EXHIBIT 3
SETTLEMENT AGREEMENT AND RELEASE
Parties
The parties to this Agreement are BK Financial, Inc., a New York
corporation and Tudor Financial, Inc., a Colorado corporation, f/k/a/ Capital
Recovery, Inc. (collectively, the "Consultants") and NYLIFE Structured Asset
Management Company Ltd. ("SAMCO").
Facts
The following facts exist and form the basis of this Agreement:
1. SAMCO and Westinghouse Security Systems, a department of Westinghouse
Electric Corporation ("Westinghouse") entered into a transaction relating to
security alarm contracts (the "Transaction").
2. SAMCO and Westinghouse's successor, WestSec, Inc. are parties to
litigation involving claims related to the Transaction (the "Litigation").
3. The Consultants have contracts with SAMCO for services related to the
Transaction (the "Contracts").
4. The parties enter this Agreement to avoid the expense and uncertainty
of any present and future disagreements relating to the Litigation or the
Contracts.
Terms of Agreement
In consideration of the Recitals and these Agreement terms and conditions,
the Parties agree as follows:
1. In exchange for and conditioned upon SAMCO's payment to the Consultants
of $3,400,000, the Consultants hereby release SAMCO, WestSec, and Westinghouse,
and their parent and affiliated corporations, officers, directors, employees,
agents, and representatives, of and from any and
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all claims, demands, damages, rights, causes of action or suits of any kind that
the Consultants may now have based on existing facts, known or unknown. This
release is intended to be as broad and comprehensive as the law allows. It
covers and extinguishes all claims, rights, and causes of action that the
Consultants may now have, whether or not such claims and rights are related to
the Litigation or the Contracts.
2. SAMCO hereby releases the Consultants, and their parent and affiliated
corporations, officers, directors, employees, agents, and representatives, of
and from any and all claims, demands, damages, rights, causes of action or suits
of any kind that SAMCO may now have based on existing facts, known or unknown.
This release is intended to be as broad and comprehensive as the law allows. It
covers and extinguishes all claims, rights, and causes of action that SAMCO may
now have, whether or not such claims and rights are related to the Litigation or
the Contracts.
3. This Agreement constitutes the sole and entire agreement between the
Consultants and SAMCO, and supersedes all prior agreements, negotiations, and
discussions between the Parties. Consultants and SAMCO each represents it has
read and understands this Agreement, that this Agreement constitutes a good
faith settlement of the parties' dispute, and that each of them enters into this
Agreement freely and voluntarily. This Agreement is being entered into for the
express purpose of fully and finally compromising and settling all claims which
were or could have been asserted in any lawsuit or dispute between each of them.
The Consultants and SAMCO each acknowledge that, in entering into this
Agreement, it is not relying upon any representations, statements, or
understandings other than those expressly set forth in this Agreement.
4. The payment by SAMCO to the Consultants referred to in paragraph 1
hereof shall be made within three business days following SAMCO's receipt from
WestSec of the funds representing the final settlement between SAMCO and
WestSec. SAMCO will deliver its checks by
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reputable overnight courier as follows: check in the amount of $2,266,666.67
payable to BK Financial, Inc. sent to "Attn: Xxx Xxxxxxxx, 0 Xxxxx Xxxx,
Xxxxxxxxx, X.X. 00000 (914-834-9119)", and check in the amount of $1,133,333.33
payable to Tudor Financial, Inc. sent to "Attn: Xxxxx Xxx, 000 X. Xxxxx, Xxxxxx,
Xx. 00000 (303) 722-0118".
5. This Agreement, and all releases and settlements hereunder, shall be
null and void if the payment of funds to the Consultants is not made on or
before December 31, 1998, whereupon all existing agreements among the parties
hereto shall remain in full force and effect.
6. The parties covenant not to xxx on any of the claims released by this
Agreement.
This Agreement is executed as of December 11, 1998.
SWORN TO BEFORE ME 12/9/98
BK Financial, Inc., a New York corporation
Notary: Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx, President
XXXX X. XXXXXXXX
Notary Public, State of New York
No. 4804045
Qualified in Westchester County
Commission Expires September 30,
2000
Tudor Financial, Inc., a Colorado corporation
Notary: /s/ [ILLEGIBLE] By: /s/ Xxxxx X. Day
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Name: Xxxxx X. Day, President
Comm exp: 12-9-2000
NYLIFE Structured Asset Management
Company Ltd.
Notary: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxx Xxxxxxx Xxxxx X. Xxxxxxx, President
XXXXXX XXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Kings County
Certificate Filed in New York County
Commission Expires April 30, 1999
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