1. ASSIGNMENT AND PROTECTIONS.
1.1. The Parties have agreed to the terms of an assignment and certain protections for Released Parties as set forth in this Attachment:
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Satisfaction of Compensatory Damages. The Economic Class, Plaintiffs, and all Economic Class Members agree and acknowledge that the Settlement Payment(s), in addition to constituting consideration from the Released Parties, also constitute full, complete, and total satisfaction of all of their Compensatory Damages against the Transocean Parties and the Halliburton Parties.
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Protections for Released Parties. The Economic Class, Plaintiffs, and all Economic Class Members promise, agree, acknowledge, represent, warrant, and covenant as follows:
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No Assignment of Economic Class’s, Plaintiffs’, or Economic Class Members’ Claims or Reassignment of Assigned Claims. Neither the Economic Class nor any Plaintiff or Economic Class Member shall assign or reassign, or shall attempt to assign or reassign, to any person or entity other than BP any rights or claims arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, including attempts to reassign the Assigned Claims. Any such assignment or reassignment, or attempt to assign or reassign, to any person or entity other than BP any rights or claims arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident shall be void, invalid, and of no force and effect.
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No Recovery of Additional Compensatory Damages. Neither the Economic Class nor any Plaintiff or Economic Class Member shall accept or attempt to recover, through insurance, reinsurance, indemnification, contribution, subrogation, litigation, settlement, or otherwise, any Compensatory Damages from the Transocean Parties and the Halliburton
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Parties, except from Assigned Claims subject to the terms and conditions of Section 1.1.2.4. Nothing in this Section 1.1.2.2 shall impair or impact rights to pursue Transocean and Halliburton for exemplary and punitive damages reserved by the Economic Class and Economic Class Members in Sections 3.6, 3.7, 10.2, and 10.3 of the Agreement and claimed as either individuals or members of the Economic Class.
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Non-Execution and Non-Collection for Compensatory Damages. In the event that the Economic Class or any of the Plaintiffs or Economic Class Members is or becomes the beneficiary of any judgment, decision, award, or settlement arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, the Economic Class and/or such Plaintiffs and/or Economic Class Members shall not accept, execute on, attempt to collect, or otherwise seek recovery of any Compensatory Damages from the Transocean Parties or from the Halliburton Parties, except from Assigned Claims subject to the terms and conditions of Section 1.1.2.4. Nothing in this Section 1.1.2.3 shall impair or impact rights to pursue Transocean and Halliburton for exemplary and punitive damages reserved by the Economic Class and Economic Class Members in Sections 3.6, 3.7, 10.2, and 10.3 of the Agreement and claimed as either individuals or members of the Economic Class.
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Conditional Collection of Damages. In the event that the Economic Class or any of the Plaintiffs and/or Economic Class Members is or becomes the beneficiary of any judgment, decision, award, or settlement arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, including from Assigned Claims and/or Expressly Reserved Claims, the Economic Class and/or such Plaintiffs and/or Economic Class Members shall not accept, execute on, attempt to collect, or otherwise seek recovery of any Damages, to the extent that any Other Party is seeking or may seek to recover such Damages from any Released Party, whether through indemnity,
2 contribution, subrogation, assignment, or any other theory of recovery, by contract, pursuant to applicable law or regulation, or otherwise, directly or indirectly. The Economic Class, Plaintiffs, and/or Economic Class Members may, however, accept, execute on, attempt to collect, or otherwise seek recovery of Damages if and when a court or tribunal of competent jurisdiction has finally determined that Other Parties cannot recover such Damages, whether through indemnity, contribution, subrogation, assignment or any other theory of recovery, by contract, pursuant to applicable law or regulation, or otherwise, directly or indirectly, from any Released Party. For purposes of this Section 1.1.2.4, “finally determined” shall mean the conclusion of any applicable appeals
or other rights to seek review by certiorari or otherwise, or the lapse of any and all such rights, or the lapse of any and all applicable limitations or repose periods.
1.1.2.5. Conditions on Future Settlements. The Economic Class, Plaintiffs, and/or Economic Class Members may settle or compromise any rights, demands, or claims with the Transocean Parties, the Halliburton Parties, and/or any Other Parties arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident if but only if the Transocean Parties, the Halliburton Parties, and/or such Other Party, as the case may be, agrees as part of that settlement or compromise to a full and final release of, dismissal of, and covenant not to sue for any and all rights to recover, directly or indirectly, from the Released Parties (whether through indemnity, contribution, subrogation, assignment or any other theory of recovery, by contract, pursuant to applicable law or regulation, or otherwise) for any Damages or other relief or consideration provided under or relating to such settlement or compromise (whether the settlement is of a class, of individual claims, or otherwise), including from Expressly Reserved Claims, and further represents and warrants that it has not assigned and will not assign any rights to recover for such Damages or other relief or consideration (whether through indemnity, contribution,
3 subrogation, or otherwise). As part of this commitment and without limitation, the Economic Class, Plaintiffs, and/or Economic Class Members shall not settle or compromise with the Transocean Parties, the Halliburton Parties, and/or any Other Parties on terms that might allow any insurers, reinsurers, or indemnitors thereof to claim against any Released Parties for indemnification, subrogation, contribution, assignment or under any other theory of recovery. The Economic Class, Plaintiffs, and Economic Class Members agree that, before any such settlement or compromise is executed, BP shall have the right to approve language in any such settlement or compromise memorializing the representation and warranty set forth in this Section 1.1.2.5, which approval shall not be unreasonably withheld.
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Indemnity to Released Parties. Notwithstanding any provision in the Agreement to the contrary, if any Other Party recovers or seeks to recover from any Released Party (under any theory of recovery, including indemnity, contribution, or subrogation, and including from Assigned Claims and/or Expressly Reserved Claims) any Damages either (a) paid to a particular Plaintiff or Economic Class Member for which a release was given to BP through the Settlement or in an Individual Release, or (b) by, through, under, or on account of such Plaintiff or Economic Class Member for which a release was given to BP through the Settlement or in an Individual Release; then that Plaintiff or Economic Class Member shall indemnify (but not defend) the Released Parties, but only to the extent of Settlement Payment(s) received by that particular Plaintiff or Economic Class Member (by way of example, if a particular Plaintiff has received $100.00 in Settlement Payment(s), its indemnity obligation would be capped at this amount). This indemnity obligation owed by a Plaintiff or Economic Class Member who has given a release to BP includes any and all claims made or other actions taken by that Economic Class Member in breach of Sections 1.1.2.1 through 1.1.2.5.
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Notice Regarding Indemnity. Plaintiffs and Economic Class Members expressly acknowledge that, to the fullest extent allowed by law, the indemnity obligations contained in Section 1.1.2.6 apply to claims against Released Parties predicated on negligence, gross negligence, willful misconduct, strict liability, intentional torts, liability based on contractual indemnity, and any and all other theories of liability, and any and all awards of attorneys’ fees or other costs or expenses. The Plaintiffs and Economic Class Members acknowledge that this indemnity is for conduct occurring before the date of the Agreement and therefore is not affected by public policies or other law prohibiting agreements to indemnify in advance of certain conduct. THE PLAINTIFFS AND ECONOMIC CLASS MEMBERS ACKNOWLEDGE THAT THIS SECTION
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1.1.2.7 COMPLIES WITH ANY REQUIREMENT TO EXPRESSLY STATE THAT LIABILITY FOR SUCH CLAIMS IS INDEMNIFIED AND THAT THIS SECTION 1.1.2.7 IS CONSPICUOUS AND AFFORDS FAIR AND ADEQUATE NOTICE.
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No Set-off. Should the Economic Class, Plaintiffs, or the Economic Class Members succeed in recovering monies from Transocean or Halliburton, BP agrees that it would not be entitled to set-off such recovery against its obligation to make Settlement Payment(s). Notwithstanding this Section 1.1.2.8, however, the Economic Class, Plaintiffs, and Economic Class Members acknowledge and agree that this “no set-off” term does not apply to any right BP may have pursuant to the Agreement to receive a credit for monies received by Economic Class Members.
4
1.1.3. Assignment. To the fullest extent allowed by law and applicable contracts, and subject to Sections 1.1.2, 1.1.4, and 1.1.5, upon Preliminary Approval, and subject to occurrence of the Effective Date as a condition subsequent, BP assigns to the Economic Class, only as a juridical entity and not to Economic Class Members individually, the following claims and causes of action against Transocean and Halliburton (but no other party) arising out
5
of, due to, resulting from, or relating in any way to, directly or indirectly, to the Deepwater Horizon Incident, on the terms and conditions set forth herein:
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All damages related to the repair, replacement, and/or re-drilling of the MC-252 Well;
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All economic damages for the loss of the MC-252 Well, including lost profits, lost hydrocarbons, and diminution in value of the leasehold;
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All costs that BP incurred to control the MC-252 Well and/or to respond to, contain, and/or clean up the DWH Spill;
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All rights to indemnity, contribution, or subrogation for claims paid by BP and/or the GCCF on or before the entry of the Preliminary Approval Order, subject, however, to (a) BP’s retention of its right to pursue the payments identified in Section 1.1.4.2, which are expressly retained, and
(b) BP’s retention of its right to recover from Transocean and Halliburton for the payments identified in Section 1.1.4.2;
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All claims or causes of action to pursue reimbursement of Settlement Payment(s) under theories of indemnification, contribution, subrogation, or any other theory of recovery;
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All punitive, exemplary, multiple, or non-compensatory damages;
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All claims and causes of action to recover the damages, losses, costs, fees, and amounts set forth in Sections 1.1.3.1-1.1.3.6, including BP’s claims for breach of contract, unseaworthiness, negligence, gross negligence, willful misconduct, fraud, fraudulent concealment, and intentional torts
and including BP’s claims in the BP Parties’ Counter-Complaint, Cross-Complaint And Third Party Complaint Against Transocean And Claim In Limitation, Docket No. 2074 in Case 2:10-md-02179-CJB-SS, and BP’s Cross-Complaint And Third-Party Complaint Against Halliburton, Docket
6 No. 2082 in Case 2:10-md-02179-CJB-SS.
1.1.3.8. BP agrees to cooperate, at its expense, in discovery with the Economic Class in the prosecution of the Assigned Claims, through the provision of evidence and witnesses, and the Economic Class agrees to exercise reasonable restraint in their requests for assistance. The Economic Class pledges to use its best efforts to avoid having to call BP employees as witnesses in court for a trial or other proceedings pursuing Assigned Claims.
1.1.4. All Defenses and Other Claims Retained. All of BP’s claims not expressly assigned by Section 1.1.3 are hereby retained.
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Notwithstanding Section 1.1.3 and to avoid doubt, BP does not assign any claim for indemnification or contribution or subrogation of amounts it might pay for fines, penalties, or sanctions, including under the Clean Water Act or other federal or state laws. Nothing in this provision shall be construed to indicate that BP believes such claims are valid, and BP reserves all legal arguments against such claims.
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Notwithstanding Section 1.1.3 and to avoid doubt, BP does not assign, and in fact retains, any claim for indemnification, contribution, subrogation, or insurance coverage for amounts paid by the GCCF and/or BP on or before the entry of the Preliminary Approval Order to settle or resolve any personal injury, bodily injury, and/or wrongful death claims of the employees of Transocean or Transocean’s contractors who were on board the Deepwater Horizon on April 20, 2010, whether brought by such employees or their representatives, including for amounts the GCCF paid
for any “Employee Settlement” and to resolve “Employee Claims” as
defined and provided for in the Agreement Relating to Payment of Transocean Employee Settlement Claims and as approved by Court order entered on December 13, 2011 (Rec. Doc. 4893) (hereafter referred to as “Insurance Proceeds for Transocean Personnel”). BP warrants that it has
7 not received any Insurance Proceeds for Transocean Personnel to date. This retention is subject to the terms of Section 5.14 of the Agreement.
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Notwithstanding Section 1.1.3 and to avoid doubt, the Economic Class, Plaintiffs, and Economic Class Members acknowledge and agree that BP retains its right to receive a credit for monies received by the Economic Class, Plaintiffs, and/or Economic Class Members pursuant to the terms of the Agreement.
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Further, notwithstanding any other provision of the Agreement, BP hereby retains all defenses, regardless of how designated, against all claims and causes of action of the Transocean Parties and/or the Halliburton Parties against any of the Released Parties, including all defenses against the
Transocean Parties’ and the Halliburton Parties’ claims for contractual indemnification against BP, which shall include BP’s rights to allege and
argue breach of contract, gross negligence, willful misconduct, fraud, and/or intentional torts as defenses to contractual indemnification and to seek or oppose reconsideration, appeal, or other review of any decisions by courts or arbitrators regarding contractual indemnification between BP and the Transocean Parties and/or the Halliburton Parties, including (a) the Order and Reasons as to Transocean and BP’s Cross-Motions for Partial Summary Judgment Regarding Indemnity, Docket No. 5446 in Case 2:10-md-02179-CJB-SS and (b) the Order and Reasons as to Halliburton’s and BP’s Cross-Motions for Partial Summary Judgment Regarding Indemnity, Docket No. 5493 in Case 2:10-md-02179-CJB-SS.
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Neither the provisions regarding Assigned Claims, nor any other provision in the Agreement, shall limit BP’s ability to take any action to defend itself in any litigation or arbitration.
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No Warranties for Assigned Claims. BP does not make, and expressly disclaims, any representations or warranties regarding the Assigned Claims, including but not limited to representations and warranties
8 regarding the validity, value, enforceability, defenses to, or assignability of the Assigned Claims. The invalidity, illegality, or unenforceability of the assignment of any or all Assigned Claims shall not operate to invalidate the Agreement or the Individual Releases, and shall not affect the validity or enforceability of any other provision, or portion thereof, of the Agreement or the Individual Releases. Should the Effective Date occur but part or all of the assignment be held invalid, BP acknowledges and agrees that it will not seek to pursue such Assigned Claims that were the subject of the invalidated assignment.
1.1.5. Retention of Assigned Claims. The occurrence of the Effective Date is a condition subsequent of the assignment of the Assigned Claims. If the Effective Date does not occur for any reason, the Assignment made in Section 1.1.3 shall become null and void and the Assigned Claims shall be retained by BP. If any of the Assigned Claims have been liquidated by the Economic Class through judgment or settlement with Transocean and/or Halliburton, such funds shall not be disbursed until the Effective Date has occurred and no compromise, release, or other impairment of the Assigned Claims shall become operative until the Effective Date. Any attempt to release, compromise or otherwise impair the Assigned Claims shall not become operative until the Effective Date, and any attempt to release, compromise, or otherwise impair the Assigned Claims with an operative date before the Effective Date shall be null and void.
2. DEFINITIONS.
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The capitalized terms used in this Attachment shall have the same definitions as in the Agreement unless defined in this Attachment. In the event of any conflict, the definitions in this Attachment shall prevail over any definitions used in the Agreement for purposes of applying the terms of this Attachment.
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Agreement shall mean the Economic and Property Damages Settlement
Agreement, including all of its attachments and exhibits. 9
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Assigned Claims shall mean the claims defined in Section 1.1.3, excluding the
Retained Claims defined in Section 1.1.4.
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Compensatory Damages shall mean any and all forms of damages, known or unknown, intended to or having the effect of satisfying, compensating, or reimbursing the Economic Class’s, Plaintiffs’ and /or Economic Class Members’ claims for actual economic or pecuniary costs, expenses, damages, liability, or other losses or injuries arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, regardless of what such damages are designated, called or labeled. Compensatory Damages do not include and may not be interpreted to have any overlap with punitive, exemplary, multiple, or non-compensatory damages. Bodily Injury Claims (including wrongful death) are not included in Compensatory Damages. Claims of BP shareholders in any derivative or direct action solely in their capacity as BP shareholders are not included in Compensatory Damages. The Parties acknowledge and agree that the term Compensatory Damages as defined and used herein does not limit the amounts to be used for the calculation of punitive or other non-compensatory damages in any current or future litigation pursued by the Economic Class, Plaintiffs, and/or Economic Class Members. Nothing herein shall be deemed to limit the right of an Economic Class Member to pursue against BP Moratoria Losses or other claims expressly reserved under Section 3 of the Agreement.
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Damages shall mean all forms of damages defined as broadly as possible without exception, including losses, costs, expenses, taxes, requests, royalties, rents, fees, profits, profit shares, earning capacity, loss of subsistence, damages to real or personal property, diminution in property value, punitive damages, exemplary damages, multiple damages, non-compensatory damages, Compensatory Damages, economic damages, injuries, liens, remedies, debts, claims, causes of action, or liabilities.
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Halliburton shall mean Halliburton Energy Services, Inc. and all and any of its Affiliates, other than any Natural Person or Entity that is also an Affiliate of any of the Released Parties as of April 16, 2012.
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Halliburton Parties shall mean Halliburton (including all persons, entities,
subsidiaries, divisions and business units comprised thereby); each of
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Halliburton’s respective past, present and future directors, officers, employees,
general or limited partners, members, joint venturers, and shareholders, and their past, present and future spouses, heirs, beneficiaries, estates, executors, administrators, personal representatives, attorneys, agents, trustees, insurers, reinsurers, predecessors, successors, indemnitees, assigns, Affiliates; any natural, legal or juridical person or entity acting on behalf of or having liability in respect of Halliburton, in their respective capacities as such; and the federal Oil Spill Liability Trust Fund and any state or local fund, and each of their respective Affiliates including their officers, directors, shareholders, employees, and agents.
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Other Party shall mean every person, entity, or party other than the Released
Parties.
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Retained Claims shall mean the claims retained by BP in Section 1.1.4.
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Transocean shall mean Transocean Ltd., Transocean, Inc., Transocean Offshore Deepwater Drilling Inc., Transocean Deepwater Inc., Transocean Holdings LLC, and Triton Asset Leasing GmbH and all and any of their Affiliates, other than any Natural Person or Entity that is also an Affiliate any of the Released Parties as of April 16, 2012.
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Transocean Parties shall mean Transocean (including all persons, entities, subsidiaries, divisions and business units comprised thereby); each of Transocean’s respective past, present and future directors, officers, employees, general or limited partners, members, joint venturers, and shareholders, and their past, present and future spouses, heirs, beneficiaries, estates, executors, administrators, personal representatives, attorneys, agents, trustees, insurers,
11
reinsurers, predecessors, successors, indemnitees, assigns, Affiliates; any natural, legal or juridical person or entity acting on behalf of or having liability in respect of Transocean, in their respective capacities as such; and the federal Oil Spill Liability Trust Fund and any state or local fund, and each of their respective Affiliates including their officers, directors, shareholders, employees, and agents.
12
EXHIBIT 22
Case 2:10-md-02179-CJB-SS Document 6430-40 Filed 05/03/12 Page 2 of 2
MapofGulfCoastArea
EXHIBIT 23
Case 2:10-md-02179-CJB-SS Document 6430-41 Filed 05/03/12 Page 2 of 4 Case 2:10-md-02179-CJB-SS Document 6430-41 Filed 05/03/12 Page 3 of 4
|
Point |
Latitude |
Longitude |
Point |
Latitude |
Longitude |
|
A |
28.206ࣙN |
Ͳ96.318ࣙW |
G |
25.703ࣙN |
Ͳ91.092ࣙW |
|
B |
25.956ࣙN |
Ͳ97.145ࣙW |
H |
25.669ࣙN |
Ͳ88.385ࣙW |
|
C |
25.971ࣙN |
Ͳ96.980ࣙW |
I |
24.933ࣙN |
Ͳ87.210ࣙW |
|
D |
25.997ࣙN |
Ͳ93.445ࣙW |
J |
24.941ࣙN |
Ͳ86.938ࣙW |
|
E |
24.734ࣙN |
Ͳ93.664ࣙW |
K |
25.207ࣙN |
1Ͳ86.553ࣙW |
|
F |
25.445ࣙN |
Ͳ91.645ࣙW |
L |
23.925ࣙN |
Ͳ81.216ࣙW |
MapofSpecifiedGulfWaters
BRAZORIACOUNTYGALVESTONCOUNTY
BOUNDARYPOINTS
|
Point |
Latitude |
Longitude |
|
A |
29.197ࣙN |
Ͳ95.057ࣙW |
|
B |
29.086ࣙN |
Ͳ95.130ࣙW |
|
C |
29.063ࣙN |
Ͳ95.092ࣙW |
|
D |
28.986ࣙN |
Ͳ94.978ࣙW |
2
028892
Case 2:10-md-02179-CJB-SS Document 6430-41 Filed 05/03/12 Page 4 of 4
MapofSpecifiedGulfWaters
EXHIBIT 24A
BP CORPORATION NORTH AMERICA INC. GUARANTEE
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Guarantee of Obligations. For good and valuable consideration received, the receipt and sufficiency of which are hereby acknowledged, BP Corporation North America Inc., a corporation organized under the laws of Indiana (the “First Guarantor”), subject to the terms and conditions herein, hereby absolutely, irrecoverably, and unconditionally guarantees the Economic and Property Damages Settlement Class (the “Beneficiary”), by and through (i) the Claims Administrator, or (ii) Stephen J. Herman and/or James Parkerson Roy, or their
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successors, acting as Economic and Property Damages Class Settlement Counsel (“Lead Class Counsel”), that BP Exploration and Production Inc. and BP America Production Company (collectively, the “Primary Obligors”) will duly and punctually pay all of the Primary Obligors’ payment obligations (the “Obligations”) under that certain Deepwater Horizon Economic and Property Damages Settlement Agreement to be dated on or around April 18, 2012 (the “Agreement”), as and when required in accordance with the terms thereof, in each case, without regard to whether such obligation is direct or indirect, contingent or otherwise, now or hereafter existing or owing, or incurred or payable before or after commencement of any proceedings by or against the Primary Obligors under any applicable bankruptcy or insolvency law or similar law or proceeding. This guarantee (the “Guarantee”) is given in accordance with Section 37 of the Agreement. For purposes of this Guarantee, all capitalized terms not otherwise defined herein shall have the meaning ascribed to such term in the Agreement.
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Event of Default of Primary Obligors. The Primary Obligors shall be deemed in default solely after the occurrence of all of the following events (“Default”):
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(a)
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The Primary Obligors have failed to pay an Obligation within the period allowed by the Agreement.
(b)
The Claims Administrator or Lead Class Counsel issues a Demand (defined in Clause 9(b)) to the Primary Obligors and the First Guarantor alleging that the Primary Obligors have not paid their Obligations within the period allowed by the Agreement.
(c)
The Primary Obligors do not cure the alleged breach within five (5) business days after receipt of the Demand.
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(d)
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The Claims Administrator or Lead Class Counsel shall concurrently notify the Court (presiding judge or magistrate of the division of the District Court for the Eastern District of Louisiana having oversight of the Agreement) of the alleged breach, and First Guarantor shall not oppose expedited consultation and/or mediation of the dispute.
(e) The Court informally consults regarding and/or mediates the dispute.
(f)
The Primary Obligors fail to take curative action within the greater of (i) two business days after the conclusion of the consultation and/or mediation with the Court, or (ii) the balance of the time period specified in Clause 2(c).
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Obligation of First Guarantor. If and only if the Primary Obligors are in Default and such Default has not been cured and is continuing, then First Guarantor must pay or procure the
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payment of the applicable overdue and unpaid Obligations of the Primary Obligors within the greater of (i) 15 days from receipt of the Demand or (ii) five business days after the determination of a Default as specified in Clauses 2(a) – (f).
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Joint and Several Obligation. The First Guarantor’s obligations under this Guarantee are contingent upon the occurrence and continuation of a Default by the Primary Obligors. Upon and after the occurrence, and during the continuance, of a Default, (a) this Guarantee shall be a guarantee of payment, and not of collection, of the applicable overdue and unpaid Obligations;
(b) the First Guarantor’s obligations hereunder shall be on a “joint and several” basis with the Primary Obligors to the same degree and extent as if the First Guarantor had been a co-principal obligor of the applicable unpaid Obligations, and (c) a separate action or actions may be brought and prosecuted against the First Guarantor to enforce this Guarantee, irrespective of whether any action is brought upon the Primary Obligors or whether any Primary Obligor is joined in any such action or actions.
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Duration. The obligations of the First Guarantor set forth herein constitute the full recourse obligations of the First Guarantor enforceable against it to the full extent of all its assets and properties and shall remain in full force and effect until the earlier of (i) such time as all the Obligations of the Primary Obligors under the Agreement have been performed in full and so declared by Court order, or (ii) such time as the Agreement terminates or becomes null and void for any of the reasons set out in Section 21 of the Agreement.
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Waiver of Defenses. The obligations of the First Guarantor hereunder shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, stay, recoupment, suspension, deferment, reduction or defense (other than full and strict payment or other satisfaction of the Obligations) based upon any claim the First Guarantor may have against the Beneficiary or any other obligor. Subject to Clause 5, the obligations of the First Guarantor hereunder shall remain in full force and effect without regard to, and shall not be released, discharged or reduced (except to the extent of any defenses to payment or performance to which the Primary Obligors are entitled under the Agreement) for any reason, including (a) any amendment or waiver of any term of the Agreement, whether or not the Beneficiary, Primary Obligors, or the First Guarantor has notice or knowledge of any of the foregoing; or (b) any bankruptcy, insolvency or similar proceeding with respect to the First Guarantor or Primary Obligors or their respective properties, or any action taken by any trustee or receiver or by any court in any such proceeding. The First Guarantor also waives any right to demand arbitration or mediation, and any right to a jury trial. The obligations of the First Guarantor hereunder shall be subject to, and the First Guarantor shall be entitled to assert, any counterclaim, setoff, deduction, or defense that the Primary Obligors could assert against the Beneficiary under the Agreement.
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Waiver of Notice. Except as set forth in this Guarantee, the First Guarantor unconditionally waives all notices which may be required by statute, rule of law or otherwise to preserve any rights against the First Guarantor hereunder, including (a) notice of the acceptance of this Guarantee by the Beneficiary or any assignee thereof, or the modification of the Obligations or notice of any other matters relating thereto; (b) any presentment, demand, notice of dishonor, protest or nonpayment of any damages or other amounts payable under the Agreement; (c) any requirement for the enforcement, assertion or exercise of any right or remedy under the Agreement; (d) any requirement of diligence; (e) if the Primary Obligors are in
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Default, the right to require the Beneficiary to proceed against the Primary Obligors or any other person liable on the Obligations, and the Guarantor waives the right to have the property of the Primary Obligors first applied to discharge the Obligations.
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Subordination of Rights. The First Guarantor shall be subrogated to all rights of the Beneficiary against the Primary Obligors in respect of any amounts paid by the First Guarantor pursuant to the Guarantee, provided that the First Guarantor waives any rights it may acquire by way of subrogation under this Guarantee, by any payment made hereunder or otherwise (including, without limitation, any statutory rights of subrogation under Section 509 of the Bankruptcy Code, 11 U.S.C. § 509, or otherwise), reimbursement, exoneration, contribution, indemnification, or any right to participate in any claim or remedy of the Beneficiary against the Primary Obligors or any collateral which the Beneficiary now has or acquires, until all of the Obligations shall have been irrevocably and indefeasibly paid to the Beneficiary in full. If (a) the First Guarantor shall make payment to the Beneficiary of all or any part of the Obligations, and (b) all the Obligations shall have been indefeasibly paid in full, then the Beneficiary shall, at the First Guarantor’s request, execute and deliver to the First Guarantor appropriate documents necessary to evidence the transfer by subrogation to the First Guarantor of any interest in the Obligations resulting from such payment of the First Guarantor. Any sums received by the First Guarantor in violation of the foregoing shall be held in trust for the Beneficiary and shall be promptly paid over to the Claims Administrator or Lead Class Counsel on behalf of the Beneficiary without any need for further action of any kind by the Beneficiary, to be credited and applied against the Obligations.
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Demands.
-
(a)
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This Guarantee may only be enforced by the Claims Administrator or Lead Class Counsel on behalf of the Beneficiary and may not be enforced by any other Natural Person or Entity, including, without limitation, any member of the Beneficiary.
(b)
Any demand sent by the Claims Administrator or Lead Class Counsel to the First Guarantor under this Guarantee shall be in writing and shall (i) state the reasons for making such demand, and (ii) clearly identify the Obligations under the Agreement which the Primary Obligors have failed to pay, and such notice shall be delivered or sent by email, facsimile, and overnight mail to the First Guarantor at its address as provided under Clause 12(b) (“Demand”).
(c)
All Demands to proceed under this Guarantee must be sent to the First Guarantor by the Claims Administrator or Lead Class Counsel.
10. Representations and Warranties.
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(a)
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The First Guarantor is a corporation duly formed and validly existing under the laws of the State of Indiana.
(b)
The First Guarantor has the power and authority to execute, deliver and perform its obligations under this Guarantee and has taken all necessary action to authorize the execution, delivery and performance of this Guarantee. No consent is required for the due execution, delivery, and performance by the First Guarantor of this Guarantee, except those that have been obtained and are in full force and effect.
(c)
The authorization, execution, delivery and performance of this Guarantee by the First Guarantor will not result in any breach of or default under (or any condition which with the giving of notice or lapse of time or both would constitute a breach or default under) (i) the constituent documents of the First Guarantor, or (ii) any contract, indenture, mortgage, security agreement or other document, instrument or agreement or any judgment, order or decree or law, rule, or regulation to which the First Guarantor is a party or to which the First Guarantor or any of its property is subject.
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Sole Remedy. The First Guarantor’s obligations under this Guarantee are the sole and exclusive remedy of the Beneficiary against the First Guarantor under the Agreement. The First Guarantor’s entire obligation to the Beneficiary is the guarantee of the Obligations and the other obligations expressly set forth in Clause 12 and the First Guarantor shall have no other obligations of any kind to the Beneficiary. No person or entity, other than the Beneficiary acting through the Claims Administrator or Lead Class Counsel, shall have any rights, remedies or recourse to the First Guarantor under this Guarantee.
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Miscellaneous.
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(a)
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The First Guarantor shall not assign any of its rights or delegate any of its duties under this Guarantee to any person or entity without the prior written consent of the Beneficiaries. This Guarantee shall be binding upon First Guarantor, its successors, and assigns, and shall inure to the benefit of Beneficiary, its successors, and assigns.
(b)
Any notice to the First Guarantor pursuant to this Guarantee shall be sent by electronic mail, facsimile, and overnight mail to the following individuals, who are authorized to receive all notices, demands, suits to perform, and all other correspondence arising out of the Guarantee:
John E. (Jack) Lynch Jr. James J. Neath Deputy Group General Counsel Associate General Counsel
U.S. General Counsel
BP America Inc.
501 Westlake Park Boulevard
Houston, TX 77079
Fax: 713-375-2808
E-mail: John.Lynch@uk.bp.com
BP America Inc. 501 Westlake Park Boulevard Houston, TX 77079 Fax: 281-366-5901 E-mail: James.Neath@bp.com
Any notice to Beneficiary pursuant to this Guarantee shall be sent by electronic mail, facsimile, and overnight mail to the following individuals in their capacity as Lead Class Counsel:
Stephen J. Herman
Herman Herman Katz & Cotlar LLP
820 O’Keefe Avenue
New Orleans, LA 70113
Fax: 504-561-6024
E-mail: sherman@hhkc.com
James Parkerson Roy Domengeaux Wright Roy & Edwards LLC 556 Jefferson Street, Suite 500 Lafayette, LA 70501 Fax: 337-233-2796 E-Mail: jimr@wrightroy.com
Any notice to the Claims Administrator pursuant to this Guarantee shall be sent by electronic mail, facsimile, and overnight mail to the following individual in his capacity as the Claims Administrator:
Patrick Juneau
Juneau David, APLC
Post Office Drawer 51268
Lafayette, LA 70505-1268
Fax: 337-269-0061
E-mail: paj@juneaudavid.com
fgg@juneaudavid.com
Whenever any notice is sent related to this Guarantee, such notice shall be sent to all of the addressees listed in this Clause 12(b).
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(c)
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This Guarantee shall not be amended without the written consent of the First Guarantor and the Beneficiaries.
(d)
The provisions of this Guarantee shall be deemed severable, and if any one or more provisions of this Guarantee shall be determined to be invalid or unenforceable, all other provisions shall, nevertheless, remain in full force and effect.
(e)
If the First Guarantor has performed under this Guarantee, then within 30 days of a written demand, the First Guarantor shall pay all reasonably incurred and properly documented out-of-pocket costs, fees, and/or expenses incurred by the Claims Administrator and/or Lead Class Counsel, including fees and disbursements of counsel, in connection with the pursuit of performance under this Guarantee.
(f)
THIS GUARANTEE SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS, TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD PERMIT OR REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
(g)
Pursuant to the Court’s continuing jurisdiction over the Agreement, the First Guarantor, Beneficiary, Claims Administrator, and Lead Class Counsel agree that the United States District Court for the Eastern District of Louisiana shall have exclusive jurisdiction and venue to enforce, interpret, give effect to, or resolve any disputes, cases, or controversies concerning this Guarantee. If MDL 2179 has not yet been terminated, any pleading filed on behalf of any complainant party relating to the Guarantee shall be accompanied by a legal request for such dispute, case, or controversy to be made part of MDL 2179. In all other respects and purposes unrelated to matters involving the Guarantee or its enforcement, the First Guarantor specifically reserves any and all defenses to the jurisdiction and venue of this Court. The Beneficiary, Claims Administrator, and Lead Class Counsel agree that the First Guarantor’s agreement in this Clause 12(g) does not constitute a waiver of jurisdictional defenses, consent to jurisdiction, or an act supporting or sufficient to establish jurisdiction over the First Guarantor for any matter besides disputes, cases, or controversies concerning this Guarantee.
EXHIBIT 24B
BP P.L.C. BACK-UP GUARANTEE
1. Recitals.
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(a)
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Whereas, BP Corporation North America Inc., an Indiana corporation (the “First Guarantor”), is providing a guarantee (the “BPCNA Guarantee”) in favor of the Economic and Property Damages Settlement Class (the “Beneficiary”) in connection with that certain Deepwater Horizon Economic and Property Damages Settlement Agreement to be dated on or around April 18, 2012 (the “Agreement”), guaranteeing the payment obligations (the “Obligations”) of BP Exploration and Production Inc. and BP America Production Company (the “Primary Obligors”) under the Agreement.
(b)
Whereas, the First Guarantor is a wholly-owned indirect subsidiary of BP p.l.c., a company incorporated in England and Wales (the “Second Guarantor”), and the Second Guarantor has agreed to provide this guarantee (the “Guarantee”) pursuant to Section 37 of the Agreement.
(c)
Now, therefore, for good and valuable consideration received, the receipt and sufficiency of which are hereby acknowledged, the Second Guarantor agrees as follows:
2. Guarantee of Obligations. The Second Guarantor, subject to the terms and conditions herein, including, without limitation, the occurrence and continuance of a BPCNA Default, hereby absolutely, irrecoverably, and unconditionally guarantees the Beneficiary, by and through
(i) the Claims Administrator, or (ii) Stephen J. Herman and/or James Parkerson Roy, or their successors, acting as Economic and Property Damages Class Settlement Counsel (“Lead Class Counsel”), that the Primary Obligors (or, if applicable, the First Guarantor) will duly and punctually pay all of the Primary Obligors’ Obligations under the Agreement, as and when required in accordance with the terms thereof, in each case, without regard to whether such obligation is direct or indirect, contingent or otherwise, now or hereafter existing or owing, or incurred or payable before or after commencement of any proceedings by or against the Primary Obligors under any applicable bankruptcy or insolvency law or similar law or proceeding. For purposes of this Guarantee, all capitalized terms not otherwise defined herein shall have the meaning ascribed to such term in the Agreement.
3. Event of Default of Primary Obligors and First Guarantor. The Primary Obligors and the First Guarantor shall be deemed in default solely after the occurrence of all of the following events (“BPCNA Default”):
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(a)
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The Primary Obligors have failed to pay an Obligation within the period allowed by the Agreement.
(b)
The Claims Administrator or Lead Class Counsel issues a Demand (defined in Clause 11(b)) to the Primary Obligors, the First Guarantor, and the Second Guarantor alleging that the Primary Obligors have not paid their Obligations within the period allowed by the Agreement.
(c)
The Primary Obligors do not cure the alleged breach within five (5) business days after receipt of the Demand.
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(d)
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The Claims Administrator or Lead Class Counsel shall concurrently notify the Court (presiding judge or magistrate of the division of the District Court for the Eastern District of Louisiana having oversight of the Agreement) of the alleged breach, and Second Guarantor shall not oppose expedited consultation and/or mediation of the dispute.
(e) The Court informally consults regarding and/or mediates the dispute.
(f)
The Primary Obligors fail to take curative action within the greater of (i) two business days after the conclusion of the consultation and/or mediation with the Court, or (ii) the balance of the time period specified in Clause 3(c).
(g)
The occurrence and continuation of either: (i) a failure by First Guarantor to pay the applicable Obligations or otherwise cure the Default (as defined in the BPCNA Guarantee) of the Primary Obligors within the time specified in the BPCNA Guarantee, or (ii) a Net Worth Event as defined hereinafter.
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Obligation of Second Guarantor. If and only if a BPCNA Default has occurred and such BPCNA Default has not been cured and is continuing, then Second Guarantor must pay or procure the payment of the applicable overdue and unpaid Obligations of the Primary Obligors within the greater of (i) 30 days from receipt of the Demand or (ii) 15 days after the determination of a BPCNA Default as specified in Clauses 3(a) – (g).
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Net Worth Event. For purposes of this Guarantee, the terms set forth below have the following meanings.
“Consolidated Net Worth” means Total Assets less Total Liabilities.
“GAAP” means, as at any date of determination, generally accepted accounting
principles in the United States.
“Net Worth Event” means the Consolidated Net Worth of the First Guarantor, as demonstrated in the most recently produced audited, annual consolidated balance sheet shall be less than ten billion ($10,000,000,000), pursuant to audited financials that First Guarantor shall produce to Lead Class Counsel and the Claims Administrator at least once a year, subject to a customary confidentiality agreement reasonably acceptable to the First Guarantor and the Second Guarantor. If the annual audited financials required hereunder (subject to the confidentiality agreement) are not produced on or before the earlier of (a) 120 days after the end of First Guarantor’s fiscal year or (b) the date the audited financials are provided to the First Guarantor’s creditors, a Net Worth Event will immediately be deemed to have occurred without the need for further action of any kind; provided, however, that the First Guarantor’s subsequent provision of the audited financials to Lead Class Counsel and the Claims Administrator showing the Consolidated Net Worth of the First Guarantor to be in excess of ten billion dollars ($10,000,000,000) shall immediately cure the Net Worth Event.
“Total Assets” means, as at any date of determination, all assets of the First Guarantor
and its subsidiaries on a consolidated basis in conformity with GAAP.
“Total Liabilities” means, as at any date of determination, all liabilities of the First
Guarantor and its subsidiaries on a consolidated basis in conformity with GAAP.
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Joint and Several Obligation. The Second Guarantor’s obligations under this Guarantee are contingent upon the occurrence and continuation of a BPCNA Default. Upon and after the occurrence, and during the continuance, of a BPCNA Default, (a) this Guarantee shall be a guarantee of payment, and not of collection, of the applicable overdue and unpaid Obligations; (b) the Second Guarantor’s obligations hereunder shall be on a “joint and several” basis with the Primary Obligors and the First Guarantor to the same degree and extent as if the Second Guarantor had been a co-principal obligor of the applicable unpaid Obligations, and (c) a separate action or actions may be brought and prosecuted against the Second Guarantor to enforce this Guarantee, irrespective of whether any action is brought upon the Primary Obligors or the First Guarantor or whether any Primary Obligor or First Guarantor is joined in any such action or actions.
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Duration. The obligations of the Second Guarantor set forth herein constitute the full recourse obligations of the Second Guarantor enforceable against it to the full extent of all its assets and properties and shall remain in full force and effect until the earlier of (i) such time as all the Obligations of the Primary Obligors under the Agreement have been performed in full and so declared by Court order, (ii) five years after the Effective Date, as defined in the Agreement, or (iii) such time as the Agreement terminates or becomes null and void for any of the reasons set out in Section 21 of the Agreement.
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Waiver of Defenses. The obligations of the Second Guarantor hereunder shall not be subject to any counterclaim, setoff, deduction, diminution, abatement, stay, recoupment, suspension, deferment, reduction or defense (other than full and strict payment or other satisfaction of the Obligations) based upon any claim the Second Guarantor may have against the Beneficiary or any other obligor. Subject to Clause 7, the obligations of the Second Guarantor hereunder shall remain in full force and effect without regard to, and shall not be released, discharged or reduced (except to the extent of any defenses to payment or performance to which the Primary Obligors are entitled under the Agreement) for any reason, including (a) any amendment or waiver of any term of the Agreement, whether or not the Beneficiary, Primary Obligors, or the Second Guarantor has notice or knowledge of any of the foregoing; or (b) any bankruptcy, insolvency or similar proceeding with respect to the First Guarantor or Primary Obligors or their respective properties, or any action taken by any trustee or receiver or by any court in any such proceeding. The Second Guarantor also waives any right to demand arbitration or mediation, and any right to a jury trial. The obligations of the Second Guarantor hereunder shall be subject to, and the Second Guarantor shall be entitled to assert, any counterclaim, setoff, deduction, or defense that the Primary Obligors could assert against the Beneficiary under the Agreement.
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Waiver of Notice. Except as set forth in this Guarantee, the Second Guarantor unconditionally waives all notices which may be required by statute, rule of law or otherwise to preserve any rights against the Second Guarantor hereunder, including (a) notice of the acceptance of this Guarantee by the Beneficiary or any assignee thereof, or the modification of
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the Obligations or notice of any other matters relating thereto; (b) any presentment, demand, notice of dishonor, protest or nonpayment of any damages or other amounts payable under the Agreement; (c) any requirement for the enforcement, assertion or exercise of any right or remedy under the Agreement; (d) any requirement of diligence; (e) if the Primary Obligors are in default, the right to require the Beneficiary to proceed against the Primary Obligors or any other person liable on the Obligations, and the Second Guarantor waives the right to have the property of the Primary Obligors first applied to discharge the Obligations.
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Subordination of Rights. The Second Guarantor shall be subrogated to all rights of the Beneficiary against the Primary Obligors and the First Guarantor in respect of any amounts paid by the Second Guarantor pursuant to the Guarantee, provided that the Second Guarantor waives any rights it may acquire by way of subrogation under this Guarantee, by any payment made hereunder or otherwise (including, without limitation, any statutory rights of subrogation under Section 509 of the Bankruptcy Code, 11 U.S.C. § 509, or otherwise), reimbursement, exoneration, contribution, indemnification, or any right to participate in any claim or remedy of the Beneficiary against the Primary Obligors or any collateral which the Beneficiary now has or acquires, until all of the Obligations shall have been irrevocably and indefeasibly paid to the Beneficiary in full. If (a) the Second Guarantor shall make payment to the Beneficiary of all or any part of the Obligations, and (b) all the Obligations shall have been indefeasibly paid in full, then the Beneficiary shall, at the Second Guarantor’s request, execute and deliver to the Second Guarantor appropriate documents necessary to evidence the transfer by subrogation to the Second Guarantor of any interest in the Obligations resulting from such payment of the Second Guarantor. Any sums received by the Second Guarantor in violation of the foregoing shall be held in trust for the Beneficiary and shall be promptly paid over to the Claims Administrator or Lead Class Counsel on behalf of the Beneficiary without any need for further action of any kind by the Beneficiary, to be credited and applied against the Obligations.
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Demands.
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(a)
-
This Guarantee may only be enforced by the Claims Administrator or Lead Class Counsel on behalf of the Beneficiary and may not be enforced by any other Natural Person or Entity, including, without limitation, any member of the Beneficiary.
(b)
Any demand sent by the Claims Administrator or Lead Class Counsel to the Second Guarantor under this Guarantee shall be in writing and shall (i) state the reasons for making such demand, and (ii) clearly identify the Obligations under the Agreement which the Primary Obligors have failed to pay, and such notice shall be delivered or sent by email, facsimile, and overnight mail to the Second Guarantor at its address as provided under Clause 14(b) (“Demand”).
(c)
All Demands to proceed under this Guarantee must be sent to the Second Guarantor by the Claims Administrator or Lead Class Counsel.
12. Representations and Warranties.
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(a)
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The Second Guarantor is a company duly formed and validly existing under the laws of England and Wales.
(b)
The Second Guarantor has the power and authority to execute, deliver and perform its obligations under this Guarantee and has taken all necessary action to authorize the execution, delivery and performance of this Guarantee. No consent is required for the due execution, delivery, and performance by the Second Guarantor of this Guarantee, except those that have been obtained and are in full force and effect.
(c)
The authorization, execution, delivery and performance of this Guarantee by the Second Guarantor will not result in any breach of or default under (or any condition which with the giving of notice or lapse of time or both would constitute a breach or default under) (i) the constituent documents of the Second Guarantor, or (ii) any contract, indenture, mortgage, security agreement or other document, instrument or agreement or any judgment, order or decree or law, rule, or regulation to which the Second Guarantor is a party or to which the Second Guarantor or any of its property is subject.
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Sole Remedy. The Second Guarantor’s obligations under this Guarantee are the sole and exclusive remedy of the Beneficiary against the Second Guarantor under the Agreement. The Second Guarantor’s entire obligation to the Beneficiary is the guarantee of the Obligations and the other obligations expressly set forth in Clause 14 and the Second Guarantor shall have no other obligations of any kind to the Beneficiary. No person or entity, other than the Beneficiary acting through the Claims Administrator or Lead Class Counsel, shall have any rights, remedies or recourse to the Second Guarantor under this Guarantee.
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Miscellaneous.
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(a)
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The Second Guarantor shall not assign any of its rights or delegate any of its duties under this Guarantee to any person or entity without the prior written consent of the Beneficiaries. This Guarantee shall be binding upon Second Guarantor, its successors, and assigns, and shall inure to the benefit of Beneficiary, its successors, and assigns.
(b)
Any notice to the Second Guarantor pursuant to this Guarantee shall be sent by electronic mail, facsimile, and overnight mail to the following individuals, who are authorized to receive all notices, demands, suits to perform, and all other correspondence arising out of the Guarantee:
Rupert Bondy
Group General Counsel
BP p.l.c.
1 St James's Square
London SW1Y 4PD
United Kingdom
Fax: +44-20-7496-4242
E-mail: Rupert.Bondy@uk.bp.com
David Bucknall Group Treasurer BP p.l.c. 4th Floor 20 Canada Square London E14 5NJ United Kingdom Fax: +44-20-7948-7783 E-mail: David.Bucknall@uk.bp.com
John E. (Jack) Lynch Jr. James J. Neath Deputy Group General Counsel Associate General Counsel
U.S. General Counsel
BP America Inc.
501 Westlake Park Boulevard
Houston, TX 77079
Fax: 713-375-2808
E-mail: John.Lynch@uk.bp.com
BP America Inc. 501 Westlake Park Boulevard Houston, TX 77079 Fax: 281-366-5901 E-mail: James.Neath@bp.com
Any notice to Beneficiary pursuant to this Guarantee shall be sent by electronic mail, facsimile, and overnight mail to the following individuals in their capacity as Lead Class Counsel:
Stephen J. Herman
Herman Herman Katz & Cotlar LLP
820 O’Keefe Avenue
New Orleans, LA 70113
Fax: 504-561-6024
E-mail: sherman@hhkc.com
James Parkerson Roy Domengeaux Wright Roy & Edwards LLC 556 Jefferson Street, Suite 500 Lafayette, LA 70501 Fax: 337-233-2796 E-Mail: jimr@wrightroy.com
Any notice to the Claims Administrator pursuant to this Guarantee shall be sent by electronic mail, facsimile, and overnight mail to the following individual in his capacity as the Claims Administrator:
Patrick Juneau
Juneau David, APLC
Post Office Drawer 51268
Lafayette, LA 70505-1268
Fax: 337-269-0061
E-mail: paj@juneaudavid.com
fgg@juneaudavid.com
Whenever any notice is sent related to this Guarantee, such notice shall be sent to all of the addressees listed in this Clause 14(b).
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(c)
-
This Guarantee shall not be amended without the written consent of the Second Guarantor and the Beneficiaries.
(d)
The provisions of this Guarantee shall be deemed severable, and if any one or more provisions of this Guarantee shall be determined to be invalid or unenforceable, all other provisions shall, nevertheless, remain in full force and effect.
(e)
If the Second Guarantor has performed under this Guarantee, then within 30 days of a written demand, the Second Guarantor shall pay all reasonably incurred and properly documented out-of-pocket costs, fees, and/or expenses incurred by the Claims Administrator and/or Lead Class Counsel, including fees and disbursements of counsel, in connection with the pursuit of performance under this Guarantee.
(f)
THIS GUARANTEE SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS, TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD PERMIT OR REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
(g)
Pursuant to the Court’s continuing jurisdiction over the Agreement, the Second Guarantor, Beneficiary, Claims Administrator, and Lead Class Counsel agree that the United States District Court for the Eastern District of Louisiana shall have exclusive jurisdiction and venue to enforce, interpret, give effect to, or resolve any disputes, cases, or controversies concerning this Guarantee. If MDL 2179 has not yet been terminated, any pleading filed on behalf of any complainant party relating to the Guarantee shall be accompanied by a legal request for such dispute, case, or controversy to be made part of MDL 2179. In all other respects and purposes unrelated to matters involving the Guarantee or its enforcement, the Second Guarantor specifically reserves any and all defenses to the jurisdiction and venue of this Court. The Beneficiary, Claims Administrator, and Lead Class Counsel agree that the Second Guarantor’s agreement in this Clause 14(g) does not constitute a waiver of jurisdictional defenses, consent to jurisdiction, or an act supporting or sufficient to establish jurisdiction over the Second Guarantor for any matter besides disputes, cases, or controversies concerning this Guarantee.
EXHIBIT 25
Procedures for Filing and Briefing of Appeals
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The Claims Administrator shall designate an appeals coordinator (“Appeals Coordinator”) to coordinate the appeals process set forth in Section 6 of the
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Agreement.
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Appeals shall be commenced by the appellant filing with the Appeals Coordinator within the applicable time frames set forth in Section 6 of the
Agreement a Notice of Appeal stating the appellant’s election to appeal, the issues
being appealed and the relief requested. The Appeals Coordinator shall provide a copy of the Notice of Appeal to the appellee. Such copy shall be provided by electronic mail if the appellee has provided the Claims Administrator with an electronic mail address or otherwise by U.S. Mail.
3. Upon receiving a Notice of Appeal, the Appeals Coordinator shall issue a schedule to the appellant and the appellee, and shall provide the address and email address at which to serve the parties to the appeal and Lead Class Counsel. The schedule shall set forth specific due dates (month, day, and year) so that there is a clear understanding of the following applicable deadlines:
A. For appeals to which the “baseball” process applies pursuant to Section 6 of the Agreement, the appellant and appellee shall file their Initial Proposal with the Appeals Coordinator, and serve the other party by electronic mail and overnight delivery within 15 days of the date that the Appeals Coordinator transmits the Notice of Appeal to the appellee via email and overnight delivery. Any party may file a memorandum in support of its Initial Proposal together with its Initial Proposal. By no later than 25 days of the date that the Appeals Coordinator transmits the Notice of Appeal to the appellee, if the appeal has not been settled by the appellant and appellee, the appellant and appellee shall each file its Final Proposal and shall serve the other party by electronic mail, overnight delivery, or U.S. Mail.
B. For appeals to which “baseball” does not apply pursuant to the Agreement, the appellant shall file with the Appeals Coordinator, and serve the appellee, an opening memorandum in support of its appeal explaining the basis for its appeal within 10 days of the date that the Appeals Coordinator transmits the Notice of Appeal to the appellee. The appellee may file an opposition memorandum by no later than 25 days of the date that the Appeals Coordinator transmits the Notice of Appeal to the appellee. The appellee shall file the opposition memorandum on the appellant by electronic mail, overnight delivery, or U.S. Mail. The appellant may file a reply brief by no later than 35 days after the date that the Appeals Coordinator transmits the Notice of Appeal to the appellee. The appellant shall file the reply memorandum on the appellee by electronic mail, overnight delivery, or U.S. Mail.
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The Appeals Coordinator may grant extensions to the above-mentioned
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deadlines in the Appeals Coordinator’s discretion.
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The Appeals Coordinator, upon concurrence of the Claims Administrator, may amend and/or adopt procedures as necessary to implement Section 6 of the Agreement after providing notice and a right to comment by the BP Parties and Lead Class Counsel.
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The Appeals Coordinator shall post on the Court Approved Settlement Program web site and make available in hard copy a protocol summarizing these procedures and mechanism for filing appeals and documents in connection therewith (i.e., address for filing appeals and documents in connection therewith).
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All decisions of Appeal Panelists shall be emailed to attorneys for the parties and Lead Class Counsel. In addition, public versions shall be created with personally identifying information redacted.
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Pursuant to Section 6.6 of the Settlement Agreement, the Court maintains the discretionary right to review any Appeal determination and upon reviewing such determination, the Court shall treat the Appeal determination as if it were a recommendation by a Magistrate Judge.
EXHIBIT 26
Important Information About the Attached Full and Final Release, Settlement, and Covenant Not to Sue
All claimants have the right to consult with an attorney of their own choosing prior to accepting any settlement payment or signing a release of legal rights. If you are represented by an attorney in connection with your claim, confer with your attorney before signing this document.
The attached Full and Final Release, Settlement, and Covenant Not to Sue (“Individual Release”)
is a binding legal document. By signing this document, you are forever waiving and releasing all claims that you may have against BP or any other party in connection with the Deepwater Horizon Incident (as defined in the Individual Release) except for Expressly Reserved Claims (as defined in the Individual Release).
By signing the attached Individual Release, you are forever giving up and discharging any rights that you may have for any costs, damages, causes of actions, claims, or other relief related to or arising from the Deepwater Horizon Incident except for Expressly Reserved Claims even if you are not currently aware of such costs or damages and even if such costs or damages arise in the future (i.e., additional oil impacts) or do not manifest themselves until the future.
By signing the attached Individual Release, you acknowledge that you have read and understand the terms of the Individual Release, and that you execute the Individual Release voluntarily and without being pressured or influenced by, and without relying upon, any statement or representation made by any person acting on behalf of BP or any other released party.
The settlement payment you have been offered arises under the auspices of the federal District Court in New Orleans presiding over the multidistrict litigation titled In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (MDL No. 2179). A class action settlement has been proposed in that case, but the Court has not yet given final approval of that proposed settlement. If the Court does approve the proposed class action settlement, an appellate court could reverse the approval. In addition, it is possible that the terms of the proposed settlement may change in the future—for better or for worse—as a result of further legal proceedings. However, if you sign this Individual Release, none of those uncertain future events will affect you. By signing this Individual Release you are forever waiving and releasing all claims that you may have against BP (except for Expressly Reserved Claims) in exchange for the compensation being provided. In fact, even if the Court does not approve the proposed class action settlement agreement or the approval is reversed by an appellate court, you shall continue to be bound by this Individual Release.
For a Business Claimant, if the business is a sole proprietorship and you are the owner and you are married, or if the business is jointly owned by you and your spouse, both you and your spouse must sign the Individual Release. For an Individual Claimant, if you are married, both you and your spouse must sign the Individual Release. You and your spouse should not sign the Individual Release unless you both intend to release and give up all of your claims.
By signing below, you acknowledge that you have read and understand the information above. You elect to accept the payment as a final settlement of all claims against any party in connection with the Deepwater Horizon Incident except for Expressly Reserved Claims. You consent to the use and disclosure by the Claims Administrator and those assisting the Claims Administrator of any information that the Claims Administrator believes necessary and/or helpful to process your claim for compensation and payment and to any legitimate business purposes associated with administering the settlement facility. Finally, you consent to the Claims Administrator providing documentation and information to Lead Class Counsel, BP, and the Court as provided for in the Settlement Agreement.
ACKNOWLEDGMENT
I/We acknowledge that I/we have read and understand the information above. I/We consent to the claimant’s election to accept the payment as a final settlement of all claims of claimant against any party in connection with the Deepwater Horizon Incident except for Expressly Reserved Claims.
Signature of Claimant Date
Signature of Claimant’s Spouse Date
2
FULL AND FINAL RELEASE, SETTLEMENT, AND COVENANT NOT TO SUE
1. Definitions: For purposes of this Individual Release, the following definitions shall apply, and in the case of defined nouns, the singular shall include the plural and vice versa:
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(a)
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“Affiliate” means with respect to any Natural Person or Entity, any other Natural Person or Entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such Natural Person or Entity.
(b)
“Assigned Claims” means the claims defined in Exhibit 21 to the Settlement Agreement.
(c)
“Bodily Injury Claims” means claims and damages, including lost wages, for or resulting from personal injury, latent injury, future injury, progression of existing injury, damage, disease, death, fear of disease or injury or death, mental or physical pain or suffering, or emotional or mental harm, anguish or loss of enjoyment of life, including any claim for mental health injury, arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident.
(d)
“BP” means BP Exploration & Production Inc., BP America Production Company, BP America Inc., BP Company North America Inc., BP Corporation North America Inc., BP Corporation North America Inc. Savings Plan Investment Oversight Committee, BP Energy Company, BP Exploration (Alaska) Inc., BP Global Special Products (America) Inc., BP Holdings North America Limited, BP p.l.c., BP Products North America Inc., and each of their respective direct or indirect parents, subsidiaries and subsidiary undertakings (as those terms are defined in the U.K. Companies Act 2006), Affiliates, divisions, and business units.
(e)
“Claim” means any demand or request for compensation (other than Bodily Injury Claims or Expressly Reserved Claims), together with any properly completed forms and accompanying required documentation, submitted by a Claimant to the Settlement Program.
(f)
“Claimant” means any Natural Person or Entity that submits a Claim to the Settlement Program seeking compensation as a member of the Economic Class.
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(g) |
“Coastal Real Property” means property in the Coastal Real Property Claim |
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Zone. |
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(h) |
“Coastal Real Property Claim Framework” means that process described in |
the document captioned Coastal Real Property Claim Frameworks, attached as Exhibit 11A to the Settlement Agreement.
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(i)
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“Coastal Real Property Claim Zone” means the areas identified on the Coastal Real Property Compensation Zone Map included with the Coastal Real Property Claim Framework.
(j)
“Coastal Real Property Damage” means a loss to Real Property claimed to have been suffered by a Coastal Real Property owner or lessee in the Coastal Real Property Claim Zone allegedly arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident that is separate from Seafood Compensation Program, Economic Damage, Real Property Sales Damage, Wetlands Real Property Damage, VoO Charter Payment, Vessel Physical Damage and Subsistence Damage, and is more fully described in Exhibit 11A to the Settlement Agreement.
(k)
“Compensatory Damages” means any and all forms of damages, known or unknown, intended to or having the effect of satisfying, compensating, or reimbursing Claimant’s claims for actual economic or pecuniary costs, expenses, damages, liability, or other losses or injuries arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, regardless of what such damages are designated, called or labeled. Compensatory Damages do not include and may not be interpreted to have any overlap with punitive, exemplary, multiple, or noncompensatory damages. Bodily Injury Claims (including wrongful death) are not included in Compensatory Damages. Claims of BP shareholders in any derivative or direct action solely in their capacity as BP shareholders are not included in Compensatory Damages. BP and Claimant acknowledge and agree that the term Compensatory Damages as defined and used herein does not limit the amounts to be used for the calculation of punitive or other non-compensatory damages in any current or future litigation pursued by Claimant. Nothing herein shall be deemed to limit Claimant’s rights to pursue Moratoria Losses or other claims expressly reserved against BP under Section 3 of the Settlement Agreement.
(l)
“Damages” means all forms of damages defined as broadly as possible without exception, including losses, costs, expenses, taxes, requests, royalties, rents, fees, profits, profit shares, earning capacity, loss of subsistence, damages to real or personal property, diminution in property value, punitive damages, exemplary damages, multiple damages, non-compensatory damages, Compensatory Damages, economic damages, injuries, liens, remedies, debts, claims, causes of action, or liabilities.
(m)
“Deepwater Horizon Economic Litigation” means all Claims brought by Claimant or any Economic Class Member for damage covered by the Seafood Compensation Program, Coastal Real Property Damage, Economic Damage, Real Property Sales Damage, Subsistence Damage, VoO Charter Payment, Vessel Physical Damage or Wetlands Real Property Damage allegedly arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, in the MDL Action.
(n)
“Deepwater Horizon Incident” means the events, actions, inactions and omissions leading up to and including (i) the blowout of the MC252 Well, (ii) the explosions and fire on board the Deepwater Horizon on or about April 20, 2010, (iii) the sinking of the Deepwater Horizon on or about April 22, 2010, (iv) the release of oil, other hydrocarbons and other substances from the MC252 Well and/or the Deepwater Horizon and its appurtenances, (v) the efforts to contain the MC252 Well, (vi) Response Activities, including the VoO Program; (vii) the operation of the GCCF; and (viii) BP public statements relating to all of the foregoing.
(o)
“DHOST” means the Deepwater Horizon Oil Spill Trust, which is the irrevocable common law trust established under Delaware law in accordance with the trust agreement
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titled “Deepwater Horizon Oil Spill Trust” dated August 6, 2010, and entered into among BP Exploration
& Production Inc.; John S. Martin, Jr. and Kent D. Syverud, as individual trustees; and Citigroup Trust-Delaware, N.A., as corporate trustee.
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(p) |
“Economic Class” |
means |
the Economic and Property Damages Settlement |
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Class. |
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(q) |
“Economic Damage” means loss of profits, income, and/or earnings arising in |
the Gulf Coast Areas or Specified Gulf Waters allegedly arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident; provided, however, that Economic Damage does not include (1) loss of profits or earnings, or damages for injury relating to Real Property or personal property that constitutes any part of the Seafood Compensation Program, Coastal Real Property Damage, Real Property Sales Damage, Wetlands Real Property Damage, Vessel
4
Physical Damage, or (2) VoO Charter Payment, or (3) damages for loss of Subsistence use of natural resources, which constitutes Subsistence Damage.
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(r)
-
“Entity” means an organization or entity, other than a Governmental Organization, operating or having operated for profit or not-for-profit, including a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture or an unincorporated association of any kind or description.
(s)
“Expressly Reserved Claims” means the following Claims that are not recognized or released under this Individual Release, and are reserved to Claimant: (1) Bodily Injury Claims; (2) claims of BP shareholders in any derivative or direct action solely in their capacity as BP shareholders; (3) claims of Natural Persons and Entities for Moratoria Losses; (4) claims relating to menhaden (or “pogy”) fishing, processing, selling, catching, or harvesting; and (5) claims for Economic Damage suffered by Entities or employees (to the extent they allege Economic Damage based on their employment by such an Entity during the Class Period) in the Banking, Gaming, Financial, Insurance, Oil and Gas, Real Estate Development, and Defense Contractor Industries, and entities selling or marketing BP-branded fuel, including jobbers and branded retailers, as defined in the Settlement Agreement; and (6) claims for punitive or exemplary damages against Halliburton and Transocean subject to the provisions of Section 11 of the Settlement Agreement; and (7) the rights of the Claimant to recover additional benefits from the Economic Class secured by virtue of the efforts of the Economic Class to pursue Assigned Claims, again subject to the provisions of Section 11 of the Settlement
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Agreement. |
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(t) |
“Finfish” means fish other than shellfish and octopuses. |
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(u) |
“Game” includes nutria, mink, otters, raccoons, muskrats, alligators, and other |
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wildlife. |
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(v) |
“GCCF” means the Gulf Coast Claims Facility. |
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(w) |
“Governmental Organization” means: |
(a) the government of the United States |
of America, (b) any state or local government, (c) any agency, branch, commission, department, or unit of the government of the United States of America or of any state or local government, or (d) any Affiliate of, or any business or organization of any type that is owned in whole or in part to the extent of at least 51% by the government of the United States of America or any state or local government, or any of their agencies, branches, commissions, departments, or units.
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(x)
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“Gulf Coast Areas” means the States of Louisiana, Mississippi, and Alabama; the counties of Chambers, Galveston, Jefferson and Orange in the State of Texas; and the counties of Bay, Calhoun, Charlotte, Citrus, Collier, Dixie, Escambia, Franklin, Gadsden, Gulf, Hernando, Hillsborough, Holmes, Jackson, Jefferson, Lee, Leon, Levy, Liberty, Manatee, Monroe, Okaloosa, Pasco, Pinellas, Santa Rosa, Sarasota, Taylor, Wakulla, Walton and Washington in the State of Florida, including all adjacent Gulf waters, bays, estuaries, straits, and other tidal or brackish waters within the States of Louisiana, Mississippi, Alabama or those described counties of Texas or Florida.
(y)
“Halliburton” means Halliburton Energy Services, Inc. and all and any of its Affiliates, other than any Natural Person or Entity that is also an Affiliate of any of the Released Parties as of April 16, 2012.
(z)
“Halliburton Parties” shall mean Halliburton (including all persons, entities, subsidiaries, divisions and business units comprised thereby); each of Halliburton’s respective past,
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present and future directors, officers, employees, general or limited partners, members, joint venturers, and shareholders, and the past, present and future spouses, heirs, beneficiaries, estates, executors, administrators, personal representatives, attorneys, agents, trustees, insurers, reinsurers, predecessors, successors, indemnitees, assigns, Affiliates; any natural, legal or juridical person or entity acting on behalf of or having liability in respect of Halliburton, in their respective capacities as such; and the federal Oil Spill Liability Trust Fund and any state or local fund, and each of their respective Affiliates including their officers, directors, shareholders, employees, and agents.
(aa) “Incompetent Claimant” means a Natural Person who lacks the capacity to enter into a contract on his or her behalf at the time this Individual Release is executed, in accordance with the state laws of that person’s domicile as applied to adult capacity issues, whether through power of attorney agency documents, guardianship, conservatorship, tutorship, or otherwise.
(bb) “Individual Release” means this Full and Final Release, Settlement, and Covenant Not to Sue.
(cc) “MC252 Well” means the exploratory well named “Macondo” that was being drilled by the Transocean Marianas and Deepwater Horizon rigs in Mississippi Canyon, Block 252 on the outer continental shelf in the Gulf of Mexico, approximately 130 miles southeast of New Orleans, Louisiana.
(dd) “MDL Action” means the federal multidistrict litigation pending before the United States District Court for the Eastern District of Louisiana, titled, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (MDL No. 2179).
(ee) “Minor Claimant” means a Natural Person whose age is below that of the majority rule for the State in which the minor resides at the time this Individual Release is executed.
(ff) “Moratoria Loss” means any loss whatsoever caused by or resulting from federal regulatory action or inaction directed at offshore oil industry activity — including shallow water and deepwater activity — that occurred after May 28, 2010, including the federal moratoria on offshore permitting and drilling activities imposed on May 28, 2010 and July 12, 2010 and new or revised safety rules, regulations, inspections, or permitting practices.
(gg) “Natural Person” means a human being, and includes the estate of a human being who died on or after April 20, 2010. For purposes of this Individual Release, a Natural Person that is the estate of a human being who died on or after April 20, 2010, a Minor Claimant or Incompetent Claimant, shall be deemed to act through his, her or its Representative.
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(hh) |
“OPA” means the Oil Pollution Act of 1990, 33 U.S.C. § 2701, et seq. |
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(ii) |
“Other Party” means every person, entity, or party other than the Released |
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Parties. |
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(jj) |
“Other Released Parties” means Released Parties other than BP. |
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(kk) |
“Real Property” means land, including improvements thereon, and property of |
any nature appurtenant or affixed thereto.
(ll) “Real Property Sales Compensation Zone” shall be defined as Residential Parcels identified in the Real Property Compensation Zone Map.
6
(mm) “Real Property Compensation Zone Map” means the map(s) attached as Exhibit 13B to the Settlement Agreement.
(nn) “Real Property Sales Damage” means damages for realized damage on the sale of Residential Parcels arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident.
(oo) “Released Claims” means all claims arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, including any and all actions, claims, costs, expenses, taxes, rents, fees, profit shares, liens, remedies, debts, demands, liabilities, obligations, or promises of any kind or nature whatsoever, in both law or in equity, past or present, whether known or unknown, including claims for any and all Unknown Claims or damages, future injuries, damages or losses not currently known, but which may later develop, provided they arise out of, are due to, result from, or relate in any way to, directly or indirectly, the Deepwater Horizon Incident, and regardless of the legal or equitable theory, arising under any source of law whether international, federal, state, or local, and regardless of whether pursuant to statutory law, codal law, adjudication, quasi-adjudication, regulation, or ordinance, including common law, maritime or admiralty, statutory and non-statutory attorneys’ fees, breach of contract, breach of any covenant of good faith and/or fair dealing, fraud, misrepresentation, fraudulent concealment, deception, consumer fraud, antitrust, defamation, tortious interference with contract or business expectations, loss of business expectations or opportunities, loss of employment or earning capacity, diminution of property value, violation of the federal Racketeer Influenced and Corrupt Organizations Act or any similar state law, violations of any consumer protection act, punitive damages, exemplary damages, multiple damages, noncompensatory damages, Compensatory Damages, pain and suffering, interest, injunctive relief, declaratory judgment, costs, deceptive practices, unfair business practices, regulation, strict liability, negligence, gross negligence, willful misconduct, nuisance, trespass, fraudulent concealment, statutory violations, including OPA or other statutory claims, unfair business practices, breach of fiduciary duty, and all other theories whether existing now or arising in the future, arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident. Released Claims shall not include Expressly Reserved Claims.
(pp) “Released Parties,” for purposes of the Released Claims, means (i) BP (including all persons, entities, subsidiaries, divisions and business units comprised thereby), together with (ii) DHOST; (iii) the persons, entities, divisions, and business units listed on Attachment A; (iv) each of BP’s and the Other Released Parties’ respective past, present and future directors, officers, employees, general or limited partners, members, joint venturers, and shareholders, and their past, present and future spouses, heirs, beneficiaries, estates, executors, administrators, personal representatives, attorneys, agents, trustees, insurers, reinsurers, predecessors, successors, indemnitees, assigns; (v) any natural, legal or juridical person or Entity acting on behalf of or having liability in respect of BP or the Other Released Parties, in their respective capacities as such; and (vi) the federal Oil Spill Liability Trust Fund and any state or local fund, and, as to i-vi above, each of their respective Affiliates including their Affiliates’ officers, directors, shareholders, employees, and agents. Released Parties will also include any vessels owned or chartered by any Released Party (except for the Deepwater Horizon itself). Notwithstanding anything herein to the contrary, in no event shall any of the following be deemed to be a Released Party: Transocean or Halliburton. Claimant specifically reserves its rights for punitive and exemplary damages against Transocean and Halliburton subject to the provisions of Paragraph 11 of the Settlement Agreement. Furthermore, nothing herein shall impair the rights of the Claimant to recover additional benefits from the Economic Class secured by virtue of the efforts of the Economic Class to pursue Assigned Claims, again subject to the provisions of Paragraph 11 of the Settlement Agreement.
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(qq) “Residential Parcels” means those parcels within the Real Property Sales Compensation Zone for which the county where the parcel is located has designated the parcel as a residential classification.
(rr) “Response Activities” means the clean up, remediation efforts, and all other responsive actions (including the use and handling of dispersants) relating to the releases of oil, other hydrocarbons and other pollutants from the MC252 Well and/or the Deepwater Horizon and its appurtenances and the Deepwater Horizon Incident.
(ss) “Seafood” means fish and shellfish, including shrimp, oysters, crab, and Finfish, caught in the Specified Gulf Waters. Seafood shall exclude menhaden.
(tt) “Seafood Compensation Program” means the program defined in Section 5.2 of the Settlement Agreement.
(uu) “Settlement Agreement” means the Economic and Property Damages Settlement Agreement.
(vv) “Settlement Program” means the Deepwater Horizon Court Supervised Settlement Program created pursuant to the Settlement Agreement.
(ww) “Specified Gulf Waters” means the U.S. waters of the Gulf of Mexico and all adjacent bays, estuaries, straits, and other tidal or brackish waters within the Gulf Coast Areas, as specifically shown and described in Exhibit 23 to the Settlement Agreement.
(xx) “Subsistence” means fishing or hunting to harvest, catch, barter, consume or trade Gulf of Mexico natural resources (including Seafood and Game), in a traditional or customary manner, to sustain basic personal or family dietary, economic security, shelter, tool, or clothing needs.
(yy) “Subsistence Damage” means a loss of value of Subsistence use of natural resources alleged to arise out of, result from or relate in any way to, directly or indirectly, the Deepwater Horizon Incident.
(zz) “Transocean” means Transocean Ltd., Transocean, Inc., Transocean Offshore Deepwater Drilling Inc., Transocean Deepwater Inc., Transocean Holdings LLC, and Triton Asset Leasing GmbH and all and any of their Affiliates, other than any Natural Person or Entity that is also an Affiliate of any of the Released Parties.
(aaa) “Transocean Parties” means Transocean (including all persons, entities, subsidiaries, divisions and business units comprised thereby); each of Transocean’s respective past, present and future directors, officers, employees, general or limited partners, members, joint venturers, and shareholders, and the past, present and future spouses, heirs, beneficiaries, estates, executors, administrators, personal representatives, attorneys, agents, trustees, insurers, reinsurers, predecessors, successors, indemnitees, assigns, Affiliates; any natural, legal or juridical person or entity acting on behalf of or having liability in respect of Transocean, in their respective capacities as such; and the federal Oil Spill Liability Trust Fund and any state or local fund, and each of their respective Affiliates including their officers, directors, shareholders, employees, and agents.
(bbb) “Unknown Claims” and damages or not currently known claims and damages (whether or not capitalized) means all past, present, and future claims and damages arising out of facts, including new facts or facts found hereafter to be other than or different from the facts now believed
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to be true, arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident covered by this Individual Release that Claimant does not, in whole or in part, know or suspect to exist and which, if known by them, might have affected their decision to provide such Individual Release, including all claims arising out of new facts or facts found hereafter to be other than or different from the facts now believed to be true.
(ccc) “Vessel Physical Damage” means physical damage that was sustained by an eligible Claimant’s eligible vessel due to or resulting from the Deepwater Horizon Incident or the Deepwater Horizon Incident response cleanup operations, including the VoO Program, that were consistent with the National Contingency Plan or specifically ordered by the Federal On-Scene Coordinator or delegates thereof.
(ddd) “VoO Charter Payment” means a loss alleged by a VoO Charter Payment Claimant for any payment or compensation related to participation in the VoO Program that satisfies the requirements set forth in Section 5.5 of the Settlement Agreement.
(eee) “VoO Charter Payment Claimant” means an Economic Class Member claiming to have suffered a VoO Charter Payment loss.
(fff) “VoO Master Vessel Charter Agreement” means the standard agreements utilized by BP and its agents or subcontractors to charter the vessels available for work or service in connection with the VoO Program.
(ggg) “VoO Program” means the program through which vessel owners performed work for BP or BP’s authorized agents pursuant to the terms of the VoO Master Vessel Charter Agreement.
(hhh) “Wetlands Real Property Claim Framework” means the rules described in the document captioned Wetlands Real Property Claim Frameworks, attached the Settlement Agreement as Exhibits 12A-12B.
(iii) “Wetlands Real Property Claimant” means an Economic Class Member claiming to have suffered Wetlands Real Property Damage.
(jjj) “Wetlands Real Property Damage” means a loss alleged by a Wetlands Real Property Claimant that satisfies the requirements set forth in the Wetlands Real Property Claim Framework.
2. Release. In consideration of payment in the amount of [insert $$], previous payments for Claims referenced and released herein, and the right to receive additional Settlement Payment(s) for any additional Claims, if any, pursuant to the terms of Section 4.4.8 of the Settlement Agreement, which Claimant accepts as sufficient and adequate consideration for any and all Released Claims, Claimant, on behalf of Claimant and Claimant’s heirs, beneficiaries, estates, executors, administrators, personal representatives, agents, trustees, insurers, reinsurers, subsidiaries, corporate parents, predecessors, successors, indemnitors, subrogees, assigns, and any natural, legal or juridical person or entity entitled to assert any claim on behalf of or in respect of any Claimant, hereby releases and forever discharges with prejudice, and covenants not to sue, the Released Parties for any and all Released Claims; provided however that this Individual Release does not apply to, and the term Released Claims does not include, Expressly Reserved Claims. In the event a Released Party is sold or otherwise transferred to or purchases or otherwise acquires, or enters into a partnership or joint venture with, a Natural Person or Entity that is not otherwise a Released Party immediately prior to giving effect to such transaction, then
9
the non-Released Party shall as a result of such transaction obtain a benefit under this Individual Release only with respect to any liability of the Released Party that it, or any such partnership or joint venture, has acquired or assumed or otherwise become liable for, and not in its own right.
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Release Is Comprehensive. Claimant agrees and acknowledges that the consideration granted in Paragraph 2 above constitutes full, complete, and total satisfaction of all of the Released Claims against the Released Parties. In addition, Claimant agrees and acknowledges that the consideration granted in Paragraph 2 above also constitutes full, complete, and total satisfaction of all of Claimant’s Compensatory Damage Claims against the Transocean Parties and the Halliburton Parties.
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Non-General Release. Claimant expressly waives and releases with prejudice, and shall be deemed to have waived and released with prejudice, any and all rights that it may have under any law, codal law, statute, regulation, adjudication, quasi-adjudication, decision, administrative decision, or common law principle that would otherwise limit the effect of the Individual Release to those claims or matters actually known or suspected to exist at the time of execution of the Individual Release. California law is not applicable to this Individual Release, but purely for illustrative purposes the Released Claims include, but are not limited to the release of claims provided for in Section 1542 of the California Civil Code, which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
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Contribution, Subrogation, Indemnity. This Individual Release is not intended to prevent BP from exercising its rights of contribution, subrogation, or indemnity under OPA or any other law, including its rights of assignment regarding Assigned Claims as set forth in Exhibit 21 to the Settlement Agreement. BP is hereby subrogated to any and all rights that the Economic Class Members, or any of them, may have had or have arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident under OPA. All such rights of BP to contribution, indemnity, and subrogation, and BP’s subrogation to the rights of Economic Class Members, are subject to the provisions regarding Assigned Claims in Exhibit 21 to the Settlement Agreement.
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Consideration. Claimant agrees that this Individual Release is entered into in consideration of the agreements, promises, and mutual covenants set forth in this Individual Release and for such other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged.
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No Further Action. Claimant agrees not to file federal or state judicial or administrative proceedings concerning cleanup, removal, spill response or remediation of Coastal Real Property Damages and Wetlands Real Property Damages, or the underlying Real Property, as a means to seek the redress of Released Claims.
8. Dismissal of All Claims.
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(a)
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In consideration of the benefits provided under this Individual Release, all Released Claims by or on behalf of Claimant against any and all Released Parties shall be dismissed with prejudice in any lawsuit in which the Claimant is a party.
(b)
This Individual Release shall be the exclusive remedy for any and all Released Claims by or on behalf of Claimant against any and all Released Parties, and Claimant shall
10
not recover, directly or indirectly, any sums from any Released Parties for any Released Claims other than those received for the Released Claims under the terms of this Individual Release.
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(c)
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Claimant agrees that Claimant, and all other Natural Persons and Entities claiming by, through, or on behalf of Claimant will be forever barred and enjoined from commencing, filing, initiating, instituting, prosecuting, maintaining, or consenting to any judicial, arbitral, or regulatory action against the Released Parties with respect to the Released Claims.
(d)
If Claimant commences, files, initiates, or institutes any new action or other proceeding for any Released Claims against the Released Parties in any federal or state court, arbitration tribunal, or administrative or other forum, such action or other proceeding shall be dismissed with prejudice and at Claimant’s cost; provided, however, before any costs may be assessed, counsel for such Claimant, or, if not represented, such Claimant shall be given reasonable notice and an opportunity voluntarily to dismiss such new action or proceeding with prejudice. Furthermore, if Claimant brings any legal action before any Court, arbitration panel, regulatory agency, or other tribunal to enforce its rights under this Individual Release, such Released Party shall be entitled to recover any and all related costs and expenses (including attorneys’ fees) from any Claimant in violation or breach of its obligations under this Individual Release.
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No Admission of Liability or Wrongdoing by BP. The Paragraph 2 payment to Claimant is made without any admission of liability or wrongdoing by BP or any other Released Party and is made purely by way of compromise and settlement.
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Claimant Warranty. Claimant represents and warrants that Claimant or Claimant’s undersigned representative in the case of a business entity has authority to execute this Individual Release on behalf of Claimant.
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Additional Protections for Released Parties. Claimant promises, agrees, acknowledges, represents, warrants, and covenants as follows:
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No Assignment of Claims. Claimant shall not assign or reassign, or attempt to assign or reassign, to any person or entity other than BP any rights or claims arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident. Any such assignment or reassignment, or attempt to assign or reassign, to any Natural Person or Entity other than BP any rights or claims arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident shall be void, invalid, and of no force and effect.
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No Recovery of Additional Compensatory Damages. Claimant shall not accept or attempt to recover, through insurance, reinsurance, indemnification, contribution, subrogation, litigation, settlement, or otherwise, any Compensatory Damages from the Transocean Parties and/or the Halliburton Parties. Nothing in this Paragraph 11(b) shall impair or impact Claimant’s rights to pursue Transocean and Halliburton for exemplary and punitive damages individually or through the Economic Class.
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Non-Execution and Non-Collection for Compensatory Damages. In the event that Claimant is or becomes the beneficiary of any judgment, decision, award, or settlement arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, Claimant shall not accept, execute on, attempt to collect, or otherwise seek recovery of any Compensatory Damages from the Transocean Parties and/or
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the Halliburton Parties. Nothing in this Paragraph 11(c) shall impair or impact Claimant’s rights to pursue Transocean and Halliburton for exemplary and punitive damages individually or through the Economic Class.
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(d)
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Conditional Collection of Damages. In the event that Claimant is or becomes the beneficiary of any judgment, decision, award, or settlement arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, including from Assigned Claims and/or Expressly Reserved Claims, Claimant shall not accept, execute on, attempt to collect, or otherwise seek recovery of any Damages, to the extent that any Other Party is seeking or may seek to recover such Damages from any Released Party, whether through indemnity, contribution, subrogation, assignment, or any other theory of recovery, by contract, pursuant to applicable law or regulation, or otherwise, directly or indirectly. Claimant may, however, accept, execute on, attempt to collect, or otherwise seek recovery of Damages if and when a court or tribunal of competent jurisdiction has finally determined that Other Parties cannot recover such Damages, whether through indemnity, contribution, subrogation, assignment or any other theory of recovery, by contract, pursuant to applicable law or regulation, or otherwise, directly or indirectly, from any Released Party. For purposes of this Paragraph 11(d), “finally determined” shall mean the conclusion of any applicable appeals or other rights to seek
review by certiorari or otherwise, or the lapse of any and all such rights, or the lapse of any and all applicable limitations or repose periods.
(e)
Conditions on Future Settlements. Claimant may settle or compromise any rights, demands, or claims with the Transocean Parties, the Halliburton Parties, and/or any Other Parties arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident if but only if the Transocean Parties, the Halliburton Parties, and/or such Other Party, as the case may be, agrees as part of that settlement or compromise to a full and final release of, dismissal of, and covenant not to sue for any and all rights to recover, directly or indirectly, from the Released Parties (whether through indemnity, contribution, subrogation, assignment or any other theory of recovery, by contract, pursuant to applicable law or regulation, or otherwise) for any Damages or other relief or consideration provided under or relating to such settlement or compromise (whether the settlement is of a class, of individual claims, or otherwise), including from Expressly Reserved Claims, and further represents and warrants that it has not assigned and will not assign any rights to recover for such Damages or other relief or consideration (whether through indemnity, contribution, subrogation, or otherwise). As part of this commitment and without limitation, Claimant shall not to settle or compromise with the Transocean Parties, the Halliburton Parties, and/or any Other Parties on terms that might allow any insurers, reinsurers, or indemnitors thereof to claim against any Released Parties for indemnification, subrogation, contribution, assignment or under any other theory of recovery. Claimant agrees that, before any such settlement or compromise is executed, BP shall have the right to approve language in any such settlement or compromise memorializing the representation and warranty set forth in this Paragraph 11(e), which approval shall not be unreasonably withheld.
(f)
Indemnity to Released Parties. Notwithstanding any provision in this Individual Release to the contrary, if any Other Party recovers or seeks to recover from any Released Party (under any theory of recovery, including indemnity, contribution, or subrogation, and including from Assigned Claims and/or Expressly Reserved Claims) any Damages either
(a)
paid to Claimant, or (b) by, through, under, or on account of Claimant; then Claimant shall indemnify (not defend) the Released Parties, but only to the extent of the consideration received in Paragraph 2 above (by way of example, if Claimant has received $100.00 pursuant to Paragraph 2 above, its indemnity obligation would be capped at this amount). This indemnity
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obligation owed by Claimant includes any and all claims made or other actions taken by that Claimant taken in breach of this Individual Release.
(g) Notice Regarding Indemnity. Claimant expressly acknowledges that, to the fullest extent allowed by law, the indemnity obligations contained in Paragraph 11(f) above apply to claims against Released Parties predicated on negligence, gross negligence, willful misconduct, strict liability, intentional torts, liability based on contractual indemnity, and any and all other theories of liability, and any and all awards of attorneys’ fees or other costs or expenses. Claimant acknowledges that this indemnity is for conduct occurring before the date of this Individual Release and therefore is not affected by public policies or other law prohibiting agreements to indemnify in advance of certain conduct. CLAIMANT ACKNOWLEDGES THAT THIS PARAGRAPH 11(g) COMPLIES WITH ANY REQUIREMENT TO EXPRESSLY STATE THAT LIABILITY FOR SUCH CLAIMS IS INDEMNIFIED AND THAT THIS PARAGRAPH 11(g) IS CONSPICUOUS AND AFFORDS FAIR AND ADEQUATE NOTICE.
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Claimant Signature Requirements. Claimant must personally sign the Individual Release, rather than through an attorney or otherwise. An electronic signature is insufficient. In addition to signing and accepting the overall Individual Release immediately below, Claimant agrees to separately sign and vouch for the accuracy of the certifications contained in Attachment “B.”
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Spouse’s Signature. If the Claimant has a living spouse, the Claimant’s spouse must also personally sign below. An electronic signature is insufficient. The Claimant and his or her spouse should not sign the Individual Release unless they both intend to release all Released Claims.
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Choice of Law. Notwithstanding the law applicable to the underlying claims, which is a disputed issue not resolved by this Individual Release, this Individual Release and all questions with respect to the construction and enforcement thereof and the rights and liabilities hereto shall be interpreted in accord with General Maritime Law, as well as in a manner intended to comply with OPA.
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Superseding Nature of Agreement. This Individual Release constitutes the final, complete, and exclusive agreement and understanding between BP and Claimant and supersedes any and all other agreements, written or oral, between BP and Claimant with respect to such subject matter of this Individual Release in settlement of Claims arising out of or related to the Deepwater Horizon Incident.
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Continuing Effectiveness of Agreement. This Individual Release shall remain effective regardless of any appeals or court decisions relating in any way to the liability of the Released Parties in any current or future litigation. This Individual Release shall also remain effective regardless of whether the Settlement Agreement resolving the Claims of the Economic Class is approved.
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Choice of Federal Forum and Waiver of State Forums. Any and all disputes, cases, or controversies concerning this Individual Release, including without limitation disputes concerning the interpretation or enforceability of this Individual Release, shall be filed only in the United States District Court for the Eastern District of Louisiana, accompanied by a legal request made on behalf of any complainant party (whether one of the Released Parties or the Claimant) for such dispute to be made part of the MDL Action if the MDL Action has not yet been terminated. No actions to enforce this Individual Release shall be filed in any state court, arbitration tribunal, or administrative agency and Claimant represents and warrants that it shall not file such an action in any state court, arbitration tribunal, or administrative agency. Claimant agrees not to contest the existence of federal jurisdiction in the MDL Action or the United States District Court for the Eastern District of Louisiana .
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Reservation of Rights. Notwithstanding the above and foregoing Individual Release, Claimant hereby reserves: (i) the right to additional settlement payments for any additional Claims, if any, pursuant to the terms of Section 4.4.8 of the Settlement Agreement; (ii) any and all rights or claims to which Claimant may be entitled for additional distributions from and funds held in reserve or trust (including, but not limited to, the Seafood Compensation Program, Assigned Claims and/or Transocean Personnel Insurance Proceeds) according to the terms of the Settlement Agreement; and (iii) Expressly Reserved Claims.
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Claimant’s Responsibility for Attorneys’ Fees. To the extent that Claimant has retained or engaged a private attorney to represent him or her or it in connection with the Deepwater Horizon Incident, Claimant acknowledges and agrees that he or she or it, and not the BP Parties, is solely responsible for any attorneys’ fees or costs owed to such attorney by the Claimant.
13
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Claimant’s Name |
Claimant’s Signature & |
Date |
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Title, if Business Entity Claimant |
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Claimant’s Spouse’s Name |
Claimant’s Spouse’s Signature, |
Date |
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if applicable |
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14
Attachment “A” Listing Released Parties
Abdon Callais Offshore, Inc.
Admiral Robert J Papp Jr.
Admiral Thad Allen
Admiral Towing, LLC
Aerotek, Inc.
Airborne Support, Inc.
Airborne Support International, Inc.
Alford Safety Services Inc.
Alford Services Inc.
Ameri-Force, Inc.
Ameri-Force Craft Services, Inc.
American Pollution Control Corporation
Anadarko Petroleum Company
Anadarko Petroleum Corporation
Anadarko E&P Company LP
Apex Environmental Services, LLC
Art Catering, Inc.
Ashland Services, LLC
B&B Environmental Services, Inc.
Belle Chasse Marine Transportation, Inc.
BJ Services Company, USA
Blue Marlin Services of Acadiana, LLC
Bobby Lynn's Marina, Inc.
BP America Inc.
BP America Production Company
BP Company North America Inc.
BP Corporation North America Inc.
BP Energy Company
BP Exploration (Alaska) Inc.
BP Global Special Products (Americas) Inc.
BP Holdings North America Limited
BP Exploration & Production Inc.
BP p.l.c.
BP Products North America Inc.
BP International Ltd.
BP Corporation North America Inc. Savings Plan Investment Oversight Committee
Brett Cocales
Brian Morel
Cabildo Services, LLC
Cabildo Staffing, LLC
Cahaba Disaster Recovery LLC
Cal Dive International, Inc.
Cameron Corporation
Cameron International Corporation
Cameron International Corporation f/k/a Cooper Cameron Corporation
Cameron International Corporation d/b/a/ Cameron Systems Corporation
Center for Toxicology and Environmental Health L.L.C.
Chill Boats L.L.C.
Chouest Shorebase Services, LLC
Clean Harbors, Inc.
Clean Tank LLC
Clean Tank Inc.
Core Industries, Inc.
Core 4 Kebawk, LLC
15
Crossmar, Inc. Crowder/Gulf Joint Venture Crowder Gulf Disaster Recovery Danos and Curole Marine Contractors, LLC Danos & Curole Staffing, L.L.C. David Sims Deepwater Horizon Oil Spill Trust Diamond Offshore Company DOF Subsea USA, Inc. Don J. Vidrine DRC Emergency Services, LLC DRC Marine, LLC DRC Recovery Services, LLC Dril-Quip, Inc. Dynamic Aviation Group, Inc. Eastern Research Group, Inc. Environmental Standards, Inc. Environmental Safety & Health Consulting Services Environmental Safety & Health Environmental Services ES&H, Inc. ESIS, Inc. Exponent, Inc. Faucheaux Brothers Airboat Services, Inc. Global Diving & Salvage, Inc. Global Employment Services, Inc. Global Fabrication, LLC Global Marine International, Inc. Graham Gulf Inc. Grand Isle Shipyard Inc. Gregg Walz Guilbeau Marine, Inc. Guilbeau Boat Rentals, LLC Gulfmark Offshore, Inc. Gulf Offshore Logistics, LLC Gulf Offshore Logistics International, LLC Gulf Services Industrial, LLC HEPACO, Inc. Hilcorp Energy Company Hyundai Heavy Industries Co. Ltd, Inc. Hyundai Motor Company I-Transit Response, L.L.C International Air Response, Inc. Island Ventures II, LLC JMN Specialties, Inc. JNB Operating LLC John Guide K & K Marine, LLC LaBorde Marine Services, LLC Lane Aviation Lawson Environmental Service LLC Lawson Environmental Service & Response Company Lee Lambert Lord Edmund John Browne Lynden Air Cargo, LLC Lynden, Inc. Maco of Louisiana, LLC
16
Maco Services, Inc.
Marine Spill Response Corporation
Mark Bly
Mark Hafle
M-I L.L.C.
M-I Drilling Fluids L.L.C.
M-I Swaco
Miller Environmental Group, Inc.
Mitchell Marine
Mitsui & Co. (USA), Inc.
Mitsui & Co. Ltd.
Mitsui Oil Exploration Co. Ltd.
ModuSpec USA, Inc.
Monica Ann LLC
Moran Environmental Recovery, LLC
MOEX Offshore 2007 LLC
MOEX USA Corporation
M/V Monica Ann
M/V Pat Tilman
M/V Damon B. Bankston
M/V Max Chouest
M/V Ocean Interventions
M/V C. Express
M/V Capt. David
M/V Joe Griffin
M/V Mr. Sidney
M/V Hilda Lab
M/V Premier Explorer
M/V Sailfish
M/V Seacor Washington
M/V Emerald Coast
M/V Admiral Lee
M/V Seacor Vanguard
M/V Whuppa Snappa
Nalco Energy Services, LP
Nalco Holding Company
Nalco Finance Holdings LLC
Nalco Finance Holdings Inc.
Nalco Holdings LLC
Nalco Company
National Response Corporation
Nature's Way Marine, LLC
Nautical Ventures, LLC
Nautical Solutions, LLC
O’Brien’s Response Management, Inc.
Ocean Runner, Inc.
Ocean Therapy Solutions, LLC
Oceaneering International, Inc.
Odyssea Marine, Inc.
Offshore Cleaning Systems L.L.C.
Offshore Service Vessels, LLC
Offshore Inland Marine & Oilfield Services, Inc.
Oil Recovery Company, Inc. of Alabama
Oilfield Marine Contractors, LLC
Parsons Commercial Services Inc.
Parsons Services Company
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Parsons Facility Services Company Parsons Corporation Patriot Environmental Services Incorporated Peneton Company Perennial Contractors, LLC Peneton Corporation Production Services Network U.S., Inc. Quality Container, Inc. Quality Energy Services, Inc. Ranger Offshore, Inc. Reel Pipe, LLC Resolve Marine Services, Inc. Robert Kaluza Ronald W. Sepulvado Schlumberger, Ltd. Seacor Holdings Inc. Seacor Marine, LLC Seacor Marine, Inc. Seacor Marine International, Inc. Seacor Offshore LLC Seacor Worldwide, Inc. Sealion Shipping LTD Sea Support Services, L.L.C. Sea Tow of South Miss, Inc. Seafairer Boat, LLC Shamrock Management LLC et al. Shoreline Services, LLC Siemens Financial, Inc. Shoreline Construction, LLC Smith Marine, Inc. Southern Cat, Inc. Southern Environmental of Louisiana, LLC Stallion Offshore Quarters, Inc. Subsea 7 LLC Tamara's Group, LLC Team Labor Force, LLC Technical Marine Maintenance Services, L.L.C. The Modern Group, Ltd. The Modern Group GP-SUB, Inc. The O’Brien Group, LLC The Response Group, Inc. Tiburon Divers, Inc. Tidewater, Inc. Tidewater Marine LLC Tiger Rentals, Ltd. Tiger Safety, LLC Toisa Limited Total Safety U.S., Inc. Twenty Grand Offshore, LLC Twenty Grand Marine Service, LLC Twenty Grand Offshore Inc. USES/Construct Corps United States Environmental Services, LLC United States Maritime Services, Inc. Viscardi Industrial Services, LLC Weatherford International Ltd.
18
Weatherford U.S. L.P.
Wood Group Production Services, Inc.
Worley Catastrophe Services, LLC
Worley Catastrophe Response, LLC
19
Attachment “B” — Certification
Claimant hereby signs to attest to and vouch for the accuracy of the certification below:
For all types of claims:
I certify that I understand and acknowledge that, (subject to my right to additional Settlement Payments, if any, pursuant to Section 4.4.8 of the Settlement Agreement), I am forever giving up with prejudice and discharging, without any right of legal recourse whatsoever, any and all rights I have or may have to the Released Claims against the Released Parties. I acknowledge that by having executed the Individual Release and signing below neither I nor the entity I represent has been pressured or influenced by, or is relying on any statement or representation made by any person acting on behalf of BP or any other Released Party. I certify that I understand that I have the right to consult with an attorney of my choosing before signing this Individual Release.
PLUS ONE OF THE ADDITIONAL CERTIFICATIONS FOLLOWING (AS APPLICABLE):
For business or property claims:
I certify that either:
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(1)
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I have not made an insurance claim or received any insurance proceeds for any business or property Claim arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident; OR
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(2)
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If I have made or do make an insurance claim and/or receive or have received insurance proceeds for any business or property claim arising out of, due to, resulting from, or relating in any way to, directly or indirectly the Deepwater Horizon Incident, I will indemnify BP for any liability it incurs for a subrogation claim made against BP arising out of:
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(a)
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such insurance proceeds, provided that the subrogation claim is brought by an entity seeking payment of insurance proceeds to me for any business or property claim arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident; and
(b)
the amount that I indemnify BP shall not exceed the amount of insurance proceeds that I received for the business or property claim at issue.
CLAIMANT ACKNOWLEDGES THAT THIS CERTIFICATION COMPLIES WITH ANY REQUIREMENT TO EXPRESSLY STATE THAT LIABILITY FOR SUCH CLAIMS IS INDEMNIFIED AND THAT THIS CERTIFICATION IS CONSPICUOUS AND AFFORDS FAIR AND ADEQUATE NOTICE.
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For individual claims:
I certify that either:
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(1)
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I have not made a claim for unemployment insurance benefits arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident; OR
(2)
If I have made or do make a claim for unemployment insurance benefits arising out of, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident, I will indemnify BP for any liability and defense costs it incurs for a subrogation Claim made against BP arising out of such insurance proceeds provided that the subrogation Claim is brought by an entity seeking payment of insurance proceeds to me for any business or property Claim arising out, due to, resulting from, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident; and the amount that I indemnify BP shall not exceed the amount of insurance proceeds that I received for the unemployment insurance benefits Claim at issue.
CLAIMANT ACKNOWLEDGES THAT THIS CERTIFICATION COMPLIES WITH ANY REQUIREMENT TO EXPRESSLY STATE THAT LIABILITY FOR SUCH CLAIMS IS INDEMNIFIED AND THAT THIS CERTIFICATION IS CONSPICUOUS AND AFFORDS FAIR AND ADEQUATE NOTICE.
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Claimant’s Name |
Claimant’s Signature, Title if |
Date |
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Business Claimant |
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Claimant’s Spouse’s Name |
Claimant’s Spouse’s Signature, |
Date |
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if applicable |
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21 |
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EXHIBIT 27
EXHIBIT 27 TO DEEPWATER HORIZON ECONOMIC AND PROPERTY DAMAGES SETTLEMENT AGREEMENT DATED APRIL 18, 2012
and
EXHIBIT 19 TO DEEPWATER HORIZON MEDICAL BENEFITS CLASS SETTLEMENT AGREEMENT DATED APRIL 18, 2012
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Interim Class Counsel under the Economic Agreement and the Medical Settlement Agreement and BP’s Counsel commenced negotiations on common benefit and/or Rule 23(h) attorneys’ fees and costs on April 17, 2012, only after such Interim Class Counsel and BP’s Counsel reached agreement on all of the material terms of the Economic Agreement and the Medical Settlement Agreement and delivered that information to the Court.
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Subject to the provisions, conditions, and understandings set forth below, the BP Parties agree not to contest a joint request by Economic Class Counsel and Medical Benefits Class Counsel (collectively, the “Class Counsel”) for, nor oppose an award by the Court for, a maximum award of $600,000,000 (Six hundred million US Dollars), as a payment of all common benefit and/or Rule 23(h) attorneys’ fees, costs and expenses incurred at any time, whether before or after the date hereof, for the common benefit of members of the Economic Class and the Medical Class. If the Court awards less than the amount set out in this paragraph 2, the BP Parties shall be liable only for the lesser amount awarded by the Court. In no event shall the BP Parties be liable for any amount of common benefit and/or Rule 23(h) attorneys’ fees, costs and/or expenses in excess of the amount agreed upon in this paragraph 2. The common benefit and/or Rule 23(h) attorneys’ fees, costs and expenses awarded by the Court, subject to the limitations in the preceding sentence, shall be collectively referred to as the “Common Benefit Fee and Costs Award.”
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The Common Benefit Fee and Costs Award shall cover any and all common benefit and/or Rule 23(h) attorneys’ fees, costs and expenses that may be claimed against BP or any of the Released Parties by or on behalf of the Economic Class or the Medical Class, or any member thereof, or their current or former counsel, including attorneys’ fees and costs pursuant to Fed. R. Civ. P. 23(h), Pretrial Order No. 9, and the Court’s Order and Reasons As To The Motion To Establish Account And Reserve For Litigation Expenses, Rec. Doc. 5022, and amendments thereto, including Rec. Doc. 5064 and 5274 (collectively, the “Holdback Order”).
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The BP Parties shall make payments into the qualified settlement fund to be established pursuant to Section 5.16 of the Economic Agreement and Section XXII.S of the Medical Settlement Agreement (the “Common Benefit Fee and Costs Fund”) as follows:
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The BP Parties shall make a non-refundable payment of $75 million (Seventyfive million US Dollars) (the “Initial Payment”) into the Common Benefit Fee and Costs Fund on the first date on which all of the following have occurred:
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(i) 30 days have elapsed after the Court has granted preliminary approval of the Economic Agreement, and (ii) the Court has entered an Order modifying the Holdback Order to provide that it shall not apply to any Settlement Payments or Other Economic Benefits paid pursuant to the Economic Agreement or any Medical Settlement Payments or Other Medical Benefits pursuant to the Medical Settlement Agreement. Subject to the conditions in the preceding sentence, the Initial Payment from the Common Benefit Fee and Costs Fund shall be paid to Class Counsel pursuant to an order of the Court.
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From and after the date of the Initial Payment, through the earlier of the Effective Date under the Economic Agreement or the termination of the
2
3
Economic Agreement, within 15 days after the end of each calendar quarter, the BP Parties shall irrevocably pay into the Common Benefit Fee and Costs Fund an amount equal to 6 % (six percent) of (i) the aggregate Settlement Payments paid under the Economic Agreement in respect of Claimants that have executed an Individual Release (or in the case of payments pursuant to the Transition Process, to Economic Class Members that execute a full release), together with (ii) the amount of Other Economic Benefits paid, in each case under the Economic Agreement during such calendar quarter (or, in the case of the first such payment, during the period from April 18, 2012 to the end of such calendar quarter, or during the period from and after February 26, 2012 pursuant to the Transition Process).
c. From and after the date of the Initial Payment, through the earlier of the Effective Date under the Medical Settlement Agreement or the termination of the Medical Settlement Agreement, within 15 days after the end of each calendar quarter, the BP Parties shall irrevocably pay into the Common Benefit Fee and Costs Fund an amount equal to 6 % (six percent) of the aggregate Other Medical Benefits paid under the Medical Settlement Agreement during such calendar quarter (or, in the case of the first such payment, during the period from April 18, 2012 to the end of such calendar quarter). If the Effective Date under the Medical Settlement Agreement occurs, the BP Parties shall irrevocably pay into the Common Benefit Fee and Costs Fund an amount equal to 6% (six percent) of the aggregate Medical
4
Settlement Payments paid under the Medical Settlement Agreement as and when such Medical Settlement Payments are made.
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d.
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Notwithstanding anything to the contrary herein, (i) the BP Parties shall be entitled to credit the Initial Payment against the first $75 million of payments required under paragraphs 4b and 4c, and (ii) in no event shall the total amounts paid into the Common Benefit Fee and Costs Fund (including the Initial Payment and any additional amounts paid pursuant to paragraphs 4b and 4c) exceed $480,000,000 (Four hundred eighty million US Dollars) in the aggregate, unless and until the Effective Date under the Economic Agreement occurs (except as expressly set forth in paragraph 4g below with respect to certain Settlement Payments made from and after the termination of the Economic Agreement).
e.
If the Effective Date under the Economic Agreement occurs, the BP Parties will irrevocably pay the remaining balance of the Common Benefit Fee and Costs Award into the Common Benefit Fee and Costs Fund on the first date (the “Final Fee and Costs Payment Date”) on which both of the following have occurred: (i) 30 days have elapsed after the Effective Date under the Economic Agreement, and (ii) the Court has entered an order approving the Common Benefit Fee and Costs Award.
f.
If the Medical Settlement Agreement is terminated prior to the occurrence of the Effective Date under the Medical Settlement Agreement, the BP Parties shall not be required to make any further payments whatsoever pursuant to paragraph 4c into the Common Benefit Fee and Costs Fund.
g.
If the Economic Agreement is terminated prior to the occurrence of the Effective Date under the Economic Agreement, the BP Parties shall not be required to make any further payments whatsoever into the Common Benefit Fee and Costs Fund (other than payments pursuant to paragraph 4c in respect of the Medical Settlement Agreement) from and after the date of termination; provided that to the extent the BP Parties make Settlement Payments to Economic Class Members that filed Claims prior to the termination of the Economic Agreement, then within 15 days after the end of each calendar quarter thereafter, the BP Parties shall pay into the Common Benefit Fee and Costs Fund an amount equal to 6% (six percent) of the aggregate Settlement Payments paid under the Economic Agreement during such calendar quarter (less any payments made prior to the termination of the Economic Agreement); and provided further that, notwithstanding anything to the contrary herein in paragraph 4b or 4c or otherwise, in no event shall the total amounts paid into the Common Benefit Fee and Costs Fund at any time (including the Initial Payment, any additional amounts paid pursuant to paragraphs 4b and 4c, and any amounts paid pursuant to this paragraph 4g) exceed the amount of the Common Benefit Fee and Cost Award, in the aggregate.
5
5. Prior to the Final Fee and Costs Payment Date, no amounts shall be paid by or out of the Common Benefit Fee and Costs Fund, other than (i) the Initial Payment, or (ii) from and after the occurrence of the Effective Date under the Medical Settlement Agreement, any payments to the Common Benefit Fee and Costs Fund that are or were made under paragraph 4c
6
above in respect of the Medical Settlement Agreement. If the Economic Agreement is terminated prior to the occurrence of the Effective Date, Economic Class Counsel may petition the Court for an order approving disbursement of amounts in the Common Benefit Fee and Cost Fund (and the BP Parties will not oppose any such petition). To the extent the Court enters an order approving disbursement of any or all amounts in the Common Benefit Fee and Cost Fund, such amounts in the Common Benefit Fee and Cost fund shall be paid to Class Counsel pursuant to the order of the Court. If Economic Class Counsel has not filed such a petition within 120 days after termination of the Economic Agreement, or if the Court denies such petition in whole or in part, or if the Court grants an order for disbursement of less than all amounts in the Common Benefit Fee and Cost Fund, then all remaining amounts in the Common Benefit Fee and Cost Fund shall promptly be repaid to the BP Parties.
6. The BP Parties, the Plaintiffs under the Economic Agreement (on behalf of themselves and the Economic Class Members), and the Medical Benefits Class Representatives under the Medical Settlement Agreement (on behalf of themselves and the members of the Medical Class) hereby stipulate and agree as follows:
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a.
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All payments into the Common Benefit Fee and Costs Fund are common benefit and/or Rule 23(h) fees, costs and expenses within the meaning of applicable law, including Fed. R. Civ. P. 23(h), Pretrial Order No. 9, and the Holdback Order;
b.
Upon the full payment of the Common Benefit Fee and Costs Award, BP and the Released Parties shall be immediately and fully discharged from any and all further liability or obligation whatsoever with respect to any and all common benefit and/or Rule 23(h) attorneys’ fees, costs and expenses
7
incurred by or on behalf of the Economic Class or the Medical Class, or any member thereof, in respect of, or relating in any way to, directly or indirectly, any and all Released Claims under the Economic Agreement, Released Claims under the Medical Settlement Agreement, the Action under the Economic Agreement, or the Medical Action.
c. Other than (i) the payments by the BP Parties of the Common Benefit Fee and Cost Award into the Common Benefit Fee and Cost Fund, and (ii) payments by the Common Benefit Fee and Costs Fund to Class Counsel pursuant to any order of the Court, neither BP nor any of the Released Parties, nor the Claims Administrator, the Claims Administration Staff, nor the Common Benefit Fee and Costs Fund shall have any liability whatsoever in respect of or for any
attorney’s fees, costs or expenses incurred by or on behalf of the Economic
Class or the Medical Class, or any member thereof, or any of their current or former counsel in respect of the Released Claims under the Economic Agreement, the Released Claims under the Medical Settlement Agreement, the Action or the Medical Action, or by any other entity or person, including Halliburton or Transocean, in respect of any Released Claims or Assigned Claims under the Economic Agreement, Released Claims under the Medical Settlement Agreement or in any way relating to the Action or the Medical Action.
d. The BP Parties and Class Counsel agree to request, and will not contest or oppose, that the order approving the Common Benefit Fee and Costs Award will include the language set forth in this paragraph 6.
8
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Neither BP nor any of the Released Parties shall have any responsibility, obligation or liability of any kind whatsoever with respect to how the Common Benefit Fee and Costs Award is allocated and distributed among any counsel for the Economic Class or the Medical Class, or any member thereof, which allocation and distribution is the sole province of Class Counsel to recommend, and the Court to decide.
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The Claims Administrator and the Claims Administration Staff shall be directed that, where a Claimant is represented by counsel, any Settlement Payment (a) shall be by check
-
made payable to both the Claimant and his, her or its designated counsel (“Designated Counsel”), and (b) shall be made only after the receipt of a written acknowledgment by the Claimant and the Designated Counsel that funds received fully and finally satisfy any and all fees and costs in respect to representation of the Claimant by any counsel (including but not limited to any asserted by lien or privilege) in connection with the Claim and rights of such counsel to them.
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“Economic Agreement” means the Deepwater Horizon Economic and Property Damages Settlement Agreement Dated April 18, 2012. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Economic Agreement.
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“Medical Action” means Plaisance, et al., individually and on behalf of the putative Medical Benefits Settlement Class v. BP Exploration & Production Inc., et al.
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“Medical Settlement Agreement” means the Deepwater Horizon Medical Benefits Class Action Settlement Agreement dated April 18, 2012.
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“Medical Settlement Payments” means payments of compensation for Specified Physical Conditions (as defined in the Medical Settlement Agreement) and payments in respect
9
of visits of the Periodic Medical Consultation Program (as defined in the Medical Settlement Agreement).
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“Other Economic Benefits” means payments under the Economic Agreement with respect to the Gulf Tourism and Seafood Promotional Fund and the Supplemental Information Program Fund.
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“Other Medical Benefits” means payments under the Medical Settlement Agreement for the Gulf Region Health Outreach Program (as defined in the Medical Settlement Agreement).
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“Other Settlement Benefits” means, collectively, Other Economic Benefits and Other Medical Benefits.
