CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE
This Confidential Settlement Agreement and Release (hereinafter the
"Agreement") is made this 8th day of October, 2001 (the "Effective
Date"), by and between members of the ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
Cooperating PRP Group identified on attached Exhibit 1 (hereinafter
referred to as "Cooperating PRP Group"), Transtech Industries, Inc.
(hereinafter referred to as "Transtech") and certain Underwriters
at Lloyd's, London, and certain London Market Insurance Companies
(hereinafter referred to as the "London Market Insurers")(the
aforementioned parties being referred to hereinafter collectively
as the "Parties").
WITNESSETH THAT:
WHEREAS, London Market Insurers severally subscribed to
certain insurance policies issued to Transtech (the Subject
Insurance Policies as defined below); and,
WHEREAS, Transtech assigned to the Cooperating PRP Group its
claims for coverage with respect to environmental liabilities at an
NPL site in Carlstadt, New Jersey, known as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and more particularly described as Lots
1-5 of Block 124 on the tax map of the Borough of Carlstadt, New
Jersey (hereinafter referred to as "Carlstadt Site") under certain
of the insurance policies subscribed to by London Market Insurers,
as more particularly described in a Settlement Agreement between
the Cooperating PRP Group and Transtech, as amended; and
WHEREAS, Transtech has incurred and may incur in the future
certain liabilities, expenses and losses arising out of certain
environmental claims; and,
WHEREAS, in an effort to obtain an adjudication of its rights
for coverage under the Subject Insurance Policies, Transtech filed
a third party complaint in an action captioned AT&T Technologies,
Inc., et al v. Transtech Industries, Inc. et al., pending in the
United States District Court for the District of New Jersey, Civil
Action No. 88-4267 (HLS) and filed an action captioned Transtech,
Inc. et al v. Certain Underwriters at Lloyds, London, et al,
pending in the Superior Court of New Jersey, Middlesex County,
Docket Number MSO-6-010827-95 (hereinafter referred to as the
"Declaratory Judgment Actions"); and,
WHEREAS, London Market Insurers are named defendants and/or
third party defendants in the Declaratory Judgment Actions; and,
WHEREAS, London Market Insurers have denied and continue to
deny all substantive allegations and claims asserted against them
in the Declaratory Judgment Action; and,
WHEREAS the Parties acknowledge the existence of disputed
questions of insurance coverage pertaining to Transtech's and the
Cooperating PRP Group's claims for coverage under the Subject
Insurance Policies; and,
WHEREAS, by this Agreement, the Parties intend to adopt, by
way of compromise, and without prejudice to or waiver of their
respective positions in other matters, without further trial or
adjudication of any issues of fact or law, and without the London
Market Insurers' admission of liability or responsibility under the
Subject Insurance Policies, a full and final settlement that
releases and terminates all rights, obligations and liabilities of
London Market Insurers, Transtech and the Cooperating PRP Group
with respect to the Subject Insurance Policies, including but not
limited to all rights, obligations and liabilities relating to the
aforesaid environmental claims, without prejudice to their
respective positions on policy wordings or any other issues in the
Declaratory Judgment Action, or any other action;
NOW, THEREFORE, in full consideration of the foregoing and of
the mutual agreements herein contained, and intending to be legally
bound, the Parties agree as follows:
1. DEFINITIONS.
The following definitions will apply to the listed terms wherever
those terms appear throughout the Agreement as well as in any
exhibits or attachments thereto. Where the listed terms are also
further defined elsewhere in the body of the Agreement, the
definitions listed here nonetheless apply and shall serve to
further explain the meaning of those terms. Moreover, each defined
term stated in a singular form shall include the plural form, each
defined term stated in plural form shall include the singular form,
and each defined term stated in the masculine form or in the
feminine form shall include the other.
A. Assigned Claims.
"Assigned Claims" shall mean, collectively, those claims that (1)
Transtech assigned to the Cooperating PRP Group pursuant to an
undated Settlement Agreement, an Amendment to Settlement Agreement
made as of August 29, 1995, and a Second Amendment to Settlement
Agreement made as of December 16, 1998, copies of which are
attached collectively as Exhibit 2 to this Agreement and made a
part of it and (2) which claims also arise out of or relate to
Transtech's liabilities at the Carlstadt Site. The Cooperating PRP
Group and Transtech represent that the Agreements referred to in
this definition of "Assigned Claims" relate only to Transtech's
liabilities at the Carlstadt site and that the assignment is
limited to those claims.
B. Cooperating PRP Group.
The term "Cooperating PRP Group" shall mean the members of the ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Cooperating PRP Group identified on attached
Exhibit 1 and to whom Transtech assigned the Assigned Claims as
well as their successors and assigns. Notwithstanding anything to
the contrary in this Agreement, the terms "Cooperating PRP Group"
or "member of the Cooperating PRP Group" or similar term shall not
include any Person to whom Transtech did not assign the Assigned
Claims, however the term shall include all Persons to whom
Transtech assigned the Assigned Claims. In addition, past and
present subsidiaries, parents, affiliates and predecessors of the
members of the Cooperating PRP Group are within the definition of
"Cooperating PRP Group", but only to the extent (1) the member
listed on Exhibit 1 attached to this Agreement has the legal
authority to bind such entity and (2) such entity has a legal
interest in the Assigned Claims.
C. London Market Insurers.
"London Market Insurers" shall mean all the Names, Underwriters,
and syndicates at Lloyd's, London, and all the companies doing
business in the London Insurance Market which severally subscribed,
each in his or its own proportionate share, to one or more of the
Subject Insurance Policies (such insurers are identified in
Attachment B to this Agreement). London Market Insurers shall also
include: (i) all Names, Underwriters, and syndicates at Lloyd's,
London, whether or not identified in Attachment B hereto, who
subscribed to any insurance policies (a) the existence of which has
not presently been established but which were issued to Transtech
or (b) the existence of which has been established but the
identities of the Names, Underwriters and syndicates at Lloyd's,
London, are not presently known; and, (ii) those companies doing
business in the London Insurance Market, (but only those companies
identified in Section I of Attachment B hereto and that make the
payment called for in Attachment D hereto), who subscribed to any
insurance policies: (a) the existence of which has not presently
been established but were issued to Transtech or (b) the existence
of which has been established but the identity of such company as
a subscribing insurer is not presently known. As used herein,
"companies" shall mean the named corporate entity and all
predecessors, successors, affiliates, pool companies as such and
subsidiaries. Notwithstanding the foregoing, the London Market
Insurers listed in Section II of Attachment B and in Attachment C
to this Agreement are not participants in or parties to this
Agreement and accordingly have no rights, benefits or obligations
under this Agreement.
D. Person.
"Person" shall mean an individual, a corporation, a partnership, an
association, a trust, any other entity or organization, and any
federal, state or local governmental or quasi-governmental body or
political subdivision or any agency, department, board or
instrumentality thereof.
E. Subject Insurance Policies.
"Subject Insurance Policies" shall mean (i) all insurance policies
listed in Attachment A hereto and (ii) all known and unknown
insurance policies subscribed by the London Market Insurers listed
in Section I of Attachment B and issued to Transtech, whether or
not listed in Attachment A hereto.
F. Transtech.
The term "Transtech" shall mean:
(i) Transtech Industries, Inc.; its predecessors; all its past and
present subsidiaries and the predecessors and successors of such
subsidiaries; its past and present affiliates and joint ventures
and their predecessors and successors; and all its past, present
and future assigns (but not including the Cooperating PRP Group),
but only to the extent that Trantech has the legal authority to
bind them (Transtech representing that it does not have the legal
authority to bind Eastern Industrial, Wastequid, the Earthline
Partnership or Dry Food Products and,
(ii) any other entity that was in the past or is now affiliated
with, related to or associated with Transtech including any
corporations that have been acquired by, merged into or combined
with Transtech or its predecessors, or Transtech's past and present
subsidiaries, affiliates, successors and assigns (but not including
the Cooperating PRP Group), but only to the extent that Trantech
has the legal authority to bind them (Transtech representing that
it does not have the legal authority to bind Eastern Industrial,
Wastequid, the Earthline Partnership or Dry Food Products) and,
(iii) any and all entities named as insureds, other insureds,
or otherwise insured or claimed to be insured under the Subject
Insurance Policies and those entities', subsidiaries', affiliates',
successors' and assigns' directors, officers, agents and employees
(but not including the Cooperating PRP Group), but only to the
extent that Transtech has the legal authority to bind them
(Transtech representing that it does not have the legal authority
to bind Eastern Industrial, Wastequid, the Earthline Partnership or
Dry Food Products).
2. SETTLEMENT AMOUNT.
A. Each of the London Market Insurers listed in Section I of
Attachment B shall pay into a separate, interest bearing escrow
account agreed to by the Parties, to be maintained by ▇'▇▇▇▇▇ and
▇▇▇▇▇, its respective, allocated share of the total settlement
amount of twenty-nine million five hundred thousand United States
Dollars ($29,500,000.00) (as set forth in Attachment D hereto).
B. If the London Market Insurers fail to comply with any of the
following conditions, Transtech and the Cooperating PRP Group,
jointly and not severally, shall have the right but not the
obligation, to rescind this Agreement: (1) within 60 days after the
Effective Date of this Agreement, London Market Insurers shall have
paid at least $8,666,667 into the above referenced escrow account;
and (2) within 120 days after the Effective Date of this Agreement
London Market Insurers shall have paid at least $25,000,000 into
the above referenced escrow account.
C. London Market Insurers, by their attorneys (▇'▇▇▇▇▇ and
▇▇▇▇▇), shall advise Transtech and the Cooperating PRP Group in
writing within 65 days and 125 days after the Effective Date of
this Agreement, respectively, of the amounts paid into the above
referenced escrow account by each London Market Insurer as of 60
days and 120 days after the Effective Date of this Agreement.
D. If Transtech and the Cooperating PRP Group elect to exercise
their rights to rescind this Agreement pursuant to Section 2.B.
(which election must be joint), they must give written notice of
the rescission to London Market Insurers no later than 30 days
after receipt of the final notice of payments made into the above
referenced escrow account as required by Section 2.C. Such notice
shall be sent to the persons designated to receive notices in
Section 13 via facsimile and certified mail, return receipt
requested. In the event Transtech and the Cooperating PRP Group
rescind this Agreement, this Agreement shall have no force and
effect and any principal amount and any interest thereon paid by
the London Market Insurers shall be returned to them immediately.
E. In the event the London Market Insurers satisfy all of the
conditions set forth in Section 2.B., or should Transtech and the
Cooperating PRP Group fail to rescind this Agreement pursuant to
Section 2.D., then this Agreement shall be binding and the
settlement monies and all earned interest through the date of
payment shall be paid by wire transfer pursuant to written wire
transfer instructions to be provided jointly to ▇'▇▇▇▇▇ and ▇▇▇▇▇
by the Cooperating PRP Group and Transtech. The payment of the
settlement amount and any earned interest shall be made to only one
account. London Market Insurers' payment of the settlement amount
into such account shall be deemed payment to both Transtech and the
Cooperating PRP Group.
The payment required by this Section 2.E. shall be made, (i) within
5 business days after London Market Insurers have complied with
both of the conditions of Section 2.B., or (ii) within 5 business
days after Transtech and the Cooperating PRP Group have given
notice that they are not rescinding this Agreement or (iii) within
35 days after the receipt by Transtech and the Cooperating PRP
Group of the final notice of payments made into the above
referenced escrow account as required by Section 2.C. and a failure
on their part to give notice of rescission, whichever event occurs
earliest.
F. In the event that the Cooperating PRP Group and Transtech do not
rescind this Agreement, then they shall be entitled to enforce the
terms of this Agreement, including but not limited to the payment
terms in this Section 2, against the London Market Insurers listed
in Section I of Attachment B who have not paid their allocated
share of settlement as set forth on Attachment D. This Agreement,
including the payment terms in this Section 2, may be enforced by
an application to enforce litigants' rights or to enforce this
settlement in the Declaratory Judgment Actions or by separate
action in the state or federal courts of New Jersey or as otherwise
permitted by law. In the event that any London Market Insurer does
not pay its allocated share of settlement as set forth on
Attachment D within the applicable time period described in Section
2.E of this Agreement, then the amount owed by such London Market
Insurer shall accrue interest at a rate equal to the interest rate
paid on six (6) month U.S. Treasury bills as published in the Wall
Street Journal on the date payment was due or the first business
day thereafter. Interest shall accrue from the date payment was
due calculated to the date of payment, and the non-paying London
Market Insurer shall also be liable for such litigation costs and
attorneys' fees incurred to enforce this Agreement and collect
payment as may be awarded by a Court, if any.
Notwithstanding anything to the contrary herein, any decision or
agreement by Transtech and/or the Cooperating PRP Group to accept
less than the full amount of interest, litigation costs and
attorneys fees that may be due from a London Market Insurer because
it did not pay its allocated share of settlement timely shall not
constitute a lesser payment or different settlement terms under
subsection 2.G.
Notwithstanding this Section 2.F., a refusal or failure by
Transtech and/or the Cooperating PRP Group to pursue such
non-paying individual London Market Insurer will not affect
Transtech's and/or the Cooperating PRP Group's entitlement to the
receipt of the full amount due from each participating and paying
individual London Market Insurer.
G. In the event that both Transtech and the Cooperating PRP Group
later agree that any individual London Market Insurer listed in
Section I of Attachment B may make a lesser payment or may make its
payment on terms which differ from the foregoing, then Transtech
and the Cooperating PRP Group shall offer the same payment terms to
all other London Market Insurers listed in Section I of Attachment
B. It is the purpose of this provision to ensure that all London
Market Insurers listed in Section I of Attachment B shall have the
same payment terms.
H. The Parties agree that they shall cooperate and use their best
efforts to secure the entry of the Consent Order attached to this
Agreement as Exhibit 3 in order to permit the establishment of a
Qualified Settlement Fund into which the share of the Settlement
Amount for the benefit of the Cooperating PRP Group, as agreed
between Transtech and the Cooperating PRP Group, may be paid out
from the account referred to in section 2.E above.
3. SEVERAL LIABILITY.
Transtech and the Cooperating PRP Group acknowledge that the
obligations of the London Market Insurers under this Agreement are
several, and not joint. Transtech and the Cooperating PRP Group
agree that no London Market Insurer shall be liable for any
settlement amount allocable to any other London Market Insurer
unless it has a contractual obligation to do so separate and apart
from this Agreement. Accordingly, each identified London Market
Insurer listed in Section I of Attachment B agrees to pay only its
individual, respective, allocated share of the settlement amount,
which amount is set forth in Attachment D hereto (plus any
interest, litigation costs and attorneys fees due for late payment
under Section 2.F.). Transtech and the Cooperating PRP Group shall
not seek to recover from any individual London Market Insurer an
amount in excess of its stated, respective, allocated share as set
forth in Attachment D hereto (plus any interest, litigation costs
and attorneys fees due for late payment under Section 2.F.).
Transtech and the Cooperating PRP Group shall be obliged to release
each paying London Market Insurer pursuant to the terms of Section
4 below, upon receipt of payment to Transtech and the Cooperating
PRP Group as provided in Section 2.E above from that London Market
Insurer.
4. RELEASE.
A. Release of London Market Insurers by Transtech and the
Cooperating PRP Group.
1. Upon Transtech's and the Cooperating PRP Group's receipt of
each London Market Insurer's allocated several share of the
Settlement Amount, Transtech and the Cooperating PRP Group,
severally, and any subsequently appointed trustee or representative
acting for Transtech or the Cooperating PRP Group, shall be deemed
to remise, release, covenant not to ▇▇▇ and forever discharge the
following: (a) the London Market Insurer making such payment; (b)
each of that London Market Insurers' present and former officers,
directors, employees, partners, limited partners, shareholders,
members, subsidiaries, affiliates, representatives, attorneys and
agents in such capacity and, (c) the respective heirs, executors,
administrators, successors, assigns and reinsurers (as such) of any
of the Persons identified in subparagraphs (a) and (b) hereof, from
and against all manner of action, causes of action, suits, debts,
accounts, promises, warranties, damages (consequential or
punitive), agreements, costs, expenses, claims or demands
whatsoever, in law or in equity, whether presently known or
unknown, asserted or unasserted, whether sounding in tort or
contract, or arising under the statutes or administrative
regulations of any jurisdiction, with respect to any and all past,
present or future claims, of any type whatsoever, that Transtech
ever had, now has, or hereafter may have: (i) for insurance
coverage, including both defense costs and indemnification claims,
with respect to the Subject Insurance Policies; and (ii) arising
out of or relating to any act, omission, representation, or conduct
of any sort in connection with the Subject Insurance Policies.
2. Notwithstanding anything to the contrary in this Agreement,
the scope of the release, covenant not to ▇▇▇ and discharge
provided by the Cooperating PRP Group is limited only to the
Assigned Claims.
3. It is the intention of Transtech to reserve no rights or
benefits whatsoever under or in connection with the Subject
Insurance Policies with respect to any past, present or future
claims and to assure the settling London Market Insurers their
peace and freedom from such claims and from all assertions of
rights in connection with such claims.
It is the intention of the Cooperating PRP Group to reserve no
rights or benefits whatsoever under or in connection with the
Assigned Claims under the Subject Insurance Policies and to assure
the settling London Market Insurers their peace and freedom from
such Assigned Claims and from all assertions of rights in
connection with such Assigned Claims.
4. Upon Transtech's and the Cooperating PRP Group's receipt of
each London Market Insurer's allocated several share of the
Settlement Amount, any and all rights, duties, responsibilities and
obligations of such settling London Market Insurers created by or
in connection with the Subject Insurance Policies are hereby
terminated. As of the date of such payment Transtech hereby has no
insurance coverage under the Subject Insurance Policies and the
Cooperating PRP Group hereby has no claim for coverage under the
Subject Insurance Policies arising from or in connection with the
Assigned Claims. This release is intended to operate as though the
London Market Insurers who pay their allocated several share of the
settlement amount had never subscribed to the Subject Insurance
Policies.
5. This Release extends to all those Underwriters at Lloyd's that
subscribed to any of the Subject Insurance Policies which include
both known and unknown policies. This Release also extends to all
those London Market Companies identified in Section I of Attachment
B which pay their share of the settlement as regards their
subscription to any of the Subject Insurance Policies which include
both known and unknown policies, but does not extend to any of the
entities listed in Section II of Attachment B. This Release also
extends to Equitas Reinsurance Limited and Equitas Limited. Both
of these entities are third-party beneficiaries of the terms of
this Release.
6. Transtech and the Cooperating PRP Group acknowledge that they
have been advised by their attorneys concerning, and are familiar
with, the California Civil Code Section 1542 and expressly waive
any and all rights under California Civil Code Section 1542 and
under any other federal or state statute or law of similar effect.
7. Transtech and the Cooperating PRP Group expressly assume the
risk that acts, omissions, matters, causes or things may have
occurred which they do not know or do not suspect to exist.
Transtech and the Cooperating PRP Group hereby waive the terms and
provisions of any statute, rule or doctrine of common law which
either narrowly construes releases purporting by their terms to
release claims in whole or in part based upon, arising from, or
related to such acts, omissions, matters, causes or things or which
restricts or prohibits the releasing of such claims.
B. Release of Transtech and the Cooperating PRP Group by London
Market Insurers.
1. The London Market Insurers, and any subsequently appointed
trustee or representative acting for London Market Insurers, shall
be deemed to remise, release, covenant not to ▇▇▇ and forever
discharge Transtech and the Cooperating PRP Group, severally, and
all of their past and present officers, directors, employees,
partners, limited partners, shareholders, members, subsidiaries,
affiliates, representatives, attorneys, agents, successors and
assigns, and each of them from and against all manner of action,
causes of action, suits, debts, accounts, promises, warranties,
damages (consequential or punitive), agreements, costs, expenses,
claims or demands whatsoever, in law or in equity, whether
presently known or unknown, asserted or unasserted, whether
sounding in tort or contract, or arising under the statutes or
administrative regulations of any jurisdiction, with respect to any
and all past, present or future claims, of any type whatsoever,
that London Market Insurers ever had, now have, or hereafter may
have against Transtech, and the Cooperating PRP Group to the extent
of the Assigned Claims, relating in any way to or arising in any
way from (i) any of the Subject Insurance Policies, including but
not limited to claims or demands for premiums, return premiums or
retrospectively rated premiums, and (ii) any act, omission,
representation, or conduct of any sort, if any, constituting bad
faith, fraud, breach of fiduciary duty, breach of common law or
statutory duty, or impairment of subrogation, contribution or other
insurance rights or benefits. This Release, however, shall not
apply to any obligations of Transtech or the PRP Group under this
Agreement, including, without limitations, the obligations set
forth in Section 6 below.
This Release shall be effective upon, and shall not be effective
unless, there is a valid and binding Release from the Cooperating
PRP Group and Transtech, severally pursuant to subsection 4.A.
2. London Market Insurers expressly waive, remise, release and
discharge any and all claims, past, present and future, known and
unknown, they have or may have for contribution, subrogation,
indemnity, equitable allocation, apportionment or other insurance
against any other insurers of Transtech, or the Cooperating PRP
Group to the extent of the Assigned Claims, who have waived,
released and discharged or, in the future, waive, release and
discharge the same claims against the London Market Insurers. The
London Market Insurers shall not make any claim against or attempt
to obtain reimbursement from any insurer of Transtech or the
Cooperating PRP Group or against any other Person, in whole or in
part, for any amounts paid or to be paid under the terms of this
Agreement, unless any such insurer or Person first makes a claim
against any London Market Insurer for an amount alleged to be owed
under the Subject Insurance Policies as to Transtech or the
Assigned Claims as to the Cooperating PRP Group.
3. Subject only to subsection 4.B.2. above, it is the intention
of the London Market Insurers to reserve no rights or benefits
whatsoever under, in connection with or arising from the Subject
Insurance Policies and Assigned Claims with respect to any past,
present or future claims, including but not limited to claims
against other insurers of Transtech or the Cooperating PRP Group or
other persons, and to assure Transtech and the Cooperating PRP
Group their peace and freedom from such claims and from all
assertions of rights in connection with such claims.
4. The London Market Insurers acknowledge that they have been
advised by their attorneys concerning, and are familiar with, the
California Civil Code Section 1542 and expressly waive any and all
rights under California Civil Code Section 1542 and under any other
federal or state statute or law of similar effect.
5. The London Market Insurers expressly assume the risk that
acts, omissions, matters, causes or things may have occurred which
they do not know or do not suspect to exist. The London Market
Insurers hereby waive the terms and provisions of any statute, rule
or doctrine of common law which either narrowly construes releases
purporting by their terms to release claims in whole or in part
based upon, arising from, or related to such acts, omissions,
matters, causes or things; or, which restricts or prohibits the
releasing of such claims.
C. Right to Enforce this Agreement.
Notwithstanding anything to the contrary in this Agreement,
Transtech, the Cooperating PRP Group and London Market Insurers
each reserves the right to enforce the terms of this Agreement.
5. DISMISSAL OF DECLARATORY JUDGMENT ACTION.
Following execution of the Agreement and within fourteen (14) days
after Transtech and the Cooperating PRP Group receive the payments
provided for in paragraph 2 above, Transtech and the Cooperating
PRP Group shall be obliged to make all appropriate filings and
appearances to dismiss, with prejudice, their respective claims in
the Declaratory Judgment Action against those London Market
Insurers listed in Section I of Attachment B that have tendered
payments to Transtech and the Cooperating PRP Group in the amounts
set forth on Attachment D hereto, with the Parties to bear their
own costs, expenses and attorneys' fees. Transtech and the
Cooperating PRP Group shall not be obligated to make all
appropriate filings and appearances to dismiss any claims against
those entities listed on Section II of Attachment B, Attachment C
or who otherwise do not make their settlement payments in
accordance with Attachment D as required under Section 2E
(including but not limited to any entities listed in Section I of
Attachment B who do not make their settlement payments), until such
settlement payments are made as provided in Section 2.F above.
6. REDUCTION OF JUDGMENT/SETTLEMENT AND INDEMNIFICATION.
A.1. Transtech Reduction of Judgment.
If Transtech obtains a judgment against any insurer or other Person
and such insurer or other Person obtains a judgment against any
London Market Insurer (other than those listed in Section I of
Attachment B who have not tendered payment pursuant to Section 2 of
this Agreement) arising under or relating in any way to the Subject
Insurance Policies, whether such judgment is for contribution,
subrogation, indemnity, equitable allocation, apportionment or on
any other basis relating to the judgment Transtech obtained against
such other insurer or Person, Transtech will reduce the amount of
the judgment that it obtains from such insurer or other Person by
the amount of such insurer's or other Person's judgment against the
London Market Insurers in question. Such reductions shall thereby
relieve those London Market Insurers of their obligation to satisfy
that judgment in favor of such other insurer or other Person.
In the event the reduction of judgment described herein is not
effective in relieving the London Market Insurers encompassed by
this Section 6.A.1. of their full obligation to satisfy the
judgment in favor of such other insurer or other Person, then
Transtech shall indemnify such London Market Insurer for any
amounts they are required to pay to such other insurer or other
Person in satisfaction of that judgment. In the event of an action
against London Market Insurersencompassed by this section 6.A.1.,
Transtech shall have the right to attempt to substitute itself as
a defendant for the pertinent London Market Insurers.
A.2. Cooperating PRP Group Reduction of Judgment.
Subject to Section 6.D., if the Cooperating PRP Group obtains a
judgment against any insurer or other Person and such insurer or
other person obtains a judgment against any London Market Insurer
(other than those listed in Section I of Attachment B who have not
tendered payment pursuant to Section 2 of this Agreement), arising
under or in any way relating to the Subject Insurance Policy and
the Assigned claims, whether such judgment is for contribution,
subrogation, indemnity, equitable allocation, apportionment or on
any other basis relating to the judgment the Cooperating PRP Group
obtained against such other insurer or Person, the Cooperating PRP
Group will reduce the amount of the judgment that it obtains from
such insurer or other Person by the amount of such insurer's or
other Person's judgment against the London Market Insurers in
question (but only for that amount which relates to the Assigned
Claims). Such reduction shall thereby relieve those London Market
Insurers of their obligation to satisfy that judgment in favor of
such other insurer or other Person.
In the event the reduction of judgment described herein is not
effective in relieving those London Market Insurers encompassed by
this Section 6.A.2 of their full obligation to satisfy the judgment
in favor of such other insurer or other Person, then the
Cooperating PRP Group shall, subject to Section 6.D., indemnify
such London Market Insurers for any amounts they are required to
pay to such other insurer or other Person in satisfaction of that
judgment. In the event of an action against London Market
Insurersencompassed by this Section 6.A.2., the Cooperating PRP
Group shall have the right to attempt to substitute itself as a
defendant for the pertinent London Market Insurers.
B.1. Other Insurers' Release of London Market Insurers.
In all settlements of Transtech's and/or the Cooperating PRP
Group's claims against other insurers of Transtech for coverage of
environmental liabilities (and with respect to the Cooperating PRP
Group, only with respect to Assigned Claims), Transtech and the
Cooperating PRP Group each will use its best efforts to include a
provision that such other insurers will waive and release any
claims against London Market Insurers (other than those listed in
Section I of Attachment B who have not tendered payments pursuant
to Section 2. whether such claims are based upon any theory of
contribution, subrogation, indemnity, equitable allocation,
apportionment or otherwise.
B.2. Transtech Reduction of Settlement.
In the event of a settlement between Transtech and any of its
insurers or any other Person regarding Transtech's environmental
liabilities, if such insurer or other Person obtains a judgment
against any London Market Insurer (other than those listed in
Section I of Attachment B who have not tendered payment pursuant to
Section 2 of this Agreement), arising under or in any way related
to the Subject Insurance Policies, whether such judgment is for
contribution, subrogation, indemnity, equitable allocation,
apportionment or any other basis relating to the judgment Transtech
obtained against such other insurer or Person, Transtech will
reduce the amount of the settlement that it obtains from such
insurer or other Person by the amount of such insurer's or other
Person's judgment against the London Market Insurers in question.
Such reduction shall thereby relieve those London Market Insurers
of their obligation to satisfy the judgment in favor of such other
insurer or other Person.
In the event the reduction of settlement described herein is not
effective in relieving the London Market Insurers encompassed by
this Section 6.B.2 of Attachment B of their full obligation to
satisfy the judgment in favor of such other insurer or other
Person, then Transtech shall indemnify such London Market Insurers
for any amounts they are required to pay to such other insurer or
other Person in satisfaction of that judgment.
B.3. Cooperating PRP Group Reduction of Settlement.
In the event of a settlement between the Cooperating PRP Group and
any of Transtech's insurers or any other Person regarding insurance
coverage for the Assigned Claims, if such insurer or other Person
obtains a judgment against any London Market Insurer (other than
those listed in Section I of Attachment B who have not tendered
payment pursuant to Section 2 of this Agreement), whether such
judgment is for contribution, subrogation, indemnity, equitable
allocation, apportionment or on any other basis relating to the
judgment Transtech obtained against such other insurer or Person,
the Cooperating PRP Group will reduce the amount of the settlement
that it obtains from such insurer by the amount of such insurer's
judgment against the London Market Insurers in question. Such
reduction shall thereby relieve those London Market Insurers of
their obligation to satisfy the judgment in favor of such insurer
or other Person in the event the reduction of settlement described
herein is not effective in relieving the London Market Insurers
encompassed by this Section 6.B.3 of their full obligation to
satisfy the judgment in favor of such insurer or other Person,
then, subject to Section 6.D., the Cooperating PRP Group shall
indemnify such London Market Insurers for any amounts such London
Market Insurers are required to pay to such insurer or other Person
to satisfy the judgment in favor of such insurer or Person.
C.1. Transtech Indemnification Obligations.
Subject to Sections 6.E.2 and 6.F., Transtech shall indemnify and
hold harmless each London Market Insurer (other than those listed
in Section I of Attachment B that have not tendered their payments
pursuant to Section 2 of this Agreement), for defense costs,
settlements, and judgments arising under or in any way related to
the Subject Insurance Policies. Transtech's obligations under this
subsection 6.C.1. shall include all claims, whether by way of
direct action or otherwise, made by: (a) other insurers of
Transtech, (b) any Person claiming to be an insured or otherwise
entitled to rights under the Subject Insurance Policies; (c) any
Person that has acquired claims from or been assigned the right to
make a claim under the Subject Insurance policies (except for the
Cooperating PRP Group); (d) any federal, state, or local government
or any political subdivision, agency, department, board or
instrumentality thereof. Except upon proof of a claim to ▇▇▇▇▇▇
the corporate veil no officer, director, employee, agent or
representative of Transtech shall have any personal obligation or
liability with respect to the matters encompassed by this Section
6 C.1.
C.2. Cooperating PRP Group Indemnification Obligations.
Subject to Sections 6.D. and 6.F., the Cooperating PRP Group,
severally but not jointly, shall indemnify and hold harmless each
London Market Insurer (other than those listed in Section I of
Attachment B that have not tendered their payment to Transtech and
the Cooperating PRP Group in accordance with Section 2 of this
Agreement), for defense costs, settlements and judgments arising
under or in any way related to the Subject Insurance Policies, but
only if such defense costs, settlements or judgments arise from or
are in connection with the Assigned Claims. The Cooperating PRP
Group's obligations under this subsection 6.C.2. shall include all
claims, whether by way of direct action or otherwise, made by: (a)
other insurers of Transtech: (b) any Person that has acquired from
or been assigned by the Cooperating PRP Group the right to make a
claim under the Subject Insurance Policies relating to the Assigned
Claims; and (c) any federal, state, or local government or any
political subdivision, agency, department, board or
instrumentality. Except upon proof of a claim to ▇▇▇▇▇▇ the
corporate veil, no officer, director, employee, agent or
representative of the Cooperating PRP Group shall have any personal
obligation or liability with respect to the matters encompassed by
this Section 6.C.2.
D. Several Liability of Cooperating PRP Group Members.
The London Market Insurers acknowledge that the obligations of the
Cooperating PRP Group to reduce any judgment or settlement or to
indemnify the London Market Insurers (including defense) are
several, and not joint, and are limited to the amount any
particular member of the Cooperating PRP Group receives in
settlement. The Cooperating PRP Group, severally, warrants and
represents that each member listed on Exhibit 1 to this Agreement
will receive, or will be deemed to have received, its percentage of
the settlement amount, as shown on Exhibit 1. London Market
Insurers agree that no member of the Cooperating PRP Group shall be
liable for any reduction of judgment or settlement or for any
indemnity amount allocable to any other member of the Cooperating
PRP Group or for an amount in total for all obligations under this
Section 6 in excess of the amount which it receives in settlement.
No London Market Insurer shall seek to recover from any individual
member of the Cooperating PRP Group an amount in excess of its
stated, respective, allocated share of the settlement amount, as
set forth in attached Exhibit 1.
E.1. Transtech Indemnification Obligations - Carlstadt Site.
In the event any Cooperating PRP Group member fails to honor its
indemnification obligations under Section 6.C.2., (the "Defaulting
Member"), Transtech shall indemnify and hold harmless London Market
Insurers to the extent of such Defaulting Member's unfulfilled
obligations. As a condition precedent to Transtech's
indemnification obligations under this Section 6.E.1, London Market
Insurers shall act with reasonable diligence and good faith in
taking action to enforce their indemnification rights against such
Defaulting Member. Such action shall include, without limitation
(i) bringing a suit or proceeding against such Defaulting Member
and pursuing such suit or proceeding to judgment, (ii) engaging in
efforts to collect such judgment and (iii) timely filing a Proof of
Claim in any bankruptcy, reorganization or receivership proceeding
filed by or against such Defaulting Member. London Market Insurers
shall obtain Transtech's prior consent before initiating any such
suit or proceeding; filing such Proof of Claim; selecting counsel
to prosecute the suit or proceeding; formulating litigation
strategy; or compromising a claim for indemnification against a
Defaulting Member. Transtech shall not unreasonably withhold its
consent to any of the foregoing.
Provided London Market Insurers have complied with the requirements
of the foregoing paragraph, Transtech shall indemnify London Market
Insurers for their legal fees and costs incurred in pursuing
indemnification from a Defaulting Member. However, in the event a
Defaulting Member prevails on the merits against London Market
Insurers in a suit or proceeding to enforce their indemnification
rights against such Defaulting Member, then Transtech shall have no
obligation to indemnify London Market Insurers for their legal fees
or costs incurred in such suit or proceeding.
Notwithstanding the foregoing, in the event London Market Insurers
file a Proof of Claim in any bankruptcy, reorganization or
receivership proceeding filed by or against a Defaulting Member,
Transtech shall promptly indemnify London Market Insurers for the
Defaulting Member's unpaid indemnification obligations to London
Market Insurers. London Market Insurers shall then assign their
rights to Transtech against such Defaulting Member to the extent of
any unpaid indemnification obligations by that Defaulting Member.
Upon Transtech's satisfaction of its indemnification obligations
under this Section 6.E.1. with respect to a Defaulting Member,
London Market Insurers shall assign to Transtech all their rights
to any uncollected amounts from such Defaulting Member.
E.2. Duration of Indemnification Obligations.
The indemnification obligations of Transtech and the Cooperating
PRP Group, respectively, under Sections 6. C.1. and 2, and E.6.1.
of this Agreement shall apply unless and until Transtech or the
Cooperating PRP Group, whichever is applicable, effects a reduction
of judgment or settlement as provided in Sections 6. A. and B.
F. 1. Indemnification - Notice; Cooperation.
If any claim, cross-claim or action for which Transtech or the
Cooperating PRP Group is required to indemnify London Market
Insurers under this Section 6 is asserted against or communicated
to the London Market Insurers, they shall within 30 days forward to
Transtech or the Cooperating PRP Group, whichever is applicable,
any such demand, notice, communication, summons or other process
received by them or their representatives. Any such claim, suit,
or demand will be defended with counsel jointly selected by the
Parties and paid for by Transtech and/or the Cooperating PRP Group
but, as to the Cooperating PRP Group, only if and to the extent
that it has any obligations as defined and limited in subsections
6.C.2. and Section 6.D. So long as they are paying for the defense
of any such claim, suit or litigation, Transtech and/or the
Cooperating PRP Group (whoever is the indemnitor) shall control the
defense of any such litigation, subject to the London Market
Insurers' right of prior approval of all material positions to be
asserted on behalf of London Market Insurers, which approval shall
not be unreasonably withheld. The London Market Insurers shall
cooperate as provided in this Section 6.F.1. with Transtech or the
Cooperating PRP Group in the conduct of any such proceedings.
In connection with any claim, cross-claim or action indemnifiable
under this Section 6 and for which Transtech or the Cooperating PRP
Group, whichever is applicable, is fulfilling its indemnity
obligations, the London Market Insurers shall not voluntarily admit
any liability, make any payment, assume any obligation or incur any
expense for which Transtech or the Cooperating PRP Group is liable,
without its prior approval, such approval not to be unreasonably
withheld. However, in the event the amount sought against London
Market Insurers for which the Cooperating PRP Group is liable to
indemnify London Market Insurers under this Agreement exceeds the
total limit of the Cooperating PRP Group's indemnity obligation as
provided in Section 6.D., then London Market Insurers shall be
entitled to settle such claim, cross-claim or action subject to the
Cooperating PRP Group's prior approval, not to be unreasonably
withheld. In the event such amount of the settlement exceeds the
PRP Group's indemnity obligation, such settlement will also be
subject to Transtech's prior approval, not to be unreasonably
withheld.
Transtech or the Cooperating PRP Group, whichever is applicable,
shall, subject to Section 6. D. above, have the right to settle any
claim, cross-claim or action falling within the limits of the
indemnification under this Section 6., and, upon request, the
London Market Insurers shall assist in such efforts. Upon the
request of Transtech or the Cooperating PRP Group, whichever is
applicable, and provided it is fulfilling its indemnity obligations
under this Section 6., the London Market Insurers shall assist
Transtech or the PRP Group, in enforcing any right of contribution
or indemnity London Market Insurers have against any Person or
organization who may be liable to the London Market Insurers.
F. 2. If allowed by the Court presiding over such proceeding,
in any filings or appearances in any proceedings in which London
Market Insurers are defended by Transtech or the Cooperating PRP
Group as provided in this Section 6., London Market Insurers shall
be identified solely as "London Market Insurers [or other London
Market Insurers entity, as appropriate] as indemnified by
Transtech" or the Cooperating PRP Group", as the case may be. If
allowed by such Court, every representation and filing made by
counsel retained by Transtech or the Cooperating PRP Group shall
contain the following disclaimer:
"London Market Insurers have settled the claims that are the
subject of this action. Accordingly, although (Transtech)
(Cooperating PRP Group) is authorized to defend London Market
Insurers and to resolve this litigation as (Transtech) (Cooperating
PRP Group) deems appropriate, London Market Insurers now take no
position with respect to these policies. All statements and
positions are solely those of (Transtech) (Cooperating PRP Group)
and shall not constitute any representation or admission by London
Market Insurers."
F.3. The London Market Insurers shall retain the right of prior
approval with respect to all material positions, either procedural
or substantive, taken by counsel selected by Transtech or the
Cooperating PRP Group, which approval the London Market Insurers
will not unreasonably withhold and shall be deemed given unless
withheld on a timely basis after reasonable notice.
F.4. Nothing in this Agreement shall be construed as an
acknowledgment, agreement or admission that Transtech or the
Cooperating PRP Group has assumed any obligations owed by an
insurer or otherwise assumed the attributes of an insurer.
Transtech and the Cooperating PRP Group expressly disclaim all such
obligations and attributes except the obligations of an indemnitor
as expressly provided, defined and limited in this Section 6. In
the event of a direct action against the London Market Insurers,
Transtech and/or the Cooperating PRP Group shall have the right to
attempt to substitute itself or themselves as a defendant(s) for
the pertinent London Market Insurers.
G. The provisions of this Section 6 shall also extend to the
benefit of Equitas Reinsurance Limited, Equitas Limited, and The
Society of Lloyd's. Each of these three entities is a third-party
beneficiary of the terms of this indemnification and hold harmless
undertaking.
7. CONFIDENTIALITY
A. The Parties agree that all matters relating to the terms,
negotiation and implementation of this Agreement shall be
confidential and are not to be disclosed except by order of court
or agreement, in writing, of the Parties, except that, provided
recipients agree to keep such information confidential, the
Agreement may be disclosed to: (a) reinsurers of any London Market
Insurer, directly or through intermediaries; (b) outside auditors,
accountants or attorneys of any Party; (c) representatives of a
non-Party insurer subscribing or allegedly subscribing to one or
more of the Subject Insurance Policies, which insurer is, has been
or may become insolvent in the future including, without
limitation, any liquidators, provisional liquidators, scheme
administrators, trustees, or similarly empowered Persons or
entities acting for such insurer; (d) any non-Party insurer of
Transtech or any member of the Cooperating PRP Group (but only as
to the amount received in settlement by that party); and (e) Waste
Management, Inc. pursuant to the December 23, 1997 settlement
agreement between Transtech and Waste Management, Inc.. The
Agreement may also be disclosed, as required, to the Inland Revenue
or Internal Revenue Service and as necessary any to comply with the
reporting requirements of the Securities and Exchange Commission.
B. In the event a private litigant, by way of document request,
interrogatory, subpoena, or questioning at deposition or trial,
attempts to compel disclosure of anything protected by this
paragraph, the Party from whom disclosure is sought shall decline
to provide the requested information on the ground that this
Confidential Settlement Agreement and Release prevents such
disclosure. In the event such private litigant seeks an Order from
any court or governmental body to compel such disclosure, or in the
event that a court, government official, or governmental body
(other than the Inland Revenue, Internal Revenue Service, or
Securities and Exchange Commission) requests or requires disclosure
of anything protected by this paragraph, the Party from whom
disclosure is sought shall immediately give written notice by
facsimile or hand-delivery to the other Party, and shall
immediately provide copies of all notice papers, orders, requests
or other documents in order to allow each Party to take such
protective steps as may be appropriate. Notice shall be made under
this Paragraph to the persons identified in Paragraph 13 of this
Agreement.
C. Material protected by this paragraph shall be deemed to fall
within the protection afforded compromises and offers to compromise
by Rule 408 of the Federal Rules of Evidence and similar provisions
of state law or state rules of court.
D. Notwithstanding anything to the contrary in this Agreement,
the list and allocated shares of members of the Cooperating PRP
Group in attached Exhibit 1 shall be for attorneys' eyes only
(limited to the attorneys who prepared and/or execute this
Agreement) and not disclosed to any Parties, persons or entities,
except to the extent necessary to enforce or defend a particular
members' rights and obligations under this Agreement and then only
with respect to that particular member. This subparagraph D does
not apply to the members of the Cooperating PRP Group or the
particular employees and agents of the London Market Insurers
responsible for authorizing and implementing this settlement
including, without limitation, claims personnel, but only if those
employees and agents first agree to these terms of confidentiality
and also first agree not to disclose the contents of Exhibit 1 to
other claims personnel or other employees and agents of the London
Market Insurers.
E. Notwithstanding anything to the contrary in this Agreement,
the fact that the Parties have reached a confidential settlement
shall not be confidential.
8. COOPERATION
A. Transtech and the Cooperating PRP Group will undertake all
reasonable actions to co-operate with London Market Insurers in
connection with their respective reinsurers, including responding
to reasonable requests for information and meeting with
representatives of reinsurers. The pertinent London Market
Insurers shall reimburse Transtech and/or the Cooperating PRP Group
for all reasonable expenses incurred in connection with such
cooperation that are agreed to in advance by the pertinent London
Market Insurers, such agreement not to be unreasonably withheld
including but not limited to costs for travel, lodging, meals,
copying and attorneys' fees.
B. London Market Insurers will undertake all reasonable actions
to cooperate with Transtech and/or the Cooperating PRP Group in
connection with the identification and addresses of insolvent
insurers, their successors and trustees and other non-participating
insurers. Transtech and/or the pertinent member(s) of the
Cooperating PRP Group shall reimburse London Market Insurers for
all reasonable expenses incurred in connection with such
cooperation that are agreed to in advance by Transtech and/or the
pertinent member(s) of the Cooperating PRP Group, such agreement
not to be unreasonably withheld, including but not limited to costs
for travel, lodging, meals, copying and attorneys' fees.
9. NON-PREJUDICE AND CONSTRUCTION OF AGREEMENT
A. This Agreement is intended to be and is a compromise between
the Parties and shall not be construed as an admission of coverage
(or lack thereof) under the Subject Insurance Policies nor shall
this Agreement or any provision hereof be construed as a waiver,
modification or retraction of the positions of the Parties with
respect to the interpretation and application of the policies that
are the subject of the Declaratory Judgment Action.
B. This Agreement is the product of informed negotiations and
involves compromises of the Parties' previously stated legal
positions. Accordingly, this Agreement does not reflect upon the
Parties' views as to rights and obligations with respect to matters
or Persons outside the scope of this Agreement. This Agreement is
without prejudice with regard to positions taken by the London
Market Insurers with regard to other insureds, and without
prejudice with regard to positions taken by Transtech and the
Cooperating PRP Group with regard to other insurers. Except for the
express references to Equitas Limited and Equitas Reinsurance
Limited in Sections 4 and 6 above, the Parties specifically disavow
any intention to create rights in third parties under or in
relation to this Agreement.
C. This Agreement is the jointly drafted product of arms-length
negotiations between the Parties with the benefit of advice from
counsel, and the Parties agree that it shall be so construed. As
such, neither party will claim that any ambiguity in this agreement
shall be construed against the other party.
10. MODIFICATION
No change or modification of this Agreement shall be valid unless
it is made in writing and signed by the Parties.
11. EXECUTION
There will be three (3) signed originals of this Agreement.
12. GOVERNING LAW
This Agreement shall be governed by and shall be construed in
accordance with the laws of the State of New Jersey. Any action
brought to enforce the provisions of this Agreement shall be
commenced, prosecuted and defended exclusively in the state courts
of the State of New Jersey.
13. NOTICES
Unless another person is designated, in writing, for receipt of
notices hereunder, notices to the respective Parties shall be sent
to the following person:
Transtech President
Transtech Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Copy to Transtech Counsel:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Blank, Rome, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
Cooperating PRP Group: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇ ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
LONDON MARKET INSURERS
For Equitas Ltd.: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇
Equitas Limited
Claims Department
▇▇ ▇▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
For: Dominion Insurance Company ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇ & Partners Ltd.
▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
For: Winterthur Swiss Insurance ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Company and others ▇▇▇▇▇▇ Management Services
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇'▇▇▇▇▇ and ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (telephone)
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
14. INTEGRATION
This Agreement, including the Attachments and Exhibits, constitutes
the entire Agreement between London Market Insurers with each of
Transtech and the Cooperating PRP Group, (but not as to agreements
between Transtech and the Cooperating PRP Group themselves), with
respect to the subject matter hereof, and supersedes all
discussions, agreements and understandings, both written and oral,
among the Parties with respect thereto.
15. RECOVERIES FROM THIRD PARTIES
Provided Transtech and the Cooperating PRP Group have fulfilled
their obligations under this Agreement, any amounts that Transtech
or the Cooperating PRP Group recover in connection with their
claims against others, including but not limited to other insurers
or third parties, for property damage or any other liabilities
related in any way to the matters released in this Agreement shall
be for the sole benefit of the recovering party (be it Transtech or
the Cooperating PRP Group), and not for the benefit of London
Market Insurers.
16. MISCELLANEOUS
A. All of the terms and conditions contained in this Agreement
are for the benefit of and shall bind the Parties and their
successors and assigns.
B. No term, condition or provision of this Agreement shall be
deemed to have been waived, unless waived expressly in writing.
The waiver of any term or condition in one or more instances shall
not be considered a waiver of the right to enforce such term or
condition thereafter.
C. If any provision of this Agreement shall be declared invalid
or unenforceable by any Court, the remainder of this Agreement
shall not be affected and shall be enforced to the extent permitted
by law.
D. The "headings" contained in this Agreement are the purposes of
expediency and are not intended to interpret the content of the
paragraph language they precede.
The remainder of this page left blank intentionally.
The signature page is the next immediate page.
IN WITNESS WHEREOF, the Parties have executed this Agreement by
their duly authorized representatives intending to be legally bound
by all its terms and conditions.
London Market Insurers identified in Section I of Attachment B have
respectively designated ▇'▇▇▇▇▇ and ▇▇▇▇▇ as their
attorneys-in-fact for the limited purpose of executing this
Agreement on their behalf with express authority to do so.
The Cooperating PRP Group members identified in attached Exhibit 1
have respectively designated ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and/or Drinker
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP as their attorneys-in-fact for the limited
purpose of executing this Agreement on their behalf with express
authority to do so.
Transtech Industries, Inc.
Signed: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Cooperating PRP Group
Signed: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
London Market Insurers
Signed: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇'▇▇▇▇▇ & ▇▇▇▇▇
Authorized Signatory
SCHEDULE OF ATTACHMENTS TO
SETTLEMENT AGREEMENT
Exhibit 1
List of members of the ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Cooperating PRP
Group with each member's allocated percentage of any reduction of
judgment or settlement or indemnity obligation and dollar amount of
settlement allocation
Exhibit 2
"Assigned Claims" Agreements
Exhibit 3
Consent Order to permit the establishment of a Qualified Settlement
Fund
Attachment A
List of all known policies.
Attachment B
List of all known subscribers (divided into two sections - one for
solvent, paying entities and the other for any insolvents and any
non-participating companies).
Attachment C
List of any insolvents and any non-participating companies which
shows their allocated share(s) of the Settlement Agreement.
Attachment D
List of the Settling Insurers showing their allocated shares of the
Settlement Agreement.