Forebearance And Modification Agreement - DCI USA - 4-15-2005

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Forebearance And Modification Agreement - DCI USA - 4-15-2005 Powered By Docstoc
					Exhibit 10.28

                      FOREBEARANCE AND MODIFICATION AGREEMENT

THIS FOREBEARANCE AGREEMENT is executed as of March 31, 2005, by and between 231 Norman
Avenue, LLC, a New York limited liability company (the "Borrower"), with an address at 231 Norman Avenue,
Brooklyn, New York, 11222, and DCI USA, Inc. (the "Lender"), with an address at 20 West 64th Street, New
York, NY 10023.

                                                 RECITALS

Whereas, Borrower is obligated to, among other things, make quarterly interest payments to Lender pursuant to
the terms and conditions of the Promissory Note dated February 24, 2004 (the "$770,000 Note") in the original
principal amount of $770,000 from Borrower to Direct Capital Investment, Ltd. ("DCI"), which was duly
assigned to Lender;

Whereas, payments were made to DCI at the end of each calendar quarter notwithstanding the terms of the
$770,000 Note;

Whereas, payment was made by Borrower on February 1, 2005 in the amount of $7,000 against accrued
interest of $13,163.84 which was due and payable on December 31, 2004 with respect to the $770,000 Note;

Whereas, Borrower has requested, and Lender has agreed, that the next payment due to Borrower under the
$770,000 Note shall not be due until March 31, 2005,

Whereas, Borrower is obligated to, among other things, make quarterly interest payments to Lender commencing
on February 25, 2005 pursuant to the terms and conditions of the Assignment of Obligations under Promissory
Note and Indemnification Agreement (the "$600,000 Note; and together with the $770,000 Note, the "Notes")
which were duly assigned to the Lender from 231 Norman Avenue Property Development, LLC with the
consent of Hypothecators Mortgage Company and Elliot Rubin;

Whereas, Borrower has requested, and Lender has agreed, that the first payment due to Borrower under the
$600,000 Note in the amount of $6,115.07 shall not be due until March 31, 2005;

Now, therefore, for good and valuable consideration, the receipt and sufficiency are hereby acknowledged, the
parties agree as follows:

1. Forebearance. Lender hereby agrees with the Borrower that it shall forego the interest payments and the
default payments related thereto due it pursuant to the terms of the Notes.
On March 31, 2005, Borrower shall make a quarterly interest payment to the Lender, representing accrued
interest with respect to the $770,000 Note from January 1, 2005 through and including March 31, 2005, on
March 31, 2005. Said payment of $6,115.07 shall represent accrued interest with respect to the $770,000
Note.

On March 31, 2005, Borrower shall make the first quarterly interest payment to the Lender of $6,000,
representing accrued interest with respect to the $600,000 Note from November 29, 2004 through and including
February 25, 2005.

2. Default. If said payment is not made within 15 business days after March 31, 2005, the payment which was
due on December 31, 2004 with respect to the $770,000 Note shall bear interest as provided in Section 2 of the
Note from January 1, 2005 until the late payment is made in full.

3. Note Modification. Notwithstanding the terms of the Notes to the contrary, as of the date hereof Borrower
shall make quarterly payments to Lender of interest only commencing March 31, 2005 in arrears. All other terms
of the Notes shall remain in full force and effect except as specifically modified herein.

4. Reference. On and after the date hereof, each reference in each Note to "this Note", "hereunder", "hereof",
"herein" or words of like import, and each reference to the Note in any other agreement, document or other
instrument, shall mean, and be a reference to the particular Note, as modified by this agreement.

5. Counterparts. This agreement may be executed in one or more counterparts and by facsimile, and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.

6. Captions. The captions used herein are intended for convenience of reference only, shall not constitute any part
of this agreement and shall not modify or affect in any manner the meaning or interpretation of any of the
provisions of this agreement.

7. Binding Effect. This agreement shall be binding upon and inure to the benefit of the permitted successors and
assigns of the parties hereto.

8. Governing Law. This agreement and the rights and obligations of the parties under this agreement shall be
governed by and construed in accordance with the laws of the State of New York, without regard to conflict of
laws rules applied in such state.
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement as of the date appearing on
the first page of this Agreement.

                                            LENDER:

                                          DCI USA, Inc.

                                    By: /s/ Jonathan Ilan Ofir
                                        ----------------------
                                    Chief Executive Officer




                                          BORROWER:

                                    231 Norman Avenue, LLC

                                    By: /s/ David Yerushalmi
                                        ----------------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT

We hereby consent to the use in this Annual Report on Form 10KSB of our report dated March 19, 2004,
relating to the consolidated financial statements of Gavella Corp. and Subsidiary (now known as DCI USA, Inc.)
for the years ended December 31, 2003 and 2002, which appears as Exhibit _______ in DCI USA, Inc.'s
Report on Form 10KSB for the year ended December 31, 2004. We also consent to the reference to us under
the heading "Independent Public Accountants" in such Annual Report.

Haefele, Flanagan & Co., p.c.

                                          Maple Shade, New Jersey
                                              April 15, 2005
                                                     Exhibit 31.1

      CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION 302(a)
                      OF THE SARBANES-OXLEY ACT OF 2002

I, Jonathan Ilan Ofir, Chief Executive Officer of DCI USA, Inc. (the "Company"), certifies that:

1. I have reviewed this annual report on Form 10-K of the Company;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly
present in all material respects the financial condition, results of operations and cash flows of the small business
issuer as of, and for, the periods presented in this report;

4. I am responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange
Act Rules 13a-15(e) and 15d-15(e)) for the small business issuer and have:

a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the small business issuer, including
its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in
which this report is being prepared;

b. Designed such disclosure control over financial reporting, or caused such internal control over financial
reporting got be designed under our supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles;

c. Evaluated the effectiveness of the small business issuer's disclosure controls and procedures and presented in
this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and

d. Disclosed in this report any change in the small business issuer's internal control over financial reporting that
occurred during the small business issuer's fourth fiscal quarter that has materially affected, or is reasonably likely
to materially affect, the small business issuer's internal control over financial reporting; and

5. I have disclosed, based on my most recent evaluation of internal control over financial reporting, to the small
business issuer's auditors and the audit committee of the small issuer's board of directors (or persons performing
the equivalent functions):

a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the small business issuer's ability to record, process,
summarize and report financial information; and

b. Any fraud, whether or not material, that involves management or other employees who have a significant role in
the small business issuer's internal control over financial reporting

                                             Date:    April 15, 2005

                                             /s/ Jonathan Ilan Ofir
                                             -----------------------
                                             Jonathan Ilan Ofir
                                             Chief Executive Officer
                                                     Exhibit 31.2

    CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO SECTION 302(a) OF
                       THE SARBANES-OXLEY ACT OF 2002

I, Michael Gibbs, Chief Financial Officer of DCI USA, Inc. (the "Company"), certifies that:

1. I have reviewed this annual report on Form 10-K of the Company;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly
present in all material respects the financial condition, results of operations and cash flows of the small business
issuer as of, and for, the periods presented in this report;

4. I am responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange
Act Rules 13a-15(e) and 15d-15(e)) for the small business issuer and have:

a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be
designed under our supervision, to ensure that material information relating to the small business issuer, including
its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in
which this report is being prepared;

b. Designed such disclosure control over financial reporting, or caused such internal control over financial
reporting got be designed under our supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles;

c. Evaluated the effectiveness of the small business issuer's disclosure controls and procedures and presented in
this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the
period covered by this report based on such evaluation; and

d. Disclosed in this report any change in the small business issuer's internal control over financial reporting that
occurred during the small business issuer's fourth fiscal quarter that has materially affected, or is reasonably likely
to materially affect, the small business issuer's internal control over financial reporting; and

5. I have disclosed, based on my most recent evaluation of internal control over financial reporting, to the small
business issuer's auditors and the audit committee of the small issuer's board of directors (or persons performing
the equivalent functions):

a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the small business issuer's ability to record, process,
summarize and report financial information; and

b. Any fraud, whether or not material, that involves management or other employees who have a significant role in
the small business issuer's internal control over financial reporting

                                             Date:    April 15, 2005

                                             /s/ Michael Gibbs
                                             -----------------------
                                             Michael Gibbs
                                             Chief Financial Officer
                                                  Exhibit 32.1

                                   CERTIFICATION PURSUANT TO

                                         18 U.S.C. SECTION 1350

                                     AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

The undersigned, the Chief Executive Officer of DCI USA, Inc. (the "Company") does hereby certify under the
standards set forth and solely for the purposes of 18 U.S.C. 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that, to his knowledge, the Annual Report on Form 10-KSB of the Company for
the year ended December 31, 2004 fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and information contained in that Form 10-KSB
fairly presents, in all material respects, the financial condition and results of operations of the Company.

                                         Dated:    April 15, 2005

                                         /s/ Jonathan Ilan Ofir
                                         -----------------------
                                         Jonathan Ilan Ofir
                                         Chief Executive Officer




A signed original of this written statement required by Section 906 has been provided to the Company and will
be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 32.2

                                   CERTIFICATION PURSUANT TO

                                         18 U.S.C. SECTION 1350

                                     AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

The undersigned, the Chief Financial Officer of DCI USA, Inc. (the "Company") does hereby certify under the
standards set forth and solely for the purposes of 18 U.S.C. 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that, to his knowledge, the Annual Report on Form 10-KSB of the Company for
the year ended December 31, 2004 fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 and information contained in that Form 10-KSB
fairly presents, in all material respects, the financial condition and results of operations of the Company.

                                         Dated:    April 15, 2005

                                         /s/ Michael Gibbs
                                         -----------------------
                                         Michael Gibbs
                                         Chief Financial Officer




A signed original of this written statement required by Section 906 has been provided to the Company and will
be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.

				
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