Exhibit 10.5
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as
of March 3, 2004,
among Pyramid Media Group,
Inc., a Florida
corporation ("PMG"),
Allen
Jacobi, a resident
of the State of
Florida;
and Pyramid Records
International,
Inc., a
Florida corporation (the "Company").
Pyramid Media
Group, Inc., a Florida corporation having its
principal place of business at 11077
Biscayne Blvd., Suite
200, Miami, FL 33161
("PMG"), executed and delivered to Ark 21
Records, L.P., a
California Limited
Partnership, located at 14724 Ventura Blvd.
Penthouse Suite,
Sherman Oaks, CA
91403 ("Ark") a Distribution Agreement dated May 1, 2003 pursuant to
which the
PMG and Ark agreed to certain terms and
conditions relating to
the distribution
of Records (the "Distribution Agreement"). Allen Jacobi is the majority
owner
and controlling shareholder of PMG.
Pursuant to Section
14 of the Distribution Agreement, it is not
assignable to a third party except under
certain conditions.
The Company
is desirous of receiving an assignment of the
Distribution Agreement and assuming the
obligations thereunder with the consent
of Ark upon the terms and conditions
hereof.
This Assignment and Assumption Agreement is intended to transfer
the
all covenants, obligations, rights, title and interest in the distribution
Agreement from PMG into the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt
and
sufficiency of which are hereby
acknowledged by the
parties hereto, the parties
hereto hereby agree as follows:
SECTION 1. ASSIGNMENT AND ASSUMPTION.
(a) In consideration
of the Company's
assumption of all
covenants
and obligations under the Distribution
Agreement,
PMG does hereby
distribute,
assign, transfer and convey (the
"Assignment") to the Company, and the Company
hereby accepts from PMG, all of PMG's
right, title and interest in, to and under
the Distribution Agreement.
(b) In consideration
of the Assignment, the Company does hereby
assume and agrees to perform, comply with and discharge all of
the obligations,
duties and liabilities of PMG under the Distribution Agreement (the
"Obligations").
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SECTION 2. RIGHT OF ENDORSEMENT.
PMG hereby constitutes
and appoints the Company and its successors and
assigns the true and lawful attorney of
PMG, with full power of substitution, in
the name of the Company, or in the name of
PMG, on behalf of and for the benefit
of the Company, (a) to collect all items
being sold,
transferred, conveyed
and
assigned to the Company as provided herein,
(b) to endorse,
without recourse,
checks, notes and other instruments
constituting or relating to the Distribution
Agreement, (c) to institute and prosecute all
proceedings which the Company may
deem proper in order to collect,
assert or enforce any
claim, right or title of
any kind in or to the Distribution
Agreement,
(d) to defend and
compromise any
and all actions, suits or proceedings in respect of
the Distribution
Agreement
and (e) to do all such acts and things in
relation thereto as the Company may
deem advisable. The foregoing powers are coupled with an
interest and shall be
irrevocable by PMG, directly or indirectly,
in any manner or for any reason.
SECTION 3. CONSIDERATION.
The Company shall pay PMG the consideration set forth in Amendment to
this Assignment and Assumption Agreement
between the Company and PMG.
SECTION 4. FURTHER COVENANTS.
(a) Each of the
parties hereto agrees that it will, at its sole
expense, promptly do execute, acknowledge and deliver, and cause to be done,
executed, acknowledged and delivered, all such further acts, deeds,
certificates, assignments, transfers, conveyances, affidavits, powers of
attorney, assurances and other documents as
may be reasonably
requested by the
other party hereto for better assigning, transferring, granting, conveying,
assuring and conferring right, title and interest to the Company in the
Distribution Agreement.
(b) PMG hereby
represents and warrants that the Assignment hereby to
the Company does not require the consent of any other party, and that this
Assignment will be valid and binding upon
all parties hereto simultaneously with
the execution of this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE PMG.
PMG hereby represents and warrants to the Company as follows:
(i) such party has the
requisite power and authority to
execute and
deliver this Agreement and perform its obligations
thereunder;
(ii) the execution and delivery by such party of this
Agreement and
the performance by such party of its obligations
hereunder have been duly authorized by all requisite action on the
part
of such party;
(iii) this
Agreement has been duly executed and delivered by
such party;
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(iv) this Agreement is the legal, valid and binding
obligation of such party, enforceable against such party in
accordance
with its terms, except
as enforcement
may be limited by
bankruptcy,
insolvency,
reorganization or similar laws affecting creditors' rights
generally;
(v) the execution and delivery by such party of this
Agreement and
the performance by such party of its obligations
hereunder do not (i)
violate any provision of the certificate of
incorporation, bylaws
or similar organizational documents (if any) of
such party,
(ii) violate or cause a default
under the Distribution
Agreement or any
other material agreement of such party, or (ii)
violate any provision
of any federal, state or local law, statute,
ordinance, rule or regulation applicable to such party or its
assets;
(vi) there is no litigation pending or overtly threatened in
writing against
such party which questions the right, power or
authority of such party to enter into and deliver this Agreement
and to
perform its obligations hereunder;
(vii) the execution and delivery by such party of this
Agreement and
the performance by such party of its obligations
hereunder do not require the consent or approval of, notice to, filing
with, or other action by, any governmental authority, other than such
of the foregoing as
have been made or obtained on or prior to the date
hereof;
(viii) such party has
not assigned,
pledged or
otherwise
transferred any of its
right, title, or interest in, or to, the
Distribution Agreement to any other person or entity;
(ix) there are no claims, liens or encumbrances against
the
Distribution Agreement of any kind or nature;
(x) the Distribution
Agreement is in full force and effect,
legally binding and existing agreement of PMG;
(xi) PMG is not in breach of any term, condition, covenant
or obligation of the Distribution Agreement; and
(x
