TO JUDGMENT SETTLEMENT AGREEMENT
To Judgment Settlement Agreement (this “Amendment”)
is entered into as of February 16, 2018 (the “Effective Date”),
by and between Xxxx X. Xxxx, an individual (“Lender”), and MPhase
Technologies, Inc., a New Jersey corporation (“Borrower”).
Capitalized terms used in this Amendment without definition Shall have the meanings given to them in the
Settlement Agreement (as defined below).
previously sold and issued to St. Xxxxxx Investments LLC, a Utah limited liability company (formerly Known as St. Xxxxxx
Investments LLC, an Illinois limited liability company) (“SGI”)
that certain Convertible Note dated September 13, 2011 in the original principal amount of $357,500.00 (subject to an
increase to up to $557,500 upon the occurrence of certain events) (the “Note”)
pursuant to that certain Securities Purchase Agreement dated September 13, 2011 by and between SGI and Borrower (the
“Purchase Agreement,” and together with the Note and all other
documents entered into in conjunction therewith, the “Transaction Documents”).
as of October 17, 0000, XXX assigned the Note and its rights under all other Transaction Documents to Lender pursuant to a certain
Assignment of Convertible Note (the “Assignment”).
the Assignment, Lender and Borrower entered into a certain Standstill and Restructuring Agreement (the “Standstill
Agreement”) pursuant to which Lender agreed to not convert a certain portion of
the outstanding balance of the Note into shares of Borrower’s Common Stock in exchange for certain payments from
did not make such payments and Lender ultimately filed a lawsuit against Borrower in the Eastern Division of the Northern District
of Illinois in the United States District Court, Case No. 12-cv-9647 (the “Lawsuit”).
December 15, 2014, Lender was granted summary judgment in the Lawsuit and on January 28, 2015 a judgment was entered against Borrower
agreed to refrain and temporarily forbear from exercising and enforcing certain remedies against Borrower with respect to the
Judgment and to settle the Judgment pursuant to the terms and conditions of a certain Judgment Settlement Agreement dated August
18, 2017 entered into between Lender and Borrower (as amended, the “Settlement
has requested that Lender alter the terms of the payment schedule set forth in the Settlement Agreement (the “Revised
has agreed, subject to the terms, amendments, conditions and understandings expressed in this Amendment, to amend the Settlement
Agreement to reflect the Revised Payment Schedule.
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree
Each of the parties hereto acknowledges and agrees that the recitals set forth above in this Amendment are true and accurate and
are hereby incorporated into and made a part of this Amendment.
Payment Schedule. Section 3 of the Settlement Agreement is deleted in its entirety and replaced with the following:
Payments. Borrower and Lender agree that Borrower may satisfy the Judgment in full by making cash payments (the aggregate
of the cash payments payable to Lender under this Section 3 that are necessary to satisfy the Judgment, the “Settlement
Amount”) to Lender in an amount equal to either (a) (i) $265,000.00, provided such
amount is received by Lender within seven (7) months of the Effective Date, or (ii) $280,000.00, provided such amount is received
by Lender within eight (8) months of the Effective Date, or (b) (i) $375,000.00, which amount, if Borrower elects this option,
shall be payable as follows: (1) Borrower shall make a payment to Lender in the amount of $15,000.00 (the “First
Installment Payment”) on or before the date that is seven (7) months from the Effective
Date, and (2) Borrower shall continue making payments of $15,000.00 each month (each, an “Installment Payment”),
with the first such Installment Payment being due and payable on the date that is one (1) month after the date Borrower pays the
First Installment Payment to Lender and with each additional Installment Payment being due and payable to Lender on or before
the same day of each month thereafter until the date that is twenty (20) months from the Effective Date, when Borrower shall pay
to Lender the entire unpaid portion of the Settlement Amount (which would be equal to $180,000.00 if Borrower elects this option
and pays each required Installment Payment prior to such date), or (ii) $390,000.00, which amount, if Borrower elects this option,
shall be payable as follows: (1) Borrower shall make the First Installment Payment to Lender in the amount of $15,000.00 on or
before the date that is eight (8) months from the Effective Date, and (2) Borrower shall continue making Installment Payments
of $15,000.00 each month, with the first such Installment Payment being due and payable on the date that is one (1) month after
the date Borrower pays the First Installment Payment to Lender and with each additional Installment Payment being due and payable
to Lender on or before the same day of each month thereafter until the date that is twenty (20) months from the Effective Date,
when Borrower shall pay to Lender the entire unpaid portion of the Settlement Amount (which would be equal to $210,000.00 if Borrower
elects this option and pays each Installment Payment prior to such date). Each payment made pursuant to this Section 3 shall be
made by Borrower to Lender via wire transfer of immediately available funds. For all purposes of this Section 3, the term Effective
Date shall refer to the Effective Date of the original Settlement Agreement and not the Effective Date of any amendment thereto.”
and Warranties. In order to induce Lender to enter into this Amendment, Borrower, for itself, and for its affiliates, successors
and assigns, hereby acknowledges, represents, warrants and agrees as follows:
has full power and authority to enter into this Amendment and to incur and perform all obligations and covenants contained herein,
all of which have been duly authorized by all proper and necessary action. No consent, approval, filing or registration with or
notice to any governmental authority is required as a condition to the validity of this Amendment or the performance of any of
the obligations of Borrower hereunder.
is no fact known to Borrower or which should be known to Borrower which Borrower has not disclosed to Lender on or prior to the
Effective Date which would or could materially and adversely affect the understanding of Lender expressed in this Amendment or
any representation, warranty, or recital contained in this Amendment.
as expressly set forth in this Amendment, Borrower acknowledges and agrees that neither the execution and delivery of this Amendment
nor any of the terms, provisions, covenants, or agreements contained in this Amendment shall in any manner release, impair, lessen,
modify, waive, or otherwise affect the liability and obligations of Borrower under the terms of the Settlement Agreement.
has no defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or
causes of action of any kind or nature whatsoever against Lender, directly or indirectly, arising out of based upon, or in
any manner connected with, the transactions contemplated hereby, whether known or unknown, which occurred, existed, was
taken, permitted, or begun prior to the execution of this Amendment and occurred, existed, was taken, permitted or begun in
accordance with, pursuant to, or by virtue of any of the terms or conditions of the Settlement Agreement. To the extent any
such defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of
action exist or existed, such defenses, rights, claims, counterclaims, actions and causes of action are hereby waived,
discharged and released. Borrower hereby acknowledges and agrees That the execution of this Amendment by Lender shall
not constitute an acknowledgment of or admission by Lender of the existence of any claims or of liability for any matter or
precedent upon which any claim or liability may be asserted.
represents and warrants that as of the Effective Date, no breaches exist under the Settlement Agreement or have occurred prior
to The Effective Date.
Acknowledgments. Each of the parties acknowledges and agrees that no property or cash consideration of any kind whatsoever
has been or shall be given by Lender to Borrower in connection with any amendment to the Settlement Agreement granted herein.
Terms Unchanged. The Settlement Agreement, as amended by this Amendment, remains and continues in full force and effect,
constitutes legal, valid, and binding obligations of each of the parties thereto, and is in all respects agreed to, ratified,
and confirmed. Any reference to the Settlement Agreement after the Effective Date is deemed to be a reference to the
Settlement Agreement as amended by this Amendment. If there is a conflict between the terms of this Amendment and
the Settlement Agreement, the terms of this Amendment shall control. No forbearance or waiver may be implied by this
Amendment. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate
as a waiver or, as an amendment to, any right, power, or remedy of Lender under the Settlement
Agreement, as in effect prior to the Effective Date. To avoid all doubt, this Amendment shall be governed by the
miscellaneous provisions set forth in Sections 8 through 18 of the Settlement Agreement.
Reliance. Borrower acknowledges and agrees that neither Lender nor any of its officers, directors, members, managers, equity
holders, representatives or agents has made any representations or warranties to Borrower or any of its agents, representatives,
officers, directors, or employees except as expressly set forth in this Amendment, the Settlement Agreement and the Transaction
Documents and, in making its decision to enter into the transactions contemplated by this Amendment and the Settlement Agreement,
Borrower is not relying on any representation, warranty, covenant or promise of Lender or its officers, directors, members, managers,
equity holders, agents or representatives other than as set forth in. this Amendment and in the Settlement Agreement.
This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which
together shall ‘constitute one instrument, The parties hereto confirm that any electronic copy of another party’s
executed counterpart of this Amendment (or such party’s signature page Thereof) will be deemed to be an executed
Assurances. Each party shall do and perform or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Amendment and the consummation of the transactions contemplated
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WITNESS WHEREOF, the undersigned have executed this Amendment as of the Effective Date.
Xxxxxx X Xxxxxxx|
Xxxx X. Xxxx |
X. Xxxx, an individual|
page to Amendment to Judgement settlement Agreement]