EXHIBIT 4.29
SETTLEMENT AGREEMENT
This Settlement Agreement made as of the 4th day of November 2003.
BETWEEN:
XXX XXXXXXXXXXX and
XXX XXXXXXXXXXX OF CANADA
OF THE FIRST PART
AND:
STARNET COMMUNICATION CANADA INC.
WORLD GAMING PLC
INPHINITY INTERACTIVE INC.
OF THE SECOND PART
WHEREAS:
1. XXX Xxxxxxxxxxx ("EMC") and Starnet Communications Canada Inc. ("Starnet")
entered into a Master Lease Agreement No. 12290 together with a Master
Lease Agreement Supplement No. 1 ("Supplement 1") dated June 27, 2000, a
Master Customer Agreement dated June 27, 2000, Amendment No. 1 dated June
27, 2000 to Supplement No.1, Master Lease Agreement Supplement No. 2
("Supplement 2") and Amendment No. 1 to Supplement 2 (collectively referred
to as the "Master Agreement").
2. The Master Agreement was subsequently assigned from EMC to XXX Xxxxxxxxxxx
of Canada by way of Notification of Assignment of the Master Agreement.
3. Pursuant to the Master Agreement, Starnet agreed to lease from EMC the
equipment (the "Leased Equipment") described in Supplement 1 and Supplement
2.
4. As at November 13, 2003, the amount owing to EMC pursuant to the Master
Agreement totalled US $1,522,066.63 (as per the Calculation attached as
Schedule "A" hereto).
5. The parties to this Settlement Agreement have agreed to settle this dispute
on the terms contained herein.
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FOR AND IN CONSIDERATION OF THE FOLLOWING:
6. (a) Payment by Starnet or World Gaming PLC ("World Gaming") to EMC of the
sum of US $300,000.00 (the "Settlement Amount") payable as follows:
(i) US $100,000.00 payable immediately; and
(ii) 12 equal monthly instalments of US $16,666.67 commencing on
November 15, 2003 and payable on the 15th day of each subsequent
month,
(b) a Consent to Judgment by Starnet, World Gaming and Inphinity
Interactive Inc. ("Inphinity") in the amount of US $1,522,066.63 as
security for payment of the instalments referred to in paragraph
(a)(ii) above which counsel for EMC, Xxxxxx Grey Easton, will hold on
an undertaking not to file unless there has been default in payment of
any instalment and such default has not been rectified within 14 days
of written notice to Xxxxxx Blaikie, counsel for Starnet, World Gaming
and Inphinity, Xxxxxx Xxxxx of Inphinity c/o Inphinity's registered
and records office in British Columbia at Suite 2200, 0000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0 and Xxxxx X.
Xxxxxxxx, Chairman of World Gaming c/o Xxxx Xxxxx Xxxxxx Heafey, Xxx
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000. In the event
that XXX Xxxxxxxxxxx of Canada ("EMC Canada") is entitled to file and
enforce the Consent Judgment any and all payments made by Starnet or
World Gaming pursuant to this Settlement Agreement shall be credited
against the judgment amount; and
(c) continued security against the Leased Equipment.
7. EMC and EMC Canada agree to the following:
(a) that upon payment of the whole of the Settlement Amount, EMC's
solicitors, Xxxxxx Grey Easton, undertake to provide the following to
counsel for EMC:
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(i) an executed Release of All Claims against Starnet, World Gaming
and Inphinity in the form attached hereto as Schedule "B" to this
Settlement Agreement; and
(ii) the unfiled Consent to Judgment; and
(b) that upon payment of the whole of the Settlement Amount, EMC and EMC
Canada shall be deemed to convey to World Gaming all of its right,
title and interest to the Leased Equipment as defined in the Master
Agreement, to which EMC and EMC Canada covenant is free and clear of
any encumbrances, charges or liens and to which EMC and EMC Canada has
valid right, title and interest.
8. It is understood and agreed that the terms of this Settlement Agreement are
to be kept confidential, and without limiting the foregoing, the parties
agree to make no statements with respect to the terms of this Settlement
Agreement, or the particulars of any and all dealings between the parties,
except as on the advice of counsel that disclosure of such confidential
information may be required by law, by order of a Court or by a Regulatory
Agency having jurisdiction.
9. Starnet, World Gaming and Inphinity agree to indemnify and save harmless
EMC and EMC Canada from any claims, demands, actions and suits,
proceedings, costs, expenses, damages and liabilities, including reasonable
legal fees (hereinafter the "Claims") arising out of, connected with or
resulting from the Master Agreement or the acquisition of the Equipment
pursuant to this Settlement Agreement. Starnet, World Gaming and Inphinity
shall give EMC and EMC Canada immediate notice of any Claim and Starnet,
World Gaming and Inphinity shall satisfy, pay and discharge any and all
judgments and fines that may be recovered against EMC and EMC Canada in
connection with any such Claim. EMC and EMC Canada shall give World Gaming
written notice of any such Claim of which they receive notice. EMC and EMC
Canada shall not pay or settle any Claim without the prior written approval
of World Gaming.
10. Subject to each party's fulfilment of its obligations hereunder and subject
to the following sentence, the Effective Date of this Release shall be 95
days from the last instalment payment received as set forth in paragraph
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6(a)(ii) above. Notwithstanding the foregoing, in the event that Starnet,
World Gaming or Inphinity, or any of its successors, assigns, or affiliates
shall have, within 95 days after EMC's receipt of the last instalment
payment due under this Settlement Agreement:
(a) filed a petition for relief under the BANKRUPTCY AND INSOLVENCY ACT,
R.S.C. 1985, C. B-3, the COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C.
1985, c. C-36 (as amended), or any comparable law of any other
jurisdiction ("Insolvency Law");
(b) become the subject of an involuntary petition for relief under any
Insolvency Law; or
(c) become the subject of any receivership or liquidation proceeding in
any court
this Release is null and void and of no force and effect and Starnet, World
Gaming and Inphinity shall again be responsible for all obligations under
the Lease. 11. It is understood and agreed that the settlement herein is a
compromise of disputed claims and nothing herein shall constitute or be
construed as an admission of liability on the part of any party to the
Settlement Agreement.
12. This Settlement Agreement is governed by and construed in accordance with
the laws of the Province of British Columbia and the laws of Canada
applicable therein.
13. It is understood and agreed that the parties hereto have read this
Settlement Agreement and obtained legal advice in respect of same and
execute this Settlement Agreement of their own free will.
14. It is further understood and agreed that this Settlement Agreement may be
executed in counterpart, each counterpart so executed constituting a part
of the original Settlement Agreement.
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15. It is further understood and agreed that this Settlement Agreement
constitutes the entire agreement between the parties and that its terms are
contractual and not a mere recital.
IN WITNESS WHEREOF the parties have executed this Settlement Agreement effective
the date first above written.
XXX XXXXXXXXXXX XXX XXXXXXXXXXX OF CANADA
by its authorized signatory(s): by its authorized signatory(s):
Per: __________________________ Per: __________________________
Per: __________________________ Per: __________________________
STARNET COMMUNICATIONS WORLD GAMING PLC
CANADA INC. by its authorized by its authorized signatory(s):
signatory(s):
Per: __________________________ Per: __________________________
Per: __________________________ Per: __________________________
INPHINITY INTERACTIVE INC.
by its authorized signatory(s):
Per: __________________________
Per: __________________________
