LEASE AND LIBRARY AGREEMENT
Lease and Library Agreement (the "Agreement") dated March 31, 2006 by and
among Ckrush, Inc., a Delaware corporation, formerly known as Xxxxxx Xxxxxxx
Promotions, Inc. (the "Company"), Big Content, Inc., a wholly-owned subsidiary
of the Company ("Big Content"), both having an address at 1414 Avenue of the
Americas, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxxx Media, Inc., a New
York corporation ("Media") and Xxxxxx Xxxxxxx, an individual ("Kushner"), both
having an address at 1414 Avenue of the Americas, Xxxxx 000, Xxx Xxxx, Xxx Xxxx
00000.
WHEREAS, contemporaneously herewith, the Company, Big Content and Xxxxxx
Xxxxxxx ("Xxxxxxx") are executing and delivering that certain Settlement
Agreement of even date (the "Settlement Agreement") which provides for, among
other things, the execution and delivery of this Agreement.
NOW, THEREFORE, for good and valuable consideration, and intending to be
legally bound, the parties hereto agree as follows:
1. Office Lease. The Company shall sublease to Media, effective as of
May 1, 2006, all of the Company's right, title and interest in, to, under and
for that certain lease agreement (the "Lease") dated February 4, 2003 between
the Company and 1414 Property LLC, as amended April 25, 2005 with 1414 APF LLC
as landlord (the "Landlord") with respect to the premises known as Xxxxx 000,
0000 Xxxxxx of the Americas, New York, New York (the "Premises"). Effective as
of May 1, 2006, the Company hereby sells, conveys, assigns and delivers to Media
all of the Company's rights, title and interest in, to and under the security
deposit in the amount not less than $21,438 currently held by the Landlord (the
"Security Deposit") and the Company's furniture, fixtures and equipment at the
Premises (the "FFE"), all of which the Company hereby conveys to Media, subject
to the Lease in the case of the Security Deposit, free and clear of any and all
assignments, grants, licenses claims, agreements, rights, liens, mortgages,
options, pledges, security interests and encumbrances (collectively, "Liens").
Media and Xxxxxxx, jointly and severally, agree to indemnify the Company from
and against any liability arising under the Lease arising on or after May 1,
2006, including reasonable legal fees and other reasonable costs of defense, and
to request that the Landlord enter into a new lease between the Landlord and
Media in form and substance acceptable to Media, in its sole discretion, which
shall be final, conclusive and binding. The Company hereby agrees (i) to deliver
the Premises to Media on May 1, 2006 leaving the FFE in its current location and
condition, and (ii) to pay to the Landlord all rent and other amounts due under
the Lease through May 1, 2006 and, upon request by Media, deliver a certificate
signed by a senior officer of the Company to Media evidencing same.
Simultaneously herewith, the parties are entering into a sublease consistent
with the foregoing. The Company hereby represents and warrants to Media that the
Company is in possession of the Premises and is paying the full lease rental as
reserved in the Lease. No rental payments have been made more than one month in
advance. All work required to be performed by the Landlord under the Lease has
been completed. There are no outstanding defaults by any party to the Lease.
2. Xxxxx Advertising and Agency Mosaic. The Company hereby sells,
assigns, conveys and delivers to Media, all right, title and interest in, to,
under and for any existing oral contracts between the Company and Xxxxx
Advertising and/or Agency Mosaic (collectively, the "Xxxxx Agreement"), free and
clear of any and all Liens.
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3. Boxing Library.
a. The Company and Big Content, jointly and severally, represent and
warrant to Media as follows: (i) Big Content owns a library of boxing films, a
partial list of which is set forth on Schedule A attached hereto and made a part
hereof (the "Library"), (ii) the Company is indebted to Xxxxxxxxxx Investments,
LLC ("Xxxxxxxxxx") in the amount of $257,000 (the "Xxxxxxxxxx Indebtedness"),
(iii) the Library was, prior to the date hereof, subject to a license agreement
(the "License Agreement") dated as of November 1, 2005 between Big Content and
English Distribution, LLC, an affiliate of Xxxxxxxxxx and (iii) except as
provided below, the License Agreement is being terminated simultaneously
herewith, no party thereto having any liability or obligation thereunder. Big
Content hereby sells, transfers, assigns, conveys and delivers to Media, and
Media hereby purchases from Big Content all of the Big Content's right, title
and interest in, to, under and for the Library (including films not listed on
Schedule A), the Master Tapes (as hereinafter defined) and intellectual
property, comprising and/or related to the Library, including, but not limited
to, any and all trademarks, copyrights and derivative works included in or
protecting the body of recordings included therein or related thereto
(collectively, the "Intellectual Property"), and the License Agreement to the
extent not terminated, free and clear of any and all Liens, other than any liens
granted or agreed to by Xxxxxxx. The Library consists of the tapes listed in
Schedule A, including all trademarks, copyrights, derivative works, and
proprietary information related thereto. The Company and Big Content hereby,
jointly and severally, represent and warrant to Media that, except for the
Section 3 License (as hereinafter defined), no Lien affecting the rights and
property herein conveyed has been made to others other than any Liens granted or
agreed to by Kushner, that the full right to convey the same as herein expressed
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is possessed by the Big Content, and that Big Content is conveying to Media all
right, title and interest that the Company or Big Content has in the Library and
the Intellectual Property. The Company and Big Content hereby grant to Media the
worldwide, non-exclusive, perpetual, transferable, royalty free license to use
(as Media sees fit) the name, logo and all other intellectual property of the
Company and Big Content contained in the Library.
b. In addition, Big Content hereby sells, assigns, conveys and
delivers to Media, all right, title and interest in, to, under and for those
certain existing contracts between the Company (i) and various videotape storage
facilities with respect to the master tapes constituting the titles in the
Library (the "Master Tapes") and contents of the Library as more fully described
on Schedule B attached hereto and made a part hereof (collectively with the
Xxxxx Agreement, the "Facilities Agreements"), free and clear of any and all
Liens other than any Liens granted or agreed to by Xxxxxxx; and (ii) and various
parties identified on Schedule C attached hereto and made a part hereof with
respect to the right to use the Library (the "Miscellaneous Agreements").
c. The purchase price for the Library is $250,000, which Media shall
pay to Big Content in immediately available funds simultaneously with the
execution of this Agreement. Big Content shall, and the Company shall cause Big
Content to, pay such amount simultaneously to Xxxxxxxxxx and cause any Lien on
the Library to be released. The Company and Big Content jointly and severally,
hereby assume and agree to be responsible and pay, as and when due, all storage
fees and other fees and expenses for the Library through and including the date
hereof. The Company retains the non-exclusive, personal, non-transferable right,
in perpetuity, to use Media's boxing Library, for its own internal purposes and
not for third party sale or license, on a royalty-free basis, for up to 50 hours
per year (the "Section 3 License").
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4. Representations by Media. Media hereby represents and warrants to the
Company and Big Content as follows:
a. Media is a corporation duly incorporated under the laws of the
State of New York and has all requisite power, authority and capacity to
execute, deliver and perform its obligations under this Agreement. This
Agreement has been duly executed and delivered by Media. This Agreement is a
legal, valid and binding obligation of Media, enforceable against Media in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting the enforcement of creditors' rights generally and subject to general
principles of equity, regardless of whether enforcement is sought in a
proceeding of law or in equity.
b. Neither the execution nor delivery of this Agreement nor the
consummation of the transactions contemplated by this Agreement will conflict
with or result in the breach of any term or provision of, require consent or
violate or constitute a default under, or give any third party the right to
terminate or accelerate any obligation under any contract, agreement, permit,
license or law to which Media is a party or by which Media is in any way bound
or obligated.
c. No consent, or approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
governmental or quasi-governmental agency, authority, commission, board or other
body is required on the part of Media in order to enter into or consummate the
transactions contemplated by this Agreement.
5. Incorporation By Reference. The Company hereby represents and
warrants to, and covenants and agrees with, each of the Indemnified Xxxxxxx
Parties (as defined in the Settlement Agreement) that the representations,
warranties, indemnifications, covenants and agreements of the Company set forth
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in this Agreement are hereby incorporated as if set forth at length in (i) the
Settlement Agreement and that each of the Indemnified Xxxxxxx Parties are each
intended third party beneficiaries thereof with full and unfettered rights to
enforce same, (ii) that certain Consulting Agreement of even date among the
Company and Gotham (the "Consulting Agreement") and that Xxxxxxx and Gotham are
each intended third party beneficiaries thereof with full and unfettered rights
to enforce same. The Company and Big Content hereby, jointly and severally,
represent and warrant to, and covenant and agree with, Gotham that the
representations, warranties, indemnifications, covenants and agreements of the
Company and Big Content set forth in the Settlement Agreement and the Consulting
Agreement, are hereby incorporated as if set forth at length herein and that
Xxxxxxx and Media are intended third party beneficiaries thereof with full and
unfettered rights to enforce same.
6. Severability. Should any provisions of this Agreement be held to be
illegal, void or unenforceable, such provision shall be of no force and effect.
However, the illegality or unenforceability of any such provision shall have no
effect upon, and shall not impair the enforceability of, any other provision of
this Agreement.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding its conflicts of
laws provisions.
8. Integration. This Agreement contains the complete understanding among the
parties hereto relating to the subject matter hereof, and no other promises or
agreements shall be binding unless signed by such parties. In signing this
Agreement, the parties are not relying on any fact, statement or assumption not
set forth in this Agreement.
9. Amendments. This Agreement may only be changed or amended by a
written agreement signed by all of the parties hereto.
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10. Knowledge and Consent. By signing below, the parties indicate that
they have carefully read and understood the terms of this Agreement, enter into
the Agreement knowingly, voluntarily and of their own free will, understand its
terms and significance and intend to abide by its provisions without exception.
11. Binding Effect. This Agreement is binding upon, inures to the
benefit of and is enforceable by the parties, the heirs, personal
representatives, successors and assigns of the parties. This Agreement is not
assignable by a party without the prior written consent of each other party.
12. Further Assurances. Subject to the terms and conditions of this
Agreement, the parties hereto will use commercially reasonable efforts to take,
or cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transaction contemplated by this Agreement.
Neither of the parties hereto will, without prior written consent of the other
party, take any action which would reasonably be expected to prevent or
materially impede, interfere with or delay the transactions contemplated by this
Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, this Agreement has been signed as of the date first set
forth above. XXXXXX XXXXXXX MEDIA, INC.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, President
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Individually
CKRUSH, INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President
BIG CONTENT, INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President
