Settlement Agreement and Mutual Release
This Settlement Agreement and Mutual Release ("Settlement
Agreement") is entered into this 26th day of January, 1996, by
and among Xxxxxxx X. Xxxxxxx, as Chapter 7 Trustee of the
Bankruptcy Estate of Gold'N M Television, Inc., a Delaware
corporation (the "Trustee"), Concept Communications, Inc., a
Delaware corporation ("Concept"), Allied Cellular Systems, Inc.,
a Delaware corporation ("Allied"), and M/A Burgers, Inc., a
California corporation ("M/A Burgers"), with reference to the
following circumstances:
WHEREAS, Concept and Gold'N M Television, Inc. ("GNM"),
entered into three agreements between them with respect to the
stock of The Nostalgia Network, Inc., a Delaware corporation
("Nostalgia"), dated as of April 30, 1990, including a Stock
Purchase Agreement, a Shareholders Agreement, and a Vote-Pooling
Agreement (hereinafter, collectively referred to as the
"Nostalgia Stock Agreements"), all of which are the subject of
disputes; and
WHEREAS, Concept and GNM are parties to an action commenced
by Concept in the Delaware Chancery Court entitled, Concept
Communications, Inc. v. Gold'N M Television, Inc., et al.,
Delaware civil case no. 12816, the subject matter of which
includes the Nostalgia Stock Agreements ("Delaware Action"); and
WHEREAS, GNM filed a petition for reorganization under
Chapter 11, Bankruptcy Code, on August 18, 1993, in the United
States Bankruptcy Court for the Central District of California,
the matter denominated as In re Gold'N M Television, Inc., C.D.
Cal. bankruptcy case no. SV 93-39559 KL (the "Bankruptcy Case");
and
WHEREAS, the Shareholders Agreement, in paragraph 6,
provides for a procedure whereby Concept and GNM can elect to
purchase the other party's shares of Nostalgia stock. Pursuant
thereto either party is entitled to send a notice to the other of
its intent to buy the other's shares under specified terms and
conditions. Upon receipt of such a notice, the other party can
either agree to sell on those terms or, alternatively, elect to
purchase the shares of the party that sent the notice, subject to
the same terms and conditions. On or about March 2, 1993, GNM
sent a notice to Concept of its intent to purchase Concept's
shares of Nostalgia stock. On or about April 30, 1993, Concept
responded by electing to purchase GNM's shares of Nostalgia
stock. Disputes and litigation ensued and no sale of stock had
occurred at the time GNM filed its bankruptcy petition. The
Trustee sought and obtained, over Concept's objection, an order
of the Bankruptcy Court permitting the Trustee to assume the
Shareholders Agreement (the "Bankruptcy Court Assumption Order").
The Bankruptcy Court Assumption Order was affirmed by an order of
the United States District Court for the Central District of
California (the "District Court Assumption Order", and
collectively with the Bankruptcy Court Assumption Order, the
"Assumption Order"). Concept has appealed from the Assumption
Order to the United States Court of Appeals for the Ninth Circuit
(the "Ninth Circuit Appeal"). The Trustee has demanded that
Concept purchase the shares of Nostalgia stock owned by GNM
pre-petition upon the terms of the March 2 and April 30, 1993
letters, and Concept has refused to do so. The Trustee is and
has been prepared to file an adversary complaint against Concept
to enforce the Shareholders Agreement. The filing thereof has
been held in abeyance pending settlement negotiations which have
culminated in this Settlement Agreement; and
WHEREAS, GNM pledged 1,500,000 shares of Nostalgia common
stock as a guarantee of certain indebtedness owed by Xxxxxxx X.
Xxxxxx ("Xxxxxx") to M/A Burgers, which shares Concept contends
were the subject of certain rights of Concept under the Nostalgia
Stock Agreements, and which Concept allegedly purchased pursuant
to its right of first refusal following a sale of the stock by
M/A Burgers at a public auction on July 22, 1993 (the "M/A
Burgers Nostalgia Shares"); and
WHEREAS, the Trustee has instituted an adversary proceeding
with respect to the M/A Burgers Nostalgia Shares entitled,
Xxxxxxx X. Xxxxxxx, etc. v. Xxxxxxx Xxxxxx, et al., adv. no. LA
94-01051 (the "Adversary Proceeding"); and
WHEREAS, Allied purportedly received a security interest in
1,335,676 shares of Nostalgia common stock and 1,250 shares of
Nostalgia preferred stock held by GNM, which stock Allied had in
its possession at the time of the filing of the Bankruptcy Case
(the "Allied Nostalgia Shares"); and
WHEREAS, GNM as debtor in possession instituted an adversary
proceeding against Allied on October 28, 1993 entitled Xxxxxxx X.
Xxxxxxx, etc. v. Allied Cellular Systems, Inc. a Delaware
corporation and Howrey & Simon, a partnership, adv. no. 93-04092,
and subsequently obtained a turnover of the Allied Nostalgia
Shares (the "Allied Adversary Proceeding"); and
WHEREAS, Xxxxxx pledged 167,500 shares of Nostalgia common
stock, as evidenced by stock certificate numbers 1628 and 1629,
to secure GNM's guarantee of his own indebtedness to M/A Burgers
(the "Xxxxxx Nostalgia Shares"), which shares were turned over to
the Trustee pursuant to an order of the Bankruptcy Court; and
WHEREAS, Xxxxxx has signed a stipulation releasing all his
rights in the Xxxxxx Nostalgia Shares;
WHEREAS, Nostalgia Network Partners, Ltd., a purported
limited partnership of which GNM is the general partner, owns
123,233 shares of Nostalgia common stock, which the Trustee
claims are assets of the Estate, but as to which Xxxxxxx X.
Xxxxxxxxx ("Xxxxxxxxx") has physical possession and also claims
an interest (the "NNP Nostalgia Shares"); and
WHEREAS, Marcovsky has relinquished and released all his
rights in the NNP Nostalgia Shares and turned the NNP Nostalgia
Shares over to the Trustee; and
WHEREAS, the Trustee and Marcovsky have entered into a
separate Settlement Agreement dated January 11, 1996.
WHEREAS, Concept and Allied have asserted certain claims and
filed proofs of claim against the Estate of Gold'N M Television,
Inc. (the "Estate"), in the Bankruptcy Case; and
WHEREAS, the Trustee, Concept, Allied, and M/A Burgers have
agreed to settle all known and unknown claims among them, and to
resolve various other matters, except for those rights and
obligations expressly noted below, without admitting any
wrongdoing or liability; and
WHEREAS, Concept is simultaneously entering agreements to
settle certain disputes and other matters with Tiger
Communications Company, L.P. ("Tiger"); and Tiger is
simultaneously settling certain disputes with Nostalgia; and
WHEREAS, also simultaneously, Concept is entering into a
Stock Purchase and Option Agreement with Allied; and
NOW, THEREFORE, in consideration of the promises, covenants
and representations set forth herein, the adequacy, receipt and
sufficiency of which is hereby acknowledged, the Trustee,
Concept, Allied, and M/A Burgers hereby agree as follows:
1. The terms of this Settlement Agreement are expressly
conditioned upon their approval by the Bankruptcy Court pursuant
to a Final Order as hereinafter defined; provided, however, that
the requirement herein that the Order approving the Settlement
Agreement by the Bankruptcy Court be a Final Order may be waived,
in writing, by all parties to the Settlement Agreement. As soon
as practicable after this Settlement Agreement has been executed,
the Trustee shall move the Bankruptcy Court for approval and
Concept, Allied and M/A Burgers shall fully cooperate with each
other and the Trustee in obtaining a Final Order approving the
Settlement Agreement. All parties will also file a stipulation
staying all proceedings and adversary proceedings pending the
Bankruptcy Court's approval of this Settlement Agreement in the
form annexed hereto as Exhibit A. "Final Order" shall mean an
order of the Bankruptcy Court as to which the time to appeal,
leave to appeal, petition for certiorari, or move for reargument
or rehearing has expired and as to which no appeal, petition for
certiorari, or other proceedings for reargument or rehearing or
leave to appeal shall then be pending or as to which any right to
appeal, petition for certiorari, reargue, rehear or to seek leave
to appeal shall have been waived in writing in form and substance
satisfactory to the Trustee and Concept or, in the event that an
appeal, writ of certiorari, or reargument or rehearing thereof or
to seek leave to appeal has been sought, such order of the
Bankruptcy Court shall have been affirmed by the highest court to
which such order was appealed, or certiorari has been denied or
from which reargument or rehearing or leave to appeal was sought,
and the time to take any further appeal, petition for certiorari
or move for reargument or rehearing or leave to appeal shall have
expired. In the event that the Bankruptcy Court disapproves this
Settlement Agreement, or its approval is reversed upon appeal, or
any other condition of this Settlement Agreement has not been
fulfilled for whatever reason, then, in such event, this
Settlement Agreement shall be null and void and of no force or
effect. This Settlement Agreement is a product of settlement
negotiations and cannot be cited or used by anyone. This
Settlement Agreement is binding upon the parties upon execution,
subject to the condition subsequent of Bankruptcy Court approval.
2. Upon the Effective Date of this Settlement Agreement
and receipt of the payments set forth in paragraph 3, infra, the
parties hereto or their attorneys will execute and file, or cause
to be executed and caused to be filed, dismissal with prejudice
of all claims against the other parties to this Settlement
Agreement in the Bankruptcy Case and related Adversary
Proceedings and the Ninth Circuit Appeal, and a dismissal with
prejudice of the Delaware Action, with each side to bear its own
costs and attorneys fees.
3. The parties shall exchange the consideration set forth
in this paragraph five (5) business days after the last of the
following events shall have occurred: (a) the Bankruptcy Court
has given its approval of the terms and conditions of this
Settlement Agreement, and such Order has become a Final Order;
provided, however, that the requirement that the Order has become
a Final Order may be waived, in writing, by all parties to the
Settlement Agreement; and (b) Concept and Nostalgia have
finalized the terms of a settlement of their disputes with M/A
Burgers and Tiger. At such time (the "Effective Date"), the
parties shall complete the following exchange of consideration:
a. Concept shall: (i) pay to the Estate the sum of
$1,050,000; and (ii) waive and withdraw all proofs of claim
against the Estate and other assets in the Bankruptcy Case; and
b. The Trustee, on behalf of the Estate, shall: (i)
dismiss with prejudice its adversary proceedings in the
Bankruptcy Case against Concept, Allied, and M/A Burgers; (ii)
transfer to Concept, forever waiving and discharging any of the
Estate's rights with respect to the following stock currently
under his control: (A) 456,409 shares of Nostalgia common stock,
free and clear of all liens and interests; and, (B) 1,250 shares
of Nostalgia preferred stock, also free and clear of all liens
and interests; (iii) release all claims either he or the Estate
has to the M/A Burgers Nostalgia Shares; (iv) transfer to Allied
ownership and control of, forever waiving and discharging any of
the Estate's rights with respect to 1,170,000 shares of Nostalgia
common stock, free and clear of all liens and interests;
provided, however, that Allied shall either obtain a release of
Xxxx X. Xxxxxxxxx dba The Law Offices of Xxxx X. Xxxxxxxxx
("Xxxxxxxxx") against certain of Allied's assets pursuant to a
certain Writ of Attachment in an action entitled Xxxx X.
Xxxxxxxxx dba The Law Offices of Xxxx X. Xxxxxxxxx v. Allied
Cellular Systems, Inc., Civ. No. 156277, or a stipulation that
certain of the proceeds of the payment by Concept to Allied in
connection with the Allied Stock Purchase Agreement be placed in
Escrow.
c. Allied shall: (i) release and forever waive its
claim to a security interest in the Allied Nostalgia Shares; and
(ii) reduce its remaining claim against the assets of the Estate
to $1,000,000 and subordinate such claim to all administrative
and priority claims and all other claims of creditors of the
Estate, except claims of Marcovsky and claims of entities
controlled by Marcovsky, including but not limited to American
Cellular Corp., Xxxxxxx Associates, Ltd., and Unicel, Inc., with
respect to which claim shall be deemed to be an allowed general
unsecured claim and shall share pro-rata with all other
non-insider general unsecured claims with respect to property of
the Estate other than the $1,050,000 paid to the Estate by
Concept.
4. Two (2) days prior to the hearing before the Bankruptcy
Court to approve the Settlement Agreement, Concept shall deposit
$1,050,000 in the trust account of Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx, which funds shall be used to satisfy Concept's
financial obligations under paragraph 3(a) of this Settlement
Agreement provided all conditions precedent to the $1,050,000
payment have been fulfilled.
5. After all parties to the Settlement Agreement have
executed the Settlement Agreement and prior to the hearing before
the Bankruptcy Court to approve the Settlement Agreement, the
Trustee will take appropriate steps to have the Nostalgia stock
certificates which the Estate holds re-registered with the
Nostalgia Stock Transfer Agent in any manner necessary to
facilitate the Closing.
6. Concurrent with the exchange of the foregoing, the
Nostalgia Stock Agreements, and the Buy Sell Agreement between
Concept and GNM shall be deemed terminated and of no further
effect.
7. On the Effective Date, the following mutual releases
shall become effective:
a. Except for those rights and obligations arising
under this Settlement Agreement, the Trustee, on behalf of the
Estate, voluntarily, knowingly, and willingly releases, acquits,
and forever discharges Concept, Nostalgia, Allied, and M/A
Burgers (the "Trustee's Released Parties"), all of the Trustee's
Released Parties' predecessors, successors, assigns, parents,
subsidiaries, affiliates, divisions, officers, directors,
employees, and all of the Trustee's Released Parties' attorneys,
accountants, underwriters, investment bankers, representatives,
and agents (for services performed for the Trustee's Released
Parties) from any and all claims, actions, causes of action,
damages, liabilities, promises, debts, compensation, losses,
obligations, duties, costs, or expenses of any kind or nature
whatsoever, whether known or unknown, anticipated or
unanticipated, concealed or hidden, which the Estate ever had, or
now has, or hereafter may have against them, arising out of or
relating in any way to any acts, omissions, events, occurrences,
statements, failures to act, or breaches of duty, occurring up to
and including the Effective Date. Notwithstanding anything to
the contrary in this Settlement Agreement, neither Xxxxxxx Xxxxx
Xxxxx, Xxxxx Xxxxx & Xxxxxxxxx nor any members or partners
thereof, Kassan, Christensen, White, Miller, Fink, Jacobs, Xxxxxx
& Xxxxxxx nor any members or partners thereof, Xxxxxx Xxxxx nor
Xxxxx Xxxx, Xx., shall receive any release whatsoever under this
Settlement Agreement.
b. Except for those rights and obligations arising
under: (i) this Settlement Agreement; and (ii) the separate Stock
Purchase Agreement and related Option Agreement between Allied
and Concept dated January 26, 1996, Concept voluntarily,
knowingly, and willingly releases, acquits, and forever
discharges the Estate, the Trustee (both individually and in his
capacity as Trustee for the Estate), Allied, and M/A Burgers
("Concept's Released Parties"), all of Concept's Released
Parties' predecessors, successors, assigns, parents,
subsidiaries, affiliates, divisions, officers, directors,
employees, and all of Concept's Released Parties' attorneys,
accountants, underwriters, investment bankers, representatives,
and agents (for services performed for Concept's Released
Parties) from any and all claims, actions, causes of action,
damages, liabilities, promises, debts, compensation, losses,
obligations, duties, costs, or expenses of any kind or nature
whatsoever, whether known or unknown, anticipated or
unanticipated, concealed or hidden, which it or its subsidiaries
and/or affiliates ever had, or now have, or hereafter may have
against them, arising out of or relating in any way to any acts,
omissions, events, occurrences, statements, failures to act, or
breaches of duty, occurring up to and including the Effective
Date. Notwithstanding anything to the contrary in this
Settlement Agreement, neither Xxxxxxx Xxxxx Xxxxx, Xxxxx Xxxxx &
Xxxxxxxxx nor any members or partners thereof, Kassan,
Christensen, White, Miller, Fink, Jacobs, Xxxxxx & Xxxxxxx nor
any members or partners thereof, shall receive any release
whatsoever under this Settlement Agreement.
c. Except for those rights and obligations arising
under this Settlement Agreement, M/A Burgers voluntarily,
knowingly, and willingly releases, acquits, and forever
discharges the Estate, the Trustee (both individually and in his
role as Trustee for the Estate), Concept, Nostalgia, and Allied
("M/A Burgers' Released Parties"), all of M/A Burgers' Released
Parties' predecessors, successors, assigns, parents,
subsidiaries, affiliates, divisions, officers, directors,
employees, and all of M/A Burgers' Released Parties' attorneys,
accountants, underwriters, investment bankers, representatives,
and agents (for services performed for M/A Burgers' Released
Parties) from any and all claims, actions, causes of action,
damages, liabilities, promises, debts, compensation, losses,
obligations, duties, costs, or expenses of any kind or nature
whatsoever, whether known or unknown, anticipated or
unanticipated, concealed or hidden, which it and or its
subsidiaries and/or affiliates ever had, or now have, or
hereafter may have against them, arising out of or relating in
any way to any acts, omissions, events, occurrences, statements,
failures to act, or breaches of duty , occurring up to and
including the Effective Date. Notwithstanding anything to the
contrary in this Settlement Agreement, neither Xxxxxxx Xxxxx
Xxxxx, Xxxxx Xxxxx & Xxxxxxxxx nor any members or partners
thereof, Kassan, Christensen, White, Miller, Fink, Jacobs, Xxxxxx
& Xxxxxxx nor any members or partners thereof, shall receive any
release whatsoever under this Settlement Agreement.
d. Except for those rights and obligations arising
under: (i) this Settlement Agreement; (ii) Allied's allowed
unsecured claim, as set forth in paragraph "3.c.ii" supra, and
(iii) the Stock Purchase Agreement between Allied and Concept
dated January 26, 1996, and related Option Agreement, Allied
voluntarily, knowingly, and willingly releases, acquits, and
forever discharges the Estate, the Trustee (both individually and
in his role as Trustee for the Estate), Concept, Nostalgia, and
M/A Burgers ("Allied's Released Parties"), all of Allied's
Released Parties' predecessors, successors, assigns, parents,
subsidiaries, affiliates, divisions, officers, directors,
employees and all of Allied's Released Parties', attorneys,
accountants, underwriters, investment bankers, representatives,
and agents (for services performed for Allied's Released Parties)
from any and all claims, actions, causes of action, damages,
liabilities, promises, debts, compensation, losses, obligations,
duties, costs, or expenses of any kind or nature whatsoever,
whether known or unknown, anticipated or unanticipated, concealed
or hidden, which it and or its subsidiaries and/or affiliates
ever had, or now have, or hereafter may have against them,
arising out of or relating in any way to any acts, omissions,
events, occurrences, statements, failures to act, or breaches of
duty occurring up to and including the date of the execution of
the Settlement Agreement. Notwithstanding anything to the
contrary in this Settlement Agreement, neither Xxxxxxx Xxxxx
Xxxxx, Xxxxx Xxxxx & Xxxxxxxxx nor any members or partners
thereof, Kassan, Christensen, White, Miller, Fink, Jacobs, Xxxxxx
& Xxxxxxx nor any members or partners thereof, shall receive any
release whatsoever under this Settlement Agreement.
8. Upon execution of this Settlement Agreement by the
parties hereto, the parties agree to seek a stay and vacation of
pending trial dates in all actions and adversary proceedings
among them.
9. The Trustee, on behalf of the Estate, Concept, Allied,
and M/A Burgers, expressly agrees that if they have sustained or
should sustain any injury, loss, or damage as a result of any act
of the parties released above, to date, or of any act which they
are not now aware, or if the loss or damage of which they are now
aware, has present or future consequences or results of which
they are not now aware, this Settlement Agreement shall
nevertheless constitute a full and final release of any claims
against the parties released above, and shall apply to and
include all such unknown or unsuspected consequences or results.
Each of the parties has read and has been fully advised of the
contents of Section 1542 of the California Civil Code, which
provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
effected his settlement with the debtor.
Each of the parties expressly waives any and all rights and
benefits of this Section.
10. This Settlement Agreement and any proceedings taken
hereunder are not and shall not in any way be construed as or
deemed to be evidence or any admission or concession of
wrongdoing or liability on the part of any party, or their
counsel or any of them or the lack of merit of the Bankruptcy
Case or the Delaware Action, which liability is expressly denied
and disclaimed by each of the parties hereto.
11. Any notice or other communications required or
permitted under this Settlement Agreement shall be in writing,
shall be delivered personally, telegraphed, telexed, or sent by
electronic facsimile transfer, or sent by certified, registered
or overnight mail or courier, postage pre-paid, and shall be
deemed given on the earlier of the day actually received or close
of business on the second business day next following the day
when deposited with an overnight courier or the close of business
on the fifth business day when deposited in the United States
mail, postage pre-paid, certified or registered, addressed as set
forth below:
If to the Trustee: Xxxxxx Xxxxxxx, Esq.
Danning, Gill, Diamond & Kollitz
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
If, to Concept: Xxxxxxx X. Xxxxxxxxx
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
If, to Allied: Xxxxx Xxxxxxxx
Allied Cellular Systems, Inc.
0000 X. Xxxxx Xxxxxx, Xxxxx X
Xxxxxxx Xxxxx, XX 00000-0000
If, to M/A Burgers: Xxxxx XxXxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxxxxxxxx, Esq.
Christensen, White, Miller, Fink,
Xxxxxx, Xxxxxx & Xxxxxxx
2121 Avenue of the Stars
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
12. Each party hereto agrees to indemnify and hold harmless
the others, and their respective directors, officers and
employees, from and against any losses, claims, demands, damages,
costs or liabilities incurred by any of them arising out of or
relating to their performance or failure to perform under this
Settlement Agreement ("Liabilities"), except where such
Liabilities have resulted from a breach of the terms of this
Settlement Agreement by the party seeking indemnification (or any
director, officer or employee of such party).
13. Waiver of any term or condition of this Settlement
Agreement by any parties shall be effected only if in writing and
shall not be construed as a waiver of any subsequent breach or
failure of the same term or condition, or a waiver of any other
term or condition of this Settlement Agreement.
14. This Settlement Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective
successors, including subsequent bankruptcy trustees. No person
other than the parties and their successors is intended to have
any right under the Settlement Agreement.
15. This Settlement Agreement shall be construed in
accordance with the laws of the State of California (without
regard to conflict of law principles). The Bankruptcy Court for
the Central District of California shall maintain exclusive
jurisdiction concerning all actions or disputes involving the
Trustee.
16. This Settlement Agreement contains the entire
understanding and agreement of the parties with respect to the
subject matter hereto and supersedes all prior and
contemporaneous agreements, negotiations, correspondence,
undertakings and communications of the parties or their
representatives, oral or written, respecting such subject matter.
No amendment, modification, or cancellation of any term or
condition of this Settlement Agreement shall be effected unless
executed in writing by the parties hereto.
17. Each party to this Settlement Agreement acknowledges
that it has been represented by or has had the opportunity to be
represented by independent legal counsel of its own choice
throughout all of the negotiations that have preceded the
execution of this Settlement Agreement, and that is has executed
this Settlement Agreement with the consent and upon the advice of
such independent legal counsel.
18. Each signatory to this Settlement Agreement
acknowledges that he or she has read this Settlement Agreement
and assents to all of the terms and conditions contained herein
without any reservation whatsoever and that he or she has had the
opportunity to have the same explained to him or it by its own
counsel, who has or will have answered any and all questions
which have been asked of him or her with regard to the meaning of
any of the provisions hereof.
19. Each of the parties hereto covenants and agrees that,
at any time, and from time to time after the date hereof, it
shall execute, or cause to be executed, such additional documents
and instruments and take, or cause to be taken, such action as
may be reasonably requested by the other parties hereto to
confirm or evidence or otherwise carry out the intent and
purposes of this Settlement Agreement.
20. Each signatory to this Settlement Agreement warrants
and represents that (i) he or she is duly authorized to execute
this Settlement Agreement, (ii) he or she is fully physically
able and mentally competent to execute this Settlement Agreement
and (iii) he or she has a full and complete understanding of its
terms.
21. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures to each
counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this
Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and
entered into by the Parties on the date first hereinabove
mentioned.
Dated: January 26, 1996 Xxxxxxx X. Xxxxxxx,
Trustee of Gold'N M Television, Inc.
By: /s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
Dated: January 26, 1996 Concept Communications, Inc.
By: /s/ XXXX XXXX JOO
Xxxx Xxxx Joo
Dated: January 26, 1996 M/A Burgers, Inc.
By: /s/ XXXXX XXX
Xxxxx Xxx
Dated: January 26, 1996 Allied Cellular Systems, Inc.
By: /s/ XXXXX X. XXXXXXXX
Xxxxx X. Xxxxxxxx
Exhibit A
Xxxxxx X. Xxxx, Esq. (State Bar No. _________)
Danning, Gill, Diamond & Kollitz
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attorneys for Chapter 7 Trustee
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re ) Case No.: LA 93-39559-KL
)
Gold'N M Television, Inc. ) CHAPTER 7
)
Debtor. ) STIPULATION STAYING
) PROCEEDINGS PENDING
) BANKRUPTCY COURT APPROVAL
) OF SETTLEMENT AGREEMENT;
) ORDER THEREON
)
) DATE:
) TIME: [No hearing required]
) PLACE:
______________________________)
Xxxxxxx X. Xxxxxxx, as Chapter 7 Trustee of the Bankruptcy
Estate of Gold'N M Television, Inc., a Delaware corporation
("Trustee"), Concept Communications, Inc., a Delaware corporation
("Concept"), Allied Cellular Systems, Inc., a Delaware
corporation ("Allied") and M/A Burgers, Inc., a California
corporation ("M/A Burgers"), hereby stipulate and agree with
respect to the following facts:
1. The Trustee, Concept, Allied and M/A Burgers have
entered into a Settlement Agreement and Mutual Release, subject
to approval of this Court (the "Settlement Agreement").
2. The Trustee has instituted an adversary proceeding
entitled, Xxxxxxx X. Xxxxxxx, etc. v. Xxxxxxx Xxxxxx, et al.,
adv. no. LA 94-01051 (the "Adversary Proceeding").
3. Gold'N M Television, Inc., a Delaware corporation
("GNM"), as debtor in possession, instituted an adversary
proceeding against Allied on October 28, 1995 entitled Xxxxxxx X.
Xxxxxxx, etc. v. Allied Cellular Systems, Inc., a Delaware
corporation and Howrey & Simon, a partnership, adv. no. LA
93-04092 (the "Allied Adversary Proceeding", and collectively
with the Adversary Proceeding, the "Proceedings").
4. The Trustee and Concept are parties to the Ninth
Circuit Appeal as defined in the Settlement Agreement.
5. In view of the Settlement Agreement, the parties desire
to stay prosecution of the Proceedings and all other proceedings,
if any, before the Court and involving two or more of the parties
to the Stipulation pending approval of the Settlement Agreement
by the Bankruptcy Court.
WHEREFORE, the parties hereto STIPULATE AND AGREE, as
follows:
A. Prosecution of the Proceedings and all other
proceedings, if any, before the Court and involving two or more
of the parties to the Stipulation shall be, and are hereby,
stayed with respect to the parties to the Settlement Agreement
until the earlier of: (i) the Effective Date of the Settlement
Agreement; or (ii) thirty (30) days after the date on which the
Bankruptcy Court has entered an order disapproving the Settlement
Agreement, which order is a Final Order as defined in the
Settlement Agreement.
B. The Trustee and Concept will take all appropriate and
necessary steps to stay prosecution of the Ninth Circuit Appeal
pending approval of the Settlement Agreement by the Bankruptcy
Court.
C. The parties to the Settlement Agreement and Stipulation
will not institute any proceedings regarding the subject matter
of the Settlement Agreement pending approval of the Settlement
Agreement by the Bankruptcy Court.
Dated: ______________, 1995 ___________________________
Xxxxxx X. Xxxx, Attorney for
Xxxxxxx X. Xxxxxxx,
Chapter 7 Trustee of
Gold'N M Television, Inc.
Dated: ______________, 1995 ___________________________
Xxxxxxx X. Xxxxxxxxx,
Attorney for
Concept Communications, Inc.
Dated: ______________, 1995 ___________________________
Allied Cellular Systems, Inc.
By: Xxxxx X. Xxxxxxxx
Dated: ______________, 1995 ___________________________
Xxxxx X. XxXxxxxx,
Attorney for
M/A Burgers, Inc.
ORDER
Upon consideration of the foregoing Stipulation, it
appearing that the Stipulation is in the best interests of the
estate herein and its creditors, and other good cause appearing
therefor, it is hereby
ORDERED, that the foregoing Stipulation shall be, and it is
hereby, approved in its entirety.
Dated: _____________________, 1995
_________________________________
XXXXXXXXX XXXXXXXX X. XXX
UNITED STATES BANKRUPTCY JUDGE
