Exhibit 10.15
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT dated as of November 30, 1998 by and between
International Purchasing Services, Inc., a corporation with a principal place of
business at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter, "IPS"),
Xxxxxxx X. Xxxxxxxx, residing at 00 Xxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx Xxxx 00000
(hereinafter, "Xxxxxxxx"), Accident Prevention Plus, Inc., a corporation with a
principal place of business at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000,
(successor in interest to Accident Prevention Plus, LLC) (hereinafter, "APP")
and The Bank of Smithtown, a New York state banking corporation with a principal
place of business at Xxx Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter,
the "Bank").
W I T N E S S E T H:
WHEREAS, IPS is in default under a certain note made payable to the Bank on
April 13, 1995 in the sum of $100,000.00 and guaranteed by the Small Business
Administration (hereinafter, the "SBA Note"); and
WHEREAS, IPS is also in default under a certain note made payable to the
Bank on December 24, 1996 in the sum of $500,000.00 (hereinafter, the "BOS
Note"); and
WHEREAS, Xxxxxxxx executed a certain guarantee on or about March 31, 1995
pursuant to which he unconditionally guaranteed to the Bank the payment of all
debts of IPS then existing or thereinafter incurred; and
WHEREAS, Xxxxxxxx also executed agreements with the Bank pursuant to which
he pledged his stock in IPS and his member interest in APP, LLC as additional
security `for the aforesaid debts; and
WHEREAS, IPS and APP, LLC are in the process of merging into APP; and
WHEREAS, the Bank has commenced an action against IPS and Xxxxxxxx, in
Supreme Court, Suffolk County, titled The Bank of Smithtown v. International
Purchasing Services Inc. and Xxxxxxx X. Xxxxxxxx under Index No. 98-17280,
which said suit seeks a judgment against IPS and Xxxxxxxx for the entire balance
due under aforesaid notes together with interest and counsel fees; and
WHEREAS, the parties hereto are desirous of settling their differences and
discontinuing the aforesaid litigation on the terms hereinafter set forth.
NOW THEREFORE, in consideration of ten ($10.00) dollars and the mutual
covenants contained herein, the parties hereto agree as follows: -
1. THE PAYMENTS TO BE MADE BY IPS
IPS agrees to make the following three payments by check or wire transfer
to The Bank of Smithtown at its main office at Xxx Xxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxx 00000:
1st payment $23,207.90 on or before November 6, 1998
2nd payment $20,000.00 on or before November 30, 1998
3rd payment $16,792.10 on or before March 1, 1999
2. THE APP NOTE AND THE XXXXXXXX NOTE
a) APP shall execute a note (hereinafter, the "APP Note") in favor of
the Bank in the amount of $500,000.00. The interest rate on the APP Note shall
be the prime rate as published in the Wall Street Journal plus two (2%) percent
adjusted as and when the prime rate changes. The APP Note shall be paid at the
rate of $5,000.00 per month during the first year, $10,000.00 per month during
the second year and $15,000.00 per month during the third year. At the end of
the third year, the entire principal balance remaining unpaid together with any
accrued interest shall be due and payable. The APP Note shall be in the form
attached hereto as Exhibit "A".
b) Xxxxxxxx shall execute a note (hereinafter, the "Xxxxxxxx Note") in
favor of the Bank in the amount of %60,619.84 which shall bear interest at the
rate of 9% and mature in one year. Xxxxxxxx shall execute a Confession of
Judgment to secure his performance under said note. The Bank shall only enter
judgment by confession if Xxxxxxxx is in default under the Xxxxxxxx Note and has
failed to cure within seven (7) days as provided for herein and, in such event,
the Bank will give Xxxxxxxx credit for any amounts paid under the Xxxxxxxx Note.
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c) Upon execution of the APP Note and the Xxxxxxxx Note, the BOS Note
shall be cancelled and returned to IPS.
3. THE GUARANTEE OF XXXXXXXX AND IPS AND THE SECURITY AGREEMENT
Xxxxxxxx and IPS shall each guarantee payment of the APP Note and SBA
Note by executing a Continuing Guarantee of all Liability, in the form attached
as Exhibit "B", in favor of the Bank of Smithtown.
As collateral for the aforesaid guarantees, Xxxxxxxx shall pledge to
the Bank all shares of APP he now owns or hereafter acquires while the SBA Note
and BOS Note are outstanding. Said shares shall be held pursuant to the terms of
a Hypothecation Agreement and a Security Agreement, which shall be executed by
Xxxxxxxx in the form attached as Exhibit "C".
Xxxxxxxx shall execute one or more Form UCC-l's thereby enabling the
Bank to perfect a security interest in the APP shares, and deliver to the Bank
stock certificates representing all shares together with stock powers duly
endorsed in blank. Said stock and stock powers shall be held -by the Bank
pursuant to the terms of the Security Agreement.
In exchange for the pledge of APP stock pursuant to the terms of the
Security Agreement, the Bank shall release the pledge of IPS stock and
Xxxxxxxx'x member interest in APP, LLC and return the security agreements and/or
pledge agreements appurtenant thereto.
In the event of a default under the SBA Note and/or BOE Note, APP
shall have the right, for a period of thirty (30) days after receipt of notice
of such default, to repurchase Xxxxxxxx'x APP shares from the Bank by paying the
Bank the entire balance due under both notes, including principal, interest and
late fees. Notwithstanding, APP must advise the Bank of its desire to purchase
said shares within ten (10) days after receipt of notice of default.
4. THE APPLICATION OF PAYMENTS
The Bank shall apply the 1st payment of $23,207.90 to all the interest
and principal in arrears and late charges on the SBA Note in order to make that
loan current.
The 2nd payment of $20,000.00 shall be applied to the payments due
under the APP Note for the months of January 1, 1999, February 1, 1999 and March
1, 1999 to the extent of $15,000.00. The
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balance of that payment in the amount of $5,000.00 shall be paid to the firm of
Pinks & Arbeit to cover the legal fees in connection with this settlement.
The 3rd payment of $16,792.10 shall be applied to the principal of the
Xxxxxxxx Note.
5. AGREEMENT TO KEEP PAYMENTS CURRENT
IPS, APP, and Xxxxxxxx agree to make all payments due hereunder and
under the SBA Note, APP Note and Xxxxxxxx Note, as and when the same shall
become due. Any payment not paid when due shall constitute an event of default
(hereinafter, "Event of Default"). Upon the occurrence of an Event of Default,
the Bank shall serve notice of such Event of Default as provided for in
paragraph twelve (12). The Bank shall be entitled to exercise all remedies
referred to in the note or notes which are in default and all guarantees and
security agreements appurtenant thereto. Upon the occurrence of an Event of
Default with respect to any payment due in accordance with paragraphs 1 or 2(b),
APP shall have a period of seven (7) days after receipt of such notice of
default to cure said default, and the Bank shall not take any action against any
party hereto for a failure to make timely payment of the amounts set forth in
paragraph 1 and 2(b) hereof until the expiration of seven (7) days after receipt
of written notice of default.
6. CONDITIONS TO CLOSING
The Bank's obligation to close hereunder shall be conditioned upon
production to the Bank of the following documents no less than thirty (30) days
after the closing:
x. Xxxxxxxx. Personal Financial Statement.
b. Financial Statements for IPS and APP, LLC for the years 1996 and
1997.
c. Proof of Xxxxxxxx'x XXX Account with a balance of at least sixty
thousand ($60,000.00) dollars.
d. Proof that IPS is in possession of a Power of Attorney to collect a
receivable in India.
e. Proof that APP, LLC has a five million ($5,000,000.00) dollar
non--exclusive distribution agreement with American Overseas Corporation.
f. A copy of the certificate of incorporation for APP together with
filing receipt and a certificate of the Secretary of APP attesting to the fact
that the transactions referred to herein, in so far as they pertain
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to APP, have been approved by the Board of directors of APP, together with a
copy of the Board Minutes or Consent approving same.
In the event that all of the foregoing documentation is not supplied
to the Bank on or before December 31, 1998, the Bank shall be entitled to
declare this agreement null and void, but shall not be required to return any
payments made hereunder, provided that the Bank shall first give Xxxxxxxx
written notice together with a seven (7) day period to cure.
7. REPRESENTATIONS OF IPS, APP AND XXXXXXXX
a) IPS represents that the execution of this agreement has been
authorized by its Board of Directors and, as such, represents a duly authorized,
valid and binding obligation of the company and does not contravene any other
agreement to which it is a party.
b) APP, LLC represents that the execution of this agreement has been
authorized by its Members, and as such, represents a duly authorized, valid and
binding obligation of the company and does not contravene any other agreement to
which it is a party.
c) APP represents that the execution of this agreement has been
authorized by its Board of Directors, and as such, represents a duly authorized,
valid and binding obligation of the company and does not contravene any other
agreement to whic1~ it is a party. 3,312, 4cio
d) Xxxxxxxx represents that he currently owns, or shortly will own,
approximately 3,328,640 shares of APP which constitute approximately 218%
percent of the issued shares of APE stock.
e) Xxxxxxxx represents at all shares of APP owned by him are owned
free and clear of liens, pledges and encumbrances.
8. THE CLOSING
a) Closing hereunder shall be held at the office of The Bank of
Smithtown, One Main Street, Smithtown, New York on November 30, 1998.
b) At the closing, the following documents shall be executed:
(i) APP shall execute the APP Note.
(ii) Xxxxxxxx shall execute the Xxxxxxxx Note, the Confession of
Judgment, the Continuing Guarantee, the Security
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(iii) IPS shall execute a Continuing Guarantee.
c) At the closing, Xxxxxxxx shall deliver to the Bank all documents
which he executed pursuant to paragraph 8(b)(ii), as well as, all shares of APP
owned by him. APP shall deliver to the Bank the APP Note, and IPS shall deliver
to the Bank the Continuing Guarantee.
d) At the closing, the Bank shall cancel the DOS Note, release the
pledge of IPS stock and Xxxxxxxx'x member interest in APP, LLC and return the
appurtenant security agreements.
9. DISCONTINUATION OF LITIGATION
At closing, the parties shall execute a Stipulation Discontinuing the
Action titled The Bank of Smithtown v. International Purchasing Services, Inc.
and Xxxxxxx X. Xxxxxxxx, (Supreme Court, Suffolk County, Index No. 98--17280)
which shall promptly thereafter be filed with the Court Clerk, Supreme Court,
Suffolk County.
10. CONTINUING COVENANTS
a) Xxxxxxxx shall deliver to the Bank all shares of APP which he
receives (within 7 days of receiving them) while the SBA Note and BOS Note are
outstanding together with stock powers endorsed in blank and Form UCC-l's in
proper form for recording. Said shares shall be free and clear of encumbrances
at the time of delivery and shall be held pursuant to the terms of the Security
Agreement.
b) APP shall provide quarterly financial statements to the Bank as
long as the APP Note is outstanding.
All covenants contained in this paragraph 10 shall survive closing.
11. APPLICABLE LAW
This agreement shall be construed in accordance with the laws of the
State of New York.
12. MISCELLANEOUS
a) Notices. Any notice to be given hereunder shall be sufficient if in
writing and sent by certified mail, return receipt requested, to the intended
party at its respective address first above written, with a copy to its
respective attorney as follows:
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Xxxxx X. Xxxxxxxx & Associates, attorney for IPS, Xxxxxxxx and APP, 00 Xxxx
Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Xxx X. Xxxxxxx; Pinks &
Arbeit, attorneys for The Bank of Smithtown, 000 Xxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxx Xxxx 00000; or to such other address as any party hereto may
designate by notice to all other parties.
b) Assignment. The provisions of this agreement are binding upon the heirs,
successors and assigns of the parties hereto.
c) Waiver of Breach. Waiver by any party of a breach of any provision of
this agreement by another party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the day and year first above written.
INTERNATIONAL PURCHASING SERVICES, INC.
by /s/ Xxxxxxx Xxxxxxxx Pres
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XXXXXXX XXXXXXXX, PRES.
/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX
ACCIDENT PREVENTION PLUS, INC.
by /s/ Xxxxxxx Xxxxxxxx CEO
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XXXXXXX XXXXXXXX, CEO
THE BANK OF SMITHTOWN
by /s/ Xxxxxx Xxxxxx AVP
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0863T
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STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
On the 30th day of November, 1998, before me personally came Xxxxxxx Xxxxxxxx to
me known, who, being by me duly sworn, did depose and say that he resides at 00
Xxxxx Xx. Xxxx, Xxxxxxxx, XX 00000, that he is the President of International
Purchasing Services, Inc., the Corporation described in and which executed the
foregoing instrument; and that he signed his name by order of the Board of
Directors of said Corporation.
/s/ Xxxxxx Xxxxxx
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Notary Public
XXXXXX X. XXXXXX
Notary Public, State of New York
No. 4764850
Qualified in Suffolk County
Commission Expires Oct. 31, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTRY OF SUFFOLK )
On the 30th day of November, 1998, before me personally came Xxxxxxx X.
Xxxxxxxx, to me known to be the individual described in and who executed the
foregoing instrument, and acknowledged that he executed the same.
/s/ Xxxxxx Xxxxxx
-------------------------------------
Notary Public
XXXXXX X. XXXXXX
Notary Public, State of New York
No. 4764850
Qualified in Suffolk County
Commission Expires Oct. 31, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF SUFFOLK )
On. the 30th day of November, 1998, before me personally came Xxxxxxx
Xxxxxxxx to me known, who, being by me duly sworn did depose and say that he is
the CEO of Accident Corporation described in and instrument; and that he signed
his name by order of the Board of Directors of said Corporation.
/s/ Xxxxxx Xxxxxx
-------------------------------------
Notary Public
XXXXXX X. XXXXXX
Notary Public, State of New York
No. 4764850
Qualified in Suffolk County
Commission Expires Oct. 31, 0000
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XXXXX XX XXX XXXX )
) ss.:
COUNTY OF SUFFOLK )
On the 30th day of November, 1998, before me personally came Xxxxxx Xxxxxx
to me known, who, being by me duly sworn, did depose and say that he resides at
____________________ , that he is the Asst. VP of The Bank of Smithtown, the New
York Banking Corporation described in and which executed the foregoing
instrument; and that he signed his name by order of the Board of Directors of
said New York State Banking Corporation.
/s/ Xxxxxxxx X. Xxxx
----------------------------------------
Notary Public
0863T
XXXXXXXX X. XXXX
Notary Public, State of New York
No. 01LA5055061
Qualified in Suffolk County
Commission Expires Jan. 29, 2000
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