SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT ("Agreement") is made and entered into on
this 12 day of June, 1997 by and between On Ice, Inc., a corporation organized
and existing under the laws of the state of Delaware and having offices located
at 000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
(hereinafter "On Ice") and Magicworks Entertainment, Incorporated, a
corporation organized and existing under the laws of the state of Florida and
having offices located at 000 Xxxx Xxxxxxxx Xxxx, Xxxxxx, Xxxx 00000-0000
(hereinafter "Magic") and its affiliated corporations and entities.
WHEREAS, On Ice and Magic previously entered into certain agreements and
understandings, written and oral, with respect to the production and promotion
of the Nutcracker on Ice (hereinafter "Nutcracker") shows for years 1994, 1995,
and 1996.
WHEREAS, the parties desire to resolve all outstanding matters by and
between them with respect to or relating to the Nutcracker and any prior
agreements or understandings which they have with respect thereto by settlement
and agreement.
NOW THEREFORE, in consideration of the foregoing and of the mutual
promises hereinafter set forth, of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties thereto
promise and agree as follows:
1. On Ice's Payment Responsibility. Magic represents and warrants that it
has remitted payment for all the expenses Magic has incurred for the
1996 Nutcracker On Ice and Magic has provided this information to On
Ice and D&F Consulting Ltd. On Ice shall assume the sole responsibility
for all the expenses On Ice incurred directly, and Magic shall have no
responsibility whatsoever for, the payment of any unpaid bills,
invoices, or charges of any type or nature whatsoever arising from or
relating to producing and promoting the Nutcracker show for 1996,
except for the expenses identified as paid by Magic. Where Magic has
contracted directly with any third party for any expenses relating to
Nutcracker On Ice shows and not notified On Ice of these expenses,
Magic will be responsible for these expenses. The booking fees due the
Booking Group for the Nutcracker On Ice - 1996 theater tour and the
spring tour of Gershwin On Ice as identified on "Exhibit A" are the
responsibility of On Ice, Inc., to pay and the Booking Group will be
paid by July 1, 1997, or this will constitute a material breach of this
agreement and such material breach will be enforceable by Magic or The
Booking Group. On Ice's responsibility and obligations pursuant to this
Paragraph also include, but are not limited to, the obligation to pay
talent fees and royalties, if any. that may be due to talent and others
regarding the home video sales of the Nutcracker.
2. Rights and Assets. Magic waives, releases, and relinquishes any and all
claims which it has, has had, or may hereafter otherwise have with
respect to any revenues, assets, copyrights, television or video sales,
and ancillary exploitation. All the above-mentioned worldwide rights
are included. On Ice will pay Magic, for the 1997, 1998, and 1999
tours of Nutcracker On Ice, a royalty of five percent (5%) of the net
profits after all direct expenses including the Fifty Thousand dollars
($50,000.00) management fee. Magic's 5% profit participation will be
due and payable by February 28 after the end of such tour. If such
profit participation is not paid on time, it will be considered a
material breach and enforceable by Magic. On Ice will release Magic
from any claims for losses incurred prior to the execution of this
agreement except as identified in Section 1. No On Ice corporate
interest or expenses will be included.
3. Non-Competition. Magic will not enter into any agreement to produce,
promote, or financially back any "Nutcracker" ice skating show directly
or with any other partnerships, corporations or entity of any kind for
the period of royalty payments identified in Paragraph 2 above.
4. Release by On Ice. Except with respect to On Ice's rights pursuant to
this Agreement, all of which are reserved, and except as otherwise
provided in this Paragraph, On Ice, its parent, subsidiary, and
affiliated corporations and entities and each of their directors,
officers, employees, and agents, and each of their heirs, successors
and assigns and each of them (hereinafter "On Ice Releasors") waive,
release, relinquish, and discharge Magic and its affiliated
corporations and entities and its and their directors, officers,
employees, and agents, and its and their heirs, successors, and
assigns, and each of them (hereinafter "Magic Releasees") from any and
all claims, liabilities, suits, damages, actions or manner of actions,
whether in contract, tort, or otherwise which the On Ice Releasors, or
any of them ever had, now has, or hereinafter may have against the
Magic Releasees, or any of them, whether the same be in administrative
proceedings, in arbitration in law, at equity, or mixed, arising from
or relating to any prior relationship between the On Ice Releasors and
the Magic Releasees or otherwise arising from or relating to the
Nutcracker On Ice shows, telecasts, ancillary exploitations.
Notwithstanding the foregoing, in the event that any claim(s) is
asserted against the On Ice Releasors or any of them by a person or an
entity which is not a party to this Agreement, the On Ice Releasors,
and each of them, reserve and retain any and all rights, claims, and
defenses which they, or any of them, now have, have had, or would
otherwise have against Magic Releasees, or any of them, arising out of
the transaction(s) or matter(s) which is the subject of each claim(s)
against On Ice Releasors, or any of them.
5. Release by Magic. Except with respect to Magic's rights pursuant to
this Agreement, all of which are reserved, and except as otherwise
provided in this Paragraph, Magic, its affiliated corporations and
entities and each of their directors, officers, employees, and agents,
each of their heirs, successors and assigns, and each of them (herein
"Magic Releasors") waive, release. relinquish, and discharge On Ice and
its parent, subsidiary, affiliated corporations and entities and its
and their directors, officers, employees, and agents, and its and their
directors, officers, employees and agents, and its and their heirs,
successors and assigns and each of them (hereinafter "On Ice
Releasees") from any and all claims, liabilities, suits, damages,
actions or manner of actions, whether in contract, tort, or otherwise
which the Magic Releasors, or any of them ever had, now has, or
hereinafter may have against On Ice, Releasees or any of them, whether
the same be in administrative proceedings, in arbitration, in law, at
equity, or mixed, arising from or
relating to any prior relationship between Magic Releasors and the On
Ice Releasees or otherwise arising from or relating to the Nutcracker
On Ice shows, telecasts and ancillary exploitations. Notwithstanding
the foregoing, in the event that any claim(s) is asserted against the
Magic Releasors or any of them by a person or an entity which is not a
party to this Agreement, the Magic Releasors, and each of them, reserve
and retain any and all rights, claims, and defenses, which they, or any
of them, now have, have had, or would otherwise have against the On
Ice Releasees, or any of them, arising out of the transaction(s) or
matter(s) which is the subject matter of each claim(s) against the
Magic Releasors, or any of them.
6. Notice. Notice is to be given under the provisions of this Agreement,
such notice must be in writing and sent by certified mail or registered
mail, return receipt requested, postage prepaid as follows until any
party notify the other in writing of a different address or person as
to whom notice should be sent:
To: On Ice, Inc.
000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx,XX 00000-0000
Attention: Xxxxx Xxxxxxxxx, President
To: Magicworks Entertainment, Incorporated
000 X. Xxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxxx, President, Chief Operating Officer
Notice shall be deemed to have been given when received or three days
following mailing, whichever first occurs.
7. Attornev's Fees. In the event that either party breaches this Agreement
in any material respect and the non-breaching party prevails in an
action to enforce this Agreement, the non-breaching party shall be
entitled to recover, in addition to any and all other remedies; the
reasonable attorney's fees, expenses and costs which it incurs as a
result thereof, and the breaching party, promises and agrees to pay to
the non-breaching party all such amounts.
8. Waiver. Neither party shall be deemed to have waived any right
hereunder unless such waiver is in writing duly executed by such party.
9. Construction. This Agreement shall not be construed more strictly
against any party hereto merely by virtue of the fact that the
Agreement may have been drafted or prepared by such party, it being
recognized that all of the parties hereto have contributed
substantially and materially to its preparation and that this Agreement
has been the subject of and is the product of negotiations between the
parties.
10. Consultation with Counsel. Each party respectively represents and
warrants to the other that it has had an opportunity to consult with
counsel of its choosing with respect to this Agreement and all of the
terms and provisions hereof and that it enters into this Agreement
voluntarily and with knowledge as to the terms, provisions, and effect
of the matters set forth herein.
11. Cumulative Remedies. Any right, power, or remedy provided under this
Agreement to any party thereto shall be cumulative and in addition to
any other right, power or remedy provided under this Agreement now or
hereafter existing at law or in equity, and may be exercised singularly
or concurrently.
12. Binding Agreement. This Agreement shall be binding on and shall inure
to the benefits of the parties hereto, and their respective officers,
employees, agents, heirs, personal and legal representatives,
successors, and assigns.
13. Applicable Law. The construction, interpretation, and enforcement of
this Agreement shall at all times and in all respects be governed by
the laws of the State of California relating to the choice of law or
conflict of law provisions or principles.
14. Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject
matter hereof, and no representations, promises, or agreement, oral or
written, relating hereto not herein contained shall be of any force or
effect. No change or modification of this Agreement shall be valid or
binding upon the parties unless and until the same is in writing and
signed by the party against whom enforcement of such change or
modification is sought.
15. Authority. The parties hereto respectively represent and warrant that
the person signing this Agreement on their behalf has the requisite
authority to do so and to make the promises and to undertake the
obligations set forth herein on behalf of the persons and entities
indicated and to legally bind those persons to the terms and provisions
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
ON ICE, INC.
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------------------
Xxxxx Xxxxxxxxx, President - Chief Executive Officer
MAGICWORKS ENTERTAINMENT, INCORPORATED
By: /s/ Xxx Xxxxxxxx
----------------------------------------------------
Xxx Xxxxxxxx, President - Chief Operating Officer
