[EXHIBIT 10.1.33]
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is
made and entered into as of January 29, 2004, by and between Film
and Miracle Entertainment, a wholly owned subsidiary of FAME, Inc.
("Fame") and TODI, Inc. ("XXX"), on the one hand, (FAME and XXX
shall be collectively referred to herein as the "Assignor") and
CMX Productions, Inc. ("Assignee"), on the other hand.
RECITALS
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WHEREAS Assignor owns certain rights in and to that
certain motion picture project currently entitled, "Tournament of
Dreams" ("Project"), and rights to underlying material for the
Project, all as more fully set forth herein, and Assignor desires
to grant, convey, sell, assign, transfer and deliver to Assignee,
and Assignee desires to accept from Assignor, according to the
terms and subject to the conditions of this Agreement, all of
Assignor's right, title and interest in and to such projects.
NOW, THEREFORE, in consideration of the above
recitals and the mutual covenants and conditions contained
in this Agreement, the receipt and sufficiency of which
are hereby acknowledged, athe parties agree, intending to
be legally bound, as follows:
1. Assignment And Grant of Rights: Assignor hereby
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irrevocably grants, sells, assigns, conveys and sets over to
Assignee in perpetuity, throughout the world, all of Assignor's
right, title and interest of every kind and nature in and to the
Project, and any and all underlying material, life story rights,
titles, themes, characters, screenplays, stories, treatments, and
outlines related too any of such projects, and all translations,
adaptations, revisions, sequels and other versions thereof and any
other material of any kind pertaining or related to any of such
projects, whether now owned or hereafter acquired by Assignor
(collectively, the "Properties"), including, without limitation,
all of Assignor's rights to produce, distribute, exhibit, exploit
and advertise in any and all media now known or hereafter devised,
motion pictures based on the Properties and all copyrights and
copyright interests relating thereto (in the United States and its
possessions, and all foreign territories, whether statutory or
common law, and any renewals and extensions thereof) and any right
to receive revenue or other benefits from the Properties; and (ii)
each of the contracts, agreements, assignments, documents and
instruments entered into by Assignor that pertain to any of the
Properties, including, without limitation, those contracts,
agreements, assignments, documents and instruments made or entered
into in connection with the Project, and the results and proceeds
thereof (the "Assigned Agreements"), subject to such restrictions,
if any, on such rights as are contained in the Assigned Agreements
or any applicable and binding collective bargaining agreements.
2. General Public Rights: Nothing contained in this
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Agreement shall be construed as requiring Assignee to exercise or
exploit, or continue to exercise or exploit, any of the rights
granted hereunder. The rights herein granted are in addition to,
and this Agreement shall in no way limit, the rights with respect
to any of the Properties or the subject matter thereof which
Assignee may now or hereafter enjoy as a member of the general
public.
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3. Warranties: Except as expressly forth herein,
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Assignor represents and warrants that (a) Assignor has not
heretofore assigned, transferred, hypothecated, impaired or
otherwise disposed of any right, title or interest acquired by
Assignor in the Properties or the Assigned Agreements which would
materially and adversely affect the rights granted to Assignee
hereunder; (b) Assignor has the right to enter into and perform
this Agreement; and (c) to the best of Assignor's knowledge, there
are no claims or litigation pending or threatened with respect
thereto. Assignor makes no representation or warranty, express or
implied, other than the foregoing.
4. Assumption Of Obligations: Assignee hereby assumes
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and shall become responsible for, and shall hereafter pay, perform
and discharge, as and when due, all of the obligations and
liabilities of Assignor accruing under the Assigned Agreements and
under any applicable collective bargaining agreements commencing on
the date of execution here of.
5. Indemnification: Assignor will indemnify Assignee
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against any liability, loss, damage, cost or expense (including
reasonable outside attorneys' fees) incurred by reason of any
third party claim arising out of the breach by Assignor of any
of its representations, warranties or agreements herein. Assignee
will indemnify Assignor against any liability, loss, damage,
cost or expense (including reasonable outside attorneys' fees)
incurred by reason of any third party claim arising out of (i) the
breach by Assignee of any of its representations, warranties or
agreements herein or (ii) the developments, production, distribution
or other exploitation of any motion pictures based on any of the
Properties or any element thereof.
6. Further Documents: At Assignee's request, Assignor
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will execute, acknowledge and deliver to Assignee any and all
additional documents consistent herewith Assignee may reasonably
deem necessary to evidence and effectuate any and all of
Assignee's rights under this Agreement and do all such things as
may be reasonably necessary to carry out and effectuate the
intents and purposes of this Agreement. Assignor hereby
irrevocably appoints Assignee as attorney-in-fact with full power
to execute, acknowledge, deliver and record in the U.S. Copyright
Office or elsewhere any and all such documents which Assignor
fails to execute, acknowledge and deliver after a reasonable
opportunity to review with counsel and negotiate. The
appointment shall be a power coupled with an interest. Assignee
will provide Assignor with copies of any documents so executed.
7. Remedies: All rights granted and agreed to be
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granted to Assignee under this Agreement shall be irrevocably
vested in Assignee in perpetuity (including without limitation
for the full term of copyright protection everywhere in the
world and any and all renewals, extensions and revivals thereof).
8. Assignment: Assignee shall have the right to
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assign any or all of its rights under this Agreement to any
person or entity; provided, however, that such third party
assumes all of Assignee's obligations in writing. This
Agreement shall be binding up on and shall inure to the benefit
of the parties hereto and their respective heirs, executors,
administrators, trustees, successors and assigns.
Int. /s/ Int. /s/
9. Miscellaneous:
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(a) Entire Agreement: Except as herein expressly
provided, this Agreement cancels and supersedes all prior
negotiations and undertakings relating to the Property and
contains all terms and conditions pertaining to the subject
hereof. If there is any conflict between any provision of this
Agreement and any present or future statute, law, ordinance,
regulation or collective bargaining agreement the latter shall
prevail; provided, that the provision hereof so affected shall
be limited only to the extent necessary and no other provision
shall be affected.
(b) Notices: All written notices which either party
hereto is required or may desire to give to the other shall be
given by delivering or mailing the same to the other at the
address shown on the signature page hereof, or at such other
address as may be designated in writing in a notice to the
other given as aforesaid. The date of personal delivery or
three days after mailing shall be deemed the date of service
of such notice or payment, unless otherwise specified herein.
(c) No Injunctive Relief: Assignor's sole and exclusive
remedy for Assignee's breach of this Agreement or any term
hereof shall be an action for damages, and Assignor hereby
irrevocably waives any right to seek and/or obtain rescission
and/or and/or equitable and/or injunctive relief.
(d) Governing Law: This Agreement shall be governed and
construed in accordance with the laws of the State of
California applicable to contracts entered into and fully
performed therein. Only the California courts (state and
federal) shall have jurisdiction over controversies regarding
this Agreement; any proceeding involving such a controversy
shall be brought in those courts, in Los Angeles County, and
not elsewhere. Any process in such proceeding may be served
by, among other methods, delivering it or mailing it, by
registered or certified mail, directed to, as applicable,
Assignor's or Assignee's address as designated in this
Agreement. Any such delivery or mail service shall have the
same effect as personal service within the State of
California.
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10. Addendum to Agreement: This Agreement shall be
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subject to the Addendum attached hereto, and incorporated by
reference herein, and all the terms and conditions specified
therein. The undersigned have read the Addendum, and by their
s ignatures below indicate their complete understanding thereof
and their agreement thereto.
In Witness Whereof, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
FILM AND MIRACLE ENTERTAINMENT, INC.
("Assignor"):
By: Xxxxxxxx Xxxxxx (Sig.)
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Name: Xxxxxxxx Xxxxxx
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Title: Secretary/ Director/ VP Finance
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Address: 0000 Xxxxxxxx Xxxxxxxxx #0000
Xxx Xxxxxxx, Xx 00000
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Tel: 000-000-0000
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Fax: 000-000-0000
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TODI, INC.
("Assignor"):
By: Xxx Xxxxxx (Sig.)
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Name: Xxx Xxxxxx
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Title: Secretary
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Address: 0000 Xxxxxxxx Xxxxxxxxx, #0000
Xxx Xxxxxxx, Xx 00000
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Tel: 000-000-0000
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Fax: 000-000-0000
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CMX PRODUCTIONS, INC.
("Assignee"):
By: Signature Illegible (Sig.)
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Name:
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Title: Chairman
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Address:
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Tel:
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Fax:
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Int. /s/ Int. /s/
ADDENDUM TO ASSIGNMENT AND ASSSUMPTION AGREEMENT
This Addendum Agreement is hereby made part of Assignment and
Assumption Agreement (the "Agreement") entered into as of
January 29, 2004, by and between Film and Miracle Entertainment,
Inc. and TODI, Inc., collectively referred to herein as
"Assignor," and CMX Productions, Inc. ("Assignee"). The
undersigned agree to, as follows:
1. Assignment and Assumption Agreement shall become
effective upon Assignee's deposit of $100,000 into a bank
account, to which Assignor is a signatory.
2. The $100,000 specified in paragraph 1 herein is to be
used for the predevelopment of the motion picture, entitled
"Blood and Bone."
3. Upon receipt of the first funding from the production
of "Blood and Bone," Assignor shall repay $100,000 to
Assignee.
4. Upon Assignees's receipt of the $100,000 repayment, all
rights specified in Assignment and Assumption Agreement
shall automatically revert back to Assignor, and the
assignment and the grant of rights set forth in paragraph 2
of the agreement shall be deemed nullified.
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Int. /s/ Int. /s/
