night_10k-ex1004.htm








Exhibit 10.4


 




 


ASSIGNMENT AND ASSUMPTION AGREEMENT







This Assignment and Assumption Agreement (this “Assignment Agreement”) is executed as of February 27, 2012 (the “Closing Date”) by and among Night Culture, Inc., a Texas corporation (“Assignor”), NightCulture, Inc., a Nevada corporation (formerly known as XXX Acquisition Corp.) (“Assignee”), Calm Seas Capital, LLC, a Nevada limited liability company (the “Investor”) and the other independent, participating investors named on the signature pages hereto (collectively, the “Other Investors”).







RECITALS:







A.  On March 8, 2011, Assignor entered into a Memorandum of Understanding with the Investor (the “Initial MOU”), a copy of which is annexed hereto as Exhibit 1, which was supplemented by a Memorandum of Understanding that Assignor and the Investor entered into on June 13, 2011 (the “Supplemental MOU”; and together with the Initial MOU, the “MOU”), a copy of which is annexed hereto as Exhibit 2, pursuant to which the Investor agreed to providing financing to Assignor in the form of (i) a bridge investment of at least $200,000, (ii) advances for the payment of legal fees and costs in acquiring the Assignee in a shell merger transaction and establishing a trading market for the Assignees common stock and (iii) an equity line of credit in the amount of $1,000,000 (the “Equity Line”).







B.  Pursuant to the MOU, Investor and the Other Investors have already purchased from Assignor an aggregate of $480,818 in principal amount of two year convertible debentures (the “Debentures”), which are listed on Schedule I hereto, along with warrants exercisable for an aggregate of 24,040,900 shares of Assignor’s common stock (the “Warrants”), which are listed on Schedule I hereto.







D.  The Investor and the Other Investors desire that the Investor effect the Equity Line through Assignee, which is a public company that has its common stock registered under the Securities Exchange Act of 1934 and such stock is eligible for quotation on the OTC Bulletin Board.







NOW, THEREFORE, subject to the mutual covenants and agreements set forth below in the Assignment Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee, the Investor and the Other Investors agree as follows:




 


1.  Assignment.  Assignor hereby assigns and transfers all of its right, title and interest in and to the Debentures, Warrants and the MOU (including, without limitation, the Equity Line) to Assignee.







2.  Assumption.  Assignee hereby assumes all of the obligations and liabilities of the Assignor pursuant to the Debentures, Warrants and the MOU (including, without limitation, the Equity Line) and agrees to pay, perform and discharge, when due, such obligations and liabilities under the Debentures, Warrants and the MOU.






  





  











  








3.  Consent to Assignment.  Each of the Investor and each Other Investor hereby consents to the assignment of the Debentures, Warrants and the MOU (including, without limitation, the Equity Line) and shall look solely to the Assignee for the payment, performance and discharge of the Debentures, Warrants and the MOU.  Each of the Investor and each Other Investor hereby releases and discharges Assignor from any and all liability in respect of the Securities.







4.  This Agreement shall be binding upon and shall inure solely to the benefit of the Assignor, Assignee, the Investor and the Other Investors and their respective successors and assigns.







5.  This Agreement shall be governed by and construed in accordance with the internal laws of the State of Nevada, without regard to any applicable principles of conflicts of law.







6.  This Assignment Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall constitute a single agreement.







7.  This Assignment Agreement shall not be amended, waived or supplemented except in a writing signed by the Assignor, the Assignee, the Investor and the Other Investors.







[Signatures appear on the next page]












 
















  





  











  













IN WITNESS WHEREOF, each of the parties hereto has caused this Assignment Agreement to be executed as of the date first written above.








	  	
ASSIGNOR:


	  	  
	  	
NIGHT CULTURE, INC.


	  	  
	  	  
	  	  
	  	
By:  /s/ Michael Long


	  	
Name: Michael Long


	  	
Title: President


	  	  
	  	  
	  	
ASSIGNEE:


	  	  
	  	
NIGHTCULTURE, INC.


	
 

	  
	  	  
	  	
By:   /s/ Michael Long


	  	
Name:  Michael Long


	  	
Title:  Chief Executive Officer


	  	  
	  	  
	  	
INVESTOR:


	  	  
	  	
CALM SEAS CAPITAL, LLC


	  	  
	  	  
	  	  
	  	
By:   /s/ Michael McCarthy


	  	
Name:  Michael McCarthy


	  	
Title:


	  	  














  





  











  














	  	
OTHER INVESTORS:


	  	  
	  	
LFG CAPITAL CORP.


	  	  
	  	  
	  	  
	  	
By:   /s/


	  	
Name:


	  	
Title:


	  	  
	  	  
	  	
SPIDER INVESTMENTS, LLC


	  	  
	  	  
	  	  
	  	
By:   /s/


	  	
Name:


	  	
Title:












































































  





  











  













SCHEDULE 1 – DEBENTURES AND WARRANTS








	
DEBENTURES


	
Name of Holder

	  	
Debenture


Number

	  	
Principal


Amount

	  	
Due Date


	
Calm Seas Capital LLC

	  	
NC 2011-1

	  	
$10,000

	  	
03/08/13


	
Calm Seas Capital LLC

	  	
NC 2011-2

	  	
$10,000

	  	
03/08/13


	
Calm Seas Capital LLC

	  	
NC 2011-3

	  	
$10,000

	  	
03/08/13


	
Calm Seas Capital LLC

	  	
NC 2011-4

	  	
$10,000

	  	
03/08/13


	
Calm Seas Capital LLC

	  	
NC 2011-5

	  	
$10,000

	  	
03/08/13


	
Calm Seas Capital LLC

	  	
NC 2011-6

	  	
$10,000

	  	
03/08/13


	
Calm Seas Capital LLC

	  	
NC 2011-7

	  	
$10,000

	  	
03/08/13


	
Calm Seas Capital LLC

	  	
NC 2011-8

	  	
$5,000

	  	
03/08/13


	
Calm Seas Capital LLC

	  	
NC 2011-9

	  	
$5,000

	  	
03/09/13


	
Calm Seas Capital LLC

	  	
NC 2011-10

	  	
$10,000

	  	
03/09/13


	
Calm Seas Capital LLC

	  	
NC 2011-11

	  	
$10,000

	  	
03/09/13


	
Calm Seas Capital LLC

	  	
NC 2011-12

	  	
$10,000

	  	
03/09/13


	
Calm Seas Capital LLC

	  	
NC 2011-13

	  	
$10,000

	  	
03/09/13


	
Calm Seas Capital LLC

	  	
NC 2011-14

	  	
$10,000

	  	
03/09/13


	
Calm Seas Capital LLC

	  	
NC 2011-15

	  	
$10,000

	  	
03/09/13


	
Calm Seas Capital LLC

	  	
NC 2011-16

	  	
$10,000

	  	
03/09/13


	
Calm Seas Capital LLC

	  	
NC 2011-17

	  	
$10,000

	  	
06/15/13


	
Calm Seas Capital LLC

	  	
NC 2011-18

	  	
$10,000

	  	
06/15/13


	
Calm Seas Capital LLC

	  	
NC 2011-19

	  	
$10,000

	  	
06/15/13


	
Calm Seas Capital LLC

	  	
NC 2011-20

	  	
$10,000

	  	
06/15/13


	
Calm Seas Capital LLC

	  	
NC 2011-21

	  	
$10,000

	  	
06/15/13


	
Calm Seas Capital LLC

	  	
NC 2011-22

	  	
$10,000

	  	
06/15/13


	
Calm Seas Capital LLC

	  	
NC 2011-23

	  	
$10,000

	  	
06/15/13


	
Calm Seas Capital LLC

	  	
NC 2011-24

	  	
$10,000

	  	
06/15/13


	
Calm Seas Capital LLC

	  	
NC 2011-25

	  	
$10,000

	  	
06/15/13


	
Calm Seas Capital LLC

	  	
NC 2011-26

	  	
$10,000

	  	
06/15/13


	
Spider Investments LLC

	  	
NC 2011-27

	  	
$10,000

	  	
06/14/2013


	
Spider Investments LLC

	  	
NC 2011-28

	  	
$10,000

	  	
06/14/2013


	
Spider Investments LLC

	  	
NC 2011-29

	  	
$10,000

	  	
06/14/2013


	
Spider Investments LLC

	  	
NC 2011-30

	  	
$10,000

	  	
06/14/2013


	
Spider Investments LLC

	  	
NC 2011-31

	  	
$10,000

	  	
06/14/2013


	
LFG Capital Corp.

	  	
NC 2011-32

	  	
$10,000

	  	
06/21/2013


	
LFG Capital Corp.

	  	
NC 2011-33

	  	
$10,000

	  	
06/21/2013


	
LFG Capital Corp.

	  	
NC 2011-34

	  	
$10,000

	  	
06/21/2013


	
LFG Capital Corp.

	  	
NC 2011-35

	  	
$10,000

	  	
06/21/2013


	
LFG Capital Corp.

	  	
NC 2011-36

	  	
$10,000

	  	
06/21/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-37

	  	
$10,000

	  	
12/20/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-38

	  	
$10,000

	  	
12/19/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-39

	  	
$10,000

	  	
12/30/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-40

	  	
$10,000

	  	
12/30/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-41

	  	
$10,000

	  	
12/30/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-42

	  	
$10,000

	  	
12/30/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-43

	  	
$10,000

	  	
12/30/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-44

	  	
$10,000

	  	
12/30/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-45

	  	
$10,000

	  	
12/30/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-46

	  	
$10,000

	  	
12/30/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-47

	  	
$10,000

	  	
12/30/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-48

	  	
$10,000

	  	
12/30/2013


	
Calm Seas Capital, LLC

	  	
NC 2011-49

	  	
$10,818

	  	
12/30/2013


	  	  	
TOTAL

	  	
$480,818.00

	  	  














  





  











  














	
WARRANTS


	
Name of Holder

	  	
Warrant


Number

	  	
Warrant Shares

	  	
Expiration Date


	
Calm Seas Capital LLC

	  	
NC-1

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-2

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-3

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-4

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-5

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-6

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-7

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-8

	  	
250,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-9

	  	
250,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-10

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-11

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-12

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-13

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-14

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-15

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-16

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-17

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-18

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-19

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-20

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-21

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-22

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-23

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-24

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-25

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital LLC

	  	
NC-26

	  	
500,000

	  	
12/31/14


	
Spider Investments LLC

	  	
NC-27

	  	
500,000

	  	
12/31/14


	
Spider Investments LLC

	  	
NC-28

	  	
500,000

	  	
12/31/14


	
Spider Investments LLC

	  	
NC-29

	  	
500,000

	  	
12/31/14


	
Spider Investments LLC

	  	
NC-30

	  	
500,000

	  	
12/31/14


	
Spider Investments LLC

	  	
NC-31

	  	
500,000

	  	
12/31/14


	
LFG Capital Corp.

	  	
NC-32

	  	
500,000

	  	
12/31/14


	
LFG Capital Corp.

	  	
NC-33

	  	
500,000

	  	
12/31/14


	
LFG Capital Corp.

	  	
NC-34

	  	
500,000

	  	
12/31/14


	
LFG Capital Corp.

	  	
NC-35

	  	
500,000

	  	
12/31/14


	
LFG Capital Corp.

	  	
NC-36

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-37

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-38

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-39

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-40

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-41

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-42

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-43

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-44

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-45

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-46

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-47

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-48

	  	
500,000

	  	
12/31/14


	
Calm Seas Capital, LLC

	  	
NC-49

	  	
540,900

	  	
12/31/14


	  	  	
TOTAL

	  	
24,040,900