EXHIBIT 10.22
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SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement"), is made as of
October 1, 1996, by and between ACTION INDUSTRIES, INC. ("Action"),
a Pennsylvania corporation and ALLEGHENY CAPITAL GROWTH LIMITED
PARTNERSHIP (formerly, Allegheny Industrial Park, L.P.), a Delaware
limited partnership (the "Partnership").
Background
The parties hereto entered into a sale and leaseback
arrangement pursuant to which Action sold to the Partnership and
simultaneously leased back from the Partnership certain real
property, improvements and personalty located in Harmar Township,
Pennsylvania (the "Property") and, in connection therewith, Action
lent the Partnership $13,900,000.00 to purchase the Property as
evidenced by a Promissory Note in said amount dated June 29, 1990
(the "$13,900,000.00 Note"). Concurrently with delivery of the
$13,900,000.00 Note and transfer of the Property, the Partnership
leased the Property back to Action pursuant to a Lease (the "Lease
Agreement") also dated June 29, 1990. On or about March 26, 1991,
the Partnership repaid the $13,900,000.00 Note but a portion of
said $13,900,000.00 Note, namely, $3,500,000.00, was repaid with
the proceeds of a loan in the amount of $3,500,000.00 made by
Action to the Partnership and evidenced by the Partnership's Note
(the "Original Note") to Action in the amount of $3,500,000.00
dated March 26, 1991. Action agreed to make the $3,500,000.00 loan
evidenced by the Original Note pursuant to a Loan Agreement dated
February 1991 (the "Existing Loan Agreement"), which superseded two
prior loan agreements relating to the same general subject, one
dated August 14, 1990 (the "First Loan Agreement") and one dated
January 31, 1991 (the "Second Loan Agreement"). The Lease
Agreement was amended in connection with the First Loan Agreement,
all pursuant to a First Amendment to Lease Agreement dated August
14, 1990 (the "First Lease Amendment"). The Lease Agreement was
further amended in connection with the Second Loan Agreement by a
Second Amendment to Lease dated January 31, 1991 (the "Second Lease
Amendment") and was still further amended in connection with the
Existing Loan Agreement, all pursuant to a Restated Second
Amendment to Lease Agreement dated February 4, 1991 (the "Restated
Second Amendment") (the Lease Agreement as amended by the First
Lease Amendment, the Second Lease Amendment and the Restated Second
Amendment is hereinafter collectively referred to as the "Current
Lease").
The Original Note had a stated maturity date of March 26,
1995. The Partnership has alleged that the maturity date of the
Original Note was extended and did not pay off the principal
outstanding as of March 26, 1995. Action disputes that the
maturity date of the Original Note was ever extended. Action has
alleged the amount of rent due under the Current Lease was modified
after March 26, 1995 and also has claimed a right to offset all or
a portion of the remaining rent due under the Current Lease against
amounts due under the Original Note. The Partnership has alleged
that the rent provisions of the Current Lease were not modified and
has claimed that Action is in default of the Current Lease by
virtue of its failure to pay the full rent due under the Current
Lease and has alleged that Action has no right to offset said
unpaid portions of the rent against the Original Note.
Action currently subleases a portion of the Warehouse Space
(as defined in the Current Lease) to Executive Warehouse, Inc.
("EWI") pursuant to a sublease dated February 19, 1996 (the "EWI
Sublease"). EWI and the Partnership intend to execute a new lease
for the entire Warehouse Space (the "EWI Lease"). The date on
which the EWI Lease becomes effective is hereinafter referred to as
the "Effective Date".
To resolve their differences, the parties have agreed, among
other things, to (a) amend and restate the Current Lease by
executing and delivering an Amended and Restated Lease Agreement in
the form of Exhibit A hereto (the "New Lease") and (b) cancel the
Original Note, and terminate the obligations of the parties under
the Existing Loan Agreement, upon delivery to Action of an executed
Promissory Judgment Note in the form of Exhibit B hereto (the "New
Note") and an executed Supplemental Promissory Judgment Note in the
form of Exhibit C hereto (the "Supplemental Note").
This Agreement, the New Lease, the New Note and the
Supplemental Note (together with such other agreements, documents
and instruments, if any, as may be contemplated hereby or thereby,
the "Transaction Documents") are inter-related and are given to
resolve differences relating to the Current Lease and the Original
Lease and arise out of the same transaction.
Terms
NOW THEREFORE, in consideration of the mutual promises
contained herein, and intending to be legally bound, the parties
hereto agree as follows:
1. Execution and Delivery of Transaction Documents.
Concurrently with its execution and delivery hereof (a) Action will
execute and deliver to the Partnership the New Lease and will
deliver to its counsel, in escrow, the Original Note and (b) the
Partnership will execute and deliver to Action the New Lease, the
New Note and the Supplemental Note. The New Lease, the New Note
and the Supplemental Note will become effective by their own terms
on the Effective Date without further action by the parties. Upon
the occurrence of the Effective Date, Action's counsel shall
deliver to the Partnership the Original Note marked "Canceled."
2. Effect of Transaction Documents Becoming Effective.
Upon the Effective Date, the Current Lease, the Original Note and
the Existing Loan Agreement shall all be deemed to have been
terminated (and, in the case of the Original Note, canceled,
irrespective of whether it has been delivered to the Partnership)
and neither party shall have any further liability thereunder,
except for, in the case of Action, obligations and liabilities
arising or accruing under the Current Lease on or before the
Effective Date or which survive the expiration of the Current Lease
(other than liabilities consisting of, or arising out of, Action's
failure to pay Annual Office Rent or Annual Warehouse Rent
thereunder in an aggregate amount of more than $97,000 per month).
3. Representations and Warranties of Action. Action
represents and warrants to the Partnership as follows as of the
date hereof and as of the Effective Date:
(a) Organization and Good Standing. Action is a
corporation duly organized and validly existing under the laws of
the Commonwealth of Pennsylvania.
(b) Corporate Power and Authority. Action has the
requisite corporate power and corporate authority to (i) own its
properties and conduct its business as presently conducted and (ii)
make, execute, deliver and perform the Transaction Documents to
which it is a party.
(c) Due Authorization; Enforceability. The execution,
delivery and performance of the Transaction Documents to which it
is a party have been duly authorized by all necessary corporate
action on the part of Action, and constitute, or when executed and
delivered will constitute, the legal, valid and binding obligations
of Action, enforceable against it in accordance with their
respective terms except as limited by bankruptcy, insolvency and
other laws which affect the enforcement of creditors' rights and by
general equitable principles. Except for the consent of Foothill
Capital Corporation, which consent has been obtained, no consent or
authorization by any third party is required to enable Action to
carry out the transactions contemplated by the Transaction
Documents to which it is a party.
(d) No Violation of Law or Agreements. The execution
and delivery of the Transaction Documents to which it is a party do
not, and the consummation of the transactions contemplated thereby
and the compliance with the terms, conditions and provisions
thereof will not, (i) contravene any provision of Action's articles
of incorporation or by-laws or (ii) conflict with, violate, or
result in a breach of or constitute a default (or an event which
would, with the passage of time or the giving of notice or both,
constitute a default) under any of the terms, conditions or
provisions of any material indenture, mortgage, loan or credit
agreement or any other agreement or instrument to which Action is
a party or by which it or any of its assets may be bound or
affected, any judgment or order of any court or governmental
department, commission, board, agency or instrumentality, domestic
or foreign, which names Action and is directed to Action or any of
its assets or any applicable law, rule or regulation.
(e) EWI Sublease.
(i) A true, accurate and complete copy of the EWI
Sublease has been delivered to the Partnership and there are no
amendments, modifications, side letters or understandings between
Action and EWI, except as set forth in the EWI Sublease or as
otherwise disclosed to the Partnership;
(ii) The amount of space currently subleased to EWI
under the EWI Sublease is 230,000 square feet and the amount of the
monthly rent payable therefor is the sum of $42,742;
(iii) Action will not modify, amend or change
the EWI Sublease or terminate the EWI Sublease nor accept any
amendment, modification, surrender or termination of the EWI
Sublease without the prior written consent of the Partnership,
which consent shall not be unreasonably withheld, except that
Action may sublease additional space to EWI in accordance with the
terms of the EWI Sublease;
(iv) The EWI Sublease is in full force and effect
and, to the best of Action's knowledge, no default exists
thereunder on the part of either EWI or Action nor has any event or
omission occurred which with the giving of notice or passage of
time would constitute a default thereunder;
(v) No security deposit or other sum or letter of
credit or other security has been paid by EWI under the EWI
Sublease or in connection therewith or otherwise; and
(vi) Action shall not settle or compromise any
claims which it may have against EWI under the EWI Sublease without
the prior written consent of the Partnership, which consent shall
not be unreasonably withheld.
4. Representations and Warranties of The Partnership. The
Partnership represents and warrants to Action as follows as of the
date hereof and as of the Effective Date:
(a) Organization and Good Standing. The Partnership is
a limited partnership duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b) Power and Authority. The Partnership has the
requisite power and authority to (i) own its properties and conduct
its business as presently conducted and (ii) make, execute, deliver
and perform the Transaction Documents to which it is a party.
(c) Due Authorization; Enforceability. The execution,
delivery and performance of the Transaction Documents to which it
is a party have been duly authorized by all necessary action on the
part of the Partnership, and constitute, or when executed and
delivered will constitute, the legal, valid and binding obligations
of the Partnership, enforceable against it in accordance with their
respective terms except as limited by bankruptcy, insolvency and
other laws which affect the enforcement of creditors' rights and by
general equitable principles. Except for the consent of
Metropolitan Life Insurance Company ("Metropolitan") and EWI, no
consent or authorization by any third party is required to enable
the Partnership to carry out the transactions contemplated by the
Transaction Documents to which it is a party. The Partnership will
use its reasonable efforts to obtain necessary consents from
Metropolitan and EWI.
(d) No Violation of Laws or Agreements. The execution
and delivery of the Transaction Documents to which it is a party do
not, and the consummation of the transactions contemplated thereby
and the compliance with the terms, conditions and provisions of
thereof by the Partnership will not, (i) contravene any provision
of the Partnership's Partnership Agreement or (ii) except for a
mortgage held by Metropolitan and related loan documents, and
except for the EWI Lease, conflict with, violate, or result in a
breach of or constitute a default (or an event which would, with
the passage of time or the giving of notice or both, constitute a
default) under any of the terms, conditions or provisions of any
material indenture, mortgage, loan or credit agreement or any other
agreement or instrument to which the Partnership is a party or by
which it or any of its assets may be bound or affected, any
judgment or order of any court or governmental department,
commission, board, agency or instrumentality, domestic or foreign,
which names the Partnership and is directed to the Partnership or
any of its assets or any applicable law, rule or regulation. The
Partnership will use its reasonable efforts to obtain necessary
waivers from Metropolitan and EWI.
5. Action Offset Rights. From and after the Effective Date
and so long as either the New Note or the Supplemental Note remains
outstanding, Action shall be entitled to offset against its
obligations to pay Annual Rent under and as defined in the New
Lease amounts owed to Action by the Partnership under the New Note
or the Supplemental Note which are in default beyond any applicable
cure period, first against amounts in default under the
Supplemental Note, then against amounts in default under the New
Note, subject to the following restrictions:
(a) such right of offset may not be exercised to the
extent that an offset would, after taking into account monthly base
rent actually paid under the EWI Lease, the New Lease and any other
lease then in effect with respect to the Property, reduce the
aggregate monthly rental payments made to the Partnership under
such leases to an amount which would be less than the amount then
due to the holder of the first motgage lien on the Property;
provided, that the Partnership shall pay all amounts so received in
respect of base rent to such first mortgage holder; and
(b) it is expressly understood and agreed that such
right of offset is subordinate to the rights of such first mortgage
holder and to the rights of EWI under the EWI Lease and, if either
of them or their designees shall obtain title to the Property, it
shall not be enforceable against either of them.
6. Partnership Offset Rights. From and after the effective
date of the New Lease, the Partnership shall be entitled to offset
against its obligations to pay amounts due under the New Note
amounts owed by Action under the New Lease which are in default
beyond any applicable cure period. If the New Lease is
disaffirmed, avoided or rejected in any bankruptcy, insolvency or
similar proceeding (collectively, a "Rejection"), the amount which
the Partnership shall be entitled to offset under the New Note for
periods after the date of Rejection shall be equal to (a) the
Annual Rent due under the New Lease for the remainder of the
originally stated term thereof, irrespective of such Rejection,
plus (b) the amount which Action would have been required to pay in
respect of Impositions (defined below) during the remainder of the
originally stated term thereof, irrespective of such Rejection,
minus (c) any rent and amounts paid in respect of Impositions by
any tenants who lease any of the space covered by the New Lease
during the remainder of the originally stated term thereof, net of
all expenses incurred by the Partnership in reletting such space.
As used herein, "Impositions" shall mean all CAM Charges, Outside
Common Area Expenses, real estate taxes and assessments and
insurance on the Building and the Land (as all of such terms are
defined in the New Lease). The amount owed by Action in respect of
Impositions which have not been determined as of the date of
Rejection shall be equal to the amount of Impositions for which
Action was liable during the 12-month period immediately preceding
the date of Rejection multiplied by the number of years remaining
in the term of the New Lease, with partial years being pro rated
accordingly. The parties acknowledge and agree that the rights of
the Partnership under this Section shall not be affected or
impaired by any Rejection.
7. Material Inducement. The parties acknowledge and agree
that the provisions of Sections 5 and 6 are material inducements to
each party entering into the Transaction Documents.
8. Additional Agreements.
(a) Notwithstanding anything to the contrary set forth
in the Current Lease, the parties agree that Action shall not be in
default for non-payment of Annual Rent thereunder if it pays Annual
Rent at the rate of $97,000 per month through the Effective Date
(if the Effective Date occurs) or such earlier date as this
Agreement is terminated pursuant to subsection (d) below. After
giving effect to the previous sentence (and subject to subsection
(d) below if the Effective Date does not occur), the Partnership
agrees that Action has paid Annual Rent through September 30, 1996.
Except as otherwise provided in this subsection, Action remains
responsible for the payment and performance of all of its
obligations under the Current Lease until the same is terminated or
expires.
(b) Amounts paid by Action under the Current Lease in
respect of Annual Rent and additional rent for periods after the
Effective Date shall be pro rated as of the Effective Date.
(c) The parties shall each use their reasonable best
efforts to cause the Effective Date to occur. Without limiting the
generality of the foregoing, Action shall comply with its
maintenance, repair and replacement obligations under the Current
Lease at all times prior to the Effective Date.
(d) If the Effective Date does not occur on or before
December 31, 1996, then either party shall have the right, at any
time thereafter but prior to the Effective Date by giving written
notice to the other to such effect, to terminate this Agreement;
provided, that if the Effective Date does not occur by such date
due to the act or omission of either party, then such party shall
have no right to give such notice. In addition, if the Partnership
terminates the Current Lease as permitted thereunder prior to the
Effective Date, then the Partnership shall have the right to
teminate this Agreement. If this Agreement is so terminated then
the Original Note, the Existing Loan Agreement and the Current
Lease shall remain in full force and effect and the parties shall
have their rights and obligations thereunder as if this Agreement
had never existed; provided, that the obligation of (i) the
Partnership to pay interest on the Original Note and (ii) Action to
pay Annual Rent and additional rent under the Current Lease shall
be deemed to have been satisfied in full through June 1, 1996.
(e) Notwithstanding anything to the contrary set forth
in the New Note, if required by the holder of the first mortgage
lien on the Property or by EWI, Action will extend the term of the
New Note, including without limitation the date set forth in
Paragraph 3(a) of the New Note, but in no event beyond the tenth
anniversary of the Effective Date.
(f) From time to time upon the written request of
Action, the Partnership shall confirm in writing that none of the
following events or conditions has occurred from and after the date
of this Agreemant or, if any such an event has occurred, shall give
to Action a written description of such event: (i) the incurrence
by the Partnership of any obligation for borrowed money owed to a
bank or other financial institution ("Indebtedness") or any
refinancing of any Indebtedness; (ii) a default in respect of any
Indebtedness or an event which, with the giving of notice or the
passage of time, will constitute such a default, but only if the
Partnership has received notice of such default or event from its
lender; (iii) the acceleration of any Indebtedness or the
commencement by the holder of any Indebtedness of any action or
proceeding to enforce its remedies in respect thereof; or (iv) any
transfer of the Property or the Partnership or any interest
therein. ANY REQUEST MADE BY ACTION UNDER THIS SUBSECTION SHALL
REFERENCE THIS SUBSECTION AND THE FACT THAT THE FAILURE OF THE
PARTNERSHIP TO RESPOND TO SUCH REQUEST CONSTITUTES A DEFAULT UNDER
THE NEW NOTE AND THE SUPPLEMENTAL NOTE.
9. Nature and Survival of Representations. The
representations and warranties of the Partnership and Action
contained in this Agreement or in any certificate or other document
delivered pursuant to this Agreement, shall be deemed to constitute
representations and warranties of the respective party delivering
the same and shall survive the Effective Date until the New Note
shall have been paid in full.
10. Voluntary Agreement. EACH OF THE PARTIES HERETO
REPRESENTS AND WARRANTS THAT IT IS REPRESENTED BY LEGAL COUNSEL OF
ITS CHOICE AND THAT IT HAS CONSULTED WITH ITS COUNSEL REGARDING
THIS AGREEMENT, THAT IT IS FULLY AWARE OF THE TERMS CONTAINED
HEREIN AND THAT IT HAS VOLUNTARILY AND WITHOUT COERCION OR DURESS
OF ANY KIND ENTERED INTO THIS AGREEMENT.
11. Costs and Expenses. Each party will pay its own costs
and expenses, including without limitation its legal accounting and
financial advisory fees, of its negotiation and performance of and
compliance with the terms and conditions of this Agreement and the
transactions contemplated hereby.
12. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to
have been duly given if personally delivered or, if mailed, when
mailed by United States first-class, certified or registered mail,
postage prepaid, to the other party at the following addresses (or
at such other address as shall be given in writing by any party to
the other):
If to the Partnership, to
J.S. Karlton Company, Inc.
75 Holly Hill Lane
Suite 300
Greenwich, CT 06830
Attn: John S. Karlton
With a required copy to:
Carolan & Greeley
65 Franklin Street
Boston, MA 02710
Attn: Alfred J. Carolan, Jr., Esq.
If to Action, to:
Action Industries, Inc.
460 Nixon Road
Cheswick, Pennsylvania 15024
Attn: T. Ronald Casper
With a required copy to:
Cohen & Grigsby, P.C.
2900 CNG Tower
625 Liberty Avenue
Pittsburgh, PA 15222
Attn: Neil F. Siegel, Esq.
13. Successors and Assigns. This Agreement, and all rights
and powers granted hereby, will bind and inure to the benefit of
the parties hereto and their respective successors and assigns.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Pennsylvania.
15. Headings. The headings preceding the text of the
sections and subsections hereof are inserted solely for convenience
of reference, and shall not constitute a part of this Agreement,
nor shall they affect its meaning, construction or effect.
16. Amendment and Waiver. The parties may by mutual
agreement amend this Agreement in any respect, and any party, as to
such party, may (a) extend the time for the performance of any of
the obligations of any other party, (b) waive any inaccuracies in
representations by any other party, (c) waive compliance by any
other party with any of the agreements contained herein and
performance of any obligations by such other party, and (d) waive
the fulfillment of any condition that is precedent to the
performance by such party of any of its obligations under this
Agreement. To be effective, any such amendment or waiver must be
in writing and be signed by the party against whom enforcement of
the same is sought.
17. Entire Agreement. This Agreement and the Exhibits
hereto, together with the New Lease and the Current Lease (as
modified by this Agreement) each of which is hereby incorporated
herein, set forth all of the promises, covenants, agreements,
conditions and undertakings between the parties hereto with respect
to the subject matter hereof, and supersede all prior and
contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written.
18. Effect of Invalidity of Provisions. In case any one or
more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provisions hereof so long as the provision
rendered invalid, illegal or unenforceable does not materially
adversely affect the basic economic bargain of the parties hereto,
and this Agreement shall be construed as if such invalid, illegal
or unenforceable provision had not been contained herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date and year first above written.
ACTION INDUSTRIES, INC.
By: T. RONALD CASPER
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Printed Name: T. RONALD CASPER
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Title: PRESIDENT/CEO
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ALLEGHENY CAPITAL GROWTH LIMITED
PARTNERSHIP
By: Third Pennsylvania Holding
Corporation, its General
Partner
By: JOHN KARLTON
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Printed Name: JOHN KARLTON
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Title: PRESIDENT
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