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Ex. 10.17
22nd JUDICIAL DISTRICT COURT
PARISH OF WASHINGTON
STATE OF LOUISIANA
IN RE: CHEMICAL RELEASE AT CASE NUMBER: 73,341
BOGALUSA
DIVISION: "C"
ALL CASES
Reference is made to a Conditional Agreement to Settle executed on or
about August 21, 1998 by the Plaintiffs' Liaison Committee, on behalf of the
Class, appearing through the Executive Committee, and the Compromising Parties
appearing through their respective counsel of record. Said Conditional Agreement
to Settle is hereby amended and restated in its entirety to read as follows:
CONDITIONAL AGREEMENT TO SETTLE
This Conditional Agreement to Settle, is made as of August 21, 1998, by
and among the Plaintiffs' Liaison Committee, on behalf of the Class, appearing
herein through the Executive Committee, and the Compromising Parties, appearing
through their respective counsel of record, and the Settling Insurers. This
Conditional Agreement to Settle sets forth the terms, conditions and provisions
of a conditional agreement to settle all claims against the Compromising
Parties, the Related Parties, and the Settling Insurers Related to the Incident.
This Conditional Agreement to Settle, although not itself subject to Court
approval, may be attached to the Joint Motion for Stay, seeking the stay of
actions against the Compromising Parties, the Related Parties, and the Settling
Insurers as described in Section 4.1 below, all of which are subject to the
recitals, definitions, terms and conditions set forth herein:
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1. DEFINITIONS OF TERMS OF GENERAL APPLICATION
Unless otherwise expressly stated herein, the following terms shall have
the meanings and definitions expressed as follows:
1.1 The term "Agreement" shall mean and include this Conditional Agreement
to Settle, all exhibits and attachments to this Conditional Agreement to Settle,
and all judgments or orders of the Court related to this Conditional Agreement
to Settle.
1.2 The term "Certification Judgment" shall mean and refer to the judgment
of the Louisiana First Circuit Court of Appeal affirming in all material
respects (as determined by the mutual agreement of the Compromising Parties and
the PLC) the Court's order dated November 10, 1997 certifying the Class Action
as a class action and defining the class as the Class Definition.
1.3 The term "CIGNA" shall mean and refer to CIGNA Insurance Company in
its capacity as an insurer of any of the Compromising Parties and/or the Related
Parties.
1.4 The term "Claims for Contribution, Indemnity, and/or Subrogation"
shall mean and refer to (a) any cross claims now or hereafter asserted in any
court or tribunal (or any judgment entered on such a claim) by any Nonsettling
Party or any person or entity claiming by, through, or on behalf of such
Nonsettling Party against any of the Compromising Parties, the Related Parties,
or the Settling Insurers or Hartford Related to the Incident, and (b) any claim
now or hereafter asserted in any court or tribunal (or any judgment entered on
such a claim) by any Nonsettling Party or other third party alleging that any of
the Compromising Parties, the Related Parties, or the Settling Insurers or
Hartford is or may be liable to such Nonsettling Party or other third party for
all or part of a claim for damages or other relief asserted against said
Nonsettling Party or other third party in connection with or with respect to any
claim Related to the Incident, whether under contract, tort, or otherwise,
including, but not limited to, claims for personal injury
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or death, property damage, damages of any other kind, payment of medical
expenses and/or lost income, medical monitoring, injunctive or equitable relief,
payment of attorneys' fees, and specifically including subrogation claims by
workers' compensation insurers, employers, and/or health care insurers or
providers. The only claims for contractual indemnity against the Compromising
Parties, the Related Parties, Hartford, and/or the Settling Insurers of which
the parties are presently aware are those asserted in the pleadings filed by
▇▇▇▇▇▇▇ Chemical Corporation, ▇▇▇▇▇▇▇ Container Corporation, Kansas City
Southern Railway, and/or Illinois Central Railroad in the Class Action and/or
the Mississippi Action.
1.5 The term "Class Action" shall mean and refer to "In Re: Chemical
Release at Bogalusa," No. 73,341--Div. "C"--ALL CASES, on the docket of the 22nd
Judicial District Court in and for the Parish of Washington, Louisiana.
1.6 The term "Class Definition" or "Class as defined" shall mean and refer
to the class and subclasses defined by the Court by order dated November 10,
1997. By that order, the Court defined the class as follows:
All persons and legal entities located or residing in, owning places of
business or property in, operating businesses in, attending school or
working in, and/or who were present within the geographic area specified
herein, who sustained bodily and/or personal injury, loss, property
damage, and/or other damage, as the result of an explosion, rupture,
escape and/or leak or leaks of nitrogen tetroxide (N204) and their
derivatives from a railroad tank car, mobile truck tanker-trailers, and/or
related loading/unloading piping or other structures located on the
premises of ▇▇▇▇▇▇▇ Chemical Corporation in Bogalusa, Louisiana, occurring
in and during October 1995, as well as those family members of such
persons who may themselves have claims arising out of injury to such
persons.
The geographic boundaries of the class are defined below. The definition
includes a reference to the "City Rectangle" which will be defined as the
area within the smallest rectangle which will encompass all of the City
Limits of Bogalusa. The class boundaries will be the area within the
following truncated wedge-shaped region: 1) begin at the southeast corner
of the City Rectangle, and extend the line comprising the southern side of
the City Rectangle until the point at which it reaches the Pearl River; 2)
then follow the western bank of the Pearl River northward until reaching
the northeastern most point of the
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boot of Louisiana; 3) from that point, draw a straight line to the
confluence of Gully Creek, Upper Little Creek, and Kellers Creek in ▇▇▇▇▇▇
County, Mississippi; 4) from the confluence of those three creeks in
▇▇▇▇▇▇ County, Mississippi, draw a straight line in a westerly direction
to the intersection of State Highway 570 and U.S. Highway 51 in Pike
County, Mississippi; 5) then from the intersection of State Highway 570
and U.S. Highway 51 draw a straight line to the southwestern corner of the
City Rectangle, in Washington Parish, Louisiana; 6) continue east along
the southern boundary of the City Rectangle until reaching the point of
beginning at the southeastern corner of the City Rectangle.
The Class as defined was subdivided by the Court by said order into the
following subclasses: (1) bodily/personal injury claims (including loss of
consortium); (2) property damage claims (both real and personal property); (3)
economic losses (including, but not limited to, lost profits, lost wages, or
business interruption); (4) evacuation damages; (5) fear and fright claims; and
(6) punitive/exemplary damages.
1.7 The "Class" or "Class Members" or "members of the Class" shall mean
and refer to those persons and/or entities within the Class Definition who do
not timely opt out of the Class as defined.
1.8 The term "Class Settlement Fund" shall mean and refer to the total
amount of settlement funds deposited in the Preliminary Escrow Account under
this Agreement, together with all interest earned or accrued thereon, and less
(a) the charges specified in the Preliminary Escrow Agreement, (b) any
distributions made, or to be made, with respect to Independent Claims
(including, without limitation, Mississippi Claims), as provided in Section 5
below, (c) any Independent Claims Contingency Escrow, and (d) any Other Claims
Contingency Escrow.
1.9 The term "Compensatory Damage Claims" shall mean and refer to all
claims Related to the Incident other than Exemplary Damage Claims.
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1.10 The term "Compromising Parties" shall mean and refer to Vicksburg
Chemical Company, Cedar Chemical Corporation, Nine West Corporation,
Trans-Resources, Inc., and TPR Investment Associates, Inc., both individually
and collectively.
1.11 The term "Conditional Agreement to Settle" shall mean and refer to
the conditional agreement to settle contained herein executed by or on behalf of
the Compromising Parties, the PLC, the Class, and the Settling Insurers, and all
exhibits and attachments made part of such agreement to settle.
1.12 The term "Court" shall mean and refer to the 22nd Judicial District
Court in and for the Parish of Washington, Louisiana and the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ (as of August 21, 1998) or her successor.
1.13 The "Effective Date" of the settlement contemplated by this Agreement
shall mean and refer to the day following the last of the following occurrences:
1.13.1 entry by the Court of the Final Order and Judgment; and
1.13.2 the Final Order and Judgment becomes Final; and
1.13.3 expiration of the Prescriptive Period, as defined in Section
1.47; and
1.13.4 the release of all claims asserted in actions listed in
Exhibit 1 insofar as they affect the Compromising Parties, the Related Parties,
Hartford, and/or the Settling Insurers (except for those matters, if any, to be
resolved through the Independent Claims Contingency Escrow and/or the Other
Claims Contingency Escrow) and the binding obligation for the dismissal, with
prejudice and with each party to bear its own costs, of all such actions; and
1.13.5 entry of an order by the appropriate authority approving the
Preliminary Settlement Agreement in accordance with the Louisiana Workers'
Compensation Act, La. R.S. 23:1101 and 1102, where applicable for a
Participating Class Member, which order is upheld through all appeal and writ
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proceedings, if any, and procurement of a waiver of all subrogation rights from
any workers' compensation insurance carriers for the Compromising Parties and/or
the Related Parties.
1.14 The term "Executive Committee" shall mean and refer to the committee
of attorneys appointed by the PLC to represent the PLC, including:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
1.15 The term "Exemplary Damage Claims" shall mean and refer to all claims
for punitive and/or exemplary damages pursuant to former LSA-C.C. art. 2315.3,
Mississippi Code Annotated Section 11-1-65, or any other statute, rule,
regulation, judicial decision or legal doctrine Related to the Incident.
1.16 The term "Exhibit 1" shall mean and refer to the Exhibit 1 attached
hereto, consisting of a listing of plaintiffs (including, without limitation,
putative Class Members) in actions believed by the PLC and the Compromising
Parties to be pending in federal or state court as of August 13, 1998, who are
believed by the PLC and the Compromising Parties to have claims against the
Compromising Parties, the Related Parties, and/or the Settling Insurers Related
to the Incident. Exhibit 1 also provides a full description of the relevant
federal or state court actions involved. Exhibit 1 shall be amended as further
information becomes available to the PLC and the Compromising Parties. All
references to Exhibit 1 in this Agreement shall mean Exhibit 1 as it is amended
from time to time. Whether any person or entity listed in Exhibit 1 is a Class
Member shall be determined by whether such person or entity (i) is included
within the Class as defined, and (ii) if so, whether such person or entity has
opted out of the Class as defined.
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1.17 The term "Final" shall mean that no timely appeals, collateral
attacks, writs, petitions, or requests for review or extraordinary relief have
been taken from or with respect to a judgment, order, ruling, or decision and
that if any such appeal, collateral attack, writ, petition, or request for
review or extraordinary relief has been taken from or with respect to the
judgment, order, ruling, or decision, the relevant judgment, order, ruling, or
decision has been affirmed without revision and there is no further right to
appeal, petition, collaterally attack, bring a writ or request review or
extraordinary relief from or with respect to such judgment, order, ruling, or
decision.
1.18 The term "Final Order and Judgment" shall mean and refer to the order
to be entered by the Court, following the fairness hearing, which shall:
1.18.1 Confirm the certification of the Class as defined under
former article 593.1 of the Louisiana Code of Civil Procedure;
1.18.2 Approve the Preliminary Settlement Agreement, as proposed,
and specifically decree that all of the terms and conditions of the Preliminary
Settlement Agreement are adopted in the Final Order and Judgment by reference;
1.18.3 Dismiss the Class Action upon the Effective Date, with
prejudice and with each party to bear its own costs, insofar as affecting the
Compromising Parties, the Related Parties, Hartford, and the Settling Insurers
and all other actions now existing or hereafter brought upon the Released Claims
by the Class or any Class Member;
1.18.4 Finally and permanently bar and enjoin all Class Members
(including, without limitation, all persons and entities claiming by, through,
or on behalf of a Class Member) from asserting any and all Released Claims;
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1.18.5 Finally release the Compromising Parties, the Related
Parties, Hartford, and the Settling Insurers from any and all Released Claims
by, through or on behalf of a Class Member;
1.18.6 Finally and permanently bar and enjoin the commencement
and/or prosecution by any Nonsettling Parties or other third parties of any and
all Claims for Contribution, Indemnity, and/or Subrogation against any
Compromising Party, Related Party, Settling Insurer or Hartford;
1.18.7 Require that each member of the Class defend, indemnify, and
hold harmless the Compromising Parties, the Related Parties, Hartford, and the
Settling Insurers from and against any and all past, present, or future claims,
demands, suits, causes of action, rights of action, liabilities, liens, or
judgments of any kind whatsoever by, on behalf of, through, or deriving from the
claims of that member of the Class, or by, on behalf of, through, or deriving
from his, her, its, or their heirs, executors, representatives, attorneys or
former attorneys, successors, employers, insurers, employers' insurers, health
insurers, health care providers, assignees, subrogees, predecessors in interest,
successors in interest, beneficiaries or survivors, arising out of or in any way
Related to the Incident, all as more fully set forth in the Preliminary
Settlement Agreement;
1.18.8 Require that each member of the Class defend, indemnify, and
hold harmless the Compromising Parties, the Related Parties, Hartford, and the
Settling Insurers from and against any Claims for Contribution, Indemnity,
and/or Subrogation, whether arising under tort, contract or otherwise, related
to or connected in any way with the Released Claims of that Class Member;
1.18.9 Require that the Class and each of the Class Members not
attempt to execute or to collect any judgment or any portion of any judgment
obtained against one or more of the Nonsettling Parties or other third parties
to the extent or in a manner that the execution or collection of the judgment or
any portion thereof would create in the judgment debtor any right to recover
from any of the
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Compromising Parties, the Related Parties, Hartford, or the Settling Insurers
any sums based on Claims for Contribution, Indemnity, and/or Subrogation;
1.18.10 Require that the Class and each of the Class Members reduce
or satisfy any judgment that it or they may obtain against a Nonsettling Party
or other third party to the extent necessary to extinguish any Claims for
Contribution, Indemnity, and/or Subrogation by such Nonsettling Party or other
third party against the Compromising Parties, the Related Parties, Hartford,
and/or the Settling Insurers arising from such judgment;
1.18.11 Provide that under applicable law, including former article
594 of the Louisiana Code of Civil Procedure, the Preliminary Settlement
Agreement is entered into in good faith, is reasonable, fair, and adequate, and
in the best interests of the Class, and is non-collusive;
1.18.12 Require each Class Member who receives any payment from the
Class Settlement Fund to execute and deliver to the Compromising Parties a
written release of all the Released Claims by, through or on behalf of that
Class Member, as more fully set forth in the Preliminary Settlement Agreement;
1.18.13 Provide that, upon the submission to the Court of evidence
that the escrow agent for the Preliminary Escrow Account has, pursuant to
Section 7.3, placed the amount calculated to be the Class Settlement Fund into a
subaccount within the Preliminary Escrow Account established pursuant to the
Preliminary Escrow Agreement to hold the Class Settlement Fund (hereinafter the
"Class Settlement Fund Subaccount"), the Court will enter a final order of
satisfaction of judgment upon the Effective Date; and
1.18.14 Reserve unto the Court exclusive jurisdiction over the
parties to the Preliminary Settlement Agreement solely for the purpose of
administering, supervising, construing, and enforcing the Preliminary Settlement
Agreement and the Final Order and Judgment and supervising the management and
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disbursement of the Class Settlement Fund, without prejudice to the rights of
any party to contest personal jurisdiction for any other purpose.
1.19 The term "▇▇▇▇▇▇▇ Plant" shall mean and refer to the ▇▇▇▇▇▇▇ Chemical
Corporation plant in Bogalusa, Louisiana
1.20 The term "Hartford" shall mean and refer to The Hartford Fire
Insurance Company in its capacity as an insurer of any of the Compromising
Parties and/or the Related Parties.
1.21 The term "Incident" shall mean and refer to and include each and
every event upon which allegations have been made or could have been made
against the Compromising Parties, the Related Parties, Hartford, and/or the
Settling Insurers for recovery of damages or other relief or remedy, arising out
of, related to or connected in any way to the explosion(s) and/or rupture(s) of,
and/or the release(s), discharge(s), escape(s) and/or leak(s) of nitrogen
tetroxide (N2O4) or derivatives thereof or other substances from, a railroad
tank car, mobile truck tanker-trailers and/or related loading/unloading piping
or other structures located on the premises of the ▇▇▇▇▇▇▇ Plant during October
1995. Without limiting the generality of the foregoing, the term "Incident"
shall include any other consequence of such explosion(s), rupture(s),
release(s), discharges(s), escape(s) and/or leak(s) and the conduct of the
Compromising Parties, the Related Parties, Hartford, the Settling Insurers,
and/or the Nonsettling Parties with respect thereto.
1.22 The term "Independent Claims" shall mean and refer to any and all of
those claims Related to the Incident, including, without limitation, those
claims defined below as Released Claims, asserted by Opt-Out Parties and/or
other persons and/or entities who are not putative Class Members in actions
instituted against the Compromising Parties, the Related Parties, Hartford,
and/or the Settling Insurers on or before the last day of the Prescriptive
Period. The term "Independent Claims" includes the Mississippi Claims.
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1.23 The term "Independent Claims Contingency Escrow" shall mean and refer
to the escrow account for the sum which may be set aside within the Preliminary
Escrow Account (i.e., by being placed in the subaccount within the Preliminary
Escrow Account established pursuant to the Preliminary Escrow Agreement to hold
the Independent Claims Contingency Escrow), pursuant to Section 5.10 of this
Conditional Agreement to Settle to satisfy Independent Claims after the
Preliminary Settlement Date.
1.24 The term "Independent Claims Period" shall mean and refer to a period
of fifteen (15) months commencing on the day following the date that the opt-out
period expires or such other period as the parties may mutually agree upon.
1.25 The term "Independent Claims Plaintiff" or "Independent Claims
Plaintiffs" shall mean and refer to those persons and/or entities with
Independent Claims.
1.26 The term "Initial Twenty Plaintiffs" shall mean and refer to those
twenty Mississippi Plaintiffs selected by the Mississippi Court in its order
dated June 18, 1998, to participate in the Initial Twenty Trial. The Initial
Twenty Plaintiffs are listed in an exhibit to the Mississippi Conditional
Agreement to Settle.
1.27 The term "Initial Twenty Trial" shall mean and refer to the trial of
the claims of the Initial Twenty Plaintiffs, which the Mississippi Court
selected to be the initial trial in the Mississippi Action.
1.28 The term "Insurance Companies" shall mean and refer to CIGNA,
Hartford, National Union, Reliance, Steadfast, and Westchester in their
capacities as insurers of any of the Compromising Parties and/or the Related
Parties.
1.29 The term "Letter Agreement" shall mean and refer to that letter
agreement dated and executed on August 14, 1998 by or on behalf of the
Mississippi Plaintiffs and the Compromising Parties regarding settlement of the
claims of the Initial Twenty Plaintiffs.
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1.30 The term "Mississippi Action" shall mean and refer to those
consolidated actions more particularly referred to as "In Re: Bogalusa Chemical
Release," Civil Action Number 251-96-493CIV ALL CASES, on the docket of the
Circuit Court of ▇▇▇▇▇ County, Mississippi, First Judicial District, including
the following numbered civil actions:
No. 251-96-493-CIV
No. 251-96-956-CIV
No. 251-96-976-CIV
No. 251-96-1051-CIV
No. 251-96-1052-CIV
No. 251-96-1053-CIV
No. 251-96-1054-CIV
No. 251-96-1063-CIV
No. 251-97-385-CIV
No. 251-97-1494-CIV.
1.31 The term "Mississippi Claims" shall mean and refer to any and all of
those claims Related to the Incident asserted by plaintiffs in the Mississippi
Action against the Compromising Parties, the Related Parties, and/or the
Settling Insurers.
1.32 The term "Mississippi Conditional Agreement to Settle" shall mean and
refer to the conditional agreement to settle executed by or on behalf of the
Compromising Parties, the MPC and the Mississippi Plaintiffs on or about August
20, 1998, as such agreement has been amended and restated in its entirety and
executed by or on behalf of the Compromising Parties, the MPC, the Mississippi
Plaintiffs and the Settling Insurers, together with all exhibits and attachments
made part of such agreement to settle.
1.33 The term "Mississippi Court" shall mean and refer to the Circuit
Court of ▇▇▇▇▇ County, Mississippi, First Judicial District and the ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. or his successor.
1.34 The term "Mississippi Plaintiff" or "Mississippi Plaintiffs" shall
mean and refer to those persons or entities with Mississippi Claims.
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1.35 The term "Mississippi Plaintiffs' Counsel" or "MPC" shall mean and
refer to the attorneys who represent one or more of the Mississippi Plaintiffs.
1.36 The term "Mississippi Stay Order" shall mean and refer to the rulings
or orders of the Mississippi Court fully granting the joint motions or requests
of the MPC and one or more of the Compromising Parties as described in Sections
4.2, 4.3, and 4.4 below.
1.37 The term "National Union" shall mean and refer to National Union Fire
Insurance Company of Pittsburgh, Pennsylvania in its capacity as an insurer of
any of the Compromising Parties and/or the Related Parties.
1.38 The term "Nonsettling Party" or "Nonsettling Parties" shall mean and
refer to any and all persons and/or entities against whom the Class and/or any
members of the Class and/or any Independent Claims Plaintiffs (including,
without limitation, the Mississippi Plaintiffs) and/or any other persons and/or
entities have, may have had, or may assert in the future, any claim or action
Related to the Incident, whether or not presently named or identified in the
Class Action or Exhibit 1, other than the Compromising Parties, the Related
Parties, Hartford, and the Settling Insurers. A list of all currently identified
Nonsettling Parties is attached as Exhibit 2.
1.39 The term "Opt-Out Parties," also referred to hereinafter as "Opt-Out
Party," shall mean and refer to those persons and/or entities who or which
timely opt out of the Class as defined. Unless otherwise ordered by the Court or
another court of competent jurisdiction, to opt out of the Class as defined, a
putative Class Member will have to take affirmative action pursuant to the
procedure to be approved by the Court, even if the putative Class Member
desiring to opt out of the Class as defined files or has filed a separate action
against the Compromising Parties, the Related Parties, and/or the Settling
Insurers to assert claims Related to the Incident.
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1.40 The term "Other Claims Contingency Escrow" shall mean and refer to
the escrow account for the sum which may be set aside within the Preliminary
Escrow Account (i.e., by being placed in the subaccount within the Preliminary
Escrow Account established pursuant to the Preliminary Escrow Agreement to hold
the Other Claims Contingency Escrow), pursuant to Section 5.13 of this
Conditional Agreement to Settle, to satisfy certain claims Related to the
Incident.
1.41 The term "Participating Class Member" shall mean and refer to any
Class Member who has complied with all orders of the Court in the Class Action
and the requirements of the Preliminary Settlement Agreement necessary in order
to receive payment from the Class Settlement Fund.
1.42 The "Plaintiffs' Liaison Committee," hereinafter referred to as the
"PLC" or "Class Counsel," shall mean and refer to the committee of attorneys
appointed by the Court to represent the Class in the Class Action, including:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
The PLC shall also include any other attorneys or committee of attorneys
appointed by the Court to represent the Class in the Class Action.
1.43 The term "Preliminary Escrow Account" shall mean and refer to the
escrow account (including all subaccounts thereof) to be established and
administered in accordance with the Conditional Agreement to Settle, the
Preliminary Settlement Agreement, and the Preliminary Escrow Agreement.
1.44 The term "Preliminary Escrow Agreement" shall mean and refer to an
agreement substantially in the form attached hereto as Exhibit 3.
1.45 The term "Preliminary Settlement Agreement" shall mean and refer to
an agreement substantially in the form attached hereto as Exhibit 4. The form of
the Preliminary Settlement Agreement may be modified by mutual agreement of the
parties.
1.46 The "Preliminary Settlement Date" shall mean and refer to the day
following the last of the following occurrences:
1.46.1 entry by the Court of the Stay Order; and
1.46.2 the Stay Order becomes Final; and
1.46.3 entry by the Louisiana First Circuit Court of Appeal of the
Certification Judgment; and
1.46.4 the Certification Judgment becomes Final; and
1.46.5 entry by the Mississippi Court of the Mississippi Stay Order;
and
1.46.6 the Mississippi Stay Order becomes Final; and
1.46.7 expiration of the Prescriptive Period; and
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1.46.8 either (i) binding commitments are obtained for the release
and dismissal with prejudice, with each party to bear its own costs, in form and
content acceptable to the Compromising Parties in their sole discretion, of all
Independent Claims, as acknowledged and accepted in writing by the Compromising
Parties, or (ii) written approval from the Compromising Parties, pursuant to
Section 5.10 below, to conclude the settlement set forth in this Conditional
Agreement to Settle and the Mississippi Conditional Agreement to Settle; and
1.46.9 the placement of a sum mutually acceptable to the
Compromising Parties and the PLC, in the Other Claims Contingency Escrow within
the Preliminary Escrow Account to pay claims Related to the Incident other than
Independent Claims.
1.47 The term "Prescriptive Period" shall mean and refer to a period of
one year commencing on the day following the last day for putative Class Members
to opt out of the Class as defined.
1.48 The term "Related Parties" shall mean and refer to, individually and
collectively, (i) any and all of the present and former employees, officers,
shareholders, directors, managers, representatives, adjusters, attorneys,
agents, and contractors of any of the Compromising Parties, (ii) any and all
parent or subsidiary companies or corporations, affiliated companies or
corporations as defined in 15 U.S.C. 80(a)-2, brother or sister corporations
(that is, all such entities that share a common parent with a Compromising
Party), predecessors in interest, and successors in interest of any of the
Compromising Parties, and all of their present and former employees, officers,
shareholders, directors, managers, representatives, adjusters, attorneys,
agents, and contractors, and (iii) any other person, firm, partnership, joint
venture, corporation, limited liability company, or entity for which any of the
Compromising Parties may be liable as a result of the Incident. The term
"Related Parties" shall include, without limitation, ▇▇▇▇ ▇▇▇▇▇▇, a natural
person, and shall not include any Nonsettling Party or the insurer or insurers
of any
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Nonsettling Party in their capacities as insurers of such Nonsettling Party. The
rights of the Compromising Parties under this Agreement also extend to the
Related Parties.
1.49 The term "Related to the Incident" shall mean directly or indirectly
arising from, related to, caused by, involved with, connected with, pertaining
to, derived from and/or resulting from the Incident.
1.50 "Released Claims" or "Released Claim".
1.50.1 The term "Released Claims" or "Released Claim" shall mean and
refer to any and all Compensatory Damage Claims, Exemplary Damage Claims or
other claims (including, without limitation, all judgments and/or liabilities of
any nature arising therefrom) Related to the Incident against the Compromising
Parties, the Related Parties, Hartford, and/or the Settling Insurers that the
Class and/or any member of the Class and/or any Independent Claims Plaintiffs
(including, without limitation, any Mississippi Plaintiffs), and/or any person
and/or entity entitled to assert any such claim on behalf of any of them, and/or
any person and/or entity who or which derives or obtains any right or claim from
or through any of them (e.g., subrogation claims by workers' compensation
insurers, employers, and/or health care insurers or providers) have, may have
had, or may assert in the future, regardless of whether the claimed injuries
and/or damages are not yet known or manifest or whether such claim is known or
unknown, filed or unfiled, asserted or not asserted, or existing or contingent,
and regardless of the legal theory involved. The term "Released Claims" or
"Released Claim" expressly includes, without limitation, any and all such
liabilities and claims against any of the Compromising Parties, the Related
Parties, Hartford, and/or the Settling Insurers. The term "Released Claims" or
"Released Claim" shall include, but shall not be limited to, claims against the
Compromising Parties, the Related Parties, Hartford, and/or the Settling
Insurers for:
(1) any and all claims of injury, loss or damage or any element of
damages Related to the Incident, including, without
limitation, claims for all known and unknown present and
future injuries and/or damages; any and all claims for past,
present
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and future mental, nervous, emotional and physical, partial
and total, temporary and permanent disabilities; any and all
claims for any form of injury to any part of the person, mind
and body, including without limitation, injuries from fear,
fright, and mental anguish; any and all claims for pain and
suffering; any and all claims for pecuniary loss or loss of
earnings or impairment of earnings capacity; any and all
claims for loss of enjoyment of life, society, support, love,
affection, comfort, association, care, sexual relations,
consortium; any and all claims for medical monitoring,
wrongful death, survival actions, punitive or exemplary
damages, attorneys' fees, costs or expenses Related to the
Incident;
(2) any and all claims for damages or any element of damages,
including property damages, personal injuries and/or wrongful
death, survival damages, and punitive and exemplary damages
presently existing, not yet arisen, unknown or known, Related
to the Incident;
(3) any and all claims, demands, damages (including property
damages or diminution of property value, personal injuries
and/or wrongful death, survival damages, and punitive and
exemplary damages), expenses, losses, and causes of action of
whatever nature arising out of, related to, caused by or
connected in any way with any escape, release, leak or
discharge of any alleged toxic materials or hazardous, toxic,
dangerous or harmful substances Related to the Incident;
(4) any and all claims for or based upon past, present or future
illness, disease, condition or death, whether or not such
illness, disease, condition or death exists at present or has
manifested itself as of the date of this settlement Related to
the Incident;
(5) any and all claims for alleged or actual or risk or
possibility or fear of suffering in the future from any
disease, injury, illness or condition, or death therefrom
Related to the Incident;
(6) any and all claims for attorneys' fees or costs incurred in
connection with any action Related to the Incident;
(7) any and all claims for currently unpaid or future bills
presented by any physician, health care provider, medical
facility or pharmacy for treatment or examination Related to
the Incident;
(8) any and all claims for any other injury or damage, known or
unknown, including, but not limited to, business interruption
loss, loss of business opportunity, loss of profits, loss of
income or other economic loss Related to the Incident;
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(9) any and all claims for nuisance or inconvenience, known or
unknown, Related to the Incident;
(10) any and all claims for expenses for evacuation, known or
unknown, Related to the Incident;
(11) any and all claims for expenses for the cleanup of any
personal or real property, known or unknown, Related to the
Incident;
(12) any and all claims for any type of exemplary damage, known or
unknown, under former article 2315.3 of the Louisiana Civil
Code, Mississippi Code Annotated Section 11-1-65, or any other
statute, rule, regulation, judicial decision or legal
doctrine, current or unknown, whether enumerated or not,
Related to the Incident;
(13) any and all claims for alleged exposure of any person and/or
property to any allegedly hazardous, toxic, dangerous, or
harmful substance which escaped, emanated, migrated, or which
was discharged or released, under or from the ▇▇▇▇▇▇▇ Plant or
the surrounding area or vicinity in or as a result of the
Incident;
(14) any and all claims for any damage whatsoever arising out of,
related to or connected in any way with any cleanup, response
or removal action, or remediation of the ▇▇▇▇▇▇▇ Plant and/or
the surrounding area or vicinity under any body of law
whatsoever, or attorneys' fees, costs, or expenses Related to
the Incident;
(15) any and all claims under any body of law whatsoever,
including, but not limited to, statutory or case law, whether
federal, state, or local, Related to the Incident;
(16) any and all claims under any legal theory whatsoever, whether
for negligence, strict liability, liability for ultrahazardous
activities or conduct, absolute liability, liability for
punitive/exemplary damages, liability for any wanton or
reckless conduct, liability for intentional or deliberate
acts, liability that is derivative or vicarious arising out of
the conduct or fault of others for which the Compromising
Parties, the Related Parties, Hartford or the Settling
Insurers may be legally responsible, liability for nuisance,
liability for the servitude or obligation of vicinage,
liability for abuse of right, or any liability legally
asserted or assertable under any federal, state, or local
statute, directive, or regulation Related to the Incident;
(17) any and all claims for any right legally assertable by any
person and/or entity now or in the future, whether the claim
is personal to such person and/or entity, derivative of the
claim of any other person and/or entity, or as an assignee,
successor, executor, survivor, beneficiary, heir, or
representative of any person and/or entity to the extent
Related to the Incident;
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(18) any and all claims whether the injuries and/or damages are
past, present or future, whether known or unknown, foreseen or
unforeseen, contingent, nascent, mature or otherwise, arising
at law, in equity or otherwise Related to the Incident;
(19) any claims Related to the Incident asserted or assertable
against the Settling Insurers under LSA-R.S. 22:1220, LSA-R.S.
22:655, LSA-R.S. 22:658 or Mississippi law concerning an
insurance company's (a) breach of a duty of good faith and
fair dealing and/or (b) improper claims handling practices;
(20) any and all claims for conspiracy or concert of action Related
to the Incident;
(21) any and all claims for statutory damages under any state or
federal law Related to the Incident; and
(22) any and all liens, assigned claims, subrogation interests or
claims, or other encumbrances of any third parties Related to
the Incident, including, but not limited to, federal, state or
other health care providers, insurance carriers, health
maintenance organizations, employers, or attorneys or
associated counsel, notwithstanding whether such claims have
been timely and properly asserted or whether the parties have
notice of said claims as of the date of the Effective Date.
1.50.2 The term "Released Claims" or "Released Claim" shall not
include, and shall not be construed to include, the rights of the Class or any
member of the Class or any Independent Claims Plaintiff (including, without
limitation, any Mississippi Plaintiff) against any Nonsettling Party, such
rights of the Class Members and the Independent Claims Plaintiffs being
expressly reserved, except to the extent subject to a reduction or set-off by
such Class Members or Independent Claims Plaintiffs by virtue of any
contribution and/or indemnity owed by the Compromising Parties, the Related
Parties, Hartford and/or the Settling Insurers to any of the Nonsettling
Parties.
1.51 The term "Reliance" shall mean and refer to Reliance Insurance
Company in its capacity as an insurer of any of the Compromising Parties and/or
the Related Parties.
1.52 The term "Settlement Sum" shall mean and refer to the "Settlement
Sum" as defined in the Letter Agreement.
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1.53 The term "Settling Insurers" shall mean and refer to, individually
and collectively, Steadfast and National Union in each one's capacity as an
insurer of the Compromising Parties and/or the Related Parties.
1.54 The term "Stay Order" shall mean and refer to the order to be entered
by the Court pursuant to Section 4.1 below.
1.55 The term "Steadfast" shall mean and refer to Steadfast Insurance
Company in its capacity as an insurer of any of the Compromising Parties and/or
the Related Parties.
1.56 The term "Temporary Escrow Account" shall mean and refer to the
escrow account to be established and administered in accordance with this
Conditional Agreement to Settle and the Temporary Escrow Agreement.
1.57 The term "Temporary Escrow Agreement" shall mean and refer to an
agreement substantially in the form attached hereto as Exhibit 5.
1.58 The term "Westchester" shall mean and refer to Westchester Fire
Insurance Company in its capacity as an insurer of any of the Compromising
Parties and/or the Related Parties.
2. NATURE AND STATUS OF THE ACTION
2.1 Stated generally, the Class Action and other actions have arisen from
the Incident and involve claims in the hundreds of millions of dollars for
injuries and damages allegedly sustained as a result of the Incident.
2.2 Stated generally, the Class and the plaintiffs in such other actions
allege (and defendants deny) that the Incident was caused by the fault of the
parties named as defendants therein, including the Compromising Parties.
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2.3 Substantial discovery has been completed in the Class Action and/or
related court actions in Louisiana and Mississippi and motion practice has been
undertaken under a series of comprehensive case management and scheduling orders
promulgated or to be promulgated by the Court in the course of further
proceedings, such that the parties thereto are in a reasonable position to
assess the merits and weaknesses of their respective claims and defenses.
2.4 Substantial time and effort has been expended by the parties and their
counsel in negotiating this Conditional Agreement to Settle and the settlement
contemplated thereby.
3. GENERAL PROVISIONS AND PURPOSES OF THIS SETTLEMENT
3.1 In entering into this Conditional Agreement to Settle, each party has
taken into account the uncertainties, delays, expenses and exigencies of the
litigation process, including the extensive depositions, document production,
and other discovery taken to date in the Class Action and related court actions
in Louisiana and Mississippi. The Compromising Parties and the Related Parties
have each denied, and continue to deny, any liability, wrongdoing or
responsibility for the claims asserted in the Class Action and in any other
actions Related to the Incident and believe that the Released Claims are without
merit and that such claims are barred in whole or in part.
3.2 The PLC and the Compromising Parties have evaluated the claims
asserted against the Compromising Parties, the Related Parties, Hartford and/or
the Settling Insurers Related to the Incident from a settlement perspective,
considering the nature and extent of the alleged injury and the alleged
liability of the Compromising Parties and the Related Parties.
3.3 The PLC and the Compromising Parties have evaluated the financial
resources of the Compromising Parties, particularly with reference to their
ability to defend and/or satisfy the Released Claims.
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3.4 It is the intention of this Conditional Agreement to Settle, and the
parties agree, that the Class and the Independent Claims Plaintiffs reserve all
rights, not otherwise to be adjudicated or compromised hereunder, against all
Nonsettling Parties.
3.5 The PLC is entering into this Conditional Agreement to Settle to
terminate and settle all controversies and all claims of the Class, each of the
Class Members, and each of the Independent Claims Plaintiffs Related to the
Incident against the Compromising Parties, the Related Parties, Hartford, and
the Settling Insurers in recognition of (a) the existence of complex and
contested issues of law and fact, (b) the risk, difficulty, and uncertainty of
success associated with endeavoring to ▇▇▇▇▇▇ the corporate veils between any of
the Compromising Parties and/or between any of the Compromising Parties and any
of the Related Parties, (c) the comparative degree of the alleged liability or
culpability of the Compromising Parties and the Nonsettling Parties, (d) the
risks inherent in litigation, (e) the likelihood that future proceedings will be
unduly protracted and expensive if the proceeding is not settled by voluntary
agreement with some of the parties, (f) the magnitude of the benefits derived
from the contemplated settlement in light of both the maximum potential and
likely range of recovery to be obtained through further litigation and the
expense thereof and the exposure associated therewith, and (g) the determination
by the Class Representatives and their counsel that the settlement is fair,
reasonable, adequate, and in the best interests of, and will substantially
benefit, the members of the Class.
3.6 The Compromising Parties enter into this Conditional Agreement to
Settle, notwithstanding their continuing denial of liability for injuries
(including death) and/or compensatory damages and/or exemplary or punitive
damages allegedly sustained or incurred as a result of or Related to the
Incident, and notwithstanding their denials concerning causation of any alleged
injuries (including death) and/or damages, to terminate all controversy and to
put to rest finally all claims against the Compromising Parties, the
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Related Parties, Hartford, and/or the Settling Insurers Related to the Incident,
and to avoid further litigation, without any admission on the part of the
Compromising Parties, the Related Parties, Hartford, or the Settling Insurers of
any liability whatsoever for injuries (including death) and/or compensatory
damages, exemplary or punitive damages, or any other right of recovery under
Louisiana, Mississippi, or any other law, or causation or quantum of any alleged
injuries (including death) and/or damages.
3.7 It is the intention of this Conditional Agreement to Settle, and the
parties agree, that the settlement contemplated hereby, any provision herein,
and any proceedings in connection herewith shall not be construed as an
admission of any facts or of liability nor shall they be construed by anyone for
any purpose whatsoever as an admission or presumption of any wrongdoing by any
of the Compromising Parties, the Related Parties, Hartford, or the Settling
Insurers or an admission of any fact or presumption on the part of the Class.
3.8 It is the intention and a condition of this Conditional Agreement to
Settle, and the parties agree, that by the Effective Date, the Agreement will
fully and completely settle any and all claims against the Compromising Parties,
the Related Parties, Hartford, and/or the Settling Insurers Related to the
Incident, including any liens, subrogated interests, or other encumbrances of
any third parties, including, but not limited to, federal or state or other
health care providers, insurance carriers, health maintenance organizations,
attorneys and associated counsel. Without limiting the forgoing, it is also the
intention and a condition of this Conditional Agreement to Settle, and the
parties hereto agree, that prior to the Effective Date, all Compensatory Damage
Claims, Exemplary Damage Claims and other claims of whatever nature of the Class
Members against the Compromising Parties, the Related Parties, Hartford, and/or
the Settling Insurers Related to the Incident (including, without limitation,
the claims set forth in the petition in the Class Action) will have been
dismissed on the merits, with prejudice and with each party to bear its own
costs,
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and each and every Class Member will be forever barred from instituting or
maintaining any action against the Compromising Parties, the Related Parties,
Hartford, and/or the Settling Insurers with respect to the Released Claims, and
that as against any of the Compromising Parties, the Related Parties, Hartford,
and the Settling Insurers, the claims of Class Members against the Class
Settlement Fund shall be the exclusive remedy of all Class Members with respect
to such claims. It is also the intention and a condition of this Conditional
Agreement to Settle, and the parties agree, that the Compromising Parties, the
Related Parties, Hartford, and the Settling Insurers are not, and in the future
will not be, subject to any liability or expense of any kind to any Class Member
or any person and/or entity claiming by, through, or under any Class Member with
regard to such claims, except that each of the parties shall bear his/her/its
own costs.
3.9 It is the intention and a condition of this Conditional Agreement to
Settle, and the parties agree, that by the Effective Date, the Agreement will
fully and completely settle any and all Independent Claims (including, without
limitation, all Mississippi Claims). It is also the intention and a condition of
this Conditional Agreement to Settle, and the parties hereto agree, that, unless
otherwise agreed in writing by the Compromising Parties, prior to the Effective
Date, all Independent Claims (including, without limitation, all Mississippi
Claims) will be released and dismissed on the merits, with prejudice and with
each party to bear its own costs, and each and every Independent Claims
Plaintiff (including, without limitation, each and every Mississippi Plaintiff)
will be forever barred from instituting or maintaining any action against the
Compromising Parties, the Related Parties, Hartford, and/or the Settling
Insurers with respect to the Independent Claims (including, without limitation,
all Mississippi Claims), and that as against any of the Compromising Parties,
the Related Parties, Hartford, and the Settling Insurers, the claims of
Independent Claims Plaintiffs (including, without limitation, each and every
Mississippi Plaintiff) against the Preliminary Escrow Account shall be the
exclusive remedy of all Independent Claims Plaintiffs (including, without
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limitation, each and every Mississippi Plaintiff) with respect to such claims.
It is also the intention and a condition of this Conditional Agreement to
Settle, and the parties agree, that the Compromising Parties, the Related
Parties, Hartford, and the Settling Insurers are not, and in the future will not
be, subject to any liability or expense of any kind to any Independent Claims
Plaintiff (including, without limitation, each and every Mississippi Plaintiff)
or any person and/or entity claiming by, through, or under any Independent
Claims Plaintiff (including, without limitation, each and every Mississippi
Plaintiff) with regard to such claims, except that each of the parties shall
bear his/her/its own costs. It is also the intention and a condition of this
Conditional Agreement to Settle, and the parties agree, that no Independent
Claims Plaintiff (including, without limitation, each and every Mississippi
Plaintiff) shall receive any funds from the Preliminary Escrow Account prior to
the Effective Date without the prior written approval of the Compromising
Parties and the Settling Insurers, except that within thirty (30) days after the
date on which, pursuant to Section 7.3 below, the amount calculated to be the
Class Settlement Fund is placed into the Class Settlement Fund Subaccount, the
Settlement Sum shall, upon the written request of the MPC, be paid to the
Initial Twenty Plaintiffs in accordance with the Letter Agreement.
3.10 It is the intention and a condition of this Conditional Agreement to
Settle that the Stay Order be entered by October 9, 1998 and become Final. The
parties agree to use their best efforts to fulfill and satisfy this intention
and condition.
3.11 It is the intention and a condition of this Conditional Agreement to
Settle that the Certification Judgment be entered and become Final. The parties
agree to use their best efforts to fulfill and satisfy this intention and
condition.
3.12 It is the intention and a condition of this Conditional Agreement to
Settle that the Mississippi Stay Order be entered by August 28, 1998, or such
later date as is acceptable to the Compromising
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Parties, and become Final. The parties agree to use their best efforts to
fulfill and satisfy this intention and condition.
3.13 It is the intention and a condition of this Conditional Agreement to
Settle that the Preliminary Settlement Date occur, the Preliminary Settlement
Agreement be executed by the parties thereto, and the Final Order and Judgment
be entered and become Final. The parties agree to use their best efforts to
fulfill and satisfy this intention and condition.
3.14 It is the intention and a condition of this Conditional Agreement to
Settle, and the parties agree, that the Compromising Parties, the Related
Parties, Hartford, and the Settling Insurers shall never again face litigation
or liability with regard to any of the Released Claims.
3.15 It is the intention and a condition of this Conditional Agreement to
Settle that the commencement and prosecution of any and all claims of the Class
as a whole and the Class Members individually against the Compromising Parties,
the Related Parties, and/or the Settling Insurers (including, without
limitation, subrogation claims derived from or through the Class or Class
Members) Related to the Incident (including, without limitation, all of the
claims set forth in the actions listed in Exhibit 1) be immediately enjoined and
stayed during the pendency of the settlement proceedings referred to herein and
that they be permanently barred and enjoined and dismissed with prejudice upon
the entry of the Final Order and Judgment. The parties agree to use their best
efforts to fulfill and satisfy this intention and condition.
3.16 It is the intention and a condition of this Conditional Agreement to
Settle that the commencement and prosecution of any and all claims of the
Independent Claims Plaintiffs against the Compromising Parties, the Related
Parties, and/or the Settling Insurers (including, without limitation,
subrogation claims derived from or through the Independent Claims Plaintiffs,
including, without limitation,
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Mississippi Plaintiffs) Related to the Incident (including, without limitation,
all of the claims set forth in the actions listed in Exhibit 1) be immediately
enjoined and stayed during the pendency of the settlement proceedings referred
to herein. The parties agree to use their best efforts to fulfill and satisfy
this intention and condition.
3.17 It is the intention and a condition of this Conditional Agreement to
Settle that the commencement and/or prosecution by the Nonsettling Parties of
any and all Claims for Contribution, Indemnity, and/or Subrogation against the
Compromising Parties, the Related Parties, and/or the Settling Insurers be
immediately enjoined and stayed during the pendency of the settlement
proceedings referred to herein. The parties agree to use their best efforts to
fulfill and satisfy this intention and condition.
3.18 It is the intention and a condition of this Conditional Agreement to
Settle that no Class Member or Independent Claims Plaintiff (including, without
limitation, each and every Mississippi Plaintiff) shall recover, directly or
indirectly, any sums from any Compromising Party, Related Party, Hartford, or
Settling Insurer other than those received from the Preliminary Escrow Account
(or a subaccount thereof) under the terms of the Preliminary Settlement
Agreement, the Mississippi Conditional Agreement to Settle, or this Conditional
Agreement to Settle, as applicable.
3.19 It is the intention and a condition of this Conditional Agreement to
Settle, and the parties agree, that the Class Members and Independent Claims
Plaintiffs (including, without limitation, Mississippi Plaintiffs) will reduce
any judgments against Nonsettling Parties to the extent necessary to relieve the
Compromising Parties, the Related Parties, Hartford, and the Settling Insurers
of all liability for Claims for Contribution, Indemnity, and/or Subrogation.
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3.20 It is a condition of this Conditional Agreement to Settle that an
order or stipulation of dismissal without prejudice of the claims of the Initial
Twenty Plaintiffs be filed by August 28, 1998, or such later date as is
acceptable to the Compromising Parties.
3.21 It is a condition of this Conditional Agreement to Settle that on or
before August 28, 1998, or such later date as is acceptable to the Compromising
Parties, the Mississippi Court enter an order that any judgment or order
rendered in the trial of the claims of the Initial Twenty Plaintiffs shall have
no precedential or binding effect on the Compromising Parties, the Related
Parties, or the Settling Insurers.
3.22 It is a condition of this Conditional Agreement to Settle that the
Mississippi Court shall enjoin and stay the depositions of Trans-Resources,
Inc., TPR Investment Associates, Inc., Nine West Corporation, and ▇▇▇▇ ▇▇▇▇▇▇.
3.23 Anything in this Conditional Agreement to Settle to the contrary
notwithstanding, the Compromising Parties, with the approval of the Settling
Insurers, shall have the unilateral right in their sole discretion, to waive, in
whole or in part, the conditions set forth in Sections 3.8 through 3.22,
inclusive, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 6.1, 6.2, 8.1 (i) through (vii),
inclusive, and 8.1(ix) and (x) of this Conditional Agreement to Settle, which
waiver shall be binding upon the PLC and the Class. The Settling Insurers shall
not withhold or delay such approval unless such waiver will have a material,
detrimental effect upon the interests of the Settling Insurers.
3.24 The PLC and the Compromising Parties acknowledge and agree that the
PLC has received or will receive from the Compromising Parties all information
deemed reasonably necessary to an examination of the insurance coverage provided
to the Compromising Parties by CIGNA, Reliance, and Westchester in connection
with this Agreement. The PLC and the Compromising Parties further agree to
cooperate in good faith with respect to any additional document discovery and/or
testimony relating to
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CIGNA, Reliance, and Westchester that may be necessary on this issue in
connection with the Agreement. All information provided by the Compromising
Parties shall remain confidential and be used only as necessary to effect the
insurance-related provisions of this Conditional Agreement to Settle.
3.25 In the event that any Nonsettling Party or other third party executes
a written agreement compromising, settling, releasing, waiving, forfeiting,
surrendering, acquitting, and forever discharging any and all Claims for
Contribution, Indemnity, and/or Subrogation that it may have against the
Compromising Parties, the Related Parties, Hartford, and/or the Settling
Insurers Related to the Incident, the Compromising Parties and the Related
Parties shall release their claims for contribution, indemnity, and/or
subrogation Related to the Incident against such Nonsettling Party or other
third party in the manner and with the effect provided in the Preliminary
Settlement Agreement.
4. STAY ORDERS
4.1 The parties shall submit to the Court a Joint Motion for Stay signed
by or on behalf of the Class, the PLC, one or more of the Compromising Parties,
and the Settling Insurers, with a proposed form of Stay Order attached thereto,
pursuant to which Stay Order, the Court shall enjoin and stay, during the
pendency of the settlement proceedings contemplated by this Agreement, the
commencement and/or prosecution of any and all actions and proceedings
(including discovery) by Class Members, Opt-Out Parties, and Nonsettling Parties
against any of the Compromising Parties, the Related Parties, and/or the
Settling Insurers Related to the Incident, including any and all Claims for
Contribution, Indemnity, and/or Subrogation, by, on behalf of or through any
Class Members and/or Opt-Out Parties and/or Nonsettling Parties, such stay and
injunction to remain effective during the pendency of such settlement
proceedings unless modified by further order of the Court. The parties shall use
their best efforts to obtain the Stay Order.
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4.2 Pursuant to the Mississippi Conditional Agreement to Settle, the MPC
and one or more of the Compromising Parties will jointly move the Mississippi
Court to sever all claims (including any claims of Nonsettling Parties) against
the Compromising Parties, the Related Parties, and/or the Settling Insurers from
the Initial Twenty Trial.
4.3 Pursuant to the Mississippi Conditional Agreement to Settle, the MPC
and one or more of the Compromising Parties will take such actions as necessary
to have the Mississippi Court determine, rule, and order that any judgment or
order rendered in the Initial Twenty Trial shall have no precedential or binding
effect on the Compromising Parties, the Related Parties, and/or the Settling
Insurers, so that none of the Compromising Parties, the Related Parties, and/or
the Settling Insurers need participate in the Initial Twenty Trial in order to
protect their interests.
4.4 Pursuant to the Mississippi Conditional Agreement to Settle, the MPC
and one or more of the Compromising Parties will jointly move the Mississippi
Court to enjoin and stay, during the pendency of the settlement proceedings
contemplated by this Agreement, the Mississippi Action (including all discovery
therein or related thereto and any and all Claims for Contribution, Indemnity,
and/or Subrogation) insofar as affecting the Compromising Parties, the Related
Parties and/or the Settling Insurers, such stay and injunction to remain
effective during the pendency of such settlement proceedings unless modified by
further order of the Court.
4.5 Within twenty (20) days after the execution of this Conditional
Agreement to Settle by or on behalf of all parties, any member of the PLC who
represents plaintiffs in federal or state court actions, other than the Class
Action, Related to the Incident shall move to stay all such federal and state
court actions as against the Compromising Parties, the Related Parties, Hartford
and/or the Settling Insurers. The PLC will use its best efforts to cause all the
plaintiffs in the actions listed in Exhibit 1 to move to stay all such
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actions as against the Compromising Parties, the Related Parties, Hartford,
and/or the Settling Insurers within said twenty (20) day period.
4.6 If the Court enters the Stay Order, the Mississippi Court enters the
Mississippi Stay Order, and the Louisiana First Circuit Court of Appeal enters
the Certification Judgment, the parties shall use their best efforts to proceed
with the settlement contemplated in this Agreement as promptly as practicable.
5. INDEPENDENT CLAIMS/CONTINGENCY ESCROWS
5.1 Within twenty-one (21) days after the expiration of the Prescriptive
Period, the PLC and counsel for the Compromising Parties shall jointly prepare a
list identifying all Independent Claims Plaintiffs, the actions in which the
Independent Claims Plaintiffs have asserted Independent Claims, and the types of
claims asserted by the Independent Claims Plaintiffs.
5.2 The PLC shall use its best efforts to obtain binding commitments for
the releases and dismissals with prejudice, in form and content acceptable to
the Compromising Parties in their good faith sole discretion, of all Independent
Claims within the Independent Claims Period.
5.3 It is a condition of this Agreement that the release to be executed by
each Independent Claims Plaintiff who receives settlement funds from the
Preliminary Escrow Account shall require each such Independent Claims Plaintiff
to defend, indemnify, and hold harmless the Compromising Parties, the Related
Parties, Hartford, and the Settling Insurers:
5.3.1 From and against any and all past, present, or future claims,
Released Claims, demands, suits, causes of action, rights of action,
liabilities, liens, or judgments of any kind whatsoever by, on behalf of, or
deriving from that Independent Claims Plaintiff, or by, on behalf of, or
deriving from his, her, its, or their heirs, executors, representatives,
attorneys or former attorneys, successors, employers, insurers, employers'
insurers, health insurers, health care providers, assignees, subrogees,
predecessors
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in interest, successors in interest, beneficiaries or survivors, arising out of
or in any way Related to the Incident; and
5.3.2 From and against (a) any subrogation claims arising or derived
from any claim of that Independent Claims Plaintiff and (b) all Claims for
Contribution, Indemnity, and/or Subrogation, whether under contract, tort, or
otherwise, related to or connected in any way with the Released Claims of that
Independent Claims Plaintiff.
5.4 The indemnity and defense obligations of Sections 5.3 shall include
any and all claims, demands, suits, causes of action, rights of action,
liabilities, liens, or judgments of any kind whatsoever (including any claims of
the Compromising Parties, the Related Parties, Hartford, or the Settling
Insurers for reasonable attorneys' fees and costs) related, directly or
indirectly, to the disbursement of or from, or the failure to make disbursement
of or from, the Preliminary Escrow Account. To the extent that claims for
wrongful death or any other claims of any Independent Claims Plaintiff have not
been released effectively, that Independent Claims Plaintiff binds himself or
herself, and his or her succession or estate, executors, heirs, successors,
beneficiaries, assignees, and subrogees, to defend, protect, indemnify, and hold
harmless the Compromising Parties, the Related Parties, Hartford, and the
Settling Insurers from and against any and all claims, demands, suits,
liabilities, liens, judgments, rights of action, or causes of action of any kind
whatsoever, whether arising under tort, contract or otherwise, brought by any
person, succession, or estate Related to the Incident for the wrongful death or
any other claims of that Independent Claims Plaintiff. This defense and
indemnity obligation is intended to apply to any and all claims for wrongful
death, whether arising under Louisiana law (including Louisiana Civil Code art.
2315.2), Mississippi law, or the law of any other state, and whether presently
existing or in existence at the time of the death of the Independent Claims
Plaintiff.
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5.5 It is also a condition of this Agreement that the release to be
executed by each Independent Claims Plaintiff who receives settlement funds from
the Preliminary Escrow Account shall also require that each such Independent
Claims Plaintiff:
5.5.1 Will not attempt to execute or to collect any judgment or any
portion of any judgment obtained against one or more Nonsettling Parties or
other third parties to the extent or in a manner that the execution or
collection of the judgment or any portion thereof would create in the judgment
debtor any right to recover from any of the Compromising Parties, the Related
Parties, Hartford, and/or the Settling Insurers any sums based on Claims for
Contribution, Indemnity, and/or Subrogation; and
5.5.2 Shall reduce or satisfy any judgment that such Independent
Claims Plaintiff may obtain against a Nonsettling Party or other third party to
the extent necessary to extinguish any Claims for Contribution, Indemnity,
and/or Subrogation by such Nonsettling Party or other third party against the
Compromising Parties, the Related Parties, Hartford, and/or the Settling
Insurers arising from such judgment.
5.6 It is also a condition of this Agreement that the release to be
executed by each Independent Claims Plaintiff who receives settlement funds from
the Preliminary Escrow Account shall also require that if such Independent
Claims Plaintiff settles with or dismisses any Nonsettling Party or other third
party, the Independent Claims Plaintiff agrees not to compromise, settle,
release, waive, forfeit, surrender, acquit, or discharge any claim against such
Nonsettling Party or other third party, without first obtaining an express,
written agreement by which such Nonsettling Party or other third party
compromises, settles, releases, waives, forfeits, surrenders, acquits and
forever discharges, or extinguishes, by release, assignment, or otherwise, any
Claims for Contribution, Indemnity, and/or Subrogation that it may have against
any of the Compromising Parties, the Related Parties, Hartford, and/or the
Settling Insurers related to or connected
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in any way with the Released Claims of that Independent Claims Plaintiff. The
Compromising Parties agree that, once the Independent Claims Plaintiff has
obtained such an express, written agreement from such Nonsettling Party or other
third party, the Compromising Parties and the Related Parties shall be deemed to
have released their claims for contribution, indemnity, and/or subrogation
Related to the Incident against such Nonsettling Party or other third party, to
the same extent as the Compromising Parties and the Related Parties have been
released by such Nonsettling Party or other third party.
5.7 It is expressly understood and agreed that the indemnity, defense and
judgment reduction obligations detailed above shall exist regardless of the
legal basis for the claim, demand, cause of action, right of action, liability,
lien, or judgment demand asserted by any person and/or entity Related to the
Incident. In particular, it is a condition of this Agreement that each
Independent Claims Plaintiff who receives funds from the Preliminary Escrow
Account must expressly agree to the foregoing indemnity, defense and judgment
reduction obligations regardless of whether the claim, demand, suit, liability,
lien, judgment, cause of action, or right of action is based on or related to
(a) the negligence of any of the Compromising Parties or the Related Parties,
sole or concurrent; or (b) the strict liability of any of the Compromising
Parties or the Related Parties under any theory whatsoever; or (c) the
participation in or maintenance of an ultrahazardous activity or condition by
any of the Compromising Parties or the Related Parties; or (d) the absolute
liability of any of the Compromising Parties or the Related Parties; or (e) the
wanton, reckless, or wilful misconduct of any of the Compromising Parties or the
Related Parties; or (f) the liability of any of the Compromising Parties or the
Related Parties for exemplary or punitive damages; or (g) the breach of any
express or implied warranty of any of the Compromising Parties or the Related
Parties with respect to products liability tort claims; or (h) the manufacture,
design, or sale of any product or material by any of the Compromising Parties or
the Related Parties; or (i) the vicarious liability of any
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of the Compromising Parties or the Related Parties for the conduct of others; or
(j) a conspiracy or concerted action by any of the Compromising Parties or
Related Parties with any other person and/or entity; or (k) any actual, alleged
or purported right, asserted by any Compromising Party, Related Party, Class
Member, Independent Claims Plaintiff, Initial Twenty Plaintiff, or Mississippi
Plaintiff, under a policy of insurance issued to one or more of the Compromising
Parties by a Settling Insurer or Hartford; or (l) any other basis whatsoever,
including by contract, course of dealing or other conduct, Related to the
Incident.
5.8 It is also a condition of this Agreement that each Independent Claims
Plaintiff who receives funds from the Preliminary Escrow Account also expressly
agrees that if any person and/or entity should hereafter commence, join in or in
any manner seek relief through any suit or claim arising out of, based upon or
relating to that Independent Claims Plaintiff's Released Claims, for the
enforcement of assignments, liens, privileges or otherwise, that Independent
Claims Plaintiff shall defend, indemnify and hold the Compromising Parties, the
Related Parties, Hartford, and the Settling Insurers and each of them, harmless
from and against any such suit or claim (including any claims of the
Compromising Parties, the Related Parties, Hartford, and/or the Settling
Insurers for reasonable attorneys' fees and costs).
5.9 The PLC may enter into agreements with Independent Claims Plaintiffs,
or their counsel, in order to obtain the necessary binding commitments for
releases and dismissals with prejudice referred to in Section 5.2, provided (and
it is a condition of this Conditional Agreement to Settle) that such agreements
do not conflict with any of the provisions of this Agreement, the Mississippi
Conditional Agreement to Settle, or the Preliminary Settlement Agreement. Such
agreements may provide for the distribution to Independent Claims Plaintiffs of
sums from the Preliminary Escrow Account, provided (and it is a condition of
this Conditional Agreement to Settle) that no such distributions may occur prior
to the
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Effective Date or without the prior written approval of the Compromising
Parties, except that within thirty (30) days after the date on which, pursuant
to Section 7.3 below, the amount calculated to be the Class Settlement Fund is
placed into the Class Settlement Fund Subaccount, the Settlement Sum shall, upon
the written request of the MPC, be paid to the Initial Twenty Plaintiffs in
accordance with the Letter Agreement.
5.10 If by the expiration of the Independent Claims Period, the PLC and/or
the MPC have not obtained binding commitments for the releases and dismissals
with prejudice, in form and content acceptable to the Compromising Parties in
their good faith, sole discretion, of all Independent Claims (including, without
limitation, all Mississippi Claims), the Compromising Parties may (i) terminate
this Agreement by written notice to the PLC, or (ii) by written notice to the
PLC, elect to go forward with the settlement embodied in the Agreement, provided
that a sum mutually acceptable to the Compromising Parties and the PLC is placed
in the Independent Claims Contingency Escrow within the Preliminary Escrow
Account to pay Independent Claims.
5.11 The Compromising Parties and/or the Settling Insurers may apply to
the escrow agent for the Preliminary Escrow Account for disbursements from the
Independent Claims Contingency Escrow and shall be permitted to withdraw amounts
from the Independent Claims Contingency Escrow necessary to obtain the release
and dismissal with prejudice of Independent Claims (including, without
limitation, Mississippi Claims) and to recover all legal fees, costs, and
expenses incurred by the Compromising Parties, Related Parties, Hartford, and/or
the Settling Insurers, as applicable, in defending any such Independent Claims
after the Preliminary Settlement Date.
5.12 If applicable, the Independent Claims Contingency Escrow shall
continue in full force and effect until the earliest of the following occurs:
(i) the date when all Independent Claims (including, without
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limitation, all Mississippi Claims) are released and dismissed with prejudice,
or (ii) the expiration of ten years from the date of initial funding of the
Independent Claims Contingency Escrow, or (iii) the date when the amount held in
the Independent Claims Contingency Escrow is reduced to zero. Upon the
termination of the Independent Claims Contingency Escrow and the payment of all
valid claims made against the Independent Claims Contingency Escrow, any funds
then remaining in the Independent Claims Contingency Escrow shall be distributed
for the benefit of the Class at the discretion of the Court.
5.13 Within five (5) business days after the expiration of the Independent
Claims Period, a sum mutually acceptable to the Compromising Parties and the PLC
shall be placed in the Other Claims Contingency Escrow within the Preliminary
Escrow Account.
5.14 The Compromising Parties and/or the Settling Insurers may apply to
the escrow agent for the Preliminary Escrow Account for disbursements from the
Other Claims Contingency Escrow and shall be permitted to withdraw amounts from
the Other Claims Contingency Escrow necessary to obtain the release and
dismissal with prejudice of claims Related to the Incident other than
Independent Claims and to recover all legal fees, costs, and expenses incurred
by the Compromising Parties, Related Parties, Hartford, and/or the Settling
Insurers, as applicable, in defending any such claims after the Preliminary
Settlement Date.
5.15 The Other Claims Contingency Escrow shall continue in full force and
effect until the earlier to occur of: (i) the expiration of ten years from the
date of initial funding of the Other Claims Contingency Escrow, or (ii) the date
when the amount held in the Other Claims Contingency Escrow is reduced to zero.
Upon the termination of the Other Claims Contingency Escrow and the payment of
all valid claims made against the Other Claims Contingency Escrow, any funds
then remaining in the Other Claims Contingency Escrow shall be distributed for
the benefit of the Class at the discretion of the Court.
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6. MISSISSIPPI CONDITIONAL AGREEMENT TO SETTLE
/PRELIMINARY SETTLEMENT AGREEMENT
6.1 It is a condition of this Conditional Agreement to Settle that the
Mississippi Conditional Agreement to Settle as amended and restated be executed
by or on behalf of the Compromising Parties, the MPC, the Mississippi Plaintiffs
and the Settling Insurers on or before March 22, 1999.
6.2 It is a condition of this Conditional Agreement to Settle that within
twenty (20) business days after the Preliminary Settlement Date, the parties
shall execute the Preliminary Settlement Agreement and submit the Preliminary
Settlement Agreement to the Court for preliminary approval pursuant to the
Preliminary Settlement Agreement.
7. CONTRIBUTIONS
7.1 The Compromising Parties shall pay into the Temporary Escrow Account
or the Preliminary Escrow Account, as applicable, the following amounts at the
following times:
7.1.1 On or before August 31, 1998, the Compromising Parties shall
pay into the Temporary Escrow Account, which was created pursuant to the
Temporary Escrow Agreement, the sum of Ten Million and No/100 ($10,000,000.00)
Dollars. (The PLC hereby acknowledges that said payment has been timely made.)
7.1.2 Within two (2) business days after this Conditional Agreement
to Settle, the Mississippi Conditional Agreement to Settle, and the Preliminary
Escrow Agreement are signed by all of the parties to each of these agreements,
the Compromising Parties shall so notify the escrow agent for the Temporary
Escrow Account, who upon receipt of such notice, shall forthwith transfer the
Ten Million and No/100 ($10,000,000.00) Dollars placed in the Temporary Escrow
Account, pursuant to Section 7.1.1 above, into the Preliminary Escrow Account,
to be held pursuant to the Preliminary Escrow Agreement,
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together with all interest earned or accrued thereon, less any charges or
expense authorized under the Temporary Escrow Agreement.
7.1.3(a) The Compromising Parties shall pay into the Preliminary
Escrow Account additional sums, as follows:
(i) on March 31, 1999, Five Million and No/100 ($5,000,000.00)
Dollars;
(ii) on September 30, 1999, an amount equal to the interest
that would have been due on Seventeen Million and No/100 ($17,000,000.00)
Dollars computed at the rate of Six and One Quarter Percent (6.25%) per year
(the "Interest Rate") from April 1, 1999 through September 30, 1999;
(iii) on January 31, 2000, an amount equal to the interest
that would have been due on Seventeen Million and No/100 ($17,000,000.00)
Dollars computed at the Interest Rate from October 1, 1999 through January 31,
2000;
(iv) on June 30, 2000, an amount equal to the interest that
would have been due on Seventeen Million and No/100 ($17,000,000.00) Dollars
computed at the Interest Rate from February 1, 2000 through June 30, 2000;
(v) on September 30, 2000, an amount equal to the interest
that would have been due on Seventeen Million and No/100 ($17,000,000.00)
Dollars computed at the Interest Rate from July 1, 2000 through September 30,
2000;
(vi) on December 31, 2000, Six Million Eight Hundred Thousand
and No/100 ($6,800,000.00) Dollars (the "12/31/00 Base Amount") plus an amount
equal to the interest that would have been due on Seventeen Million and No/100
($17,000,000.00) Dollars computed at the Interest Rate from the October 1, 2000
through December 31, 2000;
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(vii) on June 30, 2001, Five Million One Hundred Thousand and
No/100 ($5,100,000.00) Dollars (the "6/30/01 Base Amount") plus an amount equal
to the interest that would have been due on Ten Million Two Hundred Thousand and
No/100 ($10,200,000.00) Dollars computed at the Interest Rate from January 1,
2001 through June 30, 2001; and
(viii) on December 31, 2001, Five Million One Hundred Thousand
and No/100 ($5,100,000.00) Dollars (the "12/31/01 Base Amount") plus an amount
equal to the interest that would have been due on Five Million One Hundred
Thousand and No/100 ($5,100,000.00) Dollars computed at the Interest Rate from
July 1, 2001 through December 31, 2001.
7.1.3(b) Notwithstanding anything in Section 7.1.3(a) to the
contrary, the Compromising Parties may prepay all or any part of the 12/31/00,
the 6/30/01 and the 12/31/01 Base Amounts without penalty or premium, and may
specify the Base Amount against which such prepayment shall be applied. The
amount of any prepayment of any Base Amount shall reduce the $17,000,000 figure
in Section 7.1.3 (a) (ii) (iii), (iv), (v) and (vi), the $10,200,000 figure in
Section 7.1.3 (a)(vii) and the $5,100,000 figure in Section 7.1.3 (a)(viii), pro
tanto, as applicable, from and after the date of prepayment.
7.2 The Insurance Companies have issued policies of insurance to the
Compromising Parties of up to Fifty-two Million and No/100 ($52,000,000.00)
Dollars. The Compromising Parties believe, but do not represent or warrant, that
these insurance policies afford coverage up to that amount for claims Related to
the Incident. The relevant insurance policies issued by the Insurance Companies
to the Compromising Parties are identified in Exhibit 6 attached hereto.
7.2.1 The PLC and the Class expressly acknowledge that CIGNA,
Hartford, Reliance, and ▇▇▇▇▇▇▇▇▇▇▇ have each denied that their policies afford
coverage for claims Related to the Incident. Notwithstanding Hartford's denial
of coverage, Hartford, the PLC, the MPC and the Compromising
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Parties have agreed to finally settle and resolve all of the claims Related to
the Incident arising from or related to the Hartford policy of insurance
identified in Exhibit 6 (the "Hartford Policy"), including all claims for
liability, indemnity and the "duty to defend." As part of such settlement, (a)
on a date agreed to by Hartford and the Compromising Parties, Hartford will pay
to the Compromising Parties the sum of Two Million Eight Hundred Seventy-Five
Thousand and No/100 ($2,875,000.00) Dollars, which amount exhausts the
applicable indemnity limits, and shall be deemed to fully discharge Hartford's
defense obligations, for claims Related to the Incident under the Hartford
Policy, (b) the Compromising Parties will, and hereby do agree to, pay into the
Preliminary Escrow Account the sum of Four Hundred Forty-Two Thousand, Three
Hundred Fifty and No/100 ($442,350.00) Dollars one (1) business day after the
Court's entry of the Order of Preliminary Approval as provided in the
Preliminary Settlement Agreement (in addition to the amount to be paid into the
Preliminary Escrow Account on said date under Section 7.2.3 below), (c) the PLC
will cause, on or before the Effective Date, the release and dismissal, with
prejudice, of all actions and claims (whether they be claims or actions of Class
Members or others) Related to the Incident against Hartford, the Compromising
Parties and/or the Related Parties arising from or related to said Hartford
Policy, (d) the PLC will cause any and all such actions or claims to be
forthwith stayed during the pending of the settlement proceedings contemplated
by this Agreement (the "Hartford Stay"), and (e) the PLC will, promptly upon the
request of the Compromising Parties or Hartford, execute and deliver to the
Compromising Parties and Hartford all documents necessary to effectuate, confirm
or perfect such release and dismissal and the Hartford Stay.
7.2.2 The PLC and the Class expressly acknowledge that the
Compromising Parties have been informed by the Settling Insurers that their
policies will respond to the bodily injury and property
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damage claims Related to the Incident, but that ▇▇▇▇▇▇▇▇▇'s policy will respond
only with respect to post-explosion claims.
7.2.3 On April 1, 1999, National Union, which provides Fifteen
Million and No/100 ($15,000,000.00) Dollars of insurance coverage to the
Compromising Parties, shall pay into the Preliminary Escrow Account the sum of
Fifteen Million and No/100 ($15,000,000.00) Dollars, less the amount of any
payments previously made by National Union to or on behalf of the Compromising
Parties or the Related Parties in connection with the defense of claims Related
to the Incident. To the extent that any of the proceeds of the National Union
policy are depleted by payments made to or on behalf of the Compromising Parties
or the Related Parties in connection with the defense of claims Related to the
Incident, the Compromising Parties shall, within one (1) business day after the
Court's entry of the Order of Preliminary Approval as provided in the
Preliminary Settlement Agreement, pay into the Preliminary Escrow Account, in
addition to the amounts payable under Sections 7.1.1 through 7.1.3 above, a sum
equal to one hundred (100%) percent of the amount of any such depletion.
7.2.4 Within twenty-four (24) hours after the receipt by Steadfast's
Environmental Claims Division's Vice President of proof that the Compromising
Parties have paid or caused to be paid into the Preliminary Escrow Account the
total sum of Fifteen Million and No/100 ($15,000,000) Dollars as set forth in
Sections 7.1.2 and 7.1.3(a)(i) above and that National Union has made its
payment as set forth in Section 7.2.3 above, Steadfast, which provides Ten
Million and No/100 ($10,000,000.00) Dollars of insurance coverage to the
Compromising Parties, shall pay into the Preliminary Escrow Account the sum of
Ten Million and No/100 ($10,000,000.00) Dollars.
7.3 Within two (2) business days after the Court's entry of the Order of
Preliminary Approval as provided in the Preliminary Settlement Agreement, and
pursuant to the Court's order, the Preliminary
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Escrow Agreement, and the Preliminary Settlement Agreement, the escrow agent for
the Preliminary Escrow Account shall calculate the amount of the Class
Settlement Fund (recognizing that, depending on the date of the entry of the
Order of Preliminary Approval, further payments may be made into the Preliminary
Escrow Account in accordance with Section 7.1 above) and place said amount in
the Class Settlement Fund Subaccount.
7.4 Except as otherwise provided in this Conditional Agreement to Settle,
on the Effective Date, the Compromising Parties shall be deemed to have assigned
to the Class any and all right to insurance coverage afforded by CIGNA,
Reliance, and Westchester under the policies identified in Exhibit 6 attached
hereto, for the claims Related to the Incident. The Compromising Parties have
agreed to this assignment in good faith and will do all things reasonably
necessary and appropriate to cooperate in its implementation and to obtain its
enforcement. The Compromising Parties also agree to participate nominally in any
coverage litigation under this assignment of rights. To the extent that the
Compromising Parties agree to cooperate in the implementation of the assignment
of insurance proceeds, this assignment is conditional pursuant to article 698(1)
of the Louisiana Code of Civil Procedure. However, the Compromising Parties make
no representations, warranties, or guarantees about the validity,
enforceability, or value of the assignment or any of the assigned rights or
about what amounts, if any, are recoverable from CIGNA, Reliance and/or
Westchester. To the extent that any such claims are not assignable under
applicable law, the assignment shall be null and void as to such claims but
shall remain operative as to the remaining claims. The Compromising Parties and
the PLC agree to work in good faith to maximize the payments to be made by
CIGNA, Reliance, and Westchester.
7.4.1 The PLC and the Class expressly acknowledge and agree that
CIGNA, Reliance, and ▇▇▇▇▇▇▇▇▇▇▇ have denied that their policies cover the
claims against the Compromising Parties and/or
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the Related Parties Related to the Incident and agree that the Class shall bear
the entire risk of not recovering all or any portion of the proceeds of such
policies. The Compromising Parties and the Related Parties shall have no
financial or other obligation in the event that all or any portion of the
Twenty-Six Million and No/100 ($26,000,000.00) Dollars in insurance coverage
believed to be afforded by the CIGNA, Reliance, and Westchester insurance
policies for claims Related to the Incident is not recovered, and in such event,
the Agreement shall not be affected and shall remain binding and in full force
and effect pursuant to its terms.
7.4.2 The assignment by the Compromising Parties of rights to the
insurance coverage afforded by CIGNA, Reliance and Westchester, as described
herein, shall not in any way affect, replace, or diminish the right of the Class
to proceed against CIGNA, Reliance and Westchester pursuant to LSA-R.S. 22:655
and LSA-R.S. 22:1220 or Mississippi law, which rights are expressly reserved to
the Class.
7.5 All contributions into the Temporary Escrow Account and/or the
Preliminary Escrow Account shall be held in an interest-bearing trust account,
pursuant to the terms of the Temporary Escrow Agreement or the Preliminary
Escrow Agreement, as applicable.
7.6 The obligations of the Compromising Parties under the Agreement are
not intended to and shall not create or be deemed to create any joint or joint
and several or in solido obligations on the part of any person and/or entity,
including the Compromising Parties, the Related Parties, Hartford, and the
Settling Insurers.
7.7 If the Compromising Parties fail to make a payment they are obligated
to make under this Agreement, the PLC shall so notify the Compromising Parties.
The Compromising Parties shall then have a reasonable opportunity (at least
thirty (30) days) to "cure" the default; any such cure shall require the
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Compromising Parties to pay simple interest at the prime rate, accruing as of
the date the payment was due under the terms of the Agreement and terminating on
the date the payment is made. If the Compromising Parties do not "cure" the
default as provided above, the sole remedy is to terminate the Agreement.
7.8 If National Union and/or Steadfast fail to make the payments they are
obligated to make under this Agreement, the PLC shall so notify the Compromising
Parties and the Settling Insurers. National Union and/or Steadfast, as the case
may be, shall then have a reasonable opportunity (at least thirty (30) days) to
"cure" the default; any such cure shall require National Union and/or Steadfast
to pay simple interest at the prime rate, accruing as of the date the payment
was due under the terms of the Agreement and terminating on the date the payment
is made. If National Union and/or Steadfast do not "cure" the default as
provided above, the sole remedy is to terminate the Agreement. The Compromising
Parties in their sole discretion, and in order to cure the default of National
Union and/or Steadfast and avoid termination of the Agreement, may make the
payments, including the interest earned on the overdue amounts, to the
Preliminary Escrow Account that should have been paid by National Union and/or
Steadfast, but have no obligation whatsoever to do so.
8. TERMINATION OF AGREEMENT
8.1 In the event that:
(i) any of the conditions of this Conditional Agreement to Settle
set forth in Sections 3.8 through 3.22, inclusive, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8,
5.9, 6.1, and 6.2 are not fulfilled, and not waived by the Compromising Parties,
and the Compromising Parties give the PLC written notice of termination of this
Agreement for such reason;
(ii) the Compromising Parties give the MPC written notice of the
termination of the Letter Agreement pursuant to Paragraph 9 thereof;
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(iii) this Conditional Agreement to Settle, the Mississippi
Conditional Agreement to Settle, the Temporary Escrow Agreement, and the
Preliminary Escrow Agreement, or any of them, are not signed by all of the
respective parties thereto on or before March 22, 1999 and the
Compromising Parties give the PLC written notice of termination of this
Agreement for such reason;
(iv) binding commitments for releases and dismissals with prejudice
of all Independent Claims (including, without limitation, Mississippi
Claims) are not obtained by the MPC and/or the PLC within the Independent
Claims Period and the Compromising Parties give the PLC written notice of
the termination of this Agreement pursuant to Section 5.10 above;
(v) the Preliminary Settlement Agreement is terminated;
(vi) the Mississippi Conditional Agreement to Settle is terminated;
(vii) within five (5) business days after the expiration of the
Independent Claims Period, a sum mutually acceptable to the Compromising
Parties and the PLC is not placed in the Other Claims Contingency Escrow
within the Preliminary Escrow Account to pay claims Related to the
Incident other than Independent Claims;
(viii) contributions to the Temporary Escrow Account or the
Preliminary Escrow Account are not made timely in accordance with the
provisions of this Agreement and such failure is not cured pursuant to
Sections 7.7 and/or 7.8 above;
(ix) any of the Independent Claims Plaintiffs or any other person
and/or entity (including, without limitation, the Nonsettling Parties)
with a claim Related to the Incident obtains a money judgment on
his/her/its claim against the Compromising Parties, the Related Parties,
Hartford, and/or the Settling Insurers prior to the Effective Date and
such judgment is not fully discharged
-47-
48
prior to the Effective Date by the PLC or the MPC before such Independent
Claims Plaintiff or other person executes upon or otherwise takes steps to
enforce or collect such judgment and the Compromising Parties give the PLC
and the MPC written notice of termination of this Agreement for such
reason; or
(x) the PLC fails to fulfill any of its obligations under Section
7.2.2 above and the Compromising Parties give the PLC written notice of
termination of this Agreement for such reason,
this Agreement may be terminated by the Compromising Parties or the PLC upon
written notice to the other, provided, however, that a party whose willful
conduct causes the event giving rise to the right to terminate shall not have a
right to terminate this Agreement by reason of such event.
8.2 In the event of termination of the Agreement, (i) all parties shall be
restored to their respective positions immediately before execution of this
Conditional Agreement to Settle; (ii) any and all monies or other contributions
paid by the Compromising Parties and/or the Settling Insurers into the Temporary
Escrow Account or the Preliminary Escrow Account, plus all earnings (actual and
accrued) thereon, less taxes and other expenses authorized under this
Conditional Agreement to Settle or the Preliminary Settlement Agreement or the
Temporary Escrow Agreement or the Preliminary Escrow Agreement and other
expenses incurred with the specific authorization of the Court, shall be
returned to the Compromising Parties or the Settling Insurers, as applicable;
and (iii) the litigation Related to the Incident against the Compromising
Parties, the Related Parties, Hartford and/or the Settling Insurers shall revert
to its status before the execution of this Conditional Agreement to Settle as if
related orders and papers and the efforts leading to the Agreement had not been
entered, prepared, or taken. Further, in the event of such termination, the
Compromising Parties and the Settling Insurers shall have full authority to
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immediately withdraw from the Temporary Escrow Account and/or the Preliminary
Escrow Account, as applicable, their respective contributions and payments, and
the earnings (actual and accrued) thereon, without further proceedings or
approval of any court, subject to and in accordance with the Temporary Escrow
Agreement and/or the Preliminary Escrow Agreement, as applicable.
9. ADDITIONAL OBLIGATIONS OF THE
PLC AND THE COMPROMISING PARTIES
9.1 The PLC covenants, represents and warrants to the Compromising
Parities that:
9.1.1 The PLC is unaware of and has not been notified of any
lawsuit, claim, or legal action Related to the Incident brought or made by or on
behalf of any putative Class Member other than the Class Action and the actions
listed in Exhibit 1;
9.1.2 The PLC is unaware of and has not been notified of any
lawsuit, claim, or legal action Related to the Incident brought or made by or on
behalf of any person and/or entity who is not a putative Class Member, other
than those actions listed in Exhibit 7.
9.1.3 The PLC has exercised due diligence in ascertaining that the
representations contained in this Conditional Agreement to Settle on the part of
the PLC and/or Class Members are true and accurate, and the PLC shall have,
until the Effective Date, a continuing obligation to ensure that these
representations are accurate, and the PLC shall notify the Compromising Parties
within a reasonable time after learning that any of the representations are or
become inaccurate;
9.1.4 All liens or other encumbrances attaching to the proceeds of
this settlement, or the interest of any individual Class Member or Independent
Claims Plaintiff therein, of which the PLC has been placed on notice are set
forth in Exhibit 8, and as additional liens and other encumbrances become known
to the PLC, the PLC will supplement this exhibit accordingly;
-49-
50
9.1.5 The PLC has the full authority to provide any and all of the
representations and warranties it makes for itself or on behalf of the Class
that are contained in the Agreement and has full authority to enter into the
Agreement on behalf of and bind all of the plaintiffs in the cases listed in
Exhibit 9 hereto;
9.1.6 The PLC will diligently endeavor to obtain the written
concurrence of any attorney or lawyer representing any putative member of the
Class individually to the terms of the Agreement and the dismissal, with
prejudice and with each party to bear its own costs, of the Compromising
Parties, the Related Parties, Hartford, and the Settling Insurers in the Class
Action and any other actions Related to the Incident.
9.2 The Executive Committee warrants that it has full authority to enter
into and execute this Conditional Agreement to Settle for and on behalf of the
PLC.
9.3 Each of the Compromising Parties and the Settling Insurers covenants,
represents and warrants to the PLC that, except as set forth in Exhibit 8, there
are no liens or other encumbrances of which it has been placed on notice which
must be satisfied as a condition of its performance of its obligations under
this Agreement and that it will promptly notify the PLC in the event that it
becomes aware of any such lien or encumbrance, including a notice or letter that
could result in a lien or encumbrance, in the future.
10. GENERAL PROVISIONS
10.1 The Preliminary Escrow Agreement shall provide that at least once
each calendar quarter, the escrow agent of the Preliminary Escrow Account will
provide the PLC, the MPC, the Compromising Parties and the Settling Insurers
with an accounting for the Preliminary Escrow Account.
10.2 Neither the Compromising Parties nor the Related Parties nor the
Settling Insurers guarantee or make any representation that the Temporary Escrow
Account and/or the Preliminary Escrow
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51
Account and/or any earnings therefrom will be sufficient to satisfy the claims
of the Class Members, the Independent Claims Plaintiffs, or any other person
and/or entity with a claim Related to the Incident.
10.3 If any Independent Claims Plaintiff is a minor, ward, incompetent,
succession or absentee under the laws of the state of Louisiana or the state
where that Independent Claims Plaintiff resides, the PLC shall use its best
efforts to cause all necessary steps to be taken to satisfy any and all legal
and equitable requirements of the applicable jurisdiction with respect to
settlement approval; establishment of a guardianship, conservatorship, or the
like; and/or any other action that is or may be required under the laws of the
applicable jurisdiction to make the settlement of such Independent Claims
Plaintiff's claim final and binding. Furthermore, a certified copy of the order
or decree approving the settlement and compromise of the claims of such person
must be forwarded to the Compromising Parties in order for any funds to be
distributed with regard to such Independent Claim.
10.4 In any case where a party has assumed a defense obligation under this
Agreement, such party has the right to select counsel of its choice to assume
any necessary defense, and such defense counsel shall be experienced and
competent in the legal area being defended. If the party to be defended chooses
different counsel to assume its defense or to associate with counsel selected by
the party who has the defense obligation, the counsel so selected by the party
to be defended and the legal costs incurred by such counsel shall be at the
expense of the party to be defended. At the option of the Settling Insurers, in
any filing or appearance in any proceeding in which a party defends as provided
in this Agreement, the Settling Insurers may require the party to include the
following disclaimer:
Although [the party] is authorized to defend [the
Settling Insurer(s)] and to resolve this litigation
as [the party] deems appropriate, [the Settling
Insurer(s)] take no position with respect to the
policy of insurance issued by [the Settling
Insurer(s)]. All statements and positions are
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52
solely those of [the party] and shall not constitute
any representation or admission by [the Settling
Insurer(s)].
10.5 Anything contained in this Conditional Agreement to Settle and/or the
Preliminary Settlement Agreement to the contrary notwithstanding, the parties
agree that the indemnity obligations of Class Members and Independent Claims
Plaintiffs shall not extend to claims asserted by third parties against the
Compromising Parties, the Related Parties, and/or the Settling Insurers under
the Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. Section 9601, et seq. Related to the Incident.
10.6 Neither this Conditional Agreement to Settle nor the Agreement nor
any proceeding taken hereunder shall be construed as or deemed to be evidence or
an admission or concession by the Compromising Parties, the Related Parties, or
the Settling Insurers of any liability or wrongdoing whatsoever, which is
expressly denied by the Compromising Parties, the Related Parties, Hartford, and
the Settling Insurers, or, on the part of the Participating Class Members, of
any lack of merit in their claims. None of the provisions of this Conditional
Agreement to Settle or the Agreement nor evidence of any negotiations or
proceedings in pursuance of the compromise and settlement herein, shall be
offered or received in evidence in this action or any other action or proceeding
as an admission or concession of liability or wrongdoing of any nature on the
part of the Compromising Parties, the Related Parties, Hartford or the Settling
Insurers, or to establish jurisdiction or venue or to create a waiver of any
affirmative defense. The provisions of the Conditional Agreement to Settle
and/or the Agreement may be offered or received in evidence solely to enforce
the terms and provisions hereof. The PLC, the Class, Settling Insurers, and the
Compromising Parties specifically acknowledge, agree and admit that this
Conditional Agreement to Settle and the Agreement along with all related motions
and pleadings shall be considered
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53
an offer to compromise and a compromise within the meaning of article 408 of the
Louisiana Code of Evidence and any equivalent rule of evidence of any state or
federal court, and shall not be offered or received into evidence as an
admission of liability or wrongdoing on the part of the Compromising Parties,
the Related Parties, Hartford, or the Settling Insurers or as a concession of
liability or wrongdoing on the part of the Compromising Parties, the Related
Parties, Hartford, or the Settling Insurers. The financial terms and provisions
of the settlement of the claims of the Initial Twenty Plaintiffs shall be kept
in strict confidence by the parties and their counsel. This Section 10.6 shall
survive the termination of the Agreement.
10.7 This Agreement, including the exhibits attached hereto, constitutes
the entire agreement among the parties and may not be modified, amended, or
waived except by a written instrument duly executed by all the parties or their
authorized representatives. This Agreement supersedes any previous agreements or
understandings between the parties, or any of them, on the subject matter of
this Agreement.
10.8 All of the undersigned attorneys who appear on behalf of designated
law firms severally represent that they have been duly authorized by their
designated law firms to enter into the Agreement. Likewise, the undersigned
attorneys who appear on behalf of the Compromising Parties severally represent
that they have been duly authorized to enter into the Agreement on behalf of
their clients and the undersigned signatories who appear for or on behalf of the
Settling Insurers severally represent that they have been duly authorized to
enter into the Agreement for or on behalf of the Settling Insurer for whom or on
whose behalf they appear.
10.9 This Conditional Agreement to Settle may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
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54
10.10 The terms and conditions of this Agreement shall bind and inure to
the benefit of the heirs, executors, administrators, predecessors in interest,
successors in interest, legal representatives (as defined in article 5251 of the
Louisiana Code of Civil Procedure), and assigns of all parties hereto.
10.11 The waiver by a party of any term, condition, covenant, or breach of
the Agreement shall not be deemed to be a continuing waiver of same.
10.12 The parties agree that the terms and conditions of the Agreement are
the result of negotiations between the parties or their counsel and that the
Conditional Agreement to Settle shall not be construed in favor of or against
any party by reason of the extent to which the parties or their counsel of
record participated in the drafting of the same.
10.13 For purposes of this Agreement, the use of singular form of any word
includes the plural and vice versa.
10.14 The parties to the Agreement have agreed that the validity and
interpretation of the Agreement and any of the terms or provisions hereof, as
well as the rights and duties of the parties thereunder, shall be governed
solely by the laws of the State of Louisiana without giving effect to any
conflict of laws principles and that the exclusive forum for any claim related
to the interpretation or enforcement of the Agreement shall be the 22nd Judicial
District Court in and for the Parish of Washington, Louisiana.
10.15 Any notice, request, instruction, or other document to be given by
any party to this Agreement to any other party to this Agreement (other than
class notification) shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, as follows:
(i) If to the Compromising Parties or the Related Parties, to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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55
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ CONSTANT & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
KEAN, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇'▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
One American Place, 22nd Floor (70825)
Post Office Box 3513
Baton Rouge, Louisiana 70821
and
▇▇▇▇▇▇ ▇▇▇▇▇
TRANS-RESOURCES, INC.
Nine ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
President
VICKSBURG CHEMICAL COMPANY
Rifle Range Road
Vicksburg, Mississippi 39108
(ii) If to the Settling Insurers,
To National Union Fire Insurance Company of Pittsburgh, Pa:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Manager, Environmental Claims
AIG Technical Services, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
and
To Steadfast Insurance Company:
-55-
56
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President of Environmental Claims
STEADFAST INSURANCE COMPANY
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(iii) If to the PLC, to
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇▇, Attorney at Law
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, 2767 Sgt. ▇▇▇▇▇▇ Dr. #▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Slidell, LA ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 2800 Energy Centre
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attorney at Law Attorney at Law GAUTHIER, DOWNING,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ P.O. Drawer H ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Bogalusa, LA 70427 Reserve, LA 70084 ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Attorneys at Law
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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The parties may change their respective recipients and addresses for notice by
giving notice of such change to the other parties pursuant to this Section
10.15.
As of August 21, 1998 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
---------------------------- -------------------------------------
Date ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III (#7372)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (#14248)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. (#20859)
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇'▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
One American Place, 22nd Floor
Post Office Box ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇. ▇▇▇▇
T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
BRUNINI, GRANTHAM, GROWER & ▇▇▇▇▇
1400 Trustmark Building
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
ATTORNEYS FOR VICKSBURG CHEMICAL
COMPANY AND CEDAR CHEMICAL
CORPORATION
As of August 21, 1998 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- -------------------------------------
Date ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
ATTORNEYS FOR TRANS-RESOURCES, INC.
TPR INVESTMENT ASSOCIATES, INC. AND
NINE WEST CORPORATION
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National Union Fire Insurance Company
of Pittsburgh, Pa.
As of August 21, 1998 /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------- -------------------------------------
Date ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Manager
Environmental Claims Dept.
AIG Technical Services, Inc., as
authorized agent for:
National Union Fire Insurance
Company of Pittsburgh, Pa.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FOR NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
As of August 21, 1998 /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------- -------------------------------------
Date ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President of Environment Claims
STEADFAST INSURANCE COMPANY
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FOR STEADFAST INSURANCE COMPANY
As of August 21, 1998 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- -------------------------------------
Date ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (5448)
FARMER AND ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
Bogalusa, LA 70427
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-58-
59
As of August 21, 1998 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- -------------------------------------
Date ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (10462)
Attorney at Law
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
As of August 21, 1998 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------- -------------------------------------
Date ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (9471)
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
2800 Energy Centre
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
As of August 21, 1998 /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------- -------------------------------------
Date ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (17683)
Attorney at Law
2767 Sgt. ▇▇▇▇▇▇ Dr. #301
Slidell, LA 70458
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
As of August 21, 1998 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------- -------------------------------------
Date ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. (2926)
Attorney at Law
P.O. Drawer H
Reserve, LA 70084
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
As of August 21, 1998 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- -------------------------------------
Date ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (5984)
▇▇▇▇▇▇▇▇, DOWNING, LaBARRE, ▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
-59-
60
As of August 21, 1998 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- -------------------------------------
Date ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (5858)
Attorneys at Law
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
REPRESENTING THE PLAINTIFFS' LIAISON
COMMITTEE, ATTORNEYS FOR THE CLASS
-60-