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Ex. 10.18
IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI
FIRST JUDICIAL DISTRICT
IN RE: BOGALUSA CHEMICAL CASE NUMBER: 251-96-493CIV
RELEASE ALL CASES
Reference is made to a Conditional Agreement to Settle executed on or
about August 20, 1998 by the Mississippi Plaintiffs' Counsel, on behalf of the
Mississippi Plaintiffs, 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 20, 1998, by
and among the Mississippi Plaintiffs' Counsel, on behalf of the Mississippi
Plaintiffs, 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 of the Mississippi Plaintiffs 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 4.4 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 Louisiana 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
Gaylord Chemical Corporation, Gaylord 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 Louisiana Court by order dated
November 10, 1997. By that order, the Louisiana 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 Gaylord 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 boot of Louisiana; 3) from that point,
draw a straight line to the confluence of Gully Creek,
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Upper Little Creek, and Kellers Creek in Marion County, Mississippi; 4)
from the confluence of those three creeks in Marion 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 Louisiana 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 the
Louisiana Conditional Agreement to Settle, 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.
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.
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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 MPC, the Mississippi Plaintiffs, 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 Circuit Court of Hinds
County, Mississippi, First Judicial District and the Honorable James E. Graves
Jr., or his 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 Louisiana 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
1.46; 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
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.
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1.14 The term "Exemplary Damage Claims" shall mean and refer to all claims
for punitive and/or exemplary damages pursuant to Mississippi Code Annotated
Section 11-1-65, former LSA-C.C. art. 2315.3, or any other statute, rule,
regulation, judicial decision or legal doctrine Related to the Incident.
1.15 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 MPC and the Compromising
Parties to be pending in federal or state court as of August 13, 1998, who are
believed by the MPC 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 MPC 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.
1.16 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.
1.17 The term "Final Order and Judgment" shall mean and refer to the order
to be entered by the Louisiana Court, following the fairness hearing, which
shall:
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1.17.1 Confirm the certification of the Class as defined under
former article 593.1 of the Louisiana Code of Civil Procedure;
1.17.2 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;
1.17.3 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;
1.17.4 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;
1.17.5 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;
1.17.6 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;
1.17.7 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,
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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;
1.17.8 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;
1.17.9 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 Compromising Parties, the Related Parties, Hartford, or the
Settling Insurers any sums based on Claims for Contribution, Indemnity, and/or
Subrogation;
1.17.10 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;
1.17.11 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;
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1.17.12 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;
1.17.13 Provide that, upon the submission to the Louisiana Court of
evidence that the escrow agent for the Preliminary Escrow Account has, pursuant
to Section 7.3 of the Louisiana Conditional Agreement to Settle, 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 Louisiana Court will enter a final order of satisfaction
of judgment upon the Effective Date; and
1.17.14 Reserve unto the Louisiana 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
disbursement of the Class Settlement Fund, without prejudice to the rights of
any party to contest personal jurisdiction for any other purpose.
1.18 The term "Gaylord Plant" shall mean and refer to the Gaylord Chemical
Corporation plant in Bogalusa, Louisiana
1.19 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.
1.20 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
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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 Gaylord 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.
1.21 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.
1.22 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 the
Louisiana Conditional Agreement to Settle to satisfy Independent Claims after
the Preliminary Settlement Date.
1.23 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.
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1.24 The term "Independent Claims Plaintiff" or "Independent Claims
Plaintiffs" shall mean and refer to those persons and/or entities with
Independent Claims.
1.25 The term "Initial Twenty Plaintiffs" shall mean and refer to those
twenty Mississippi Plaintiffs selected by the Court in its order dated June 18,
1998, to participate in the Initial Twenty Trial. The Initial Twenty Plaintiffs
are listed in Exhibit 2 attached hereto.
1.26 The term "Initial Twenty Trial" shall mean and refer to the trial of
the claims of the Initial Twenty Plaintiffs, which the Court has selected to be
the initial trial in the Mississippi Action.
1.27 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.
1.28 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.
1.29 The term "Louisiana Conditional Agreement to Settle" shall mean and
refer to the conditional agreement to settle executed by or on behalf of the
Compromising Parties, the PLC and the Class on or about August 21, 1998, as such
agreement has been amended and restated in its entirety and executed by or on
behalf of the Compromising Parties, the PLC, the Class and the Settling
Insurers, together with all exhibits and attachments made part of such agreement
to settle.
1.30 The term "Louisiana Court" shall mean and refer to the 22nd Judicial
District Court in and for the Parish of Washington, Louisiana and the Honorable
Patricia T. Hedges (as of August 20, 1998) or her successor.
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1.31 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 Hinds 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.
1.32 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.
1.33 The term "Mississippi Plaintiff" or "Mississippi Plaintiffs" shall
mean and refer to those persons or entities with Mississippi Claims.
1.34 The term "Mississippi Plaintiffs' Counsel" or "MPC" shall mean and
refer to the following attorneys who represent one or more of the Mississippi
Plaintiffs:
David T. Cobb
Frank J. D'Amico
Henry A. Dart
Frank C. Dudenhefer, Jr.
Val P. Exnicios
Linnes Finney, Jr.
John Lee Grayson
Jack W. Harang
Robert L. Johnson, III
Gladstone N. Jones, III
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Stuart H. Smith
John L. Young
1.35 The term "Mississippi Stay Order" shall mean and refer to the rulings
or orders of the 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.
1.36 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.
1.37 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
Mississippi 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 3.
1.38 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 Louisiana 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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1.39 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 the Louisiana
Conditional Agreement to Settle, to satisfy certain claims Related to the
Incident.
1.40 The term "Participating Class Member" shall mean and refer to any
Class Member who has complied with all orders of the Louisiana Court in the
Class Action and the requirements of the Preliminary Settlement Agreement
necessary in order to receive payment from the Class Settlement Fund.
1.41 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 Louisiana Court to represent the Class in the Class Action,
including:
James S. Farmer
Ronnie G. Penton
Gerald E. Meunier
Reginald J. Laurent
Daniel E. Becnel, Jr.
Joseph M. Bruno
Roy K. Burns, Jr.
Sandra A. Cheek
Thomas M. Discon
Walter C. Dumas
Calvin Fayard
Wendell H. Gauthier
Donna Unkel Grodner
Stephen B. Murray
Michael J. Paduda, Jr.
Suzette Peychaud-Bagneris
Dr. Edward A. Robinson III
W. Hugh Sibley
Vernon P. Thomas
Raymond Charles Vinet, Sr.
Jesse L. Wimberly, III
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The PLC shall also include any other attorneys or committee of attorneys
appointed by the Louisiana Court to represent the Class in the Class Action.
1.42 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 Louisiana Conditional Agreement to Settle,
the Preliminary Settlement Agreement and the Preliminary Escrow Agreement.
1.43 The term "Preliminary Escrow Agreement" shall mean and refer to an
agreement substantially in the form attached to the Louisiana Conditional
Agreement to Settle as Exhibit 3.
1.44 The term "Preliminary Settlement Agreement" shall mean and refer to
an agreement substantially in the form attached as Exhibit 4 to the Louisiana
Conditional Agreement to Settle. The form of the Preliminary Settlement
Agreement may be modified by mutual agreement of the Compromising Parties, the
Settling Insurers, and the PLC.
1.45 The "Preliminary Settlement Date" shall mean and refer to the day
following the last of the following occurrences:
1.45.1 entry by the Louisiana Court of the Stay Order; and
1.45.2 the Stay Order becomes Final; and
1.45.3 entry by the Louisiana First Circuit Court of Appeal of the
Certification Judgment; and
1.45.4 the Certification Judgment becomes Final; and
1.45.5 entry by the Court of the Mississippi Stay Order; and
1.45.6 the Mississippi Stay Order becomes Final; and
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1.45.7 expiration of the Prescriptive Period; and
1.45.8 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 5.11 below, to conclude the settlement set forth in this Conditional
Agreement to Settle and the Louisiana Conditional Agreement to Settle; and
1.45.9 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.
1.46 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.
1.47 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, Arie
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Genger, a natural person, and shall not include any Nonsettling Party or the
insurer or insurers of any 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.
1.48 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.
1.49 "Released Claims" or "Released Claim".
1.49.1 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
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present and future injuries and/or damages; any and all claims
for past, present 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 Section 11-1-65 of the Mississippi Code
Annotated, former article 2315.3 of the Louisiana Civil Code,
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 Gaylord 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 Gaylord 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.
1.49.2 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.
1.50 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.
1.51 The term "Settlement Sum" shall mean and refer to the "Settlement
Sum" as defined in the Letter Agreement.
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1.52 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.
1.53 The term "Stay Order" shall mean and refer to the order to be entered
by the Louisiana Court pursuant to Section 4.1 below.
1.54 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.
1.55 The term "Temporary Escrow Account" shall mean and refer to the
escrow account to be established and administered in accordance with the
Louisiana Conditional Agreement to Settle and the Temporary Escrow Agreement.
1.56 The term "Temporary Escrow Agreement" shall mean and refer to an
agreement substantially in the form attached to the Louisiana Conditional
Agreement to Settle as Exhibit 5.
1.57 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 Mississippi Action, 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 Mississippi Plaintiffs 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 Mississippi Action
and/or related court actions in Louisiana 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 Mississippi Action and related court
actions in Louisiana. 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 Mississippi 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 MPC 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 MPC 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 Mississippi Plaintiffs reserve all rights, not otherwise
to be adjudicated or compromised hereunder, against all Nonsettling Parties.
3.5 The MPC is entering into this Conditional Agreement to Settle on
behalf of the Mississippi Plaintiffs and each Mississippi Plaintiff to terminate
and settle all controversies and all claims of the Mississippi Plaintiffs and
each Mississippi Plaintiff 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
pierce 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 MPC that the
settlement is fair, reasonable, adequate, and in the best interests of, and will
substantially benefit, the Mississippi Plaintiffs.
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
Mississippi Plaintiffs.
3.8 It is a condition of this Conditional Agreement to Settle, and the
parties agree, that by the Effective Date, 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 will be fully and completely
settled. Without limiting the foregoing, it is also 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, and each and every Class
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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 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 a condition of this Conditional Agreement to Settle, and the
parties agree, that by the Effective Date, any and all Independent Claims
(including, without limitation, all Mississippi Claims) will be fully and
completely settled. It is also a condition of this Conditional Agreement to
Settle, 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 limitation, each and every Mississippi Plaintiff) with
respect to such claims. It is also a
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condition of this Conditional Agreement to Settle 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 a condition of this
Conditional Agreement to Settle 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 of the Louisiana Conditional Agreement to Settle, 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, and the parties agree, that by the Effective Date, the Agreement will
fully and completely settle any and 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 Mississippi Claims will
have been released and dismissed on the merits, with prejudice and with each
party to bear its own costs, and 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 Mississippi Claims, and that as against any of the
Compromising Parties, the Related Parties, Hartford, and the Settling Insurers,
the claims of Mississippi Plaintiffs against
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the Preliminary Escrow Account shall be the exclusive remedy of all Mississippi
Plaintiffs 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 Mississippi Plaintiff or any person and/or entity claiming by,
through, or under any 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 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 of the
Louisiana Conditional Agreement to Settle, 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.
3.11 It is a condition of this Conditional Agreement to Settle that the
Stay Order be entered by October 9, 1998 and become Final.
3.12 It is a condition of this Conditional Agreement to Settle that the
Certification Judgment be entered and become Final.
3.13 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 Parties, and become Final. The
parties agree to use their best efforts to fulfill and satisfy this intention
and condition.
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3.14 It is 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.
3.15 It is a condition of this Conditional Agreement to Settle 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.
3.16 It is 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.
3.17 It is 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, 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.
3.18 It is 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
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Subrogation against the Compromising Parties, the Related Parties, Hartford,
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.
3.19 It is 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 Louisiana
Conditional Agreement to Settle, or this Conditional Agreement to Settle, as
applicable.
3.20 It is 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.
3.21 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.
3.22 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 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.
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3.23 It is a condition of this Conditional Agreement to Settle that the
Court shall enjoin and stay the depositions of Trans-Resources, Inc., TPR
Investment Associates, Inc., Nine West Corporation, and Arie Genger.
3.24 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 3.23,
inclusive, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 6.1, 6.2, 8.1 (i) through (vii),
inclusive, and 8.1(ix) and (x) of this Conditional Agreement to Settle, and the
non-occurrence of any of the events set forth in Paragraph 9.A through E,
inclusive, of the Letter Agreement and the termination thereby of the Letter
Agreement, which waiver shall be binding upon the MPC and the Mississippi
Plaintiffs with respect to this Conditional Agreement to Settle and the Letter
Agreement. 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.
3.25 The MPC and the Compromising Parties acknowledge and agree that the
MPC 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 MPC and the Compromising Parties further agree to
cooperate in good faith with respect to any additional document discovery and/or
testimony relating to 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.
3.26 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
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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 Section 5.7 below.
4. STAY ORDERS
4.1 Pursuant to the Louisiana Conditional Agreement to Settle, one or more
of the Compromising Parties, the Settling Insurers, and the PLC shall submit to
the Louisiana 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 Louisiana 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 Louisiana Court.
4.2 The MPC and one or more of the Compromising Parties will jointly move
the 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.
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4.3 The MPC and one or more of the Compromising Parties will take such
actions as necessary to have the 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 The MPC and one or more of the Compromising Parties will jointly move
the 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 MPC who
represents plaintiffs in federal or state court actions, other than the
Mississippi 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 MPC will use its best
efforts to cause all the plaintiffs in the actions listed in Exhibit 1 to move
to stay all such 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 Louisiana Court enters the Stay Order, the 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 ESCROW
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5.1 Within twenty-one (21) days after the expiration of the Prescriptive
Period, the MPC 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 MPC shall use its best efforts to obtain binding commitments for
releases and dismissals with prejudice, in form and content acceptable to the
Compromising Parties in their good faith, sole discretion, of all Mississippi
Claims within the Independent Claims Period.
5.3 In the context of the global settlement contemplated by this
Conditional Agreement to Settle, the Louisiana Conditional Agreement to Settle
and the Preliminary Settlement Agreement, counsel for the Initial Twenty
Plaintiffs and counsel for the Compromising Parties entered into the Letter
Agreement settling the claims of the Initial Twenty Plaintiffs as against the
Compromising Parties, the Related Parties and the Settling Insurers on the terms
and conditions set forth in the Letter Agreement, which, subject to Paragraph 9
thereof, remains in full force and effect. The Initial Twenty Plaintiffs are
among the Mississippi Plaintiffs and are, therefore, also subject to the terms
and conditions of this Conditional Agreement to Settle. In the event of the
termination of this Conditional Agreement to Settle for reasons other than the
failure of any of the events set forth in Paragraph 9 of the Letter Agreement to
occur, (i) the terms and conditions of the Letter Agreement shall survive and
remain in full force and effect, and (ii) and the judgment reduction, indemnity,
defense and other obligations set forth in Sections 3.20, 5.3, 5.4, 5.5, 5.6,
5.7, 5.8, 5.9, 5.10, 8.3, and 10.3 of this Conditional Agreement to Settle shall
survive and remain in full force and effect with respect to the Initial Twenty
Plaintiffs.
5.4 It is a condition of this Agreement, and the Mississippi Plaintiffs
agree, that the release to be executed by each Mississippi Plaintiff who
receives settlement funds pursuant to Section 8.3 below or
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from the Preliminary Escrow Account shall require each such Mississippi
Plaintiff to defend, indemnify, and hold harmless the Compromising Parties, the
Related Parties, Hartford, and the Settling Insurers:
5.4.1 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 Mississippi 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 in interest,
successors in interest, beneficiaries or survivors, arising out of or in any way
Related to the Incident; and
5.4.2 From and against (a) any subrogation claims arising or derived
from any claim of that Mississippi 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
Mississippi Plaintiff.
5.5 The indemnity and defense obligations of Section 5.4 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 Mississippi Plaintiff have not been released effectively,
that Mississippi 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
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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 Mississippi 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 Mississippi Plaintiff.
5.6 It is also a condition of this Agreement, and the Mississippi
Plaintiffs agree, that the release to be executed by each Mississippi Plaintiff
who receives settlement funds pursuant to Section 8.3 below or from the
Preliminary Escrow Account shall also require that each such Mississippi
Plaintiff:
5.6.1 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
5.6.2 Shall reduce or satisfy any judgment that such Mississippi
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.
5.7 It is also a condition of this Agreement, and the Mississippi
Plaintiffs agree, that the release to be executed by each Mississippi Plaintiff
who receives settlement funds pursuant to Section 8.3 below or from the
Preliminary Escrow Account shall also require that if such Mississippi Plaintiff
settles with or dismisses any Nonsettling Party or other third party, the
Mississippi Plaintiff agrees not to compromise,
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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 in any way with the Released Claims of
that Mississippi Plaintiff. The Compromising Parties agree that, once the
Mississippi 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.
5.8 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
Mississippi Plaintiff who receives funds pursuant to Section 8.3 below or 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
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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 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.
5.9 It is also a condition of this Agreement, and the Mississippi
Plaintiffs agree, that each Mississippi Plaintiff who receives funds pursuant to
Section 8.3 below or 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 Mississippi Plaintiff's Released Claims, for the enforcement of
assignments, liens, privileges or otherwise, that Mississippi 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).
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5.10 The MPC may enter into agreements with Mississippi 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 Louisiana Conditional
Agreement to Settle, or the Preliminary Settlement Agreement. Such agreements
may provide for the distribution to Mississippi 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 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 of
the Louisiana Conditional Agreement to Settle, 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.
5.11 If by the expiration of the Independent Claims Period, the MPC and/or
the PLC 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 MPC, or (ii) by written notice to the
MPC, elect to go forward with the settlement embodied in the Agreement, provided
that a sum 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.
5.12 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
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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.
5.13 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 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 Louisiana Court.
5.14 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.
5.15 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,
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Hartford and/or the Settling Insurers, as applicable, in defending any such
claims after the Preliminary Settlement Date.
5.16 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 Louisiana Court.
6. LOUISIANA CONDITIONAL AGREEMENT TO SETTLE/ PRELIMINARY SETTLEMENT
AGREEMENT
6.1 It is a condition of this Conditional Agreement to Settle that the
Louisiana Conditional Agreement to Settle as amended and restated be executed by
or on behalf of the Compromising Parties, the PLC, the Class 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
Compromising Parties, the Settling Insurers, and the PLC shall execute the
Preliminary Settlement Agreement and submit the Preliminary Settlement Agreement
to the Louisiana Court for preliminary approval pursuant to the Preliminary
Settlement Agreement.
7. CONTRIBUTIONS
7.1 The parties acknowledge and agree that the Louisiana Conditional
Agreement to Settle, which the MPC acknowledges having received and reviewed,
provides that the Compromising Parties shall have the following obligations with
respect to the funding of the Temporary Escrow Account or the Preliminary Escrow
Account, as applicable:
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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 MPC hereby acknowledges that this payment has been timely made.)
7.1.2 Within two (2) business days after this Conditional Agreement
to Settle, the Louisiana 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, as described in Section 7.1.1 above, into the Preliminary Escrow
Account, to be held pursuant to the Preliminary Escrow Agreement, 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;
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(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;
(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
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(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 4 attached hereto.
7.2.1 The MPC and the Mississippi Plaintiffs expressly acknowledge
that CIGNA, Hartford, Reliance, and Westchester 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
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 4 (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 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 as described in Section 7.2.3 below), (c) the MPC will
cause, on or before the Effective Date, the release and dismissal, with
prejudice, of all actions
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and claims of the Mississippi Plaintiffs Related to the Incident against
Hartford, the Compromising Parties and/or the Related Parties arising from or
related to said Hartford Policy, (d) the MPC 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
MPC 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 MPC expressly acknowledges that the Compromising Parties
have been informed by the Settling Insurers that their policies will respond to
the bodily injury and property damage claims Related to the Incident, but that
Steadfast's policy will respond only with respect to post-explosion claims.
7.2.3 The parties acknowledge and agree that the Louisiana
Conditional Agreement to Settle provides that 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 Louisiana Court's entry of the Order of Preliminary
Approval as provided in Preliminary Settlement Agreement, pay into the
Preliminary Escrow Account, in addition to the amounts payable as described
above, a sum equal to one hundred (100%) percent of the amount of any such
depletion.
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7.2.4 The parties acknowledge and agree that the Louisiana
Conditional Agreement to Settle provides that 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) of the
Louisiana Conditional Agreement to Settle and that National Union has made its
payment as set forth in Section 7.2.3 of the Louisiana Conditional Agreement to
Settle, 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 Louisiana 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 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 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.
7.5 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
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of any person and/or entity, including the Compromising Parties, the Related
Parties, Hartford, and the Settling Insurers.
7.6 If the Compromising Parties fail to make a payment they are obligated
to make as described above, the MPC 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
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.
7.7 If National Union and/or Steadfast fail to make the payments they are
obligated to make as described above, the MPC 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:
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(i) any of the conditions of this Conditional Agreement to Settle
set forth in Sections 3.8 through 3.23, inclusive, 5.4, 5.5, 5.6, 5.7,
5.8, 5.9, 5.10, 6.1, and 6.2 are not fulfilled, and not waived by the
Compromising Parties, and the Compromising Parties give the MPC 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;
(iii) this Conditional Agreement to Settle, the Louisiana
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 MPC 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 MPC written notice of
the termination of this Agreement pursuant to Section 5.11 above;
(v) the Preliminary Settlement Agreement is terminated;
(vi) the Louisiana 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;
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(viii) contributions to the Temporary Escrow Account or the
Preliminary Escrow Account are not made timely as described above and such
failure is not cured pursuant to Sections 7.6 and/or 7.7 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 prior to the Effective Date by the
MPC or the PLC before such Independent Claims Plaintiff or other person
executes upon such judgment or otherwise takes steps to enforce or collect
such judgment and the Compromising Parties give the MPC and the PLC
written notice of termination of this Agreement for such reason; or
(x) the MPC fails to fulfill any of its obligations under Section
7.2.2 above and the Compromising Parties give the MPC written notice of
termination of this Agreement for such reason,
this Agreement may be terminated by the Compromising Parties or the MPC 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
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the Preliminary Settlement Agreement or the Temporary Escrow Agreement or the
Preliminary Escrow Agreement and other expenses incurred with the specific
authorization of the Louisiana 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 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.
8.3 In the event that the Letter Agreement has not terminated and this
Conditional Agreement to Settle terminates prior to the transfer of the Ten
Million and No/100 ($10,000,000.00) Dollars payment to the Preliminary Escrow
Account described in Section 7.1.2 above, the Compromising Parties shall pay the
Settlement Sum to the Initial Twenty Plaintiffs in accordance with the Letter
Agreement, said payment to be made within thirty (30) days after the later of
(a) the receipt by the Compromising Parties of a written demand from the MPC
that such payment be made and (b) the return of the amounts in the Temporary
Escrow Account to the Compromising Parties as set forth in Section 8.2 above;
provided and on the condition that contemporaneously with and in exchange for
such payment to the Initial Twenty Plaintiffs, the Initial Twenty Plaintiffs
shall deliver to the Compromising Parties, in accordance with the terms and
conditions of this Conditional Agreement to Settle and the Letter Agreement, (i)
executed releases of all their claims (including all Released Claims) against
the Compromising Parties, the Related Parties, and the
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Settling Insurers Related to the Incident, in form and content satisfactory to
the Compromising Parties, (ii) such stipulations and other documents as are
necessary to dismiss all such claims, with prejudice and each party to bear its
own costs, and (iii) such documents as are necessary to acknowledge and afford
the Compromising Parties, the Related Parties, and the Settling Insurers the
judgment reduction, indemnity, defense, and other obligations set forth in
Sections 3.20, 5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.10, 8.3, and 10.3 of this
Conditional Agreement to Settle. In the event that the Compromising Parties fail
to timely make the payment to the Initial Twenty Plaintiffs provided for in this
Section 8.3 and the Initial Twenty Plaintiffs are ready, willing, and able to
deliver to the Compromising Parties the executed releases, stipulations, and
other documents described above in exchange for and contemporaneously with such
payment, the Initial Twenty Plaintiffs shall be entitled to, in addition to the
Settlement Sum, reasonable attorney's fees incurred by the Initial Twenty
Plaintiffs in enforcing this Section 8.3 and simple interest at the prime rate
from the date when such payment was due until paid.
9. ADDITIONAL OBLIGATIONS OF THE MPC AND THE COMPROMISING PARTIES
9.1 The MPC covenants, represents and warrants to the Compromising
Parities that:
9.1.1 The MPC 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 other than those actions listed in Exhibit 1.
9.1.2 The MPC has exercised due diligence in ascertaining that the
representations contained in this Conditional Agreement to Settle on the part of
the MPC and/or the Mississippi Plaintiffs are true and accurate, and the MPC
shall have, until the Effective Date, a continuing obligation to ensure that
these representations are accurate, and the MPC shall notify the Compromising
Parties within a reasonable time after learning that any of the representations
are or become inaccurate;
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9.1.3 All liens or other encumbrances attaching to the proceeds of
this settlement, or the interest of any individual Mississippi Plaintiff
therein, of which the MPC has been placed on notice are set forth in Exhibit 5,
and as additional liens and other encumbrances become known to the MPC, the MPC
will supplement this exhibit accordingly;
9.1.4 The MPC has the full authority to provide any and all of the
representations and warranties contained in this Agreement that it makes for
itself or on behalf of the Mississippi Plaintiffs in the cases listed in Exhibit
6 hereto and has full authority to enter into this Agreement on behalf of and
bind such plaintiffs;
9.1.5 The MPC will diligently endeavor to obtain the written
concurrence of any attorney or lawyer representing any Mississippi Plaintiff
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 Mississippi Action and any
other actions Related to the Incident.
9.2 Each of the Compromising Parties and the Settling Insurers covenants,
represents and warrants to the MPC that, except as set forth in Exhibit 5, 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 MPC 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.
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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 Account and/or any earnings therefrom will
be sufficient to satisfy the claims of the Class Members, the Independent Claims
Plaintiffs, the Mississippi Plaintiffs, or any other person and/or entity with a
claim Related to the Incident.
10.3 If any Mississippi Plaintiff is a minor, ward, incompetent,
succession or absentee under the laws of the state of Mississippi or the state
where that Mississippi Plaintiff resides, the MPC shall take all necessary steps
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 Mississippi Plaintiff's claim final and binding. Furthermore,
a certified copy of the order or decree approving the settlement and compromise
of the claims of said person must be forwarded to the Compromising Parties in
order for any funds to be distributed under this Agreement.
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]
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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 solely those of [the party] and
shall not constitute any representation or admission
by [the Settling Insurer(s)].
10.5 The MPC acknowledges and agrees that the obligations of the
Compromising Parties and the Settling Insurers set forth in Section 7 above are
duplicative of the obligations set forth in Section 7 of the Louisiana
Conditional Agreement to Settle and do not create any independent or additional
obligations on the part of the Compromising Parties or the Settling Insurers and
shall be deemed fulfilled when the obligations of Section 7 of the Louisiana
Conditional Agreement to Settle are fulfilled.
10.6 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.
10.7 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 Mississippi Plaintiffs, 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
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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 MPC, the
Mississippi Plaintiffs, the 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 an offer to compromise and a compromise within the meaning of article
408 of the Mississippi Rules 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 10.7 shall survive the termination of the Agreement.
10.8 This Agreement, including the exhibits attached hereto, and the
Letter Agreement constitute 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 and the
Letter Agreement supersede and replace any previous agreements or understandings
between the parties, or any of them, on the subject matter thereof.
10.9 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
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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.
10.10 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.
10.11 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, and assigns of all parties
hereto.
10.12 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.
10.13 For purposes of this Agreement, the use of singular form of any word
includes the plural and vice versa.
10.14 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.
10.15 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 Mississippi without giving effect to any
conflict of laws principles and that the exclusive forum for any claim related
to the interpretation or
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enforcement of the Agreement shall be the Circuit Court of Hinds County,
Mississippi, First Judicial District.
10.16 Any notice, request, instruction, or other document to be given by
any party to this Agreement to any other party to this Agreement 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:
Stephen A. Marshall
RUBIN BAUM LEVIN CONSTANT & FRIEDMAN
30 Rockefeller Plaza New
York, New York 10112
and
John E. Wade, Jr.
BRUNINI, GRANTHAM, GROWER & HEWES, PLLC
1400 Trustmark Building
248 East Capital Street
Jackson, Mississippi 39201
and
Leonard L. Kilgore, III
KEAN, MILLER, HAWTHORNE, D'ARMOND,
MCCOWAN & JARMAN, L.L.P.
One American Place, 22nd Floor (70825)
Post Office Box 3513
Baton Rouge, Louisiana 70821
and
Thomas Hardy
TRANS-RESOURCES, INC.
Nine W. 57th Street
New York, New York 10019
and
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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.:
Dayva Zaccaria
Manager, Environmental Claims
AIG Technical Services, Inc.
80 Pine Street, 6th Floor
New York, NY 10005
and
To Steadfast Insurance Company:
Thomas Lysaught
Vice President of Environmental Claims
STEADFAST INSURANCE COMPANY
1400 American Lane
Schaumburg, IL 60196
(iii) If to the MPC, to each of the following:
Stuart H. Smith David T. Cobb Val P. Exnicios
SACKS & SMITH Post Office Box 16189 Liska, Exnicios & Nungesser
1615 Poydras Street, Suite 1900 Lakeland Drive 9701 Lake Forest Blvd.
860 Jackson, MS 39236-6189 New Orleans, LA 70127
New Orleans, LA 70112
Robert L. Johnson, III John Lee Grayson Linnes Finney
1187 Martin Luther King Drive Fleming, Hovenkamp & Gary, Williams, Parenti, Finney,
Post Office Box 1678 Grayson Lewis,
Natchez, MS 39120 1330 Post Oak Boulevard, McManus, Watson &
Suite 3030 Sperando
Houston, TX 77056 Post Office Box 3390
Fort Pierce, Florida 34948
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Gladstone N. Jones, III Jack W. Harang Henry A. Dart
SMITH, JONES & FAWER, Jack Harang, PLC Henry A.Dart, PLC
LLP 3748 N. Causeway Blvd., 3748 N. Causeway Blvd.
201 St. Charles Avenue, Suite Suite 303 Metairie, Louisiana 70002
3702 Metairie, Louisiana 70002
New Orleans, LA 70170
Frank C. Dudenhefer, Jr. John L. Young Frank J. D'Amico, Jr.
Cummings, Cummings, 915 St. Louis Street 622 Baronne St., 2nd Floor
Dudenhefer New Orleans, LA 70112 New Orleans, LA 70130
& Martin
416 Gravier Street
New Orleans, LA 70130
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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
10.16.
As of August 20, 1998 /s/ John E. Wade, Jr.
- --------------------------- ------------------------------------
Date John E. Wade, Jr., MSB#6850
Robert L. Gibbs, MSB #4816
T. Michael Cronin, MSB #10108
BRUNINI, GRANTHAM, GROWER & HEWES
1400 Trustmark Building
248 East Capitol St.
Jackson, MS 39201
Telephone: (601) 948-3101
and
As of August 20, 1998 /s/ Leonard L. Kilgore, III
- --------------------------- ------------------------------------
Date Leonard L. Kilgore, III (#7372)
Sandra L. Edwards (#14248)
Esteban Herrera, Jr. (#20859)
KEAN, MILLER, HAWTHORNE, D'ARMOND,
MCCOWAN & JARMAN, L.L.P.
One American Place, 22nd Floor
Post Office Box 3513
Baton Rouge, Louisiana 70821
Telephone: (504) 387-0999
ATTORNEYS FOR VICKSBURG CHEMICAL
COMPANY AND CEDAR CHEMICAL
CORPORATION
As of August 20, 1998 /s/ Stephen A. Marshall
- --------------------------- ------------------------------------
Date Stephen A. Marshall
Martin P. Michael
Martin J. Schwartz
RUBIN BAUM LEVIN CONSTANT & FRIEDMAN
30 Rockefeller Plaza - 29th Floor
New York, NY 10112
Telephone: (212) 698-7700
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ATTORNEYS FOR TRANS-RESOURCES, INC.
TPR INVESTMENT ASSOCIATES, INC. AND
NINE WEST CORPORATION
As of August 20, 1998 National Union Fire Insurance Company
- --------------------------- of Pittsburgh, Pa.
Date
/s/ Dayva Zaccaria
-------------------------------------
Dayva Zaccaria, Manager
Environmental Claims Department
AIG Technical Services, Inc, as
authorized agent for
National Union Fire Insurance Company
of Pittsburgh, Pa.
80 Pine Street, 6th Floor
New York, NY 10005
Telephone: (212) 770-7000
FOR NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
As of August 20, 1998 /s/ Thomas Lysaught
- --------------------------- ------------------------------------
Date Thomas Lysaught
Vice President of Environment Claims
STEADFAST INSURANCE COMPANY
1400 American Lane
Schaumburg, IL 60196
Telephone: (847) 605-6049
STEADFAST INSURANCE COMPANY
As of August 20, 1998 /s/ Katrina Von Hadermann
- --------------------------- ------------------------------------
Date Katrina Von Hadermann
FLEMING, HOVENKAMP & GRAYSON
1330 Post Oak Blvd., Suite 3030
Houston, Texas 77056-3019
Telephone: (713) 621-7944
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As of August 20, 1998 /s/ Stuart H. Smith
- --------------------------- ------------------------------------
Date Stuart H. Smith
SACKS & SMITH
1615 Poydras Street, Suite 860
New Orleans, Louisiana 70112
Telephone: (504) 593-9600
As of August 20, 1998 /s/ John L. Young
- --------------------------- ------------------------------------
Date John L. Young
915 St. Louis Street
New Orleans, Louisiana 70112
Telephone: (504) 581-2200
As of August 20, 1998 /s/ Val P. Exnicios
- --------------------------- ------------------------------------
Date Val P. Exnicios
Liska, Exnicios & Nungesser
9701 Lake Forest Blvd.
New Orleans, Louisiana 70127
Telephone: (504) 245-1612
As of August 20, 1998 /s/ Linnes Finney
- --------------------------- ------------------------------------
Date Linnes Finney
GARY, WILLIAMS, PARENTI, FINNEY,
LEWIS, MCMANUS, WATSON & SPERANDO
P.O. Box 3390
320 South Indian River Drive
Fort Pierce, Florida 34948
Telephone: (561) 464-4226
As of August 20, 1998 /s/ Gladstone N. Jones, III
- --------------------------- ------------------------------------
Date Gladstone N. Jones, III
SMITH, JONES & FAWER, LLP
201 St. Charles Avenue, Suite 3702
New Orleans, Louisiana 70170
Telephone: (504) 525-2200
As of August 20, 1998 /s/ Jack W. Harang
- --------------------------- ------------------------------------
Date Jack W. Harang
Jack Harang, PLC
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3748 N. Causeway Blvd., Suite 303
Metairie, Louisiana 70002
Telephone: (504) 828-2777
As of August 20, 1998 /s/ Henry A. Dart
- --------------------------- ------------------------------------
Date Henry A. Dart
Henry A. Dart, PLC
3748 N. Causeway Blvd.
Metairie, Louisiana 70002
Telephone: (504) 838-8383
As of August 20, 1998 /s/ Frank J. D'Amico, Jr.
- --------------------------- ------------------------------------
Date Frank J. D'Amico, Jr.
622 Baronne St., 2nd Floor
New Orleans, Louisiana 70130
Telephone: (504) 525-9561
As of August 20, 1998 /s/ Frank C. Dudenhefer, Jr.
- --------------------------- ------------------------------------
Date Frank C. Dudenhefer, Jr.
CUMMINGS, CUMMINGS & DUDENHEFER
416 Gravier Street
New Orleans, Louisiana 70130-2499
Telephone: (504) 586-0000
As of August 20, 1998 /s/ David T. Cobb
- --------------------------- ------------------------------------
Date David T. Cobb
LAW OFFICE OF DAVID T. COBB
P.O. Box 1619
Jackson, Mississippi 39236
Telephone: (601) 981-6835
As of August 20, 1998 /s/ Robert L. Johnson, III
- --------------------------- ------------------------------------
Date Robert L. Johnson, III
Post Office Box 1678
Natchez, Mississippi 39120
Telephone: (601) 442-9372
ATTORNEYS FOR THE MISSISSIPPI
PLAINTIFFS
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