS 5/2-1601 and in accordance with 735 ILCS 5/2-1602. A judgment may be revived by filing a petition in the original case in which the judgment was entered and providing notice of the petition to interested parties. 735 ILCS 5/2-1602(b) and (c).
5. Plaintiffs submit this Motion as the petition contemplated by Illinois law and further submit that interested parties have been notified of this Motion as evidenced by the Certificate of Service attached hereto.
6. Regarding the Pension Fund's contributions portion of the Consent Judgment, the Pension Fund has collected $0.00 to date. The outstanding balance on the Pension Fund's portion of the Consent Judgment for contributions is $18,317.14 ($11,541.21 in principal and $6,775.93 in post-judgment interest calculated through August 20, 2018).
7. Regarding the Health Fund's portion of the Consent Judgment, the Health Fund has collected $0.00 to date. The outstanding balance on the Health Fund's portion of the Consent Judgment for contributions is $25,021.33 ($15,765.27 in principal and $9,256.06 in postjudgment interest calculated through August 20, 2018).
8. Regarding the Pension Fund's withdrawal liability portion of the Consent Judgment, the Pension Fund has collected $1,383,422.40 to date. The outstanding balance on the Pension Fund's withdrawal liability portion of the Consent Judgment is $5,894,682.80 ($4,569,353.60 in principal and $1,325,329.20 in post-judgment interest calculated through August 20, 2018).
9. At the time that the Consent Judgment was entered, the parties entered into a settlement agreement in which, inter alia, Vanguard granted the Funds a first position security interest in any and all contracts rights and claims Vanguard had in certain lease agreements with Vanguard's former clients, namely Bandag, Inc., Reynolds Metals, Inc., CMM Transportation, Inc., Reichhold Chemicals, Inc. and Bridgestone/Firestone, Inc. (the "Lease Agreements"). (Ex. B — Settlement Agreement, p. 6, ¶ 7.)
10. Some of the Lease Agreements contained a provision which required the former clients to indemnify for withdrawal liability. Pursuant to the settlement agreement, the Funds were given the right to seek enforcement of the indemnification provision and the right to retain all monies collected under the indemnification provision. (Ex. B — Settlement Agreement, p. 6, ¶ 7.)
11. Vanguard (operating under the name MC3, Inc.) has filed for bankruptcy protection in the Southern District of Indiana. See In re: MC3, Inc., Case No. 16-6742. However, the Funds' lien on the Lease Agreements has not been removed or altered in any way by the bankruptcy.
12. On August 8, 2018, the bankruptcy court granted the Pension Fund relief from the automatic stay so that it could seek revival of the Consent Judgment against Vanguard and pursue recovery from Vanguard's former clients under the Lease Agreements. (Ex. C — Order Approving Agreed Entry and Agreed Entry Granting Relief from Stay and Allowing and Subordinate, in part, Central States' Claim.)
13. Since only Vanguard filed for bankruptcy, the automatic stay did not apply to the other Defendants.
14. Plaintiffs request that the Consent Judgment be revived in accordance with 735 ILCS 5/2-1602 against all Defendants.
15. Along with this Motion, Plaintiffs submit a draft Order Reviving Judgment, a copy of which is attached hereto as Exhibit D.
WHEREAS, the Plaintiffs filed their complaint on August 4, 2009; and
WHEREAS, each of the Defendants hereby waives service of process; and
WHEREAS, the parties consent to the entry of judgment as below set forth.
1. Plaintiff Central States, Southeast and Southwest Areas Pension Fund (the "Pension Fund") is a multiemployer pension plan within the meaning of sections 3(2), 3(37) and 4001(a)(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. §§ 1002(2), 1002(37) and 1301 (a) (3).
2. Plaintiff Howard McDougall is a present trustee of the Pension Fund and he and his fellow trustees are the plan sponsor of the Pension Fund within the meaning of ERISA § 4001(a)(10), 29 U.S.C. § 1301(a)(10). He and his fellow trustees administer the Pension Fund at 9377 West Higgins Road, Rosemont, Cook County, Illinois.
3. Pursuant to ERISA §§ 502(a)(3), 515, 4221 (b) (2), and 4301 (a) (1), 29 U.S.C. §§ 1132(a) (3), 1401 (b) (2) and 1451 (a)(1), the trustees of the Pension Fund, by and through their designated trustee Howard McDougall, are authorized to bring this action on behalf of the Pension Fund, its participants and beneficiaries.
4. Plaintiff Central States, Southeast and Southwest Areas Health and Welfare Fund (the "Health and Welfare Fund") is a multiemployer welfare plan within the meaning of ERISA §§ 3(1) and 3(37), 29 U.S.C. §§ 1002(1) and 1002(37).
5. Plaintiff Howard McDougall is a present trustee of the Health and Welfare Fund. He and his fellow trustees administer the Health and Welfare Fund at 9377 West Higgins Road, Rosemont, Cook County, Illinois.
6. Pursuant to ERISA §§ 502(a)(3) and 515, 29 U.S.C. §§ 1132(a)(3) and 1145, the trustees of the Health and Welfare Fund, by and through their designated trustee Howard McDougall, are authorized to bring this action on behalf of the Health and Welfare Fund, its participants and beneficiaries.
7. Defendant Vanguard Services, Inc. ("Vanguard") is an Indiana corporation with its principal place of business located in the State of Indiana, and is an "employer" and a "party in interest" as those terms are defined, respectively, by ERISA §§ 3(5) and 3(14)(c), 29 U.S.C. §§1002(5) and 1002(14)(c).
8. Defendant Drivers, Inc. ("DI") is an Ohio corporation that at all relevant times has been a wholly-owned subsidiary of Vanguard.
9. Defendant Vanguard Southeast, Inc. ("VSE") is a South Carolina corporation that at all relevant times has been a wholly-owned subsidiary of Vanguard.
10. Defendant VMT Vanguard Companies, Inc. ("VMT") is an Indiana corporation that at all relevant times has been a wholly-owned subsidiary of Vanguard.
11. Defendant Vanguard Services (Canada), Inc. ("VANC") is a Canadian corporation that at all relevant times has been a wholly-owned subsidiary of Vanguard.
12. Defendant Vanguard of Delaware, Inc. ("VOD") is a Delaware corporation.
13. At all relevant times James W. Malarney and Ronald D. Creager have owned, directly and indirectly, 100 percent of the voting stock of both Vanguard and VOD.
14. Defendant CrossStone, LLC ("CSS") is an Indiana limited liability company that at all relevant times has been a wholly-owned subsidiary of VOD.
15. Defendant Pineridge Insurance Company, Inc. ("PINE") is a Barbados corporation that at all relevant times has been a wholly-owned subsidiary of VOD.
16. Defendant V.O. Freight Services, Inc. ("VOF") is South Carolina corporation that at all relevant times has been a wholly-owned subsidiary of VOD.
17. Vanguard was bound by certain collective bargaining agreements and participation agreements executed by and between itself and Local Unions affiliated with the International Brotherhood of Teamsters.
18. Pursuant to those collective bargaining agreements and participation agreements, Vanguard agreed to pay contributions to the Pension Fund and the Health and Welfare Fund on behalf of certain covered employees.
19. Vanguard owes $10,978.20 in contributions and $563.01 in interest (through July 31, 2009) to the Pension Fund . These contributions are owed as the result of severance pay paid in July 2008 to certain participants covered under a collective bargaining agreement and a participation agreement between Vanguard and Teamsters Local Union No. 528.
20. Vanguard owes $14,995.80 in contributions and $769.47 in interest (through July 31, 2009) to the Health and Welfare Fund . These contributions are owed as the result of severance pay paid in July 2008 to certain participants covered under a collective bargaining agreement and a participation agreement between Vanguard and Teamsters Local Union No. 528.
21. Vanguard triggered a complete withdrawal under ERISA § 4203, 29 U.S.C. § 1383 from the Pension Fund in 2008 (the "Withdrawal").
22. On the date of the Withdrawal, Vanguard, VSE, DI, VMT, VANC, VOD, CSS, PINE, and VOF (the "Vanguard Controlled Group") were trades or businesses under common control within the meaning of ERISA § 4001 (b)(1), 29 U.S.C. § 1301 (b)(1), and the regulations promulgated thereunder.
23. As a result of the Withdrawal, each member of the Vanguard Controlled Group, jointly and severally, has incurred withdrawal liability to the Pension Fund in the principal amount of $4,769,353.60, as determined pursuant to ERISA §§ 4201 and 4211, 29 U.S.C. § 1381 and 1391 (the "Withdrawal Liability").
24. On July 28, 2009, the Pension Fund issued a notice and demand to the Vanguard Controlled Group for payment of the Withdrawal Liability in accordance with ERISA §§ 4202(2) and 4219(b)(1), 29 U.S.C. §§ 1382(2) and 1399 (b)(1), which was received by the Vanguard Controlled Group, through Vanguard, on July 29, 2009 (the "Assessment").
25. The notice and attached invoice notified the Vanguard Controlled Group that it was required to discharge its liability in a lump sum payment on or before August 1, 2009, pursuant to ERISA § 4219(c) (5) (B), 29 U.S.C. § 1399(c) (5) (B), and Appendix E, Section 5(e)(2)(E) of the Central States Pension Plan.
26. The Vanguard Controlled Group has not paid the withdrawal liability due to the Pension Fund.
27. Each member of the Vanguard Controlled Group waives the right to request review of the Assessment pursuant to ERISA § 4219, 29 U.S.C. § 1399, to initiate arbitration with respect to the assessment pursuant to ERISA § 4221, 29 U.S.C. § 1401, or to otherwise challenge the Assessment.
28. Both the Pension Fund Trust Agreement and the Health and Welfare Trust Agreement provide for post-judgment interest due from the date the judgment is entered until the date of payment computed and charged on the entire judgment balance at an annualized interest rate equal to two percent (2%) plus the prime interest rate established by JPMorgan Chase Bank, NA for the fifteenth (15th) day of the month for which the interest is charged compounded annually.
29. Each Defendant waives service of process.
30. Each Defendant consents to personal jurisdiction and venue in the United States District Court for the Northern District of Illinois, Eastern Division.
31. Each Defendant consents to the immediate registration of this Consent Judgment.
32. Each Defendant waives the right to appeal this Consent Judgment.
A. That judgment be entered in favor of Plaintiffs, the Central States, Southeast and Southwest Areas Pension Fund and Howard McDougall, trustee, and against the Defendant Vanguard Services, Inc. for $10,978.20 in contributions, and $563.01 in interest (through July 31, 2009) awarded pursuant to ERISA §§ 502(g)(2) and 515, 29 U.S.C.§§ 1132(g) (2) and 1145.
B. That judgment be entered in favor of Plaintiffs, the Central States, Southeast and Southwest Areas Pension Fund and Howard McDougall, trustee, and against the Defendants Vanguard Services, Drivers, Inc., Vanguard Southeast, Inc., VMT Vanguard Companies, Inc., Vanguard Services (Canada), Inc., Vanguard of Delaware, Inc., CrossStone, LLC, Pineridge Insurance Company, Inc., and V.O. Freight Services, Inc., jointly and severally, in the amount of $4,769,353.60, awarded pursuant to ERISA §§ 502(g) (2) and 4301(b), 29 U.S.C. §§ 1132(g)(2) and 1451(b).
C. That judgment be entered in favor of Plaintiffs, the Central States, Southeast and Southwest Areas Health and Welfare Fund and Howard McDougall, trustee, and against the Defendant Vanguard Services, Inc., for $14,995.80 and $769.47 in interest (through July 31, 2009) awarded pursuant to ERISA §§ 502(g)(2) and 515, 29 U.S.C.§§ 1132(g) (2) and 1145.
D. Plaintiffs are awarded post-judgment interest from the date the judgment is entered until the date of payment computed and charged on the entire judgment balance at an annualized interest rate equal to two percent (2 %) plus the prime interest rate established by JPMorgan Chase Bank, NA for the fifteenth (15th) day of the month for which the interest is charged compounded annually.
E. This Consent Judgment shall not bar an action by the Plaintiffs against any of the Defendants under the doctrine of claim preclusion (res judicata) or issue preclusion (collateral estoppel) for any claim for contributions other than for the contributions due as a result of the severance payments identified in paragraphs 19 and 20, or for any claim for withdrawal liability other than for the Assessment as identified in paragraph 24.
F. That Plaintiffs are awarded execution for the collection of the judgment and cost granted hereunder and may immediately register the judgment.
G. Defendants waive their right to appeal this Consent Judgment.
This Agreement ("Agreement") is made and entered into by and between the Central States, Southeast and Southwest Areas Pension Fund ("Pension Fund"), and the Central States, Southeast and Southwest Areas Health and Welfare Fund ("Health and Welfare Fund") (collectively the "Funds") on the one hand, and Vanguard Services, Inc. ("Vanguard"), Driver's, Inc. ("DI"), Vanguard Southeast, Inc. ("VSE"), VMT Vanguard Companies, Inc. ("vmr), Vanguard Services (Canada), Inc. ("VANC"), Vanguard of Delaware, Inc. (NOD"), CrossStone, LLC ("CSS"), Pineridge Insurance Company, Inc. ("PINE"), and V.O. Freight Services, Inc. ("VOF"), on the other hand, each intending to be legally bound, and each agreeing as follows:
WHEREAS, the Pension Fund is a multiempioyer pension plan within the meaning of sections 3(2), 3(37), and 4001(a)(3) of the Employee Retirement Income Security Act of 1974, as amended ("ER/SA"), 29 U.S.C. §§ 1002(2), 1002(37) and 1301(a)(3).
WHEREAS, the Health and Welfare Fund is a multiemployer welfare plan within the meaning of sections 3(1) and 3(37) of ERISA, 29 U.S.C. §§ 1002(1) and 1002(37).
WHEREAS, Vanguard is an Indiana corporation with its principal place of business located in the State of Indiana, and is an "employer" and a "party in interest" as those terms are defined, respectively, by sections 3(5) and 3(14)(c) of ERISA, 29 U.S.C. §§1002(5) and 1002(14)(c).
WHEREAS, DI is an Ohio corporation that at all relevant times has been a wholly-owned subsidiary of Vanguard.
WHEREAS, VSE is a South Carolina corporation that at all relevant times has been a wholly-owned subsidiary of Vanguard.
WHEREAS, VMT is an Indiana corporation that at all relevant times has been a wholly-owned subsidiary of Vanguard.
WHEREAS, VANC is a Canadian corporation that at all relevant times has been a wholly-owned subsidiary of Vanguard.
WHEREAS, VOD is a Delaware corporation.
WHEREAS, at all relevant times James W. Malarney and Ronald D. Creager have owned, directly and indirectly, 100 percent of the voting stock of both Vanguard and VOD.
WHEREAS, CBS is an Indiana limited liability company that at all relevant times has been a wholly-owned subsidiary of VOD.
WHEREAS, PINE is a Barbados corporation that at alI relevant times has been a wholly-owned subsidiary of VOD.
WHEREAS, VOF is South Carolina corporation that at all relevant times has been a wholly-owned subsidiary of VOD.
WHEREAS, Vanguard was bound by certain collective bargaining agreements executed by and between itself and Local Unions affiliated with the International Brotherhood of Teamsters.
WHEREAS, pursuant to those collective bargaining agreements, Vanguard agreed to pay contributions to the Funds on behalf of certain covered employees.
WHEREAS, Vanguard executed certain documents with its current and former clients (Bandag, Inc. on August 24, 1989; Bandag, Inc. on January 1, 1995; Reynolds Metals, Inc. on March 22, 1989; CMM Transportation, Inc. on June 1, 1999; Reichhold Chemicals, Inc. on May 12, 1991; and Bridgestone/Firestone, The. on August 18, 1992), including all renewals, amendments, and extensions thereto (the "Lease Agreements"), pursuant to which Vanguard and the Funds contend these clients are liable to Vanguard for contributions and withdrawal liability incurred.
WHEREAS, Vanguard owes $10,978.20 in contributions to the Pension Fund and $14,995.80 in contributions to the Health and Welfare Fund (collectively the "Contributions') as well as $663.01 in interest to the Pension Fund through July 31, 2009, and $769.47 in interest to the Health and Welfare Fund through July 31, 2009 (collectively the "Interest"). The Contributions are owed as the result of severance pay paid in July 2008 to participants covered under a collective bargaining agreement and a participation agreement between Vanguard and Teamsters Local Union No. 628 requiring contributions to the Funds.
WHEREAS, Vanguard triggered a complete withdrawal under 29 U.S.C. § 1383 from the Pension Fund in 2008 (the "Withdrawal").
WHEREAS, on the date of the Withdrawal, Vanguard, VSE, DI, VMT, VANC, VOD, CSS, PINE, and VOF (the "Vanguard Controlled Group") were trades or businesses under common control within the meaning of section 4001(b)(1) of ERISA, 29 U.S.C. § 1301(b)(1), and the regulations promulgated thereunder.
WHEREAS, as a result of the Withdrawal, the Pension Fund contends that each member of the Vanguard Controlled Group is jointly and severally liable for withdrawal liability to the Pension Fund in the principal amount of $4,769,353.60, as determined pursuant to 29 U.S.C. §1381(b) (the "Withdrawal Liability").
NOW, THEREFORE, in consideration of the foregoing, the mutual promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby expressly acknowledged and will not be contested, and upon the terms and conditions hereinafter set forth, the Funds and each member of the Vanguard Controlled Group expressly AGREE AS FOLLOWS:
1. The Vanguard Controlled Group agrees to pay the Pension Fund $200,000 to be received by the Pension Fund in full on or before July 31, 2009. In addition, the Vanguard Controlled Group shall make 96 monthly payments of $9,000 to the Pension Fund with the first payment due August 20, 2009, and each successive payment due on the 20th day of each month thereafter. Each member of the Vanguard Controlled Group is jointly and severally liable for the payments due under this paragraph. The installment payment structure (that is, those payments due under this paragraph other than the $200,000 lump sum payment) will fulfill an outstanding balance of $500,000 accruing interest at 15% per year. The Vanguard Controlled Group shall not be allowed to prepay the installment payments due under this paragraph.
2. The Pension Fund has issued the Vanguard Controlled Group, through Vanguard, a Notice and. Demand for Payment of the Withdrawal Liability which calls for the lump sum payment of the $4,769,353.60 in withdrawal liability due on August 1, 2009 (the "Assessment"). Each member of the Vanguard Controlled Group waives any right it may have or may have had to review under 29 U.S.C. § 1399, arbitration under 29 §1401, or to otherwise challenge the Assessment.
3. Each member of the Vanguard Controlled Group warrants and represents to the Pension Fund that the contribution history for the periods set forth in Exhibit A to this Agreement does not understate the work history, contributions, or contribution base units of the Vanguard Controlled Group, the "employee at issue, as that term is defined by 29 U.S.C. § 1301(b)(1).
4. Each member of the Vanguard Controlled Group warrants and represents to the Funds that the financial information set forth in Exhibit B to this Agreement is correct and complete in all material respects.
5. Each member of the Vanguard Controlled Group warrants to the Pension Fund that there were no other trades or businesses under common control with it (within the meaning of 29 U.S.C. § 1301(b)(1)) on the date of the Withdrawal or at any other time within six years of the date of withdrawal other than the entities that are listed as part of the Vanguard Controlled Group in this Agreement.
6. Vanguard and the Funds agree to the execution of the Subordination Agreement attached hereto as Exhibit C.
7. Each member of the Vanguard Controlled Group agrees that the Funds shall have a first position security interest in any claims under the Lease Agreements. Said security interest shall be in all contract rights under the Lease Agreements, in the moneys due and to become due under those contract rights, and in all accounts and other proceeds arising from those contract rights, and in all proceeds of such accounts. At the Funds' request, each member of the Vanguard Controlled Group shall execute any documents for the Funds to establish, record, or maintain the security interest. No member of the Vanguard Controlled Group shall assign, settle, compromise, or impair the rights of the Funds or any member of the Vanguard Controlled Group under the Lease Agreements without the express written consent of the Funds. Further, each member of the Vanguard Controlled Group agrees and acknowledges that the Funds may assign, settle, compromise, or impair any claims under the Lease Agreements without the consent of any member of the Vanguard Controlled Group, and each member of the Vanguard Controlled Group agrees to execute any documents necessary to effectuate such assignment, settlement, compromise, or impairment.
8. Each member of the Vanguard Controlled Group warrants and represents to the Funds that it has not assigned, settled, compromised, or impaired any rights under the Lease Agreements. Each member of the Vanguard Controlled Group further warrants and represents to the Funds that it is not in breach of the Lease Agreements, and that it does not have either actual or constructive knowledge of any defenses to enforcement of the Lease Agreements.
9. Each member of the Vanguard Controlled Group warrants and represents that it believes that each of the Lease Agreements obligated the other party to each Lease Agreement to indemnify Vanguard for, or to otherwise be liable to Vanguard, for any contributions or withdrawal liability due to the Funds.
10. Each member of the Vanguard Controlled Group shall execute a Consent Judgment providing the Pension Fund a judgment for the full amount of the Withdrawal Liability against each member of the Vanguard Controlled Group, jointly and severally, as well as against Vanguard and in favor of the Pension Fund and the Health and Welfare Fund for the full amount of the Contributions and Interest owed to each of them. The Consent Judgment shall provide for post-judgment interest at the rate set forth in the Funds' Trust Agreements with respect to the entire judgment. The Consent Judgment shall be in the form attached hereto as Exhibit D. Each member of the Vanguard Controlled Group shall agree to the motion for entry of such Consent Judgment, and each member of the Vanguard Controlled Group hereby waives any arguments or defenses to the entry of said Consent Judgment including, without limitation, service of process, venue, and personal jurisdiction. Each member of the Vanguard Controlled Group further waives any right to appeal said Consent Judgment. Upon the Vanguard Controlled Group's payment of all amounts set forth in paragraph I. and the completion of any litigation (including, without limitation, the resolution of any appeals, proceedings for discretionary review, proceedings on remand, and post-judgment proceedings) that was initiated by the Funds prior to the Vanguard Controlled Group's payment of all the amounts set forth in paragraph I, and the completion of any litigation initiated by Vanguard pursuant to paragraph 12, the Funds shall take all steps necessary to evidence a satisfaction of the Consent Judgment.
11. Each member of the Vanguard Controlled Group, along with their past, present, and future officers, directors, shareholders, and employees shall assist the Funds in all efforts to enforce rights under the Consent Judgment and the Lease Agreements including, without limitation, the indemnification rights under said Lease Agreements. Such assistance shall include, without limitation, providing records and affidavits, and appearing for oral examinations and trials. The Funds shall not be required to provide reimbursement to any member of the Vanguard Controlled Group or their past, present, and future officers, directors, shareholders, and employees for the time spent assisting the Funds, or for any other consequential or incidental costs. However, the Funds will reimburse a member of the Vanguard Controlled Group, or its past, present, and future officers, directors, shareholders, and employees for any actual and direct out-of-pocket costs incurred by a member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, and employees. Notwithstanding any other provision of this paragraph, the Funds shall not be required to reimburse any member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, and employees for any attorney's fees or costs should any member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, or employees choose to retain or employ legal counsel or other professional assistance. Further, notwithstanding any other provision of this paragraph, the Funds shall not be required to indemnify any member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, and employees from any expenses incurred as the result of actions taken by any party other than the Funds including, without limitation, claims filed by other parties against any member of the Vanguard Controlled Group or its past, present, or future officers, directors, shareholders, and employees, or subpoenas or other legal process issued by other parties to any member of the Vanguard Controlled Group or its past, present, or future officers, directors, shareholders, and employees. Finally, notwithstanding any other provision of this paragraph, the Funds shall not be responsible for reimbursing any member of the Vanguard Controlled Group or its past, present or future officers, directors, shareholders or employees for any expenses not expressly approved in writing in advance by the Funds. Except as provided in paragraph 12, the assistance required by this paragraph shall not require Vanguard to file and/or prosecute any suit against any third-party.
12. In the event the Funds deem it advisable that Vanguard file suit against any third-party to enforce rights under the Lease Agreements or the Consent Judgment, each member of the Vanguard Controlled Group, along with their past, present, and future officers, directors, shareholders, and employees shall cause Vanguard to file said suit, and shall provide assistance in prosecuting said suit; provided, however, that no suit may be filed pursuant to this paragraph until the Funds have provided the Vanguard Controlled Group with written approval of the legal counsel selected by the Funds to assist in the prosecution of any such suit. Such assistance shall include, without limitation, providing records and affidavits, and appearing for oral examinations and trials. The suit shall not be dismissed, compromised, settled or released without the express written consent of the Funds. No appeal or discretionary review shall be sought in the suit without the express written consent of the Funds. The Funds shall not be required to provide reimbursement to any member of the Vanguard Controlled Group or their past, present, and future officers, directors, shareholders, and employees for the time spent assisting the Funds, or for any other consequential or incidental costs. However, the Funds will reimburse a member of the Vanguard Controlled Group, or its past, present, and future officers, directors, shareholders, and employees for any actual and direct outof-pocket costs incurred by a member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, and employees. The Funds agree to pay and be responsible for all attorney's fees and costs incurred by any member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, and employees resulting from the prosecution of a suit filed pursuant to this paragraph; provided, however, that the Funds shall not be responsible for any attorney's fees and costs incurred in defending any action filed against any member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, and employees including, without limitation, a counterclaim filed in an action. Further, notwithstanding any other provision of this paragraph, the Funds shall not be required to indemnify any member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, and employees from any expenses incurred as the result of actions taken by any party other than the Funds including, without limitation, claims filed by other parties against any member of the Vanguard Controlled Group or its past, present, or future officers, directors, shareholders, and employees, or subpoenas or other legal process issued by other parties to any member of the Vanguard Controlled Group or its past, present, or future officers, directors, shareholders, and employees. Finally, notwithstanding any other provision of this paragraph, the Funds
13. No member of the Vanguard Controlled Group shall be entitled to any credit for any third-party payments received by the Funds under the Consent Judgment, the Lease Agreements or with respect to payments made on account of a settlement of any claims arising under the Consent Judgment or the Lease Agreements.
14. On condition of the faithful and timely performance of all of the payments and obligations set forth in this Agreement, and in further reliance upon the warranties and representations contained in this Agreement, the Funds covenant not to execute the Consent Judgment or enforce against, or otherwise attempt to collect any monies due under the Consent Judgment from the members of the Vanguard Controlled Group, or its past, present, or future officers, directors, shareholders and employees. This covenant shall not bar the Funds from taking any act to assert claims under the Lease Agreements including post-judgment discovery and taking action against third-parties. This covenant shall not prevent the Funds from registering the Consent Judgment in another court, or filing the Consent Judgment as a lien against the property of the Vanguard Controlled Group in the appropriate federal, state, or local jurisdictions. Upon the Vanguard Controlled Group's payment of all a the amounts due under paragraph 1, and the completion of any litigation (including, without limitation, appeals, discretionary review, remands, and post-judgment proceedings) as provided in paragraphs 10 and 12, the Funds shall execute all documents necessary to evidence a release of any lien on Vanguard Controlled Group property.
15. Except as warranted in paragraphs 8 and 9, neither the Vanguard Controlled Group nor its past, present, or future officers, directors, shareholders and employees make any representations or warranties as to whether the Funds have the legal standing or ability to assert claims under the Lease Agreements, as to whether the Funds can obtain judgments against third-parties under the Lease Agreements, or as to whether any judgments entered against third-parties under the Lease Agreements in the Funds' favor can be collected. Except in the event of non-compliance with paragraphs 10 and 12 of this Agreement, or in the event that either of the warranties in paragraphs 8 or 9 is incorrect, the Funds' inability to collect from third-parties under the Lease Agreement shall not constitute a breach by the Vanguard Controlled Group of any of the terms of this Agreement, and shall not be cause to impose any additional obligations against the Vanguard Controlled Group.
16. Upon the occurrence of an Event of Default under this Agreement, the covenant granted in paragraph 14 shall be null and void.
17. Any of the following conditions constitutes an Event of Default under this Agreement: (1) the failure of the Vanguard Controlled Group to make any payment due under this Agreement in full within 10 business days of the payment's due date; (2) a general assignment by any member of the Vanguard Controlled Group for the benefit of creditors; (3) the filing by any member of the Vanguard Controlled Group of a petition in voluntary bankruptcy; (4) the filing by any member of the Vanguard Controlled Group of a petition or answer seeking reorganization of any member of the Vanguard Controlled Group or an arrangement or readjustment of indebtedness under federal bankruptcy law; (5) the appointment of a receiver or trustee of the property of any member of the Vanguard Controlled Group; (8) an adjudication that any member of the Vanguard Controlled Group is bankrupt or insolvent; (7) the failure of any member of the Vanguard Controlled Group or their officers, directors, shareholders or employees to comply with the terms of this Agreement including, without limitation, the requirements of paragraphs 10 and 12; or (8) if any of the warranties in paragraphs 3, 4, 5, 8, or 9 is incorrect.
18. In the event that any member of the Vanguard Controlled Group should file for bankruptcy protection under federal law (or has an involuntary bankruptcy petition filed against it), or a similar proceeding is filed by or against any member of the Vanguard Controlled Group under state law, each member of the Vanguard Controlled Group agrees not to oppose, and to facilitate as requested, any steps the Funds deem necessary to protect their interests in the Consent Judgment and the Lease Agreements. This includes, but is not limited to, an obligation by each member of the Vanguard Controlled Group and its past, present, and future officers, directors, shareholders, and employees to cooperate with the Funds' efforts to lift the automatic stay, provide records and affidavits, and appear for oral examinations and trials. Each member of the Vanguard Controlled Group, along with its past, present, and future officers, directors, shareholders, and employees shall assist the Funds in all efforts to enforce rights under the Lease Agreements including, without limitation, the indemnification rights under said Lease Agreements. Such assistance shall include, without limitation, providing records and affidavits, and appearing for oral examinations and trials. The Funds shall not be required to provide reimbursement to any member of the Vanguard Controlled Group or their past, present, and future officers, directors, shareholders, and employees for the time spent assisting the Funds, or for any other consequential or incidental costs. However, the Funds will reimburse a member of the Vanguard Controlled Group, or its past, present, and future officers, directors, shareholders, and employees for any actual and direct out-of-pocket costs incurred by a member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, and employees. Notwithstanding any other provision of this paragraph, the Funds shall not be required to reimburse any member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, and employees for any attorney's fees or costs should any member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, or employees choose to retain or employ legal counsel or other professional assistance. Further, notwithstanding any other provision of this paragraph, the Funds shall not be required to indemnify any member of the Vanguard Controlled Group or its past, present, and future officers, directors, shareholders, and employees from any expenses incurred as the result of actions taken by any party other than the Funds including, without limitation, claims filed by other parties against any member of the Vanguard Controlled Group or its past, present, or future officers, directors, shareholders, and employees, or subpoenas or other legal process issued by other parties to any member of the Vanguard Controlled Group or its past, present, or future officers, directors, shareholders, and employees. Finally, notwithstanding any other provision of this paragraph, the Funds shall not be responsible for reimbursing any member of the Vanguard Controlled Group or its past, present or future officers, directors, shareholders or employees for any expenses not expressly approved in writing in advance by the Funds.
19. This Agreement is entered into in the State of Illinois and shall be construed and interpreted in accordance with its laws without regard to its choice of laws principles.
20. Any person executing this Agreement in a representative capacity represents that he or she is duly authorized to execute this Agreement on behalf of his principal.
21. This Agreement contains the entire agreement between the parties with respect to the transaction contemplated herein and supersedes all prior agreements and understandings whatsoever between the parties.
22. The recitals of this Agreement are hereby incorporated into and made a part of this Agreement by reference thereto as if fully restated herein.
23. All of the parties to this Agreement certify that they have read the terms of this Agreement, that they have had an opportunity to discuss it with their attorneys, and that they understand its terms and effects.
24. The canon of contract interpretation that ambiguities, if any, in a writing be construed against the drafter shall not apply to this Agreement.
25. This Agreement may be signed in multiple counterparts, each of which shall have the same effect as originals, but all such counterparts collectively shall constitute the same instrument.
26. The date of this Agreement shall be the date of the latest signature.
IN WITNESS WHEREOF, each of the Funds and each member of the Vanguard Controlled Group, by their authorized representatives, have executed this Agreement on the dates entered below:
This matter coming to be heard on Plaintiffs' Motion to Revive Judgment, the Court finds, based upon the allegations of the petition, the representations of the Plaintiffs, and evidence taken, that:
1. A consent judgment was entered by this Court on August 11, 2009, in the total amount of $4,780,894.81 in favor of the Central States, Southeast and Southwest Areas Pension Fund (the "Pension Fund"), and $15,765.27 in favor of the Central States, Southeast and Southwest Areas Health and Welfare Fund (the "Health Fund" and together with the Pension Fund collectively referred to as the "Funds"), plus post-judgment interest (the "Consent Judgment").
2. Post-judgment interest through August 20, 2018, has accrued on the Consent Judgment in favor of the Pension Fund in the amount of $1,332,105.13, and in favor of the Health Fund in the amount of $9,256.06.
3. The Pension Fund has collected $1,383,422.40 on its portion of the Consent Judgment and the Health Fund has collected $0.00 on its portion of the Consent Judgment.
4. Rule 69 of the Federal Rules of Civil Procedure directs that Illinois law controls the manner in which judgments entered by this Court are executed. Under 735 ILCS 5/12-108, judgments may not be enforced beyond seven (7) years after the initial entry of judgment, unless revived as provided under 735 ILCS 5/2-1601 and in accordance with 735 ILCS 5/2-1602. A judgment may be revived by filing a petition in the original case in which the judgment was entered and providing notice of the petition to interested parties. 735 ILCS 5/2-1602(b) and (c).
5. Pursuant to 735 ILCS 5/2-1602(d), an order reviving a judgment shall be for the original amount of the judgment.
6. Defendant Vanguard Services, Inc. (operating under the name MC3, Inc.) has filed for bankruptcy protection in the Southern District of Indiana. See In re: MC3, Inc., Case No. 16-6742. However, the bankruptcy court has granted the Pension Fund relief from the automatic stay so that it could seek revival of the Consent Judgment.
7. Other than Vanguard Services, Inc., none of the other Defendants have filed for bankruptcy.
