Preview
INDEX NO. 153511/2012
FILED: NEW YORK COUNTY CLERK 09/16/2013
NYSCEF DOC. NO. 32 RECEIVED NYSCEF 09/16/2013
NEW YORK STATE SUPREME COURT
COUNTY OF NEW YORK
nace ene eee een ete tentantentaenateneensttnicctn
tertnettesn nent
SCOTT W. WRIGHT P.C. Index No. 153511/2012
Plaintiff, AFFIRMATION IN SUPPORT
OF PLAINTIFF’S MOTION
- against - TO ENFORCE THE
SETTLEMENT AGREEMENT
MS GLOBAL FINANCE LLC, MUSDEN
FINANCIAL SERVICES LLC, MS GLOBAL
HOUSING, LLC, GLOBAL FUNDING, LLC,
KEN MACKAY, and MICHAEL SHORE,
Defendants.
panne nee enn nee een eee nee ne eee ene KX
SCOTT W. WRIGHT, an attorney duly admitted to practice before the Courts of the
State of New York, affirms the truth of the following statements, under penalties of perjury:
1 Jam an attorney, licensed to practice law in the State of New York. I am the sole
shareholder, officer and director of plaintiff Scott W. Wright, P.C. and I am fully familiar with
the facts set forth herein.
2. This affidavit is in support of plaintiff's motion to enforce the Settlement
Agreement in this action and grant judgment to plaintiff against defendants, jointly and severally,
in the amount of $100,000.
3. Plaintiff filed its complaint on June 8, 2012 and amended the complaint by right
on June 29, 2012 (the “Complaint”).
4 Defendants, in lieu of answering the Complaint, moved to dismiss the Amended
Complaint or Compel Arbitration on July 30, 2012. Plaintiff opposed defendants’ motion and
cross-moved for leave to further amend the Amended Complaint.
5 The parties entered into a Settlement Agreement executed by all defendants on
July 15, 2013. A copy of the Settlement Agreement is annexed hereto as Exhibit “A”.
6 Defendants’ counsel represented to the Court by letter dated July 15, 2013 that the
parties had settled the action and the Court denied as moot defendants’ motion to dismiss or
compel arbitration on July 16, 2013. A copy of the Court’s order is annexed hereto as Exhibit
“B,
7 A settlement agreement terminating a lawsuit may be enforced by motion rather
than a plenary action. See Teitelbaum Holdings v. Gold, 48 N.Y.2d 51 (1979)
8. Settlements are strongly favored by the courts as there are strong public policy
considerations favoring settlement. See Denburg v. Parker Chapin Flattau & Klimpl, 82 NY2d
375, 604 N.Y.S.2d 900 (1993); Matter of Galasso, 35 NY2d 319, 361 N.Y.S.2d 871 (1974). So
strong is this policy that a settlement will be enforced even where public policy bars enforcement
of the underlying claim. See Denburg v. Parker Chapin Flattau & Klimpl, Id. “Parties by their
stipulations may in many ways make the law for any legal proceeding to which they are parties,
which not only binds them, but which the courts are bound to enforce ... (A)I! such stipulations
not unreasonable, not against good morals, or sound public policy, have been and will be
enforced.” Matter of New York, Lackawanna & Western R.R. Co., 98 NY 447, 453 (1885).
9. Plaintiff fully performed all of its obligations under the Settlement Agreement.
10. All defendants agreed, pursuant to Paragraph 3 of the Settlement Agreement, that
defendants MS Global Finance LLC and Musden Financial Services LLC (together the
“Judgment Debtors”) would pay to plaintiff the sum of $175,000, to be paid in one installment of
$100,000 on or before August 31, 2013 and one installment of $75,000 on or before November
30, 2013.
-2-
lL. Judgment Debtors failed to pay to plaintiff any sums of money required by the
Settlement Agreement.
12. Plaintiff provided to defendants on September 3, 2013 written notice that they
were in default of the Settlement Agreement . Defendants have failed to cure their default.
13. The failure of the Judgment Debtors to timely pay to plaintiff the first installment
due on August 31, 2013 constitutes a breach of the Settiment Agreement by all defendants,
which breach has not been cured.
14, As a result of defendants’ breach of the Settlement Agreement, plaintiff has been
damaged in the amount of $100,000.
15. Wherefor, counsel requests that this Court grant to plaintiff judgment against all
defendants, jointly and severally, in the amount of $100,000.
Dated: New York, New York
September 16, 2013
Scott right
-3-
if f
SETTLEMENT AGREEMENT
" This Settlement Agreement (the “Agreement”) is entered into as of the 12th day
of July, 2013 (the “Effective Date”) by and among Scott W. Wright P.C. (the “Plaintiff’) and MS
Global Finance LLC, Musden Financial Services LLC, MS Global Housing, LLC, MS Global
Funding, LLC, Ken Mackay and Michael Shore (collectively, the “Defendants”.
WHEREAS, Plaintiff filed in the New York State Supreme Court, County of New
York an Amended Complaint secking damages, interest and costs for breach of contract and
related claims against Defendants (Index No. 153511/2012) (the “Action”);
WHEREAS, Defendants deny any liability in connection with the Action or the
disputes giving rise thereto;
WHEREAS, Plaintiff disputes Defendants’ denial of liability in connection with
the Action or the disputes giving rise thereto; and
WHEREAS, the parties hereto desire to terminate the Action and to resolve their
differences regarding services provided by Plaintiff to Defendants and compensation related
thereto, without further litigation and its attendant costs;
NOW THEREFORE, in consideration of the mutual covenants and promises
hereinafter made, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, the parties agree as follows:
1 Simultaneously with its execution and delivery of this Agreement: (a)
Defendants MS Global Finance LLC and Musden Financial Services LLC (hereinafter
“Judgment Debtor”, or collectively “Judgment Debtors”) shall each execute and deliver to
Plaintiff the Affidavits of Confession of Judgment in the form annexed hereto as Exhibit “A”
and a General Release of Plaintiff in the form annexed hereto as Exhibit “B”; (b) Plaintiff shall
execute General Releases of all Defendants in the forms annexed hereto as Exhibit “C”, and
deliver to Defendants the General Releases with respect to MS Global Housing, LLC, MS
Global Funding, LLC, Ken Mackay and Michael Shore (collectively, the “Releasees”) and
Plaintiff shall retain in escrow the General Releases with respect to the Judgment Debtors; and
(c) Plaintiff shall execute and deliver to Defendants a Stipulation of Discontinuance of the
Action.
2 Upon the (2) mutual execution of this Agreement, (b) Plaintiff's receipt of
the executed Affidavits of Confession of Judgment and executed General Release of Plaintiff,
(c) Releases’ receipt of the executed General Releases of Defendants Mackay, Shore, MS
Global Housing LLC and MS Global Funding LLC, and (d) Defendants’ receipt of the
Stipulation of Discontinuance, the following shall occur: (i) the Action shall be discontinued
with prejudice as and against the Defendants, except with respect to the enforcement of a
Confession of Judgment against the Judgment Debtors in the event an event of default shall
temain uncured as set forth herein, or the breach by any Defendant of Paragraph 5 herein; and
(ii) Plaintiff shall fully, irrevocably, and unconditionally release and discharge the Releasees
pursuant to the terms of release set forth in the General Releases.
3 In furtherance of this Agreement, Judgment Debtors shall pay to Plaintiff
the total sum of One Hundred Seventy Five Thousand Dollars ($175,000.00, being the
“Settlement Amount”), payable as follows: (a) One Hundred Thousand Dollars ($100,000.00) to
be delivered by electronic bank transfer on or before August 31, 2013 and (b) Seventy Five
Thousand Dollars ($75,000.00) to be delivered by electronic bank transfer on or before
November 30, 2013. The electronic bank transfers shall be made to the following bank account:
Scott W. Wright, P.C.
JP Morgan Chase Bank, N.A.
Account No: 170186870
ABA Routing No.: 021000021
4 In the event Plaintiff shall not receive the wire transfer by the above-stated
deadlines, Plaintiff shall provide the Judgment Debtors written notice of said default in the
payment of such installment with ten (10) calendar days from Judgment Debtors’ receipt of
notice to cure. In the event Plaintiff shall not receive payment of said installment prior to the
expiration of the tenth (10) calendar day cure period, Plaintiff may thereafter and without
additional notice to Judgment Debtors enter judgment against either (or both) Judgment Debtors
in the full amount of the outstanding balance of the Settlement Amount, less any payments
previously received by Plaintiff against the Settlement Amount. Any interest that shall be
calculated against Judgment Debtors’ default under this Agreement shall begin to toll as of the
date such installment payment was due Plaintiff,
5 In the event (a) either Judgment Debtor shall cease doing business,
transfer al] or substantially all of its assets to a third party, or (b) Defendants Ken Mackay or
Michael Shore shall provide financial services for compensation as a sole proprietor or via any
entity, including as a partner or employee, that is directly competitive to business of either
Judgment Debtor or has the effect of reducing or eliminating the business affairs of either
Judgment Debtor, the Judgment Debtor, in the case of its ceasing business or transferring assets
to a third party, Defendants Mackay or Shore, in the case of a sole proprietorship, or such entity,
in the case of any entity providing financial services as set forth herein, (each referred to herein
as a “New Business”) shall within five (5) days of such event, notify Plaintiff in writing and
shall cause to be executed and deliver to Plaintiff an Affidavit of Confession of Judgment by or
for such New Business in a form acceptable to Plaintiff. In the event Plaintiff shall not receive
such notice and substitution, and Plaintiff discovers such an event has taken place, then upon
five (5) days written notice from Plaintiff, Defendants Mackay or Shore, the transferring the
Judgment Debtor, or the New Business, as the case may be, shall provide an executed Affidavit
of Confession of Judgment. The failure to provide such Affidavit of Confession of Judgment
within said five (5) day period shall be an event of default, and Plaintiff may thereafter and
without additional notice to either Judgment Debtors enter judgment against either (or both)
Judgment Debtors in the full amount of the outstanding balance of the Settlement Amount, less
any payments previously received by Plaintiff against the Settlement Amount in addition to
seeking any available remedies from Defendants Mackay or Shore or any New Business for
such default. Any interest that shall be calculated against Judgment Debtors’ default under this
Agreement shall begin to accrue as of the date such installment payment was due Plaintiff.
6 Upon the timely payment in full of the Settlement Amount, Plaintiff shall
fully, irrevocably, and unconditionally release and discharge the Judgment Debtors pursuant to
the terms of release set forth in the General Releases, and Plaintiff shall immediately release the
General Releases from escrow and deliver the same to Defendants.
7. With respect to any matter released pursuant to this Agreement, Plaintiff
covenants that it will not in the future commence, maintain, or prosecute, cause to be
commenced, maintained, or prosecuted, or voluntarily assist or participate (except in response
to a subpoena or judicial order) in the commencement, maintenance, or prosecution of any
complaint, charge, action, suit, or proceeding of any kind against Defendants that in any manner
whatsoever involves allegations or facts regarding the services provide by Plaintiff that were or
could have been raised by them against Plaintiff, including but not limited to the allegations
made in the Action.
8 Defendants, including their present, former and/or future parent
companies, subsidiaries, divisions, units, affiliates, officers, directors, shareholders,
representatives, predecessors, successor companies, partners, principals, assigns, attorneys, and
employees, fully, irrevocably, and unconditionally release and discharge Plaintiff, its present,
former and/or future parent companies, subsidiaries, divisions, units, affiliates, officers,
directors, shareholders, representatives, predecessors, licensees, successors, insurers, agents,
partners, principals, assigns, attorneys, employees, and all persons acting through, under or in
concert with them or any of them, from any and all claims, demands, debts, damages, costs,
expenses, actions, causes of action, and liabilities of any kind and nature throughout the world,
whether known or unknown, actual or potential, and whether or not asserted in the litigation,
arising out of or in any way related to the services provided by Plaintiff or the litigation, from
the beginning of the world to the date and day of this Agreement.
9 With respect to any matter released pursuant to this Agreement,
Defendants covenant that they will not in the future commence, maintain, or prosecute, cause to
be commenced, maintained, or prosecuted, or voluntarily assist or participate {except in
response to a subpoena or judicial order) in the commencement, maintenance, or prosecution of
any complaint, charge, action, suit, or proceeding of any kind against Plaintiff or its shareholder
Scott W. Wright that in any manner whatsoever involves allegations or facts regarding the
services provided by Plaintiff that were or could have been raised by them against Defendants.
10. Each party will bear its own attorneys’ fees and costs incurred in
connection with the Action and this Agreement.
11, This Agreement cannot be varied in its terms by any oral agreement or
representation or otherwise except by an instrument in writing of a date subsequent hereto
executed by the parties to this Agreement.
12. The parties will execute and deliver to each other such further documents
and take such further action as may reasonably be necessary to effect, consummate, confirm or
evidence their respective obligations under this Agreement.
13. Each party acknowledges that its signatory or an authorized agent has read
the Agreement and is fully aware of its contents. In the event of an ambiguity in or dispute
regarding the interpretations of the Agreement, interpretation of this Agreement shall not be
resolved by any rule providing for interpretation against the party who causes the uncertainty or
against the drafter, and the parties expressly agree that in the event of an ambiguity or dispute
regarding the interpretation of this Agreement, the Agreement will be interpreted as if each
party hereto had fully participated in the drafting thereof.
14. The laws of the State of New York (without reference to the principles of
conflicts of law thereof) will govern the interpretation and enforcement of this Agreement. Any
action relating to or arising out of this Agreement shall be brought only before the Supreme
Court of the State of New York, County of New York, and the parties each hereby consent to
the personal jurisdiction of such Court over them and waive any right to object to venue in, or to
seek a transfer from such Court. Any Judgment by Confession that shall be recorded against the
Judgment Debtors shall be done so before the Court of the State of New York, County of New
York. The parties each expressly waive its right or ability to commence or maintain any action
in any other court or forum in any way relating to or arising out of this Agreement with the
exception of the enforcement of any Judgment.
15. This Agreement is executed voluntarily and without duress or undue
influence on the parties or their officers, employees, agents or attorneys, and no party is relying
on any inducements, promises or representations made by any other party or any of its officers,
employees, agents or attorneys other than as set forth herein.
16. In the event that any portion of this Agreement is deemed invalid, illegal,
or unenforceable for any reason, the parties will cooperate to lawfully effectuate the parties?
intent as to that provision. Any provision of this Agreement which is deemed invalid, illegal, or
unenforceable in any jurisdiction will not affect the remaining provisions in such jurisdiction, or
render that or any other provision of this Agreement invalid, illegal, or unenforceable in any
other jurisdiction.
17. This Agreement may be signed using one or more counterparts. Faxed or
e-mailed signatures shall constitute original signatures binding on the signing party. The
several executed copies together will be considered an original and will be binding on the
parties.
18. Any individual signing this Agreement on behalf of a party represents and
warrants that he or she has full authority to do so.
19. This Agreement, including the annexed Affidavits Confession of
Judgment and General Releases, constitutes the entire agreement between the parties,
supersedes any and all prior oral or written agreements or understandings between them
regarding the same subject matter, and may not be modified except by a writing subscribed by
the parties.
20. This Agreement is binding upon the parties, their successors and assigns,
as well as any person, entity or future entity (including, without limitation, corporations, limited
liability companies and trusts) that/who is the recipient of all or substantially all of the assets of
any party; or any entity, the majority of the equity of which is owned by any party or any family
member of any party (including any entity owned in whole or majority part by any such party or
family member).
21. THE PARTIES EACH FURTHER REPRESENT THAT THEY HAVE
CAREFULLY READ THIS AGREEMENT AND HAD THE OPPORTUNITY TO CONSULT
WITH THEIR RESPECTIVE COUNSEL AND KNOW AND UNDERSTAND THE
CONTENTS THEREOF AND THAT THEY SIGN THE SAME AS THEIR OWN FREE ACT
AND DEED.
[Remainder Intentionally Blank; Signature Page to Follow]
IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement on the dates
indicated below.
SCOTT W. W HT P.
By
Its: 7 /
Dat
MS GLOBAL FINANCE LLC,
By: “La
Its: CAE oT,
Date: Ue yf 3
MUSDEN FINANCIAL SERVICES LLC,
By: 4 at
Its: OIKEC TOR
Date: Z, Lt sf 3
MS GLOBAL HOUSING LLC
By: K / flea
Its: OREcToR
ban: — fe
MS GLOBAL FUNDING, LLC
By: Lf. Pa
Its: zfafr
Date: 2. jp — 5
KEN MACKAY
IK. Le
Date:
—2fefg
MICHAEL §
Date: TL.
10
EXHIBIT A
Affidavits of Confession of Judgment
[See Attached]
li
NEW YORK STATE SUPREME COURT
COUNTY OF NEW YORK
anna enn eee en nen enmerern nnn,
SCOTT W. WRIGHT P.C. Index No.:
Plaintiff, AFFIDAVIT OF
CONFESSION OF
- against - JUDGMENT
MS GLOBAL FINANCE LLC and MUSDEN
FINANCIAL SERVICES LLC,
Defendants.
wan nnn nan ne nnn nna nen nen ene een ene nena
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
KEN MACKAY, being duly sworn, deposes and says:
1 Tam a Director of defendant MS GLOBAL FINANCE LLC (“MS Global”) in the
above-captioned matter. I am authorized to enter contracts and to confess judgment on behalf of
MS Global.
2, I reside and conduct business in the County of New York. MS Global maintains
its principal office and conducts business in the County of New York.
3 MS Global hereby confesses judgment, pursuant to CPLR 3218, in favor of
SCOTT W. WRIGHT P.C., plaintiff in the above entitled action, in the sum of ONE
HUNDRED SEVENTY FIVE THOUSAND DOLLARS ($175,000).
4 MS Global hereby authorizes and consents to the entry of such judgment against
it in the Supreme Court of the State of New York, County of New York. I agree to accept
service of process related to this matter on behalf of MS Global by regular United States mail at
any location at which MS GLOBAL may maintain offices or conduct business as well as in any
court in any jurisdiction where MS Global’s assets may be found.
4. The aforesaid confession of judgment is for a debt now justly due and owing to
SCOTT W. WRIGHT PC arising from the following facts: Plaintiff is a professional corporation
authorized to practice law in the State of New York. Plaintiff provided to MS Global legal
services during the period from on or about December 18, 2006 to December 31, 2010, including
the following without limitation: preparing and negotiating various employment related
agreements; preparing and negotiating numerous loan agreements and related documentation;
preparing and negotiating various confidentiality and working agreements; preparing and
negotiating various structured financing transactions including promissory notes and related
documentation; prepare and review numerous transaction summaries and related documentation;
numerous daily and weekly conferences and discussions regarding pending and proposed
transactions. MS Global failed to pay the following invoices aggregating $180,000:
Date Invoice No. Amount
9-Feb-09 132119/1037 $7,500.00
19-Mar-09 132119/1038 $7,500.00
8-Apr-09 132119/1039 $7,500.00
6-May-09 132119/1040 $7,500.00
15-Jun-09 132119/1041 $7,500.00
15-Jul-09 132119/1042 $7,500.00
3-Aug-09 132119/1043 $7,500.00
1-Sep-09 132119/1044 $7,500.00
1-Oct-09 132119/1045 $7,500.00
3-Nov-09 132119/1046 $7,500.00
1-Dec-09 132119/1047 $7,500.00
6-Jan-10 132119/1048 $7,500.00
2-Feb-10 132119/1049 $7,500.00
2-Mar-10 132119/1050 $7,500.00
16-Apr-10 132119/1051 $7,500.00
6-May-10 132119/1052 $7,500.00
22-Jun-10 132119/1053 $7,500.00
6-Jul-10 132119/1054 $7,500.00
9-Aug -10 132119/1055 $7,500.00
14-Sep-10 132119/1056 $7,500.00
13-Oct-10 132119/1057 $7,500.00
16-Nov-10 132119/1058 $7,500.00
-2-
2-Dec-10 132119/1059 $7,500.00
31-Dec-10 132119/1060 $7,500.00
MS Global and Plaintiff have entered into a certain Settlement Agreement dated July 12, 2013,
whereby MS Global is to pay to Plaintiff $175,000 in two payments. The first payment of
$100,000 is to be paid on or before August 31, 2013 and the second payment of $75,000 is to be
paid on or before November 30, 2013. The entry of judgment against MS Global is authorized
pursuant to an uncured event of default, including without limitation the failure to timely make
these installment payment, so stipulated and agreed in the Settlement Agreement,
5 T understand that any indebtedness MS Global has to the plaintiff will be reduced
by the amount of any payments made by MS Global prior to entry of judgment.
6 I further understand that any entry of judgment against me shall also include a
calculation of interest that shall run from the date when the event of my default under the
Settlement Agreement occurred.
7
Accordingly, MS Global hereby confesses and authorizes the entry of judgment
against it and in favor of the plaintiff in the amount of $175,000 less any payments which MS
Global has made prior to entry of the judgment.
-3-
8 J am executing this confession of judgment on behalf of MS Global voluntarily
and after consulting fully with our attorney.
MS GLOBAL FINANCIAL SERVICES LLC
iK
By: Ken Mackay
Title: Director
PERLAI. TORIBIO Yor
te of New
Sworn to before me this Notary Public. >.inStaBronx County
Qualifiedi
{S day of July 2013 No. 01 706276703 19-2017
My Commission Expires 02~
Notary Public
-4-
NEW YORK STATE SUPREME COURT
COUNTY OF NEW YORK.
ween nee ten net nnen nena nnenmemenmentte
tin ete
SCOTT W. WRIGHT P.C. Index No.:
Pp taint AFFIDAVIT OF
CONFESSION OF
- against - JUDGMENT
MS GLOBAL FINANCE LLC and MUSDEN
FINANCIAL SERVICES LLC,
Defendants.
we etter nnn ornnnnnnennenen
amma K
STATE OF NEW YORK )
) ss.z
COUNTY OF NEW YORK }
KEN MACKAY, being duly swom, deposes and says:
1 1 am a Director of defendant MUSDEN FINANCIAL SERVICES LLC
(“Musden™) in the above-captioned matter. | am authorized to enter contracts and to confess
judgment on behalf of Musden.
2. Treside and conduct business in the County of New York. Musden maintains its
principal office and conducts business in the County of New York.
3 Musden hereby confesses judgment, pursuant to CPLR 3218, in favor of SCOTT
W. WRIGHT P.C., plaintiff in the above entitled action, in the sum of ONE HUNDRED
SEVENTY FIVE THOUSAND DOLLARS (S175,000).
4 Musden hereby authorizes and consents to the entry of such judgment against it in
the Supreme Court of the State of New York, County of New York. | agree to accept service of
process related to this matter on behalf of Musden by regular United States mail at any location
at which MUSDEN may maintain offices or conduct business as well as in any court in any
jurisdiction where Musden’s assets may be found.
4 The aforesaid confession of judgment is for a debt now justly due and owing to
SCOTT W. WRIGHT PC arising from the following facts: Plaintiff is a professional corporation
authorized to practice law in the State of New York. Plaintiff provided to Musden legal services
during the period from on or about December 18, 2006 to December 31, 2010, including the
following without limitation: preparing and negotiating various employment related agreements;
preparing and negotiating numerous loan agreements and related documentation; preparing and
negotiating various confidentiality and working agreements; preparing and negotiating various
structured financing transactions including promissory notes and related documentation; prepare
and review numerous transaction summaries and related documentation; numerous daily and
weekly conferences and discussions regarding pending and proposed transactions. Musden
failed to pay the following invoices aggregating $180,000:
Date Invoice No. Amount
9-Feb-09 132119/1037 $7,500.00
19-Mar-09 132119/1038 $7,500.00
8-Apr-09 132119/1039 $7,500.00
6-May-09 132119/1040 $7,500.00
15-Jun-09 132119/1041 $7,500.00
15-Jul-09 132119/1042 $7,500.00
3-Aug-09 132119/1043 $7,500.00
1-Sep-09 132119/1044 $7,500.00
1-Oct-09 132119/1045 $7,500.00
3-Nov-09 132119/1046 $7,500.00
1-Dec-09 132119/1047 $7,500.00
6-Jan-10 132119/1048 $7,500.00
2-Feb-10 132119/1049 $7,500.00
2-Mar-10 132119/1050 $7,500.00
16-Apr-10 132119/1051 $7,500.00
6-May-10 132119/1052 $7,500.00
22-Jun-10 132119/1053 $7,500.00
6-Jul-10 132119/1054 $7,500.00
9-Aug -10 132119/1055 $7,500.00
14-Sep-10 132119/1056 $7,500.00
13-Oct-10 132119/1057 $7,500.00
16-Nov-10 132119/1058 $7,500.00
-2-
2-Dec-10 132119/1059 $7,500.00
31-Dec-10 132119/1060 $7,500.00
Musden and Plaintiff have entered into a certain Settlement Agreement dated July 12, 2013,
whereby Musden is to pay to Plaintiff $175,000 in two payments. The first payment of $100,000
is to be paid on or before August 31, 2013 and the second payment of $75,000 is to be paid on or
before November 30, 2013. The entry of judgment against Musden is authorized pursuant to an
uncured event of default, including without limitation the failure to timely make these
installment payment, so stipulated and agreed in the Settlement Agreement.
5 T understand that any indebtedness Musden has to the plaintiff will be reduced by
the amount of any payments made by Musden prior to entry of judgment.
6 I further understand that any entry of judgment against me shall also include a
calculation of interest that shall run from the date when the event of my default under the
Settlement Agreement occurred,
7
Accordingly, Musden hereby confesses and authorizes the entry of judgment
against it and in favor of the plaintiff in the amount of $175,000 less any payments which
Musden has made prior to entry of the judgment.
-3-
8 lam executing this confession of judgment on behalf of Musden voluntarily and
after consulting fully with our attorney.
MUSDEN FINANCIAL SERVICES LLC
I KL Tee
Sworn to before me this PERLA |. TORIBIO
Notary Public, State of New York
/5_ day of July 2013 in Bronx County
No. 01706276703
My Commission Expires 02-19-2017
Notary Public
-4-
EXHIBIT B
General Release of Plaintiff
[See Attached]
12
GENERAL RELEASE
MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL SERVICES LLC, MS GLOBAL
HOUSING, LLC, MS GLOBAL FUNDING, LLC, KEN MACKAY and MICHAEL SHORE, each
of their successors, heirs, assigns, affiliates, subsidiaries, officers, directors, employees and
representatives (collectively, the “Releasors”), in consideration of the amount of TEN DOLLARS
($10.00), the payment and receipt of said funds Releasor hereby acknowledges, hereby irrevocably and
unconditionally release and discharge SCOTT W. WRIGHT P.C. its principals, owners, members,
affiliates, and assigns, (“Releases”), from any and all claims, counterclaims, losses, damages, costs,
interests, expenses, actions, causes of action, liabilities or other claims that Releasor have, ever had, or
may have in the future, by reason of any matter, cause or thing whatsoever, whether known or unknown,
from the beginning of time to the date hereof, and further that Releasors covenant not to sue Releasees
with respect to such claims or matters accordingly.
In Witness Whereof, the Releasors have caused
authorized officers and its corporate seal to be hereunto affixed on
“op to be executed by its duly
» 2013.
In the presence of:
MS GLOBAL FINANCE LLC,
By
ts:_ Cat
MUSDEN FINANCIAL SERVICES LLC
By: lg I Prete >
Its: MikecToR
MS GLOBAL HOUSING LLC
By:
KO! a
Its: DIRECTOR
MS GLOBAL FUNDING, LLC
By: 1 [ 12 Jfl,
Its: O14 Berok
KEN MACKAY
<1 Lic
MICHAEL SH
STATE OF NEW YORK)
)8S.:
County oF Naw s$1K )
On bly 1s » 2013, before me personally came Ken Mackay, who is the
DiREETR oO} MS Global Finance LLC, Musden Financial Services LLC, MS Global Housing, LLC, MS
Global Funding,.LLC, to me known on the basis of satisfactory evidence to be the individual whose name
is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity,
and that by his signature on the instrument, the individual executed the instrument.
PERLA |. TORIBIO
Notary Public, State of New York
Qualified in Bronx County Notary Public
Seal: No. 01706276703
My Commission Expires 02-19-2017
STATE OF NEW YORK)
)ss.:
COUNTY OF Min TovK_)
ay
On | leoth _ , 2013, before me personally came Michael Shore, who is the
Qikecrek of MS Global Finance LLC, Musden Financial Services LLC, MS Global Housing, LLC, MS
Global Funding,.LLC, to me known on the basis of satisfactory evidence to be the individual whose name
is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity,
and that by his signature on the instrument, the individual executed the instrument.
PERLA |. TORIBIO
Notary Public, State of New York Notary Public
Seal: Qualified in Bronx County
No. 01T06276703
‘My Commission Expires 02-19-2017
EXHIBIT C
General Releases of Defendants
[See Attached]
13
GENERAL RELEASE
SCOTT W. WRIGHT P.C. its principals, owners, members, affiliates, and assigns,
(collectively, the “Releasor™), in consideration of the amount of TEN DOLLARS ($10.00), the payment
and receipt of said funds Releasor, subject to the terms of the Settlement Agreement of even date
herewith, hereby acknowledges, hereby irrevocably and unconditionally releases, discharges and
covenants not to sue MS GLOBAL HOUSING, LLC, MS GLOBAL FUNDING, LLC, KEN
MACKAY and MICHAEL SHORE (“Releasees”), each of their successors, heirs, assigns, affiliates,
subsidiaries, officers, directors, employees and representatives, from anything specifically related to and
alleged by Releasor in the action bearing the caption Scott W. Wright P.C. v. MS Global Finance LLC, et
al., before the Supreme Court of the State of New York, County of New York, Index Number 153511/12,
and any and all other claims, counterclaims, losses, damages, costs, interests, expenses, actions, causes of
action, liabilities or other claims that Releasor have, ever had, or may have in the future, by reason of any
matter, cause or thing whatsoever, whether known or unknown, from the beginning of time to the date
hereof, and further that Releasor covenants not to sue Releasees with respect to such claims or matters
accordingly.
Tn Witness Whereof, the Releasor has caused this elease to be executed by its duly
authorized officers and its corporate seal to be hereunto affixed ori , 2013.
In the presence of:
SCOTT IGHT P.C.
By: Séott W. Wright, Esq.
Title: Principal / Sole Member
STATE OF NEW YORK )
)SS.:
COUNTY OF )
On July AG , 2013, before me personally came Scott Wright, Esq., who is the
principal and sole member of Scott W. Wright P.C., to me known on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and acknowledged to me that she
executed the same in her capacity, and that by her signature on the instrument, the individual executed the
instrument.
Mathew. PY
Notary Public
Seal:
MATHEW DAVID PYTLOWANY
NOTARY PUBLIC OF NEW JERSEY
My Commision
Expires March 18, 2018
((
D
(FILED; NEW YORK ‘COUNTY. CLERK 07/17/2013) INDEX NO. 153511/2012
NYSCEF Doc. NO. 3 ECEIVED NYSCEF: 07/17/2013
SUPREME COURT OF THE STATE OF NEW YOR
NEW YORK COUNTY
| GEORGE J. SILVER PART _}O
PRESEN
Justice
i‘ Index Number : 153511/2012
WRIGHT; P.C., SCOTT W INDEX NO.
vs. } MOTION DATE
MS GLOBAL FINANCE LLC,
' SEQUENCE NUMBER : 001 MOTION SEQ, NO.
DISMISS ACTION
4.
|
The following papers, numbered 1 to , were read on this motion to/for
Notice ofMotlon/Order to Show Cause — Affidavits — Exhibits [Nois)..
Answering Affidavits — Exhibits [ No(s).
| QNois}.
Replying Affidavits
Upon the foregoing papers, it is ordered that this motion is
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4, CHECK ONE; ...... . (2 CASE DISPOSED (J _NON-FINAL DISPOSITION
2. CHECK AS. APPROPRIATE: MOTION IS: [7] GRANTED CIDenie (GRANTED IN PART (OTHER
3. CHECK IF APPROPRIATE: CISETTLE ORDER (I) SUBMIT ORDER
(D0 NoT Post (FIDUCIARY APPOINTMENT CIREFERENCE
From: 07/15/2013 16:47 #101 P.O01/001
PERRANTE
LAW FIRM ———~
July 15, 2013
Via Facsimile 212-401-9288
Honorable George J. Silver
Supreme Court, New York County
60 Centre Street ~ IAS Part 10
New York, New York 10013
Attention: Karen Berthiaume / Part Clerk
Re: Scott W. Wright P.C. v. MS Global Finance LLC, et al.
Supreme Court, New York County / Index No.: 15351 1/2012
Dear Ms. Berthiaume:
Please be advised that | am counsel to. the Defendants in the above-
referenced matier
Please be advised that the matter is hereby settled as and between the
parties., AS such, the parties shall not be appearing before this Court tomorrow,
July 16, 2013 al 9:30 a.m,, for oral argument on Defendants’ motion and Plaintiffs
cross-motion, as well as for the scheduled Preliminary Conference.
We sincerely thank the Court for all of its efforts in guiding the parties to the
amicable resolution of this matter.
Rgspec brite
’ \
Ligrenz@ V. DéLill
ee:
Via Email Only
Sceoit W. Wright P.C,
Scot W. Wright, Esq.
scott wright@wrightpc.com
5 West 19" Street, 10" Floor, New York, NY 10011 - T (212) 308-4440, F (212) 888-3839
www.FerranteLawFirm.com
Preview
INDEX NO. 153511/2012 FILED: NEW YORK COUNTY CLERK 09/16/2013 NYSCEF DOC. NO. 32 RECEIVED NYSCEF 09/16/2013 NEW YORK STATE SUPREME COURT COUNTY OF NEW YORK nace ene eee een ete tentantentaenateneensttnicctn tertnettesn nent SCOTT W. WRIGHT P.C. Index No. 153511/2012 Plaintiff, AFFIRMATION IN SUPPORT OF PLAINTIFF’S MOTION - against - TO ENFORCE THE SETTLEMENT AGREEMENT MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL SERVICES LLC, MS GLOBAL HOUSING, LLC, GLOBAL FUNDING, LLC, KEN MACKAY, and MICHAEL SHORE, Defendants. panne nee enn nee een eee nee ne eee ene KX SCOTT W. WRIGHT, an attorney duly admitted to practice before the Courts of the State of New York, affirms the truth of the following statements, under penalties of perjury: 1 Jam an attorney, licensed to practice law in the State of New York. I am the sole shareholder, officer and director of plaintiff Scott W. Wright, P.C. and I am fully familiar with the facts set forth herein. 2. This affidavit is in support of plaintiff's motion to enforce the Settlement Agreement in this action and grant judgment to plaintiff against defendants, jointly and severally, in the amount of $100,000. 3. Plaintiff filed its complaint on June 8, 2012 and amended the complaint by right on June 29, 2012 (the “Complaint”). 4 Defendants, in lieu of answering the Complaint, moved to dismiss the Amended Complaint or Compel Arbitration on July 30, 2012. Plaintiff opposed defendants’ motion and cross-moved for leave to further amend the Amended Complaint. 5 The parties entered into a Settlement Agreement executed by all defendants on July 15, 2013. A copy of the Settlement Agreement is annexed hereto as Exhibit “A”. 6 Defendants’ counsel represented to the Court by letter dated July 15, 2013 that the parties had settled the action and the Court denied as moot defendants’ motion to dismiss or compel arbitration on July 16, 2013. A copy of the Court’s order is annexed hereto as Exhibit “B, 7 A settlement agreement terminating a lawsuit may be enforced by motion rather than a plenary action. See Teitelbaum Holdings v. Gold, 48 N.Y.2d 51 (1979) 8. Settlements are strongly favored by the courts as there are strong public policy considerations favoring settlement. See Denburg v. Parker Chapin Flattau & Klimpl, 82 NY2d 375, 604 N.Y.S.2d 900 (1993); Matter of Galasso, 35 NY2d 319, 361 N.Y.S.2d 871 (1974). So strong is this policy that a settlement will be enforced even where public policy bars enforcement of the underlying claim. See Denburg v. Parker Chapin Flattau & Klimpl, Id. “Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce ... (A)I! such stipulations not unreasonable, not against good morals, or sound public policy, have been and will be enforced.” Matter of New York, Lackawanna & Western R.R. Co., 98 NY 447, 453 (1885). 9. Plaintiff fully performed all of its obligations under the Settlement Agreement. 10. All defendants agreed, pursuant to Paragraph 3 of the Settlement Agreement, that defendants MS Global Finance LLC and Musden Financial Services LLC (together the “Judgment Debtors”) would pay to plaintiff the sum of $175,000, to be paid in one installment of $100,000 on or before August 31, 2013 and one installment of $75,000 on or before November 30, 2013. -2- lL. Judgment Debtors failed to pay to plaintiff any sums of money required by the Settlement Agreement. 12. Plaintiff provided to defendants on September 3, 2013 written notice that they were in default of the Settlement Agreement . Defendants have failed to cure their default. 13. The failure of the Judgment Debtors to timely pay to plaintiff the first installment due on August 31, 2013 constitutes a breach of the Settiment Agreement by all defendants, which breach has not been cured. 14, As a result of defendants’ breach of the Settlement Agreement, plaintiff has been damaged in the amount of $100,000. 15. Wherefor, counsel requests that this Court grant to plaintiff judgment against all defendants, jointly and severally, in the amount of $100,000. Dated: New York, New York September 16, 2013 Scott right -3- if f SETTLEMENT AGREEMENT " This Settlement Agreement (the “Agreement”) is entered into as of the 12th day of July, 2013 (the “Effective Date”) by and among Scott W. Wright P.C. (the “Plaintiff’) and MS Global Finance LLC, Musden Financial Services LLC, MS Global Housing, LLC, MS Global Funding, LLC, Ken Mackay and Michael Shore (collectively, the “Defendants”. WHEREAS, Plaintiff filed in the New York State Supreme Court, County of New York an Amended Complaint secking damages, interest and costs for breach of contract and related claims against Defendants (Index No. 153511/2012) (the “Action”); WHEREAS, Defendants deny any liability in connection with the Action or the disputes giving rise thereto; WHEREAS, Plaintiff disputes Defendants’ denial of liability in connection with the Action or the disputes giving rise thereto; and WHEREAS, the parties hereto desire to terminate the Action and to resolve their differences regarding services provided by Plaintiff to Defendants and compensation related thereto, without further litigation and its attendant costs; NOW THEREFORE, in consideration of the mutual covenants and promises hereinafter made, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties agree as follows: 1 Simultaneously with its execution and delivery of this Agreement: (a) Defendants MS Global Finance LLC and Musden Financial Services LLC (hereinafter “Judgment Debtor”, or collectively “Judgment Debtors”) shall each execute and deliver to Plaintiff the Affidavits of Confession of Judgment in the form annexed hereto as Exhibit “A” and a General Release of Plaintiff in the form annexed hereto as Exhibit “B”; (b) Plaintiff shall execute General Releases of all Defendants in the forms annexed hereto as Exhibit “C”, and deliver to Defendants the General Releases with respect to MS Global Housing, LLC, MS Global Funding, LLC, Ken Mackay and Michael Shore (collectively, the “Releasees”) and Plaintiff shall retain in escrow the General Releases with respect to the Judgment Debtors; and (c) Plaintiff shall execute and deliver to Defendants a Stipulation of Discontinuance of the Action. 2 Upon the (2) mutual execution of this Agreement, (b) Plaintiff's receipt of the executed Affidavits of Confession of Judgment and executed General Release of Plaintiff, (c) Releases’ receipt of the executed General Releases of Defendants Mackay, Shore, MS Global Housing LLC and MS Global Funding LLC, and (d) Defendants’ receipt of the Stipulation of Discontinuance, the following shall occur: (i) the Action shall be discontinued with prejudice as and against the Defendants, except with respect to the enforcement of a Confession of Judgment against the Judgment Debtors in the event an event of default shall temain uncured as set forth herein, or the breach by any Defendant of Paragraph 5 herein; and (ii) Plaintiff shall fully, irrevocably, and unconditionally release and discharge the Releasees pursuant to the terms of release set forth in the General Releases. 3 In furtherance of this Agreement, Judgment Debtors shall pay to Plaintiff the total sum of One Hundred Seventy Five Thousand Dollars ($175,000.00, being the “Settlement Amount”), payable as follows: (a) One Hundred Thousand Dollars ($100,000.00) to be delivered by electronic bank transfer on or before August 31, 2013 and (b) Seventy Five Thousand Dollars ($75,000.00) to be delivered by electronic bank transfer on or before November 30, 2013. The electronic bank transfers shall be made to the following bank account: Scott W. Wright, P.C. JP Morgan Chase Bank, N.A. Account No: 170186870 ABA Routing No.: 021000021 4 In the event Plaintiff shall not receive the wire transfer by the above-stated deadlines, Plaintiff shall provide the Judgment Debtors written notice of said default in the payment of such installment with ten (10) calendar days from Judgment Debtors’ receipt of notice to cure. In the event Plaintiff shall not receive payment of said installment prior to the expiration of the tenth (10) calendar day cure period, Plaintiff may thereafter and without additional notice to Judgment Debtors enter judgment against either (or both) Judgment Debtors in the full amount of the outstanding balance of the Settlement Amount, less any payments previously received by Plaintiff against the Settlement Amount. Any interest that shall be calculated against Judgment Debtors’ default under this Agreement shall begin to toll as of the date such installment payment was due Plaintiff, 5 In the event (a) either Judgment Debtor shall cease doing business, transfer al] or substantially all of its assets to a third party, or (b) Defendants Ken Mackay or Michael Shore shall provide financial services for compensation as a sole proprietor or via any entity, including as a partner or employee, that is directly competitive to business of either Judgment Debtor or has the effect of reducing or eliminating the business affairs of either Judgment Debtor, the Judgment Debtor, in the case of its ceasing business or transferring assets to a third party, Defendants Mackay or Shore, in the case of a sole proprietorship, or such entity, in the case of any entity providing financial services as set forth herein, (each referred to herein as a “New Business”) shall within five (5) days of such event, notify Plaintiff in writing and shall cause to be executed and deliver to Plaintiff an Affidavit of Confession of Judgment by or for such New Business in a form acceptable to Plaintiff. In the event Plaintiff shall not receive such notice and substitution, and Plaintiff discovers such an event has taken place, then upon five (5) days written notice from Plaintiff, Defendants Mackay or Shore, the transferring the Judgment Debtor, or the New Business, as the case may be, shall provide an executed Affidavit of Confession of Judgment. The failure to provide such Affidavit of Confession of Judgment within said five (5) day period shall be an event of default, and Plaintiff may thereafter and without additional notice to either Judgment Debtors enter judgment against either (or both) Judgment Debtors in the full amount of the outstanding balance of the Settlement Amount, less any payments previously received by Plaintiff against the Settlement Amount in addition to seeking any available remedies from Defendants Mackay or Shore or any New Business for such default. Any interest that shall be calculated against Judgment Debtors’ default under this Agreement shall begin to accrue as of the date such installment payment was due Plaintiff. 6 Upon the timely payment in full of the Settlement Amount, Plaintiff shall fully, irrevocably, and unconditionally release and discharge the Judgment Debtors pursuant to the terms of release set forth in the General Releases, and Plaintiff shall immediately release the General Releases from escrow and deliver the same to Defendants. 7. With respect to any matter released pursuant to this Agreement, Plaintiff covenants that it will not in the future commence, maintain, or prosecute, cause to be commenced, maintained, or prosecuted, or voluntarily assist or participate (except in response to a subpoena or judicial order) in the commencement, maintenance, or prosecution of any complaint, charge, action, suit, or proceeding of any kind against Defendants that in any manner whatsoever involves allegations or facts regarding the services provide by Plaintiff that were or could have been raised by them against Plaintiff, including but not limited to the allegations made in the Action. 8 Defendants, including their present, former and/or future parent companies, subsidiaries, divisions, units, affiliates, officers, directors, shareholders, representatives, predecessors, successor companies, partners, principals, assigns, attorneys, and employees, fully, irrevocably, and unconditionally release and discharge Plaintiff, its present, former and/or future parent companies, subsidiaries, divisions, units, affiliates, officers, directors, shareholders, representatives, predecessors, licensees, successors, insurers, agents, partners, principals, assigns, attorneys, employees, and all persons acting through, under or in concert with them or any of them, from any and all claims, demands, debts, damages, costs, expenses, actions, causes of action, and liabilities of any kind and nature throughout the world, whether known or unknown, actual or potential, and whether or not asserted in the litigation, arising out of or in any way related to the services provided by Plaintiff or the litigation, from the beginning of the world to the date and day of this Agreement. 9 With respect to any matter released pursuant to this Agreement, Defendants covenant that they will not in the future commence, maintain, or prosecute, cause to be commenced, maintained, or prosecuted, or voluntarily assist or participate {except in response to a subpoena or judicial order) in the commencement, maintenance, or prosecution of any complaint, charge, action, suit, or proceeding of any kind against Plaintiff or its shareholder Scott W. Wright that in any manner whatsoever involves allegations or facts regarding the services provided by Plaintiff that were or could have been raised by them against Defendants. 10. Each party will bear its own attorneys’ fees and costs incurred in connection with the Action and this Agreement. 11, This Agreement cannot be varied in its terms by any oral agreement or representation or otherwise except by an instrument in writing of a date subsequent hereto executed by the parties to this Agreement. 12. The parties will execute and deliver to each other such further documents and take such further action as may reasonably be necessary to effect, consummate, confirm or evidence their respective obligations under this Agreement. 13. Each party acknowledges that its signatory or an authorized agent has read the Agreement and is fully aware of its contents. In the event of an ambiguity in or dispute regarding the interpretations of the Agreement, interpretation of this Agreement shall not be resolved by any rule providing for interpretation against the party who causes the uncertainty or against the drafter, and the parties expressly agree that in the event of an ambiguity or dispute regarding the interpretation of this Agreement, the Agreement will be interpreted as if each party hereto had fully participated in the drafting thereof. 14. The laws of the State of New York (without reference to the principles of conflicts of law thereof) will govern the interpretation and enforcement of this Agreement. Any action relating to or arising out of this Agreement shall be brought only before the Supreme Court of the State of New York, County of New York, and the parties each hereby consent to the personal jurisdiction of such Court over them and waive any right to object to venue in, or to seek a transfer from such Court. Any Judgment by Confession that shall be recorded against the Judgment Debtors shall be done so before the Court of the State of New York, County of New York. The parties each expressly waive its right or ability to commence or maintain any action in any other court or forum in any way relating to or arising out of this Agreement with the exception of the enforcement of any Judgment. 15. This Agreement is executed voluntarily and without duress or undue influence on the parties or their officers, employees, agents or attorneys, and no party is relying on any inducements, promises or representations made by any other party or any of its officers, employees, agents or attorneys other than as set forth herein. 16. In the event that any portion of this Agreement is deemed invalid, illegal, or unenforceable for any reason, the parties will cooperate to lawfully effectuate the parties? intent as to that provision. Any provision of this Agreement which is deemed invalid, illegal, or unenforceable in any jurisdiction will not affect the remaining provisions in such jurisdiction, or render that or any other provision of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. 17. This Agreement may be signed using one or more counterparts. Faxed or e-mailed signatures shall constitute original signatures binding on the signing party. The several executed copies together will be considered an original and will be binding on the parties. 18. Any individual signing this Agreement on behalf of a party represents and warrants that he or she has full authority to do so. 19. This Agreement, including the annexed Affidavits Confession of Judgment and General Releases, constitutes the entire agreement between the parties, supersedes any and all prior oral or written agreements or understandings between them regarding the same subject matter, and may not be modified except by a writing subscribed by the parties. 20. This Agreement is binding upon the parties, their successors and assigns, as well as any person, entity or future entity (including, without limitation, corporations, limited liability companies and trusts) that/who is the recipient of all or substantially all of the assets of any party; or any entity, the majority of the equity of which is owned by any party or any family member of any party (including any entity owned in whole or majority part by any such party or family member). 21. THE PARTIES EACH FURTHER REPRESENT THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND HAD THE OPPORTUNITY TO CONSULT WITH THEIR RESPECTIVE COUNSEL AND KNOW AND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY SIGN THE SAME AS THEIR OWN FREE ACT AND DEED. [Remainder Intentionally Blank; Signature Page to Follow] IN WITNESS WHEREOF, each of the parties hereto have executed this Agreement on the dates indicated below. SCOTT W. W HT P. By Its: 7 / Dat MS GLOBAL FINANCE LLC, By: “La Its: CAE oT, Date: Ue yf 3 MUSDEN FINANCIAL SERVICES LLC, By: 4 at Its: OIKEC TOR Date: Z, Lt sf 3 MS GLOBAL HOUSING LLC By: K / flea Its: OREcToR ban: — fe MS GLOBAL FUNDING, LLC By: Lf. Pa Its: zfafr Date: 2. jp — 5 KEN MACKAY IK. Le Date: —2fefg MICHAEL § Date: TL. 10 EXHIBIT A Affidavits of Confession of Judgment [See Attached] li NEW YORK STATE SUPREME COURT COUNTY OF NEW YORK anna enn eee en nen enmerern nnn, SCOTT W. WRIGHT P.C. Index No.: Plaintiff, AFFIDAVIT OF CONFESSION OF - against - JUDGMENT MS GLOBAL FINANCE LLC and MUSDEN FINANCIAL SERVICES LLC, Defendants. wan nnn nan ne nnn nna nen nen ene een ene nena STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) KEN MACKAY, being duly sworn, deposes and says: 1 Tam a Director of defendant MS GLOBAL FINANCE LLC (“MS Global”) in the above-captioned matter. I am authorized to enter contracts and to confess judgment on behalf of MS Global. 2, I reside and conduct business in the County of New York. MS Global maintains its principal office and conducts business in the County of New York. 3 MS Global hereby confesses judgment, pursuant to CPLR 3218, in favor of SCOTT W. WRIGHT P.C., plaintiff in the above entitled action, in the sum of ONE HUNDRED SEVENTY FIVE THOUSAND DOLLARS ($175,000). 4 MS Global hereby authorizes and consents to the entry of such judgment against it in the Supreme Court of the State of New York, County of New York. I agree to accept service of process related to this matter on behalf of MS Global by regular United States mail at any location at which MS GLOBAL may maintain offices or conduct business as well as in any court in any jurisdiction where MS Global’s assets may be found. 4. The aforesaid confession of judgment is for a debt now justly due and owing to SCOTT W. WRIGHT PC arising from the following facts: Plaintiff is a professional corporation authorized to practice law in the State of New York. Plaintiff provided to MS Global legal services during the period from on or about December 18, 2006 to December 31, 2010, including the following without limitation: preparing and negotiating various employment related agreements; preparing and negotiating numerous loan agreements and related documentation; preparing and negotiating various confidentiality and working agreements; preparing and negotiating various structured financing transactions including promissory notes and related documentation; prepare and review numerous transaction summaries and related documentation; numerous daily and weekly conferences and discussions regarding pending and proposed transactions. MS Global failed to pay the following invoices aggregating $180,000: Date Invoice No. Amount 9-Feb-09 132119/1037 $7,500.00 19-Mar-09 132119/1038 $7,500.00 8-Apr-09 132119/1039 $7,500.00 6-May-09 132119/1040 $7,500.00 15-Jun-09 132119/1041 $7,500.00 15-Jul-09 132119/1042 $7,500.00 3-Aug-09 132119/1043 $7,500.00 1-Sep-09 132119/1044 $7,500.00 1-Oct-09 132119/1045 $7,500.00 3-Nov-09 132119/1046 $7,500.00 1-Dec-09 132119/1047 $7,500.00 6-Jan-10 132119/1048 $7,500.00 2-Feb-10 132119/1049 $7,500.00 2-Mar-10 132119/1050 $7,500.00 16-Apr-10 132119/1051 $7,500.00 6-May-10 132119/1052 $7,500.00 22-Jun-10 132119/1053 $7,500.00 6-Jul-10 132119/1054 $7,500.00 9-Aug -10 132119/1055 $7,500.00 14-Sep-10 132119/1056 $7,500.00 13-Oct-10 132119/1057 $7,500.00 16-Nov-10 132119/1058 $7,500.00 -2- 2-Dec-10 132119/1059 $7,500.00 31-Dec-10 132119/1060 $7,500.00 MS Global and Plaintiff have entered into a certain Settlement Agreement dated July 12, 2013, whereby MS Global is to pay to Plaintiff $175,000 in two payments. The first payment of $100,000 is to be paid on or before August 31, 2013 and the second payment of $75,000 is to be paid on or before November 30, 2013. The entry of judgment against MS Global is authorized pursuant to an uncured event of default, including without limitation the failure to timely make these installment payment, so stipulated and agreed in the Settlement Agreement, 5 T understand that any indebtedness MS Global has to the plaintiff will be reduced by the amount of any payments made by MS Global prior to entry of judgment. 6 I further understand that any entry of judgment against me shall also include a calculation of interest that shall run from the date when the event of my default under the Settlement Agreement occurred. 7 Accordingly, MS Global hereby confesses and authorizes the entry of judgment against it and in favor of the plaintiff in the amount of $175,000 less any payments which MS Global has made prior to entry of the judgment. -3- 8 J am executing this confession of judgment on behalf of MS Global voluntarily and after consulting fully with our attorney. MS GLOBAL FINANCIAL SERVICES LLC iK By: Ken Mackay Title: Director PERLAI. TORIBIO Yor te of New Sworn to before me this Notary Public. >.inStaBronx County Qualifiedi {S day of July 2013 No. 01 706276703 19-2017 My Commission Expires 02~ Notary Public -4- NEW YORK STATE SUPREME COURT COUNTY OF NEW YORK. ween nee ten net nnen nena nnenmemenmentte tin ete SCOTT W. WRIGHT P.C. Index No.: Pp taint AFFIDAVIT OF CONFESSION OF - against - JUDGMENT MS GLOBAL FINANCE LLC and MUSDEN FINANCIAL SERVICES LLC, Defendants. we etter nnn ornnnnnnennenen amma K STATE OF NEW YORK ) ) ss.z COUNTY OF NEW YORK } KEN MACKAY, being duly swom, deposes and says: 1 1 am a Director of defendant MUSDEN FINANCIAL SERVICES LLC (“Musden™) in the above-captioned matter. | am authorized to enter contracts and to confess judgment on behalf of Musden. 2. Treside and conduct business in the County of New York. Musden maintains its principal office and conducts business in the County of New York. 3 Musden hereby confesses judgment, pursuant to CPLR 3218, in favor of SCOTT W. WRIGHT P.C., plaintiff in the above entitled action, in the sum of ONE HUNDRED SEVENTY FIVE THOUSAND DOLLARS (S175,000). 4 Musden hereby authorizes and consents to the entry of such judgment against it in the Supreme Court of the State of New York, County of New York. | agree to accept service of process related to this matter on behalf of Musden by regular United States mail at any location at which MUSDEN may maintain offices or conduct business as well as in any court in any jurisdiction where Musden’s assets may be found. 4 The aforesaid confession of judgment is for a debt now justly due and owing to SCOTT W. WRIGHT PC arising from the following facts: Plaintiff is a professional corporation authorized to practice law in the State of New York. Plaintiff provided to Musden legal services during the period from on or about December 18, 2006 to December 31, 2010, including the following without limitation: preparing and negotiating various employment related agreements; preparing and negotiating numerous loan agreements and related documentation; preparing and negotiating various confidentiality and working agreements; preparing and negotiating various structured financing transactions including promissory notes and related documentation; prepare and review numerous transaction summaries and related documentation; numerous daily and weekly conferences and discussions regarding pending and proposed transactions. Musden failed to pay the following invoices aggregating $180,000: Date Invoice No. Amount 9-Feb-09 132119/1037 $7,500.00 19-Mar-09 132119/1038 $7,500.00 8-Apr-09 132119/1039 $7,500.00 6-May-09 132119/1040 $7,500.00 15-Jun-09 132119/1041 $7,500.00 15-Jul-09 132119/1042 $7,500.00 3-Aug-09 132119/1043 $7,500.00 1-Sep-09 132119/1044 $7,500.00 1-Oct-09 132119/1045 $7,500.00 3-Nov-09 132119/1046 $7,500.00 1-Dec-09 132119/1047 $7,500.00 6-Jan-10 132119/1048 $7,500.00 2-Feb-10 132119/1049 $7,500.00 2-Mar-10 132119/1050 $7,500.00 16-Apr-10 132119/1051 $7,500.00 6-May-10 132119/1052 $7,500.00 22-Jun-10 132119/1053 $7,500.00 6-Jul-10 132119/1054 $7,500.00 9-Aug -10 132119/1055 $7,500.00 14-Sep-10 132119/1056 $7,500.00 13-Oct-10 132119/1057 $7,500.00 16-Nov-10 132119/1058 $7,500.00 -2- 2-Dec-10 132119/1059 $7,500.00 31-Dec-10 132119/1060 $7,500.00 Musden and Plaintiff have entered into a certain Settlement Agreement dated July 12, 2013, whereby Musden is to pay to Plaintiff $175,000 in two payments. The first payment of $100,000 is to be paid on or before August 31, 2013 and the second payment of $75,000 is to be paid on or before November 30, 2013. The entry of judgment against Musden is authorized pursuant to an uncured event of default, including without limitation the failure to timely make these installment payment, so stipulated and agreed in the Settlement Agreement. 5 T understand that any indebtedness Musden has to the plaintiff will be reduced by the amount of any payments made by Musden prior to entry of judgment. 6 I further understand that any entry of judgment against me shall also include a calculation of interest that shall run from the date when the event of my default under the Settlement Agreement occurred, 7 Accordingly, Musden hereby confesses and authorizes the entry of judgment against it and in favor of the plaintiff in the amount of $175,000 less any payments which Musden has made prior to entry of the judgment. -3- 8 lam executing this confession of judgment on behalf of Musden voluntarily and after consulting fully with our attorney. MUSDEN FINANCIAL SERVICES LLC I KL Tee Sworn to before me this PERLA |. TORIBIO Notary Public, State of New York /5_ day of July 2013 in Bronx County No. 01706276703 My Commission Expires 02-19-2017 Notary Public -4- EXHIBIT B General Release of Plaintiff [See Attached] 12 GENERAL RELEASE MS GLOBAL FINANCE LLC, MUSDEN FINANCIAL SERVICES LLC, MS GLOBAL HOUSING, LLC, MS GLOBAL FUNDING, LLC, KEN MACKAY and MICHAEL SHORE, each of their successors, heirs, assigns, affiliates, subsidiaries, officers, directors, employees and representatives (collectively, the “Releasors”), in consideration of the amount of TEN DOLLARS ($10.00), the payment and receipt of said funds Releasor hereby acknowledges, hereby irrevocably and unconditionally release and discharge SCOTT W. WRIGHT P.C. its principals, owners, members, affiliates, and assigns, (“Releases”), from any and all claims, counterclaims, losses, damages, costs, interests, expenses, actions, causes of action, liabilities or other claims that Releasor have, ever had, or may have in the future, by reason of any matter, cause or thing whatsoever, whether known or unknown, from the beginning of time to the date hereof, and further that Releasors covenant not to sue Releasees with respect to such claims or matters accordingly. In Witness Whereof, the Releasors have caused authorized officers and its corporate seal to be hereunto affixed on “op to be executed by its duly » 2013. In the presence of: MS GLOBAL FINANCE LLC, By ts:_ Cat MUSDEN FINANCIAL SERVICES LLC By: lg I Prete > Its: MikecToR MS GLOBAL HOUSING LLC By: KO! a Its: DIRECTOR MS GLOBAL FUNDING, LLC By: 1 [ 12 Jfl, Its: O14 Berok KEN MACKAY <1 Lic MICHAEL SH STATE OF NEW YORK) )8S.: County oF Naw s$1K ) On bly 1s » 2013, before me personally came Ken Mackay, who is the DiREETR oO} MS Global Finance LLC, Musden Financial Services LLC, MS Global Housing, LLC, MS Global Funding,.LLC, to me known on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual executed the instrument. PERLA |. TORIBIO Notary Public, State of New York Qualified in Bronx County Notary Public Seal: No. 01706276703 My Commission Expires 02-19-2017 STATE OF NEW YORK) )ss.: COUNTY OF Min TovK_) ay On | leoth _ , 2013, before me personally came Michael Shore, who is the Qikecrek of MS Global Finance LLC, Musden Financial Services LLC, MS Global Housing, LLC, MS Global Funding,.LLC, to me known on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual executed the instrument. PERLA |. TORIBIO Notary Public, State of New York Notary Public Seal: Qualified in Bronx County No. 01T06276703 ‘My Commission Expires 02-19-2017 EXHIBIT C General Releases of Defendants [See Attached] 13 GENERAL RELEASE SCOTT W. WRIGHT P.C. its principals, owners, members, affiliates, and assigns, (collectively, the “Releasor™), in consideration of the amount of TEN DOLLARS ($10.00), the payment and receipt of said funds Releasor, subject to the terms of the Settlement Agreement of even date herewith, hereby acknowledges, hereby irrevocably and unconditionally releases, discharges and covenants not to sue MS GLOBAL HOUSING, LLC, MS GLOBAL FUNDING, LLC, KEN MACKAY and MICHAEL SHORE (“Releasees”), each of their successors, heirs, assigns, affiliates, subsidiaries, officers, directors, employees and representatives, from anything specifically related to and alleged by Releasor in the action bearing the caption Scott W. Wright P.C. v. MS Global Finance LLC, et al., before the Supreme Court of the State of New York, County of New York, Index Number 153511/12, and any and all other claims, counterclaims, losses, damages, costs, interests, expenses, actions, causes of action, liabilities or other claims that Releasor have, ever had, or may have in the future, by reason of any matter, cause or thing whatsoever, whether known or unknown, from the beginning of time to the date hereof, and further that Releasor covenants not to sue Releasees with respect to such claims or matters accordingly. Tn Witness Whereof, the Releasor has caused this elease to be executed by its duly authorized officers and its corporate seal to be hereunto affixed ori , 2013. In the presence of: SCOTT IGHT P.C. By: Séott W. Wright, Esq. Title: Principal / Sole Member STATE OF NEW YORK ) )SS.: COUNTY OF ) On July AG , 2013, before me personally came Scott Wright, Esq., who is the principal and sole member of Scott W. Wright P.C., to me known on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument, the individual executed the instrument. Mathew. PY Notary Public Seal: MATHEW DAVID PYTLOWANY NOTARY PUBLIC OF NEW JERSEY My Commision Expires March 18, 2018 (( D (FILED; NEW YORK ‘COUNTY. CLERK 07/17/2013) INDEX NO. 153511/2012 NYSCEF Doc. NO. 3 ECEIVED NYSCEF: 07/17/2013 SUPREME COURT OF THE STATE OF NEW YOR NEW YORK COUNTY | GEORGE J. SILVER PART _}O PRESEN Justice i‘ Index Number : 153511/2012 WRIGHT; P.C., SCOTT W INDEX NO. vs. } MOTION DATE MS GLOBAL FINANCE LLC, ' SEQUENCE NUMBER : 001 MOTION SEQ, NO. DISMISS ACTION 4. | The following papers, numbered 1 to , were read on this motion to/for Notice ofMotlon/Order to Show Cause — Affidavits — Exhibits [Nois).. Answering Affidavits — Exhibits [ No(s). | QNois}. Replying Affidavits Upon the foregoing papers, it is ordered that this motion is This mitesMao sacle! por Silla daTaal Tipo 3. ] q Dated: 7 IGS Meu f Ve 4, CHECK ONE; ...... . (2 CASE DISPOSED (J _NON-FINAL DISPOSITION 2. CHECK AS. APPROPRIATE: MOTION IS: [7] GRANTED CIDenie (GRANTED IN PART (OTHER 3. CHECK IF APPROPRIATE: CISETTLE ORDER (I) SUBMIT ORDER (D0 NoT Post (FIDUCIARY APPOINTMENT CIREFERENCE From: 07/15/2013 16:47 #101 P.O01/001 PERRANTE LAW FIRM ———~ July 15, 2013 Via Facsimile 212-401-9288 Honorable George J. Silver Supreme Court, New York County 60 Centre Street ~ IAS Part 10 New York, New York 10013 Attention: Karen Berthiaume / Part Clerk Re: Scott W. Wright P.C. v. MS Global Finance LLC, et al. Supreme Court, New York County / Index No.: 15351 1/2012 Dear Ms. Berthiaume: Please be advised that | am counsel to. the Defendants in the above- referenced matier Please be advised that the matter is hereby settled as and between the parties., AS such, the parties shall not be appearing before this Court tomorrow, July 16, 2013 al 9:30 a.m,, for oral argument on Defendants’ motion and Plaintiffs cross-motion, as well as for the scheduled Preliminary Conference. We sincerely thank the Court for all of its efforts in guiding the parties to the amicable resolution of this matter. Rgspec brite ’ \ Ligrenz@ V. DéLill ee: Via Email Only Sceoit W. Wright P.C, Scot W. Wright, Esq. scott wright@wrightpc.com 5 West 19" Street, 10" Floor, New York, NY 10011 - T (212) 308-4440, F (212) 888-3839 www.FerranteLawFirm.com