Exhibit 10.14
Second Amendment to Settlement Agreement
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This Second Amendment to Settlement
Agreement (the "Second Amendment") made the
_____ day of February, 1997 between
Harvard Industries, Inc., a Florida
Corporation, referred to herein as "Harvard"
and The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Corp., a New
Hampshire Corporation, referred to here as
"▇▇▇▇▇▇▇▇-▇▇▇▇▇▇", both located c/o Harvard
Industries, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
-and-
The Town of Newmarket, a public body
corporate and politic, organized and
existing under the laws of the State of New
Hampshire, referred to here as "Newmarket",
located ▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Background
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A. On July 8, ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ and Newmarket entered into
a settlement agreement (the "Initial Settlement Agreement") with respect to the
investigation and cleanup of Contaminants at the Landfill.
B. Harvard, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ and Newmarket amended the settlement
agreement by amendment to settlement agreement executed by Harvard and
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ on October 9, 1992 and Newmarket on October 6, 1992 (the "First
Amendment"). The Initial Settlement Agreement and the First Amendment are
collectively referred to here as the "Settlement Agreement".
C. A dispute arose between Harvard, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ and Newmarket
regarding an interpretation of the Settlement Agreement. As a result, Newmarket
filed a Complaint against Harvard and
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▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ in the state court of New Hampshire, which suit was transferred
to the United States District Court for the District of New Hampshire under
Docket Number C-96-249-JRM. Harvard and ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ filed an Answer to the
Complaint and a Counterclaim. The District Court action is referred to here as
the "Litigation".
D. Harvard, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ and Newmarket desire to settle the
Litigation by further amending the Settlement Agreement according to the terms
and conditions set forth in this Second Amendment.
Now, therefore, in consideration of the premises and the mutual
covenants contained in this Second Amendment, the parties agree as follows:
1. Definitions of Words Used in this Second Amendment. For purposes of
this Second Amendment, the terms used in this Second Amendment as defined terms,
which are not defined here, shall have the meaning ascribed to such terms in the
Settlement Agreement.
2. Background. The parties incorporate the Background Section of this
Second Amendment here by reference as though set forth at length.
3. Settlement Sum.
(a) Within thirty (30) days of the signing and delivery of this
Second Amendment by all parties, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ shall pay to Newmarket, the sum
of Four Hundred Eighty Thousand ($480,000) Dollars, which payment, except in the
event of a catastrophic failure of the cap installed on the Landfill, as
provided for
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below, shall constitute full and final payment of the Settlement Sum due from
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ to Newmarket pursuant to the Settlement Agreement.
(b) In the event of a catastrophic failure of the cap installed on the
Landfill, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ shall remain responsible to pay to Newmarket
twenty-five (25%) percent of the first Five Million, Three Hundred Thousand
($5,300,000) Dollars of Costs with respect to the repair of the cap required as
a result of a catastrophic failure of the cap, and ten (10%) percent of the next
One Million ($1,000,000) Dollars of Costs with respect to the repair of the cap
required as a result of a catastrophic failure of the cap. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ shall
not be obligated to pay any sum towards any Costs in excess of Six Million,
Three Hundred Thousand ($6,300,000) Dollars, and the maximum liability of
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ to Newmarket shall be no greater than One Million, Four Hundred
Twenty Five Thousand ($1,425,000) Dollars, plus any interest due pursuant to
subparagraph 4(b) of the Initial Settlement Agreement. Newmarket acknowledges
that (i) inclusive of all payments made to date under the Settlement Agreement
and this Second Amendment, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ has paid to Newmarket Seven Hundred
Twenty Four Thousand, Two Hundred Sixty and 94/100 ($724,260.94) Dollars, and
(ii) the sum of Seven Hundred Twenty Four Thousand, Two Hundred Sixty and
94/100 ($724,260.94) Dollars shall be credited against the maximum liability of
One Million, Four Hundred Twenty Five Thousand ($1,425,000) Dollars of ▇▇▇▇▇▇▇▇-
▇▇▇▇▇▇ so that ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇'▇ potential future liability to Newmarket, in the
event of
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a catastrophic failure of the cap, shall not exceed Seven Hundred Thousand,
Seven Hundred Thirty Nine and 06/100 ($700,739.06) Dollars. Newmarket further
acknowledges that the sum equal to all Costs incurred by Newmarket from and
after July 8, 1992, including without limitation, Three Hundred Thousand
($300,000) Dollars of pre-petition engineering fees and administrative costs as
referred to in paragraph 1(b) of the Initial Settlement Agreement, shall be
credited against the Six Million, Three Hundred Thousand ($6,300,000) Dollar
threshold referred to above in this paragraph 3(b), regardless of whether the
Costs relate to the repair of the cap required as a result of a catastrophic
failure of the cap. Furthermore, in determining Costs, a reasonable value shall
be attributable to work performed by Newmarket employees and/or materials
supplied by Newmarket to the extent such work and/or materials have a dollar
value of One Hundred ($100.00) Dollars or more.
(i) By way of illustration of the foregoing provision, but not in
substitution of it:
(A) In the event Newmarket has incurred Five Million, Nine
Hundred Thousand ($5,900,000) Dollars of Costs prior to a catastrophic failure
of the cap, and then incurs Two Million ($2,000,000) Dollars of Costs with
respect to the repair of the cap required as a result of a catastrophic failure
of the cap, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ shall be obligated to pay Newmarket Forty Thousand
($40,000) Dollars, calculated on the basis of ten (10%) percent of Four Hundred
Thousand ($400,000) Dollars, which is that portion of
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the Costs in excess of Five Million, Nine Hundred Thousand ($5,900,000) Dollars,
up to Six Million, Three Hundred Thousand ($6,300,000) Dollars of Costs.
(B) In the event Newmarket has incurred Six Million, Three Hundred
Thousand ($6,300,000) Dollars of Costs prior to a catastrophic failure of the
cap, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ shall have no obligation to Newmarket for Costs with
respect to the repair of the cap required as a result of a catastrophic failure
of the cap.
(C) In the event Newmarket has incurred Five Million, Four Hundred
Thousand ($5,400,000) Dollars of Costs prior to a catastrophic failure of the
cap, and then incurs Seven Hundred Thousand ($700,000) Dollars of Costs with
respect to the repair of the cap required as a result of a catastrophic failure
of the cap and thereafter Two Hundred Fifty Thousand ($250,000) Dollars
of Costs unrelated to a catastrophic failure of the cap, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ shall
be obligated to pay Newmarket Seventy Thousand ($70,000) Dollars, calculated on
the basis of ten (10%) percent of Seven Hundred Thousand ($700,000) Dollars, and
zero percent of the Two Hundred Fifty Thousand ($250,000) Dollars of Costs
unrelated to the catastrophic failure of the cap. Furthermore, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
shall thereafter have no further obligation to Newmarket regardless of whether
there is a subsequent catastrophic failure of the cap or additional sums are
incurred with respect to the initial catastrophic failure of the cap since Costs
incurred shall equal Six Million, Three Hundred Fifty Thousand ($6,350,000)
Dollars ($5,400,000 + $700,000 + $250,000), thereby meeting the Six
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Million, Three Hundred Thousand ($6,300,000) Dollar threshold of Costs.
(D) In the event Newmarket has incurred Four Million ($4,000,000)
Dollars of Costs prior to a catastrophic failure of the cap, and then incurs One
Million ($1,000,000) of Costs with respect to the repair of the cap required as
a result of a catastrophic failure of the cap, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ shall be
obligated to pay Newmarket Two Hundred Fifty Thousand ($250,000) Dollars,
calculated on the basis of twenty-five (25%) percent of One Million ($1,000,000)
Dollars.
(E) In the event Newmarket has incurred Three Million, Five Hundred
Thousand ($3,500,000) Dollars of Costs prior to a catastrophic failure of the
cap and then incurs Two Million ($2,000,000) Dollars of Costs with respect to
the repair of the cap required as a result of a catastrophic failure of the cap,
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ shall be obligated to pay Newmarket Four Hundred Fifty Thousand
($450,000) Dollars, calculated on the basis of twenty-five (25%) percent of One
Million, Eight Hundred Thousand ($1,800,000) Dollars, which is that portion of
the Costs in excess of Three Million, Five Hundred Thousand ($3,500,000)
Dollars, up to Five Million, Three Hundred Thousand ($5,300,000) Dollars and ten
(10%) percent of the Two Hundred Thousand ($200,000) Dollars, which is that
portion of the Costs in excess of Five Million, Three Hundred Thousand
($5,300,000) Dollars.
(c) ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇'▇ obligation to pay any sums due pursuant to this
paragraph 3 shall not arise unless and until
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▇▇▇▇▇▇▇▇▇ has used reasonable efforts to pursue all guarantees and warranties
issued with respect to the Landfill and all parties potentially responsible for
the catastrophic failure of the cap, and thereafter, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇'▇
responsibility shall be calculated on the basis of the amount of Costs actually
incurred by Newmarket with respect to the repair of the cap required as a result
of a catastrophic failure of the cap, minus the difference between (x) all sums
received by Newmarket with respect to such warranties and guarantees and from
all parties potentially responsible for the catastrophic failure of the cap and
(y) the amount equal to twenty-five (25%) percent of the costs paid by Newmarket
to pursue such warranties and guaranties and such parties potentially
responsible for the catastrophic failure of the cap. In no event shall
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ have any obligation with respect to costs paid by Newmarket to
pursue such warranties and guaranties, and such parties potentially responsible
for the catastrophic failure of the cap, if Newmarket is unsuccessful in these
pursuits. ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ shall have a right of input with respect to (x) the
efforts, and legal strategies, used to pursue all guaranties and warranties and
potentially responsible parties and (y) the selection of experts retained with
respect to the pursuit of all guaranties and warranties and potentially
responsible parties.
(d) All payments due from ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ pursuant to this paragraph 3
shall be paid in accordance with and subject to the terms and conditions of
paragraphs 4(a)(ii) and 5 of the
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Initial Settlement Agreement, and interest shall be paid by ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ in
accordance with and pursuant to the provisions of paragraph 4(b) of the Initial
Settlement Agreement.
(e) Notwithstanding anything to the contrary set forth in this Second
Amendment, in no event shall any of the following constitute in whole or in
part, or be a compensable Cost in connection with, a catastrophic failure of the
cap: (i) all maintenance or repair of the Landfill, including without limitation
the cap, other than repairs to the cap due to a catastrophic failure of the cap;
(ii) any action required as a result of a failure to undertake or properly
perform all appropriate maintenance or repair of the Landfill, including without
limitation the cap; (iii) all types of sampling or monitoring of the Landfill;
(iv) slope alterations (unless resulting from a catastrophic failure of the
cap); (v) permitting and reporting requirements; (vi) groundwater investigation
of any kind; (vii) design, construction, investigation or operation of a
groundwater treatment system of any kind; (viii) design, construction,
investiagation or operation of an air abatement system of any kind; (ix) permit
renewals and related fees; (x) oversight, engineering and counsel fees; (xi)
fines and penalties; and (xii) any action required as a result of the negligence
of Newmarket or its employees (as opposed to its independent contractors) in the
operation and maintenance of the Landfill, including without limitation the cap.
Newmarket represents and warrants, that to the best of its knowledge, as of this
date, there has been no catastrophic failure of the cap, nor
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has an event occurred which could result in a catastrophic failure of the cap.
(f) Commencing January 15, 1997, and annually thereafter, Newmarket
shall deliver to ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇, an accounting of all Costs, including without
limitation, Costs with respect to the repair of the cap required as a result of
a catastrophic failure of the cap, and administrative costs as referred to in
paragraph 1(b)(v) of the Initial Settlement Agreement (records of which shall
continue to be maintained by Newmarket), which accounting shall delineate all
Costs incurred during the immediately preceding calendar year, as well as a
cumulative summary of all Costs incurred from and after July 8, 1992 through the
calendar year to which the accounting relates, which cumulative summary shall
also include Three Hundred Thousand ($300,000) Dollars of pre-petition
engineering fees as referred to in paragraph 1(b) of the Initial Settlement
Agreement. Together with each accounting, Newmarket shall deliver to
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇, a copy of the documentation referred to in paragraph 5 of the
Initial Settlement Agreement with respect to the Costs delineated in the annual
accounting only, and not the cumulative summary.
(g) In the event of a catastrophic failure of the cap, Newmarket shall
give ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ immediate notice of the fact, specifying in detail the
cause and consequences of the catastrophic failure of the cap to the extent
determinable by Newmarket at the time, all warranties and guarantees issued to
Newmarket with respect to the Landfill, including without limitation the cap,
and
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the identity and address of all parties potentially responsible for the
catastrophic failure of the cap to the extent determinable by Newmarket at the
time. Newmarket shall at least on a quarterly basis provide ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
with an update of the foregoing information, and a written status report of all
efforts by Newmarket to enforce all guarantees and warranties relating to, and
to collect from all parties potentially responsible for, the catastrophic
failure of the cap. Provided ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ is not materially prejudiced
thereby, failure by Newmarket to give any notice required by this subparagraph
shall not void ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇'▇ obligations under this Second Amendment;
however, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ shall have no obligation to make any payments to
Newmarket unless and until the notices and information required to be provided
to ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ by this subparagraph are provided to ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.
4. Stipulation of Dismissal. The parties acknowledge that the parties
have signed and delivered a Stipulation of Dismissal with Prejudice and Without
Costs, which Newmarket represents has been filed with the court.
5. Notices. Paragraph 13 of the Settlement Agreement is deleted and the
following substituted in its place:
All notices required or permitted by this Settlement Agreement shall
be in writing and shall be delivered (i) personally; (ii) by
certified or registered mail, return receipt requested; or (iii) by
facsimile, followed the same date by regular mail, addressed as
follows:
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If to ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ or Harvard: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General
Counsel
Harvard Industries, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-and-
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Corporate
Manager, Environmental Affairs
Harvard Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Farer ▇▇▇▇▇▇ ▇▇▇▇▇▇, a
Professional Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Newmarket: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Town Administrator
Town of ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ Schoolhouse
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Harvard, ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ and Newmarket may, by notice given in the same manner
set forth above, designate a different address to which subsequent notices shall
be sent. Notice shall be deemed given (i) when delivered, if delivered
personally; (ii) when mailed, if delivered by certified or registered mail,
return receipt requested; or (iii) when a good facsimile transmission is
completed, if by facsimile, followed by regular mail.
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6. No Admission of Liability. The parties acknowledge that neither this
Second Amendment, nor the Settlement Agreement, nor any part of either of the
foregoing documents, nor the entry into nor the performance under this Second
Amendment by the parties shall constitute or be construed as a finding,
admission or acknowledgement of any of the factual or legal allegations
contained in or underlying the Litigation, this Second Amendment or the
Settlement Agreement, or of any liability, fault or wrongdoing or evidence of
such, or an admission of a violation of any law, rule, regulation or policy, nor
shall the entry into or performance of this Second Amendment be admissible in
any action or proceeding, except only in an action or proceeding to enforce the
Settlement Agreement, as amended by this Second Amendment.
7. Binding Effect. This Second Amendment shall be binding upon and
inure to the benefit of the parties, their successors and assigns.
8. Miscellaneous. Except as amended and modified by this Second
Amendment, the Settlement Agreement remains in full force and effect. In all
references in this Second Amendment to any parties, persons, entities or
corporations, the use of any particular gender or the plural or singular number
is intended to include the appropriate gender and number as the text of this
Second Amendment may require.
9. Entire Agreement. The Settlement Agreement, as amended and modified
by this Second Amendment, contains the entire agreement between and among
Newmarket, Harvard and ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.
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10. Authority. The individuals signing this Second Amendment, by
signing this Second Amendment, represent and warrant that they have the
authority to sign this Second Amendment on behalf of the party for whom they are
so signing.
11. Counterparts. This Second Amendment may be signed in one or more
counterparts, all of which shall constitute a single entire agreement.
12. Captions. The paragraph headings contained in this Second Amendment
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Second Amendment.
13. Legal Fees. All parties shall bear their own legal fees in
connection with this Second Amendment and the Litigation.
14. Drafting Ambiguities. In interpreting any provision of the
Settlement Agreement or this Second Amendment, no weight shall be given to, nor
shall any construction or interpretation be influenced by the fact that counsel
for one of the parties drafted the Settlement Agreement or this Second
Amendment, each party recognizing that it and its' counsel have had an
opportunity to review the Settlement Agreement and the Second Amendment and have
contributed to the final form of each of those agreements.
15. Governing Law. This Second Amendment shall be governed by New
Hampshire law in all respects, whether as to interpretation or enforcement. The
parties agree that jurisdiction over any action brought under the terms of this
Second Amendment or the
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Settlement Agreement shall be vested in the federal courts of New Hampshire.
Signed and sealed by the parites.
Harvard Industries, Inc., a Florida
Corporation
By:
Dated: March 11, 1997 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------- -----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Corp., a
New Hampshire Corporation
By:
Dated: March 11, 1997 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------- -----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
The Town of Newmarket
By:
Dated: March 6, 1997 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------- -----------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Town
Administrator
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