AGREEMENT OF MODIFICATION
This AGREEMENT OF MODIFICATION (the "Agreement") is made and entered into
this 6th day of May, 2004 by and between Critical Home Care, Inc. a Nevada
corporation, successor-in-interest to Critical Home Care, Incorporated, a
Delaware corporation, ("Critical") and Xxxxx Xxxxxx, on the one hand, and All
Care Medical Products Corp., a New York corporation ("All Care"), Xxxxx Xxxxxxxx
("Xxxxxxxx") and S&L Realty, LLC, a New York limited liability company ("S&L"),
on the other hand.
RECITALS
WHEREAS, Critical and S&L previously entered into a lease agreement dated
June 28, 2002 (the "Lease Agreement") for Critical to lease the premises known
as and by the street address 000-000 Xxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx (the
"Premises");
WHEREAS, S&L has agreed to make certain modifications to the Lease
Agreement in exchange for (i) the immediate payment of the $7,096.83 due and
owing as of April 1, 2004, $7,100.00 due and owing as of May 1, 2004; (ii) a
paid receipt for the insurance policy insuring the Premises as required by
paragraph 44(A) of the Lease Agreement; (iii) conversion of the Lease Agreement
into a month-to-month tenancy; and (iii) the ability to terminate Critical's
right of possession upon sixty-days notice;
WHEREAS, Critical has agreed to the foregoing modifications and will
continue to pay on a current basis (i) all utility bills relative to the
Premises; (ii) insurance premiums due under policies insuring the Premises; and
(iii) rent in the amount of $7,100.00 per month commencing May 1, 2004;
WHEREAS, Critical and Xxxxxxxx previously entered into a consulting
agreement dated June 28, 2002 (the "Consulting Agreement");
WHEREAS, Critical and Xxxxxxxx desire to amend the Consulting Agreement to
reflect changed circumstances and to provide, among other things, less
commitment of time from Xxxxxxxx, an amended restrictive covenant and less
compensation to Xxxxxxxx (the "First Amendment to Consulting Agreement");
WHEREAS, Xxxxxxxx has agreed to deliver a release of Critical and Bensol in
connection with certain obligations under the consulting agreement.
NOW, THEREFORE, in consideration of the foregoing and of the
representations, warranties, covenants, agreements and conditions contained
herein, the parties hereto, intending to be legally bound, agree as follows:
1. Lease Letter Amendment. Critical and S&L shall each execute and deliver
to the other the letter of amendment in the form of Exhibit "A" annexed hereto;
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2. First Amendment to Consulting Agreement. Critical and Xxxxxxxx shall
enter into a First Amendment to Consulting Agreement in the form of Exhibit "B"
annexed hereto; and
3. Xxxxxxxx Release. Xxxxxxxx shall deliver a release to Critical and
Bensol in the form of Exhibit "C" annexed hereto.
4. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
messenger or courier service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with acknowledgment of complete
transmission) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
Xx. Xxxxx Xxxxxxxx
00 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Telephone: 000 000-0000
Facsimile: 000 000-0000
Xxxxxxx X. Xxxxxxxxx, Esq.
00000 Xxxxxxx Xxxxx Xxxxx, Xxxx 0, Xxx 0
With a copy to: Xxxx Xxxxx, Xxxxxxx 00000
Telephone: 000 000-0000
Facsimile: 000 000-0000
Critical Home Care, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxxx, President
Telephone:
Facsimile:
Snow Xxxxxx Xxxxxx, P.C.
With a copy to: 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telephone: 000 000-0000
Facsimile: 000 000-0000
5. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart. This agreement may be executed via
telefacsimile transmission and a telefacsimile signature shall be deemed as
effective as an original signature.
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6. Amendment. This Agreement may only be amended by the parties hereto by
execution of an instrument in writing signed on behalf of each of the parties
hereto.
7. Entire Agreement; Assignment. This Agreement and Exhibits hereto, and
the documents and instruments and other agreements among the parties hereto
referenced herein: (a) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, (b) are not intended to confer upon any other person any
rights or remedies hereunder; and (c) shall not be assigned by operation of law
or otherwise except as otherwise specifically provided..
8. Severability. In the event that any provision of this Agreement or the
application thereof becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
Persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
9. Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
Each of the parties hereto irrevocably consents to the exclusive jurisdiction
and venue of any federal and state courts located within New York County, and
courts with appellate jurisdiction therefrom, in connection with any matter
based upon or arising out of this Agreement or the matters contemplated herein,
agrees that process may be served upon them in any manner authorized by the laws
of the State of New York and waives and covenants not to assert or plead any
objection which they might otherwise have to such jurisdiction, venue and such
process.
11. Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized respective officers all as of the date first
written above.
Critical Home Care Inc., a Nevada corporation
/s/Xxxxx Xxxxxx
By:_______________________
Name: Xxxxx Xxxxxx
Title: President
______________________________
All Care Medical Products Corp.
/s/Xxxxx Xxxxxxxx
By:___________________________
Name: Xxxxx Xxxxxxxx
Title: President
S & L Realty, L.L.C.
/s/Xxxxx Xxxxxxxx
By:_________________________
Name: Xxxxx Xxxxxxxx
Title: Member
/s/Xxxxx Xxxxxxxx
_____________________________
Xxxxx Xxxxxxxx, individually
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