Exhibit 10.1
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Settlement Agreement"),
effective as of November 16, 2005 (the "Effective Date"), is entered into by and
among XXXXXXX ENTERPRISES, INC. ("Xxxxxxx"), XXXXXXX X. XXXXXXX ("Xxxxxxx"),
RAIL WASTE HOLDINGS, LLC ("RWH"), OHIO WASTE LLC ("Ohio Waste"), R.W. RECYCLING,
LLC, ("RWR"), CHARTWELL INTERNATIONAL, INC. ("Chartwell"), and XXXXXXXXXXX X.
XXXXXX ("Xxxxxx"), (collectively, the "Parties").
WHEREAS, Xxxxxxx signed a Secured Promissory Note ("Note") in favor of RWH,
and said Note was secured by a mortgage ("Ohio Mortgage") to RWH, which Ohio
Mortgage was filed in the Xxxxx County Recorder's Office on January 10, 2005, as
Instrument No. 200501100001743;
WHEREAS, Xxxxxxx and RWH were named as defendants in a foreclosure action
filed in the Court of Common Pleas for Xxxxx County, Ohio in Case Number
05-CV-1747 entitled LFL Logistics Co. v. Minerva Enterprises, Inc., et al. (the
"Ohio Litigation");
WHEREAS, RWH and its subsidiaries Ohio Waste and RWR asserted a Cross-Claim
in the Ohio Litigation against Xxxxxxx alleging that Xxxxxxx had defaulted under
the terms of the Note and Mortgage ("Ohio Litigation Cross-Claim");
WHEREAS, on or about September 15, 2005 RWH sold and assigned all its
rights in the Ohio Mortgage to Chartwell;
WHEREAS, RWH and its subsidiaries Ohio Waste and RWR filed a motion to
substitute parties seeking to substitute Chartwell as the real party in interest
in place of RWH, Ohio Waste and RWR in the Ohio Litigation;
WHEREAS, Chartwell (and not RWH, Ohio Waste and RWR) is the real party in
interest with respect to the Ohio Mortgage and the Ohio Litigation Cross-Claim;
WHEREAS, RWH has asserted certain claims against Xxxxxxx and Xxxxxxx in the
Supreme Court of the State of New York for the County of New York in an action
bearing Index Number 650133/05 entitled Rail Waste Holdings, LLC v. Minerva
Enterprises, Inc. and Xxxxxxx X. Xxxxxxx filed June 15, 2005, which includes
claims for breach of contract, unjust enrichment and misrepresentation (the "New
York Litigation");
WHEREAS, Xxxxxxx and Xxxxxxx asserted Counterclaims in the New York
Litigation against RWH alleging misrepresentation ("New York Litigation
Counterclaims");
WHEREAS, Xxxxxxx might have asserted claims against Davino in the New York
Litigation alleging misrepresentation;
WHEREAS, RWH's claims in the New York Litigation relate to and arise out of
an alleged joint venture and an Air Rights Agreement between RWH and Xxxxxxx
("Joint Venture and Air Rights Agreement"); and
WHEREAS, the Parties wish to resolve all their claims, including but not
limited to their respective claims raised in the Ohio Litigation and in the New
York Litigation amicably and without expending the time, effort and expense of
additional litigation and trial;
NOW, THEREFORE, in consideration of the promises and covenants and
agreements of the Parties contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Payment. Xxxxxxx and Xxxxxxx shall pay to RWH, Xxxxxx and Chartwell the
total sum of Six Hundred Thirty Thousand Dollars ($630,000.00) (the "Payment").
Said Payment shall be provided to RWH, Xxxxxx and Chartwell by wire transfer to
"Chartwell International, Inc." by no later than 5:00 p.m., Eastern Standard
Time, on Wednesday, November 16, 2005. The Payment shall represent full payment
of any and all sums due to RWH, Ohio Waste, RWR, Xxxxxx, Chartwell, or their
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respective assignees, under the Ohio Mortgage and the Joint Venture and Air
Rights Agreement. Chartwell's receipt of the Payment shall be conclusive
evidence of the acceptance of the terms of this Agreement.
2. Dismissal With Prejudice. All claims that any of the Parties have
asserted or could have asserted in the Ohio Litigation or in the New York
Litigation shall be dismissed with prejudice, with waiver of all rights of
appeal and other judicial review, attorneys' fees and/or costs. Upon receipt of
the Payment, Chartwell shall direct its counsel to execute and file with the
Court of Common Pleas for Xxxxx County, Ohio a Stipulation of Dismissal With
Prejudice of All Claims and Cross-Claims in the form attached hereto as Exhibit
A; and RWH shall direct its counsel to execute and file with the Supreme Court
of the State of New York for the County of New York a Stipulation of Dismissal
With Prejudice of All Claims and Counterclaims in the form attached hereto as
Exhibit B.
3. Mutual Release. The Parties, together with their respective directors,
officers, managers, members, employees, successors, affiliates, agents,
representatives, assigns, and attorneys, in such capacities do hereby release,
acquit and fully and forever discharge each other of and from all actions,
causes of action, accounts, agreements, attorneys' fees, bonds, covenants,
contracts, controversies, claims, damages, demands, debts, executions,
judgments, liabilities, obligations, promises, predicate acts, reckonings,
suits, sums of money, trespasses and variances whatsoever, whether known or
unknown, contingent or fixed, in law, admiralty or equity, which the Parties now
have or ever had against each other from the beginning of the world to the date
of this Settlement Agreement, that relate to or arise out of the facts or
subject matter that were asserted or could have been asserted in the Ohio
Litigation and New York Litigation, provided that any obligations created by or
set forth in this Settlement Agreement shall not be released.
4. Release and Satisfaction of Ohio Mortgage. Upon receipt of the Payment,
Chartwell shall direct its counsel to execute and file with the Xxxxx County,
Ohio Recorder's Office a Release and Discharge of the Ohio Mortgage in the form
attached hereto as Exhibit C.
5. No Admission. This Settlement Agreement shall not be construed as a
concession or admission of any kind with respect to the claims of any party
hereto.
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6. Binding Effect. This Settlement Agreement shall be binding upon and
inure to the benefit of the Parties hereto, their representatives,
administrators, successors and assigns.
7. Voluntary Agreement - Good Faith Negotiations, No Duress or Coercion,
Representation by Counsel. The Parties hereby represent and warrant that they
are entering into this Settlement Agreement voluntarily and in good faith, and
that the terms contained herein are the product of good faith, arms-length
negotiations. The Parties further represent and warrant that this Settlement
Agreement is not the product of any threat, duress or coercion, and that each
side has had the full benefit of consultation with legal counsel of its choice
and is satisfied with the advice received from legal counsel. Each Party
expressly waives any claim against the other based upon, or arising from, the
negotiations leading up to this Settlement Agreement.
8. Construction. Each party has cooperated in the drafting and preparation
of this Settlement Agreement. Therefore, in any construction to be made of this
Settlement Agreement, a Party's participation in drafting shall not cause any
language to be construed against it.
9. Fees. The Parties agree to bear their own costs and attorneys' fees in
connection with the preparation and execution of this Settlement Agreement.
10. Ohio Law. This Settlement Agreement shall in all respects be
interpreted, construed, enforced and governed by and under the laws of the State
of Ohio.
11. Further Assurances. The Parties agree to execute and deliver any and
all additional papers and documents, and to perform any and all acts reasonably
necessary in connection with the performance of their obligations hereunder and
to carry out the intent of the Parties hereto. The Parties represent and warrant
to the other that they have full power and authorization to enter into this
Settlement Agreement, and that they have not assigned, encumbered or in any way
transferred all or any of the claims covered by this Settlement Agreement. The
Parties hereto acknowledge and agree that each of the foregoing warranties and
representations is essential in the material terms of this Settlement Agreement,
without which the Parties would not have executed this Settlement Agreement nor
complied with its terms.
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12. Complete Understanding. The Parties acknowledge that this Settlement
Agreement contains the full and complete agreement between and among them, and
that there are no oral or implied agreements or understandings not specifically
so set forth. Each Party acknowledges that no other party, or agent or attorney
of any other party, or any person, firm, corporation or any other entity has
made any promise, representation, or warranty whatsoever, express, implied or
statutory, not contained herein, concerning the subject matter hereof, to induce
the execution of this Settlement Agreement. Each signatory also hereby
acknowledges that he, she or it has not executed this Settlement Agreement in
reliance on any promise, representation or warranty not contained herein.
13. Severability. Every provision of this Settlement Agreement is intended
to be severable. If any term or provision hereof is determined to be illegal or
invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity of the remainder of this Settlement Agreement.
14. Survival. Any and all of the terms and provisions of this Settlement
Agreement shall survive the execution and delivery of this Settlement Agreement
and shall continue in force and effect thereafter.
15. Gender and Tense. As used in this Settlement Agreement, the masculine,
feminine and neuter gender, and singular or plural number, shall each be deemed
to include all others whenever the context so indicates.
16. Separate Counterparts. This Settlement Agreement may be executed with
one or more counterparts, each of which, when so executed, shall, together
constitute one of the same instrument.
17. Captions. The captions appearing at the commencement of the paragraphs
hereof are descriptive only and for convenience of reference. Should there be
any conflict between any such caption and the paragraphs at the head of which it
appears, the paragraph, and not such caption, shall control and govern in the
construction of this Settlement Agreement.
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18. No Modifications Except in Writing. No amendment, supplement, change or
waiver of this Settlement Agreement or any of its provisions, or any future
representation, promise or condition in connection with the subject matter of
this Settlement Agreement, shall be enforceable unless made in a writing signed
by the Party against whom enforcement is sought.
19. Confidentiality. The parties, and each of them, agree that the terms
and conditions of this Settlement Agreement are confidential. No party shall
make any public or private statement about or disclosure of the terms and
conditions hereof, unless (1) required in or by filings made with the Securities
and Exchange Commission, by law, judicial order, or any listing agreement with a
national securities exchange or over-the-counter trading system to which any of
the parties is a party, (2) expressly authorized to do so by the other party,
whose authorization shall not be unreasonably withheld, or (3) necessary to the
performance of professional services by that party's attorneys or accountants.
Notwithstanding the foregoing, the parties may acknowledge that they have
entered into a settlement agreement and that their agreement does not attribute
liability or misconduct to any party.
20. Attorneys Fees. Should any party hereto bring an action or proceeding
for the purpose of enforcing this Settlement Agreement, then, in such an event,
the prevailing party shall be entitled to be reimbursed by the losing party for
all costs and expenses incurred as a result thereof, including, but not limited
to, actual attorney fees.
21. Ownership. Xxxxxxx voluntarily affirms that it has no right, title or
interest to that certain 2005 Brechbuhler 100 ton truck scale acquired by RWH
for use pursuant to the Joint Venture and Air Rights Agreement.
Signed as a sealed instrument as of the Effective Date stated above.
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XXXXXXX ENTERPRISES, INC.
By its duly authorized agent,
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Xxxxxxx X. Xxxxxxx, (Witness) Name:
President
XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx (Witness) Name:
RAIL WASTE HOLDINGS LLC
By its duly authorized agent,
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Name: Xxxxxx Xxxxxxx (Witness) Name:
Title: Pres.
OHIO WASTE LLC
By its duly authorized agent,
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Name: Xxxxxx Xxxxxxx (Witness) Name:
Title: Pres.
R. W. RECYCLING, LLC By its duly authorized agent,
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Name: Xxxxxx Xxxxxxx (Witness) Name:
Title: Pres.
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CHARTWELL INTERNATIONAL, INC.
By its duly authorized agent,
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Name:Xxxx Xxxxxxx (Witness) Name:
Title:Acting President
XXXXXXXXXXX X. XXXXXX
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Xxxxxxxxxxx X. Xxxxxx (Witness) Name:
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