SETTLEMENT AGREEMENT AND RELEASE
SETTLEMENT AGREEMENT AND
RELEASE
THIS
SETTLEMENT AGREEMENT is made this 23rd day of
December, 2009, by and between AICCO, INC. (hereinafter “AICCO”) and ClearPoint
Business Resources, Inc. (hereinafter “ClearPoint”), said entities referred to
as the “Parties.”
WHEREAS,
ClearPoint executed and delivered to AICCO an Insurance Premium Finance
Agreement and Disclosure Statement dated September 12, 2007, bearing AICCO
Account No. 15-005-038461-8 (hereinafter the “Finance Agreement”);
and
WHEREAS, in accordance with the terms
of the Finance Agreement, AICCO financed the premiums of certain insurance
policies procured by ClearPoint in consideration for ClearPoint’s promise to
repay to AICCO the principal sum of $646,214.00 together with finance charges
within the time and manner set forth in the Finance Agreement; and
WHEREAS, AICCO alleges that ClearPoint
has defaulted on its payment obligations to AICCO under the Finance Agreement;
and
WHEREAS, AICCO has commenced a legal
action in the Court of Common Pleas of Bucks County, Pennsylvania, entitled
AICCO, Inc. v. ClearPoint
Business Resources, Inc., bearing Civil Action No. 0811757 (“the Legal
Action”) to recover all sums due and owing under the Finance Agreement (the
“AICCO Claims”); and
WHEREAS, ClearPoint has filed an Answer
denying the allegations contained in AICCO’s Complaint and a Third Party
Complaint against third party defendants, American Marine, LLC and AMS
Outsourcing, Inc. (collectively “Third Party Defendants”) alleging that Third
Party Defendants are liable (a) for the AICCO Claims (hereafter the “Third Party
Claims” and (b) for the other claims between ClearPoint and Third Party
Defendants that are not related to the AICCO Claims (the “Unrelated Third Party
Claims”); and
WHEREAS,
on or about October 21, 2009, AICCO was granted summary judgment against
ClearPoint in the Legal Action in the amount of $166,586.88, together with
interest at the contract rate of 6.57% per annum until the judgment is paid in
full, plus AICCO’s reasonable attorneys’ fees and costs (collectively the
“Judgment”); and
WHEREAS, AICCO and ClearPoint now
desire to resolve and settle their differences regarding the Finance Agreement,
the AICCO Claims, the Legal Action and Judgment, and to memorialize the
resolution thereof in this Settlement Agreement (the “Agreement”).
NOW, THEREFORE, in consideration of the
mutual promises, releases and agreements herein contained and, intending to be
legally bound, IT HEREBY IS STIPULATED AND AGREED by and between AICCO and
ClearPoint that all issues and/or disputes relating to the Finance Agreement,
the AICCO Claims, the Legal Action and the Judgment shall be settled and
resolved in accordance with the following terms and conditions:
1. PAYMENT
a. For
purposes of this Agreement only, AICCO and ClearPoint agree that ClearPoint
presently owes AICCO the sum of $195,329.55, which sum includes the unpaid
judgment, together with accrued interest and AICCO’s attorneys’ fees as of
November 11, 2009 (the “Total Indebtedness”).
b. ClearPoint
agrees to pay to AICCO, and AICCO agrees to accept from ClearPoint, the
compromise sum of $190,000.00 (the “Compromise Sum”) in full and final
settlement of all claims between AICCO and ClearPoint that were or could have
been asserted in the Legal Action, including those related to the Finance
Agreement, the AICCO Claims and the Judgment.
2
c. ClearPoint
shall pay the Compromise Sum by making the following payments in accordance with
the terms hereof:
|
|
(1)
|
Four
(4) monthly installment payments each in the amount of $15,000.00
commencing five (5) business days from the date of this Agreement and
continuing on the fifteenth (15th)
day of each month thereafter to and including March 15, 2010;
and
|
|
|
(2)
|
Twelve
(12) monthly installment payments each in the amount of $10,833.34,
commencing April 15, 2010 and continuing on the fifteenth (15th)
day of each month thereafter to and including March 15, 2011 (collectively
the “Settlement Payments”).
|
d. In
the event that any of the dates on which payments are to be made shall fall on a
Saturday, Sunday, or national holiday, said payment shall be deemed owed on the
next business day following the date on which such payment was to be
made.
e. ClearPoint
shall remit each of the Settlement Payments by making its checks payable to
“AICCO, Inc.” and
delivering same, in sufficient time to be received on or before the due dates
thereof, to the following location:
Xxxxxx
XxXxxxxxxx & Xxxxxx, P.A.
X.X. Xxx
0000
Xxxxxxxxxxx,
XX 00000-0000
Attn:
Xxxxxx X. Xxxxxxxxx, Xx., Esq.
|
|
f.
|
ClearPoint
shall have the right to prepay the Compromise Sum without
penalty.
|
2. SECURITY
FOR FUTURE PAYMENTS
In
consideration for AICCO’s agreement to accept payment of the Compromise Sum over
a period of time, ClearPoint agrees as follows:
3
a. In
the event that ClearPoint fails to make any payment pursuant to the schedule and
terms set forth above in ¶1(c), AICCO shall provide ClearPoint, with a copy to
counsel for ClearPoint, with notice of default by first class mail and facsimile
transmission, permitting ClearPoint five (5) days from such notice in which to
cure said default.
b. In
the event that ClearPoint fails to cure the default within said five (5) day
period, Judgment may be entered against ClearPoint in the amount of the Total
Indebtedness, together with interest at a rate of six percent (6%) per annum,
said interest to accrue on the unpaid balance of the Total Indebtedness as of
the date on which payment was due, as well as actual attorneys’ fees and costs
associated with the entry and execution of such Consent Order of Judgment, less
payments made.
c. As
a condition of this Settlement Agreement and Release, ClearPoint agrees that it
will execute a Consent Order of Judgment in the full amount of the Total
Indebtedness, together with interest at a rate of six percent (6%) per annum,
said interest to accrue on the unpaid balance of the Total Indebtedness as of
the date on which payment was due, as well as actual attorneys’ fees and costs
associated with the entry and execution of such Consent Order of Judgment, less
any payments made prior to default of any payment. AICCO agrees to
hold the Consent Order of Judgment in escrow and not seek to have it executed by
the Court of Common Pleas of Bucks County, Pennsylvania
|
|
(1)
|
until
any payment is in default for thirty days beyond its due date;
and
|
|
|
(2)
|
without
five calendar days’ notice of the intent to seek execution of the Consent
Order of Judgment.
|
4
d. Should
any payment be in default in excess of thirty (30) days from its due date, AICCO
shall have the option of declaring ClearPoint responsible to make payment and
move to execute the Consent Order of Judgment that is to be signed as part of
this Settlement Agreement and Release.
3. RECOVERY
ON THIRD PARTY CLAIMS
a. ClearPoint
agrees that in the event that it recovers a Judgment on its Third Party Claims
against the Third Party Defendants and effects collection thereon, either
involuntarily through the exercise of lawful post-judgment collection levy or
execution or by means of a negotiated settlement with one or both of the Third
Party Defendants in partial or complete satisfaction of the Third Party Claims,
then all such payments (the “Third Party Claim Payments”) will be assigned over
and paid directly to AICCO, in care of its counsel at the address noted in
Paragraph 2(e) above within fifteen (15) days of ClearPoint’s receipt
thereof.
b. Any
and all Third Party Claim Payments that ClearPoint remits to AICCO shall be
credited against the Settlement Payments set forth in Paragraph 3 in the reverse
order thereof, i.e., first against the payment due on March 15, 2011 and
thereafter to each preceding payment.
c. The
tendering of any and all Third Party Claim Payments by ClearPoint to AICCO shall
not act to satisfy or discharge any balance which remains due and owing on the
Compromise Sum after all Third Party Claim Payments have been
credited.
d. In
the event that any and all Third Party Claim Payments shall, collectively,
exceed the Compromise Sum, such excess shall remain for the benefit of
ClearPoint. Accordingly, nothing in this provision as to recovery of
Third Party Claim Payments is to be construed as entitling AICCO with an amount
in excess of the Compromise Sum.
5
e. Nothing
contained in this Agreement shall be construed as requiring ClearPoint to remit
any payments that it recovers from Third Party Defendants in connection with the
Unrelated Third Party Claims.
4. WAIVER OF
CLAIMS
ClearPoint
hereby and forever waives all claims, defenses, offsets and counterclaims of any
kind and nature whatsoever, both known and unknown, realized or contingent,
which exist against AICCO with respect to the Finance Agreement and which were
capable of assertion in the Legal Action.
5. CANCELLATION
OF INSURANCE COVERAGE
ClearPoint
acknowledges that the insurance coverages financed through the Finance Agreement
have been canceled in accordance with the provisions of the Finance Agreement
and that AICCO shall have no obligation to request reinstatement
thereof.
6. PREMIUM
REFUND
AICCO
agrees that in the event it receives any return premiums that have not
previously been credited to ClearPoint’s Account, AICCO shall promptly advise
ClearPoint and credit any and all such additional return premiums against the
Settlement Payments due hereunder in reverse order thereof; or refund such
additional return premiums to ClearPoint if received after the date on which all
Settlement Payments have been tendered by ClearPoint to AICCO.
7. BINDING
EFFECT
This
Settlement Agreement and Release shall be binding upon the parties hereto, and
upon their respective officers, directors, agents, successors, assignees,
executors, administrators and beneficiaries.
6
8. LIMITED
TO FINANCE AGREEMENT
ClearPoint
agrees and understands that this Settlement Agreement and Release is
specifically limited to the Finance Agreement that is a subject of the Legal
Action, and nothing contained herein shall be construed as applying to or
affecting any other agreement, for financing or otherwise, that may now or
hereafter exist between AICCO and ClearPoint. AICCO agrees that
nothing contained herein shall be construed as applying to or affecting
ClearPoint’s right to pursue the Unrelated Third Party Claims that ClearPoint
has asserted in the Legal Action against Third Party Defendants.
9. RELEASE
In
exchange for the foregoing consideration, and except as otherwise set forth or
required by this Agreement, each of the Parties hereto, by and on behalf of
themselves and their subsidiaries, heirs, employees, affiliates, and/or agents,
hereby releases, acquits and forever discharges the other party and its
subsidiaries, including without limitation its shareholders, respective present
and former officers, directors, members, employees, agents, attorneys,
predecessors and successors in interests, assigns, personal representatives,
heirs, affiliates, and trustees from any and all past, present or future claims,
liabilities, demands, causes of action, obligations, defenses, set-offs, costs,
expenses, damages and compensation of any kind or nature, whether based on tort,
contract, statute or other theory of recovery whether known or unknown or
suspected or claimed, that each Party ever had, now has or may have against the
other including, but not limited to, those arising out of or in any way related
to the Finance Agreement, the AICCO Claims, the Legal Action and the
Judgment.
7
10. AMENDMENT
AICCO and
ClearPoint agree that the terms and conditions of this Settlement Agreement and
Release shall not be changed, amended or modified, except in a writing executed
by AICCO and ClearPoint, or their duly authorized representatives.
11. CONFIDENTIALITY
The
Parties agree that the terms of this Settlement Agreement and Release shall be
kept confidential, and that they shall not communicate, directly or indirectly,
the terms of this Settlement Agreement and Release to any third party, except as
may be required in the routine course of business, as necessary to implement or
perform this Settlement Agreement and Release, or as required by
law. The Parties further agree that, if a third party seeks
disclosure of the terms of this Settlement Agreement and Release, the Party
requested to make such disclosure shall give the other Party written notice and
a reasonable period to review and comment upon the disclosure prior to making
the disclosure.
12. WITHDRAWAL
OF ACTION
The
Parties mutually agree that AICCO shall withdraw its claims in the Legal Action
identified above, with prejudice, within ten (10) days of the date of the full
and final execution of this Settlement Agreement and Release. The
Parries further agree that the terms of this Settlement Agreement and Release
may be enforced as provided herein, and/or through a request to enforce the
terms hereof through proceedings filed in the pending Action, which may be
re-activated through the submission of a petition to enforce or other
appropriate pleading.
13. AUTHORITY
TO EXECUTE AGREEMENT
AICCO and
ClearPoint represent that they enter into this Settlement Agreement and Release
freely and voluntarily, and with and upon the advice of counsel and further
represent and warrant that the persons executing this Settlement Agreement and
Release are authorized to sign and bind them pursuant to the terms of this
Settlement Agreement and Release.
8
14. JURISDICTION
This
Settlement Agreement and Release shall be construed and enforced under the
substantive law of the Commonwealth of Pennsylvania without reference to
conflicts of law principals. Any action to enforce the terms and
conditions of this Settlement Agreement and Release shall be initiated in the
Court of Common Pleas for Bucks County, Pennsylvania.
15. ENTIRETY
OF AGREEMENT
No
covenants, agreements, representations or warranties of any kind have been made
by any Party hereto, except as expressly set forth herein. This
Settlement Agreement and Release constitutes the entire agreement between the
Parties relating to the subject matter hereof, and all prior discussions and
negotiations have been and are merged and integrated into, and superseded by
this Settlement Agreement and Release.
16. ASSIGNMENT
This
Settlement Agreement and Release, and all terms contained herein, shall not be
assigned by either Party without the prior written consent of the other Party
hereto.
17. COUNTERPARTS
This
Settlement Agreement and Release may be signed in counterpart copies, each of
which shall be deemed to be an original document, and all of which shall
together be deemed to constitute a single document.
18. ADDRESSES
ClearPoint
represents and warrants that its current business address is at the following
location: 0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxx
00000. Any and all notices to ClearPoint under this Agreement shall
be to: Xxxx Xxxxxxxx, Chief Financial Officer, ClearPoint Business Resources,
Inc., 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxxx 00000 (telecopy
215-997-7711). A copy of such notice (which shall not constitute
notice to ClearPoint) shall be to: Xxxx X. Xxxxxx, Esquire, Blank
Rome, LLP, One Xxxxx Square, 000 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000 (telecopy 215-832-5754). ClearPoint
shall notify Xxxxxx XxXxxxxxxx & Marcus, P.A. in writing within fifteen (15)
days of any change of address, by written notice sent to Xxxxxx XxXxxxxxxx &
Xxxxxx, P.A. by certified mail, return receipt requested, to the address set
forth in paragraph 4 hereof.
9
IN WITNESS WHEREOF, the
Parties have executed this Settlement Agreement and Release as of the dated
stated at the outset.
|
ATTEST:
|
AICCO,
Inc.
|
||
|
December
23, 2009
|
By:
|
/s/ Xxxx Xxxxxxxx | |
|
ATTEST:
|
|||
|
December
23, 2009
|
By: | /s/ Xxxx X. Xxxxxxxx | |
