SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual General Release is made as of the 17th
day of June 1997, by and among Cinergi Pictures Entertainment Inc., a
corporation orgranized and existing under the laws of Delaware, and Cinergi
Productions N.V. Inc., a corporation organized and operating under the laws of
Delaware, and all of their respective affiliates (collectively "Cinergi") , on
the one hand, and Summit Entertainment N.V., a corporation organized and
exisiting under the laws of the Netherland Antilles, and Summit Entertainment
L.P., a California Limited Partnership (collectively "Summit"), on the other,
relating to the motion picture "Broadway Brawler" (the "Picture").
RECITALS
A. Cinergi and Summit previously made and entered into that certain Sales
Agency Agreement dated as of 1 December 1993 ("Agreement") relating to various
motion pictures Cinergi produces for worldwide exploitation which Summit
provided foreign sales agency services to Cinergi.
B. Cinergi began principal photography on the Picture on 1 February 1997.
The Picture was shutdown on 27 February 1997 as a result of factors beyond
Cinergi's control. Cinergi transferred its rights to the Picture to a third
party and has no further right, title or interest in or to the Picture.
C. Cinergi and Summit wish to settle any disputes or claims which may
have arisen as a result of the shutdown of the Picture and from their business
dealings and relationships arising between them with respect thereto as set
forth in Summit's letter to Cinergi dated 29 May 1997 (the "Letter").
D. Each of the Parties to this Settlement Agreement desires to settle and
resolve any and all claims, disputes, issues or matters that exist between them
arising from the Picture as of the date of this Settlement Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, and subject to the terms and conditions set forth
below, the Parties desire to, and hereby do, resolve their differences and agree
as follows:
1. RELEASE
1.1 RELEASED CLAIMS.
1.1.1 Upon receipt of the sums set forth in paragraph 2 hereof,
Summit hereby releases and forever discharges Cinergi, and all of Cinergi's
agents, predecessors, successors, attorneys, shareholders, officers, directors
and all other representatives of any or all of them, from
1.
any and all claims, demands, actions, causes of action, controversies, losses
and damages, suspected or unsuspected, whether known or not known, that exist
as of the date of execution of this Settlement Agreement, relating to the
subject matters of the Picture, including without limitation any claim which
Summit now has or claims to have or at any time heretofore had, or which at
any time hereafter may have or claim to have against Cinergi relating to or
concerning the subject matters referred to in the Letter (the "Released
Claims").
1.1.2 Cinergi hereby releases and forever discharges Summit, and
all of Summit's agents, predecessors, successors, attorneys, shareholders,
officers, directors and all other representatives of any or all of them, from
any and all claims, demands, actions, causes of action, controversies, losses
and damages, suspected or unsuspected, whether known or not known, that exist as
of the date of execution of this Settlement Agreement, relating to the subject
matters of the Picture, including without limitation any claim which Cinergi now
has or claims to have or at any time heretofore had, or which at any time
hereafter may have or claim to have against Summit relating to or concerning the
subject matters referred to in the Letter.
1.2 With respect to the Released Claims, all rights under California Civil
Code Section 1542, are hereby expressly waived by the Parties, and each of them
notwithstanding any provision to the contrary. Section 1542 provides as
follows:
"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 affected his settlement with the
debtor."
The Parties, and each of them, and their representatives, heirs and assigns
expressly waive and release any right or benefit which they have or may have
under Section 1542 of the Civil Code of the State of California, to the fullest
extent that they may waive all such rights and benefits pertaining to the
matters relating to the Picture which are released herein. It is the intention
of the Parties, and each of them, through this Settlement Agreement, and with
the advice of counsel, to fully, finally and forever settle and release all such
matters, and all claims relative thereto, in furtherance of such intention.
2. SETTLEMENT TERMS
2.1 PAYMENT. Cinergi shall cause to be paid to Summit the sum of One
Hundred Thousand Dollars ($100,000) promptly upon Summit's execution of this
Settlement Agreement.
3. CONFIDENTIALITY
3.1 The Parties hereto, and their officers, directors, representatives,
agents, employees, and attorneys shall not disclose, directly or indirectly, any
of the financial terms of the Settlement
2.
agreement, which are confidential. Notwithstanding the foregoing, the Parties
shall be able to disclose the terms of the Settlement Agreement as necessary
with respect to their legal and financial affairs. In such instance, the
Parties shall inform any recipients of such information that the financial
terms of the settlement must remain confidential.
4. MISCELLANEOUS PROVISIONS
4.1 In order to carry out the terms and conditions of this Settlement
Agreement, the Parties agree to promptly execute upon reasonable request any and
all documents and instruments necessary to effectuate the terms of this
Settlement Agreement.
4.2 The Parties agree and acknowledge that this Settlement Agreement
represents a settlement of disputed claims and that, by entering into this
Settlement Agreement no Party admits or acknowledges that they committed any
wrongdoing on their part.
4.3 This Settlement Agreement is the entire agreement between the Parties
with respect to the Released Claims and supersedes all prior and contemporaneous
oral and written agreements and discussions pertaining to the Released Claims.
This Settlement agreement may be amended only by an agreement in writing.
4.4 This Settlement Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective heirs, representatives,
successors, trustees in bankruptcy, and assigns and each and every entity which
now or ever was a division, parent, successor, predecessor or subsidiary for
each Party and its respective legal successors and assigns.
4.5 The Parties represent and warrant that each of them have not assigned
all or any portion of any claim pertaining to the Released Claims to any person
or entity. In the event any claims are made by any third persons or entities
based upon any purported assignment or any such liens or claims are asserted in
connection with the Released Claims or proceeds of the Settlement Agreement,
then the Party who has breached his representation or warranty contained herein
agrees to indemnify and hold harmless the other Party from any said claims being
made.
4.6 In the event that any covenant, condition or other provision herein
contained is held to be invalid, void or illegal by any Court of competent
jurisdiction, the same shall be deemed severable from the remainder of this
Settlement Agreement and shall in no way affect, impair or invalidate any other
covenant, condition or other provision shall be deemed invalid due to its scope
or breadth, such covenant, condition or other provision shall be deemed valid to
the extent of the scope or breadth permitted by law.
4.7 No breach of any provision hereof can be waived unless in writing.
Waiver of any one breach of any provision hereof shall not be deemed to be a
waiver of any other breach of the
3.
same or any other provision hereof. This Settlement Agreement may be amended
only by a written agreement executed by each of the Parties hereto.
4.8 The Parties hereto, and each of them, represent and declare that in
executing this Settlement Agreement, they rely solely upon their own judgement,
belief and knowledge, and on the advice and recommendations of their own
independently selected counsel, concerning the nature, extent and duration of
their rights and claims and that they have not been influenced to any extent
whatsoever in executing the same by any representations or statements covering
any matters made by any of the Parties hereto or by any person representing them
or any of them. The Parties acknowledge that no Party hereto nor any of their
representatives have made any promise, representation or warranty whatsoever,
written or oral, as any inducement to enter into this Settlement Agreement,
except as expressly set forth in this Settlement Agreement.
4.9 The Parties hereto or responsible officer or representative thereof,
and each of them, further represent and warrant that they have carefully read
this Settlement Agreement and know and understand the contents thereof, and that
they signed this Settlement Agreement freely and voluntarily. Each of the
representatives executing this Settlement Agreement on behalf of their
respective corporations or partnerships is empowered to do so and thereby binds
his respective corporation or partnership.
4.10 No party (nor any officer, agent, employee, representative, or
attorney of or for any party) has made any statement or representation to any
other party regarding any fact relied upon in entering into this Settlement
Agreement, and each party does not rely upon any statement, representation or
promise of any other party (or any officer, agent, employee, representative, or
attorney of or for any other party) in executing this Settlement Agreement, or
in making the settlement provided for herein, except as expressly stated int his
Settlement Agreement.
4.11 Each party to this Settlement Agreement has made such investigation of
the facts pertaining to this settlement and this Settlement Agreement and of all
matters pertaining thereto as he or it deems necessary.
4.12 In entering into this Settlement Agreement and the settlement provided
for herein, each party assumes the risk of any misrepresentation, concealment or
mistake. If any party should subsequently discover that any fact relied upon by
him or it in entering into this Settlement Agreement is untrue, or that any fact
was concealed from him or it, or that his/its understanding of the facts or of
the law was incorrect, such party shall not be entitled to any relief in such
connection or otherwise, including, without limiting the generality of the
foregoing, any alleged right or claim to set aside or rescind this Settlement
Agreement. This Settlement Agreement is intended to be and is final and binding
between the Parties hereto with respect to the Released Claims, regardless of
any claims of misrepresentation, promise made without the intention of
performing, concealment of fact, mistake of fact or law, or of any other
circumstance whatsoever.
4.
4.13 Each of the Parties is aware that he/it my hereafter discover claims
or facts in addition to or different from those he or it now knows or believes
to be true with respect to the Released Claims. Nevertheless, it is the
intention of the parties to fully, finally and forever settle and release the
Released Claims, which do now exist, may exist, or heretofore have existed
between them.
4.14 Each term of this Settlement Agreement is contractual and is not
merely a recital.
4.15 Whenever the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
4.16 The subject headings of the sections, paragraphs and subparagraphs of
this Settlement Agreement are included for convenience only, and shall not
affect the construction or interpretation of any of its provisions.
4.17 This Settlement Agreement has been jointly prepared and negotiated by
counsel for each of the Parties, and the Parties agree that this Settlement
Agreement shall be construed as a whole according to its fair meaning and is not
to be strictly construed for or against either of the Parties hereto.
4.18 The Parties acknowledge and agree that they each have been
represented by separate and independent legal counsel and have relied on
counsel of their own choosing at all stages of the negotiation, preparation
and drafting of this Settlement Agreement.
4.19 Each Party further acknowledges that this Settlement Agreement, has
been explained to each by their respective counsel, and that each Party fully
understands the contents and legal effect of said documents. The Parties
further acknowledge and agree that they enter into this Settlement Agreement
free from duress, fraud, undue influence, coercion, or oppression of any kind.
5. NOTICES
5.1 Any written notice, demand, request or communication that any Party
desires or is required to give to or serve on the other Party or any other
person pursuant to the Settlement Agreement shall be in writing and either:
5.1.1 Sent by prepaid first-class mail; or
5.1.2 Sent by prepaid one-day early morning Express Mail, Federal
Express, or similar next day morning delivery service.
5.2 Notices, demands, requests, consents, approvals, or other such written
communications are conclusively deemed received:
5.
5.2.1 Five (5) business days after they are mailed if service or
delivery is made pursuant to subpart 5.1.1 above; or
5.2.2 Two (2) business days after transmitted if they are served
or delivered pursuant to subpart 5.1.2 above.
5.3 The date on which the last addressee is deemed to have received the
notice, demand, request, consent, approval or communications shall be deemed the
date of receipt by the Party to whom it is given to or served.
5.4 Any notice, demand, request, consent, approval, or communication that
either Party desires or is required to give to the other Party is ordered to be
addressed and served on or delivered to the other Party at the addresses set
forth below. Any Party may change his or her address by notifying the other
Parties of their change of address(es).
The address for Cinergi is as follows:
Cinergi Pictures Entertainment Inc. and
Cinergi Productions N.V. Inc.
0000 Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000)000-0000
With a copy to:
Ziffren, Brittenham, Branca & Xxxxxxx
0000 Xxxxxx xx xxx Xxxxx, 00xx Xx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000)000-0000
The address for Summit is as follows:
Summit Entertainment L.P.
0000 Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000)000-0000
With a copy to:
6.
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
6. CHOICE OF LAW/ATTORNEY'S FEES
6.1 This Settlement Agreement and any controversy which might arise
therefrom shall in all respects be interpreted, enforced and governed by the
laws of the State of California. Subsequent changes in California law and
federal law through legislation or judicial interpretation that creates or finds
additional or different rights and obligations of the Parties shall not affect
this Settlement Agreement.
6.2 This Settlement Agreement and its validity, construction and effect
shall be governed by the laws of the State of California applicable to contracts
wholly to be performed therein. In the event one of the Parties hereto
institutes any proceeding in connection with or concerning the interpretation or
enforcement of this Settlement Agreement, the prevailing Party shall be entitled
to recover all reasonable outside attorney's fees, costs and expenses actually
incurred in connection with such proceedings.
7. SEVERABILITY
7.1 Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict
between any of the provisions contained herein and any present or future
statue, law, ordinance or regulation contrary to which the parties have no
legal right to contract, the latter shall prevail, but the provision of this
Settlement Agreement which is affected shall be curtailed and limited to the
extent necessary to bring it within the requirements of the law. All of the
provisions of this Settlement Agreement are intended to be distinct and
severable.
8. EXECUTION
8.1 This Settlement Agreement may be executed in counterparts and when
each Party has signed and delivered at least one such counterpart to each of the
other Parties, each counterpart shall be deemed an original, and all
counterparts taken together shall constitute one and the same
7.
agreement, which shall be binding and effective as to all Parties. This
Settlement Agreement may be executed via facsimile signatures, which shall have
the same force and effect as if they were original signatures.
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement
Agreement on the date(s) written beside its or his name, respectively and each
warrants they have the authority to sign in their representative capacity.
CINERGI PICTURES
ENTERTAINMENT INC.
Dated: 7/24/97 By: /s/ XXXXX X. XXXXXXXXX
--------------- ---------------------------------
Xxxxx X. Xxxxxxxxx
Its: Vice President
-------------------------------
CINERGI PRODUCTIONS N.V. INC.
Dated: 7/24/97 By: /s/ XXXXX X. XXXXXXXXX
--------------- ---------------------------------
Xxxxx X. Xxxxxxxxx
Its: Vice President
-------------------------------
SUMMIT ENTERTAINMENT N.V.
Dated: 7/29/97 By: /s/ XXXXXXX GIRIGORI-XXXXX
--------------- ---------------------------------
Xxxxxxx Girigori-Xxxxx
Its: Managing Director
--------------------------------
SUMMIT ENTERTAINMENT L.P.
Dated: 7/23/97 By: /s/ X. XXXXXXX
--------------- ---------------------------------
X. Xxxxxxx
Its: Executive Vice President
--------------------------------
8.
SETTLEMENT, MUTUAL RELEASE, AND TERMINATION AGREEMENT
This Settlement Agreement and Mutual General Release is made as of the 10th
day of September, 1997, by and among Cinergi Pictures Entertainment Inc., a
corporation orgranized and existing under the laws of Delaware, and Cinergi
Productions N.V. Inc., a corporation organized and operating under the laws of
Delaware, and all of their respective affiliates (collectively "Cinergi") , on
the one hand, and Summit Entertainment N.V., a corporation organized and
exisiting under the laws of the Netherland Antilles, and Summit Entertainment
L.P., a California Limited Partnership (collectively "Summit"), on the other,
relating to the sales agency between Summit and Cinergi (the "Services").
RECITALS
A. Cinergi and Summit previously made and entered into that certain Sales
Agency Agreement dated as of 1 December 1993 and amended from time-to-time
("Agreement") relating to various motion pictures Cinergi produces for worldwide
exploitation which Summit provided foreign sales agency services to Cinergi.
B. Cinergi has decided to wind up its production and worldwide
exploitation of theatrical motion pictures, and has entered enter an agreement
in principle with the Xxxx Disney Company ("Disney") to acquire virtually all of
Cinergi's library of motion pictures.
C. Cinergi and Summit wish to terminate the Agreement and to settle any
disputes or claims which may have arisen or exist between them arising from the
Agreement and the Services as of the date of this Settlement Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, and subject to the terms and conditions set forth
below, the Parties desire to, and hereby do, resolve their differences and agree
as follows:
1. RELEASE
1.1 RELEASED CLAIMS.
1.1.1 Upon its receipt of the sums set forth in paragraph 2
hereof, Summit hereby releases and forever discharges Cinergi, and all of
Cinergi's agents, predecessors, successors, attorneys, shareholders, officers,
directors and all other representatives of any or all of them, from any and all
claims, demands, actions, causes of action, controversies, losses and damages,
suspected or unsuspected, whether known or not known, that exist as of the date
of execution of this Settlement Agreement, relating to the subject matters of
the Agreement, including without limitation any claim which Summit now has or
claims to have or at any time heretofore had, or which at any time hereafter may
have or claim to have against Cinergi relating to or Cinergi's performance
arising out of or related to the Agreement ("Summit's Claims").
1.
1.1.2 Cinergi hereby releases and forever discharges Summit, and
all of Summit's agents, predecessors, successors, attorneys, shareholders,
officers, directors and all other representatives of any or all of them, from
any and all claims, demands, actions, causes of action, controversies, losses
and damages, suspected or unsuspected, whether known or not known, that exist as
of the date of execution of this Settlement Agreement, relating to the subject
matters of the Agreement, including without limitation any claim which Cinergi
now has or claims to have or at any time heretofore had, or which at any time
hereafter may have or claim to have against Summit relating to or concerning
Summit's performance arising out of or related to the Agreement, including the
Services ("Cinergi's Claims"). (Summit's Claims and Cinergi's Claims are
subsequent referred to as the "Released Claims".)
1.2 With respect to the Released Claims, all rights under California Civil
Code Section 1542, are hereby expressly waived by the Parties, and each of them
notwithstanding any provision to the contrary. Section 1542 provides as
follows:
"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 affected his settlement with the
debtor."
The Parties, and each of them, and their representatives, heirs and assigns
expressly waive and release any right or benefit which they have or may have
under Section 1542 of the Civil Code of the State of California, to the fullest
extent that they may waive all such rights and benefits pertaining to the
Released Claims. It is the intention of the Parties, and each of them, through
this Settlement Agreement, and with the advice of counsel, to fully, finally and
forever settle and release all such matters, and all claims relative thereto, in
furtherance of such intention.
2. SETTLEMENT TERMS
2.1 PAYMENT IN LIEU OF FEES. Within five (5) business days of Summit's
the execution of this Settlement Agreement, Cinergi shall cause to be paid to
Summit the sum of nine hundred twenty-six two hundred seventy-nine United States
dollars (US$926,279), upon Summit's receipt of which the Agreement is deemed
terminated.
2.2 PAYMENT OF CONTINUING EXPENSES. Within fifteen (15) days of its
receipt of Summit's customary claim for reimbursement of distribution expenses,
Cinergi shall cause to be paid to Summit all distribution expenses claimed
thereon which Cinergi is required to reimburse Summit pursuant to the terms of
the Agreement. Cinergi is not obligated to pay any such distribution expenses
incurred after the date that Disney assumes the liability for the same, and
Summit shall thereafter claim reimbursement from, and Cinergi shall ensure that
reimbursement is paid by, Disney.
2.
3. CONFIDENTIALITY
3.1 The Parties hereto, and their officers, directors, representatives,
agents, employees, and attorneys shall not disclose, directly or indirectly, any
of the financial terms of the Settlement agreement, which are confidential.
Notwithstanding the foregoing, the Parties shall be able to disclose the terms
of the Settlement Agreement as necessary with respect to their legal and
financial affairs. In such instance, the Parties shall inform any recipients of
such information that the financial terms of the settlement must remain
confidential.
4. MISCELLANEOUS PROVISIONS
4.1 In order to carry out the terms and conditions of this Settlement
Agreement, the Parties agree to promptly execute upon reasonable request any and
all documents and instruments necessary to effectuate the terms of this
Settlement Agreement.
4.2 The Parties agree and acknowledge that this Settlement Agreement
represents a settlement of disputed claims and that, by entering into this
Settlement Agreement no Party admits or acknowledges that they committed any
wrongdoing on their part.
4.3 This Settlement Agreement is the entire agreement between the Parties
with respect to the Released Claims and supersedes all prior and contemporaneous
oral and written agreements and discussions pertaining to the Released Claims.
This Settlement agreement may be amended only by an agreement in writing.
4.4 This Settlement Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective heirs, representatives,
successors, trustees in bankruptcy, and assigns and each and every entity which
now or ever was a division, parent, successor, predecessor or subsidiary for
each Party and its respective legal successors and assigns.
4.5 The Parties represent and warrant that each of them have not assigned
all or any portion of any claim pertaining to the Released Claims to any person
or entity. In the event any claims are made by any third persons or entities
based upon any purported assignment or any such liens or claims are asserted in
connection with the Released Claims or proceeds of the Settlement Agreement,
then the Party who has breached his representation or warranty contained herein
agrees to indemnify and hold harmless the other Party from any said claims being
made.
4.6 In the event that any covenant, condition or other provision herein
contained is held to be invalid, void or illegal by any Court of competent
jurisdiction, the same shall be deemed severable from the remainder of this
Settlement Agreement and shall in no way affect, impair or invalidate any other
covenant, condition or other provision shall be deemed invalid due to its scope
or breadth, such covenant, condition or other provision shall be deemed valid to
the extent of the scope or breadth permitted by law.
3.
4.7 No breach of any provision hereof can be waived unless in writing.
Waiver of any one breach of any provision hereof shall not be deemed to be a
waiver of any other breach of the same or any other provision hereof. This
Settlement Agreement may be amended only by a written agreement executed by each
of the Parties hereto.
4.8 The Parties hereto, and each of them, represent and declare that in
executing this Settlement Agreement, they rely solely upon their own judgement,
belief and knowledge, and on the advice and recommendations of their own
independently selected counsel, concerning the nature, extent and duration of
their rights and claims and that they have not been influenced to any extent
whatsoever in executing the same by any representations or statements covering
any matters made by any of the Parties hereto or by any person representing them
or any of them. The Parties acknowledge that no Party hereto nor any of their
representatives have made any promise, representation or warranty whatsoever,
written or oral, as any inducement to enter into this Settlement Agreement,
except as expressly set forth in this Settlement Agreement.
4.9 The Parties hereto or responsible officer or representative thereof,
and each of them, further represent and warrant that they have carefully read
this Settlement Agreement and know and understand the contents thereof, and that
they signed this Settlement Agreement freely and voluntarily. Each of the
representatives executing this Settlement Agreement on behalf of their
respective corporations or partnerships is empowered to do so and thereby binds
his respective corporation or partnership.
4.10 No party (nor any officer, agent, employee, representative, or
attorney of or for any party) has made any statement or representation to any
other party regarding any fact relied upon in entering into this Settlement
Agreement, and each party does not rely upon any statement, representation or
promise of any other party (or any officer, agent, employee, representative, or
attorney of or for any other party) in executing this Settlement Agreement, or
in making the settlement provided for herein, except as expressly stated int his
Settlement Agreement.
4.11 Each party to this Settlement Agreement has made such investigation of
the facts pertaining to this settlement and this Settlement Agreement and of all
matters pertaining thereto as he or it deems necessary.
4.12 In entering into this Settlement Agreement and the settlement provided
for herein, each party assumes the risk of any misrepresentation, concealment or
mistake. If any party should subsequently discover that any fact relied upon by
him or it in entering into this Settlement Agreement is untrue, or that any fact
was concealed from him or it, or that his/its understanding of the facts or of
the law was incorrect, such party shall not be entitled to any relief in such
connection or otherwise, including, without limiting the generality of the
foregoing, any alleged right or claim to set aside or rescind this Settlement
Agreement. This Settlement Agreement is intended to be and is final and binding
between the Parties hereto with respect to the Released Claims, regardless of
any claims of misrepresentation, promise made without the intention of
performing, concealment of fact, mistake of fact or law, or of any other
circumstance whatsoever.
4.
4.13 Each of the Parties is aware that he/it my hereafter discover claims
or facts in addition to or different from those he or it now knows or believes
to be true with respect to the Released Claims. Nevertheless, it is the
intention of the parties to fully, finally and forever settle and release the
Released Claims, which do now exist, may exist, or heretofore have existed
between them.
4.14 Each term of this Settlement Agreement is contractual and is not
merely a recital.
4.15 Whenever the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
4.16 The subject headings of the sections, paragraphs and subparagraphs of
this Settlement Agreement are included for convenience only, and shall not
affect the construction or interpretation of any of its provisions.
4.17 This Settlement Agreement has been jointly prepared and negotiated by
counsel for each of the Parties, and the Parties agree that this Settlement
Agreement shall be construed as a whole according to its fair meaning and is not
to be strictly construed for or against either of the Parties hereto.
4.18 The Parties acknowledge and agree that they each have been represented
by separate and independent legal counsel and have relied on counsel of their
own choosing at all stages of the negotiation, preparation and drafting of this
Settlement Agreement.
4.19 Each Party further acknowledges that this Settlement Agreement, has
been explained to each by their respective counsel, and that each Party fully
understands the contents and legal effect of said documents. The Parties
further acknowledge and agree that they enter into this Settlement Agreement
free from duress, fraud, undue influence, coercion, or oppression of any kind.
5. NOTICES
5.1 Any written notice, demand, request or communication that any Party
desires or is required to give to or serve on the other Party or any other
person pursuant to the Settlement Agreement shall be in writing and either:
5.1.1 Sent by prepaid first-class mail; or
5.1.2 Sent by prepaid one-day early morning Express Mail, Federal
Express, or similar next day morning delivery service.
5.2 Notices, demands, requests, consents, approvals, or other such written
communications are conclusively deemed received:
5.
5.2.1 Five (5) business days after they are mailed if service or
delivery is made pursuant to subpart 5.1.1 above; or
5.2.2 Two (2) business days after transmitted if they are served
or delivered pursuant to subpart 5.1.2 above.
5.3 The date on which the last addressee is deemed to have received the
notice, demand, request, consent, approval or communications shall be deemed the
date of receipt by the Party to whom it is given to or served.
5.4 Any notice, demand, request, consent, approval, or communication that
either Party desires or is required to give to the other Party is ordered to be
addressed and served on or delivered to the other Party at the addresses set
forth below. Any Party may change his or her address by notifying the other
Parties of their change of address(es).
The address for Cinergi is as follows:
Cinergi Pictures Entertainment Inc. and
Cinergi Productions N.V. Inc.
0000 Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000)000-0000
With a copy to:
Ziffren, Brittenham, Branca & Xxxxxxx
0000 Xxxxxx xx xxx Xxxxx, 00xx Xx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000)000-0000
The address for Summit is as follows:
Summit Entertainment N.V.
Xxxxxxxxx 00-00
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx Antilles
Attn: Xxxxxxx Girigori-Xxxxx
With a copy to
6.
Summit Entertainment L.P.
0000 Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000)000-0000
With a copy to:
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
6. CHOICE OF LAW/ATTORNEY'S FEES
6.1 This Settlement Agreement and any controversy which might arise
therefrom shall in all respects be interpreted, enforced and governed by the
laws of the State of California. Subsequent changes in California law and
federal law through legislation or judicial interpretation that creates or finds
additional or different rights and obligations of the Parties shall not affect
this Settlement Agreement.
6.2 This Settlement Agreement and its validity, construction and effect
shall be governed by the laws of the State of California applicable to contracts
wholly to be performed therein. In the event one of the Parties hereto
institutes any proceeding in connection with or concerning the interpretation or
enforcement of this Settlement Agreement, the prevailing Party shall be entitled
to recover all reasonable outside attorney's fees, costs and expenses actually
incurred in connection with such proceedings.
7. SEVERABILITY
7.1 Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict
between any of the provisions contained herein and any present or future statue,
law, ordinance or regulation contrary to which the parties have no legal right
to contract, the latter shall prevail, but the provision of this Settlement
Agreement which is affected shall be curtailed and limited to the extent
necessary to bring it within the requirements of the law. All of the provisions
of this Settlement Agreement are intended to be distinct and severable.
8. EXECUTION
8.1 This Settlement Agreement may be executed in counterparts and when
each Party has signed and delivered at least one such counterpart to each of the
other Parties, each counterpart shall be deemed an original, and all
counterparts taken together shall constitute one and the same
7.
agreement, which shall be binding and effective as to all Parties. This
Settlement Agreement may be executed via facsimile signatures, which shall
have the same force and effect as if they were original signatures.
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement
Agreement on the date(s) written beside its or his name, respectively and each
warrants they have the authority to sign in their representative capacity.
CINERGI PICTURES
ENTERTAINMENT INC.
Dated: September 10, 1997 By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Its: Vice President
------------------------------------
CINERGI PRODUCTIONS N.V. INC.
Dated: September 10, 1997 By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Its: Vice President
------------------------------------
SUMMIT ENTERTAINMENT N.V.
Dated: September 10, 1997 By: /s/ Xxxxxxx Girigori-Xxxxx
------------------------------------
Its: Managing Director
------------------------------------
SUMMIT ENTERTAINMENT L.P.
Dated: September 10, 1997 By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Its: Vice President
------------------------------------
8.
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual General Release is made as of the 10th
day of September, 1997, by and among Cinergi Pictures Entertainment Inc., a
corporation organized and existing under the laws of Delaware, and Cinergi
Productions N.V. Inc., a corporation organized and operating under the laws of
Delaware, and all of their respective affiliates (collectively "Cinergi"), on
the one hand, and Summit Entertainment N.V., a corporation organized and
existing under the laws of the Netherland Antilles ("Summit"), on the other,
relating to that certain dispute between Film Office and Cinergi concerning the
motion picture "Shadow Conspiracy" (the "Picture").
RECITALS
A. Cinergi and Summit previously made and entered into that certain Sales
Agency Agreement dated as of 1 December 1993 and amended from time-to-time
("Agreement") relating to various motion pictures Cinergi produces for worldwide
exploitation which Summit provided foreign sales agency services to Cinergi.
B. Cinergi Productions N.V. Inc., Summit Entertainment L.P., and Chemical
Bank were named defendants in a civil action before the Superior Court of the
State of California for the County of Los Angeles (case number BC 156333), filed
on or about August 28, 1996, by Film Office, a French Societe (the "State
Action").
C. Cinergi Productions N.V. Inc. and Summit Entertainment L.P. were named
defendants in a special proceeding before the xxxxxxxxx X. Xxxxxxxx, President,
Tribunal de Commerce de Paris (the "French Action"), which resulted in an order
dated September 25, 1996, enjoining Cinergi Productions, N.V. Inc., Summit
Entertainment L.P., Inc. and ABN-AMRO Bank from negotiating a certain letter of
credit.
D. Cinergi Productions N.V. Inc. was the claimant in an arbitral
proceeding against Film Office filed on or about October 22, 1996 with the
American Film Marketing Association (the "Arbitration").
X. Xxxxx Manhattan Bank (formerly known as Chemical Bank) was the
petitioner and appellant in an appeal of a ruling in the State Action, which was
filed before the Court of Appeal of the State of California, Second Appellate
District, Division 7 (case number B105694) (the "Appeal").
F. Cinergi and Summit wish to settle any disputes or claims arising out
of or related to the State Action, the French Action, the Appeal, and the
Arbitration and the subject matter thereof (collecting the "Actions") as of the
date of this Settlement Agreement.
G. Cinergi and Summit Entertainment L.P. have entered into a settlement
agreement dated as of the 1st day of July, 1997, relating to the Actions (the
"L.P. Settlement").
1.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, and subject to the terms and conditions set forth
below, the Parties desire to, and hereby do, resolve their differences and agree
as follows:
1. RELEASE
1.1 RELEASED CLAIMS.
1.1.1 Summit hereby releases and forever discharges Cinergi,
and all of Cinergi's agents, predecessors, successors, attorneys, shareholders,
officers, directors and all other representatives of any or all of them, from
any and all claims, demands, actions, causes of action, controversies, losses
and damages, suspected or unsuspected, whether known or not known, that exist as
of the date of execution of this Settlement Agreement, relating to the subject
matters of the Actions.
1.1.2 In consideration for, and upon performance of, the L.P.
Settlement, Cinergi hereby releases and forever discharges Summit, and all of
Summit's agents, predecessors, successors, attorneys, shareholders, officers,
directors and all other representatives of any or all of them, from any and all
claims, demands, actions, causes of action, controversies, losses and damages,
suspected or unsuspected, whether known or not known, that exist as of the date
of execution of this Settlement Agreement, relating to the subject matters of
the Actions.
1.2 With respect to the Released Claims, all rights under California
Civil Code Section 1542, are hereby expressly waived by the Parties, and each of
them notwithstanding any provision to the contrary. Section 1542 provides as
follows:
"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 affected his settlement with
the debtor."
The Parties, and each of them, and their representatives, heirs and assigns
expressly waive and release any right or benefit which they have or may have
under Section 1542 of the Civil Code of the State of California, to the fullest
extent that they may waive all such rights and benefits pertaining to the
Actions. It is the intention of the Parties, and each of them, through this
Settlement Agreement, and with the advice of counsel, to fully, finally and
forever settle and release all such matters, and all claims relative thereto, in
furtherance of such intention.
2. CONFIDENTIALITY
2.1 The Parties hereto, and their officers, directors,
representatives, agents, employees, and attorneys shall not disclose, directly
or indirectly, any of the financial terms of the Settlement agreement, which are
confidential. Notwithstanding the foregoing, the Parties shall be able to
2.
disclose the terms of the Settlement Agreement as necessary with respect to
their legal and financial affairs. In such instance, the Parties shall inform
any recipients of such information that the financial terms of the settlement
must remain confidential.
3. MISCELLANEOUS PROVISIONS
3.1 In order to carry out the terms and conditions of this Settlement
Agreement, the Parties agree to promptly execute upon reasonable request any and
all documents and instruments necessary to effectuate the terms of this
Settlement Agreement.
3.2 The Parties agree and acknowledge that this Settlement Agreement
represents a settlement of disputed claims and that, by entering into this
Settlement Agreement no Party admits or acknowledges that they committed any
wrongdoing on their part.
3.3 This Settlement Agreement is the entire agreement between the
Parties with respect to the Released Claims and supersedes all prior and
contemporaneous oral and written agreements and discussions pertaining to the
Released Claims. This Settlement agreement may be amended only by an agreement
in writing.
3.4 This Settlement Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective heirs, representatives,
successors, trustees in bankruptcy, and assigns and each and every entity which
now or ever was a division, parent, successor, predecessor or subsidiary for
each Party and its respective legal successors and assigns.
3.5 The Parties represent and warrant that each of them have not
assigned all or any portion of any claim pertaining to the Released Claims to
any person or entity. In the event any claims are made by any third persons or
entities based upon any purported assignment or any such liens or claims are
asserted in connection with the Released Claims or proceeds of the Settlement
Agreement, then the Party who has breached his representation or warranty
contained herein agrees to indemnify and hold harmless the other Party from any
said claims being made.
3.6 In the event that any covenant, condition or other provision
herein contained is held to be invalid, void or illegal by any Court of
competent jurisdiction, the same shall be deemed severable from the remainder of
this Settlement Agreement and shall in no way affect, impair or invalidate any
other covenant, condition or other provision shall be deemed invalid due to its
scope or breadth, such covenant, condition or other provision shall be deemed
valid to the extent of the scope or breadth permitted by law.
3.7 No breach of any provision hereof can be waived unless in
writing. Waiver of any one breach of any provision hereof shall not be deemed
to be a waiver of any other breach of the same or any other provision hereof.
This Settlement Agreement may be amended only by a written agreement executed by
each of the Parties hereto.
3.
3.8 The Parties hereto, and each of them, represent and declare that
in executing this Settlement Agreement, they rely solely upon their own
judgement, belief and knowledge, and on the advice and recommendations of their
own independently selected counsel, concerning the nature, extent and duration
of their rights and claims and that they have not been influenced to any extent
whatsoever in executing the same by any representations or statements covering
any matters made by any of the Parties hereto or by any person representing them
or any of them. The Parties acknowledge that no Party hereto nor any of their
representatives have made any promise, representation or warranty whatsoever,
written or oral, as any inducement to enter into this Settlement Agreement,
except as expressly set forth in this Settlement Agreement.
3.9 The Parties hereto or responsible officer or representative
thereof, and each of them, further represent and warrant that they have
carefully read this Settlement Agreement and know and understand the contents
thereof, and that they signed this Settlement Agreement freely and voluntarily.
Each of the representatives executing this Settlement Agreement on behalf of
their respective corporations or partnerships is empowered to do so and thereby
binds his respective corporation or partnership.
3.10 No party (nor any officer, agent, employee, representative, or
attorney of or for any party) has made any statement or representation to any
other party regarding any fact relied upon in entering into this Settlement
Agreement, and each party does not rely upon any statement, representation or
promise of any other party (or any officer, agent, employee, representative, or
attorney of or for any other party) in executing this Settlement Agreement, or
in making the settlement provided for herein, except as expressly stated int his
Settlement Agreement.
3.11 Each party to this Settlement Agreement has made such
investigation of the facts pertaining to this settlement and this Settlement
Agreement and of all matters pertaining thereto as he or it deems necessary.
3.12 In entering into this Settlement Agreement and the settlement
provided for herein, each party assumes the risk of any misrepresentation,
concealment or mistake. If any party should subsequently discover that any fact
relied upon by him or it in entering into this Settlement Agreement is untrue,
or that any fact was concealed from him or it, or that his/its understanding of
the facts or of the law was incorrect, such party shall not be entitled to any
relief in such connection or otherwise, including, without limiting the
generality of the foregoing, any alleged right or claim to set aside or rescind
this Settlement Agreement. This Settlement Agreement is intended to be and is
final and binding between the Parties hereto with respect to the Released
Claims, regardless of any claims of misrepresentation, promise made without the
intention of performing, concealment of fact, mistake of fact or law, or of any
other circumstance whatsoever.
3.13 Each of the Parties is aware that he/it my hereafter discover
claims or facts in addition to or different from those he or it now knows or
believes to be true with respect to the Released Claims. Nevertheless, it is
the intention of the parties to fully, finally and forever settle and release
the Released Claims, which do now exist, may exist, or heretofore have existed
between them.
4.
3.14 Each term of this Settlement Agreement is contractual and is not
merely a recital.
3.15 Whenever the context so requires, the masculine gender includes
the feminine and/or neuter, and the singular number includes the plural.
3.16 The subject headings of the sections, paragraphs and
subparagraphs of this Settlement Agreement are included for convenience only,
and shall not affect the construction or interpretation of any of its
provisions.
3.17 This Settlement Agreement has been jointly prepared and
negotiated by counsel for each of the Parties, and the Parties agree that this
Settlement Agreement shall be construed as a whole according to its fair meaning
and is not to be strictly construed for or against either of the Parties hereto.
3.18 The Parties acknowledge and agree that they each have been
represented by separate and independent legal counsel and have relied on counsel
of their own choosing at all stages of the negotiation, preparation and drafting
of this Settlement Agreement.
3.19 Each Party further acknowledges that this Settlement Agreement,
has been explained to each by their respective counsel, and that each Party
fully understands the contents and legal effect of said documents. The Parties
further acknowledge and agree that they enter into this Settlement Agreement
free from duress, fraud, undue influence, coercion, or oppression of any kind.
4. NOTICES
4.1 Any written notice, demand, request or communication that any
Party desires or is required to give to or serve on the other Party or any other
person pursuant to the Settlement Agreement shall be in writing and either:
4.1.1 Sent by prepaid first-class mail; or
4.1.2 Sent by prepaid one-day early morning Express Mail,
Federal Express, or similar next day morning delivery service.
4.2 Notices, demands, requests, consents, approvals, or other such
written communications are conclusively deemed received:
4.2.1 Five (5) business days after they are mailed if service
or delivery is made pursuant to subpart 4.1.1 above; or
4.2.2 Two (2) business days after transmitted if they are
served or delivered pursuant to subpart 4.1.2 above.
5.
4.3 The date on which the last addressee is deemed to have received
the notice, demand, request, consent, approval or communications shall be deemed
the date of receipt by the Party to whom it is given to or served.
4.4 Any notice, demand, request, consent, approval, or communication
that either Party desires or is required to give to the other Party is ordered
to be addressed and served on or delivered to the other Party at the addresses
set forth below. Any Party may change his or her address by notifying the other
Parties of their change of address(es).
The address for Cinergi is as follows:
Cinergi Pictures Entertainment Inc. and
Cinergi Productions N.V. Inc.
0000 Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
With a copy to:
Ziffren, Brittenham, Branca & Xxxxxxx
0000 Xxxxxx xx xxx Xxxxx, 00xx Xx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
The address for Summit is as follows:
Summit Entertainment N.V.
Xxxxxxxxx 00-00
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx Antilles
Attn: Xxxxxxx Girigori-Xxxxx
With copies to
Summit Entertainment L.P.
0000 Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000)000-0000
6.
and to:
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
5. CHOICE OF LAW/ATTORNEY'S FEES
5.1 This Settlement Agreement and any controversy which might arise
therefrom shall in all respects be interpreted, enforced and governed by the
laws of the State of California. Subsequent changes in California law and
federal law through legislation or judicial interpretation that creates or finds
additional or different rights and obligations of the Parties shall not affect
this Settlement Agreement.
5.2 This Settlement Agreement and its validity, construction and
effect shall be governed by the laws of the State of California applicable to
contracts wholly to be performed therein. In the event one of the Parties
hereto institutes any proceeding in connection with or concerning the
interpretation or enforcement of this Settlement Agreement, the prevailing Party
shall be entitled to recover all reasonable outside attorney's fees, costs and
expenses actually incurred in connection with such proceedings.
6. SEVERABILITY
6.1 Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict
between any of the provisions contained herein and any present or future statue,
law, ordinance or regulation contrary to which the parties have no legal right
to contract, the latter shall prevail, but the provision of this Settlement
Agreement which is affected shall be curtailed and limited to the extent
necessary to bring it within the requirements of the law. All of the provisions
of this Settlement Agreement are intended to be distinct and severable.
7. EXECUTION
7.1 This Settlement Agreement may be executed in counterparts and
when each Party has signed and delivered at least one such counterpart to each
of the other Parties, each counterpart shall be deemed an original, and all
counterparts taken together shall constitute one and the same
7.
agreement, which shall be binding and effective as to all Parties. This
Settlement Agreement may be executed via facsimile signatures, which shall have
the same force and effect as if they were original signatures.
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement
Agreement on the date(s) written beside its or his name, respectively and each
warrants they have the authority to sign in their representative capacity.
CINERGI PICTURES
ENTERTAINMENT INC.
Dated: September 10, 1997 By:
/s/ Xxxxx X. Xxxxxxxxx
--------------------------
Its: Vice President
--------------------------
CINERGI PRODUCTIONS N.V. INC.
Dated: September 10, 1997 By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Its: Vice President
--------------------------
SUMMIT ENTERTAINMENT N.V.
Dated: September 10, 1997 By: /s/ Xxxxxxx Girigori-Xxxxx
--------------------------
Its: Managing Director
--------------------------
8.
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual General Release is made as of the 10th
day of September 1997, by and among Cinergi Pictures Entertainment Inc., a
corporation organized and existing under the laws of Delaware, and Cinergi
Productions N.V. Inc., a corporation organized and operating under the laws of
Delaware, and all of their respective affiliates (collectively "Cinergi"), on
the one hand, and Summit Entertainment L.P., a California Limited Partnership
("Summit"), on the other, relating to that certain dispute between Film Office
and Cinergi concerning the motion picture "Shadow Conspiracy" (the "Picture").
RECITALS
A. Cinergi and Summit previously made and entered into that certain Sales
Agency Agreement dated as of 1 December 1993 and amended from time-to-time
("Agreement") relating to various motion pictures Cinergi produces for worldwide
exploitation which Summit provided foreign sales agency services to Cinergi.
B. Cinergi Productions N.V. Inc., Summit Entertainment L.P., and Chemical
Bank were named defendants in a civil action before the Superior Court of the
State of California for the County of Los Angeles (case number BC 156333), filed
on or about August 28, 1996, by Film Office, a French Societe (the "State
Action").
C. Cinergi Productions N.V. Inc. and Summit Entertainment L.P. were named
defendants in a special proceeding before the xxxxxxxxx X. Xxxxxxxx, President,
Tribunal de Commerce de Paris (the "French Action"), which resulted in an order
dated September 25, 1996, enjoining Cinergi Productions, N.V. Inc., Summit
Entertainment L.P., Inc. and ABN-AMRO Bank from negotiating a certain letter of
credit.
D. Cinergi Productions N.V. Inc. was the claimant in an arbitral
proceeding against Film Office filed on or about October 22, 1996 with the
American Film Marketing Association (the "Arbitration").
X. Xxxxx Manhattan Bank (formerly known as Chemical Bank) was the
petitioner and appellant in an appeal of a ruling in the State Action, which was
filed before the Court of Appeal of the State of California, Second Appellate
District, Division 7 (case number B105694) (the "Appeal").
F. Cinergi and Summit wish to settle any disputes or claims arising out
of or related to the State Action, the French Action, the Appeal, and the
Arbitration and the subject matter thereof (collecting the "Actions") as of the
date of this Settlement Agreement.
1.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, and subject to the terms and conditions set forth
below, the Parties desire to, and hereby do, resolve their differences and agree
as follows:
1. RELEASE
1.1 RELEASED CLAIMS.
1.1.1 Summit hereby releases and forever discharges Cinergi, and
all of Cinergi's agents, predecessors, successors, attorneys, shareholders,
officers, directors and all other representatives of any or all of them, from
any and all claims, demands, actions, causes of action, controversies, losses
and damages, suspected or unsuspected, whether known or not known, that exist as
of the date of execution of this Settlement Agreement, relating to the subject
matters of the Actions.
1.1.2 Upon its receipt of the sum set forth in paragraph 2 hereof,
Cinergi hereby releases and forever discharges Summit, and all of Summit's
agents, predecessors, successors, attorneys, shareholders, officers, directors
and all other representatives of any or all of them, from any and all claims,
demands, actions, causes of action, controversies, losses and damages, suspected
or unsuspected, whether known or not known, that exist as of the date of
execution of this Settlement Agreement, relating to the subject matters of the
Actions.
1.2 With respect to the Released Claims, all rights under California
Civil Code Section 1542, are hereby expressly waived by the Parties, and each of
them notwithstanding any provision to the contrary. Section 1542 provides as
follows:
"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 affected his settlement with
the debtor."
The Parties, and each of them, and their representatives, heirs and assigns
expressly waive and release any right or benefit which they have or may have
under Section 1542 of the Civil Code of the State of California, to the fullest
extent that they may waive all such rights and benefits pertaining to the
Actions. It is the intention of the Parties, and each of them, through this
Settlement Agreement, and with the advice of counsel, to fully, finally and
forever settle and release all such matters, and all claims relative thereto, in
furtherance of such intention.
2. SETTLEMENT TERMS
2.1 PAYMENT. Within five (5) business days of the execution of this
Settlement Agreement, Summit shall cause to be paid to Cinergi the sum of four
hundred and twenty five thousand United States dollars (US$425,000).
2.
3. CONFIDENTIALITY
3.1 The Parties hereto, and their officers, directors, representatives,
agents, employees, and attorneys shall not disclose, directly or indirectly, any
of the financial terms of the Settlement agreement, which are confidential.
Notwithstanding the foregoing, the Parties shall be able to disclose the terms
of the Settlement Agreement as necessary with respect to their legal and
financial affairs. In such instance, the Parties shall inform any recipients of
such information that the financial terms of the settlement must remain
confidential.
4. MISCELLANEOUS PROVISIONS
4.1 In order to carry out the terms and conditions of this Settlement
Agreement, the Parties agree to promptly execute upon reasonable request any and
all documents and instruments necessary to effectuate the terms of this
Settlement Agreement.
4.2 The Parties agree and acknowledge that this Settlement Agreement
represents a settlement of disputed claims and that, by entering into this
Settlement Agreement no Party admits or acknowledges that they committed any
wrongdoing on their part.
4.3 This Settlement Agreement is the entire agreement between the
Parties with respect to the Released Claims and supersedes all prior and
contemporaneous oral and written agreements and discussions pertaining to the
Released Claims. This Settlement agreement may be amended only by an agreement
in writing.
4.4 This Settlement Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective heirs, representatives,
successors, trustees in bankruptcy, and assigns and each and every entity which
now or ever was a division, parent, successor, predecessor or subsidiary for
each Party and its respective legal successors and assigns.
4.5 The Parties represent and warrant that each of them have not
assigned all or any portion of any claim pertaining to the Released Claims to
any person or entity. In the event any claims are made by any third persons or
entities based upon any purported assignment or any such liens or claims are
asserted in connection with the Released Claims or proceeds of the Settlement
Agreement, then the Party who has breached his representation or warranty
contained herein agrees to indemnify and hold harmless the other Party from any
said claims being made.
4.6 In the event that any covenant, condition or other provision herein
contained is held to be invalid, void or illegal by any Court of competent
jurisdiction, the same shall be deemed severable from the remainder of this
Settlement Agreement and shall in no way affect, impair or invalidate any other
covenant, condition or other provision shall be deemed invalid due to its scope
or breadth, such covenant, condition or other provision shall be deemed valid to
the extent of the scope or breadth permitted by law.
3.
4.7 No breach of any provision hereof can be waived unless in writing.
Waiver of any one breach of any provision hereof shall not be deemed to be a
waiver of any other breach of the same or any other provision hereof. This
Settlement Agreement may be amended only by a written agreement executed by each
of the Parties hereto.
4.8 The Parties hereto, and each of them, represent and declare that in
executing this Settlement Agreement, they rely solely upon their own judgement,
belief and knowledge, and on the advice and recommendations of their own
independently selected counsel, concerning the nature, extent and duration of
their rights and claims and that they have not been influenced to any extent
whatsoever in executing the same by any representations or statements covering
any matters made by any of the Parties hereto or by any person representing them
or any of them. The Parties acknowledge that no Party hereto nor any of their
representatives have made any promise, representation or warranty whatsoever,
written or oral, as any inducement to enter into this Settlement Agreement,
except as expressly set forth in this Settlement Agreement.
4.9 The Parties hereto or responsible officer or representative
thereof, and each of them, further represent and warrant that they have
carefully read this Settlement Agreement and know and understand the contents
thereof, and that they signed this Settlement Agreement freely and voluntarily.
Each of the representatives executing this Settlement Agreement on behalf of
their respective corporations or partnerships is empowered to do so and thereby
binds his respective corporation or partnership.
4.10 No party (nor any officer, agent, employee, representative, or
attorney of or for any party) has made any statement or representation to any
other party regarding any fact relied upon in entering into this Settlement
Agreement, and each party does not rely upon any statement, representation or
promise of any other party (or any officer, agent, employee, representative, or
attorney of or for any other party) in executing this Settlement Agreement, or
in making the settlement provided for herein, except as expressly stated int his
Settlement Agreement.
4.11 Each party to this Settlement Agreement has made such investigation
of the facts pertaining to this settlement and this Settlement Agreement and of
all matters pertaining thereto as he or it deems necessary.
4.12 In entering into this Settlement Agreement and the settlement
provided for herein, each party assumes the risk of any misrepresentation,
concealment or mistake. If any party should subsequently discover that any fact
relied upon by him or it in entering into this Settlement Agreement is untrue,
or that any fact was concealed from him or it, or that his/its understanding of
the facts or of the law was incorrect, such party shall not be entitled to any
relief in such connection or otherwise, including, without limiting the
generality of the foregoing, any alleged right or claim to set aside or rescind
this Settlement Agreement. This Settlement Agreement is intended to be and is
final and binding between the Parties hereto with respect to the Released
Claims, regardless of any claims of misrepresentation, promise made without the
intention of performing, concealment of fact, mistake of fact or law, or of any
other circumstance whatsoever.
4.
4.13 Each of the Parties is aware that he/it my hereafter discover
claims or facts in addition to or different from those he or it now knows or
believes to be true with respect to the Released Claims. Nevertheless, it is
the intention of the parties to fully, finally and forever settle and release
the Released Claims, which do now exist, may exist, or heretofore have existed
between them.
4.14 Each term of this Settlement Agreement is contractual and is not
merely a recital.
4.15 Whenever the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
4.16 The subject headings of the sections, paragraphs and subparagraphs
of this Settlement Agreement are included for convenience only, and shall not
affect the construction or interpretation of any of its provisions.
4.17 This Settlement Agreement has been jointly prepared and negotiated
by counsel for each of the Parties, and the Parties agree that this Settlement
Agreement shall be construed as a whole according to its fair meaning and is not
to be strictly construed for or against either of the Parties hereto.
4.18 The Parties acknowledge and agree that they each have been
represented by separate and independent legal counsel and have relied on counsel
of their own choosing at all stages of the negotiation, preparation and drafting
of this Settlement Agreement.
4.19 Each Party further acknowledges that this Settlement Agreement, has
been explained to each by their respective counsel, and that each Party fully
understands the contents and legal effect of said documents. The Parties
further acknowledge and agree that they enter into this Settlement Agreement
free from duress, fraud, undue influence, coercion, or oppression of any kind.
5. NOTICES
5.1 Any written notice, demand, request or communication that any Party
desires or is required to give to or serve on the other Party or any other
person pursuant to the Settlement Agreement shall be in writing and either:
5.1.1 Sent by prepaid first-class mail; or
5.1.2 Sent by prepaid one-day early morning Express Mail, Federal
Express, or similar next day morning delivery service.
5.2 Notices, demands, requests, consents, approvals, or other such
written communications are conclusively deemed received:
5.
5.2.1 Five (5) business days after they are mailed if service or
delivery is made pursuant to subpart 5.1.1 above; or
5.2.2 Two (2) business days after transmitted if they are served
or delivered pursuant to subpart 5.1.2 above.
5.3 The date on which the last addressee is deemed to have received the
notice, demand, request, consent, approval or communications shall be deemed the
date of receipt by the Party to whom it is given to or served.
5.4 Any notice, demand, request, consent, approval, or communication
that either Party desires or is required to give to the other Party is ordered
to be addressed and served on or delivered to the other Party at the addresses
set forth below. Any Party may change his or her address by notifying the other
Parties of their change of address(es).
The address for Cinergi is as follows:
Cinergi Pictures Entertainment Inc. and
Cinergi Productions N.V. Inc.
0000 Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
With a copy to:
Ziffren, Brittenham, Branca & Xxxxxxx
0000 Xxxxxx xx xxx Xxxxx, 00xx Xx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
The address for Summit is as follows:
Summit Entertainment L.P.
0000 Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
With a copy to:
6.
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
6. CHOICE OF LAW/ATTORNEY'S FEES
6.1 This Settlement Agreement and any controversy which might arise
therefrom shall in all respects be interpreted, enforced and governed by the
laws of the State of California. Subsequent changes in California law and
federal law through legislation or judicial interpretation that creates or finds
additional or different rights and obligations of the Parties shall not affect
this Settlement Agreement.
6.2 This Settlement Agreement and its validity, construction and effect
shall be governed by the laws of the State of California applicable to contracts
wholly to be performed therein. In the event one of the Parties hereto
institutes any proceeding in connection with or concerning the interpretation or
enforcement of this Settlement Agreement, the prevailing Party shall be entitled
to recover all reasonable outside attorney's fees, costs and expenses actually
incurred in connection with such proceedings.
7. SEVERABILITY
7.1 Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict
between any of the provisions contained herein and any present or future statue,
law, ordinance or regulation contrary to which the parties have no legal right
to contract, the latter shall prevail, but the provision of this Settlement
Agreement which is affected shall be curtailed and limited to the extent
necessary to bring it within the requirements of the law. All of the provisions
of this Settlement Agreement are intended to be distinct and severable.
8. EXECUTION
8.1 This Settlement Agreement may be executed in counterparts and when
each Party has signed and delivered at least one such counterpart to each of the
other Parties, each counterpart shall be deemed an original, and all
counterparts taken together shall constitute one and the same agreement, which
shall be binding and effective as to all Parties. This Settlement Agreement may
be
7.
executed via facsimile signatures, which shall have the same force and effect as
if they were original signatures.
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement
Agreement on the date(s) written beside its or his name, respectively and each
warrants they have the authority to sign in their representative capacity.
CINERGI PICTURES
ENTERTAINMENT INC.
Dated: September 10, 1997 By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Its: Vice President
-----------------------------------
CINERGI PRODUCTIONS N.V. INC.
Dated: September 10, 1997 By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Its: Vice President
-----------------------------------
SUMMIT ENTERTAINMENT L.P.
Dated: September 10, 1997 By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Its: Vice President
-----------------------------------
8.
SETTLEMENT, MUTUAL RELEASE, AND TERMINATION AGREEMENT
This Settlement Agreement and Mutual General Release is made as of the 10th day
of September, 1997 (the "EFFECTIVE DATE"), by and among Summit Export (UK) Ltd,
a corporation organized and exisiting under the laws of the the United Kingdom
("SUK"), on the one hand, and Cinergi Productions, Kft., a corporation organized
and existing under the laws of Hungary ("KFT"), on the other, relating to the
rights to receive certain payments due pursuant to the terms of various motion
picture lease agreements.
RECITALS
A. Prior to the Effective Date, KFT and SUK previously made and entered
into various film lease agreements, which were amended from time-to-time
relating to various motion pictures SUK leased from various producers (the
"LEASE AGREEMENTS"). Pursuant to the Lease Agreements, KFT was entitled to
receive payment of one percent (1%) of the amount of gross receipts received
pursuant to all sublicenses effected by KFT.
B. To date, SUK has not paid KFT, and KFT has not received, any funds due
pursuant to the Lease Agreements.
C. As of the Effective Date, SUK has entered into that certain settlement
agreement with Cinergi Pictures Entertainment Inc. and Cinergi Productions N.V.
Inc. (collectively "Cinergi") with respect to certain sums owed by Cinergi to
SUK (the "CINERGI/SUK AGREEMENT").
D. SUK and KFT want to settle any disputes or claims which may have
arisen or exist between them arising from the Lease Agreements as of the
Effective Date..
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, and subject to the terms and conditions set forth
below, the Parties desire to, and hereby do, resolve their differences and agree
as follows:
1. RELEASE
1.1 RELEASED CLAIMS.
1.1.1 In consideration for, and upon receipt by KFT of a signed
copy of the Cinergi/SUK Agreeement, KFT hereby releases and forever discharges
SUK, and all of SUK's agents, predecessors, successors, attorneys, shareholders,
officers, directors and all other representatives of any or all of them, from
any and all claims, demands, actions, causes of action, controversies, losses
and damages, suspected or unsuspected, whether known or not known, that exist as
of the date of execution of this Settlement Agreement, relating to the subject
matters of the Lease Agreements, including without limitation any claim which
KFT now has or claims to have or at any time heretofore had, or which at any
time hereafter may have or claim to have against SUK relating to or SUK's
performance arising out of or related to the Lease Agreements ("KFT'S CLAIMS").
1
1.1.2 SUK hereby releases and forever discharges KFT, and all of
KFT's agents, predecessors, successors, attorneys, shareholders, officers,
directors and all other representatives of any or all of them, from any and all
claims, demands, actions, causes of action, controversies, losses and damages,
suspected or unsuspected, whether known or not known, that exist as of the date
of execution of this Settlement Agreement, relating to the subject matters of
the Lease Agreements, including without limitation any claim which SUK now has
or claims to have or at any time heretofore had, or which at any time hereafter
may have or claim to have against KFT relating to or concerning KFT's
performance arising out of or related to the Lease Agreements, including the
Lease Agreements ("SUK'S CLAIMS"). (KFT's Claims and SUK's Claims are
subsequently referred to as the "RELEASED CLAIMS".)
2. CONFIDENTIALITY
2.1 The Parties hereto, and their officers, directors, representatives,
agents, employees, and attorneys shall not disclose, directly or indirectly, any
of the financial terms of the Settlement Agreement, which are confidential.
Notwithstanding the foregoing, the Parties shall be able to disclose the terms
of the Settlement Agreement as necessary with respect to their legal and
financial affairs. In such instance, the Parties shall inform any recipients of
such information that the financial terms of the settlement must remain
confidential.
3. MISCELLANEOUS PROVISIONS
3.1 In order to carry out the terms and conditions of this Settlement
Agreement, the Parties agree to promptly execute upon reasonable request any and
all documents and instruments necessary to effectuate the terms of this
Settlement Agreement.
3.2 The Parties agree and acknowledge that this Settlement Agreement
represents a settlement of disputed claims and that, by entering into this
Settlement Agreement no Party admits or acknowledges that they committed any
wrongdoing on their part.
3.3 This Settlement Agreement is the entire agreement between the
Parties with respect to the Released Claims and supersedes all prior and
contemporaneous oral and written agreements and discussions pertaining to the
Released Claims. This Settlement agreement may be amended only by an agreement
in writing.
3.4 This Settlement Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective heirs, representatives,
successors, trustees in bankruptcy, and assigns and each and every entity which
now or ever was a division, parent, successor, predecessor or subsidiary for
each Party and its respective legal successors and assigns.
3.5 The Parties represent and warrant that each of them have not
assigned all or any portion of any claim pertaining to the Released Claims to
any person or entity. In the event any claims are made by any third persons or
entities based upon any purported assignment or any such liens or claims are
asserted in connection with the Released Claims or proceeds of the Settlement
Agreement, then
2
the Party who has breached his representation or warranty contained herein
agrees to indemnify and hold harmless the other Party from any said claims being
made.
3.6 In the event that any covenant, condition or other provision herein
contained is held to be invalid, void or illegal by any Court of competent
jurisdiction, the same shall be deemed severable from the remainder of this
Settlement Agreement and shall in no way affect, impair or invalidate any other
covenant, condition or other provision shall be deemed invalid due to its scope
or breadth, such covenant, condition or other provision shall be deemed valid to
the extent of the scope or breadth permitted by law.
3.7 No breach of any provision hereof can be waived unless in writing.
Waiver of any one breach of any provision hereof shall not be deemed to be a
waiver of any other breach of the same or any other provision hereof.
3.8 The Parties hereto, and each of them, represent and declare that in
executing this Settlement Agreement, they rely solely upon their own judgement,
belief and knowledge, and on the advice and recommendations of their own
independently selected counsel, concerning the nature, extent and duration of
their rights and claims and that they have not been influenced to any extent
whatsoever in executing the same by any representations or statements covering
any matters made by any of the Parties hereto or by any person representing them
or any of them. The Parties acknowledge that no Party hereto nor any of their
representatives have made any promise, representation or warranty whatsoever,
written or oral, as any inducement to enter into this Settlement Agreement,
except as expressly set forth in this Settlement Agreement.
3.9 The Parties hereto or responsible officer or representative
thereof, and each of them, further represent and warrant that they have
carefully read this Settlement Agreement and know and understand the contents
thereof, and that they signed this Settlement Agreement freely and voluntarily.
Each of the representatives executing this Settlement Agreement on behalf of
their respective corporations or partnerships is empowered to do so and thereby
binds his respective corporation or partnership.
3.10 No party (nor any officer, agent, employee, representative, or
attorney of or for any party) has made any statement or representation to any
other party regarding any fact relied upon in entering into this Settlement
Agreement, and each party does not rely upon any statement, representation or
promise of any other party (or any officer, agent, employee, representative, or
attorney of or for any other party) in executing this Settlement Agreement, or
in making the settlement provided for herein, except as expressly stated int his
Settlement Agreement.
3.11 Each party to this Settlement Agreement has made such investigation
of the facts pertaining to this settlement and this Settlement Agreement and of
all matters pertaining thereto as he or it deems necessary.
3.12 In entering into this Settlement Agreement and the settlement
provided for herein, each party assumes the risk of any misrepresentation,
concealment or mistake. If any party should subsequently discover that any fact
relied upon by him or it in entering into this Settlement Agreement
3
is untrue, or that any fact was concealed from him or it, or that his/its
understanding of the facts or of the law was incorrect, such party shall not be
entitled to any relief in such connection or otherwise, including, without
limiting the generality of the foregoing, any alleged right or claim to set
aside or rescind this Settlement Agreement. This Settlement Agreement is
intended to be and is final and binding between the Parties hereto with respect
to the Released Claims, regardless of any claims of misrepresentation, promise
made without the intention of performing, concealment of fact, mistake of fact
or law, or of any other circumstance whatsoever.
3.13 Each of the Parties is aware that he/it my hereafter discover
claims or facts in addition to or different from those he or it now knows or
believes to be true with respect to the Released Claims. Nevertheless, it is
the intention of the parties to fully, finally and forever settle and release
the Released Claims, which do now exist, may exist, or heretofore have existed
between them.
3.14 Each term of this Settlement Agreement is contractual and is not
merely a recital, although the recitals hereto shall be deemed preclusive as to
the facts recited therein.
3.15 Whenever the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
3.16 The subject headings of the sections, paragraphs and subparagraphs
of this Settlement Agreement are included for convenience only, and shall not
affect the construction or interpretation of any of its provisions.
3.17 This Settlement Agreement has been jointly prepared and negotiated
by counsel for each of the Parties, and the Parties agree that this Settlement
Agreement shall be construed as a whole according to its fair meaning and is not
to be strictly construed for or against either of the Parties hereto.
3.18 The Parties acknowledge and agree that they each have been
represented by separate and independent legal counsel and have relied on counsel
of their own choosing at all stages of the negotiation, preparation and drafting
of this Settlement Agreement.
3.19 Each Party further acknowledges that this Settlement Agreement, has
been explained to each by their respective counsel, and that each Party fully
understands the contents and legal effect of said documents. The Parties
further acknowledge and agree that they enter into this Settlement Agreement
free from duress, fraud, undue influence, coercion, or oppression of any kind.
4. NOTICES
4.1 Any written notice, demand, request or communication that any Party
desires or is required to give to or serve on the other Party or any other
person pursuant to the Settlement Agreement shall be in writing and either:
4.1.1 Sent by prepaid first-class mail; or
4
4.1.2 Sent by prepaid one-day early morning Express Mail, Federal
Express, or similar next day morning delivery service.
4.2 Notices, demands, requests, consents, approvals, or other such
written communications are conclusively deemed received:
4.2.1 Five (5) business days after they are mailed if service or
delivery is made pursuant to subpart 4.1.1 above; or
4.2.2 Two (2) business days after transmitted if they are served
or delivered pursuant to subpart 4.1.2 above.
4.3 The date on which the last addressee is deemed to have received the
notice, demand, request, consent, approval or communications shall be deemed the
date of receipt by the Party to whom it is given to or served.
4.4 Any notice, demand, request, consent, approval, or communication
that either Party desires or is required to give to the other Party is ordered
to be addressed and served on or delivered to the other Party at the addresses
set forth below. Any Party may change his or her address by notifying the other
Parties of their change of address(es).
The address for SUK is as follows:
Summit Export (UK) Ltd.
in care of: Ziffren, Brittenham, Branca & Xxxxxxx
0000 Xxxxxx xx xxx Xxxxx, 00xx Xx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
The address for KFT is as follows:
Cinergi Productions Kft.
Xxxxxxx x. 00-00
0000 Xxxxxxxx
XXXXXXX
Facsimile: (000) 000.0000
5. CHOICE OF LAW/ATTORNEY'S FEES
5.1 This Settlement Agreement and any controversy which might arise
therefrom shall in all respects be interpreted, enforced and governed by the
laws of England, excluding England's choice of law provisions. Subsequent
changes in English law through legislation or judicial interpretation
5
that creates or finds additional or different rights and obligations of the
Parties shall not affect this Settlement Agreement.
5.2 In the event one of the Parties hereto institutes any proceeding in
connection with or concerning the interpretation or enforcement of this
Settlement Agreement, the prevailing Party shall be entitled to recover all
reasonable outside attorney's fees, costs and expenses actually incurred in
connection with such proceedings.
6. SEVERABILITY
6.1 Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict
between any of the provisions contained herein and any present or future statue,
law, ordinance or regulation contrary to which the parties have no legal right
to contract, the latter shall prevail, but the provision of this Settlement
Agreement which is affected shall be curtailed and limited to the extent
necessary to bring it within the requirements of the law. All of the provisions
of this Settlement Agreement are intended to be distinct and severable.
7. EXECUTION
7.1 This Settlement Agreement may be executed in counterparts and when
each Party has signed and delivered at least one such counterpart to each of the
other Parties, each counterpart shall be deemed an original, and all
counterparts taken together shall constitute one and the same agreement
6
which shall be binding and effective as to all Parties. This Settlement
Agreement may be executed via facsimile signatures, which shall have the same
force and effect as if they were original signatures.
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement
Agreement on the date(s) written beside its or his name, respectively and each
warrants they have the authority to sign in their representative capacity.
SUMMIT EXPORT (UK) LTD.
Dated: September 10, 1997 By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Its: Managing Director
-----------------------------------
CINERGI PRODUCTIONS KFT.
Dated: September 10, 1997 By: /s/ Xxxx Xxxxxxx
-----------------------------------
Its: Managing Director
-----------------------------------
7
SETTLEMENT, MUTUAL RELEASE, AND TERMINATION AGREEMENT
This Settlement Agreement and Mutual General Release is made as of the 10th day
of September, 1997 (the "EFFECTIVE DATE"), by and among Cinergi Pictures
Entertainment Inc., a corporation orgranized and existing under the laws of
Delaware ("CPEI"), and Cinergi Productions N.V. Inc., a corporation organized
and operating under the laws of Delaware ("CPNVI"), and all of their respective
affiliates (collectively "CINERGI") , on the one hand, and Summit Export (UK)
Ltd., a corporation organized and exisiting under the laws of the the United
Kingdom ("SUK"), on the other, relating to the various lease agreements between
SUK and Cinergi for certain motion pictures.
RECITALS
A. Prior to the Effective Date, Cinergi and SUK previously made and
entered into various film lease agreements, which were amended from time-to-time
relating to various motion pictures Cinergi produces for worldwide exploitation
(the "Lease Agreements"). Pursuant to the Lease Agreements, SUK was entitled to
receive payment of one percent (1%) of the amount of gross receipts received
pursuant to all sublicenses effected by SUK.
B. To date, Cinergi has not paid SUK, and SUK has not received, any funds
due pursuant to the Lease Agreements.
B. Cinergi has decided to wind up its production and worldwide
exploitation of theatrical motion pictures ("WINDUP"). On or about April 2,
1997, entered into an agreement in principle with Xxxx Disney Pictures and
Television ("DISNEY") to acquire virtually all of Cinergi's library of motion
pictures (the "DISNEY AGREEMENT"). On or about July 14, 1997 Cinergi entered
into an agreement with Twentieth Century Fox Film Corporation ("FOX")
(subsequently referred to as the "FOX AGREEMENT") in which, subject to the terms
thereof, Cinergi essentially assigned to Fox all of Cinergi's right, title, and
interest in the motion picture "Die Hard with a Vengeance".
C. Cinergi and SUK now desire to settle any disputes or claims which may
have arisen or exist between them arising from the Lease Agreements as of the
Effective Date.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, and subject to the terms and conditions set forth
below, the Parties desire to, and hereby do, resolve their differences and agree
as follows:
1. RELEASE
1.1 RELEASED CLAIMS.
1.1.1 Upon its receipt of the sums set forth in paragraph 2
hereof, SUK hereby releases and forever discharges Cinergi, and all of Cinergi's
agents, predecessors, successors, attorneys, shareholders, officers, directors
and all other representatives of any or all of them, from any and all claims,
demands, actions, causes of action, controversies, losses and damages, suspected
or unsuspected, whether known or not known, that exist as of the date of
execution of this Settlement Agreement, relating to the subject matters of the
Lease Agreements, including without limitation any
1
claim which SUK now has or claims to have or at any time heretofore had, or
which at any time hereafter may have or claim to have against Cinergi
relating to or Cinergi's performance arising out of or related to the Lease
Agreements ("SUK'S CLAIMS").
1.1.2 Cinergi hereby releases and forever discharges SUK, and all
of SUK's agents, predecessors, successors, attorneys, shareholders, officers,
directors and all other representatives of any or all of them, from any and all
claims, demands, actions, causes of action, controversies, losses and damages,
suspected or unsuspected, whether known or not known, that exist as of the date
of execution of this Settlement Agreement, relating to the subject matters of
the Lease Agreements, including without limitation any claim which Cinergi now
has or claims to have or at any time heretofore had, or which at any time
hereafter may have or claim to have against SUK relating to or concerning SUK's
performance arising out of or related to the Lease Agreements, including the
Lease Agreements ("CINERGI'S CLAIMS"). (SUK's Claims and Cinergi's Claims are
subsequently referred to as the "RELEASED CLAIMS".)
1.2 With respect to the Released Claims, all rights under California Civil
Code Section 1542, are hereby expressly waived by the Parties, and each of them
notwithstanding any provision to the contrary. Section 1542 provides as
follows:
"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 affected his settlement with the
debtor."
The Parties, and each of them, and their representatives, heirs and assigns
expressly waive and release any right or benefit which they have or may have
under Section 1542 of the Civil Code of the State of California, to the fullest
extent that they may waive all such rights and benefits pertaining to the
Released Claims. It is the intention of the Parties, and each of them, through
this Settlement Agreement, and with the advice of counsel, to fully, finally and
forever settle and release all such matters, and all claims relative thereto, in
furtherance of such intention.
2. SETTLEMENT TERMS
2.1 PAYMENT IN LIEU OF LEASE FEES. Within five (5) business days of SUK's
the execution of this Settlement Agreement, Cinergi shall cause to be paid to
SUK the sum of three hundred twenty-six thousand seventy four United States
dollars (US$326,074).
3. CONFIDENTIALITY
3.1 The Parties hereto, and their officers, directors, representatives,
agents, employees, and attorneys shall not disclose, directly or indirectly, any
of the financial terms of the Settlement Agreement, which are confidential.
Notwithstanding the foregoing, the Parties shall be able to disclose the terms
of the Settlement Agreement as necessary with respect to their legal and
financial affairs. In such instance, the Parties shall inform any recipients of
such information that the financial terms of the settlement must remain
confidential.
2
4. MISCELLANEOUS PROVISIONS
4.1 In order to carry out the terms and conditions of this Settlement
Agreement, the Parties agree to promptly execute upon reasonable request any and
all documents and instruments necessary to effectuate the terms of this
Settlement Agreement.
4.2 The Parties agree and acknowledge that this Settlement Agreement
represents a settlement of disputed claims and that, by entering into this
Settlement Agreement no Party admits or acknowledges that they committed any
wrongdoing on their part.
4.3 This Settlement Agreement is the entire agreement between the Parties
with respect to the Released Claims and supersedes all prior and contemporaneous
oral and written agreements and discussions pertaining to the Released Claims.
This Settlement agreement may be amended only by an agreement in writing.
4.4 This Settlement Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective heirs, representatives,
successors, trustees in bankruptcy, and assigns and each and every entity which
now or ever was a division, parent, successor, predecessor or subsidiary for
each Party and its respective legal successors and assigns.
4.5 The Parties represent and warrant that each of them have not assigned
all or any portion of any claim pertaining to the Released Claims to any person
or entity. In the event any claims are made by any third persons or entities
based upon any purported assignment or any such liens or claims are asserted in
connection with the Released Claims or proceeds of the Settlement Agreement,
then the Party who has breached his representation or warranty contained herein
agrees to indemnify and hold harmless the other Party from any said claims being
made.
4.6 In the event that any covenant, condition or other provision herein
contained is held to be invalid, void or illegal by any Court of competent
jurisdiction, the same shall be deemed severable from the remainder of this
Settlement Agreement and shall in no way affect, impair or invalidate any other
covenant, condition or other provision shall be deemed invalid due to its scope
or breadth, such covenant, condition or other provision shall be deemed valid to
the extent of the scope or breadth permitted by law.
4.7 No breach of any provision hereof can be waived unless in writing.
Waiver of any one breach of any provision hereof shall not be deemed to be a
waiver of any other breach of the same or any other provision hereof.
4.8 The Parties hereto, and each of them, represent and declare that in
executing this Settlement Agreement, they rely solely upon their own judgement,
belief and knowledge, and on the advice and recommendations of their own
independently selected counsel, concerning the nature, extent and duration of
their rights and claims and that they have not been influenced to any extent
whatsoever in executing the same by any representations or statements covering
any matters made by any of the Parties hereto or by any person representing them
or any of them. The Parties acknowledge that no Party hereto nor any of their
representatives have made any promise, representation or warranty
3
whatsoever, written or oral, as any inducement to enter into this Settlement
Agreement, except as expressly set forth in this Settlement Agreement.
4.9 The Parties hereto or responsible officer or representative thereof,
and each of them, further represent and warrant that they have carefully read
this Settlement Agreement and know and understand the contents thereof, and that
they signed this Settlement Agreement freely and voluntarily. Each of the
representatives executing this Settlement Agreement on behalf of their
respective corporations or partnerships is empowered to do so and thereby binds
his respective corporation or partnership.
4.10 No party (nor any officer, agent, employee, representative, or
attorney of or for any party) has made any statement or representation to any
other party regarding any fact relied upon in entering into this Settlement
Agreement, and each party does not rely upon any statement, representation or
promise of any other party (or any officer, agent, employee, representative, or
attorney of or for any other party) in executing this Settlement Agreement, or
in making the settlement provided for herein, except as expressly stated int his
Settlement Agreement.
4.11 Each party to this Settlement Agreement has made such investigation of
the facts pertaining to this settlement and this Settlement Agreement and of all
matters pertaining thereto as he or it deems necessary.
4.12 In entering into this Settlement Agreement and the settlement provided
for herein, each party assumes the risk of any misrepresentation, concealment or
mistake. If any party should subsequently discover that any fact relied upon by
him or it in entering into this Settlement Agreement is untrue, or that any fact
was concealed from him or it, or that his/its understanding of the facts or of
the law was incorrect, such party shall not be entitled to any relief in such
connection or otherwise, including, without limiting the generality of the
foregoing, any alleged right or claim to set aside or rescind this Settlement
Agreement. This Settlement Agreement is intended to be and is final and binding
between the Parties hereto with respect to the Released Claims, regardless of
any claims of misrepresentation, promise made without the intention of
performing, concealment of fact, mistake of fact or law, or of any other
circumstance whatsoever.
4.13 Each of the Parties is aware that he/it my hereafter discover claims
or facts in addition to or different from those he or it now knows or believes
to be true with respect to the Released Claims. Nevertheless, it is the
intention of the parties to fully, finally and forever settle and release the
Released Claims, which do now exist, may exist, or heretofore have existed
between them.
4.14 Each term of this Settlement Agreement is contractual and is not
merely a recital, although the recitals hereto shall be deemed preclusive as to
the facts recited therein.
4.15 Whenever the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
4.16 The subject headings of the sections, paragraphs and subparagraphs of
this Settlement Agreement are included for convenience only, and shall not
affect the construction or interpretation of any of its provisions.
4
4.17 This Settlement Agreement has been jointly prepared and negotiated by
counsel for each of the Parties, and the Parties agree that this Settlement
Agreement shall be construed as a whole according to its fair meaning and is not
to be strictly construed for or against either of the Parties hereto.
4.18 The Parties acknowledge and agree that they each have been represented
by separate and independent legal counsel and have relied on counsel of their
own choosing at all stages of the negotiation, preparation and drafting of this
Settlement Agreement.
4.19 Each Party further acknowledges that this Settlement Agreement, has
been explained to each by their respective counsel, and that each Party fully
understands the contents and legal effect of said documents. The Parties
further acknowledge and agree that they enter into this Settlement Agreement
free from duress, fraud, undue influence, coercion, or oppression of any kind.
5. NOTICES
5.1 Any written notice, demand, request or communication that any Party
desires or is required to give to or serve on the other Party or any other
person pursuant to the Settlement Agreement shall be in writing and either:
5.1.1 Sent by prepaid first-class mail; or
5.1.2 Sent by prepaid one-day early morning Express Mail, Federal
Express, or similar next day morning delivery service.
5.2 Notices, demands, requests, consents, approvals, or other such written
communications are conclusively deemed received:
5.2.1 Five (5) business days after they are mailed if service or
delivery is made pursuant to subpart 5.1.1 above; or
5.2.2 Two (2) business days after transmitted if they are served
or delivered pursuant to subpart 5.1.2 above.
5.3 The date on which the last addressee is deemed to have received the
notice, demand, request, consent, approval or communications shall be deemed the
date of receipt by the Party to whom it is given to or served.
5.4 Any notice, demand, request, consent, approval, or communication that
either Party desires or is required to give to the other Party is ordered to be
addressed and served on or delivered to the other Party at the addresses set
forth below. Any Party may change his or her address by notifying the other
Parties of their change of address(es).
The address for Cinergi is as follows:
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Cinergi Pictures Entertainment Inc. and
Cinergi Productions N.V. Inc.
0000 Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000)000-0000
With a copy to:
Ziffren, Brittenham, Branca & Xxxxxxx
0000 Xxxxxx xx xxx Xxxxx, 00xx Xx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
The address for SUK is as follows:
Summit Export (UK) Ltd.
in care of:
Ziffren, Brittenham, Branca & Xxxxxxx
0000 Xxxxxx xx xxx Xxxxx, 00xx Xx.
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
6. CHOICE OF LAW/ATTORNEY'S FEES
6.1 This Settlement Agreement and any controversy which might arise
therefrom shall in all respects be interpreted, enforced and governed by the
laws of the State of California, excluding California's choice of law
provisions. Subsequent changes in California law and federal law through
legislation or judicial interpretation that creates or finds additional or
different rights and obligations of the Parties shall not affect this Settlement
Agreement.
6.2 In the event one of the Parties hereto institutes any proceeding in
connection with or concerning the interpretation or enforcement of this
Settlement Agreement, the prevailing Party shall be entitled to recover all
reasonable outside attorney's fees, costs and expenses actually incurred in
connection with such proceedings.
7. SEVERABILITY
7.1 Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever there is any conflict
between any of the provisions contained herein and any present or future statue,
law, ordinance or regulation contrary to which the parties have no legal right
to contract, the latter shall prevail, but the provision of this Settlement
Agreement which is
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affected shall be curtailed and limited to the extent necessary to bring it
within the requirements of the law. All of the provisions of this Settlement
Agreement are intended to be distinct and severable.
8. EXECUTION
8.1 This Settlement Agreement may be executed in counterparts and when
each Party has signed and delivered at least one such counterpart to each of the
other Parties, each counterpart shall be deemed an original, and all
counterparts taken together shall constitute one and the same agreement
which shall be binding and effective as to all Parties. This Settlement
Agreement may be executed via facsimile signatures, which shall have the same
force and effect as if they were original signatures.
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement
Agreement on the date(s) written beside its or his name, respectively and each
warrants they have the authority to sign in their representative capacity.
CINERGI PICTURES
ENTERTAINMENT INC.
Dated: September 10, 1997 By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Its: Vice President
-------------------------------
CINERGI PRODUCTIONS N.V. INC.
Dated: September 10, 1997 By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Its: Vice President
-------------------------------
SUMMIT EXPORT (UK) LTD.
Dated: September 10, 1997 By: /s/ Xxxxx Xxxxxxx
-------------------------------
Its: Managing Director
-------------------------------
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