Exhibit 10.1
- ------------
SETTLEMENT AGREEMENT
(with Release and Indemnification)
THIS SETTLEMENT AGREEMENT (hereinafter "Agreement") is entered into this
8th day of February, 2005 by and between:
48 Horsehill, LLC, a New Jersey Limited Liability Company, Scotto Holding
Company, LLC and Villa Enterprises Management, LLC all having offices at 17 Elm
Street, Morristown, New Jersey 07960
and
AFP Imaging Corporation and AFP Technologies Corporation, having offices at
50 Clearbrook Road, Elmsford, New York 10523, (hereinafter collectively referred
to as "the Parties")
WHEREAS, 48 Horsehill, LLC initiated the ACTION (as defined herein) against
AFP Imaging Corporation (pled as Kenro Corporation), AFP Technologies
Corporation and others alleging certain ENVIRONMENTAL CONTAMINATION CLAIMS (as
defined herein) involving, arising from or related to the PROPERTY (as defined
herein); and
WHEREAS, at the time of trial, 48 Horsehill, LLC and Defendants AFP Imaging
Corporation (pled as Kenro Corporation) and AFP Technologies Corporation)
reached a settlement of the ACTION; and
WHEREAS the scope and intent of the overall settlement was placed on the
record in the ACTION before the Honorable David S. Cramp, J.S.C., on December 6,
2004 ("RECORD"); and
WHEREAS the Parties desire to enter into the within Agreement in accordance
with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the sufficiency of which the Parties hereby acknowledge, and by which the
Parties intend to be legally bound, the Parties agree as follows:
1. DEFINITIONS.
------------
The following definitions, which defined terms are set forth herein in
all capital letters, shall apply only to the Agreement, and shall not apply to
any other agreement, nor shall they be used in evidence, except with respect to
the Agreement:
A. "48 HORSEHILL" shall mean 48 Horsehill, LLC, plaintiff in the
ACTION, Scotto Holding Company, LLC and Villa Enterprises Management, Ltd.,
Inc., and their respective successors and assigns.
B. "AFP" shall mean AFP Imaging Corporation and AFP Technologies
Corporation, some of the defendants in the ACTION, former Kenro Corporation, and
Xenon Industries, Inc., a New York Corporation, together with their respective
past and present parents, subsidiaries, predecessors, officers, directors,
shareholders, successors and assigns.
C. "PROPERTY" shall mean the real property and all appurtenances,
improvements and personal property thereon, natural or man-made, including but
not limited to air, soils, groundwater, surface water, plant life, animal life,
whether in the past, present, or future, which is the subject of the ACTION and
which is commonly known as 46-48 Horsehill Road, Cedar Knolls (Hanover
Township), New Jersey and which is designated on the Tax Map of Hanover Township
as Block 701, Lot 11.
D. "OFF-SITE PROPERTY" shall mean the real property and all
appurtenances, improvements and personal property thereon, whether natural or
man-made, including but not limited to air, soils, groundwater, surface water,
plant life, animal life, whether in the past, present, or future, to which
ENVIRONMENTAL CONTAMINATION from the PROPERTY has, may have or will migrate or
emanate.
E. "ACTION" shall mean the litigation 48 Horsehill, LLC commenced by
complaint filed on or about December 26, 2001 in the Superior Court of New
Jersey, Law Division, Morris County bearing Docket No.: MRS-L-43-02 against AFP
Imaging Corporation (pled as Kenro Corporation) and AFP Technologies Corporation
and others, alleging certain ENVIRONMENTAL CONTAMINATION CLAIMS involving,
arising from, or relating to the PROPERTY.
F. "CLAIM" shall mean the assertion of any right including, but not
limited to, all past, present or future claims, causes of action, complaints,
cross-claims, counterclaims, affirmative defenses, writs, demands, letters,
inquiries, requests, suits, lawsuits, rights, duties, remedies, actions, damages
(including, without limitation, consequential, punitive and/or exemplary damages
and/or natural resource damages), penalties, claims for costs and attorney fees,
and expert fees, interest and any other expenses or compensation, of any kind or
nature, liens, contracts, indemnity or defense obligations, contribution claims,
agreements, promises, liabilities, judgments, settlements, losses, costs,
expenses, administrative proceedings, directives, governmental actions, direct
actions or other causes of action or orders, whether known or unknown, asserted
or unasserted, foreseen or unforeseen, fixed or contingent, direct or indirect,
matured or unmatured, whether in law, equity or otherwise, which 48 HORSEHILL or
any other PERSON now has, ever had, or may have in the future, whether 48
HORSEHILL or any other PERSON is aware of any of the foregoing. However, the
term "CLAIM" shall exclude any action against AFP under the Frivolous Complaint
Act brought by any Party in the ACTION and is subject to the exception detailed
in Paragraph 6.
2
G. "ENVIRONMENTAL CONTAMINATION" means the actual, alleged, potential
or threatened contamination or exposure of, or damage or injury to, air,
environment, atmosphere, soil, sediments, property (tangible or intangible),
water (including, without limitation, groundwater, surface water and any other
form or body of water), natural resources, plant life, or animal life, within,
on, over, under, about or through the PROPERTY or OFF-SITE PROPERTY, by,
involving, arising from or relating to the presence, existence, movement,
migration, emanation, emission, discharge, seepage, release, disposal, dumping,
landfilling or escape of irritants, contaminations, pollutants, toxins vapors,
soot, smoke, fumes, acids, alkalis, chemicals, noise, energy, radiation,
volatile organic compounds, chlorinated solvents (including, without limitation
trichloroethylene, cis-1,2, dichlorethylene, vinyl chloride, and
trichloroethane), polychlorinated biphenyls, benzene, oil, petroleum, petroleum
products or derivatives, asbestos, silica, liquids or gases, waste materials of
any type, or any other substance, irritant, contaminant or pollutant, or any
form of toxic, hazardous or injurious substance or material including, without
limitation: (1) "hazardous wastes" as defined by the Resource Conservation and
Recovery Act of 1976, as amended; (2) "hazardous substances" and "pollutant(s)
or contaminant(s)" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. ss.9601, et seq.: (3)
"toxic substances" as defined by the Toxic Substances Control Act, as amended;
(4) "hazardous materials" as defined by the Hazardous Materials Transportation
Act, as amended; (5) substances defined or deemed hazardous under New Jersey
statutes and regulations including, without limitation, the New Jersey Spill
Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. and the New Jersey
Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq.; together with amendments
thereto, regulations promulgated thereunder and all successor legislation and
regulations thereof, as well as words of similar purport or meaning referred to
in any other federal, state, county or municipal statute, ordinance, rule or
regulation; and (6) any other substance or material alleged by any PERSON now or
in the future to be (whether before or after its or their presence, existence,
movement, migration, emanation, emission, discharge, seepage, release, disposal,
dumping, landfilling or escape) detrimental, harmful, injurious, hazardous,
noxious, nuisance-causing or toxic, whether within, on, over, under, about or
through the PROPERTY or OFF-SITE PROPERTY.
3
H. "ENVIRONMENTAL CONTAMINATION CLAIMS" means any CLAIM made, asserted
or filed, or which may be made, asserted or filed in the future (whether now
known or unknown), by any PERSON that involves, arises out of or relates in any
way to ENVIRONMENTAL CONTAMINATION CLAIMS including, without limitation, CLAIMS
alleging property damage, natural resource damage, costs with respect to cleanup
studies, analysis, investigations, ongoing maintenance responsibilities,
response and/or remediation involving, arising out of or relating to
ENVIRONMENTAL CONTAMINATION, whether at law or in equity, and whether sounding
in tort, contract, equity, nuisance, trespass, negligence, diminution in value,
strict liability or any other statutory or common law cause of action of any
kind whatsoever involving, arising out of or relating to ENVIRONMENTAL
CONTAMINATION, the sole, limited, and exclusive exception to which is any
personal injury claims.
I. "PERSON" means any natural person, class or group of natural
persons, corporation, partnership, association, trust or any other entity or
organization, including, without limitation, any federal, provincial, statute,
county, city or municipal governmental or quasi-governmental body, and/or any
political subdivision, department, agency or instrumentality thereof.
2. BACKGROUND.
-----------
The above WHEREAS clauses are incorporated by reference as if set
forth at length herein.
3. PURPOSE AND SCOPE.
------------------
The purpose of the Agreement is to resolve all past, present and
potential disputes by 48 HORSEHILL against AFP as well as all past, present and
potential disputes by any PERSON against AFP in connection with any and all
ENVIRONMENTAL CONTAMINATION CLAIMS that involve, arise from or relate to the
PROPERTY, the OFF-SITE PROPERTY, and/or the ACTION. Upon AFP's payment of the
Settlement Amount to 48 Horsehill, LLC, 48 HORSEHILL agrees and shall fully,
totally and forever release AFP from and against any and all ENVIRONMENTAL
CONTAMINATION CLAIMS that 48 HORSEHILL had, has or may have against AFP that
involve, arise from or relate to the PROPERTY, OFF-SITE PROPERTY and/or the
ACTION; and that, upon AFP's payment of the Settlement Amount to 48 Horsehill,
LLC, 48 HORSEHILL shall defend, indemnify, hold and save harmless AFP from and
against any and all ENVIRONMENTAL CONTAMINATION CLAIMS against AFP that involve,
arise from or relate to the PROPERTY, OFF-SITE PROPERTY, or the ACTION by any
PERSON. 48 HORSEHILL agrees that it is the express intent of this Agreement that
AFP is saying "good-bye forever" to the PROPERTY, OFF-SITE PROPERTY and the
ACTION; and 48 HORSEHILL expressly assumes any and all past, present or future
liability of AFP concerning ENVIRONMENTAL CONTAMINATION CLAIMS against AFP by
any PERSON that involve, arise from or relate to the PROPERTY, OFF-SITE PROPERTY
and/or the ACTION, the sole, limited and exclusive exception to which being any
personal injury.
4
4. SETTLEMENT AMOUNT.
------------------
In consideration of the obligations assumed by 48 HORSEHILL and
covenants made by 48 HORSEHILL herein, AFP shall pay to 48 Horsehill, LLC the
sum of Six Hundred and Fifty Thousand Dollars ($650,000) (hereinafter the
"Settlement Amount") by certified funds or wire transfer.
5. INVESTIGATION AND REMEDIATION.
------------------------------
48 HORSEHILL shall undertake diligent action to conduct further
investigation and remediation with respect to ENVIRONMENTAL CONTAMINATION that
involves, arises from or relates to the PROPERTY under the supervision and
direction of the New Jersey Department of Environmental Protection ("NJDEP") and
obtain a No Further Action letter or comparable clearance from NJDEP.
6. PERSONAL INJURY EXCEPTION.
--------------------------
The sole, limited and exclusive exception to the full assumption by 48
HORSEHILL of any and all past, present and future liabilities of AFP concerning
ENVIRONMENTAL CONTAMINATION CLAIMS involving, arising from, or relating to the
PROPERTY, 0FF-SITE PROPERTY and/or the ACTION is any personal injury claim
against AFP. AFP has agreed to this exception for personal injury claims based
on the express representation and warranty made by Anthony Scotto, the managing
member of Scotto Holdings, LLC, which is the managing member of 48 HORSEHILL,
LLC and Stuart Lieberman, Esq., attorney for 48 Horsehill, LLC on the RECORD
that neither is aware of any pending or threatened personal injury claims.
5
7. TIME BY WHICH PAYMENT IS TO BE MADE.
------------------------------------
AFP shall pay 48 Horsehill, LLC the Settlement Amount, sent directly to
48 Horsehill, LLC, 17 Elm Street, Morristown, New Jersey 07960, via certified
funds or wire transfer no later than sixty (60) days from December 6, 2004 or no
later than thirty (30) days after the execution of the Agreement by and between
the Parties, whichever is later.
8. RELEASE AND INDEMNIFICATION BY 48 HORSEHILL.
--------------------------------------------
As a material part of the consideration for the Agreement,
contemporaneously with the payment of the Settlement Amount, 48 HORSEHILL shall
execute, acknowledge and deliver to AFP, care of AFP's attorneys, Farer Fersko,
P.A., 600 South Avenue, P.O. Box 580, Westfield, New Jersey 07091-0580 the
Release and Indemnification from 48 HORSEHILL in favor of AFP which shall be in
the form and shall contain the terms as set forth on Exhibit A annexed hereto
and made a part hereof.
9. STIPULATION OF DISMISSAL OF THE ACTION.
---------------------------------------
As a material part of the consideration for the Agreement,
contemporaneously with the payment of the Settlement Amount, 48 Horsehill, LLC
and AFP Imaging Corporation (pled as Kenro Corporation) and AFP Technologies
Corporation shall execute and deliver for filing in the ACTION a Stipulation of
Dismissal of the ACTION with Prejudice, and without costs or fees, which
Stipulation shall be in the form and shall contain the terms set forth on
Exhibit B annexed hereto.
10. PARAGRAPH HEADINGS.
-------------------
The paragraph headings contained in the Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
the Agreement.
11. MISCELLANEOUS.
--------------
In all references in the Agreement to any parties, persons, entities or
corporation, the use of any particular gender or the plural or singular number
is intended to include the appropriate gender or number as the text of the
Agreement may require.
12. DRAFTING AMBIGUITIES.
---------------------
In interpreting any provision of the Agreement, no weight shall be given
to nor shall any construction or interpretation be influenced by the fact that
counsel for one of the Parties drafted the Agreement, each Party recognizing
that it and its counsel have had the opportunity to review the Agreement and
have contributed to the final form of the Agreement.
6
13. NOTICES.
--------
Any notices with respect to the Agreement shall be in writing and shall
be delivered personally or sent by Certified and Regular Mail, Return Receipt
Requested, addressed as follows (unless the Parties hereafter advise that notice
is to be sent otherwise):
If to 48 HORSEHILL: Anthony Scotto
c/o 48 Horsehill, LLC
17 Elm Street
Morristown, New Jersey 07960
with a copy to: Stuart J. Lieberman, Esq.
Lieberman & Blecher, P.C.
10 Jefferson Plaza, Suite 100
Princeton, New Jersey 08540
If to AFP: David Vozick
AFP Imaging Corporation
250 Clearbrook Road
Elmsford, New York 10523
with a copy to: David B. Farer, Esq.
Farer Fersko, P.A.
600 South Avenue
P.O. Box 580
Westfield, New Jersey 07091-0580
14. GOVERNING LAW.
--------------
The Agreement shall be governed by the laws of the State of New Jersey
and the Parties shall submit to the jurisdiction of the courts of the State of
New Jersey.
15. BINDING EFFECT.
---------------
The Agreement shall be binding upon and inure to the benefit of 48
HORSEHILL and AFP.
16. ENTIRE AGREEMENT.
-----------------
The Agreement constitutes the entire agreement between the Parties. No
change, addition or modification to the Agreement shall be effective unless
signed in writing by all Parties.
17. SURVIVAL.
---------
All of the obligations assumed and promises made by 48 HORSEHILL in the
Agreement including, but not limited to, 48 HORSEHILL's Release and
Indemnification of AFP, expressly survive AFP's payment of the Settlement Amount
to 48 Horsehill, LLC.
7
18. AUTHORITY.
----------
The individuals signing the Agreement, by signing the Agreement,
represent and warrant that they have the authority to sign the Agreement on
behalf of the Party for whom they are so signing.
19. COUNTERPARTS.
-------------
The Agreement may be executed in one or more counterparts, all of which
together shall constitute a single entire Agreement.
48 Horsehill, LLC
Witnessed: By: /s/ Anthony Scotto
-------------------------------
Name: Anthony Scotto
/s/ Beth Stearns Title:
- ---------------- Date:
Name: Beth Stearns
Villa Enterprises Management, Inc.
Attest: By: /s/ Anthony Scotto
-------------------------------
Name: Anthony Scotto
/s/ Beth Stearns Title:
- ---------------- Date:
Name: Beth Stearns
Scotto Holdings, LLC
Witnessed: By: /s/ Anthony Scotto
-------------------------------
Name: Anthony Scotto
/s/ Beth Stearns Title:
- ---------------- Dated:
Name: Beth Stearns
AFP Imaging Corporation
Attest: By: /s/ David Vozick
-------------------------------
Name: David Vozick
/s/ Elise Nissen Title:
- ---------------- Date:
Name: Elise Nissen
8
AFP Technologies Corporation
Attest: By: /s/ David Vozick
-------------------------------
Name: David Vozick
/s/ Elise Nissen Title:
- ---------------- Date:
Name: Elise Nissen
9
EXHIBIT A
RELEASE AND INDEMNIFICATION
This Release and Indemnification ("Release and Indemnification") is
hereby made this _______ day of _________________, 2005, by
Releasors and Indemnitors:
48 Horsehill, LLC, a New Jersey Limited Liability Company, Scotto
Holding Company, LLC and Villa Enterprises Management, Ltd., Inc., and their
respective successors and assigns (hereinafter "48 HORSEHILL"),
For the benefit and in favor of the following Releasees and Indemnitees:
AFP Imaging Corporation; AFP Technologies Corporation; Kenro Corporation
and Xenon Industries, Inc., together with their respective past and present
parents, subsidiaries, predecessors, officers, directors, shareholders,
successors and assigns (hereinafter "AFP"),
WHEREAS, 48 HORSEHILL and AFP previously entered into a Settlement
Agreement dated ______________ (hereinafter referred to as "Agreement").
WHEREAS, as a material part of the consideration for the Agreement, 48
HORSEHILL agreed to release and indemnify AFP, upon AFP's payment of the
Settlement Amount, as defined in the Agreement.
WHEREAS AFP has paid 48 Horsehill, LLC the Settlement Amount in the
amount of six hundred and fifty thousand dollars ($650,000), the receipt and
sufficiency of which 48 HORSEHILL hereby acknowledges.
NOW, THEREFORE, in consideration of AFP's payment to 48 Horsehill, LLC
of six hundred and fifty thousand dollars ($650,000) and pursuant to the
Agreement, a copy of which is attached hereto and made a part hereof, 48
HORSEHILL hereby releases and indemnifies AFP as follows:
1. DEFINITIONS.
------------
The following definitions shall apply only to the Release and
Indemnification, and such defined terms as used herein are set forth in all
capital letters, and shall not apply to any other document, nor shall they be
used in evidence, except with respect to the Release and Indemnification.
A. "48 HORSEHILL" shall mean 48 Horsehill, LLC, Scotto Holding Company,
LLC and Villa Enterprises Management, Ltd., Inc., and their respective
successors and assigns.
B. "AFP" shall mean AFP Imaging Corporation and AFP Technologies
Corporation, some of the defendants in the ACTION, former Kenro Corporation, and
Xenon Industries, Inc., a New York Corporation, together with their past and
present parents, subsidiaries, predecessors, officers, directors, shareholders,
successors and assigns.
C. "PROPERTY" shall mean the real property and all appurtenances,
improvements and personal PROPERTY thereon, natural or man-made, including but
not limited to air, soils, groundwater, surface water, plant life, animal life,
whether in the past, present, or future, which is the subject of the ACTION and
which is commonly known as 46-48 Horsehill Road, Cedar Knolls (Hanover
Township), New Jersey and which is designated on the Tax Map of Hanover Township
as Block 701, Lot 11.
D. "OFF-SITE PROPERTY" shall mean the real property and all
appurtenances, improvements and personal property thereon, whether natural or
man-made, including but not limited to air, soils, groundwater, surface water,
plant life, animal life, whether in the past, present, or future, to which
ENVIRONMENTAL CONTAMINATION from the PROPERTY has, may have or will migrate or
emanate.
E. "ACTION" shall mean the litigation 48 HORSEHILL, LLC commenced by
complaint filed on or about December 26, 2001 in the Superior Court of New
Jersey, Law Division, Morris County, bearing Docket No.: MRS-L-43-02 against AFP
Imaging Corporation (pled as Kenro Corporation) and AFP Technologies Corporation
and others, alleging certain ENVIRONMENTAL CONTAMINATION CLAIMS involving,
arising from, or relating to the PROPERTY.
F. "CLAIM" shall mean the assertion of any right including, but not
limited to, all past, present or future claims, causes of action, complaints,
cross-claims, counterclaims, affirmative defenses, writs, demands, letters,
inquiries, requests, suits, lawsuits, rights, duties, remedies, actions, damages
(including, without limitation, consequential, punitive and/or exemplary damages
and/or natural resource damages), penalties, claims for costs and attorney fees,
and expert fees, interest and any other expenses or compensation, of any kind or
nature, liens, contracts, indemnity or defense obligations, contribution claims,
agreements, promises, liabilities, judgments, settlements, losses, costs,
expenses, administrative proceedings, directives, governmental actions, direct
actions or other causes of action or orders, whether known or unknown, asserted
or unasserted, foreseen or unforeseen, fixed or contingent, direct or indirect,
matured or unmatured, whether in law, equity or otherwise, which 48 HORSEHILL or
any other Person now has, ever had, or may have in the future, whether 48
HORSEHILL or any other Person is aware of any of the foregoing. However, the
term "CLAIM" shall exclude any action against AFP under the Frivolous Complaint
Act brought by any Party in the ACTION and is subject to the exception detailed
in Paragraph 6.
2
G. "ENVIRONMENTAL CONTAMINATION" means the actual, alleged, potential or
threatened contamination or exposure of, or damage or injury to, air,
environment, atmosphere, soil, sediments, PROPERTY (tangible or intangible),
water (including, without limitation, groundwater, surface water and any other
form or body of water), natural resources, plant life, or animal life, within,
on, over, under, about or through the PROPERTY or OFF-SITE PROPERTY, by, or
arising from, the presence, existence, movement, migration, emanation, emission,
discharge, seepage, release, disposal, dumping, landfilling or escape of
irritants, contaminations, pollutants, toxins vapors, soot, smoke, fumes, acids,
alkalis, chemicals, noise, energy, radiation, volatile organic compounds,
chlorinated solvents (including, without limitation trichloroethylene, cis-1,2,
dichlorethylene, vinyl chloride, and trichloroethane), polychlorinated
biphenyls, benzene, oil, petroleum, petroleum products or derivatives, asbestos,
silica, liquids or gases, waste materials of any type, or any other substance,
irritant, contaminant or pollutant, or any form of toxic, hazardous or injurious
substance or material including, without limitation: (1) "hazardous wastes" as
defined by the Resource Conservation and Recovery Act of 1976, as amended; (2)
"hazardous substances" and "pollutant(s) or contaminant(s)" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. ss.9601, et seq.: (3) "toxic substances" as defined by the
Toxic Substances Control Act, as amended; (4) "hazardous materials" as defined
by the Hazardous Materials Transportation Act, as amended; (5) substances
defined or deemed hazardous under New Jersey statutes and regulations including,
without limitation, the New Jersey Spill Compensation and Control Act, N.J.S.A.
58:10-23.11 et seq. and the New Jersey Environmental Rights Act, N.J.S.A.
2A:35A-1 et seq.; together with amendments thereto, regulations promulgated
thereunder and all successor legislation and regulations thereof, as well as
words of similar purport or meaning referred to in any other federal, state,
county or municipal statute, ordinance, rule or regulation; and (6) any other
substance or material alleged by any Person now or in the future to be (whether
before or after its or their presence, existence, movement, emission, discharge,
seepage, release, disposal, dumping, landfilling or escape) detrimental,
harmful, injurious, hazardous, noxious, nuisance-causing or toxic, whether
within, on, over, under, about or through the PROPERTY or OFF-SITE PROPERTY.
3
H. "ENVIRONMENTAL CONTAMINATION CLAIMS" means any CLAIM made, asserted
or filed, or which may be made, asserted or filed in the future (whether now
known or unknown), by any PERSON that involves, arises out of or relates in any
way to ENVIRONMENTAL CONTAMINATION CLAIMS including, without limitation, CLAIMS
alleging property damage, natural resource damage, costs with respect to cleanup
studies, analysis, investigations, ongoing maintenance responsibilities,
response and/or remediation involving, arising out of or relating to
ENVIRONMENTAL CONTAMINATION, whether at law or in equity, and whether sounding
in tort, contract, equity, nuisance, trespass, negligence, diminution in value,
strict liability or any other statutory or common law cause of action of any
kind whatsoever involving, arising out of or relating to ENVIRONMENTAL
CONTAMINATION, the sole, limited, and exclusive exception to which is any
personal injury claims.
I. "PERSON" means any natural person, class or group of natural persons,
corporation, partnership, association, trust or any other entity or
organization, including, without limitation, any federal, provincial, statute,
county, city or municipal governmental or quasi-governmental body, and/or any
political subdivision, department, agency or instrumentality thereof,
2. BACKGROUND.
-----------
The above WHEREAS clauses are incorporated by reference as if set forth
at length herein.
3. SETTLEMENT AGREEMENT.
---------------------
The Settlement Agreement entered into by and between 48 HORSEHILL and
AFP is attached hereto and made a part hereof.
4. CLAIMS RELEASED.
----------------
48 HORSEHILL does hereby fully, totally, and forever release, settle,
surrender, remise, acquit and discharge AFP from and against any and all
ENVIRONMENTAL CONTAMINATION CLAIMS that 48 HORSEHILL had, has, or may have
against AFP that involve, arise out of, or relate to the PROPERTY, OFF-SITE
PROPERTY, and/or the ACTION. 48 HORSEHILL agrees that it is the express intent
of the Release and Indemnification that AFP is saying "good-bye forever" to the
PROPERTY, OFF-SITE PROPERTY, and the ACTION; and that 48 HORSEHILL expressly
assumes any and all past, present and future, known and unknown, liabilities of
AFP concerning ENVIRONMENTAL CONTAMINATION CLAIMS against AFP by any PERSON that
involve, arise from or relate to the PROPERTY, OFF-SITE PROPERTY, and/or the
ACTION. The sole, limited, and exclusive exception to this Release is any
personal injury claim.
4
5. DEFENSE AND INDEMNIFICATION.
----------------------------
48 HORSEHILL does hereby agree and shall defend, indemnify, save and
hold harmless AFP from and against any and all ENVIRONMENTAL CONTAMINATION
CLAIMS that involve, arise out of, or relate to the PROPERTY, OFF-SITE PROPERTY,
and/or the ACTION by any PERSON. 48 HORSEHILL agrees that it is the express
intent of the Release and Indemnification that AFP is saying "good-bye forever"
to the PROPERTY, OFF-SITE PROPERTY, and the ACTION; and that 48 HORSEHILL
expressly assumes any and all past, present and future, known and unknown,
liabilities of AFP concerning ENVIRONMENTAL CONTAMINATION CLAIMS against AFP by
any PERSON that involve, arise from or relate to the PROPERTY, OFF-SITE
PROPERTY, and/or the ACTION. The sole, limited and exclusive exception to this
indemnification is any personal injury claim.
6. PARAGRAPH HEADINGS.
-------------------
The paragraph headings contained in the Release and Indemnification are
for reference purposes only and shall not in any way affect the meaning or
interpretation of the Release and Indemnification.
7. MISCELLANEOUS.
--------------
In all references in the Release and Indemnification to any parties,
persons, entities or corporation, the use of any particular gender or the plural
or singular number is intended to include the appropriate gender or number as
the text of the Release and Indemnification may require.
5
8. DRAFTING AMBIGUITIES.
---------------------
In interpreting any provision of the Release and Indemnification, no
weight shall be given to nor shall any construction or interpretation be
influenced by the fact that counsel for one of the Parties drafted the Release
and Indemnification, each Party recognizing that it and its counsel have had the
opportunity to review the Release and Indemnification and have contributed to
the final form of the Release and Indemnification.
9. NOTICES.
--------
Any notices with respect to the Release and Indemnification shall be in
writing and shall be delivered personally or sent by Certified and Regular Mail,
Return Receipt Requested, addressed as follows (unless the parties hereinafter
advise notice is to be sent otherwise):
If to 48 HORSEHILL: Anthony Scotto
c/o 48 Horsehill, LLC
17 Elm Street
Morristown, New Jersey 07960
with a copy to: Stuart J. Lieberman, Esq.
Lieberman & Blecher, P.C.
10 Jefferson Plaza, Suite 100
Princeton, New Jersey 08540
If to AFP: David Vozick
AFP Imaging Corporation
250 Clearbrook Road
Elmsford, New York 10523
with a copy to: David B. Farer, Esq.
Farer Fersko, P.A.
600 South Avenue
P.O. Box 580
Westfield, New Jersey 07091-0580
10. GOVERNING LAW.
--------------
The Release and Indemnification shall be governed by the laws of the
State of New Jersey and the parties hereto shall submit to the jurisdiction of
the courts of the State of New Jersey.
48 Horsehill, LLC
Witnessed: By:_______________________________
Name:
_________________________________ Title:
Name: Date:
6
Villa Enterprises Management, Inc.
Attest: By:_______________________________
Name:
________________________________ Title:
Name: Date:
Scotto Holdings, LLC
Witnessed: By:_______________________________
Name:
________________________________ Title:
Name: Dated:
AFP Imaging Corporation
Attest: By: /s/ David Vozick
-------------------------------
Name: David Vozick
________________________________ Title:
Name: Date:
AFP Technologies Corporation
Attest: By: /s/ David Vozick
-------------------------------
Name: David Vozick
_________________________________ Title:
Name Date:
7
EXHIBIT B
FARER FERSKO
A Professional Association
600 South Avenue
P.O. Box 580 Westfield, NJ 07091-0580
(908) 789-8550
Attorney for Defendants,
AFP Imaging Corporation
(formerly pled as Kenro Corporation)
and AFP Technologies Corporation
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48 HORSEHILL, LLC, | SUPERIOR COURT OF NEW JERSEY
| LAW DIVISION
Plaintiff, | MORRIS COUNTY
|
v. | Docket Number: MRS-L-43-02
|
KENRO CORPORATION, ATLANTIC | Civil Action
GEOSCIENCE, MICHAEL A. PELLERIN, |
P.E., GARY SULLIVAN, I.C.C. INC. and |
MICHAEL SULLIVAN, | STIPULATION OF DISMISSAL
| WITH PREJUDICE
|
Defendants. |
|
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This matter in difference in the above entitled action having been amicably
adjusted by and between Plaintiff and Defendants AFP Imaging Corporation (pled
as Kenro Corporation) and AFP Technologies Corporation, it is hereby stipulated
and agreed that all claims asserted by Plaintiff in this action against these
Defendants are hereby dismissed, with prejudice, each party bearing its own
costs and attorneys' fees.
Farer Fersko, P.A. Lieberman & Blecher, P.C.
Attorneys for Defendants Attorneys for Plaintiff
AFP Imaging Corporation, (pled as 48 Horsehill, LLC
Kenro Corporation) and AFP Technologies
Corporation
By: By:
------------------------- ------------------------------
John J. Reilly, Esq. Stuart J. Lieberman, Esq.
Dated: ________________, 200____ Dated: ________________, 200____