EXHIBIT 4.14
MODIFICATION AGREEMENT AND RELEASE
THIS MODIFICATION AGREEMENT ("Agreement") is by and between Xxxx,
LLC, a Cayman Islands limited liability company ("Xxxx"), Greenfield Capital
Partners, LLC, RBB Bank Aktiengeselischaft ("RBB"), Amro International, S.A.
("Amro"), Austinvest Anstall Balzers ("AAB"), Esquire Trade & Finance, Inc.
("ETF"), Garros, Ltd. ("Garros"), and Intercoastal Financial Services Corp.
("IFSC") (sometimes collectively referred to as the "Holders"), on the one hand,
and Global MAINTECH Corporation, a Minnesota corporation ("GBMT"), on the other
hand, in accordance with the terms and conditions set forth below and is
effective on the day the last Holder signs ("effective date").
RECITALS
1. On or about December 31, 2000, Xxxx and GBMT entered into that certain
Securities Purchase Agreement (the "Series E Securities Purchase Agreement")
whereby Xxxx purchased 2,500 shares of Series E Convertible Preferred Stock from
GBMT, for the sum of $2,600,000 (the "Series E Preferred")
2. On or about August 24, 2000, Xxxx and GBMT entered into that certain
Securities Purchase Agreement (the "Series G Securities Purchase Agreement")
whereby Xxxx purchased 600 shares of Series G Convertible Preferred Stock from
GBMT, for the sum of $600,000 (the "Series G Preferred")
3. On or about January 19, 2000, Amro, ADC, AAB, ETF, Garros, IFSC, and
Nesher (the "Amro Group"), and GBMT entered into that certain Securities
Purchase Agreement (the "Series D Securities Purchase Agreement") whereby the
Amro Group purchased 2,725 shares of Series D Convertible Preferred Stock from
GBMT, for the sum of $2,725,000 (the "Series D Preferred"). A portion of the
Series D Preferred was rolled over from the Amro Group's purchase of Series C
Convertible Preferred Stock from GBMT on or about March 25, 1999.
4. On or about February 23, 2000, RBB and GBMT entered into that certain
Securities Purchase Agreement (the "Series F Securities Purchase Agreement")(the
Series C Securities Purchase Agreement, Series D Securities Purchase Agreement,
Series E Securities Purchase Agreement, Series F Securities Purchase and Series
G Securities Purchase Agreement and documents entered into in connection
therewith, all of which are listed in Schedule A, attached hereto, are sometimes
collectively referred to as the "Preferred Documents"), whereby RBB purchased
2,000 shares of Series F Convertible Preferred Stock from GBMT, for the sum of
$2 million (the "Series F Preferred")(the Series C Preferred, Series D
Preferred, Series E Preferred, Series F Preferred and the Series G Preferred are
sometimes collectively referred to as the "Preferred Shares")
5. GBMT is in default of the Preferred Documents for each series of the
Preferred Shares referred to herein, which defaults include, but are not limited
to,
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(i) GBMT's failure to register some or all of the shares of common stock into
which the Preferred Shares are convertible and its failure to maintain the
effectiveness of its registration statement which was declared effective on July
24, 2000, (ii) GBMT's failure to authorize 200% of the shares of common stock
into which, from time to time, the Preferred Shares were convertible into based
on GBMT's common stock price and (iii) GBMT's failure to honor all of the
conversion notices delivered by the Holders pursuant to the Preferred Documents
(collectively the "Defaults").
6. GBMT, for various reasons, experienced setbacks and by the end of 2000
was in a financial crisis.
7. The following board members and management of GBMT resigned effective
January 12, 2001: Xxxx Xxxxx, Xxxx Xxxxxx, Xxxx XxXxxxxxx, Xxx Xxxxxx, and Xxxxx
Xxxx (as a director and President).
8. Xxxx Xxxxx ("Xxxxx") and Xxxxxxx Xxxxxx ("Xxxxxx") are currently the
only directors of GBMT.
9. The Holders have agreed to conditionally waive the Defaults and
conditionally modify certain terms of the Preferred Documents pursuant to terms
and conditions hereof
10. GBMT acknowledges that it has no knowledge that the Preferred Holders
have either breached the Preferred Documents, or federal securities laws and
further acknowledges that the Holders have entered into this Agreement as an
accommodation to GBMT to permit it to restructure its businesses and capital
structure.
11. GBMT agrees to release all claims it may have against the Holders and
waive all defenses to its performance under the Preferred Documents pursuant to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties herein contained, the parties agree
as follows:
TERMS
ARTICLE I
RESCISSIONS, WAIVERS AND PREFERRED DOCUMENT AMENDMENTS;
COVENANTS BY GBMT
1.1 AMOUNTS OUTSTANDING. As of the date hereof, GBMT hereby
acknowledges and agrees that each Holder owns that number of Preferred Shares
(with the stated value thereof) set forth in Schedule A hereto, and owes each
Holder dividends through June 15, 2001, as set forth in said schedule. GBMT
hereby further acknowledges
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that it owes each Holder late filing and delivery penalties, all of which are
conditionally waived by the Holders subject to the conditions set forth in
Section 1.2 hereof.
1.2 HOLDERS' CONDITIONAL RESCISSION AND WAIVER OF DEFAULTS AND
PENALTIES. In consideration for GBMT's release of any and all claims against the
Holders pursuant to Article III hereof, the Holders hereby agree to (A) rescind
outstanding redemption and conversion notices delivered with respect to the
Preferred Shares, (B) waive GBMT's defaults (arising prior to the date hereof)
under each and every Preferred Document applicable to each Holder and waive any
penalties accruing in connection with any such default, (C) waive any penalties
accrued under the Registration Rights Agreements (the "Registration Agreements")
(whether or not related to a default) and (D) amend the Preferred Documents
applicable to each Holder as set forth in Section 1.3 below. The amendment to
the Preferred Documents as set forth in Section 1.3 below and all waivers of
defaults and penalties set forth in Sections (B) and (C) are conditional on
GBMT's compliance with the terms of this Agreement and the Preferred Documents
as modified herein, and shall be null and void if GBMT defaults under any of the
terms and conditions hereof or of the Preferred Documents as modified by this
Agreement.
1.3 MODIFICATION OF PREFERRED DOCUMENTS. Each Holder hereby
agrees to modify the Preferred Documents applicable to the Preferred Shares
held by such Holder, as set forth below:
(a) GBMT hereby acknowledges it is obligated to file registration
statements and register shares underlying each series of Preferred referenced
herein by certain specified dates pursuant to those certain Registration
Agreements separately entered into by GBMT and each holder. Notwithstanding
anything to the contrary in the Preferred Documents, including the Registration
Agreements , the obligation for GBMT to file (or refile) registration statements
for each of series of Preferred Shares is hereby suspended on the condition that
(i) it is not otherwise in default of this Agreement or the Preferred Documents,
and (ii) if GBMT files a registration statement pursuant to the Securities Act
of 1934 to permit the sale of common stock of GBMT (or securities resulting from
a change of GBMT common stock into the same or a different number of shares of
another class or classes of stock or securities of GBMT or another entity or
shares of stock of any entity GBMT is merged into) on any public exchange,
NASDAQ or the over-the-counter market, GBMT shall include in such registration
statement the common stock that the Preferred Shares (and warrants issued in
connection with the issuance of the Preferred Shares) are or have been converted
into. If GBMT is in default of any of its obligations hereunder or the Preferred
Documents, than the original time periods for the accrual of penalties set forth
in the Registration Statements prior to this Agreement shall be restored, and
penalties accrued prior to the date of this Agreement will be reinstated and
penalties will accrue from and after the date of this Agreement based on said
original time periods.
(b) GBMT hereby acknowledges that it was obligated to maintain
authorized and reserved for issuance, free from preemptive rights, shares of
GBMT common stock ranging from one hundred percent (100%) and two hundred
percent
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(200%) of the number of shares of GBMT common stock issuable upon conversion of
the applicable series of Preferred Shares, dividends due on the Preferred Shares
and the exercise of warrants ("Warrants") issued in connection therewith. GBMT
hereby represents and acknowledges that as of November 1, 2001, it had
10,052,155 common shares issued and outstanding out of 18,500,000 common shares
authorized and, accordingly, has insufficient common shares authorized and
reserved for issuance in connection with any future conversion of Preferred
Shares and Warrants. The parties hereto hereby agree that the requirement to
maintain authorized shares pursuant to the Preferred Agreements shall be
satisfied (and GBMT's default for failure to maintain sufficient authorized
shares shall be waived) if GBMT notices a shareholders' meeting to increase its
authorized common stock as required by the Preferred Agreements on or before 60
days from the effective date of the agreement, and obtains approval for such
authorization from its shareholders on or before 180 days from the effective
date of the agreement. GBMT's failure to either call said shareholders' meeting
or obtain within the time frame stated shall be deemed a default. Additionally,
the parties hereto acknowledge that GBMT's common stock is currently listed for
trading on the Over-the-Counter Bulletin Board ("OTCBB") and GBMT agrees that
its failure to maintain such listing for a consecutive period of 30 days shall
constitute a default hereunder.
(c) On the condition that GBMT is not in default hereunder or any of
the Preferred Documents, the Holders hereby agree that (i) they shall suspend
conversions of the Preferred Shares for a period of six months from the date of
this Agreement, (ii) during the period from six months to nine months after the
date of this Agreement each Holder shall not convert more than one-third (1/3)
of the Preferred Shares set forth next to such Holder's name in Schedule A
hereto, (iii) during the period from nine (9) months to twelve (12) months after
the date of this Agreement each Holder shall not convert more than an additional
one-third (1/3) of the Preferred Shares set forth next to such Holder's name in
Schedule A hereto, and (iv) commencing twelve (12) months after the date hereof
there shall be no further restrictions on any Holder's right to convert
Preferred Shares. However, shares issuable and relating to accrued dividends due
shall not be convertible for two years from the date of this agreement unless
GBMT is sold to a third party in which case such dividends shall become due and
payable immediately and any and all other time restrictions agreed to by any
party to this agreement shall cease to exist.
(d) On the condition that GBMT is not in default hereunder or any of
the Preferred Documents, the Holders hereby agree that notwithstanding anything
to the contrary in the Preferred Documents, the conversion formula for the
Preferred Shares shall be modified as follows (all prices referred to below are
based upon the formula set forth in each of the applicable Preferred Documents
for determining the "current market price" of the stock on the date of a
conversion notice is delivered by a Holder to GBMT and for purposes hereof the
current market price shall be a minimum of one dollar ($1.00)):
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If the current market price is from:
$1.00 to $1.24 the conversion discount shall equal 5% $1.25 to $1.49
the conversion discount shall equal 10% $1.50 to $1.74 the
conversion discount shall equal 15% $1.75 to $2.00 the conversion
discount shall equal 20% $2.00 and up the conversion discount shall
equal 25%
For example, if the current market price as calculated on the date of conversion
is $1.30 the conversion price shall equal $1.17 ($1.30 x 90%).
Notwithstanding the foregoing and except as provided below, the modifications to
the conversion formula for the Preferred Shares which are set forth in this
Section 1.3(d) below shall be terminated one (1) year from the date of this
Agreement (the "Anniversary Date") and the conversion formula set forth in the
Preferred Documents shall be reinstated. In the event that during each of the
thirty (25) trading days immediately preceding the Anniversary Date, the common
stock has a closing bid price above one dollar ($1.00), than the termination
date for the formula contained in Sections 1.3(d)-(e) shall be extended for an
additional three (3) months beyond the Anniversary Date.
(e) On the condition that GBMT is not in default of this Agreement,
each Holder (individually and not in the aggregate) will limit their daily sales
of GBMT common shares as follows:
If the previous days closing price for GBMT common stock is from:
$1.00 to $1.24, each Holder's sales shall not exceed 15% of the
previous three trading days average daily volume
$1.25 to $1.74, each Holder's sales shall not exceed 20% of the
previous three trading days average daily volume
$1.75 and up, each Holder's sales shall not exceed 25% of the
previous three trading days average daily volume
Notwithstanding the foregoing, the volume limitations set forth in this Section
1(e) shall terminate on the Anniversary Date.
(f) On the condition that GBMT does not breach the terms of this
Agreement, the Holders hereby agree to waive the accrual of dividends on the
Preferred Shares which accrue from and after June 15, 2001.
(g) On the condition that GBMT does not breach the terms of this
Agreement, GBMT shall have the right to exercise its redemption rights at a
price per preferred share equal to (i) 110%, multiplied by (ii) the stated value
plus accrued dividends through June 15, 2001. Redemptions shall occur pro rata
among the different classes of preferred shares and pro rata among different
holders of the same class of preferred shares. Except for the price adjustment
provided for herein, the terms and
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conditions of any redemption shall otherwise be subject to each of the terms
and conditions contained in the Preferred Documents
1.4 WARRANTS TO XXXX XXXXX AND XXXXXXX XXXXXX. GBMT shall not issue
any further warrants or stock options to Xxxx Xxxxx ("Xxxxx") and Xxxxxxx Xxxxxx
("Xxxxxx")(or their respective affiliates or family members), except as follows:
Xxxxx shall be entitled to the issuance of warrants, from time to
time as conversions by Holders occur, to warrants equal to (i) the
number of shares issued to each of the Holders upon a conversion of
Preferred Shares, divided by 1.10, multiplied by (ii) ten percent
(10%). The strike price will be $1.10.
Xxxxxx shall be entitled to the issuance of warrants, from time to
time as conversions by Holders occur, to warrants equal to (i) the
number of shares issued to each of the Holders upon a conversion of
Preferred Shares, divided by 1.10, multiplied by (ii) three percent
(3%). The strike price will be $1.10.
Xxxxx and Xxxxxx agree that neither the warrants issued pursuant to the
foregoing formula nor the shares issued upon exercise thereof, nor any other
shares underlying any security issued previously or in the future shall be sold,
conveyed, hypothecated or otherwise transferred (except to a trust for estate
planning purposes) for a period of eighteen (18) months from the date hereof.
following the exercise of the option except if GBMT is sold to a third party and
all the preferred shareholders are made whole. The general terms of the warrants
shall not be amended without the written consent of a majority of the Holders of
each series of Preferred Stock.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 GBMT'S REPRESENTATIONS AND WARRANTIES. GBMT hereby makes the
following representations and warranties, each of which representations and
warranties is and shall be (i) true in all respects as of the date of this
Agreement, and (ii) shall survive the closing of the transactions contemplated
hereby:
A. CONCERNING THE SETTLEMENT SHARES. Except as otherwise expressly
provided for herein, the GBMT Common Shares into which the Preferred Shares are
convertible (and which are issuable upon the exercise of the Warrants) will be
duly authorized and validly issued, fully paid and non-assessable and will not
subject the holder thereof to personal liability by reason of being such holder.
There are no preemptive rights of any stockholder of GBMT, as such, to acquire
said GBMT common shares.
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B. REPORTING COMPANY STATUS. GBMT is a corporation duly organized,
validly existing and in good standing under the laws of the State of Minnesota
and has the requisite corporate power to own its properties and to carry on its
business as now being conducted. GBMT has registered its Common Stock pursuant
to Section 12(g)of the 1934 Act, and the Common Stock is listed for trading on
the OTCBB. GBMT has received no notice, either oral or written, with respect to
the continued eligibility of the Common Stock for such listing. GBMT shall
continue to meet all requirements for continued listing of its stock on the
OTCBB in accordance with this agreement. In connection therewith, GBMT hereby
represents that it has filed its Form 10-QSB for the quarter ended September 30,
2001 and is current with respect to its 34 Act reporting requirements.
C. AUTHORIZED SHARES. GBMT has, as of November 1, 2001, 18,500,000
authorized shares of Common Stock of which 10,052,845 shares are issued and
outstanding.
D. MODIFICATION AGREEMENT. This Agreement and the transactions
contemplated hereby, have been duly and validly authorized by GBMT. This
Agreement has been duly executed and delivered by GBMT and is a valid and
binding agreement of GBMT, enforceable in accordance with its terms, and
subject, as to enforceability, to general principles of equity and to
bankruptcy, insolvency, moratorium, and other similar laws affecting the
enforcement of creditors' rights generally.
E. NON-CONTRAVENTION. The execution and delivery of this Agreement
by GBMT, and the consummation by GBMT of the other transactions contemplated by
this Agreement, do not and will not conflict with or result in a breach by GBMT
of any of the terms or provisions of, or constitute a default under (i) the
articles of incorporation or by-laws of GBMT, each as currently in effect, (ii)
) to its actual knowledge, any indenture, mortgage, deed of trust, or other
material agreement or instrument to which GBMT is a party or by which it or any
of its properties or assets are bound, including any listing agreement for the
Common Stock (except as herein set forth), (iii) to its actual knowledge, any
existing applicable law, rule, or regulation or any applicable decree, judgment,
or order of any court, United States federal or state regulatory body,
administrative agency, or other governmental body having jurisdiction over GBMT
or any of its properties or assets, or (iv) any listing agreement for its Common
Stock, except such conflict, breach or default which would not have a material
adverse effect on the transactions contemplated herein.
F. APPROVALS. To GBMT's actual knowledge, except as otherwise
expressly provided for herein, no authorization, approval or consent of any
court, governmental body, regulatory agency, self-regulatory organization, or
stock exchange or market or the stockholders of GBMT is required to be obtained
by GBMT for the issuance of GBMT common shares as contemplated by this
Agreement, except such authorizations, approvals and consents that have been
obtained or require shareholder approval to increase the number of authorized
shares.
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G. ABSENCE OF LITIGATION. Except for the Litigation and as set forth
in GBMT's SEC Reports, which Holders has reviewed, there is no action, suit,
proceeding, inquiry or investigation before or by any court, public board or
body pending or, to the knowledge of GBMT, threatened against or affecting GBMT,
wherein an unfavorable decision, ruling or finding would have a material adverse
effect on the properties, business or financial condition, results of operation
or prospects of GBMT and its subsidiaries, the transactions contemplated by this
Agreement, or which would adversely affect the validity or enforceability of, or
the authority or ability of GBMT to perform its obligations under, this
Agreement. Notwithstanding the foregoing, this representation specifically
excludes, those claims (in connection with there is no pending litigation) which
are less than $200,000.
2.2 HOLDERS'S REPRESENTATIONS AND WARRANTIES. Each Holder (severally
but not jointly) hereby makes the following representations and warranties, each
of which representations and warranties is and shall be (i) true in all respects
as of the date of this Agreement, and (ii) shall survive the closing of the
transactions contemplated hereby:
A. MODIFICATION AGREEMENT. This Agreement has been duly and validly
authorized, executed and delivered on behalf of Holder and is a valid and
binding agreement of Holder enforceable in accordance with its terms, subject as
to enforceability to general principles of equity and to bankruptcy, insolvency,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally.
B. NON-CONTRAVENTION. The execution and delivery of this Agreement
by Holder and the consummation by Holder of the other transactions contemplated
by this Agreement, do not and will not conflict with or result in a breach by
Holder of any of the terms or provisions of, or constitute a default under (i)
the incorporation/formation documents of Holder, as currently in effect, (ii)
any indenture, mortgage, deed of trust, or other material agreement or
instrument to which Holder is a party or by which it or any of its properties or
assets are bound, or (iii) to its knowledge, any existing applicable law, rule,
or regulation or any applicable decree, judgment, or order of any court, United
States federal or state regulatory body, administrative agency, or other
governmental body having jurisdiction over Holder or any of its properties or
assets, except such conflict, breach or default which would not have a material
adverse effect on the transactions contemplated herein.
ARTICLE III
RELEASE OF CLAIMS
Except for the performance by the parties of the provisions of this
Agreement and further except for the representations, warranties and indemnities
of the parties contained herein (which representations, warranties and
indemnities shall survive the consummation of this Agreement and as to which the
parties shall continue to be liable), GBMT, for itself and on behalf of all its
direct and indirect partners, officers,
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directors, employees, affiliates (both persons and entities), representatives,
agents, representatives, servants, trustees, beneficiaries, predecessors in
interest, successors in interest, assigns, nominees and insurers (collectively,
the "Releasing Parties"), shall be deemed to have released and forever
discharged Holders and all direct and indirect partners, officers, directors,
employees, affiliates(both persons and entities, including, without limitation,
Xxxxxx Xxxxx, Xxx Xxxxxxx, Navigator Management and Thomson Kernaghan) and
representatives, agents, representatives, servants, trustees, beneficiaries,
predecessors in interest, successors in interest, assigns, nominees and insurers
of Holders and Southridge Capital Management LLC (collectively "related
parties"), of and from any and all claims, demands, actions and causes of
action, whether known or unknown, fixed or contingent, that any of the Releasing
Parties may have had, may now have or may hereafter acquire with respect to any
matters whatsoever arising under or in any way related to (i) Purchase
Agreements and Credit Agreement and all agreements entered into in connection
therewith (collectively the "Documents"), (ii) any act which may constitute a
defense to the performance of the Documents, and (iii) any claims GBMT may have
against Holders and related parties with respect to or in connection with any
alleged violation of any state or Federal securities laws, including the
Securities Act and the Exchange Act (as defined in the Purchase Agreements).
The parties agree not to divulge the terms of this Agreement to any
person or entity whatsoever, unless required to do so by law or as provided for
in this Agreement.
GBMT represents, warrants and covenants that it has not, and at the
time this release becomes effective will not have, sold, assigned, transferred
or otherwise conveyed to any other person or entity all or any portion of its
rights, claims, demands, actions or causes of action herein released.
GBMT acknowledges that it is familiar with Section 1542 of the Civil
Code of the State of California, which provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor."
GBMT hereby waives any and all rights and benefits that it now has or in the
future may have under Section 1542 of the Civil Code (and under the comparable
provisions of any other applicable law) and agrees and acknowledges that this
Agreement contains a full and final release applying to unknown and
unanticipated claims, injuries or damages arising out of the subject matter
hereof, as well as to those now known or disclosed.
GBMT represents and warrants that it has relied wholly upon its own judgment,
belief and knowledge of the existence, nature, extent or duration of any claim,
demand, debt, damage, liability, account, reckoning, obligation, cost, expense,
cause of action, chosen action, right of indemnity, agreement or promise that it
may have against Holders and the
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other released parties and that it has made full investigations with respect to
potential rights and claims released and that it has not been influenced to any
extent whatsoever in making the releases contemplated by this agreement by any
representation or statement regarding any such matter. Each party further
represents and warrants that it is executing and delivering this Agreement and,
as applicable, the releases contemplated hereunder after having received full
legal advise as to its rights hereunder and the legal effect thereof from legal
counsel of its own choosing. Notwithstanding the above, this Agreement is not
intended to and does not, release or extinguish the rights of any of the parties
to enforce this Agreement.
ARTICLE V
GENERAL PROVISIONS
5.1 ENTIRE AGREEMENT. This Agreement and the documents referred to
herein constitute the entire understanding, arrangement and agreement among the
parties hereto or any of them with respect to the subject matter hereof, and
supersedes all prior agreements, arrangements, understandings, negotiations and
discussions with respect thereto among the parties hereto. Except as expressly
modified by the terms hereof, the Preferred Documents shall remain unamended and
in full force and effect.
5.2 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
5.3 MODIFICATIONS IN WRITING. No provisions of this Agreement may be
amended, supplemented or waived except by a writing signed by the party or
parties to be bound thereby.
5.4 EXECUTION IN COUNTERPARTS. This Agreement may be executed in two
or more counterparts, all of which taken together shall be considered one and
the same agreement and each of which shall be deemed an original.
5.5 SEVERABILITY. In case any provision of this Agreement shall be
held illegal, invalid or unenforceable, the legality, validity and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
5.6 CONSTRUCTION. This Agreement shall be governed by and construed
under the laws of the State of New York. The parties acknowledge that each party
and its counsel have reviewed and revised this Agreement and that no rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall be employed in the interpretation of this Agreement or any
amendments or exhibits to it or any document executed and delivered by either
party in connection with this Agreement. All captions in this Agreement are for
reference only and shall not be used in the interpretation of this Agreement or
any related document. If any provision of this Agreement shall be determined to
be illegal or unenforceable, such determination shall
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not affect any other provision of this Agreement and all such other provisions
shall remain in full force and effect. All Exhibits attached hereto are hereby
incorporated herein by reference.
5.7 ATTORNEYS' FEES. In the event any dispute between the parties to
this Agreement should result in litigation or other proceeding, the prevailing
party shall be reimbursed by the non-prevailing party for all reasonable costs
and expenses, including, without limitation, reasonable attorneys' fees,
incurred by the prevailing party in connection with such litigation or other
proceeding and any appeal thereof. Such costs, expenses and fees shall be
included in and made a part of the judgment recovered by the prevailing party,
if any.
5.8 CONFLICTING TERMS. To the extent any of the terms herein
conflict with the terms of the Loan Documents, the terms herein shall prevail.
5.9 INFORMED CONSENT. The parties admit, acknowledge and declare
that each has given mature and careful thought and consideration to the making
of this Agreement and to all of the obligations hereby undertaken and the rights
hereby extinguished or created; that this Agreement is entered into voluntarily,
after consultation with counsel, free of undue influence, coercion, duress,
menace or fraud of any kind; that this Agreement and each and every paragraph
and every part hereof has been carefully read and explained; and, that each
fully and completely understands and is cognizant of all of the terms and
conditions in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
Xxxx, LLC, a Cayman Islands limited liability company
By: /S/ XXXXX XXXX Dated: MARCH 11, 2002
----------------------------------- --------------
its authorized agent
Greenfield Capital Partners, LLC
By: /S/ XXXXX XXXXXX XXXX Dated: MARCH 11, 2002
----------------------------------- --------------
its authorized agent
RBB Bank Aktiengeselischaft Capital Bank - Grawa Gruppa AG (fka RBB Bank AG) as
agent of its clients
By: /S/ XXXXXXX XXXXX Dated: 2/8/02
----------------------------------- -----------
its authorized agent
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Amro International, S.A.
By: /S/ XXXXXXX XXXX Dated: 3/18/02
----------------------------------- -----------
its authorized agent
Austinvest Anstall Balzers
By: /S/ XXXXXX GRILL Dated: 3/1/02
----------------------------------- -----------
its authorized agent
Esquire Trade & Finance, Inc.
By: /S/ XXXXXXX KINDLE Dated: 3/8/02
----------------------------------- -----------
its authorized agent
Garros, Ltd.
By: /S/ XXXXX XXXXX, ATTORNEY-IN-FACT Dated: MARCH 17, 2002
----------------------------------- --------------
its authorized agent
Intercoastal Financial Services Corp.
By: /S/ XXXXXXX X. X'XXXXX Dated: 3/14/02
----------------------------------- -----------
Global MAINTECH Corporation,
a Minnesota corporation
By: /S/ XXXX XXXXX Dated: 3/21/02
------------------------------------ -----------
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SCHEDULE A
GBMT PREFERRED STOCK
PRINCIPAL REMAINING ACCRUED DIVIDENDS
SERIES (THROUGH 06/15/01)
------ ------------------- -----------------
D
---
Amro $ 200,000 $ 39,441
Austinvest $ 444,000 $ 55,413
Esquire $ 444,000 $ 55,413
Garros $ 350,000 $ 39,296
Intercoastal $ 125,000 $ 14,034
E
----------
Xxxx $1,557,000 $ 234,042
Greenfield $ 100,000 $ 11,662
F
----------
RBB $2,000,000 $ 209,205
G
----------
Xxxx $ 600,000 $ 37,128
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