|
EXHIBIT
10.1
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE
This Settlement Agreement and
Mutual Release (this “Agreement”) is made this 6
th
day of August 2007, by and
among U-Store-It, L.P., a Delaware limited partnership (the
“Operating Partnership”), U-Store-It Trust, a Maryland
real estate investment trust (“USI”), U-Store-It Mini
Warehouse Co., an Ohio corporation (“USI Warehouse”),
YSI Management LLC, a Delaware limited liability company
(“YSI”), U-Store-It Development, LLC, a Delaware
limited liability company (“USI Development”), Rising
Tide Development LLC, a Delaware limited liability company
(“Rising Tide”), Amsdell and Amsdell, an Ohio general
partnership (“Amsdell and Amsdell”), Robert J. Amsdell,
Barry L. Amsdell, Todd C. Amsdell, Kyle V. Amsdell, Dean Jernigan
and Kathleen A. Weigand.
R E C I T A L
S
WHEREAS, the Operating
Partnership, USI and YSI initiated a lawsuit captioned
U-Store-It Trust, et. al. v. Rising Tide Development, et. al
., Case No. 07-625562, in the Cuyahoga County Court of Common
Pleas, Cuyahoga County, Ohio (the “First Ohio
Lawsuit”); and
WHEREAS, Rising Tide and
Robert J. Amsdell filed a Counterclaim in the First Ohio Lawsuit
(the “Counterclaim”); and
WHEREAS, Rising Tide and
Robert J. Amsdell filed a Third Party Complaint in the First Ohio
Lawsuit (the “Third Party Complaint”); and
WHEREAS, Todd C. Amsdell
initiated a lawsuit captioned Todd Amsdell v. U-Store-It Trust,
et. al ., Case No. 07-626345, in the Cuyahoga County Court
of Common Pleas, Cuyahoga County, Ohio (the “Second Ohio
Lawsuit”); and
WHEREAS, the First Ohio
Lawsuit and the Second Ohio Lawsuit (together, “the Ohio
Litigation”) were consolidated; and
WHEREAS, Robert J. Amsdell
initiated a lawsuit captioned Robert J. Amsdell v. U-Store-It
Trust , Case No. WMN 07 1854, in the District Court of
Maryland, Baltimore, Maryland (the “Maryland
Litigation”); and
WHEREAS, the parties have
agreed to mutually waive and release the other parties of any and
all Claims (as defined in Section 1.3.1) which may exist
between them.
NOW, THEREFORE, the parties,
for and in consideration of the mutual promises contained herein,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, agree as
follows:
ARTICLE 1 – TERMS OF
THE SETTLEMENT
1.1 Execution of the
Ancillary Agreements . USI, the Operating Partnership, USI
Warehouse, YSI, Rising Tide, Amsdell and Amsdell, Robert J.
Amsdell, Todd C. Amsdell and Barry L. Amsdell, as applicable, agree
to execute the following ancillary agreements (the “Ancillary
Agreements”) contemporaneously with the execution of this
Agreement and each of the Ancillary Agreements is hereby made a
part of this Agreement:
| |
1.1.1 |
Purchase and Sale Agreement by and between the Operating
Partnership and Rising Tide attached hereto as Exhibit A
(the “2007 Acquired Properties Purchase
Agreement”). |
| |
1.1.2 |
Option Termination Agreement by and between the Operating
Partnership and Rising Tide attached hereto as Exhibit B
. |
| |
1.1.3 |
Property Management Termination Agreement by and among YSI, USI
and Rising Tide attached hereto as Exhibit C (the
“Property Management Termination”). |
| |
1.1.4 |
Marketing and Ancillary Services Termination Agreement by and
between USI Warehouse and Rising Tide attached hereto as Exhibit
D . |
| |
1.1.5 |
First Amendment to Lease by and between the Operating
Partnership and Amsdell and Amsdell, in the form attached hereto as
Exhibit E for the leases listed on Exhibit F attached
hereto (the “Leases”). |
| |
1.1.6 |
Modification of Noncompetition Agreement and Termination of
Employment Agreement by and between USI and Todd C. Amsdell
attached hereto as Exhibit G . |
| |
1.1.7 |
Modification of Noncompetition Agreement by and between USI and
Barry L. Amsdell attached hereto as Exhibit H . |
| |
1.1.8 |
Modification of Noncompetition Agreement and Termination of
Employment Agreement by and between USI and Robert J. Amsdell
attached hereto as Exhibit I . |
| |
1.1.9 |
Standstill Agreement by and among Todd C. Amsdell, Barry L.
Amsdell, Robert J. Amsdell and USI attached hereto as Exhibit
J . |
| |
1.1.10 |
Resignation Letter from Todd C. Amsdell to USI attached hereto
as Exhibit K . |
2
1.2 Dismissal of Pending
Litigation . Robert J. Amsdell, Todd C. Amsdell, Kyle V.
Amsdell, Rising Tide, the Operating Partnership, USI, YSI, USI
Development, Dean Jernigan and Kathleen A. Weigand hereby agree
that each will instruct their respective counsel to file, within
(7) days after the closing of the 2007 Acquired Properties
Purchase Agreement, a notice of Voluntary Dismissal, with prejudice
with each party to bear its own costs (the “Notice of
Dismissal”), of all Claims, including, but not limited to,
the Ohio Litigation, the Counterclaim, the Third Party Complaint
and the Maryland Litigation (collectively, the “Pending
Litigation”).
1.3 Mutual Releases .
This Section 1.3 is intended to embody full and final releases
among the parties.
| |
1.3.1 |
Definitions . For purposes of this Agreement, the term
“Claims” shall mean any and all manner of actions,
causes of action, demands, suits, rights, obligations, liabilities,
loss, sums of money, accounts, complaints, bills, covenants,
contracts, controversies, agreements, promises, damages, expenses,
interests, costs, attorney fees, judgments, compensation of any
nature, claims, counterclaims or cross-claims, whether in law or
equity, whether asserted or unasserted, of every kind and nature
whatsoever, arising out of or under or in any way related to
disputes that are the subject of (i) the business
relationships or agreements, including but not limited to the
Option Agreement by and between the Operating Partnership and
Rising Tide dated October 27, 2004, the Property Management
Agreement by and between YSI and Rising Tide dated October 27,
2004 and the Marketing and Ancillary Services Agreement by and
beween USI Warehouse and Rising Tide dated October 27, 2004,
by and among the parties hereto based on facts known to the parties
at the Effective Date, or (ii) the Pending Litigation or (iii)
any claims under the Age Discrimination in Employment Act of 1967
as amended by the Older Workers Benefit Protection Act (29 U.S.C.
Section 621 et seq.). Each party agrees that although they retain
the right to file a charge or complaint with or voluntarily
participate in an investigation by an administrative agency, each
party agrees to waive any relief from any such administrative
agency. |
| |
1.3.2 |
Mutual Release By and Among the Operating Partnership, USI,
USI Warehouse, YSI and USI Development and Rising Tide, Amsdell and
Amsdell, Robert J. Amsdell, Barry L. Amsdell, Todd C. Amsdell and
Kyle V. Amsdell . The parties listed in this Section 1.3.2
hereby forever release each other as follows: |
| |
(a) |
Each of the
Operating Partnership, USI, USI Warehouse, YSI and USI Development
on behalf of themselves and their respective subsidiaries,
affiliates, related companies, predecessors, successors, current
and former agents, partners, officers, directors, shareholders,
insurers, attorneys, employees, representatives and assigns hereby
releases, discharges and waives all Claims against each of Rising
Tide, Amsdell and Amsdell, Robert J. Amsdell, Barry L. Amsdell,
Todd C. Amsdell and Kyle V. Amsdell and their
|
3
| |
respective subsidiaries,
affiliates, related companies, predecessors, successors, current
and former agents, partners, officers, directors, shareholders,
insurers, attorneys, employees, representatives and
assigns.
|
| |
(b) |
Each of Rising Tide, Amsdell and Amsdell, Robert J. Amsdell,
Barry L. Amsdell, Todd C. Amsdell and Kyle V. Amsdell on behalf of
themselves and their respective subsidiaries, affiliates, related
companies, predecessors, successors, current and former agents,
partners, officers, directors, shareholders, insurers, attorneys,
employees, representatives and assigns hereby releases, discharges
and waives all Claims against each of the Operating Partnership,
USI, USI Warehouse, YSI and USI Development and their respective
subsidiaries, affiliates, related companies, predecessors,
successors, current and former agents, partners, officers,
directors, shareholders, insurers, attorneys, employees,
representatives and assigns. |
| |
1.3.3 |
Mutual Release By and Among Rising Tide, Amsdell and
Amsdell, Robert J. Amsdell, Barry L. Amsdell, Todd C. Amsdell and
Kyle V. Amsdell and Dean Jernigan and Kathleen A. Weigand . The
parties listed in this Section 1.3.3 hereby forever release
each other as follows: |
| |
(a) |
Each of Rising Tide, Amsdell and Amsdell, Robert J. Amsdell,
Barry L. Amsdell, Todd C. Amsdell and Kyle V. Amsdell on behalf of
themselves and their respective subsidiaries, affiliates, related
companies, predecessors, successors, current and former agents,
partners, officers, directors, shareholders, insurers, attorneys,
employees, representatives and assigns hereby releases, discharges
and waives all Claims against each of Dean Jernigan and Kathleen A.
Weigand and their respective subsidiaries, affiliates, related
companies, predecessors, successors, current and former agents,
partners, officers, directors, shareholders, insurers, attorneys,
employees, representatives and assigns. |
| |
(b) |
Each of Dean
Jernigan and Kathleen A. Weigand on behalf of themselves and their
respective successors, current or former agents, insurers,
attorneys, representatives and assigns hereby releases, discharges
and waives all Claims against each of Rising Tide, Amsdell and
Amsdell, Robert J. Amsdell, Barry L. Amsdell, Todd C. Amsdell and
Kyle V.
|
4
| |
Amsdell and their
respective subsidiaries, affiliates, related companies,
predecessors, successors, current and former agents, partners,
officers, directors, shareholders, insurers, attorneys, employees,
representatives and assigns.
|
None of the foregoing mutual releases
shall relieve, or be deemed to relieve any party from its
obligations to comply with the terms of this Agreement or any of
the Ancillary Agreements or release, or be deemed to release, the
right of any party to enforce the terms of this Agreement or any of
the Ancillary Agreements. In addition, none of the foregoing mutual
releases shall (i) relieve, or be deemed to relieve USI, the
Operating Partnership, USI Warehouse, YSI or their respective
subsidiaries or affiliates from their respective obligations under
their organizational documents or the laws of the state of their
organization to indemnify or advance funds to Robert J. Amsdell,
Barry L. Amsdell or Todd C. Amsdell in the event any claim is
brought against any of them by any third party or
(ii) release, or be deemed to release, the rights of Robert J.
Amsdell, Barry L. Amsdell or Todd C. Amsdell to enforce the
provisions of the organizational documents of USI, the Operating
Partnership, USI Warehouse, YSI or their respective subsidiaries or
affiliates or the laws of the state of their organization for
indemnification or advancement of funds in the event any such claim
is brought by any third party. Nothing in the immediately preceding
sentence shall override the provisions of Section 1.10 of this
Agreement.
1.4 Equity Awards of Todd
C. Amsdell . Attached hereto as Exhibit L is a form of
the stock certificate evidencing 34,645 shares of common stock of
USI to be issued to Todd C. Amsdell by USI on the Effective Date,
representing deferred shares that vested prior to his termination,
but the delivery had been deferred. USI shall deliver such
certificate to Todd C. Amsdell on the Effective Date. USI
further agrees that Todd C. Amsdell shall receive on the Effective
Date the cash amount of all unpaid dividends on the 34,645 shares
of common stock of USI. The value of such shares on the
Effective Date shall be used for all tax reporting
purposes.
1.5 Public Disclosure
. The parties agree that USI shall issue a press release upon the
execution of this Agreement. The press release shall classify the
ending of Todd C. Amsdell’s employment with USI as a
resignation. The press release shall be substantially in the form
attached as Exhibit M . Prior to the issuance of the final
press release, USI shall provide such press release to Robert J.
Amsdell for his review and comment, which comments will be shared
with the Board of Trustees of USI. The final text of the press
release shall be approved by the Board of Trustees of USI. Other
than the press release attached as Exhibit M , none of USI,
Rising Tide, any of the Amsdells (as defined in Article II) or
their respective agents shall issue any press release or make any
public statement, public announcement or public disclosure of any
kind concerning the subject matter of this Agreement or the
Ancillary Agreements, structure of the transactions or the
negotiations conducted in connection thereto except (i) to
provide factual statements as may be consistent in all material
respects with the press release attached as Exhibit M and
this Agreement and the Ancillary Agreements that are filed by USI
with the Securities and Exchange Commission,
(ii) as
5
may be jointly agreed by USI, Rising
Tide and the Amsdells, (iii) to provide factual statements in
response to a specific inquiry from an analyst or shareholder of
USI or (iv) as may be necessary in order to satisfy the
requirements of applicable law.
1.6 Resignation of Todd C.
Amsdell . Solely to effect this Agreement, USI agrees to accept
Todd C. Amsdell’s letter of resignation effective
February 19, 2007.
1.7 Prohibition from
Exercising Option . The Operating Partnership is hereby
prohibited from exercising any of its rights under the Option
Agreement by and between the Operating Partnership and Rising Tide
dated October 27, 2004.
1.8 Leases . USI
agrees to honor its obligations under the terms of the Leases.
Amsdell and Amsdell agrees that no past action by USI relating to
the Operating Partnership vacating or abandoning a substantial part
of the premises constitutes a default under the Leases.
1.9 No Admissions .
This Agreement is entered into by the parties hereto solely for the
purpose of compromising and settling matters in dispute. This
Agreement does not constitute, nor shall it be construed as, an
admission by any party of the truth or validity of any claims or
contentions asserted by any party or any matter relating to the
subject matter of this Agreement, nor shall it be construed as any
acknowledgement of any fault or liability to any party or to any
other person or entity in connection with any matter or thing, nor
shall it be construed as a ratification of any past conduct by any
party. This Agreement shall not be admissible in any proceeding
except to enforce any of its terms or provisions.
1.10 Legal and Other
Transaction Costs . Each party hereto agrees to pay their own
previously incurred or yet to be incurred legal fees and expenses
relating to the Pending Litigation, this Agreement, the Ancillary
Agreements, any negotiations related thereto and any previous USI
investigations.
ARTICLE II –
REPRESENTATIONS AND WARRANTIES OF THE AMSDELLS AND
RISING TIDE
Each of Robert J. Amsdell,
Barry L. Amsdell, Todd C. Amsdell and Kyle V. Amsdell
(collectively, the “Amsdells”), Amsdell and Amsdell and
Rising Tide hereby make each of the representations and warranties
set forth in this Article II to each of the Operating
Partnership, USI, USI Warehouse, YSI, USI Development, Dean
Jernigan and Kathleen A. Weigand, which representations and
warranties made by each such party, are true and correct as of the
date first written above and will be true and correct as of the
Effective Date:
2.1. Organization, Good
Standing and Authority . Rising Tide represents and warrants
that it has been duly organized and validly exists in good standing
under the laws of its jurisdiction of organization. Each of the
Amsdells hereby represents and warrants hereto that this Agreement
and each of the Ancillary Agreements to which he is a party has
been duly and validly executed and delivered by him; and that
this
6
Agreement and each of the Ancillary
Agreements to which he is a party is the legal, valid and binding
obligation of him, enforceable against him in accordance with the
terms hereof or thereof, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement thereof or
relating to creditors’ rights generally. Each of Amsdell and
Amsdell and Rising Tide hereby represents and warrants that it has
the power and authority to execute, deliver and perform this
Agreement and each of
|
