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EXHIBIT 6.31
AGREEMENT OF SETTLEMENT, COMPROMISE AND ASSIGNMENT
This Agreement of Settlement, Compromise and Assignment ("Agreement") is
made and entered into effective as of February 28, 1998 ("Effective Date"), by
and among American Independent Network, Inc., a Delaware corporation ("AIN")
and Lionshead Entertainment, Inc., a Nevada corporation.
This Agreement is entered into based on the following:
RECITALS
A. AIN is in the business of providing programming, media production and
syndication services to television and cable stations, as well as satellite
uplink services on behalf of certain cable channels.
B. Lionshead has all right, title and interest to the name "Senior
Channel" by virtue of its use.
C. On April 3, 1997, Lionshead and entered into a Video Service
Agreement (the "Service Agreement") with AIN, whereby AIN provided Lionshead a
satellite uplink service for the Senior Channel. The terms of the Service
agreement provided, among other things, that Lionshead would pay to AIN the sum
of* per month for the services set forth in the Service Agreement. A true and
correct copy of the Service Agreement is attached as Exhibit A and incorporated
herein by this reference.
D. Lionshead has breached the terms of the Agreement by failing to pay
the monthly obligation. The amount presently due is $*.
E. The parties have decided to resolve this matter without litigation
and consequently enter into this Agreement pursuant to the terms and conditions
set forth below.
NOW THEREFORE, in consideration of the mutual promises set forth below, he
parties agree as follows:
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1. Terms of Settlement.
a. Lionshead agrees to assign any and all right, title and interest in
any and all intellectual property rights it owns, adopted, used or is using,
relating to the Senior Channel, including, but not limited to the Senior
Channel name.
b. Lionshead further agrees to cooperate, execute, and/or take whatever
action is necessary, both now and subsequent to the execution of this
Agreement, to assign, perfect, convey, or transfer, any and all right, title
and interest in any and all intellectual property owned, adopted, used or
presently owned by Lionshead to AIN, including, but not limited to the rights
to the Senior Channel.
c. Concurrently with the execution of this Agreement, Lionshead shall
execute an Assignment of the name of the Senior Channel in favor of AIN,
substantially in the form attached hereto as Exhibit B.
d. Subject to the terms and conditions of this Agreement, AIN shall deem
the amounts owed by Lionshead to be paid in full.
2. Releases Upon the Effective Date.
a. AIN and all respective agents, servants, employees, officers,
directors, shareholders, successors, partners, joint venturers, permitted
assigns, executors, heirs, and anyone else who may purport to claim any
interest (the "Agents") by or through the company, releases Lionshead and its
Agents from any and all claims of every kind and description whatsoever which
may reasonably be determined to have arisen from, or as a result of, any fact,
act or omission, including, but not limited to, all claims set forth in the
Recitals, and any and all other claims of any kind or nature which AIN, and its
Agents, could ever assert as a result of any act or omission occurring on or
before the date of this Agreement except all claims to enforce the provisions of
this Agreement and to enforce a claim that arises under this Agreement.
b. As consideration for the execution of this Agreement by Lionshead,
AIN, on behalf of itself and its respective Agents, covenants and agrees that
it shall not file or maintain, or permit to be filed or maintained, any suit,
proceeding, administrative proceeding, or action, civil or otherwise, against
Lionshead and its respective Agents, arising from any matter, act, fact, or
omissions occurring on or before the date of this Agreement, except to enforce
a claim that arises under this Agreement.
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c. Accordingly, Lionshead and its respective Agents, releases AIN
and its Agents from any and all claims of every kind and description whatsoever
which may reasonably be determined to have arisen from, or as a result of, any
fact, act or omission, whether now known or unknown, including but not limited
to, any and all claims of any kind or nature which Lionshead and its Agents,
could ever assert as a result of any act or omission occurring on or before the
date of this Agreement except all claims to enforce the provisions of this
Agreement.
d. As consideration for the execution of this Agreement by AIN,
Lionshead, on behalf of itself and its respective Agents, covenant and agree
that it shall not file or maintain, or permit to be filed or maintained, any
suit, proceeding, administrative proceeding, or action, civil or otherwise,
against AIN, and its respective Agents, arising from any matter, act, fact, or
omissions occurring on or before the date of this Agreement, except to enforce
the provisions of this Agreement.
3. Reliance Upon Representations, Warranties and Covenants.
The parties represent and warrant that they have conducted their own
investigation, analysis, and review of all matters pertaining to the
transactions contemplated under this Agreement and are not relying on any
representations, warranties or covenants of the other Parties, except for those
representations, warranties and covenants contained in this Agreement.
4. Representations, Warrants and Covenants of AIN.
AIN represents and warrants to Lionshead that the following are now true
and correct:
a. AIN does not have any knowledge of any litigation, arbitration,
or pending governmental administrative proceeding between the parties.
b. AIN has not assigned, hypothecated, sold or transferred any
interest that he may have in the hereinabove described matters, any claims that
are the subject of the herein Agreement, or any matter related hereto to any
person or entity that is not a party to the herein Agreement.
c. AIN is authorized and empowered to sign and enter into this
Agreement and does so willingly, voluntarily and knowingly.
d. By executing this Agreement, AIN, to its knowledge, is not
violating any duty, contract, statute, ordinance or law.
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5. Representations, Warranties and Covenants of Lionshead.
Lionshead represents and warrants to AIN that the following are now true
and correct:
a. Lionshead will not be rendered insolvent as a result of this
Agreement.
b. Lionshead has not assigned, hypothecated, sold or transferred
any interest that it may have in the hereinabove described matters, any claims
that are the subject of the herein Agreement, or any matter related hereto to
any person or entity that is not a party to the herein Agreement.
c. Lionshead is authorized and empowered to sign and enter into
this Agreement and does so willingly, voluntarily and knowingly.
d. Lionshead has no other assets of value (defined as any assets
with a value, as of the Effective Date, greater than $250.00) other than the
trademark rights to the Senior Channel.
e. Lionshead holds all rights whatsoever in the name of the Senior
Channel, and has not assigned, conveyed, hypothecated, sold or transferred the
rights in the aforementioned name.
f. Lionshead will not file or maintain any action against any party
which results in a claim by said party against AIN to defend or indemnify said
party.
g. Lionshead does not have any knowledge of any litigation,
arbitration, or pending governmental administrative proceeding between the
parties.
h. By executing this Agreement, Lionshead, to its knowledge, is not
violating any duty, contract, statute, ordinance or law.
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6. Indemnification by Lionshead.
Lionshead shall, as of and after the Effective Date, indemnify, defend and
hold harmless AIN and its Agents against and in respect of the following:
a. Any and all damages, losses, costs, liabilities, or deficiencies
resulting from any misrepresentations, breach of warranty, representation
or obligations, or failure to perform any covenant on the part of the
Lionshead under this Agreement including but not limited to any and all
judgments or orders of an administrative agency or agencies or arbitration
awards rendered against AIN as a result of the conduct or omissions of
Lionshead in failing to perform or violating this Agreement.
b. Any and all actions, suits, proceedings, demands, assessments,
judgments, costs, legal and other expenses, including reasonable attorneys'
fees, expert or other witness fees, investigation costs, penalties, costs
and the like incident to any matter under paragraph 6.a. above.
7. Notices.
All notices, consents, or demands required or permitted to be given under
this Agreement shall be in writing, and shall be deemed duly delivered when
served on the service party noted below, or shall be deemed duly delivered five
(5) days after posting if sent to the party at the address indicated below by
registered or certified mail with first class postage prepaid:
If to Lionshead: 0000 X. Xxxxxxxx Xx., Xxx X
Xxx Xxxxx, XX 00000
with a copy to: Xxx X. Xxxxxx
0000 Xxxx Xxxxxxxx Xxxx, Xxxxx X
Xxx Xxxxx, XX 00000
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If to AIN: American Independent Network
Attn: Xxxxx Xxxxxxx
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
with a copy to: Xxxxx, Xxxxxxxx & Xxxxxx
Attn: Xxxxxxx X. Xxxxx, Esq.
000 X. Xxxxx Xxxx., 00xx Xxxxx
Xxxxxxxx, XX 00000
Any party may change the address or service party from time to time
by notice under this paragraph.
8. Miscellaneous Provisions.
a. Other Documents and Acts. Each party agrees to execute
documents of further assistance and other documents as are necessary
or appropriate to carry out the terms and conditions of this
Agreement, and to do everything that may be reasonably required to
carry out the obligations of that party and to consummate the
transactions contemplated under this Agreement provided that any such
requests shall be directed to the party's legal counsel in the case of
Lionshead.
b. No Admission of Liability. Notwithstanding anything to the
contrary, no party hereto is admitting, or has admitted, the
commission of any wrongful act or the failure to perform an act that
may have been required of said party or any Agent thereof. Further, no
interference may be raised as and against any party hereto, or any
Agent thereof, that, by entering into this Agreement any party hereto,
or any Agent hereof, is guilty of the commission of a wrongful act or
is guilty of failing to perform any act required of said party, or any
Agent thereof.
c. Entire Agreement. This Agreement constitutes the entire
agreement between the parties pertaining to its subject matter and
supersedes all prior agreements, writings or understandings of the
parties. There are no warranties, representations, covenants, or other
agreements between the parties in connection with the subject matter
of this Agreement except as specifically set forth in this Agreement
and in the Exhibits.
d. Multiple Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original.
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e. Modifications. No amendment or modification of this Agreement shall
be valid unless in writing and signed by all the parties.
f. No Third Party Beneficiaries. Nothing in this Agreement, whether
expressed or implied, is intended to confer upon any person, other than the
parties and their respective successors and assigns, any rights or remedies
under or by reason of this Agreement. Nevertheless, all the terms and
provisions of this Agreement shall be binding upon, an inure to the benefit of,
and be enforceable by the respective successors and permitted assigns of the
parties.
g. Attorneys' Fees. The prevailing party in any dispute under this
Agreement shall be entitled to recover from the other party the reasonable
costs and expenses (including reasonable attorneys' fees) incurred by the
prevailing party.
h. Controlling Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
i. Exhibits. All Exhibits called for under this Agreement shall be
deemed to be attached to this Agreement and incorporated into this Agreement by
reference and made a part of this Agreement as though set forth in full in this
Agreement.
j. Survival. All representations, covenants, warranties and
obligations of the parties contained in this Agreement, or in any Exhibit,
shall survive the execution of this Agreement and performance hereunder.
k. Counsel. Lionshead acknowledges that it has had a reasonable
opportunity to examine and discuss the terms of this Agreement with its
attorneys, and it warrants and represents that it has read, understood and
agreed with each and all of the provisions of this Agreement, and has knowingly
executed the Agreement. AIN acknowledges that it has had a reasonable
opportunity to examine and discuss the terms of this Agreement with counsel of
his choosing, warrants that he has read, understood and agreed with each and
all of the provisions of this Agreement, and has knowingly executed the
Agreement.
l. Headings. The headings contained int this Agreement are for
convenience only and shall not affect in any way the meaining or interpretation
of this Agreement.
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m. Invalid Provision. If a provision of this Agreement or Exhibit to
this Agreement shall be adjudged by a court to be invalid or unenforceable, the
provision shall in no way affect the validity or enforceability of any other
provision of this Agreement.
n. Separate Costs. All parties to pay their own costs and attorney's
fees and expenses related to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
first date written above.
Lionshead Entertainment Corporation,
a Nevada Corporation
By:________________________________
NAME: Xxxxxxx Xxxxxxx
Its: President
American Independent Network,
A Delaware corporation
By:_________________________________
Xxxxx Xxxxxxx
President
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