This payoff and
settlement agreement ("Agreement") is made
this 30th day of September 2005, by and among YouthStream Media
Networks, Inc. ("YouthStream"), Beyond the
Wall, Inc. ("BTW"), 1903 West Main Street
Realty Management, LLC ("Main Street"), and
Clive Corporation, Inc. ("Clive"), with
reference to the following facts:
about February 24, 2004, the parties hereto (excluding Main Street)
entered into an Asset Purchase Agreement
("APA"), whereby BTW sold certain assets to
In connection with the APA, Clive
executed and delivered to BTW, a Secured Promissory Note, dated
February 24, 2004, in the sum of $1,100,000
("Note"), as partial payment of the purchase
price for the assets sold by BTW to
Pursuant to the APA, Clive executed
and delivered a Security Agreement ("Security
Agreement") to BTW, and a UCC-1 Financing Statement, in
order to secure the Note.
Pursuant to an
Agreement of Sale, dated February 24, 2004 ("RP
Agreement"), by and between BTW and Main Street, BTW sold
certain real property located at 1903 West Main Street, Stroudsburg,
Pennsylvania ("Property") to Main Street, for
cash, and Main Street gave a Mortgage to BTW, to further secure the
According to the terms of the Note,
there is a payment of $237,281 principal and interest due on October
31, 2005, and a final payment of $47,732 principal (excluding interest)
due on October 31, 2006.
have arisen between the parties, regarding among other things, the
responsibility for payment of taxes, interest and
Clive desires to payoff the Note
early, with a discount.
NOW, THEREFORE, in consideration of the
foregoing recitals and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties
agree as follows:
1. Payoff Amount. On or before
September 30, 2005, Clive shall pay to BTW (or its nominee), in
immediately available funds, the sum of $258,922 ("Payoff
, in full satisfaction of any and all sums owing under the Note. Upon
receiving such payment, the original of the Note shall be marked PAID
IN FULL and sent to Clive. The parties acknowledge that the Payoff
Amount is less than the amount owing under the Note, but that BTW is
accepting less as a compromise of a dispute between the parties
relative to, among other things, purported responsibility for payment
of taxes, interest and penalties, if any.
2. Termination of
Security Agreement. Upon receipt by BTW of good funds in the
Payoff Amount, the Security Agreement shall be deemed terminated and
canceled and of no further force or effect. In this regard, BTW shall
prepare and send to Clive, a UCC-3 Termination Statement, for filing by
Clive. The UCC-3 shall be substantially in the form of Exhibit
"A", attached hereto. The UCC-3 will permit
Clive to terminate the UCC-1 Financing Statement.
Termination of Mortgage. Upon receipt by BTW of good funds in
the Payoff Amount, BTW shall execute and deliver to Main Street, a
Satisfaction Piece, substantially in the form attached hereto as
Exhibit "B", which will permit Main Street to
terminate the Mortgage. Thereafter, the Mortgage shall be deemed
terminated, satisfied, cancelled and of no further force or effect.
4. Assumption of Certain Obligations. There exists a
dispute between BTW and Clive relative to which party is responsible
for the payment of taxes, interest and penalties owing, if any,
pursuant to the
of principal and $39,547 of accrued interest as of September 30, 2005,
less interest for the month of October 2005 of $3,359, plus $25,000 in
settlement of the principal payment due on October 31,
provisions of Section 4.10 of the APA. In
consideration of the compromise being made by BTW pursuant to this
Agreement, Clive agrees to assume, be responsible for, and to defend
and indemnify BTW and YouthStream from any and all claims, suits,
liabilities, obligations, losses, costs and expenses (including
attorneys' fees) arising out of or related in any matter
whatsoever to Section 4.10 of the APA, including but not limited to the
responsibility for tax audits. For the sake of clarity, Clive agrees
that it alone and not BTW will be responsible for the preparation and
filing of all tax returns, and the compliance with and coordination of
all tax audits, and any and all taxes, interest and penalties
pertaining to the operations of the Business (as defined in the APA)
sold to Clive under the APA, for all periods through the Closing under
5. Notices. Any notice, request,
instruction, consent or other document to be given hereunder by either
party hereto to the other party shall be in writing and delivered
(a) personally, (b) by telecopy, (c) by a
nationally recognized overnight carrier, or (d) by registered or
certified mail, return receipt requested, postage prepaid, as
If to the
Clive Corporation, Inc. 1903 West Main
Street Stroudsburg, PA 18360 Attn: President
If to the Seller:
Wall, Inc. c/o YouthStream Media Networks, Inc. 11111 Santa
Monica Boulevard, Suite 1250 Los Angeles, CA 90025
or at such other address
for a party as shall be specified in writing by that party. Notices
shall be deemed received the same day (when delivered personally or by
telecopy with receipt confirmation), the next business day (when
delivered by overnight carrier) or five (5) days after mailing (when
sent by registered or certified mail).
Waiver. Neither any failure nor any delay by any party in
exercising any right, power or privilege under this Agreement will
operate as a waiver of such right, power or privilege, and no single or
partial exercise of any such right, power or privilege will preclude
any other or further exercise of such right, power or privilege or the
exercise of any other right, power or privilege. Any of the terms or
conditions of this Agreement may be waived in writing at any time by
the party which is entitled to the benefits thereof. No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute
a waiver of such provision at any time in the future or a waiver of any
other provision hereof.
7. Captions. The
captions set forth in this Agreement are for convenience only and shall
not be considered as part of this Agreement, nor affect in any way the
meaning of the terms and provisions hereof.
Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto; provided,
however, that this Agreement may not be assigned by any party without
the express written consent of the other party hereto.
9. Counterparts. This Agreement may be executed in
more than one counterpart, each of which shall for all purposes be
deemed to be an original and all of which shall constitute one and the
same agreement. A signature to this Agreement delivered by telecopy or
other artificial means shall be deemed valid.
Governing Law. This Agreement shall in all respects be
interpreted, construed and governed by and in accordance with the laws
of the Commonwealth of Pennsylvania, without regard to principles of
conflict of laws.
11. Entire Agreement;
Amendment. Except as set forth herein, this Agreement, including
all Exhibits hereto constitute the sole understanding of the parties
with respect to the matters contemplated hereby and thereby and
supersedes and renders null and void all other prior agreements and
understandings between the parties with respect to such matters. No
amendment, modification or alteration of the terms or provisions of
this Agreement, including all Exhibits hereto, shall be binding unless
the same shall be in writing and duly executed by the party against
whom such would apply.
IN WITNESS WHEREOF, each of the parties
has caused this Agreement to be duly executed and delivered by its duly
authorized representatives as of the date first written above.
Beyond the Wall,
Clive Corporation, Inc.
By: /S/ ROBERT N.
By: /S/ KEVIN
N. Weingarten Title: Chief Financial Officer
Media Networks, Inc.
1903 West Main Street Realty
By: /S/ ROBERT N.
By: /S/ KEVIN
Name: Robert N.
Weingarten Title: Chief Financial Officer