SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
Exhibit 10.14
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
This Settlement Agreement and Release of Claims (“AGREEMENT”), made and entered into as of the day and date set forth below, by XXXXX XXXX, individually and as Administratrix of the Estate of Xxxxx Xxxxxx Xxxx and the Estate of Xxxxxxx Xxxxx Fish (“RELEASOR”) to and in favor of BLACKROCK CAPITAL INVESTMENT CORPORATION, f/k/a BLACKROCK XXXXX CAPITAL CORPORATION, AND 52ND STREET ADVISORS, LLC, f/k/a BLACKROCK XXXXX CAPITAL ADVISORS, LLC (collectively, “BLACKROCK”), witnesseth that:
RECITALS
WHEREAS, RELEASOR is a plaintiff in a lawsuit styled, “XXXXX XXXX, et al, Plaintiffs, v. AL SOLUTIONS, INC., et al, Defendants,” Xxxxxxx County, West Virginia Civil Action No. 11-C-88W (the “LITGATION”), consolidated with “XXXXXXX X. XXXXX, et al., Plaintiffs, v. AL SOLUTIONS, INC., et al, Defendants,” Xxxxxxx County, West Virginia Civil Action No. 11-C-90W (collectively the “CONSOLIDATED LITIGATION”), alleging, among other things, wrongful death claims against BLACKROCK as a result of an accident which took place on December 9, 2010;
WHEREAS, RELEASOR and BLACKROCK desire to resolve any and all matters and claims arising out of the LITIGATION as between them;
NOW THEREFORE, in consideration of the promises, payments and covenants herein set forth, and for other good and valuable consideration, the adequacy and sufficiency of which are acknowledged by all parties, the parties hereby agree as follows:
AGREEMENT
| 1. | Conditions |
The terms of this AGREEMENT are contingent on the court approving, to the extent required, all of the settlements reached between BLACKROCK and the plaintiffs in the CONSOLIDATED LITIGATION, and dismissal of RELEASOR’S claims in the LITIGATION with prejudice.
| 2. | Payment |
Within ten business days after the condition set forth in Paragraph 1 is met and this AGREEMENT is signed, BLACKROCK shall cause to be paid to RELEASOR the sum of Ten Million Three Hundred Twenty Thousand Dollars ($10,320,000.00), made payable as directed by Addendum No. 1. RELEASOR shall be responsible for the payment of any liens or charges against this payment.
| 3. | Release |
RELEASOR, for herself and for her heirs, executors, administrators, personal representatives, insurers, successors and assigns, and for the Estate of Xxxxx Xxxxxx Xxxx and the Estate of Xxxxxxx Xxxxx Fish, does hereby fully and unconditionally release, acquit and forever discharge BLACKROCK CAPITAL INVESTMENT CORPORATION, 00XX XXXXXX ADVISORS, LLC, and any parents, subsidiaries, divisions, affiliates, successors, predecessors, assignees, agents, directors, officers, employees, attorneys, accountants, and any other persons, firms, or entities in any way related to BLACKROCK (collectively, “the BlackRock Entities”), jointly and severally, from any and all civil and/or administrative actions, causes of action, proceedings, claims, demands, wrongful death claims, rights, costs, loss of services, expenses, and compensation of any kind or nature whatsoever, howsoever arising, known or unknown, suspected or unsuspected, disclosed or undisclosed, absolute or contingent, whether asserted in
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the LITIGATION or otherwise, that RELEASOR now has, may have or ever had, or may at any time in the future have, against the BlackRock Entities, arising from or in any way related to the incident of December 9, 2010 that is the subject of the LITIGATION. The payment provided for in Paragraph 2 of this AGREEMENT is accepted in full satisfaction, extinguishment and bar of all such causes of action and claims against the BlackRock Entities arising from or relating to the incident of December 9, 2010, including the claims and causes of action that are the subject of the LITIGATION.
| 4. | Non-Admission |
It is expressly understood and agreed that this AGREEMENT represents a compromise of disputed claims. The payment and other considerations set forth herein, including the mutual promises and agreements, do not constitute and are not to be construed as an admission of liability, responsibility or fault by BLACKROCK. BLACKROCK denies any and all negligence, liability, responsibility, or fault in connection with the claimed personal injury or otherwise.
| 5. | Representations and Warranties |
A. RELEASOR represents and warrants that no promise or inducement has been offered except as herein set forth; that this AGREEMENT is executed without reliance upon any statement or representation by the persons or parties released or their representatives concerning the nature and extent of the injuries and/or damages and/or legal liability therefor.
B. RELEASOR represents and warrants that she is of legal age, legally competent, and authorized to execute this AGREEMENT.
C. RELEASOR represents and warrants that she is the sole owner of the claims for damages allegedly suffered as a result of the events which are the subject matter of the LITIGATION.
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D. RELEASOR represents and warrants that all medical, hospital and other expenses arising out of the aforementioned accident, injury or event have been paid or will be paid.
E. RELEASOR represents and warrants that any and all liens will be satisfied out of the payment provided for in this AGREEMENT.
F. RELEASOR represents and warrants that no person, firm or corporation other than RELEASOR and her attorneys of record, has any right to share in the payment provided for in this AGREEMENT except as may be provided by the Court upon approval of the wrongful death claims asserted by RELEASOR.
G. RELEASOR represents and warrants that no other person, firm, or entity has the right to proceed by way of subrogation or otherwise against the parties hereby released.
H. RELEASOR represents and acknowledges that the terms of this AGREEMENT have been explained to her by her counsel of record.
The warranties and recitals contained herein are intended to be covenants of the parties, are a material part of this agreement, and are intended to be binding on the parties.
| 6. | Taxation |
The parties acknowledge that BLACKROCK has made no representations regarding state or federal taxation of any of the amounts provided for in this AGREEMENT, including Addendum No. 1. The parties are relying solely on their own advisors for assistance with issues of taxation. In the event that a question should arise about the taxability of any portion of this settlement amount, each party shall be responsible for paying its own tax obligations, as well as any penalties, fines, attorneys’ fees, accountants’ fees, or any other such costs, if any, that are incurred in the resolution of any question of taxability.
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| 7. | Confidentiality |
From the date of the execution of this Agreement, RELEASOR agrees that the amount, terms, and conditions of the settlement with BLACKROCK are confidential except:
| a) | as may be necessary to seek and obtain Court approval of any settlement pursuant to X.Xx. Code § 55-7-7, et seq. and X.Xx. Code § 44-10-14 and including disclosure to potential beneficiaries; |
| b) | to RELEASOR’S immediate family, her attorneys, tax preparers, financial advisors, governmental agencies and/or courts of law each of whom shall be informed of this confidentiality obligation and of his/her obligation to abide by it; |
| c) | in response to a Court Order, directive or request as may otherwise be required by law; |
| d) | to enforce the terms of this Agreement, |
| e) | to local, state or federal taxing authorities, state or federal security regulatory authorities, lenders or auditors of counsel to the parties upon their request; |
| f) | in any court proceeding in which RELEASOR’S financial status/rights is/are at issue and it is necessary for RELEASOR to enforce and/or defend against any claims, rights and/or positions he/she may have against parties other than BLACKROCK; or |
| g) | to the extent disclosure is specifically consented to by both RELEASOR and BLACKROCK; |
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From the date of the execution of this Agreement, counsel for RELEASOR shall not be permitted to identify BLACKROCK in any promotional or marketing material or disclose the specific amounts paid by each defendant. Counsel for RELEASOR shall be permitted to discuss the global resolution, including the total amount of the global settlement, of the LITIGATION and CONSOLIDATED LITIGATION but if asked specifically about BLACKROCK and/or the settlement with BLACKROCK, counsel shall only be permitted to state: “All matters with BLACKROCK have been resolved and I/we are not permitted to speak about the specifics of the settlement under the terms and conditions of the settlement agreement.”
| 8. | Successors in Interest |
This AGREEMENT is binding upon and shall inure to the benefit of the parties and their respective successors, assigns, heirs, and representatives.
| 9. | Construction of Agreement |
The wording of this AGREEMENT was prepared, reviewed and accepted by the parties and their counsel prior to its execution. No party shall be entitled to have any wording of this AGREEMENT construed against any other party in the event of any dispute arising between them in connection with it.
| 10. | Entire Agreement |
This AGREEMENT, and the stipulation for dismissal herein provided for, constitute the sole, entire, and complete agreement of the parties relating in any way to the subject matter hereof. No other statements, promises, or representations have been made by any party to the other or relied upon, and no consideration has been or is offered, expected, or held out other than as may be expressly provided herein. All prior discussions and negotiations have been and are merged and integrated into, and are superseded, by this AGREEMENT.
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| 11. | Execution in Counterpart |
This AGREEMENT may be executed in counterpart, and each is effective as an original.
IN WITNESS WHEREOF, this AGREEMENT has been signed by the RELEASOR as shown below.
| /s/ Xxxxx Xxxx |
| Xxxxx Xxxx, individually and as Administratrix of the Estate of Xxxxx Xxxxxx Xxxx and the Estate of Xxxxxxx Xxxxx Fish |
Taken, sworn to and subscribed before me, this 22nd day of November, 2016.
| /s/ Xxxxxxxx X. Xxxxxxxx |
| Notary Public |
My Commission Expires: April 12, 2021
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| BLACKROCK CAPITAL INVESTMENT CORPORATION, f/k/a BLACKROCK XXXXX CAPITAL CORPORATION and 00XX XXXXXX ADVISORS, LLC, f/k/a BLACKROCK XXXXX CAPITAL ADVISORS, LLC | ||
| By: | /s/ Xxxxx Xxxxx | |
Taken, sworn to and subscribed before me, this 22nd day of November, 2016.
| /s/ Xxxxx Xxxxx |
| Notary Public |
My Commission Expires: December 27, 2017
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Addendum No. 1
This Addendum No. 1 (“Addendum”) is entered into by the above-referenced parties and is hereby incorporated into the Settlement Agreement and Release of Claims signed in this matter.
Payments
The total consideration set forth in both Settlement Agreement and Release of Claims, specifically TEN MILLION THREE HUNDRED TWENTY THOUSAND Dollars ($10,320,000.00), shall be paid as set forth below:
A. Payments due at the time of settlement as follows:
$8,549,176.00 up-front cash, inclusive of attorney fees and expenses
B(1). $550,000.00 of the above-referenced consideration shall be used to fund the following Periodic Payments to Xxxxx Xxxx, to be paid by the appropriate Assignee as per the Consent to Qualified Assignment and the Right to Purchase an Annuity paragraphs below:
$2,011.26, monthly, guaranteed for thirty (30) years and continuing for life, beginning March 15, 2017.
B(2). $552,097.00 of the above-referenced consideration shall be used to fund the following Periodic Payments to Xxxxxxx Xxxx, to be paid by the appropriate Assignee as per the Consent to Qualified Assignment and the Right to Purchase an Annuity paragraphs below:
$2,500.00, monthly, guaranteed for twenty (20) years only, beginning March 1, 2017.
$50,000.00 guaranteed lump sum payable November 12, 2024.
$50,000.00 guaranteed lump sum payable April 16, 2033.
B(3). $668,727.00 of the above-referenced consideration shall be used to fund the following Periodic Payments to Xxxxxxx Xxxx, to be paid by the appropriate Assignee as per the Consent to Qualified Assignment and the Right to Purchase an Annuity paragraphs below:
$3,500.00, monthly, guaranteed for twenty (20) years only, beginning March 1, 2017.
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Xxxxx Xxxx, Xxxxxxx Xxxx, and Xxxxxxx Xxxx may each hereinafter be referred to as a “Payee.” All periodic payments listed in Sections B(1), B(2), and B(3) above shall be referred to as the “Periodic Payments.”
All sums set forth herein constitute damages on account of personal physical injuries or physical sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended.
Any Periodic Payments to be made after the death of any Payee pursuant to the terms of this Addendum shall be made to the Estate of said Payee or to such person or entity as shall be designated in writing to the appropriate Assignee. If no person or entity is so designated by Payee, or if the person designated is not living at the time of said Payee’s death, such payments shall be made to the Estate of said Payee. No such designation, nor any revocation thereof, shall be effective unless it is in writing and delivered to the Assignee. The designation must be in a form acceptable the Assignee before such payments are made.
Rights to Payments
RELEASORS acknowledge that the Periodic Payments cannot be accelerated, deferred, increased or decreased by the RELEASORS or any Payee; nor shall the RELEASORS or any Payee have the power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise.
Consent to Qualified Assignment
RELEASORS acknowledge and agree that BLACKROCK will make a “qualified assignment” within the meaning of Section 130(c) of the Internal Revenue Code of 1986, as amended, of BLACKROCK’s liability to make the Periodic Payments set forth in Section B(1)
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above to New York Life Insurance and Annuity Corporation (NYLIAC) (“the NYLIAC Assignee”). Additionally, RELEASORS acknowledge and agree that BLACKROCK will make a “qualified assignment” within the meaning of Section 130(c) of the Internal Revenue Code of 1986, as amended, of BLACKROCK’s liability to make the Periodic Payments set forth in Sections B(2) and B(3) above to Liberty Assignment Corporation (“the LAC Assignee”). The Assignees’ obligation for payment of the Periodic Payments shall be no greater than that of BLACKROCK (whether by judgment or agreement) immediately preceding the assignment of the Periodic Payments obligation.
Any such assignments shall be accepted by the RELEASORS without right of rejection and shall completely release and discharge BLACKROCK from the Periodic Payments obligation assigned to the Assignees. The RELEASORS recognize that the Assignees shall be the sole obligors with respect to the Periodic Payments obligation, and that all other releases with respect to the Periodic Payments obligation that pertain to the liability of BLACKROCK shall thereupon become final, irrevocable and absolute.
Right to Purchase an Annuity
The NYLIAC Assignee reserves the right to fund the liability to make the Periodic Payments set forth in Section B(1) above through the purchase of an annuity policy from the New York Life Insurance Company (an “Annuity Issuer”). Additionally, the LAC Assignee reserves the right to fund the liability to make the Periodic Payments set forth in Sections B(2) and B(3) above through the purchase of annuity policies from the Liberty Life Assurance Company of Boston (an “Annuity Issuer”). The Assignees shall be the sole owners of the annuity policies and shall have all rights of ownership. The Assignees may have the Annuity Issuers mail payments directly to the Payees. The Payees shall each be responsible for maintaining a current mailing address with the Annuity Issuers.
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Discharge of Obligation
The obligation of the Assignees to make each Periodic Payment shall be discharged upon the mailing of a valid check in the amount of such payment to the designated address of the Payees, or the deposit by electronic funds transfer in the amount of such payment to an account designated by the Payees.
This Addendum shall become effective immediately following execution of the Settlement Agreement and Release of Claims.
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