SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("Agreement") is made as of February 4, 2000
by and between:
a. Crown Asphalt Products Company, a Utah corporation,
Crown Energy Corporation, a Utah corporation;
(collectively "Crown")
b. Asphalt Supply and Service, Inc., a Montana
corporation ("ASSI");
c. Inoco, Inc., a Montana corporation ("Inoco");
d. Interstate Asphalt Company, a North Dakota
corporation ("Interstate");
e. Xxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx, and R. Xxxx
Xxxxxxxxx (collectively "Zimmermans")
Crown, ASSI, Inoco, Interstate, and Zimmermans are sometimes
collectively referred to as "Parties," or individually as "Party."
I. RECITALS
A. On or about April 17, 1999, the Parties entered into an Asset
Purchase Agreement whereby Crown purchased all of the assets, properties, titles
and interests of two asphalt terminals then owned by ASSI, Inoco, Interstate,
and/or the Zimmermans and located in Laurel, Montana and Williston, North
Dakota. On or about June 14, 1999, the parties entered into a Supplemental
Letter Agreement in connection with the Asset Purchase Agreement. Disputes have
arisen between the Parties regarding Asset Purchase Agreement and Supplemental
Letter Agreement. As a result of these disputes, on July 28, 1999, the
Zimmermans filed in the Montana First Judicial District Court, Xxxxx and Xxxxx
County, an application for preliminary injunction, numbered CDV 9900502
(hereinafter "Xxxxxxxxx Action"). Also as a result of these disputes, on
December 8, 1999, Crown filed an action in the U.S. District Court for the
District of Montana, Billings Division, numbered CV-99-162-BLG-RWA (hereinafter
"Crown Action").
B. The Parties deny any and all liability arising out of the Asset
Purchase Agreement, the Supplemental Letter Agreement, the claims in the
Xxxxxxxxx Action, the claims in the Crown Action, or otherwise. The Parties are
willing to enter into this Agreement, wishing to avoid the delays, uncertainties
and hazards of litigation, and have agreed to fully compromise and settle all
claims between them.
SETTLEMENT AGREEMENT
XXXXXXXXX V. CROWN
II. AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the Parties herein contained and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, it is agreed by and
between the Parties as follows:
1. RESCISSION OF THE ASSET PURCHASE AGREEMENT AND SUPPLEMENTAL LETTER
AGREEMENT
The Parties hereby acknowledge that the April 17, 1999 Asset Purchase
Agreement and the June 14, 1999 Supplemental Letter Agreement are rescinded.
2. PAYMENT OF $320,000.00
The Parties hereby agree that ASSI, Inoco, Interstate, and the
Zimmermans are jointly and severally liable to pay Crown the sum of $320,000.00
simultaneously with the release of the documents described in paragraph 6 below.
Payment shall be made simultaneously with the delivery of said documents by wire
transfer IN IMMEDIATELY AVAILABLE FUNDS to Crown's bank account as follows:
- Bank: Bank Xxx Xxxx XX
000 Xxxxx Xxxxx
Xxxx xxxx Xxxx, XX
- ABA Number: 000000000
- For the Account of: Crown Asphalt Products Company
- Account Number: 913739939
3. RELEASES FROM MONTANA RAIL LINK AND EXXON CORPORATION
a. MONTANA RAIL LINK LEASE NO. 500,875-01
The Parties hereby agree that within 7 days of the execution of this
Settlement Agreement, ASSI, Inoco, Interstate, and the Zimmermans will provide
to Crown a written release from Montana Rail Link releasing Crown from any
demands, claims, interests, rights, liabilities, remedies, and/or causes of
action arising from the Montana Rail Link Lease No. 500,875-01, Laurel, Montana,
dated May 16, 1999.
b. ASSIGNMENT AND ASSUMPTION AGREEMENT (OFFSITE SERVICES
AGREEMENT)
The Parties hereby agree that within 7 days of the execution of this
Settlement Agreement, ASSI, Inoco, Interstate, and the Zimmermans will provide
to Crown a written release from Exxon Corporation releasing Crown from any
demands, claims, interests, rights, liabilities, remedies, and/or causes of
action arising from the Assignment and Assumption Agreement (Offsite Services
Agreement) among Exxon Company, U.S.A., ASSI, and Crown dated April 17, 1999,
and which relates to the Offsite Services Agreement dated April, 1998 between
ASSI and Exxon Company, U.S.A.
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c. INDEMNIFICATION
In addition to the written releases specified above, the Parties agree
that ASSI, Inoco, Interstate, and the Zimmermans will indemnify Crown and hold
it harmless for any and all demands, claims, interests, rights, liabilities,
remedies, and/or causes of action arising from the May 16, 1999 Montana Rail
Link Lease No. 500,875-01 and/or the April 17, 1999 Assignment and Assumption
Agreement (Offsite Services Agreement).
4. DISMISSAL OF XXXXXXXXX ACTION WITH PREJUDICE
The Parties agree that, upon execution of this Settlement Agreement,
ASSI, Inoco, Interstate, and the Zimmermans shall dismiss with prejudice Cause
No. CDV 9900502, filed in the Montana First District Court, Xxxxx and Xxxxx
County.
5. DISMISSAL OF CROWN ACTION WITH PREJUDICE
The Parties agree that, upon execution of this Settlement Agreement,
Crown shall dismiss with prejudice Civil No. CV-99-162-BLG-RWA, filed in the
U.S. District Court for the District of Montana, Billings Division.
6. ESCROW OF DOCUMENTS
Upon execution of this Settlement Agreement, Crown will deliver the
following documents to Xxxx Xxxxxx, Esq., Xxxxxx Law Firm, 000 Xxxxx 00xx
Xxxxxx, X.X. Xxx 0000, Xxxxxxxx, Xxxxxxx, 00000-0000:
a. The Warranty Deed for the Williston, North Dakota facility;
b. Montana Rail Link Lease No. 500,875-01, Laurel, Montana,
dated May 16, 1999; and
c. The Assignment and Assumption Agreement (Offsite Services
Agreement) among Exxon Company, U.S.A., ASSI, and Crown dated
April 17, 1999.
These documents shall be held in escrow at the Xxxxxx Law Firm.
Simultaneously with the wire transfer of $320,000.00 from ASSI, Inoco,
Interstate, and/or the Zimmermans to Crown, the Xxxxxx Law Firm will release the
documents specified herein to ASSI, Inoco, Interstate, and/or the Zimmermans.
7. RELEASE AND DISCHARGE OF ASSI, INOCO, INTERSTATE, AND THE
ZIMMERMANS BY CROWN
Except as to the rights specified in paragraphs 1 - 6 herein:
a. Crown hereby waives, releases, relinquishes and disavows any
and all demands, claims, interests, rights, remedies, and causes of action
assertable, directly or
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indirectly, against ASSI, Inoco, Interstate, and the Zimmermans, or any of their
clients, agents, attorneys, employees, subsidiaries, parents, affiliates,
contractors, officers, advisers, directors, shareholders, consultants, insurers,
or successors in interest (whether or not any of the same were acting within or
without the scope of their employment, agency or engagement) for any acts,
failures to act, representations, commitments, statements, warranties, failures
to disclose or make representations, covenants, promises or agreements,
including without limitation any claims for past, present or future actual or
punitive damages, or for any claim or cause of action of any kind whatsoever
that Crown may have against the parties described above arising from acts
occurring on or prior to the date of this Agreement that are related to the
Asset Purchase Agreement, Supplemental Letter Agreement, the Xxxxxxxxx Action,
and/or the Crown Action. Crown agrees that the waivers, releases,
relinquishments, and disavowals herein granted shall be with respect to claims,
interests, rights, remedies, and causes of action known or unknown, matured or
unmatured, contingent or direct, existing or hereafter arising, which relate to
the Asset Purchase Agreement, the Supplemental Letter Agreement, the Xxxxxxxxx
Action, and/or the Crown Action.
b. Crown agrees not to encourage, assist, initiate, or prosecute
any actions, court proceedings, arbitration, disciplinary proceedings,
administrative agency actions or otherwise with respect to any of the matters
discharged, waived, released, and relinquished hereunder.
c. Nothing in this Release shall be deemed to be an admission by
Crown as to any responsibility or liability for any wrongdoing, negligence,
breach of duty, or breach of contract.
d. In the event that ASSI, Inoco, Interstate, and/or the
Zimmermans breach this Settlement Agreement in any manner, this Release shall no
longer be effective and Crown shall be permitted to assert any and all demands,
claims, interests, rights, remedies, and causes of action against ASSI, Inoco,
Interstate, and/or the Zimmermans, which relate to the Asset Purchase Agreement,
the Supplemental Letter Agreement, and/or the Action.
8. RELEASE AND DISCHARGE OF CROWN BY ASSI, INOCO, INTERSTATE AND
THE ZIMMERMANS
Except as to the rights specified in paragraphs 1 - 6 herein:
a. ASSI, Inoco, Interstate, and the Zimmermans hereby waive,
release, relinquish and forever disavow any and all demands, claims, interests,
rights, remedies, and causes of action assertable, directly or indirectly,
against Crown or any of its clients, agents, attorneys, employees, subsidiaries,
parents, affiliates, contractors, officers, advisers, directors, shareholders,
consultants, insurers, or successors in interest (whether or not any of the same
were acting within or without the scope of their employment, agency or
engagement) for any acts, failures to act, representations, commitments,
statements, warranties, failures to disclose or make representations, covenants,
promises or agreements, including without limitation any claims for past,
present or future actual or punitive damages, or for any claim or cause of
action of any kind whatsoever that ASSI, Inoco, Interstate, and/or the
Zimmermans may have against Crown or
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such other parties described above arising from acts occurring on or prior to
the date of this Agreement that are related to the Asset Purchase Agreement,
Supplemental Letter Agreement, the Xxxxxxxxx Action, and/or the Crown Action.
ASSI, Inoco, Interstate, and the Zimmermans agree that the waivers, releases,
relinquishments, and disavowals herein granted shall be with respect to claims,
interests, rights, remedies, and causes of action known or unknown, matured or
unmatured, contingent or direct, existing or hereafter arising, which relate to
the Asset Purchase Agreement, the Supplemental Letter Agreement, the Xxxxxxxxx
Action and/or the Crown Action.
b. ASSI, Inoco, Interstate, and the Zimmermans agree not to
encourage or initiate any actions, court proceedings, arbitration, disciplinary
proceedings, administrative agency actions or otherwise with respect to any of
the matters discharged, waived, released, and relinquished hereunder.
c. Nothing in this Release shall be deemed to be an admission by
ASSI, Inoco, Interstate, and the Zimmermans as to any responsibility or
liability for any wrongdoing, negligence, breach of duty, or breach of contract.
d. In the event that Crown breaches this Settlement Agreement in
any manner, this Release shall no longer be effective and ASSI, Inoco,
Interstate, and/or the Zimmermans shall be permitted to assert any and all
demands, claims, interests, rights, remedies, and causes of action against
Crown, which relate to the Asset Purchase Agreement, the Supplemental Letter
Agreement, the Xxxxxxxxx Action, and/or the Crown Action.
9. ACKNOWLEDGMENT
The Parties hereby acknowledge that each has read this Agreement
carefully, that each knows and understands its contents, and that each has
investigated the facts pertaining to the settlement and this Agreement to the
extent each deems necessary or desirable. All Parties are represented by
counsel. The Parties represent and acknowledge that each has entered into this
Agreement after being fully informed and advised by his or her respective
counsel concerning the terms of this Agreement. The Parties to this Agreement
further acknowledge that each has entered into this Agreement voluntarily,
without coercion, based on his or her own exercise of judgment and not in
reliance upon any representation or promises by any person, other than those
contained in this Agreement.
10. ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST
This Agreement constitutes the entire agreement between Crown, on
the one hand, and ASSI, Inoco, Interstate, and the Zimmermans, on the other
hand, with respect to the subject matter set forth herein and shall be binding
upon and inure to the benefit of their legal representatives, heirs, successors
and assigns. This Agreement supersedes any prior understandings or agreements
between the Parties, with respect to the subject matter herein.
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11. MODIFICATION OF AGREEMENT
No change or modification of this Agreement shall be valid unless
the same be in writing executed by all Parties hereto.
12. ASSIGNMENT OF RIGHTS
No Party shall transfer or assign any or all of its rights or
interest under this Agreement without the prior written consent of the other
Parties hereto, which consent shall not be unreasonably withheld.
13. REPRESENTATION AND WARRANTIES
The Parties, by their signatures herein, do represent and warrant
that each has full capacity, ability, and authorization to enter into this
Agreement and offer the releases and waivers contained in or contemplated by
this Agreement.
14. GOVERNING LAW AND EFFECT OF PARTIAL INVALIDATION
This Agreement shall be construed under and interpreted in
accordance with the laws of the State of Utah. In the event that any portion of
this Agreement is found invalid, that portion may be severed from, and shall not
affect the validity of, the remaining provisions.
IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement
effective the date first written above.
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CROWN ASPHALT PRODUCTS ASPHALT SUPPLY AND SERVICE, INC.ex
COMPANY
By
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By
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Its
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Its
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CROWN ENERGY CORPORATION INOCO, INC.
By By
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Its Its
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INTERSTATE ASPHALT COMPANY
By
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Its
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Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
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R. Xxxx Xxxxxxxxx
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