[EXHIBIT 10.1.26]
FINANCING, CO-PRODUCTION & DISTRIBUTION AGREEMENT
"Played"
Dated: As of April l5th, 2005
1. Parties: Attica Films Limited ("AFL") or its nominee (which
nominee shall be subject to FAME's prior written approval)
and FILM AND MUSIC ENTERTAINMENT, INC. ("FAME").
2. Project: Feature length motion picture (the "Picture") based on
Story and Characters created by and a Step Outline written by ▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ entitled "Played" (registered with the WGA #WGA
988589) (the Bible") to be directed by ▇▇▇▇ ▇▇▇▇▇▇. AFL commenced
principal photography of the Film on 18 May 2003 and have shot fifty
seven (57) hours of footage on mini d.v.d. tapes (the "Existing
Footage") and desire to shoot additional footage on mini dvd, tapes
("New Footage"). The cast of the Picture Picture includes existing
performances by ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Byme,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇. AFL has
requested the FAME finance the New Footage and the completion of the
Picture and, subject to completion of its due diligence Fame has
agreed to do so.
(a) Subject to the completion of its due diligence to its
satisfaction FAME hereby agrees to provide the full amount approved by
FAME for the remaining completion of the Picture to be paid pursuant
to a mutually agreed cash flow schedule. FAME may provide a portion of
its funding obligation by providing goods and services required for
the production of the Picture. Such goods and services shall be part
of the budget.
(b) The Picture is contemplated to re-start production on or
about, but no later than ________, 2005.
(c) AFL' supervisory staff shall be in charge of the day-to-day
production of the Picture but shall act only after good faith
consultation with ▇▇▇▇ ▇▇▇▇ or such other person or persons as may be
designated by FAME. FAME shall have the right to have a representative
on the set at all times. AFL shall be responsible for any budget
overages except those resulting from FAME' s written request.
(d) AFL shall meaningfully consult with ▇▇▇▇ ▇▇▇▇ and/or ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ for FAME in regard to all key creative production
decisions and shall not act in such a manner as to arbitrarily
override any positions expressed by FAME.
3. Engagement: FAME shall have and is hereby granted perpetual, world
wide distribution rights in and to the Picture, and any materials
derived therefrom including rell:1akes, sequels, prequels and TV
Series, in any and all media now known or hereafter discovered
including without limitation all lending and rental rights in
connection with the Picture and AFL irrevocably confirm that the
consideration hereunder, including without limitation the sums
advanced for completing the Picture shall be deemed to include
equitable remuneration for the right to exploit all
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rental rights. FAME shall have the right to (a) distribute or
supervise the distribution, marketing, and advertising of the
Picture and to distribute or arrange for distribution of the
Picture throughout the world; (b) conduct the negotiations for
sale, sell and/or license the Picture worldwide to buyers,
licensees, agents, broadcasters and exhibitors (collectively
"Licensees"); and (c) handle or supervise the collection and
payment of revenues derived from exploitation of the Picture
worldwide.
4. The Picture: AFL shall be responsible for producing,
completing and delivering the final Picture. The completed Picture
shall be made available to FAME promptly after its completion but
in any case no later than March 31,2006 ("Delivery Date"), subject
to an extension of thirty (30) days resulting from events of force
majeure as defined herein. All editing shall be done subject to
FAME' s approval. The Picture will be a feature-length first-class
color motion picture and produced at a professional first-class
standard for motion pictures which are suitable for theatrical
release in the United States. The Picture shall have a running time
of not less than 90 nor more than 110 minutes, inclusive of main
and end titles and shall qualify for an MPAA rating no more than
restrictive than R. FAME shall have the right of final cut if
required by a 3rd party distributor.
5. Distribution. FAME agrees to use its good faith efforts to
license the Picture in a manner which will maximize the receipts
therefrom. FAME does not guarantee the performance of any agreement
into which it may enter with any licensee, sub-agent, sales Agent
or any person, firm or entity regarding the distribution or other
exploitation of the Picture, and shall not be liable or responsible
to AFL for failure to collect any amount becoming payable under the
terms of such contracts, but FAME will use commercially reasonable
efforts to enforce all such agreements and collect all sums due for
the joint benefit of FAME and AFL.
6. Marketing/Distribution Expenses: The final cost to finish
shall include a Foreign Marketing Fee to FAME of Thirty Five
Thousand Dollars ($35,000). FAME shall incur and shall advance
additional foreign marketing costs up to an additional Forty
Thousand Dollars ($40,000) (i.e., a total of Seventy Five Thousand
Dollars ($75,000) any marketing expenses in excess of Seventy Five
Thousand Dollars ($75,000) shall be mutually approved by the
parties. Marketing expenses shall be recovered as provided in
paragraph 7 below. The cost of supplying dubbing materials or other
materials for which FAME is not reimbursed by its Sub-Licensee,
shall be deemed included in approved Additional Expenses which
shall be recovered by FAME as provided below. U. S. theatrical
marketing costs, if any, shall be provided or arranged for by FAME
and recovered from Gross Receipts.
7. Distribution of Proceeds:
A. DISTRIBUTION. FAME shall arrange for the distribution of
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the Film. In doing so, all agreements for third party licensing of
the Picture shall be submitted to AFL for consultation. All net
proceeds from the distribution of the Picture as aforesaid shall be
paid to a segregated account administered by FAME. All net sums
derived from the exploitation of the Picture and/or any and all
rights therein, including merchandising, in all media now known or
hereafter devised, throughout the world, in perpetuity ("Gross
Receipts"), shall be deposited into that account and paid out in
the following order of priority:
a) To FAME for its Distribution Fee of Twenty Five Percent
(25%) of the world wide gross receipts from the first dollar.
b) FAME or its investor shall be reimbursed for all of its
contribution to the cost of the
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Picture (INCLUDING THE MARKETING FEE), print, advertising and other
distribution and marketing expenses including all transfer fees.
C) Residuals, talent deferrals, and third party participations,
if any, shall be disbursed promptly as due by the Collection Account as
required by contractual obligations. Deferrals, bonuses, third party
participations and other contingent payments, including without
limitation the director, producer and writer and AFL's prior
investment in the Picture, shall all be subject to prior written,
mutual, approval of AFL and FAME.
e) The balance of Receipts remaining after the deductions
provided for above shall be deemed Net Profits. Net Profits shall be
divided Fifty Percent (50%) to FAME and Fifty Percent (50%) to AFL.
8. Omitted
9. Credits: FAME shall each receive a credit as Presenter and ▇▇▇▇
▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ shall receive Producer or Executive
Producer credit, as determined by Fame, on screen on separate cards and
in all paid advertising, posters, labels and excluded ads in the same
size and prominence as the Director or any other Producer.
10. Statements/Audit Rights:
(a) Statements. Commencing upon first receipt of Gross Receipts
after delivery and continuing for the first eighteen (18) months
of the Term, within Thirty (30) days of the end of each month,
FAME (as appropriate) shall render to AFL a statement together
with any sums due thereunder, setting forth in reasonable detail,
all gross receipts received, by source (as well as the amount of
each contract and the balance yet to be paid), recoupable
expenses, interest earned and permitted fees (including showing
the cumulative amount of deferred and unpaid fees and expenses, if
any and any further breakdown of the distribution of such Gross
Receipts, and any other information reasonably requisite by AFL).
Statements shall be rendered quarterly thereafter.
(b) Copies of Third Party Accountings. FAME shall deliver to AFL
complete and accurate copies of all accountings and evidence of
payment received by or on behalf of FAME with respect to any
Distribution Agreement including, but not limited to, all third
party accounting statements, checks, wire transfer advice or other
remittance advice in any way relating to any distribution
agreements.
(c) Audit Rights. FAME will maintain at its principal place of
business in Los Angeles County, California, books and records
relative to Gross Receipts, sales, expenses and credits. Upon at
least Two weeks advance written notice, during normal business
hours and not so as to materially disrupt normal business
activities, FAME will permit AFL, or an independent certified
public accountant designated by such party, to make an
examination, at AFL's expense, and to audit, inspect and copy all
of the books and records of FAME solely relating to the Picture
for the purpose of verifying the amounts remittable to AFL,
pursuant to this Agreement and such other information relevant to
this Agreement. AFL may exercise such audit and inspection rights
not more frequently than once during each calendar year and any
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such audit shall be completed within a reasonable period of
time. If an audit results in a discrepancy of Five Percent (5%
) or more, then FAME shall pay the audit costs and interest on
any payments resulting from the audit.
(d) Gross Receipts. For purposes of this Agreement, Gross
Receipts shall be defined as any and all non-returnable sums
received by or credited to FAME or its subsidiaries or
affiliates in connection with the worldwide exploitation of
the Picture and any and all related rights in any and all
media now known or hereafter devised in perpetuity (including
any subsequent productions) except for those items usually not
included in gross receipts in regard to theatrical
distribution in the United States. Gross Receipts shall also
include any amounts derived from foreign tax subsidies,
rebates, benefits, grants or similar payments.
(e) Foreign Funds. With respect to any Gross Receipts
received in foreign funds, such funds shall be converted into
United States currency at the time of receipt. The rate of
exchange with respect to any such funds shall be the Wall
Street Journal rate of exchange prevailing and available to
Collection Agent at the time of receipt. If the transmission
of any Gross Receipts derived from the Picture from any
countries or territories to the Collection Agent is prevented
by embargo, blocked currency regulations or other
restrictions, then, if AFL so requests by giving FAME notice
to such effect, FAME shall (to the extent permitted under the
laws of any country wherein such monies are blocked or frozen)
cause AFL's share of Gross Receipts to which AFL would be
entitled upon transmission to the Collection Agent to be
deposited in AFL's name (or in such name as AFL may
designate) in any bank or other depository designated by AFL
in such territory or country or in another country not
blocked. Such deposit will, for the purposes of this
Agreement, be deemed payment to AFL of the amount deposited
(computed at the rate of exchange quoted in The Wall Street
Journal at the time such deposit is made) and FAME shall have
no further liability to AFL in connection with any monies so
deposited.
11. Indemnity: AFL shall defend, indemnify and hold harmless FAME
(including its officers, directors, partners, owners, shareholders
and employees) against any and all third party claims and expenses
(including, without limitation, reasonable attorneys' fees and
costs) and liabilities, arising out of any breach of any of AFL's
obligations, representations or warranties set forth in this
Agreement and/or from the development, production and/or
exploitation of the Picture.
AFL shall defend, indemnify and hold harmless FAME (including
its officers, directors, partners, owners, shareholders, employees
and Agents) against any and all third party claims and expenses
(including, without limitation, reasonable attorneys' fees and
costs) and liabilities, arising out of AFL's breach of any of its
obligations, representations or warranties set forth in this
Agreement other than those claims covered by FAME's indemnity
obligation.
12. Delivery Schedule: AFL shall deliver to FAME (or to Producer
for delivery to FAME) on or before the Delivery Date, all of the
delivery items set forth in Exhibit "A" attached hereto and
incorporated herein by this reference. The completion bond, if any,
shall provide for delivery of all such delivery items listed on
said Exhibit "A ". Delivery shall also include a laboratory access
letter, in the form of Exhibit "B" hereto, at a laboratory mutually
selected by AFL and FAME. While AFL has the primary obligation to
create and deliver such items to FAME, if such items are not so
created
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and delivered or if a Licensee subsequently rejects materials, prior
to creating any items on such list itself, FAME shall provide AFL
with written notice thereof and a twenty (20) day period to cure such
delivery defect. In the event AFL fails to cure any such delivery
defect within said twenty (20) day period, FAME shall have the right
to terminate this Agreement. In addition, to the extent FAME requires
creation of items which are not on such Exhibit "A" FAME $hall
provide AFL with thirty (30)days written notice. If any delivery
item required hereunder is to be delivered to FAME as and when
required or if a Licensee subsequently rejects materials and FAME
expends funds to so create such item to effect delivery to licensee
in accordance with the terms of this Agreement, FAME shall be
entitled to deduct and retain the out-of-pocket cost of creation of
such delivery item from the Gross Receipts of the sale to which it
relates. Delivery shall not be deemed completed in regard to any sub-
licensees until such licensees has accepted all materials. Any item
not objected to within the above time periods shall be deemed
approved.
FAME shall have the right to inspect and examine the materials
to be delivered hereunder and to which access is given and to be
given under this Agreement and to examine all the schedules and
documents to be delivered hereunder within thirty (30) days after
their delivery. Delivery shall be deemed complete for each item if
notice of defect is not received by AFL within 20 days of delivery to
FAME of each item or within Ten ( 10) days after AFL receives notice
from FAME that a Licensee subsequently rejects materials. .
All rights and Title to all materials delivered to FAME will
remain with FAME subject to FAME's rights hereunder. Further, all
materials created by AFL or under its direction or control, either
for promotion or delivery, including but not limited trailers, art
work and foreign language dubs, shall be deemed works made for hire
for FAME, and to the extent FAME has any ownership interest
whatsoever in such materials, AFL hereby assigns all such rights to
FAME. FAME will exercise due care in safeguarding all materials and
will assume all risk for theft or damage while the materials are in
FAME's possession. All auditable, actual direct out-of-pocket third
party costs associated with safeguarding and storing such materials,
or otherwise related thereto, shall be FAME's, but shall be
recoupable from Gross Receipts as distribution expenses.
13. Miscellaneous:
(a) Any disputes arising between the parties concerning this
Agreement, interpretation thereof or otherwise related hereto,
shall be settled by binding AFMA arbitration in Los Angeles,
California. Judgment on any award by the arbitrator against any
party may be entered in any court having jurisdiction thereof.
All costs of the arbitration, including outside attorneys' fees
and other out-of-pocket expenses of the parties, whether or not
such expenses might be deemed recoverable costs of litigation
under the California Rules of Court, may be awarded or
apportioned by the arbitrator to the party or parties that
prevail in the arbitration. Each party shall pay its own
attorneys' fees and expenses pending the allocation thereof in
the award to the prevailing party or parties.
(b) The parties hereto agree to execute and deliver such
further documents and instruments consistent herewith as may be
necessary or desirable to evidence, effectuate or confirm this
Agreement, and any of the terms and conditions hereof. If AFL
fails or refuses to execute or deliver to FAME any such
documents or instrument, within Five (5) business days after
delivery of any such document or instrument and notice
requesting the execution and delivery thereof, AFL hereby
appoints FAME (or FAME' s designee), as FAME for AFL,
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as its attorney-in-fact, with full power of substitution
and with the right, but not the obligation, to do any and
all acts necessary, to execute and deliver such instrument
or document, in the name and on behalf of AFL, which
appointment being coupled with an interest, is irrevocable.
(c) AFL hereby represents and warrants to FAME that: (i)
AFL has full authority to enter into and completely perform
this Agreement and to license the rights in and to the
Picture consistent with this Agreement; (ii) There are no
existing or threatened claims or litigation relating to the
Picture or any literary or other materials incorporated in
the Picture or upon which the Picture is based; (iii) AFL
has not sold, assigned, transferred or conveyed and will
not sell, assign, transfer or convey, to any party, any
right, title or interest in and to the Picture or any part
thereof or any underlying rights (including without
limitation the Screenplay) inconsistent with the terms of
this Agreement, and AFL has not and will not authorize any
other party during the Term hereof to exercise any right or
to take any action which will derogate from or compete with
the rights herein granted or purported to be granted to
FAME; (iv) AFL and its principles have complied with the
terms of any and all previous agreements pertaining to the
film and hereby agrees that any conflict or obligation
arising from any such contract shall be the sole
responsibility of AFL and AFL agrees to indemnify and hold
FAME harmless in of and to any such conflict and/or
obligation arising from such agreements. (v) No element of
the Picture, nor the exercise of any of the rights in the
Picture does or will: (a) defame any third party; or (b)
infringe any copyright, trademark, right of ideas, patent
or any other property right or other right of any third
party; (vi) AFL shall promptly discharge, when due, all
supplemental market, royalty or other residual payments and
third party participations; (vii) There are, and will be,
no claims, liens, encumbrances, limitations, restrictions
or rights of any nature in or to the rights in the Picture
inconsistent with this Agreement, other than liens in favor
of Guilds and the production lender; (viii) AFL will, by
the time of delivery to FAME, fully paid, satisfied, cured
or discharged at the time due or required all costs of
producing and completing the Picture and all claims and
rights with respect to the use, distribution, performance,
exhibition and exploitation of the Picture, and any music
contained therein and any other payments of any kind
required to be made in respect, or as a result, of any use
of the Picture; (ix) AFL owns and controls, or will by
delivery, without any limitations or restrictions
whatsoever, all motion picture performance,
synchronization, mechanical license and all other rights
granted hereunder in and to the Picture and all subsidiary
rights embodied therein and has obtained all necessary
licenses required for the exhibition, performance,
duplication, distribution, marketing and exploitation of
the Picture hereunder (including the music contained
therein) throughout the Territory and during the Term, for
any and all purposes licensed hereunder and by every means,
method and device now or hereafter known or required for
the full, complete and unlimited exercise and enjoyment by
each icensee of FAME of each and all of the rights herein
granted to it; and, (x) AFL agrees that it shall upon
request, furnish FAME with copies of all agreements and
documents upon which any of the warranties and
representations referred to herein are based.
(d) FAME represents and warrants to AFL and covenants, as
follows: (a) There are no existing or threatened claims or
litigation which would adversely affect or impair FAME's
ability to completely perform under this Agreement; (b) In
exercising the rights set forth herein, FAME shall not
alter or delete any logo or trademark or copyright notice
appearing on
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the Picture; (d) FAME will not exploit any reserved rights or any
other rights not specifically licensed to FAME in this Agreement,
nor will FAME exhibit or undertake any action which might impair
AFL's rights in and to the Picture or underlying properties.
(e) Notwithstanding anything contained herein to the contrary,
both parties shall be excused from any delay in performance hereof
for the period such delay is caused by any extraordinary cause
beyond its control, such as fire, earthquake, flood, epidemic,
accident, explosion, casualty, strike, lockout, labor controversy,
riot, civil disturbance, act of public enemy, embargo, war, act
of God, governmental ordinance or law, the issuance of any
executive or judicial order, any failure or delay in respect to
the electrical or sound equipment or apparatus, or by any
laboratory, any failure, without fault, to obtain material,
transportation, power, or any other essential thing required in
the conduct of its business or any similar causes. Each party
shall use reasonable diligence to avoid such delay or default and
to resume performance under this Agreement as promptly as possible
after such delay.
(f) AFL may, after Delivery is complete, assign, transfer or
sublicense any of its rights under this Agreement, but no such
assignment, transfer or sublicense will relieve AFL of its
obligations under this Agreement, unless to an entity which
acquires all or substantially all of AFL' s assets or to a single
film production entity owned or controlled by AFL or its
principal. FAME may assign the Agreement or any of its obligations
hereunder.
(g) In connection with the indemnities provided above, each party
agrees that, upon receipt or presentation of any claim or
notification of the institution of any action with respect to
which indemnification might be required hereunder, such party will
promptly notify the other party in writing thereof. With respect
to any such indemnification, the indemnitor shall have the right
to control the course and conduct of such defense. Any such
indemnitee shall have the right, in its discretion and at its sole
expense, to retain independent counsel and to participate in any
such defense. If an indemnitor fails to promptly assume the
defense of any claim, the indemnitee may do so and the indemnitor
shall promptly reimburse the indemnitee for all costs and expenses
(including but not limited to outside attorneys' fees and
disbursements) incurred in connection therewith as such are
incurred; in such case the indemnitee shall not settle or
compromise any claim without the consent of the indemnitor, such
consent not to be unreasonably withheld except in the case of an
adverse arbitration award that has not been paid within Thirty
(30) days of receipt.
(h) If FAME shall fail to perform any of its material
obligations hereunder, or if either party shall breach any
material representation, warranty or agreement contained herein,
AFL's remedy shall be limited to an action for damages, and in no
event shall the other parties have any right whatsoever to
terminate or rescind this Agreement, interfere in any way with the
distribution of the Picture and/or seek to enjoin the distribution
and exploitation of the Picture, nor shall the Rights acquired by
FAME under this Agreement be subject to revocation.
(i) AFL will arrange for FAME to have, prior to delivery of the
Picture, and shall thereafter maintain for a period of at least
five (5) years from delivery so-called "Errors and
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Omissions" policy of insurance with respect to the Picture, in form
and coverage to FAME's reasonable satisfaction, naming FAME and AFL
as additional insureds.
(k) All covenants, representations, and warranties contained herein
shall be true and correct at the time of the execution of this
Agreement and shall be deemed continuing.
(l) Unless and until the parties enter into a more formal long-form
agreement, if ever, this Agreement shall constitute a binding
agreement between the parties, shall supersede any prior or
contemporaneous agreements, and may not be waived or amended, except
by a written instrument signed by both parties.
(m) This Agreement shall be construed in accordance with the laws of
the State of California applicable to agreements executed and fully
performed herein and may be signed in counterparts.
(N) FAME shall have no obligation to fund the Picture until FAME has
approved the budget production schedules (including without
limitations) start date and cash flow schedules.
14. Notices: All notices shall be in writing and shall be sent to the
parties at the following:
If to FAME: If to AFL:
Film and Music Entertainment, Inc. Attica Films Limited
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ 16 ▇▇▇▇▇ Street
Los Angeles, CA 90036 ▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇.▇▇▇▇: Fax No.: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
With a courtesy copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
15. If either party shall be determined that the other is in breach
of a material obligation hereunder, it shall give written notice to
such other party and the offending party shall have a period of
Thirty (30) days to cure any such breach (such cure period shall be
Ten 10) business days in regard to breaches that claim only a
failure to pay money). In the event the offending party does not
cure such breach within such time, the; noticing party shall have
the right to terminate this agreement.
16. If FAME furnishes any of its own facilities, materials, services
or equipment, then the
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best available rate shall apply, similarly, Fame shall endeavor to use
reasonable good faith efforts to obtain best pricing for all such
print materials.
17. FAME will have the first opportunity to finance any Picture
produced by AFL or its principal owners and/or any of its subsidiaries
or affiliates for a of Three (3) years after the initial commercial
release of the Picture The terms for such funding shall be no less
favorable to FAME than the terms for the current Picture. Once this
Agreement is finalized it will be used as a template for any future
Picture financed by FAME in connection with the first look right.
18. AFL and FAME shall have mutual approval of any and all press
releases pertaining to their relationship. FAME shall use good faith
efforts to obtain AFL's prior approval of any press releases relating
to the production or distribution of the Picture. However, if AFL is
not available to approve or disapprove such press release within
Twenty Four (24) hours after its submission, such release shall, as
it pertains to the Picture as opposed to this Agreement, shall be
deemed approved.
This Agreement constitutes the entire understanding and agreement
between the parties with reference to the subject matter contained
herein and supersedes all prior agreements, written or oral. This
Agreement may not be modified or amended except by a subsequent
agreement in writing signed by both parties. If any provision of this
Agreement shall be found to be invalid or unenforceable, then such
event or action shall not invalidate or in any other way affect the
enforceability of this agreement or any other provision hereof. The
rights and remedies of either party shall be cumulative and the
exercise by either party of its rights under any provision of this
Agreement or its rights under the law shall not be deemed an election
of remedies. The waiver by any party of any of the terms or provisions
of this Agreement shall not be deemed a permanent waiver nor a waiver
of any other provision hereof. This Agreement may be executed in
counterparts.
ATTICA FILMS LIMITED
("AFL")
By: (sig.)
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Its:
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FILM AND MUSIC ENTERTAINMENT
("FAME"
By: (sig.)
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Its: Chairman
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EXHIBIT A
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SCHEDULE OF DELIVERY ITEMS
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AFL shall provide FAME with appropriate access or access letters to
all items reasonably necessary for Artist-View to make delivery of
each of the Film(s) as well as to service FAME/licensees, including
1. COMPOSITE ELEMENTS
- 35mm Final Answer Print -"IF AVAILABLE" Digital Component NTSC
Video Master Digital Component PAL Video Master
- 16:9 Format NTSC Video Master -"IF AVAILABLE" 16:9 Formal PAL
Video Master -"IF AVAILABLE" 35mm Lo-Con Prlnt- "IF AVAILABLE"
2. PICTURE ELEMENTS
- 35mm Original Negative -"IF A V AILABLE"
- 35mm Inter-positive (IIP) (As required) -"IF AVAILABLE" 35mm
Inter-negative (IIN) -"IF AVAILABLE"
- 35mm Textless Background Negative -"IF AVAILABLE"
- 35mm Textless Background Inter-positive (IP) -"IF AVAILABLE"
3. SOUND ELEMENTS
- 35mm Optical Sound track -..IF AVAILABLE"
- 35mm Magnetic Sound track Master. "IF AVAILABLE"
- 35mm Magnetic Sound track Music Master and Effects (M & E) Master
- "IF AVAILABLE" DA88 Stereo Comp. (Full Mix)
- DA88 Stereo. Fully Foleyed Music and Effects Dolby or THX License
4. DOCUMENTATION
- Lab Access Letter or Letters
- Certificate of Origin (notarized) Chain of Title
- Title Report
- Motion Picture Copyright Certificate
- Errors and Omissions (E&O) Insurance Certificate -"When required"
- Rating Certificate or Certificates (As shall be obtained In
accordance with Owner's requirements) AFL's Statement of Credit
Obligations
- AFL's Statement of Guild Obligations -"If Applicable" AFL's List
of Persons Rendering Services -
- AFL's Statement of Budget and Final Top Sheet -
- Dialogue/Continuity Script (Produced by the Distribution Company)
Final Shooting Script - Music Licenses
- Stock Footage Licenses -"If Applicable" MPAA Rating Certificate
5. MARKETING / PUBLICITY
- Unit Photography (100 color slides minimum)
- Publicity Materials (As available)
(g) 2000- 8 '/2 x 11 four color Sell Sheets with synopsis/photos
on back -" As Outlined in Par. 5(c)"
(a) 30 x 40 four color Mounted Poster -" As -Outlined in Par.
5(c)" (a) Betacam NTSC Sales Trailer -" As Outlined in Par. 5(c)"
(a) 4 x 5 Textless Transparency of Key Art -" As Outlined in
Par. 5(c)"
(a) 300 VHS screening cassettes of the trailer and feature with
visible timecode -" As Outlined in Par.5(c)"
6. FILM TRAILER ELEMENTS
- Trailer Dialogue/Continuity list (Produced by the Distribution
Company) -" As Outlined in Par. 5(c)"
- Trailer DA88/35mm (Same as for Feature) --" As Outlined in Par.
5(c)"
- Trailer Digital NTSC Video Master (with releasable music and
clearances) -"As Outlined in Par. 5(c)"
- Trailer Digital PAL Video Master (with releasable music and
clearances) -" As Outlined in Par. 5(c)"
- 35mm Negative Trims (As requested)
(initials) (sig.)
COPYRIGHT
MORTGAGE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS that for good and valuable
consideration, receipt of which is hereby acknowledged, the
undersigned, Attica Films Limited (the "Mortgagor"), does hereby
mortgage, assign, grant, convey and transfer for security to Fame
and Music Entertainment, Inc. ("Mortgagee") and its successors
and assigns, throughout the universe in perpetuity, all of
Mortgagor's right, title and interest of every kind and nature,
without limitation, in and to all copyrights and rights and
interests of every kind or nature in copyrights and works
protectable by copyright, whether now owned or hereafter created
or acquired, and all renewals and extensions thereof, all
accounts receivable related thereto and all other cash and non-
cash proceeds therefrom, including, without limitation, such
rights in that certain motion picture screenplay currently
entitled "Played" (the "Collateral") as well as any and all
motion pictures produced based on the Collateral.
Mortgagor agrees that if any person, firm of corporation
shall do or perform any acts which the Mortgagee believes to
constitute a copyright infringement of the Collateral or
constitute a plagiarism, or violate or infringe any rights of the
Mortgagor or the Mortgagee therein or if any person, firm or
corporation shall do or perform any acts which the Mortgagee
believes to constitute an unauthorized or unlawful distribution,
exhibition, or use thereof, then and in any such event, the
Mortgagee may and shall have the right to take such steps and
institute such suits or proceedings as the Mortgagee may deem
advisable or necessary to prevent such acts and conduct and to
secure damages and other relief by reason thereof, and to
generally take such steps as may be advisable or necessary or
proper for the full protection of the rights of the parties. The
Mortgagee may take such steps or institute such suits or
proceedings in its own name or in the names of the parties
jointly.
Mortgagor hereby irrevocably constitutes and appoints the
Mortgagee its lawful attorney-in-fact to do all acts and things
permitted or contemplated by the terms hereof and pursuant to the
Loan Agreement referred to below. Without limiting the generality
of the foregoing, the aforesaid conveyance and assignment
includes all prior choses-in-action, at law, in equity and
otherwise, the right to recover all damages and other sums, and
the right to other relief allowed or awarded at law, in equity,
by statute or otherwise.
FAME copyright mortgage
Mortgagor and Mortgagee have entered into that certain
Finance Agreement dated as of April 15, 2005 (the
"Agreement"), relating to the Collateral and this Copyright
Mortgage and Assignment is expressly made subject to the
terms and conditions contained in said Loan Agreement, as it
may be amended, amended and restated, modified,
supplemented, renewed or replaced. Upon payment of the sums
due under the Agreement all rights granted to Mortgagee
hereunder shall terminate, and promptly thereafter Mortgagee
shall file a termination of this Copyright Mortgage and
Assignment with the US Copyright Office and any other
governmental body in which this Copyright Mortgage and
Assignment has been filed or recorded.
Mortgagor
Attica Films Limited
By: (sig.)
-----------------------------
Executed in County of Los Angeles, State of California,
April 27, 2005
FAME copyright mortgage