EXHIBIT 10.5
EXCESS CLAIMS ASSUMPTION AGREEMENT
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THIS EXCESS CLAIMS ASSUMPTION AGREEMENT (this "Agreement") is made and
entered into this 24th day of January, 1997, by and among Xxxxxx, Fargo & Co., a
Delaware corporation ("Xxxxxx Fargo"), Loomis Holding Corporation (to be renamed
LFC Holding Corporation), a Delaware corporation ("Loomis Holding"), Xxxxxx
Armored Inc. (to be renamed Xxxxxx, Fargo & Co.), a Texas corporation ("Xxxxxx
Armored" and, together with Xxxxxx Fargo and Loomis Holding, the "Newco
Parties"), and the Loomis Stockholders Trust, a Delaware business trust (the
"Business Trust"). Capitalized terms used herein and not otherwise defined shall
have the meanings given them in the Contribution Agreement (as hereinafter
defined).
RECITALS
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WHEREAS, the Newco Parties, Xxxx-Xxxxxx Security Corporation, a
Delaware corporation ("Xxxx-Xxxxxx"), Xxxxx Fargo Armored Service Corporation, a
wholly owned subsidiary of Xxxx-Xxxxxx, and the Business Trust have executed and
delivered that certain Contribution Agreement; pursuant to which the Business
Trust, among other things, (i) has agreed to assume the liabilities and
obligations of the Newco Parties with respect to the Loomis Casualty and
Employee Claims and (ii) has certain indemnity and other payment obligations
pursuant to Articles III and XII (the "LST Obligations"), in the case of clause
(ii), on the terms and conditions set forth in the Contribution Agreement;
WHEREAS, the Business Trust has arranged for the provision of certain
insurance coverage to make payments in respect of certain Casualty and
Employment Claims pursuant to an Early Program Close-Out Agreement (the
"Close-Out Agreement") dated as of January 24, 1997 between Xxxxxx Armored and
the insurance companies named therein; and
WHEREAS, the Loomis Indemnity Claims Trust, a New York grantor trust
(the "Indemnity Trust"), was formed pursuant to the Contribution Agreement to
make payments in respect of the LST Obligations and the Loomis Casualty and
Employee Claims not otherwise covered by the Close-Out Agreement, together with
the costs of administration thereof, to the extent of the corpus of the
Indemnity Trust.
NOW, THEREFORE, in consideration of the premises and the consideration
set forth in the Contribution Agreement, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree as follows:
1. The Business Trust hereby assumes the Loomis Casualty and
Employee Claims and agrees to indemnify and hold harmless the Newco Parties from
and against (i) the Loomis Casualty and Employee Claims and any Indemnifiable
Losses (as defined in the Contribution Agreement) to the extent relating to,
resulting from or arising out of the Loomis Casualty and Employee Claims and
(ii) the LST Obligations; provided, that, to the extent that any Loomis Casualty
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and Employee Claim (or portion thereof) or any such Indemnifiable Loss (or
portion thereof) or any LST Obligation (or portion thereof) is paid to, or to a
third party on behalf of, the Newco Parties (x) pursuant to the Close-Out
Agreement or (y) from the corpus of the Indemnity Claims Trust, such payment
shall satisfy the Business Trust's obligation to the Newco Parties hereunder
with respect to such Loomis Casualty and Employee Claim (or such portion
thereof), such Indemnifiable Loss (or such portion thereof) or such LST
Obligation (or portion thereof).
2. Nothing in this Agreement, express or implied, is intended or
shall be construed to confer upon, or to give to, any person, firm, or
corporation, other than the parties hereto and their respective successors and
assigns, any right or remedy under or by reason of this Agreement or any term,
covenant, or condition hereof, and all of the terms, covenants, conditions,
promises and agreements contained in this Agreement shall be for the sole and
exclusive benefit of the parties hereto and their respective successors and
assigns.
3. This Agreement is executed and delivered pursuant to the
Contribution Agreement and may be executed in any number of counterparts, and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts together shall constitute but one and the same
instrument.
4. This Agreement, including, without limitation, the
interpretation, construction, validity and enforceability thereof, shall be
governed by the laws (other than the conflict of laws rules) of the State of New
York.
5. This Agreement may be modified or amended by a written instrument
signed by each of the parties hereto, but only with the prior written consent of
Xxxx-Xxxxxx.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date first above written.
XXXXXX, FARGO & CO.
By: Xxxxx X. Xxxxxxxx, Xx.
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Name:
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Title:
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LOOMIS HOLDING CORPORATION
By: Xxxxx X. Xxxxxxxx, Xx.
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Name:
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Title:
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XXXXXX ARMORED INC.
By: Xxxxx X. Xxxxxxxx, Xx.
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Name:
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Title:
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LOOMIS STOCKHOLDERS TRUST
By:/s/ Xxxxxxxxx X. Xxxx, Xx.
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Xxxxxxxxx X. Xxxx, Xx.
Manager
