RESTRUCTURING AGREEMENT
This RESTRUCTURING AGREEMENT (this "Agreement") is made and entered
into as of October 1, 2007 by and among TRIMEDIA ENTERTAINMENT GROUP, INC., a
Delaware corporation (the "Company"), and the persons or entities executing this
agreement as a "Lender", as set forth on the signature page hereof (each a
"Lender" and collectively, "Lenders") and RUFFTOWN ENTERTAINMENT, INC. ("New
Entity").
RECITALS
WHEREAS, the Company has, through subsidiaries, operated an
entertainment business;
WHEREAS, VGB MEDIA, INC. has agreed to merge with a newly formed
subsidiary of the Company and conduct an entertainment business provided that
the Company restructures its business; and
WHEREAS, the Lenders have agreed to consent to the restructure of the
Company's existing operations as provided herein. In particular, (i) Lenders
will convert their indebtedness into equity; (ii) substantially all the assets
of the Company will be transferred to New Entity in which (A) the Company will
own equity providing a 19% economic interest and no voting rights other than
certain veto or approval rights plus an option granted hereby to acquire
additional non-voting equity and (B) the Lenders will own equity providing up to
a 81% economic interest represented by a new designated series of preferred
stock with a $4,800,000 liquidation preference and full voting power and (iii)
the New Entity will assume and indemnify the Company for all Company Liability
as defined in this Agreement.
NOW THEREFORE,
ARTICLE I. DEFINITIONS
1.1. DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings indicated below:
"Certificate of Incorporation" shall refer to the Certificate of
Incorporation and Certificate of Designations, Preferences and Rights of Series
A Convertible Preferred Stock of New Entity attached hereto as Exhibit "A" which
sets forth all the rights, powers, preferences and limitations of New Entity's
Preferred Stock and Common Stock.
"Company" shall include any Subsidiary of the Company ("Company
Subsidiary") all of which are listed on SCHEDULE 2.1.
"Company Contract" shall mean any agreement, contract, license,
indenture, lease, mortgage, license, plan, arrangement, commitment or instrument
including any note or other debt instrument (whether written or oral) to which
the Company is, or was, a party.
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"Company Liability" shall mean all Liabilities (other than Retained
Liabilities) arising out of, under or related to (A) activity of the Company
prior to the Closing; (B) any Company Contract; (C) any Prior Action; (D) the
action or occurrence involving the New Entity or the operation of the business
of New Entity, including, but not limited to, all actions taken or not taken by
New Entity after the Closing; (E) the transactions described in this Agreement;
or (F) Taxes arising prior to Closing or arising out of the transactions
contemplated hereby.
"Enforceability Exceptions" shall mean the extent to which
enforceability of an obligation may be limited by applicable bankruptcy,
insolvency, re-organization or other similar laws affecting the enforcement of
creditors' rights generally and by principles of equity regarding the
availability of remedies.
"Excluded Assets" shall mean all assets listed under the caption
"Excluded Assets" on Schedule 2.1 attached hereto.
"Liability" or "Liabilities" shall mean any indebtedness, liability,
claim, loss, damage, deficiency, obligation or responsibility, fixed or unfixed,
choate or inchoate, liquidated or unliquidated, secured or unsecured, accrued,
absolute, contingent or otherwise, whether or not of a kind required by
generally accepted accounting principles to be set forth on a financial
statement including the notes thereto.
"Prior Action" shall mean any claim, judicial or administrative action,
or proceeding, arbitration or investigation pending, or related to events
occurring or actions taken or not taken prior to the Closing involving the
Company and in any manner arising out of, under, or related to (A) activity or
occurrences prior to the Closing; (B) based on this Agreement or the
transactions consummated pursuant to this Agreement filed by any party who is
not a party to this Agreement; (C) based on a Company Contract or (D) on the
actions or inactions of New Entity.
"Person" shall mean any natural person, corporation, division of a
corporation, partnership, trust, joint venture, association, company, estate,
unincorporated organization or governmental entity.
"Retained Liabilities" shall mean the liabilities of the Company, and
only those liabilities of the Company, set forth in Schedule 2.1 attached hereto
and any Company Contract which is an Excluded Asset.
"Subsequent Action" shall mean any claim, judicial or administrative
action, or proceeding, arbitration or investigation involving the Company and in
any manner arising out of, under or related to any activity or occurrences
subsequent to the Closing.
"Subsidiary" shall mean to any Person in which a Person has a majority
interest or which is otherwise controlled, directly or indirectly, by such
Person.
"Transferred Assets" shall mean all of the assets of the Company, less
the "Excluded Assets", to be transferred to the New Entity as set forth and
further defined in Section 2.1 hereof.
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ARTICLE II. TRANSACTIONS
Subject to the terms and conditions herein, at the Closing:
2.1. TRANSFER OF ASSETS. Subject to the terms and conditions of this
Agreement, and except for the Excluded Assets, on the Closing Date, the Company
shall convey, transfer, assign and deliver to New Entity, and New Entity hereby
agrees to accept, all of the Company's legal, beneficial and other right, title
and interest in and to all of the Company's assets, properties, privileges,
claims of every kind and description (real, personal, and mixed, tangible and
intangible) wherever located, and whether or not reflected in the books and
records of the Company, including without limitation, all leases, leasehold
rights, improvements, fixtures, furniture, equipment, computers and computer
programs, inventory, materials, supplies, contracts and contract rights,
security deposits, prepaid items, vehicles, trademarks, patents, patent
applications, service marks, tradenames, copyrights, sales data, customer and
supplier information, goodwill and all books and records of the Company relating
thereto, including all Company Contracts as the same shall exist as of the
Closing Date (hereinafter referred to collectively as the "Transferred Assets").
Without limiting the generality of the foregoing, the Transferred Assets shall
include, without limitation, all of the assets and properties of the Company
listed under the caption "Transferred Assets" on Schedule 2.1 attached hereto.
Transferred Assets shall be conveyed, transferred, assigned and delivered to New
Entity with such title as the Company may have and such transfer shall be
subject to all existing liabilities, liens, claims, obligations and encumbrances
on such Transferred Assets.
2.2. ASSUMPTION OF LIABILITIES. New Entity shall assume and agree to
discharge, perform or be responsible for all Company Liabilities, except for the
Retained Liabilities and any Company Contract included as an Excluded Asset.
2.3. NEW ENTITY SECURITIES. New Entity shall issue to:
(a) the Company 1,900 shares of New Entity's Nonvoting Common
Stock representing a nineteen percent equity interest in the New Entity.
(b) the Lenders 3,100 shares of New Entity's Voting Common
Stock and 5,000 shares of New Entity's Series A Convertible Preferred Stock all
as set forth in Schedule 2.3.
2.4. OPTION TO COMPANY. The Company shall have an Option to acquire an
additional 3000 shares of New Entity's Nonvoting Common Stock at any time prior
to October 31, 2017 for a price of $ 3.30 per share or an aggregate of $9,900.
The option may be exercised from time to time upon written notice as provided
herein accompanied by payment. The certificate for shares shall be issued five
business days after notice
2.5. SATISFIED DEBT OF THE COMPANY. Lenders agree to cancel and forgive
that indebtedness owed to Lenders by the Company as listed in Schedule 2.4
("Satisfied Debt"). In exchange for cancellation and forgiveness of $460,000 of
the Satisfied Debt, the Company shall issue to the Lenders an aggregate of
46,000,000 shares of the Company's Common Stock as set forth on Schedule 2.4
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(the "Company Shares"). In exchange for cancellation and forgiveness of $250,000
of the Satisfied Debt, the Company shall transfer its full right, title and
interest to its 10% ownership interest in Battle Rap, LLC to the Lenders as set
forth on Schedule 2.4. In exchange for cancellation and forgiveness of the
remaining Satisfied Debt, plus all accrued but unpaid interest thereon, the New
Entity shall issue to the Lenders 5,000 shares of Series A Stock, as set forth
on Schedule 2.4. Lenders shall sign a written agreement evidencing the
satisfaction of the Satisfied Debt (the "Satisfaction") in the form of Exhibit
"B-1" and shall deliver the originals of any notes or other evidence of the
Satisfied Debt to the Company.
2.6. RIGHT OF FIRST REFUSAL. As long as the Preference remains
unsatisfied each of the Lenders and their affiliates grants the Company the
right of first refusal to acquire or participate in any entertainment property
or project such person is developing or acquiring which, in the good faith
judgment of such person, is similar to the type of project or property of any
subsidiary of the Company being transferred from. This provision shall be
satisfied if the Company does not accept the terms of any proposal within 15
days of notice ( or within seven days of notice solely with respect to recording
artists) and the Company will have no rights with respect to such property or
project thereafter. The Company shall have no obligation to consider any such
proposal. The type of projects covered by this paragraph shall be further
limited by a writing which may be executed prior to closing as an amendment
hereto.
ARTICLE III. CLOSING DATE; DELIVERIES
3.1. CLOSING. The closing (the "Closing") of this Agreement, and the
transactions contemplated hereby shall occur simultaneously with the closing of
transactions contemplated by that certain Agreement and Plan of Merger by and
between the Company,TriMedia Acquisition Corp. and VGB Media, Inc. dated as of
this date (the "Merger Agreement") at the offices of Saul Ewing LLP, Centre
Square West, 1500 Market Street, 38th Floor, Philadelphia, Pennsylvania, or at
such other time or place as may be agreed by the parties (the "Closing Date").
3.2. DELIVERIES.
(a) The following shall be delivered to New Entity by the
Company:
(i) Stock certificates or other applicable
instruments evidencing full ownership of each of the Company Subsidiaries with
transfer documents duly executed;
(ii) All existing books, records, papers and
instruments of the Company of whatever nature and wherever located that relate
to the Transferred Assets or which are required or necessary in order for New
Entity to obtain title and control of the Transferred Assets;
(iii) Copies of resolutions of the Board of Directors
of the Company approving this Agreement and related transactions which
resolutions shall be duly certified by the Secretary of the Company;
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(iv) Such other instruments of conveyance, assignment
and transfer, in form and substance satisfactory to the parties, as may be
necessary or effective to vest in New Entity title to the Transferred Assets
including the assignment of Company Contracts which are included in the
Transferred Assets; and
(v) Executed copies, to the extent in the Company's
possession, of Company Contracts which are included in the Transferred Assets.
(b) The following shall be delivered to the Company by the
party indicated:
(i) New Entity shall deliver:
(A) Stock certificates duly executed for
4,900 shares of New Entity's Nonvoting Common Stock;
(B) An Assumption Agreement duly executed by
the New Entity in the form attached hereto as Exhibit "B-2" pursuant to which
New Entity shall unconditionally assume, and indemnify and hold the Company
harmless from and against all Company Liabilities; and
(C) Copies of resolutions of the Board of
Directors of the New Entity approving this Agreement and related transactions
which resolutions shall be duly certified by the Secretary of New Entity.
(ii) Lenders shall deliver:
(A) Notes and other obligations constituting
the Satisfied Debt marked satisfied;
(B) The Satisfaction duly executed by the
Lenders; and
(C) Copies of resolutions of the Board of
Directors or other governing body of any Lender which is an entity approving
this Agreement and related transactions which resolutions shall be duly
certified by the Secretary of such Lender.
(c) The following shall be delivered to Lenders by the party
indicated:
(i) New Entity shall deliver stock certificates duly
executed for 5,000 shares of New Entity's Series A Stock as set forth in
Schedule 2.3 and 100 shares of New Entity's Voting Common Stock all as set forth
in Schedule 2.3; and
(ii) The Company shall deliver stock certificates
duly executed for the Company Shares as set forth in Schedule 2.4.
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(d) Each of the parties may request the delivery by another
party of such other instruments, and documents as such party deems reasonably
necessary to consummate the transaction.
(e) All documents and instruments required hereunder to be
delivered by a party to another party at the Closing shall be delivered in form
and substance reasonably satisfactory to such party and their counsel.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF LENDERS
Each Lender, severally, and not jointly, represents and warrants to the
Company and New Entity with the knowledge and understanding that each of the
Company and New Entity is relying materially upon such representations and
warranties, that as of the date hereof and the Closing Date:
4.1. ORGANIZATION AND STANDING OF CERTAIN LENDERS. Each Lender which is
an entity duly organized, validly existing and in good standing under the laws
of the state of its formation or incorporation.
4.2. INVESTMENT INTENT. Lender is acquiring any Company Shares and
securities of the New Entity (the "Securities") to be issued and delivered
hereby for investment, for its own account, and not with a view to the
distribution of such Securities. In such connection, each Lender further
represents and warrants that they understand that the Company or New Entity is
issuing the Securities to such Lender in reliance upon an exemption from the
registration requirements pursuant to Section 5 of the Securities Act of 1933,
as amended (the "Act") and the rules and regulations thereunder. Each Lender
agrees that the Securities may not be sold, transferred, pledged, hypothecated,
assigned or otherwise disposed of by such Lender unless the Company or New
Entity shall have been supplied with evidence satisfactory to it and its counsel
that such transfer is not in violation of the Act. Furthermore, each Lender
understands that the certificates for the Securities shall bear an appropriate
restrictive legend to reflect the foregoing restrictions and that stop transfer
instructions will be placed against the Securities with respect thereto. Each
Lender consents to the placing of such legend on the certificates for the
Securities.
4.3. AUTHORITY. This Agreement and Satisfaction each will constitute,
when executed and delivered by the Lenders in accordance herewith, the valid and
binding obligations of each of the Lenders, enforceable in accordance with its
respective terms, subject to the Enforceability Exceptions and, (b) further with
respect to a Lender which is an entity the entity has all the requisite power
and authority to execute and delivery and perform its obligations under this
Agreement and all related transactions as provided hereunder and upon execution
and delivery, the Agreement is a valid.
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ARTICLE V. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to New Entity and Lenders as
follows on the date hereof and on the Closing Date with the knowledge and
understanding that such parties are relying materially upon such representations
and warranties:
5.1. ORGANIZATION AND GOOD STANDING. Except as noted on Schedule 5.1,
the Company is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware.
5.2. AUTHORITY. The Company has all requisite power and authority to
execute and enter into this Agreement and all other agreements and instruments
contemplated hereby to be executed and delivered by the Company (the "the
TriMedia Documents") and to perform its obligations hereunder and thereunder.
The execution, delivery and performance by the Company of this Agreement and the
TriMedia Documents and the consummation of the transactions contemplated by this
Agreement and the TriMedia Documents have been duly and validly authorized by
all necessary corporate action, or otherwise, by the Company and this Agreement
has been duly executed and delivered and is, and the TriMedia Documents will be,
when executed and delivered by the Company, legal, valid and binding agreements
of the Company, enforceable against the Company in accordance with their
respective terms subject to the Enforceability Exceptions.
5.3. SUBSIDIARIES. Except as set forth on Schedule 2.3, the Company does not
presently own or control any subsidiary.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF NEW ENTITY
New Entity represents and warrants to the Company as follows on the
date hereof and on the Closing Date with the knowledge and understanding that
the Company is relying materially upon such representations and warranties:
6.1. ORGANIZATION, GOOD STANDING. New Entity is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has full corporate power and authority to own the Transferred
Assets it and to carry on its business as such business.
6.2. SUBSIDIARIES. Prior to the Closing Date, New Entity does not own
any Subsidiaries.
6.3. AUTHORITY. New Entity has all requisite power and authority to
execute and enter into this Agreement and all other agreements and instruments
contemplated hereby to be executed and delivered by New Entity (the "New Entity
Documents") and to perform its obligations hereunder and thereunder. The
execution, delivery and performance by New Entity of this Agreement and the New
Entity Documents and the consummation of the transactions contemplated by this
Agreement and New Entity Documents have been duly and validly authorized by all
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necessary corporate action, or otherwise, by New Entity and this Agreement has
been duly executed and delivered and is, and the New Entity Documents will be,
when executed and delivered by New Entity, legal, valid and binding agreements
of New Entity, enforceable against New Entity in accordance with their
respective terms subject to the Enforceability Exceptions.
6.4. CAPITALIZATION OF NEW ENTITY. The authorized capital stock of the
New Entity, is as set forth in Schedule 6.4, the shares of common stock of the
New Entity that are issued and outstanding are duly authorized, validly issued
and outstanding, fully paid and non-assessable (not subject to further charge),
and were not issued in violation of the preemptive rights of any person. There
are no outstanding (a) options, warrants or rights to purchase or subscribe for
any equity securities, or other ownership interests of the New Entity, (b)
obligations of the New Entity whether absolute or contingent, to issue any
shares of equity securities or other ownership interests, (c) debt or equity
securities directly or indirectly convertible into any equity securities of the
New Entity or (d) any shareholder agreements, options, rights of first refusal
or other similar rights with respect to the capital stock of the New Entity to
which the New Entity is a party.
ARTICLE VII. INDEMNITY
7.1. NEW ENTITY. New Entity agrees to indemnify in full the Company and
the Company's officers, directors, employees, agents and stockholders who are
not Lenders or their affiliates (collectively, the "Company Indemnified
Parties") and hold them harmless against any loss, liability, deficiency,
damage, expense or cost (including reasonable legal expenses), whether or not
actually incurred or paid (collectively, "Losses"), which the Company
Indemnified Parties may suffer, sustain or become subject to, prior to the third
anniversary of the Closing as a result of (i) any Prior Action; (ii) the failure
to pay any Company Liability; (iii) the breach, inaccuracy or misrepresentation
in any of the representations and warranties of the Lenders or New Entity
contained in this Agreement or in any exhibits, schedules, certificates or other
documents delivered or to be delivered by or on behalf of the Indemnitors
pursuant to the terms of this Agreement or Assumption Agreement or Satisfaction
or otherwise referenced or incorporated in this Agreement (collectively, the
"Related Documents"), or (iv) any breach of, or failure to perform, any
agreement of the New Entity or Lenders contained in this Agreement or any of the
Related Documents(in addition to any losses arising from the failure to pay any
Liability).
7.2. COMPANY. The Company agrees to indemnify in full the New Entity
and the New Entity's officers, directors, employees, agents and stockholders
(collectively, the "New Entity Indemnified Parties") and hold them harmless
against any Losses, which the New Entity Indemnified Parties may suffer, sustain
or become subject to, prior to the third anniversary of the Closing as a result
of (i) any Subsequent Action; (ii) the failure to pay any Retained Liability
(iii) misrepresentation in any of the representations and warranties of the
Lenders contained in this Agreement or in any exhibits, schedules, certificates
or other documents delivered or to be delivered by or on behalf of the
Indemnitors pursuant to the terms of this Agreement or (iv) any breach of, or
failure to perform, any agreement of the Company contained in this Agreement (in
addition to any losses arising from the failure to pay any Retained Liability.
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7.3. METHOD OF ASSERTING CLAIMS.
(a) DEFINITIONS. As used in this Section 7.3, the following
terms shall have the definitions set forth below:
"Action" shall mean either a Prior Action or a Subsequent
Action.
"Indemnified Party" shall mean a persons who is one of the
New Entity Indemnified Parties or Company Indemnified Parties as the case may
be.
"Indemnitor" or "Indemnifying Party" shall mean either the
Company or the New Entity as the case may be.
(b) METHOD OF ASSERTING CLAIMS RELATING TO ACTIONS. In the
event that any Indemnified Party is made a defendant in or party to or subject
to an Action, the Indemnified Party shall give the Indemnitor prompt notice
thereof. The failure to give such notice shall not affect any Indemnified
Party's ability to seek reimbursement unless such failure has materially and
adversely affected the Indemnifying Party's ability to defend successfully a
claim. The Indemnifying Party shall be entitled to contest and defend such
claim; provided, that the Indemnitor (i) has a reasonable basis for concluding
that such defense may be successful and (ii) diligently contests and defends
such claim. Notice of the intention so to contest and defend shall be given by
the Indemnitor to the Indemnified Party within 20 business days after notice of
such claim (but, in all events, at least five business days prior to the date
that an answer to such claim is due to be filed or other action required to be
taken). Such contest and defense shall be conducted by reputable attorneys
employed by the Indemnitor. The Indemnified Party shall be entitled at any time,
at its own cost and expense (which expense shall not constitute a Loss unless
the Indemnified Party reasonably determines that the Indemnitor are not
adequately representing or, because of a conflict of interest, may not
adequately represent, any interests of the Indemnified Parties, and only to the
extent that such expenses are reasonable), to participate in such contest and
defense and to be represented by attorneys of its or their own choosing. If the
Indemnified Party elects to participate in such defense, the Indemnitor will
cooperate with the Indemnified Party in the conduct of such defense. Neither
Party may concede, settle or compromise any Action without the consent of the
other party, which consents will not be unreasonably withheld.
(c) METHOD OF ASSERTING OTHER CLAIMS. In the event any
Indemnified Party should have a claim against any Indemnifying Party that does
not involve an Action, the Indemnified Party shall deliver a notice of such
claim with reasonable promptness to the Indemnitor and such claim shall be paid
promptly.
ARTICLE VIII. COVENANTS
8.1. PRESERVATION OF RECORDS. New Entity and the Company each covenant
that they will preserve and make reasonably available to the other party, its
attorneys and accountants, for six (6) years from and after the Closing Date and
during normal business hours, such of the books, records, files, correspondence,
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memoranda and other documents maintained prior to Closing (collectively, the
"Records") as the other party may reasonably require in connection with any
legitimate purpose, including, but not limited to, the preparation of tax
reports and returns and the preparation of financial statements. After the sixth
anniversary of Closing Date, neither New Entity nor the Company shall dispose of
any of the Records, without giving the other party at least thirty (30) days'
prior notice of its intention to do so. Such other party may, by written notice,
request that such Records be retained and such Records shall be transferred to
the other party at such other party's expense.
8.2. MAINTENANCE AND EXAMINATION OF RECORDS OF NEW ENTITY. New Entity
shall keep and maintain in the regular course of its business, in accordance
with generally accepted accounting principles, complete and accurate books and
records relating to its business after closing utilizing a calendar year as the
fiscal year. New Entity shall preserve and keep available all such books and
records for at least six (6) years thereafter and the Company during such period
shall have the right, at its cost and expense and during regular business hours,
to inspect and copy and make extracts from said books and records.
8.3. FINANCIAL STATEMENTS OF NEW ENTITY. As long as the Company owns
the Nonvoting Common Stock of New Entity, New Entity shall provide the Company
with (A) financial Statements of New Entity for each calendar year on or prior
to March 1 of the following year, which shall be audited at the Company's
election, and (B) unaudited financial statements for each quarter other than the
last quarter of a year delivered thirty days after the end of each quarter which
shall be reviewed at the Company's election. Such financial statement shall
consist of a balance sheet, income statement, cash flow and stockholder equity
statements. The Company agrees that it shall pay all fees and expenses related
to the preparation of and any audit or review of such financial statements
requested by it which shall be performed by accountants and independent
certified public accountants of its choosing. Notwithstanding the foregoing, New
Entity shall provide to the Company copies of its tax returns and any financial
statements which New Entity provides to any third party. It is understood that
the company is a public company and may report certain financial information
relating to New Entity to the Securities and Exchange Commission as required by
law.
8.4. FURTHER ASSURANCES. Whether prior to or subsequent to the Closing
each of the parties will take such steps and execute such additional documents
which may be reasonably necessary to authorize transfer and assignment of the
Transferred Assets, the issuance of the Securities, the Assumption and
Satisfaction and otherwise to effectuate the purposes of this Agreement.
ARTICLE IX. MISCELLANEOUS
9.1. PRESS RELEASES AND ANNOUNCEMENTS. Prior to the Closing Date, no
party hereto shall issue any press release (or make any other public
announcement) related to this Agreement or the transactions contemplated hereby
or make any announcement to the employees, customers or suppliers of the Company
without prior written approval of the other party hereto, except as may be
necessary, in the opinion of counsel to the party seeking to make disclosure, to
comply with the requirements of this Agreement, or applicable law. If any such
press release or public announcement is so required, the party making such
disclosure shall consult with the other party prior to making such disclosure,
and the parties shall use all reasonable efforts, acting in good faith, to agree
upon a text for such disclosure which is satisfactory to both parties.
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9.2. AMENDMENT AND WAIVER. This Agreement may not be amended or waived
except in a writing executed by the party against which such amendment or waiver
is sought to be enforced. No course of dealing between or among any persons
having any interest in this Agreement will be deemed effective to modify or
amend any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
9.3. NOTICES. All notices, demands and other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when personally delivered or three
days after being mailed, if mailed by first class mail, return receipt
requested, or when receipt is acknowledged, if sent by facsimile, telecopy or
other electronic transmission device. Notices, demands and communications to New
Entity, the Lenders or the Company will, unless another address is specified in
writing, be sent to the address indicated below:
To Lenders: as set forth after their signature
With a copy to:
To the New Entity: Rufftown Entertainment, Inc.
333 East Lancaster Avenue
Suite 411
Wynnewood, PA 19096
Attention: Chief Executive Officer
With a copy to: Saul Ewing LLP
1500 Market Street
Centre Square West - 38th Floor
Philadelphia, PA 19102
Attention: Craig F. Zappetti, Esquire
To the Company: c/o Aspatuck Holdings Ltd.
115 East 57th Street, 11th Floor
New York, NY 10022
With a copy to: Michael DiGiovanna
212 Carnegie Center
Suite 206
Princeton, New Jersey 08540
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9.4. ASSIGNMENT. This Agreement and all of the provisions hereof will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, except that neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned by any
party hereto without the prior written consent of the other parties hereto.
9.5. SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
9.6. COMPLETE AGREEMENT This Agreement, and the Related Agreements and
other exhibits hereto, the Disclosure Schedule and the other documents referred
to herein contain the complete agreement between the parties and supersede any
prior understandings, agreements or representations by or between the parties,
written or oral, which may have related to the subject matter hereof in any way.
9.7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
instrument.
9.8. GOVERNING LAW. The internal law, without regard for conflicts of
laws principles, of the State of New York will govern all questions concerning
the construction, validity and interpretation of this Agreement and the
performance of the obligations imposed by this Agreement.
9.9. SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS.
Notwithstanding any investigation of any of the parties hereto, all
representations and warranties made by the parties in this Agreement or in any
exhibit, schedule, certificate, writing, filing, or other instrument made or
delivered in connection herewith shall survive the execution and delivery hereof
and shall remain in full force and effect for a period of six (6) months from
and after the date of this Agreement.
9.10. NO BROKER. Each party to this Agreement represents to the other
party that it has not incurred and will not incur any liability for brokerage
fees, finders' fees or agents' commissions in connection with this Agreement and
the transactions contemplated hereby, and agrees that it will indemnify and hold
harmless the other party against any claim for brokerage and finders' fees or
agents' commissions incurred by it in connection with the negotiation or
consummation of the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
TRIMEDIA ENTERTAINMENT GROUP, INC.
By:______S//________________________
Name:
Title:
RUFFTOWN ENTERTAINMENT, INC.
By: _______S//_____________________
Name:
Title:
LENDERS
1025 INVESTMENTS, INC.
By: _____s//_______________________
Name:
Title:
IL RESOURCES, INC.
By:____S//__________________________
Name:
Title:
________S//_________________________
Christopher Schwartz
-13-
SPH INVESTMENTS
By:_____S//_________________________
Name:
Title:
CAPITAL GROWTH INVESTMENTS
By:_____S//_________________________
Name:
Title:
-14-
EXHIBIT A
CERTIFICATE OF INCORPORATION OF NEW ENTITY
-15-
EXHIBIT B-1
FORM OF SATISFACTION AGREEMENT
-16-
EXHIBIT B-2
FORM OF ASSUMPTION AGREEMENT
-17-
EXHIBIT C
DISCLOSURE SCHEDULES
OMITTED
-18-