exv10w1



 





Exhibit 10.1


SETTLEMENT AGREEMENT AND MUTUAL RELEASE




          This Settlement Agreement and Mutual Release (the “Settlement Agreement”) is entered into as
of this 24th day of January, 2008 (the “Settlement Date”), by and between HUDSON
LOGISTICS, INC., a Delaware corporation, having an address at 177 Madison Avenue, Morristown, NJ
07960 (hereinafter “HLI”), HUDSON LOGISTICS LOADING, INC., a Delaware corporation, having an
address at 177 Madison Avenue, Morristown, NJ 07960 (hereinafter “HLL”) (HLI and I-ILL are
hereinafter collectively referred to as “Assignors”), CHARTWELL INTERNATIONAL, INC., a Nevada
corporation and the parent of HLI and HLL, having an address at 177 Madison Avenue, Morristown, NJ
07960 (hereinafter “Chartwell”), IMRE ESZENYI, an individual, having an address at 177 Madison
Avenue, Morristown, NJ 07960 (“Eszenyi”), RAYMOND KALAFSKY, an individual, having an address at 115
Arnot Place, Wood-Ridge, NJ 07075 (“Kalafsky”), NEW YORK & GREENWOOD LAKE RAILWAY, a New Jersey
corporation, having an address at Erie Railroad Station, 46 High Street, P.O. Box 106, Glen Ridge,
NJ 07028 (“NYGL”), and NORTHERN & BERGEN RAILROAD, LLC, a New Jersey limited liability company,
having an address at 411 Hackensack Avenue, Hackensack, NJ 07601 (“NBR”). HLI, FILL, Chartwell,
Eszenyi, Kalafsky, NYGL and NBR are hereinafter collectively referred to as the “Parties.”




WITNESSETH




          WHEREAS, NYGL is an interstate rail carrier with a truck-to-rail transloading facility
(“Facility”) located on its railroad property in the City of Passaic, Passaic County, New
Jersey. The Facility receives dry non-hazardous construction and demolition debris from local
businesses that is shipped from the Facility exclusively by rail to disposal facilities outside
the State of New Jersey; and




          WHEREAS, HLI and HLL are wholly-owned subsidiaries of Chartwell; and




          WHEREAS, in August 2006, Chartwell purchased two contracts with respect to the Facility out of
the Chapter 11 bankruptcies of Steel Wheels Transport, LLC (“Steel Wheels”) and Team G Loading, LLC
(“Team G”) pending before the Honorable Donald H. Steckroth of the United States Bankruptcy Court
for the District of New Jersey (“Bankruptcy Court”). In re Steel Wheels Transport, LLC, U.S. Bank.
Ct., D.N.J., Case No. 06-15377; and In re Team G Loading, LLC, U.S. Bank. Ct., D.N.J., Case No.
06-15378. The contracts included a Facility Capacity Agreement (“FCA”), dated January 7, 2005,
between Steel Wheels and NYGL (a true and correct copy of which is attached as Exhibit A), and a
Rail Car Loading Agreement (“RCLA”), also dated January 7, 2005, between Team G and NYGL (a true
and correct copy of which is attached as Exhibit B); and




          WHEREAS, pursuant to an Order of the Bankruptcy Court dated August 17, 2006 (a true and
correct copy of which is attached as Exhibit C), on August 24, 2006 an Assignment, Assumption, and
Novation Agreement was entered into by and among Steel Wheels and Team G, as assignors, HLI and
HLL, as assignees, and NYGL, with respect to
the FCA and the RCLA (“Assignment”) (a true and correct copy of which is attached as Exhibit
D). The Assignment





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provided that the transaction documented thereby “closed” on August 24, 2006 and became effective
on the date the above-referenced Order (Ex. C) became binding, final and non-appealable by all
parties to the Bankruptcy Proceedings pursuant to Fed. R. Bankr. P. 9006(a), or by approximately
late August 2006; and




          WHEREAS, on or about May 23, 2007, HLI and HLL commenced an action in the Superior Court of
New Jersey, Chancery Division – General Equity Part, Morris County, entitled Hudson Logistics,
Inc. and Hudson Logistics Loading, Inc. v. New York & Greenwood Lake Railway and Northern & Bergen
Railroad, LLC, Docket No. C-76-07, which was subsequently transferred to the Law Division of the
same Court, Docket No. L-001745-07 (the “Action”), raising certain claims against NYGL and
NBR, and in which NYGL filed counterclaims against HLI and HLL and a third party complaint against
Chartwell, Eszenyi and Kalafsky; and




          WHEREAS, on or about July 31, 2007, NYGL served and subsequently filed an application for an
order to show cause with temporary restraints enjoining HLI, HLL, Chartwell, Eszenyi and Kalafsky
from assigning or transferring any rights of HLI and JILL, including but not limited to changing
control of HLI and HLL, with respect to the FCA and RCLA to any third party; and




          WHEREAS, on August 1, 2007, the Honorable Rosemary Ramsay granted NYGL’s application and
entered an Order to Show Cause with Temporary Restraints, enjoining HLI, HLL, Chartwell, Eszenyi
and Kalafsky from assigning or transferring any rights of HLI and HLL, including but not limited
to changing control of HLI and HLL, with respect to the FCA and RCLA to any third party, pending
further order of the Court (the “OTSC”); and




          WHEREAS, on August 27, 2007, at a hearing before Judge Ramsay, for the reasons placed on
the record, the Court ordered that the restraints in the OTSC would remain in effect pending a
further hearing in the Action scheduled to be held on September 10, 2007; and




          WHEREAS, HLI and HLL have informed NYGL that (i) HLI desires to assign to Perry New Jersey
I, LLC, a Delaware limited liability company (“Perry”), and Perry desires to assume from HLI, the
FCA; and (ii) HLL desires to assign to Perry, and Perry desires to assume from HLL, the RCLA (the
“Assignments/Assumptions”); and




          WHEREAS, HLI, HLL, Chartwell, Eszenyi and Kalafsky, on the one hand, and NYGL and NBR, on
the other hand, have agreed to resolve fully and finally all claims alleged in the Action
subject to the terms and conditions in this Settlement Agreement; and




          WHEREAS, subject to the terms and conditions in this Settlement Agreement and
in an Assignment and Assumption Agreement, a true and correct copy of which is attached
hereto as Exhibit E (“Assignment and Assumption Agreement”), which is incorporated herein by
reference, NYGL has agreed to give its consent to the Assignments/Assumptions of the FCA and the
RCLA to Perry; and




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          NOW, THEREFORE, intending to be legally bound and in consideration of the promises and of the
releases, representations, covenants, and obligations herein contained, the Parties agree as
follows:




AGREEMENT





	 	1.	 	The “Closing” of this Settlement Agreement shall occur on or before 12:00
noon on January 24, 2008, such date and time being of the essence.
	 
	 	2.	 	Prior to the Closing of this Settlement Agreement, HLI and HLL shall
repair the building of the Facility and return it to the condition it was in when
they began operations there, including, but not limited to, repairing the damaged
wall which is currently bulging and protruding near the railroad track.
	 
	 	3.	 	At the Closing of this Settlement Agreement, HLI, HLL and Chartwell shall
have paid all outstanding host community benefit payments and any and all applicable
penalties and late fees that are due and owing to the City of Passaic, New Jersey
under the Host Community Benefit Agreement (a true and correct copy of which is
attached as Exhibit F) through and including the date of the Closing of this
Settlement Agreement, and shall have submitted all associated tonnage records and
certified statements required by the City of Passaic under the Host Community Benefit
Agreement (Ex. F), and shall provide to NYGL a receipt from the City of Passaic signed
by an authorized representative of the City of Passaic specifically stating that “all
monthly host community benefit payments and any and all applicable penalties or late
fees that are due through and including the date of the Closing of the Settlement
Agreement, and all associated tonnage records and certified statements, have been paid
in full and submitted to the City of Passaic in accordance with the Host Community
Benefit Agreement, a true and correct copy of which is attached hereto.” As confirmed
by the letter from Sheri K. Siegelbaum, Esquire, counsel for the City of Passaic, to
HLI, dated January 22, 2008, a copy of which has been provided to the Parties by the
undersigned counsel for HLI, HLL, Chartwell and Eszenyi (and a true and correct copy
of which is attached as Exhibit G), the total sum due to the City of Passaic
through January 21, 2008 is $109,593.65.
	 
	 	4.	 	At the Closing of this Settlement Agreement, HLI, HLL and Chartwell, on
behalf of themselves, Eszenyi and Kalafsy, shall pay to NYGL a total sum of one
hundred and forty-four thousand dollars ($144,000), which amount shall be wire
transferred to the following account of NYGL’s counsel:






	 	 	 	Citizens Bank, 512 Pennsylvania Avenue, Fort Washington, PA 19034 Account
Holder: Robert A. Klein, Esquire, Partner, Berkowitz Klein, LLP

Routing No.: 036076150

Account No.: 6208026990





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	5.	 	Subject to the full and complete satisfaction of the terms and conditions under paragraphs
2, 3 and 4 above, the Parties shall individually and collectively dismiss the Action and all
claims therein with prejudice by causing their respective attorneys and Kalafsky (the only
party not represented by counsel herein), individually, to execute and deliver to NYGL’s
attorney for filing in the Action in the Superior Court of New Jersey, Law Division, Morris
County, a stipulation of dismissal in the form and substance as attached hereto as
Exhibit H (the “Stipulation of Dismissal”).
	 
	6.	 	(a) Subject to and without waiver of any of the terms and conditions herein and in the
Assignment and Assumption Agreement (Ex. E), HLI, HLL, Chartwell, Eszenyi and Kalafsky, on
behalf of themselves and all parties claiming by, through or under them, (to the extent
applicable) their directors, officers, shareholders, principals, partners, employees, agents,
affiliates, attorneys, subsidiaries, parent entities, sister entities, successors,
predecessors, executors, administrators, insurers and assigns, hereby irrevocably and
unconditionally release NYGL and NBR, and their respective directors, officers, shareholders,
principals, partners, employees, agents, affiliates, attorneys, subsidiaries, parent entities,
sister entities, successors, predecessors, executors, administrators, insurers and assigns
from any and all liabilities, obligations, promises, agreements, causes of action, and rights
of any nature whatsoever, known or unknown, which are the subject or arise out of the Action
or which otherwise arise out of or relate to the FCA and the RCLA (which agreements the
Parties acknowledge are currently valid, enforceable and in effect) through the date hereof.






(b) Subject to and without waiver of any of the terms and conditions herein and in the
Assignment and Assumption Agreement (Ex. E), NYGL and NBR, on behalf of themselves and all
parties claiming by, through or under them, their directors, officers, shareholders,
principals, partners, employees, agents, affiliates, attorneys, subsidiaries, parent
entities, sister entities, successors, predecessors, executors, administrators, insurers
and assigns, hereby irrevocably and unconditionally release, HLI, IILL, Chartwell, Eszenyi
and Kalafsky, on behalf of themselves and all parties claiming by, through or under them,
(to the extent applicable) their directors, officers, shareholders, principals, partners,
employees, agents, affiliates, attorneys, subsidiaries, parent entities, sister entities,
successors,
predecessors, executors, administrators, insurers and assigns, from any and all
liabilities, obligations, promises, agreements, causes of action, and rights of any nature
whatsoever, known or unknown, which are the subject or arise out of the Action or which
otherwise arise out of or relate to the FCA and the RCLA (which agreements the Parties
acknowledge are currently valid, enforceable and in effect) through the date hereof.




(c) The Parties each represent and warrant to the other that they have not assigned,
pledged, hypothecated and/or otherwise divested themselves and/or encumbered all or
any part of the claims being released hereby and that they hereby agree to indemnify
and hold harmless any party against whom any such claim so assigned, pledged,
hypothecated, divested and/or encumbered is asserted.



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	7.	 	This Settlement Agreement sets forth the entire agreement between the Parties hereto with
respect to the Action and supersedes any prior and contemporaneous agreements whether oral or
written between the Parties concerning the subject matter of this Settlement Agreement. This
Settlement Agreement (including the provisions of this sentence) may not be changed orally but
may be changed only in a writing signed by all Parties.
	 
	8.	 	This Settlement Agreement shall be governed by and construed in accordance with the internal
laws of the State of New Jersey without giving effect to any choice or conflict of law
provision or rule of any jurisdiction that would cause the application of the laws of any
jurisdiction other than the State of New Jersey. For all disputes arising out of this
Settlement Agreement, the Parties consent to the exclusive jurisdiction and venue of the
Morris County, New Jersey Superior Court.
	 
	9.	 	This Settlement Agreement shall be construed without regard to the Party or Parties
responsible for its preparation and shall be deemed to have been prepared jointly by the
Parties. If any provision of this Settlement Agreement is determined by a court to be
unenforceable as drafted, that provision shall be construed in a manner designed to effectuate
its purpose to the greatest extent possible under applicable law, and the enforceability of
other provisions shall not be affected.
	 
	10.	 	The waiver of one breach or default or any delay in exercising any rights will not constitute
a waiver of any subsequent breach or default. No term of this Settlement Agreement shall be
considered waived and no breach excused by either Party unless made in writing. No consent,
waiver, or excuse by the Parties, express or implied, unless in writing, shall constitute a
subsequent consent, waiver or excuse.
	 
	11.	 	All representations, warranties, covenants, terms, conditions, stipulations, and
provisions of this Settlement Agreement shall survive the Closing of the Settlement
Agreement, and thereafter shall be binding upon and inure to the
benefit of, and be enforceable by, the Parties, and their successors, and assigns.
	 
	12.	 	Except as specifically otherwise provided herein, this Settlement Agreement is intended for
the sole benefit of the Parties hereto. Nothing in this Settlement Agreement is intended to
or may be construed to give any person, firm, corporation, or other entity, other than the
Parties hereto (and, with respect to the assignment/assumption of the FCA and the RCLA, to
Perry), any rights pursuant to any provision or term hereof, and all provisions and terms of
this Settlement Agreement are and shall be for the sole and exclusive benefit of the Parties
to this Settlement Agreement.






	13.	 	This Settlement Agreement may be executed in counterparts and when taken
together shall constitute one and the same Settlement Agreement. Signatures to this
Settlement Agreement received by facsimile or other electronic means may and shall
be received and relied upon in the same manner as set forth in the Settlement
Agreement.




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	 	14.	 	The Superior Court of New Jersey, Law Division, Morris County, will retain
continuing jurisdiction over any disputes arising under or any proceeding to enforce
the terms of this Settlement Agreement. The Parties consent to personal jurisdiction
of the Superior Court of New Jersey, Law Division, Morris County, which shall be the
exclusive jurisdiction for purposes of litigating any disputes arising under or any
proceeding to enforce the terms of this Settlement Agreement.
	 
	 	15.	 	The Parties acknowledge that they have been advised of their right to consult
with an attorney prior to executing this Settlement Agreement, that they have consulted
with an attorney prior to executing this Settlement Agreement, that they have carefully
read and fully understand all of the provisions of this Settlement Agreement, and that
they are entering into this Settlement Agreement, including the releases and covenants
set forth in paragraph 6 above, knowingly, freely, and voluntarily in exchange for good
and valuable consideration. The Parties represent that, in executing this Settlement
Agreement, they have not relied and do not rely upon any representation or statement
made by any other party, other than those set forth herein.
	 
	 	16.	 	The Parties each represent and warrant to each other (with such other Party
reasonably relying upon said representations and warranties in entering into this
Settlement Agreement) that the execution, delivery and performance of this Settlement
Agreement and each instrument executed and to be executed in connection herewith, and
the consummation of the transactions provided for herein and therein, are and will be
within each Party’s power; have been duly authorized by all necessary action on each
Party’s behalf; and do not and will not contravene any law, regulation, judgment,
decree, order or award relating to each party or conflict with or result in any breach
of
the terms, conditions or provisions of, or constitute a default under each Party’s
charter, by-laws or other agreement to which either is a Party or by which either is
bound. This Settlement Agreement and each instrument executed and to be executed by
the Parties in connection herewith are and will be the legal, valid and binding
obligations of each enforceable against them in accordance with their respective
terms.





          IN WITNESS WHEREOF, the Parties and their counsel have executed this Settlement
Agreement as of the date first written above.




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	ATTEST:	 	HUDSON LOGISTICS INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

Secretary

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	HUDSON LOGISTICS LOADING INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

Secretary

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	CHARTWELL INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

Secretary

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 
	WITNESS:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	IMRE ESZENYI	 	 
	 
	 	 	 	 	 	 
	WITNESS:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	   	 	 
	 	 	RAYMOND KALAFSKY	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	NEW YORK & GREENWOOD
LAKE RAILWAY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

Secretary

	 	 
	 	 

	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	NORTHERN & BERGEN RAILROAD, LLC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

Secretary

	 	 
	 	 

	 	 







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