INDEMNIFICATION AGREEMENT
TC X Calibur, Inc.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Re: Asset Purchase Agreement (the "Agreement") between TC
X Calibur, Inc., a Nevada corporation ("TCX" or the
"Company"); Berliner Holdings Limited, a corporation
organized under the Province of Ontario, Canada
("Berliner"); and Film Opticals of Canada 2004, a
corporation organized under the Province of Ontario,
Canada ("New Film Opticals"), that is wholly-owned by
Berliner, whereby New Film Opticals will acquire the
Company's wholly-owned subsidiary, Film Opticals
Investments Limited, a corporation organized under the
Province of Ontario, Canada ("Film Opticals"), and the
Company's film library consisting of 125 films, more
or less (the "Film Library"), and whereby Berliner and
New Film Opticals are required to execute and deliver
this Indemnification Agreement to the Company, and
Berliner is required to cancel to the treasury of the
Company 500,000 shares of common stock
Dear Ladies and Gentlemen:
For Ten Dollars ($10.00) and other good and valuable
consideration, including, but not limited to the execution and delivery of the
Agreement, the receipt and sufficiency of which are hereby acknowledged,
Berliner and New Film Opticals agrees to pay, compromise and/or settle and
indemnify and hold TCX harmless from and against any and all claims or past
liabilities of any type or nature whatsoever of TCX existing or arising before
the Closing of the Agreement, that are listed in Exhibit A attached hereto and
incorporated herein by reference and/or that relate to Film Opticals or the
Company's Film Library, including, but not limited to the current storage xxxx
of the Company respecting its Film Library.
1. Berliner and New Film Opticals hereby agree to pay,
compromise and/or settle and to indemnify and hold TCX, its officers,
directors, employees and agents and each person, if any, who controls them
within the meaning of Section 15 of the Securities Act of 1933, as amended
(the "Securities Act") or Section 20 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and, following the closing of the Agreement,
all of TCX's then officers, directors, employees and agents and each person,
if any, who then controls TCX within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, harmless from and against
any and all past claims or liabilities of any type or nature whatsoever of TCX
to the Closing of the Agreement and as listed on Exhibit A or referred to
herein, including all amounts due and owing to Berliner for advances or
otherwise that were incurred by TCX prior to the Closing.
2. In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant hereto (the "Indemnified
Party"), the Indemnified Party shall promptly notify the person against whom
such indemnity may be sought (the "Indemnifying Party") in writing. A delay
in giving notice shall only relieve the Indemnifying Party of liability to the
extent the Indemnifying Party suffers actual prejudice because of the delay.
The Indemnifying Party shall have the right, at its option and expense, to
participate in the defense of such a proceeding or claim, but not to control
the defense, negotiation or settlement thereof, which control shall at all
times rest with the Indemnified Party,The parties hereto agree to cooperate
fully with each other in connection with the defense, negotiation or
settlement of any such proceeding or claim.
3. The parties agree that all of the representations and
warranties contained herein shall survive the Closing and continue to be
binding regardless of any investigation made at any time by any party.
4. At any time, and from time to time, each party will execute
such additional instruments and take such action as may be reasonably
requested by the other party to carry out the intent and purposes of this
Agreement.
5. Any failure on the part of any party hereto to comply with
any of its obligations, Agreement or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
6. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent
by prepaid first-class registered or certified mail, return receipt requested,
as follows:
If to Berliner: 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
If to New Film Opticals: 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
If to Indemnified Party: 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
7. This Agreement constitutes the entire agreement between the
parties and supersedes and cancels any other agreement, representation or
communication, whether oral or written, between the parties hereto relating to
the transaction contemplated herein or the subject matter hereof.
8. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada, without giving
effect to principles of conflicts of laws.
9. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their successors and assigns.
10. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. In the event of default hereunder by either party, the non-defaulting
party in any proceeding to enforce this Agreement shall be entitled to recover
attorney's fees and costs and such other damages as may have been caused by
the default of the defaulting party.
BERLINER HOLDINGS LIMITED
Dated: 12/28/04 By /s/ Claus Voellmecke
Claus Voellmecke
FILM OPTICALS OF CANADA 2004
Dated: 12/28/04 By /s/ Claus Voellmecke
Claus Voellmecke
