EXHIBIT 10.49
SETTLEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 10th day of April, 2002
by and among the following parties:
iNTELEFILM Corporation, a Minnesota corporation ("iNTELEFILM"); and
OLKAHOMA SPORTS PROPERTIES, INC., an Oklahoma corporation ("OSPI"), and
XXXX X. XXXXXXXX, a Nevada resident ("Xxxxxxxx" and collectively with
OSPI called the "Xxxxxxxx Parties").
WHEREAS, OSPI and Xxxxxxxx are indebted to iNTELEFILM under that certain
promissory note dated September 4, 1998 in the original principal amount of
$275,000 (the "Note");
WHEREAS, OSPI and iNTELEFILM entered into an asset purchase agreement
dated May 21, 1998 providing for the sale of the assets of the KMUS-AM radio
station (the "Radio Station Purchase Agreement"), which iNTELEFILM has
cancelled;
WHEREAS, the Xxxxxxxx Parties own 51 shares of iNTELEFILM common stock
(the "Stock");
WHEREAS, iNTELEFILM has made certain other claims against the Xxxxxxxx
parties and the Xxxxxxxx parties have made certain claims against iNTELEFILM;
and
WHEREAS, the parties desire to resolve and settle their claims in
accordance with the terms and provisions of this Agreement,
NOW, THEREFORE, in consideration of these premises and One Dollar and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties here to agree as follows:
1. Transfer of KMUS Note and Stock. Upon execution and delivery of this
Agreement by iNTELEFILM, (a) OSPI shall assign and transfer to iNTELEFILM all of
the rights title and interest of OSPI in that certain promissory note in the
original principal amount of $275,000 from Reunion Broadcasting L.L.C. to OSPI
(the "KMUS Note"), free and clean of any liens, encumbrances or other
restrictions, and deliver to iNTELEFILM the original of the KMUS Note together
with the originally executed allonge by OSPI and acknowledgement by the maker of
the KMUS Note in the form of Exhibit A attached hereto, including the
confirmation therein of the balance owed by the maker of the KMUS Note and the
acknowledgment of such maker that future payments under the KMUS Note will be
made to iNTELEFILM or its successors or assigns, and (b) the Xxxxxxxx Parties
shall deliver the certificate(s) for the Stock together with a stock power with
medallion signature guaranty transferring the Stock to iNTELEFILM, free and
clear of any liens, encumbrances or other restrictions.
2. Representations of the Xxxxxxxx Parties. As a material inducement for
iNTELEFILM to enter into this Agreement, the Xxxxxxxx parties hereby represent
and warrant to iNTELEFILM as follows:
(a) OSPI is the legal and beneficial owner of the KMUS Note free and
clear of any liens, encumbrances or other restrictions. The maker of the
KMUS Note has not asserted any right of offset against the KMUS Note. The
unpaid principal amount of the KMUS Note is $232,735.98 after giving
effect to the scheduled payment made on April 1, 2002 and interest
thereon has been paid through April 1, 2002 and no prepayments have been
made on the KMUS Note. To the knowledge of the Xxxxxxxx Parties, the
maker of the KMUS Note is financially solvent and responsible, and able
to pay the KMUS Note in accordance with its terms. The maker of the KMUS
Note has not asserted any default by OSPI or any claim against OSPI under
the asset purchase agreement dated May 21, 1998 between such maker and
OSPI, pursuant to which the maker issued the KMUS Note to OSPI.
(b) The Xxxxxxxx Parties are the legal and beneficial owners of the
Stock, free and clear of any liens, encumbrances or other restrictions.
(c) OSPI has the corporate power and authority to execute and deliver
this Agreement and perform its obligations hereunder. All requisite
corporate and other approvals of this Agreement have been obtained by
OSPI. Each of the Xxxxxxxx Parties has duly executed and delivered this
Agreement. This Agreement is the binding and valid obligation of the
Xxxxxxxx Parties enforceable against the Xxxxxxxx Parties in accordance
with its terms. The execution, delivery and performance of this Agreement
by the Xxxxxxxx Parties, including but not limited to the assignment of
the KMUS Note and Stock to iNTELEFILM, will not violate, result in a
breach of or default under (i) the articles of incorporation or by-laws
of OSPI, (ii) any contract, agreement or other instrument binding upon
either of the Xxxxxxxx Parties or to which any of their respective
properties or assets are subject, or (iii) any law or regulation to which
any of the Xxxxxxxx Parties or their properties is subject.
(d) OSPI is not insolvent and is able to pay its debts and
liabilities in the ordinary course without any funds provided from the
payments on the KMUS Note.
3. Representations and Warranties of iNTELEFILM. As a material inducement
for the Xxxxxxxx Parties to enter into this Agreement, iNTELEFILM hereby
represents and warrants to the Xxxxxxxx Parties as follows:
(a) iNTELEFIM has the corporate power and authority to execute and
deliver this Agreement and perform its obligations hereunder. All
requisite corporate and other approvals of this Agreement have been
obtained by iNTELEFILM.
(b) iNTELEFILM has duly executed and delivered this Agreement. This
Agreement is the binding and valid obligation of iNTELEFILM enforceable
against iNTELEFILM in accordance with its terms. The execution, delivery
and performance of
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this Agreement by iNTELEFILM will not violate, result in a breach of or
default under (i) the articles of incorporation or by-laws of iNTELEFILM,
(ii) any contract, agreement or other instrument binding upon iNTELEFILM
or to which any of its properties or assets are subject, or (iii) any law
or regulation to which any of the Xxxxxxxx Parties or their properties is
subject.
4. General Release by Xxxxxxxx Parties. In consideration of the
agreements set forth herein, the Xxxxxxxx Parties for himself/itself and his/its
heirs, personal representatives and assigns hereby release, acquit and forever
discharge iNTELEFILM, all direct or indirect majority-owned subsidiaries of
iNTELEFILM and the officers, directors, employees and agents of iNTELEFILM and
its subsidiaries (the "iNTELEFILM Parties") from any and all claims, demands,
debts, actions, causes of action, suits, contracts, agreements, obligations,
accounts, defenses, offsets, and liabilities of any kind or character,
whatsoever, whether known or unknown, arising prior to the date hereof. This
release includes, without limitation, any and all claims, demands, debts,
actions, causes of action, suits, contracts, agreements, obligations, accounts,
defenses, offsets, and liabilities of any kind or character whatsoever arising
out of or in connection with the Radio Station Purchase Agreement. Further, the
Xxxxxxxx Parties acknowledge and agree that the iNTELEFILM Parties recommend
that the Xxxxxxxx Parties seek legal counsel regarding this Agreement, including
the general release contained in this paragraph 4, and that the Xxxxxxxx Parties
have signed this Agreement understanding the legal effect and significance of
the provisions contained in this Agreement. The Xxxxxxxx Parties acknowledge and
agree that they have executed this Agreement freely, voluntarily and because
they wanted to so, after consulting with competent legal counsel with whom they
are satisfied.
5. Conditional General Release by iNTELEFILM. Subject to the conditions
to effectiveness set forth below in subparagraphs 5(a) - (c) below and the
conditions subsequent in subparagraph 5(d) below, iNTELEFILM agrees to provide
the general release in favor of the Xxxxxxxx Parties in the form of Exhibit B
attached hereto (the "iNTELEFILM Release"). Upon execution and delivery of this
Agreement, iNTELEFILM shall execute and deliver iNTELEFILM Release in escrow
with its counsel, Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. ("Escrow Agent") in
Minneapolis, Minnesota with instructions to send via Federal Express on July 15,
2002 the iNTELEFILM Release to the Xxxxxxxx Parties at the address set forth in
this Agreement unless iNTELEFILM delivers to the Escrow Agent and the Xxxxxxxx
Parties a statement by a corporate officer of iNTELEFILM under oath that one or
more of the conditions set forth in subparagraphs 5(a) - (c) to the
effectiveness of the iNTELEFILM Release to the Xxxxxxxx Parties is not satisfied
on or before that date. The effectiveness of the iNTELEFILM Release is subject
to the following conditions, the failure of any of which shall void the
iNTELEFILM Release ab initio whether or not the iNTELEFILM Release has been
delivered to the Xxxxxxxx Parties:
(a) Performance of Xxxxxxxx Parties. The Xxxxxxxx Parties shall have
performed all of their obligations under this Agreement and the
representations and warranties of the Xxxxxxxx Parties shall be true,
correct and complete.
(b) No Adverse Claims and Performance of Maker under the KMUS Note. No
person shall have asserted an interest in the KMUS Note, including by not
limited to
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any claims of fraudulent conveyance, and the maker of the KMUS Note shall
not have made any claim of offset or otherwise failed to pay any amount
when due under the KMUS Note.
(c) No Bankruptcy, Etc. of Xxxxxxxx Parties. None of the Xxxxxxxx
Parties shall have: (i) admitted in writing his/its inability to pay
his/its debts generally as they become due; (ii) filed a petition in
bankruptcy or petition to take advantage of any insolvency act; (iii)
made an assignment for the benefit of creditors; (iv) consented to, or
acquiesced in, the appointment of a receiver, liquidator or trustee of
him/itself or of the whole or any substantial part of his/its properties
or assets; or (v) filed a petition or answer seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under the federal bankruptcy laws or any other applicable
laws. A court of competent jurisdiction shall not have entered an order,
judgment or decree appointing a receiver, liquidator, or trustee of any
of the Xxxxxxxx Parties, or of the whole or any substantial part of the
property or assets of any of the Xxxxxxxx Parties and such order,
judgment or decree shall remain unvacated, or not set aside, or unstayed
for 30 days. No petition shall have been filed against any of the
Xxxxxxxx Parties seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the
federal bankruptcy laws or any other applicable law and such petition
shall remain undismissed for 60 days, or under the provisions of any
other law for the relief or aid of debtors. No court of competent
jurisdiction shall have assumed custody or control of any of the Xxxxxxxx
Parties or of the whole or any substantial part of his/its property or
assets and such custody or control shall remain unterminated or unstayed
for 30 days. No attachment or execution shall have been levied against
the KMUS Note due to the ownership of the KMUS by OSPI at one time.
(d) Condition Subsequent. Since the KMUS Note is subject to certain
rights of offset, the Xxxxxxxx Parties agree to pay to iNTELEFILM the
amounts otherwise payable under the KMUS Note that would paid had the
maker not exercised its right of offset.
6. Notices. Any notice or communication required or permitted to be given
by the provisions of this Agreement shall be deemed to have been effectively
given and received on the date personally delivered to the respective party to
whom it is directed, or three (3) days after the date when deposited by
registered or certified mail, with postage and charges prepaid and addressed to
such party at the address set forth below.
If to iNTELEFILM:
Crosstown Corporate Center
0000 Xxx Xxxxx Xxx Xxxx
Xxxxx 000
Xxxx Xxxxxxx, XX 00000
Attention: Chief Executive Officer
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If to the Xxxxxxxx Parties:
x/x Xxxx X Xxxxxxxx
0000 Xxxxxxx
Xxx Xxxxx, XX 00000
Any party may change its address by delivering a written change of address to
all of the other parties in the manner set forth in this paragraph 6.
7. Miscellaneous. This Agreement shall be governed by the law of the
State of Minnesota, regardless of the domicile of the parties. Time is of the
essence of the Agreement. This Agreement constitutes the complete agreement
between the parties with respect to its subject matter. This Agreement cannot be
amended, altered or modified except by an instrument in writing, signed by the
party against whom enforcement of the amendment, alteration or modification is
sought. In the event of any breach of this Agreement or dispute regarding the
enforcement or terms of this Agreement, the prevailing party shall be entitled
to recover, in addition to any other damages or remedies, the costs and expenses
incurred by such party in enforcing this Agreement or prevailing in such
dispute, including but not limited to reasonable attorneys fees and other
litigation expenses. The parties consent to the non-exclusive jurisdiction of
the Federal and state courts located in the State of Minnesota in connection
with any dispute relating to this Agreement or transactions contemplated hereby.
IN WITNESS WERHEOF, the parties have duly executed and delivered this
Agreement as of the date and year first above written.
INTELEFILM Corporation
By: /s/ Xxxx X. Xxxx
-------------------------------------
Xxxx X. Xxxx, Chief Executive Officer
OKLAHOMA SPORTS PROPERTIES, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxx, President
/s/ Xxxx X. Xxxxxxxx
-------------------------------------
Xxxx X. Xxxxxxxx
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EVIDENCE OF PROMISSORY NOTE
COMES NOW D. Xxxxxxx Xxxxxx, on behalf of Reunion Broadcasting L.L.C and
Xxxx Street, on behalf of Oklahoma Sports Properties, Inc., who hereby certify
and verify that certain promissory note (a copy of which is attached hereto as
Exhibit "A") was executed on September 4, 1998, by Reunion Broadcasting, L.L.C.
and given to Oklahoma Sports Properties, Inc. on that date in the original
amount of Two Hunderd Seventy Five Thousand Dollars ($275,000.00).
That the original note has been lost and the undersigned verify and agree
that Exhibit "A" is a true and correct copy of the original. It is agreed and
understood by all parties that this document and the attachments do not create
new obligations or debt, but merely verifies the existence and terms of the
noted dated September 4, 1998.
Dated this 29 day of March, 2002
REUNION BROADCASTING L.L.C.
By: /s/ D. Xxxxxxx Xxxxxx
------------------------------------
D. Xxxxxxx Xxxxxx, Manager
OKLAHOMA SPORTS PROPERTIES, INC.
By: /s/ Xxxx Street
------------------------------------
Xxxx Street, Vice President
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EXHIBIT A
(A) PROMISSORY NOTE
$275,000.00 Tulsa, Oklahoma September 4, 1998
FOR VALUE RECEIVED, the undersigned, Reunion Broadcasting L.L.C., an
Oklahoma limited liability company, ("Maker"), promises to pay to the order of
Oklahoma Sports Properties, Inc., an Oklahoma corporation, ("Payee"), the
principal sum of Two Hundred Seventy-five Thousand Dollars ($275,000.00),
together with interest on all unpaid amounts of principal at the rate of Seven
percent (7%) per annum. Principal and interest shall be payable as follows:
Installment payments inclusive of principal and interest
shall be $2,471.78 on the fourth day of October, 1998,
and $2,471.78 on the first day of each month thereafter
for one hundred eighty (179) months at which time all
unpaid amounts, if any, shall be due in full.
This Promissory Note may be prepaid at any time without penalty or premium.
The holder hereof, from time to time, may waive or surrender, either in
whole or in part, any rights, guarantees, security interest, or liens given for
the benefit of the holder in connection with the payment of this Note, and such
waiver or surrender shall not, in any manner, affect, limit, modify, or
otherwise impair any rights, guarantees, or security of the holder not
specifically waived, released, or surrendered in writing, nor shall any maker,
guarantor, endorser, or any person who is or might be liable hereof, either
primarily or contingently, be released from such liability by reason of the
occurrence of any such event. The holder hereof, from time to time, shall have
the unlimited right to release any person who might be liable hereon; and such
release shall not affect or discharge the liability of any other person who is
or might be liable hereon. The obligations of Maker hereunder are subject to any
claims, offsets or remedies of Maker, arising under the terms of that certain
Asset Purchase Agreement between Maker and Payee dated May 21, 1998 which may be
asserted as a defense to payment obligations hereunder.
If payment required by this Note to be made is not made when due, and
provided that Payee is not in default under the provisions of the Asset Purchase
Agreement dated May 21, 1998, the Payee may, at its option, without notice or
demand, declare this Note in default and all indebtedness due and owing
hereunder immediately due and payable. In the event of a default, the entire
unpaid balance shall be immediately due and payable, together with interest from
the date of default on such unpaid balance at the rate of fifteen percent (15%).
The makers, endorsers, guarantors, and sureties of the Note hereby severally
waive protest, presentment, demand, and notice of protest and nonpayment in case
this Note or any payment due hereunder is not paid when due; and, they agree to
any renewal of this Note or to any extension, acceleration, or postponement of
the time of payment, or any other indulgence, to any substitution, exchange
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or release of collateral, and to the release of any party or person primarily or
contingently liable without prejudice to the holder and without notice to any
maker, endorser, guarantor, or surety. The maker hereof, and any guarantor,
endorser, surety, or any other person who is or may become liable hereon will,
on demand, pay all costs of collection, including reasonable attorney fees of
the holder hereof in attempting to enforce payment of this Note, and reasonable
attorney fees for defending the validity of any document securing this Note as a
valid first and prior lien.
This Note is executed and delivered in the State of Oklahoma and shall be
governed and construed in accordance with the laws of the State of Oklahoma.
"MAKER"
REUNION BROADCASTING L.L.C.
By /s/
----------------------------------
D. Xxxxxxx Xxxxxx, Its manager
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