EXHIBIT 10.14
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT is entered into as of the 22nd day of March, 1999
by and between Xxxx-Xxxxxx Security Corporation ("BWSC") and Xxxxxx, Fargo &
Co. ("LFC"). Collectively or individually, BWSC and LFC may be referred to as
the "Parties" or the "Party." Capitalized terms in this Agreement which are
not herein defined shall have the same meaning as they have in the
Contribution Agreement (as hereinafter defined).
WHEREAS, BWSC AND LFC, among other parties, entered into the Contribution
Agreement dated as of November 28, 1996 ("Contribution Agreement") whereby the
Parties agreed to defend and indemnify each other for certain stated losses
and liabilities;
WHEREAS, under the Contribution Agreement, BWSC agreed to defend and
indemnify LFC for certain stated environmental losses and liabilities related
to the operations of Xxxxx Fargo Armored Service Corporation and its
subsidiaries ("WFASC");
WHEREAS, prior to December 31, 1998, LFC had submitted claims for
indemnification related to the WFASC environmental losses and liabilities in
an amount in excess of $1,200,000;
WHEREAS, by letter dated December 21, 1998, LFC submitted an estimate of
future WFASC environmental losses and liabilities ranging from $1,428,000 to
$9,981,000 ("Environmental Letter");
WHEREAS, BWSC objected to certain claims for indemnification made by LFC
related to WFASC environmental losses and liabilities;
WHEREAS, the Parties desire to resolve and settle all actual or potential
environmental claims, liabilities and obligations that LFC has or may have in
the future against BWSC and its subsidiaries.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants, undertakings and conditions herein, and for other good and valuable
consideration, the adequacy of which is hereby acknowledged, the Parties agree
as follows:
1) Consideration. Within thirty (30) days of the execution of this
Settlement Agreement, BWSC will pay to LFC, via wire transfer, one million
four hundred fifty thousand dollars and no cents ($1,450,000.00).
2) Releases and Indemnification. LFC, on behalf of itself and its current
and former officers, directors, employees, agents, shareholders (other than
BWSC), attorneys, subsidiaries, predecessors, successors and assigns, or
any one claiming by, through, or under them, hereby releases, relinquishes
and forever discharges BWSC, its current and former parents, subsidiaries
(including, without limitation, WFASC), affiliated companies (with the
exception of LFC), and their respective predecessors, successors, assigns,
and all their respective current and former officers, directors, employees,
agents, stockholders, attorneys, heirs and representatives, from and
against any and all Indemnifiable Losses arising out of or in any way
connected with, directly or indirectly, any acts, omissions to act, or any
other form of obligation or omission by BWSC, or any of its aforementioned
privies, related to any environmental claim, environmental liability or
environmental obligation arising out of or related to the operations of
WFASC, including, without limitation, all environmental claims,
environmental liabilities or environmental obligations arising out of or in
any way relating to the Contribution Agreement (including, without
limitation, Sections 4.20 and 12.1 and Schedule 4.20(a), including
Attachment A) and the Environmental Letter, which LFC or any of its
aforementioned privies, and their respective successors and assigns ever
had, now have, or hereafter may have, whether grounded in tort or contract
or otherwise, in any and all courts or other forums, of whatever kind or
nature, whether known or unknown ("Released Claims"). Furthermore, LFC
agrees to defend and indemnify BWSC and all of the aforementioned privies,
for any of the Released Claims made by a third
party. BWSC agrees to provide LFC with prompt written notice of any such
third party claim. Furthermore, for any third party claim that LFC accepts
the obligation to defend and indemnify BWSC and all of the aforementioned
privies under this section, LFC has the right to control the defense or
settlement of such third party claims; provided, however, LFC will not
agree to settle any such third party claim in a manner that would result in
any additional cost, expense, liability or loss to BWSC or the
aforementioned privies. Notwithstanding anything to the contrary herein,
the foregoing release shall not extend to nor shall be construed to release
the Parties' obligations under this Settlement Agreement.
3) Other Indemnification Obligations. Expect for matters addressed
herein, this Settlement Agreement shall have no effect on any other
indemnification obligations under the Contribution Agreement, and each
Party hereby specifically reserves any claims or defenses thereto that such
Party may have with respect to such other indemnification claims,
including, without limitation, indemnification claims for cargo losses and
taxes.
4) Representation and Warranties. LFC represents and warrants the
following:
a) Prior to December 31, 1998, LFC paid or agreed to pay invoices to
third parties related to environmental matters listed on Schedule
4.20(a), including Attachment A, of the Contribution Agreement in an
amount in excess of one million two hundred thousand dollars
($1,200,000).
b) As of the date hereof, LFC's best estimate of environmental costs
associated environmental matters listed on Schedule 4.20(a) of the
Contribution Agreement incurred or to be incurred subsequent to
December 31, 1998 is an amount in excess of one million five hundred
thousand dollars ($1,500,000).
5) Covenants. LFC covenants the following:
a) LFC will continue to provide BWSC copies of all invoices paid and
such other information that BWSC may reasonably request related to the
Released Claims.
b) LFC will continue its efforts to collect monies on behalf of BWSC,
as provided in Section 12.1(c) of the Contribution Agreement, from any
state UST funds related to the environmental matters listed on Schedule
4.20(a) of the Contribution Agreement and pay such monies as collected
to BWSC.
6) Miscellaneous.
a) This Settlement Agreement may be executed and delivered in
multiple counterparts, each of which when so executed and delivered
shall be an original, which collectively shall together constitute one
and the same instrument and agreement.
b) This Settlement Agreement is solely for the benefit of the Parties
and such other persons to the extent identified and provided herein,
and no provision of this Settlement Agreement shall be deemed to confer
upon other third parties any remedy, claim, liability, reimbursement,
cause of action or other right.
c) This Settlement Agreement shall be binding upon and inure to the
benefit of BWSC, its respective current and former parties,
subsidiaries and affiliates, and their respective predecessors,
successors and assigns, and their former and current officers,
directors, employees, agents, attorneys, and stockholders of all such
parties and LFC, its respective current and former parents,
subsidiaries and affiliates, and their respective predecessors,
successors and assigns, and their former and current officers,
directors, employees, agents, attorneys, and stockholders of all such
parties.
d) The Parties represent and warrant that they have entered into this
Settlement Agreement based upon their own independent assessment of the
rights and obligations of the Parties and not based upon any
representations (other than as provided herein) made by the other party
to this Settlement Agreement.
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e) All understandings and agreements, written or oral, heretofore
related to the subject matter addressed in this Settlement Agreement
between and among BWSC and LFC are merged into this Settlement
Agreement, which alone fully and completely expresses their agreement.
This Settlement Agreement constitutes the entire agreement between
Parties related to the subject matter hereof. This Settlement Agreement
may not be amended or modified, except by a written amendment duly
executed by the Parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement
to be executed by their authorized representatives as of the day and year
first written above.
XXXX-XXXXXX SECURITY CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
Its: President and Chief Executive Officer
XXXXXX, FARGO & CO.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
Its: Chief Financial Officer
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