Stipulation for Judgement dated as of December 16, 2002



 
Exhibit 10.21

 

	
	 1
	  	 David E. Bower

	
	 	  	 LAW OFFICES OF DAVID E. BOWER

	
	 2
	  	 510 Arizona Avenue

	
	 	  	 Santa Monica, CA 90401

	
	 3
	  	 Mailing Address

	
	 	  	 P. O. Box 2094

	
	 4
	  	 Santa Monica, CA 90406-2094

	
	 5
	  	 Attorney for Plaintiffs. CTI Contracting

	
	 6
	  	 SUPERIOR COURT OF THE STATE OF
CALIFORNIA

	
	   7
	  	 COUNTY OF SAN DIEGO



	 	
	 	 
	
	 8
	  	 CTI CONTRACTING, a California
	  	 Case No.: GIN 012774

	
	 	  	 Corporation
	  	 
	
	 9
	  	 Plaintiff,
	  	 STIPULATION FOR JUDGMENT

	
	 	  	 vs.
	  	 
	
	 10
	  	 	  	 
	
	 	  	 VARITEK INDUSTRIES, INC., et al.,
	  	 
	
	 11
	  	 Defendants
	  	 
	 	
	 	 


	
	 12
	  	 This agreement (Agreement herein) is entered into on the date signed below, by
and between CTI
	  	 
	
	 13
	  	 Contracting (CTI or Plaintiff herein) and Varitek Industries, Inc.
(Varitek or Defendant herein)
	  	 
	
	 14
	  	 and is made with reference to the following facts:
	  	 
	
	 15
	  	         The above referenced law suit was
filed by Plaintiff seeking damages for breach of
	  	 
	
	 16
	  	 contract and other causes of action regarding the failure of Defendant to pay for
services
	  	 
	
	 17
	  	 materials and equipment provided for tenant improvements for Defendant, at a property
they
	  	 
	
	 18
	  	 were leasing from Cal West Industrial Properties, located at 1499 Poinsettia Avenue
in Vista
	  	 
	
	 19
	  	 California. Defendant responded with a general denial Answer.
	  	 
	
	 20
	  	         Several other law suits were also
flied by the various subcontractors (CGE Inc.; T-
	  	 
	
	 21
	  	 Enterprises dba Concrete Cutting; San Marcos Glass; Hanna Plumbing and Casper) who
had
	  	 
	
	 22
	  	 provided labor, equipment and materials to the Varitek Project, seeking foreclosure
of their
	  	 
	
	 23
	  	 mechanic’s liens and other remedies.
	  	 
	
	 24
	  	         Thereafter, a settlement agreement
was reached and signed by all parties, which provided
	  	 
	
	 25
	  	 for payment of a total of $272,000.00 to CTI, with separate agreements for
distribution to each
	  	 
	
	 	  	 subcontractor, from this fund. This fund was to be contributed to as follows: Cal
West
	  	 

 
 


Stipulation for Judgment 
1 








 

	
	 1
	  	 Industrial Properties (CalWest herein) was to pay $114,000.00 and Varitek
(Defendant) was to

	
	 2
	  	 pay 158,000.00, with all funds going to CTI’s attorney, in trust, to be
disbursed in exchange for

	
	 3
	  	 dismissals and releases of liens as to each subcontractor and CTI and all actions
involved in the

	
	 4
	  	 then consolidated case. Cal West did in fact pay $114,000.00, but Varitek failed to
pay the

	
	 5
	  	 $158,000.00.

	
	 6
	  	 Now, a portion of the funds from Varitek ($100,000.00) is immediately available for
disbursal

	
	 7
	  	 and an agreement has been reached as to how those funds will be disbursed and terms
for

	
	 8
	  	 payment of the remaining funds are agreed upon as follows:

	
	 9
	  	 1.     Defendant shall pay to Plaintiff, the total sum of
$158,000.00 in full settlement of all

	
	 10
	  	 claims herein, as follows:

	
	 11
	  	         a.     Defendant
shall pay to Plaintiff, the sum of $100,000.00 upon execution of this

	
	 12
	  	 agreement, which shall take place before December 17, 2002. Such transfer shall be by
wire

	
	 13
	  	 transfer to the trust account of David E. Bower, attorney for CTI
Contracting.

	
	 14
	  	         b.     Defendant
shall pay monthly installments of $6,500.00 each, beginning May 1,

	
	 15
	  	 2003, and continuing on the first day of each month, until the remaining balance of
$58,000.00 is

	
	 16
	  	 paid in full (7 monthly payments of $6,500.00 and one final payment of the remaining
balance of

	
	 17
	  	 principal and interest. Interest shall accrue on the unpaid balance at the rate of 7%
per annum.

	
	 18
	  	 Monthly payments shall be first applied to interest, then principal. A Promissory
Note setting

	
	 19
	  	 forth this obligation and its terms shall also be executed in conjunction with this
Stipulation. All

	
	 20
	  	 payments shall be made to Attorney for Plaintiff, and made payable to “Law
Office of David E.

	
	 21
	  	 Bower for CTI Contracting”. Payments shall be deemed received if actually
received by the due

	
	 22
	  	 date or if received after the due date, if postmarked on the business day prior to
the due date for

	
	 23
	  	 each payment, and properly addressed to Plaintiff’s attorney1.
 ______________

	 24
	  	 1 The address for Plaintiff’s attorney is David E. Bower, P. O. Box 2094, Santa Monica, CA 90406-

	 25
	  	 2094, for mail. Hand deliveries or carriers other than the US Post office, should be sent to 510
Arizona

	 	  	 Avenue, Santa Monica, CA 90401. Plaintiff’s counsel shall be responsible for providing a change
of

	 	  	 address if necessary, in writing, otherwise, delivery to this address shall be deemed
appropriate.


 
 


Stipulation for Judgment 
2 








 

	
	 1
	  	 2.    Upon verification of the deposit and availability of the
$100,000.00 in the trust account of

	
	 2
	  	 David E. Bower, as provided for in paragraph 1(a), CTI shall, within 2 business days,
file a

	
	 3
	  	 Request for Dismissal of this action, with prejudice as to all parties, except
Varitek, and all

	
	 4
	  	 causes of action, except as to Varitek. Also, within the same two day period, CTI
shall disburse

	
	 5
	  	 funds to each of the above listed subcontractors (the “Subcontractors”).
Upon verification of the

	
	 6
	  	 delivery of these funds, CTI’s counsel shall give written acknowledgment to
Darren Cottriel,

	
	 7
	  	 attorney for Cal West, that he is authorized to record their mechanic’s lien
releases and Requests

	
	 8
	  	 for Dismissal that he is holding in trust. Plaintiff shall also File a Notice of
Conditional

	
	 9
	  	 Settlement (California Rules of Court Rule 225(c)) with the Court, setting
forth the generalities

	
	 10
	  	 of this Stipulation and indicating dismissal to be filed, if all terms are completed,
by December

	
	 11
	  	 19, 2003.

	
	 12
	  	 3.    Upon completion of the payments called for in paragraph
1(a) and 1(b) above, CTI shall

	
	 13
	  	 cause a Request for Dismissal of this entire action, to be filed with prejudice and
without

	
	 14
	  	 assessment of costs.

	
	 15
	  	 
	
	 16
	  	 4.    This Agreement is contingent upon the occurrence of the
following:

	
	 17
	  	         a.    The
Subcontractors or their attorney shall execute a written consent to release all

	
	 18
	  	 liens, claims, and dismiss all litigation, except as to such rights of theirs under
this Agreement,

	
	 19
	  	 upon their receipt of their respective shares of monies dispersed to them by CTI
under this

	
	 20
	  	 Agreement; and

	
	 21
	  	         b.    CalWest and
Varitek entering into an agreement (“CalWest Agreement”) which

	
	 22
	  	 contains the following material terms:

	
	 23
	  	                 1.    Varitek delivers a Promissory Note to CalWest in the amount of

	
	 24
	  	 $228,000.00, with said Note bearing interest at the rate of Seven Percent (7%) per
annum

	
	 25
	  	 beginning from December 9, 2002; payments of $25,440.00 a month beginning May 1, 2003
and


 
 


Stipulation for Judgment 
3 








 

	
	 1
	  	 continuing on the first of each successive month; with a final payment of the
remaining balance

	
	 2
	  	 of principal and interest.

	
	 3
	  	             2.    The execution of a Stipulation For Judgment between Varitek and

	
	 4
	  	 CalWest along the same general form as this herein Stipulation For
Judgment.

	
	 5
	  	         If the payment called for in item
1(a) above is not made by December 16, 2002, then this

	
	 6
	  	 agreement shall be null and void.

	
	 7
	  	 
	
	 8
	  	         The parties hereto have agreed that
if Defendant fails to pay the amounts specified above,

	
	 9
	  	 in item 1(b), in a prompt and timely manner (time is of the essence in this
Stipulation) Plaintiff

	
	 10
	  	 or Plaintiff’s counsel may give notice of such default by delivering such notice
to Defendant’s

	
	 11
	  	 counsel via facsimile or hand delivery2. If such default is not fully cured within 10 days after

	
	 12
	  	 delivery of such notice of default, then the following judgment may be entered, upon
ex-parte

	
	 13
	  	 (24 hour) telephonic notice to Defendant’s counsel:

	
	 14
	  	         Judgment for
Money:    Judgment shall be entered in favor of Plaintiff and against

	
	 15
	  	 Defendants in the sum of $58,000.00 plus interest from December 9, 2002 at 7%
per annum, to

	
	 16
	  	 the date of the judgment. (interest at 10% per annum shall accrue post judgment) The
amount of

	
	 17
	  	 this judgment shall be reduced by amounts previously paid by Defendants under this
stipulation,

	
	 18
	  	 and, shall also include additional sums fair costs, including reasonable
attorney’s fees required to

	
	 19
	  	 obtain such judgment. The Plaintiff shall have full right and authority to
immediately commence

	
	 20
	  	 execution hereunder;

	
	 21
	  	 
	
	 22
	  	 ______________

	
	 23
	  	 2 Defendant’s attorney (Ron Mix) is located at 3639 Midway Drive, Suite 293, San Diego, California,

	
	 	  	 Phone: 619-436-2800, Fax: 619-223-6794. It shall be the sole responsibility of
Defendant (and its

	
	 24
	  	 attorney) to provide any change of such address, phone and/or fax number information,
in writing,

	
	 	  	 immediately upon any change. Fax or hand delivery to the above referenced number
and/or address shall

	
	 25
	  	 be deemed proper notice hereunder, unless written notice of the change of address or
number has been

	
	 	  	 given prior to such Notice, regardless of whether Defendant or its counsel actually
received such Notice.


 
 


Stipulation for Judgment 
4 








 
 

	
	 1    
	  	         Judgment shall be entered with the
Declaration of Plaintiff’s counsel, showing the amount

	
	 2    
	  	 due, credits given and event of default, to be submitted to the Court upon Ex-Parte
application

	
	 3    
	  	 for judgment, with no further evidence being required.

	
	 4    
	  	         Defendants hereby acknowledge that
they have had full opportunity and have been

	
	 5    
	  	 advised to seek and have this Stipulation reviewed by legal counsel of their own
choosing, before

	
	 6    
	  	 signing this stipulation.

	
	 7    
	  	         The judgment so entered shall be
substantially in the form attached hereto as Exhibit A.

	
	 8    
	  	         The parties each represent herein
that the individual signing this agreement in the

	
	 9    
	  	 capacity stated has full authority to bind the corporation on behalf of whom they are
signing.

	
	 10    
	  	         Signatures transmitted via fax
machine shall be effective as if they were original

	
	 11    
	  	 signatures.



	
	 12    
	  	 December 16, 2002
	 	 VARITEK INDUSTRIES, INC.

	 13    
	  	 	 	 By:
  
	 	

	 	  	 	 	 Its:

	 14    
	  	 	 	 	 	 
	
	 15    
	  	 December 16, 2002
	 	 CTI CONTRACTING

	 16    
	  	 	 	 By:  
  
	 	 /s/    Richard
Hatcher                                       
             


	 	  	 	 	 Its:    President

	 17    
	  	 REVIEWED AND APPROVED:
	 	 
	
	 18    
	  	 December 16, 2002
	 	 LAW OFFICE OF DAVID E. BOWER

	 19    
	  	 	 	 By:
  
	 	 /s/    Ronald Mix


	 	  	 	 	 David E. Bower, attorney for CTI Contracting (Plaintiff)

	 20    
	  	 	 	 	 	 
	
	 21    
	  	 December 16, 2002
	 	 LAW OFFICE OF RONALD MIX

	 22    
	  	 	 	 By:
  
	 	 /s/    Ronald Mix


	 	  	 	 	 Ronald Mix, attorney for Varitek Industries, Inc. (Defendant)

	 23    
	  	 	 	 	 	 
	
	 24    
	  	 December 16, 2002
	 	 PILLSBURY WINTHROP, LLP

	 25    
	  	 	 	 By:
  
	 	 /s/    Darren K.
Cottriel                    


	 	  	 	 	 Darren K. Cottriel, Attorney For Cal West Industrial Properties, LLC (interested
party)


 


Stipulation for Judgment 
5