ED/RALPH ASSOCIATES, INC. (formerly known as PARKER, CLARK DATA PROCESSING, INC.) and RALPH/ED ASSOCIATES, INC. (formerly known as PLATINUM I.T. CONSULTING INC.), Plaintiffs, -against- PLATINUM IT CONSULTING, INC. and GLOBAL IT HOLDINGS, INC.,...
Exhibit
10.14
SUPREME
COURT OF THE STATE OF NEW YORK
COUNTY
OF NEW YORK
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ED/XXXXX
ASSOCIATES, INC.
(formerly
known as XXXXXX, XXXXX DATA
PROCESSING,
INC.) and
XXXXX/ED
ASSOCIATES, INC.
(formerly
known as PLATINUM I.T. CONSULTING INC.),
Plaintiffs,
-against-
PLATINUM
IT CONSULTING, INC. and
GLOBAL
IT HOLDINGS, INC.,
Defendants.
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Index
No.: 604324/05
FORBEARANCE
AGREEMENT
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WHEREAS,
on or
about
December 12th,
2005,
Ed/Xxxxx
Associates, Inc. and Xxxxx/Ed Associates, Inc. (collectively the “Plaintiffs”)
initiated the above-captioned action to enforce the terms of an August
26th,
2004,
Promissory Note made by defendant Platinum IT Consulting, Inc. (“Platinum”) in
the principal amount of $1,100,000 U.S. Dollars; and
WHEREAS,
the
above-captioned action also seeks to enforce the terms of a Security Agreement
dated August 26th,
2004,
made by Platinum and Global IT Holdings, Inc. (“Global”) in favor of Plaintiffs;
and
WHEREAS, a Judgment in this action was entered on May 18th, 2006, against defendant Platinum for $ 1,263,296.56, as a result of its default under the terms of the Promissory Note (the “Platinum Judgment”); and
WHEREAS,
that
portion of this action seeking to enforce the Security Agreement against
Platinum and Global was still pending; and
WHEREAS,
the parties entered into a settlement agreement, pursuant to CPLR 3215(i)
dated
July 28th,
2006;
and
WHEREAS,
Global and Platinum defaulted pursuant to said settlement agreement by
failing
to pay $200,000 to Plaintiffs by August 16th
as
called for by the Settlement Agreement ; and
WHEREAS,
a
judgment in this action was entered against defendant Global on August
25, 2006,
for $1,272,018.50, as a result of its default under the terms of the settlement
agreement dated July 28, 2006 (the Global Judgment); and
WHEREAS,
the
parties desire to enter into a forbearance agreement, and in exchange for
good
and valuable consideration, receipt of which is hereby
acknowledged;
NOW,
THEREFORE, IT IS STIPULATED AND AGREED
by and
between the respective parties that the Plaintiff shall forbear from enforcing
the Global Judgment and the Platinum Judgment pursuant to the following
terms
and conditions:
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1.
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The
above recitals are hereby incorporated as if reinstated herein
at
length.
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2.
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In
full settlement of the action, Defendants shall pay to Plaintiffs
the sum
of $850,000 U.S. Dollars (the “Settled Amount”) in the manner and time set
forth below:
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(a)
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$200,000
in cash wired to the account of Xxxxx & Xxxxxxxx LLC, Citibank,
N.A.,000 Xxxxxxxx, Xxx Xxxx, XX 00000, ABA Routing # 000000000,
Acct. #
44768732 within twenty four (24) hours of Xxxxxx and Xxxxxx’s receipt of a
copy of this Agreement executed by Plaintiffs, and, notwithstanding
anything to the contrary stated elsewhere herein, there shall
be no cure
period in connection with payment pursuant to this paragraph;
and
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(b)
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Subsequent
payments of $50,000 per month to commence on September 1, 2006
and to end
on October 1, 2007 to be paid in shares of common stock of Global
equal to
$50,000 per month based on the market price of Global’s common stock as of
first date of each month (“Initial Monthly Issuance”). Plaintiffs and
Defendants also agree that in the event that Plaintiffs sell
all of the
shares issued in connection with a single monthly installment
for less
than an aggregate net value of $50,000, Plaintiffs are entitled
to
receive, upon request, additional shares equal to the difference
between
the aggregate value received by the Plaintiffs and $50,000 (“Additional
Monthly Issuance”). Requests for Additional Monthly Issuance shall be made
no later than fifteen (15) business days after the Initial Month
Issuance
for that month. Plaintiffs and Defendants also agree that in the
event that Plaintiffs sell all of the shares issued in connection
with a
single monthly installment for greater than an aggregate net
value of
$50,000, Defendants are entitled to receive, upon request, a
reduction in
the following month’s Initial Monthly Issuance equal to the difference
between the aggregate value received by the Plaintiffs and $50,000
(“Reduced Monthly Issuance”). The net value of shares shall be the amount
that Plaintiffs receive after commission and after all other
expenses
incurred based on the sale of the shares.
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Upon
completion of these payments in the time and manner called for herein,
the
entire sum of the Settled Amount shall have been paid in full.
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3.
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The
Global common stock shall be delivered to a brokerage account
identified
by Plaintiffs.
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4.
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Each
of the following events shall constitute an "Event of
Default":
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(i)
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If
the initial cash payment set forth in paragraph 2 is not wired
to Xxxxx
& Goldberg’s escrow account within 24 hours of Xxxxxx and Xxxxxx’s
receipt of a copy of this agreement executed by
Plaintiffs;
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(ii)
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If
an Initial Monthly Issuance of Global common stock is not delivered
to the
brokerage account on the first day of the month as called for
by this
Agreement;
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(iii)
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If
an Additional Monthly Issuance of Global common stock is not
delivered to
the brokerage account within five (5) business days after written
request
by Plaintiffs;
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(iv)
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If
Global makes a general assignment for the benefit of creditors;
a bulk
sale; a sale of substantially all the assets of its business;
or files a
voluntary petition for relief under any chapter or provision
of the
Bankruptcy Code, 11 U.S.C. '
101 et. seq.
or
any amendment or revision thereof, or if Global shall have filed
against
it an involuntary petition for relief under any chapter or provision
of
the Bankruptcy Code or any amendment or revision
thereof.
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5.
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Upon
the occurrence of an Event of Defualt identified in paragraph
4(i),
Plaintiffs shall be entitled to immediately resume enforcement
of the
Judgments.Upon the occurrence of any other “Event of Default”, the
Defendants shall have five business days from their receipt of
written
notice of the Event of Default, to cure said Default, except
in the event
that Defendants fail to deliver the Global common stock in the
amount,
time or manner called for by this Agreement, they shall have
thirty (30)
days from their receipt of written notice of the Event of Default
to cure
said Default. However, if more then three Events of Default occur
in a six
month period, the Defendants shall not be entitled to cure the
fourth
Event of Default and the Plaintiffs shall be entitled to proceed
under
paragraph “6” hereof.
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6.
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If
an Event of Default is not timely cured, Plaintiffs shall be
entitled to
immediately resume enforcement of the Global Judgment, the Platinum
Judgment and entitled to immediately resume enforcement of the
Security
Agreement against Defendants. All monies paid under this Agreement
shall
be applied to the outstanding amount of the Judgments.
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7.
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Except
as to those duties and obligations set forth herein, upon the
full payment
of the Settlement Amount in the time and manner called for by
this
Agreement, Plaintiffs hereby unconditionally release and forever
discharge
Defendants and each of their heirs, joint venturers, partners,
affiliates,
parent corporations, subsidiaries, officers, directors, agents,
employees,
shareholders, legal counsel, predecessors, successors and assigns,
of and
from any and all manner of actions, causes, causes of action,
claims,
liabilities, suits, threats, contracts, controversies, torts,
Agreement,
promises, damages, judgments, execution of claims, and demands
whatsoever
in law or in equity, known or unknown, suspected or unsuspected,
which
Plaintiffs ever had, now has or may hereafter have against Defendants,
by
reason of any matter, cause or thing, whatsoever, including,
without
limitation, any claims for unknown damages or injuries, or unknown
consequences or complications of known damages or injuries. Should
an
Event of Default go uncured, this release shall not be
valid.
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8.
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Plaintiffs
represent and warrant to Defendants that the individual(s) signing
this
Agreement has been duly authorized to sign the Agreement on behalf
of
Plaintiffs, and Plaintiffs further represent and warrant that,
upon
execution, this Agreement shall be valid, legally binding and
enforceable
against Plaintiff in accordance with its terms.
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9.
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Defendants
represent and warrant to Plaintiffs that the individual(s) signing
this
Agreement have been duly authorized to sign the Agreement on
behalf of the
respective entities, and Defendants further represent and warrant
that,
upon execution, this Agreement shall be valid, legally binding
and
enforceable against Defendant in accordance with its terms.
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10.
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This
Agreement shall be construed and interpreted as a whole and in
accordance
with its fair meaning, and without regard to, or taking into
account, any
presumption or other rule of law requiring construction or interpretation
against the party preparing this Agreement or any part hereof.
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11.
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The
parties shall each bear their own expenses, legal costs and attorneys’
fees incurred in connection with the negotiation and execution
of this
Agreement.
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12.
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This
Agreement contains the entire agreement and understanding of
the parties
concerning the subject matter hereof. All prior and contemporaneous
agreements, representations, negotiations, and understandings
of the
parties, oral or written, are merged herein and/or expressly
declared void
and are superseded by this Agreement. The parties warrant that no
representations have been made to or relied upon by any party
to induce
the execution of this Agreement except as set forth
herein.
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13.
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This
Agreement, its application and interpretation, and all rights
and
obligations of the parties hereunder shall be governed by and
construed
exclusively in accordance with the laws of the State of New York,
excluding any choice of law rules which would apply the laws
of another
jurisdiction.
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14.
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Any
disputes regarding this Agreement shall be exclusively resolved
in the
state or federal courts, as applicable, located in New York. Each
party consents to the exclusive jurisdiction of such courts and
agrees not
to bring any action under this Agreement except in New
York.
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15.
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This
Agreement may not be altered, modified or amended, except in
writing
signed by the party to be bound.
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16.
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The
parties shall make, execute and deliver all such documents and
perform all
such acts from time to time, prior to and following the consummation
of
this Agreement, to carry out the full intent and purpose of this
Agreement.
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17.
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The
parties hereto each represent and warrant that they have read
this
Agreement, understand its terms, have authority to enter into
this
Agreement, and intend to be legally bound thereby.
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18.
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The
parties hereto each represent and warrant that they have been
given an
opportunity to consult with an attorney regarding this settlement
and the
terms of this Agreement.
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19.
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This
Agreement may be executed in multiple counterparts, each of which
shall be
an original, and all of which shall constitute one and the same
agreement.
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20.
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This
Agreement shall be effective only when it has been fully executed
and
delivered by all of the parties
hereto.
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ED/XXXXX
CORPORATION
By:_____________________________
Its
_____________________________
XXXXX/ED
CORPORATION
By:_____________________________
Its
_____________________________
PLATINUM
IT CONSULTING, INC.
By:______________________________
Its_______________________________
GLOBAL
IT
HOLDINGS, INC.
By:_____________________________
Its
_____________________________
