EXHIBIT 10.15
AMENDED AND RESTATED
PROGRAM LICENSE AGREEMENT
DATED AS OF JANUARY 1, 2001
This Program License Agreement shall serve to amend and restate that
certain Program License Agreement between Hallmark Entertainment Distribution,
LLC ("HED" or "Licensor") and Crown Media United States, LLC (formerly known as
Odyssey Holdings L.L.C.) ("Licensee") dated as of November 13, 1998 in
connection with Licensee's acquiring from HED certain exhibition rights to
various HED product as follows:
1. Licensed Programs. Licensed Programs shall consist of television movies
and mini-series (each a "Picture" and collectively "Pictures") as follows: (a)
the programs listed on Schedule A hereto ("Library Pictures"); (b) two-hour made
for television movies and mini-series in one- or two-hour segments (in the
aggregate more than two hours and less than thirteen hours) produced,
co-produced or acquired by HED for initial exhibition after December 31, 2000
and available after the date hereof and during the Term for premier on a free,
basic or pay television service and which becomes available thereafter to HED to
use or license during the Term ("New Pictures"); and (c) programming produced by
or on behalf of HED for Licensee pursuant to Paragraph 8 hereof ("Original
Pictures").
2. Term. The Term shall commence as of the date set forth above and expire
five years thereafter; provided, however, that this Agreement shall
automatically renew for successive additional three year terms, subject to the
rate adjustments provided in Paragraph 6 hereof for so long as Hallmark
Entertainment, Inc. or an affiliate thereof ("HEI") owns an interest of
thirty-five percent (35%) or more of Crown Media Holdings, Inc. ("CMH");
provided further that if at the time HEI ceases to own at least 35% of CMH the
term remaining shall be less than two years, this Agreement shall be extended to
the date two years after the date HEI ceased to own said 35% interest. Despite
expiration of the Term hereof, the provisions of Paragraphs 3, 6, 9, 10 and 11
and all rights granted pursuant to Paragraph 5 shall remain in effect during any
Picture Term or Second Picture Term as defined in Paragraph 5 below.
3. Territory. The Territory shall be the United States together with its
possessions and territories excluding Puerto Rico.
4. Licensed Product.
(a) Licensee agrees to license from HED and HED agrees to license to
Licensee all Library Pictures, all New Pictures and all Original
Pictures produced or co-produced by or on behalf of HED hereunder for
exhibition by all forms of television on the Hallmark Channel (the
"Channel"), but not including pay per view television, commencing upon
the date the Picture is available as set forth on Schedule "A" hereto
(the "Availability Date"); provided, however, if any Pictures are
televised by over the air broadcast, Licensee shall be responsible for
payment of all residuals in connection with such broadcast and shall
copy Licensor on all
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residual reports and payments sent to any guild. Schedule "A" shall be
amended from time to time to add New Pictures and Original Pictures and
their respective Availability Dates.
(b) Licensee shall not be obligated to license more than a total of 50
New Pictures per year for telecast on the Channel and shall not be
obligated to license any Picture that conflicts with its Broadcast
Standards and Practices or with the terms or conditions of that certain
License Agreement dated as of March 27, 2001 by and between Licensee
and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Inc. as amended from time to time. In addition,
Licensee shall only be obligated hereunder to license New Pictures
which have been produced, co-produced or financed in whole or in part
by HEI or its affiliated production companies. Licensee may, but shall
not be obligated to license other New Pictures or Library Pictures for
which HED acquires rights after January 1, 2001.
5. License Exhibitions.
(a) Licensee will license each Picture in the Territory for a period of
five years (or such shorter period for which any Library Picture is
available as specified on Schedule A hereto or for which any New
Picture is available despite HED's reasonable efforts to obtain the
right to license the Program for such five-year period) from the
Availability Date ("Picture Term") and shall be entitled to thirty
exhibition days during the Picture Term and unlimited runs per
exhibition day (collectively, the "License"). The rights granted under
the License include without limitation the following:
(i) The right to use the title of each Picture for the purpose
of promoting, publicizing and advertising the exhibition of
the Picture on the Channel;
(ii) The right to use and perform any and all music, lyrics
and musical compositions contained in each Picture and/or
recorded in the soundtrack solely as embodied in the picture
and as part of the exhibition, advertising and publicizing of
such Picture subject to paragraph 10 of the Standard Terms and
Conditions;
(iii) The right to publicize and advertise the exhibition of
each Picture on the Channel throughout the Territory during
the Picture Term and for 60 days prior to the Picture Term
subject to other existing distribution agreements with respect
to such Picture. Such rights shall include without limitation,
the right in the Territory for the purpose of advertising and
publicizing the exhibition of each Picture on the Channel:
(A) to publish and to license and authorize others to
publish any synopses and summaries from such Picture
and from any literary or dramatic material included
in such Picture in newspapers,
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magazines, trade periodicals, booklets, press books
and any other periodicals and in all other media of
advertising and publicity not exceeding 1000 words in
length;
(B) to broadcast by radio and television for
advertising purposes and to authorize others to so
broadcast any parts or portions of such Picture not
exceeding two minutes in length;
(C) to use and authorize others to use the name,
physical likeness and voice (and any simulations or
reproduction of any thereof as embodied in the
Picture) of any party appearing in such Picture for
the purpose of advertising or publicizing the
Picture, subject to HED's prior approval, not to be
unreasonably withheld;
(D) to use Licensee's name and trademark in all
advertising and publicity issued by Licensee in
connection with the exhibition of such Picture on the
Channel;
(E) to permit commercial messages to be exhibited
during and after the exhibition of such Picture;
(F) to cause trailers of the Pictures and prints
thereof to be manufactured, exhibited and distributed
by every means, medium, process, method and device
now or hereafter known.
Licensee's rights hereunder are not transferable except as provided in Paragraph
9 hereof.
(b) The License shall be exclusive to Licensee in the Territory during
the Picture Term against all forms of television, including pay per
view, and linear distribution of Pictures over the Internet, and HED
may not license or otherwise authorize the exhibition of the Pictures
in any form of television during the Picture Term, including, but not
limited to, basic cable, traditional pay cable, pay per view or, as
described, over the Internet; provided, however, that HED may license
such rights to Crown Media International, Inc. or any other affiliate
of Licensee.
(c) Licensee shall have the option of extending the Picture Term of any
Picture for an additional three-year period ("Second Picture Term") by
providing HED with written notice at least six months prior to
expiration of the original Picture Term. The License Fee for the Second
Picture Term shall be 60% of the original License Fee for such Picture.
(d) HED shall have the option of extending the Picture Term of any
Picture for an additional three-year period ("Second Picture Term") by
providing Licensee with notice at least six months prior to expiration
of the original Picture
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Term. The License Fee for the Second Picture Term shall be 50% of the
original License Fee for such Picture.
6. License Fees.
(a) For and in consideration of the rights and licenses granted to
Licensee hereunder, Licensee shall pay to HED the License Fees set
forth on Schedule "B" for Library Pictures and New Pictures and the
License Fees set forth on Schedule "C" for Original Pictures. The
amounts of such License Fees shall be adjusted as provided in
subparagraphs (b) and (c) below. The License Fee for each Library
Picture and New Picture shall be payable in equal annual installments
over the Picture Term payable commencing on the Availability Date and
on each anniversary thereof until paid in full. The License Fee for
each Library and New Picture in the Second Picture Term shall be paid
in full at the commencement of the Second Picture Term. The License Fee
for all Original Pictures shall be paid one-third at the start of
production, one-third on completion of production and one-third on
delivery.
(b) On January 1 of each year, commencing in 2002, the amounts of such
License Fees shall increase by 5% per year on a cumulative basis and
such increase shall apply to any and all Picture Terms commencing after
January 1 of such year.
(c) Commencing January 1, 2006, the amounts of such License Fees shall
increase by the greater of (x) 5% per year and (y) the average
percentage price increase paid by Licensee for third party programming
for that same year ("Third Party Increase"). The Third Party Increase
shall be estimated in good faith by the parties in determining annual
payments. The actual Third Party Increase shall be calculated and
reconciled with the estimate within forty-five days of each year end.
Such increase shall be on a cumulative basis and shall apply to any and
all Picture Terms commencing after January 1, 2006.
7. Other Product. During the Term, Licensee shall have a right of first
negotiation on a product-by-product basis with respect to television
exhibition rights controlled by HED for any new television product
produced, co-produced or acquired by HED which does not fall under this
agreement (i.e., specials, documentaries, etc.). The parties agree to
negotiate in good faith with respect to any such product for a period of
45 days. HED will negotiate exclusively with Licensee during such period.
If HED and Licensee fail to reach an agreement within such 45-day period,
HED will not thereafter offer the product to a third party on terms more
favorable than those offered to HED by Licensee.
8. Production. The parties agree that Licensee shall order and HED shall
produce or cause to be produced for Licensee four two-hour television
movies and twenty-six thirty-minute episodes of a series during each year
of the Term of this Agreement (the "Original Pictures"); provided,
however, HED shall not be required to produce any production for which
good faith revenue projections indicate HED will not recoup any production
deficit
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within five years; and provided further that HED shall be permitted to
terminate this obligation upon 30 days written notice (i) in the event
that Hallmark Entertainment, Inc. and its subsidiaries are no longer
providing production services or (ii) any time after three years from the
date hereof. The parties shall have mutual creative approval with respect
to the production of the Original Pictures. If Licensee desires any
additional television movies or series produced for it during the Term, it
shall order them as follows: the first two additional movies from HED and
the third from The ▇▇▇ ▇▇▇▇▇▇ Company, Inc.; the first two additional
series from The ▇▇▇ ▇▇▇▇▇▇ Company, Inc. and the third from HED and
continue that sequence for additional pictures; provided, however, that if
at any time The ▇▇▇ ▇▇▇▇▇▇ Company, Inc. fails to provide its production
services in accordance with this provision, and Licensee seeks to replace
such services, HED will have a right of first negotiation to provide those
services to Licensee. All rights in each Original Picture shall be
retained by HED subject to the licenses granted to Licensee pursuant to
this Agreement.
9. Transferability. Licensee may sublicense and transfer its rights
hereunder to the Library Pictures and New Pictures to a third party
provided that if the compensation it receives exceeds the Licensee Fee it
is obligated to pay HED, such excess shall be divided equally between HED
and Licensee. The rights licensed hereunder may be assigned to the
operator of a pay television service (subject to such operator's assuming
the ongoing license fees hereunder) in connection with The Chase Manhattan
Bank exercising remedies available to it as agent, as a result of an event
of default by the Credit Parties under that certain Credit, Security,
Guaranty and Pledge Agreement dated as of August 31, 2001, among Crown
Media Holdings, Inc., various of its subsidiaries, the Lenders named
therein and The Chase Manhattan Bank, as agent.
10. Standard Terms and Conditions. The Standard Terms and Conditions
attached hereto are incorporated herein and made a part hereof. In the
event of any conflict between this Agreement and the Standard Terms and
Conditions, this Agreement shall control.
11. Entire Agreement. This Agreement and the attached Standard Terms and
Conditions contain the entire agreement between the parties and as of the
date hereof supersede any and all prior oral or written agreements
including that Program Agreement dated as of November 13, 1998 between the
parties ("Original Agreement"); provided, however, that (i) that the
Original Agreement shall remain in effect with respect to any Picture Term
commenced prior to January 1, 2001, and such Picture Term shall be
governed pursuant to the terms of the Original Agreement, provided
further, however, that any Second Picture Term with respect to the same
Picture shall be governed by the terms and conditions of this Agreement;
and (ii) Licensee shall be obligated to pay license fees for any Picture
Term commenced prior to January 1, 2001, in accordance with the terms of
the Original Agreement, including Picture Terms for Pictures transferred
in connection with that certain Purchase and Sale Agreement dated as of
April 10, 2001 by and between HED and Crown Media Holdings, Inc.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
HALLMARK ENTERTAINMENT CROWN MEDIA UNITED
DISTRIBUTION, LLC STATES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇. ▇▇▇▇▇▇▇▇
-------------------------------- ---------------------------------
Title: President Title: Vice President
----------------------------- ------------------------------
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STANDARD TERMS AND CONDITIONS*
1. DELIVERY OF PRINTS.
(a) Licensor will deliver or cause to be delivered to Licensee at the
address set forth on Appendix A, those materials identified on Appendix A. The
videotape of each Picture licensed by this Agreement (shall hereinafter
individually be called "print" and collectively called "prints"). Delivery of
each print to Licensee or to Licensee's agent shall be deemed to be delivery by
Licensor to Licensee hereunder. All costs and charges in connection with such
delivery, including without limitation shipping charges and insurances thereon
shall be borne by Licensee.
(b) Licensee agrees to give Licensor not less than sixty (60) days
prior written notice of the scheduled date of each telecast. Licensee shall
notify Licensor by facsimile within thirty (30) days after receipt if such print
is physically defective for television broadcasting by customary industry
standards. In the event any print has not reached its destination at least
fifteen (15) days in advance of the date of scheduled telecast thereof, Licensee
shall notify Licensor by facsimile. If Licensee so notifies Licensor with
respect to any such physical defect of failure of delivery, as aforesaid, and
Licensor does not deliver to Licensee a replacement print of the same picture
(or another picture of comparable quality) in time for the scheduled telecast,
such telecast shall be deemed eliminated and the picture withdrawn, as provided
in subparagraph (b) of paragraph 11 of this Agreement. Failure of Licensee to
give Licensor such notice as aforesaid shall be deemed Licensee's irrevocable
acknowledgment that such print has been received and is satisfactory in all
respects.
2. RETURN OF PRINTS. Unless otherwise directed by Licensor, Licensee shall
retain the prints for the period ending the later of (x) the termination or
expiration of this Agreement or (y) the last licensed broadcast of such Picture;
provided that Licensor, shall have unencumbered access to such prints at all
times. At Licensor's direction Licensee agrees to return to Licensor, prepaid,
the prints (which includes the container thereof), in the same form and
condition as delivered by Licensor, ordinary wear and tear from proper use
excepted. Such prints shall be returned to Licensor (along with any other
material furnished by Licensor) as specified in Appendix A hereto, or to any
other party, or places as Licensor may from time to time designate.
Additionally, at Licensor's direction, Licensee agrees to return to Licensor,
prepaid, all other material that may have been furnished by Licensor. If any
prints are lost, stolen, destroyed or damaged, Licensee shall pay Licensor the
cost of replacement thereof, within seven (7) days after billing by Licensor.
Such payment shall not be construed to transfer to Licensee any right, title or
interest in or to said prints. Licensor may request that Licensee have the
prints destroyed and in such event Licensee agrees to do so, and to furnish
Licensor with Certificates of Destruction.
3. ALTERATION OF PRINTS. Licensee shall telecast each Picture as
delivered, in its entirety and Licensee agrees not to cut, change, alter, modify
or add to the prints of the pictures, or any of them, without Licensor's prior
written consent except as necessary to comply
----------
* Licensor and Licensee shall be as designated on Appendix A hereto.
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with local censorship. However, Licensee may insert commercial material and make
such minor cuts as are necessary to conform to time segment requirements but
under no circumstances shall Licensee delete or reposition the copyright notice
or the credits and ▇▇▇▇▇▇▇▇ incorporated in the pictures as delivered by
Licensor. In no event may any such insertions of commercial material or such
minor cuts to conform to time segment requirements adversely affect the artistic
or pictorial quality of the picture or interfere with its continuity.
4. USE OF PRINTS.
(a) Licensee shall telecast said pictures only from the originating
transmitter(s) and antenna of the station(s) specified herein, or, if none is
specified, to transmitters within the Territory. Licensee shall not, make,
authorize or permit any telecast hereof to be amplified, re-transmitted or
relayed on the same or on any other frequency by any translator or booster
station, community antenna system, or any other device or method not
specifically authorized herein.
(b) Licensor reserves the right to change the title of any pictures(s)
covered by this Agreement and to license to third parties film excerpts of up to
five (5) minutes in length from any picture for television exhibition in any
area at any time.
(c) Licensee shall not acquire any right, title or interest in or to
any picture or print hereunder and shall not make, authorize or permit any use
of the picture or print other than as specified herein. Additionally, Licensee
shall not duplicate, reproduce or copy same in any manner or form whatsoever.
(d) Licensee acknowledges that the title to the pictures and prints
shall remain in Licensor and Licensee acknowledges that with respect to each
picture and the literary, dramatic and music material included in each and upon
which each is based, Licensor hereby expressly reserves any and all rights not
herein specifically granted to Licensee, including, but without limitation
thereof, all theatrical, non-theatrical and home video rights and all re-make
rights and sequel rights, and that such reserved rights may be exercised and
exploited by Licensor concurrently with and during the term hereof, freely and
without limitation or restriction.
5. USE OF NAMES FOR ADVERTISING. Licensee warrants and agrees that: (a) it
will abide by and comply with the advertising and billing requirements of each
licensed picture in accordance with such advertising and billing instructions as
Licensor may furnish Licensee, and that such advertising shall be made by
Licensee so as not to constitute an express, implied, direct or indirect
endorsement of any product, service or sponsor; (b) it will not advertise or
announce in any manner or media any title changed by Licensor or any picture or
pictures withdrawn by Licensor; (c) it will abide by and comply with the screen
billing in the same form as it appears on the print of the picture or pictures;
and (d) it will indemnify Licensor against all costs, damages, and expenses,
including, but not limited to reasonable attorney's fees and expenses, incurred
or caused to Licensor by reasons of any actual or alleged breach by Licensee of
the provisions of this paragraph.
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6. FORCE MAJEURE. If Licensor shall fail to make timely delivery of any
print or prints hereunder, by reason of any act of God, war, fire, flood,
strike, labor dispute, public disaster, transportation or laboratory
difficulties, order or decree of governmental agency or tribunal or another
similar or dissimilar cause beyond the control of Licensor, such failure on the
part of Licensor shall not be deemed to be a breach of this Agreement. Licensee
shall be responsible for all dubbing and subtitling of Pictures at its own
expense.
7. PAYMENT. All payments by Licensee to Licensor herein shall be made in
United States dollars by wire transfer as instructed by Licensor. Licensee shall
obtain at its expense all necessary permits from governmental authorities to
make all payments to Licensor required hereunder.
8. TAXES. Licensee shall pay and hold Licensor harmless from, all taxes
(excluding Licensor's income and franchise taxes), censorship charges or any
other charges (including interest and penalties on such amounts), assessments
and other fees now or hereafter imposed or based upon or resulting from the
delivery, exhibition, possession or use hereunder to or by the Licensee of the
prints and pictures, in whole or in part, licensed hereunder. Licensee shall
immediately provide Licensor with all written documentation requested by
Licensor, substantiating such payments including official governmental receipts.
Payment by the Licensee of the foregoing shall in no way diminish the license
fees due Licensor hereunder. To the extent that payment of any of the foregoing
is made by Licensor, Licensee shall reimburse Licensor on demand, and upon the
failure of Licensee to so reimburse Licensor, Licensor shall have all the
remedies herein for the collection of unpaid license fees, as well as all other
remedies provided by law.
9. WARRANTY AND INDEMNITY. Licensor represents and warrants that it has
the right to grant this license for the telecasting of the pictures herein
specified, including the sound tracks forming a part thereof (subject to
paragraph 10 below), and that such use of by Licensee will not violate the right
of others. Licensor agrees to indemnify and hold Licensee, its officers,
employees, successors and assigns free and harmless from any and all claims,
damages, liabilities, costs or expenses, including reasonable attorney's fees
and expenses, incurred by Licensee by reason of the breach of the foregoing
warranty, provided, however, Licensor shall not be liable for loss of profits or
consequential damages. Licensor agrees to defend at its own expense any action
or proceedings arising out of an alleged breach of the foregoing, warranty,
provided, however, that Licensee notifies Licensor promptly of any such claim or
of the commencement of any such action or proceedings, delegates complete and
sole authority to Licensor to defend or settle same, and cooperates fully with
Licensor in the defense thereof. Licensee represents and warrants that it has
the right to enter into this Agreement and to fully perform its obligations
hereunder that it will not permit the transmission of the pictures other than as
specified herein, or after the expiring or earlier termination of this
Agreement. Licensee agrees to indemnify, defend and hold Licensor, its officers,
employees, successors and assigns, free and harmless from any and all claims,
damages, liabilities, costs or expenses, including reasonable attorney's fees
and expenses arising out of or in connection with the use by Licensee, its
successors, assigns and sublicensees of the prints or pictures hereunder, or
arising out of or by reason of any breach of warranty, undertaking,
representation or agreement made or entered into herein on Licensee's part.
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10. MUSIC PERFORMANCE RIGHTS. Licensor warrants that the small performance
rights in and to the music contained in each Picture are either (a) controlled
by and available for license from ASCAP, BMI or other similar music performance
rights society or (b) in the public domain, or (c) controlled by Licensor and
granted to Licensee solely to the extent necessary to permit Licensee's use of
said prints hereunder. Licensor does not represent or warrant that Licensee may
exercise the performing rights to said material without the payment of a
performing rights royalty or license fee. Licensee shall, at its sole costs and
expense, secure all small performance rights licenses necessary for the telecast
of the musical compositions contained in each print and shall hold harmless
Licensor from any liability or damage arising from Licensee's failure to do so.
11. WITHDRAWAL AND ADJUSTMENT.
(a) Licensor may, in its absolute discretion, withdraw any licensed
picture if Licensor determines that the telecasting thereof would or might (i)
infringe upon the rights of others; (ii) violate any law, court order,
government regulation or other ruling of any governmental agency; (iii)
interfere with the actual or contemplated use of the licensed picture or the
material or rights contained therein for any purposes other than the telecasting
of the picture in Licensee's basic area; or, (iv) subject Licensor to any
liability.
(b) If Licensor elects to withdraw any picture as set forth in the
preceding subparagraph (a) of this paragraph 11, before its initial telecast, or
if the Picture is not acquired or produced by Licensor or if Licensor does not
control distribution rights, then Licensor shall have the right, in its sole
discretion, either to deliver to Licensee another picture of comparable quality
(which picture shall be deemed to replace the picture withdrawn) or may reduce
the number of pictures to be delivered and paid for hereunder by one and
Licensee shall be given a refund or credit, at Licensor's election, of such
license fee for such picture. Licensor also agrees to pay Licensee's actual cost
and expenses of dubbing and subtitling and simple preparation customary in the
industry.
12. ADDITIONAL RIGHTS. The rights granted under this Agreement include
without limitation the following:
(a) During each Picture's Picture Term (and Second Picture Term, if
any), the right to use the title of such Picture for the purpose of promoting,
publicizing and advertising the exhibition of such Picture on the Channel.
(b) In connection with the exhibition of each Picture during its
Picture Term (and Second Picture Term, if any), the right to use and perform any
and all music, lyrics and musical compositions contained in such Picture and/or
recorded in the soundtrack solely as embodied in such Picture and as part of the
advertising and publicizing of such Picture, subject to Paragraph 10 hereof.
(c) During each Picture Term (and Second Picture Term, if any), the
right to publicize and advertise the exhibition of such Picture on the Channel,
including the right:
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(i) to publish and to license and authorize others to publish
any synopses and summaries from each Picture and from any literary or
dramatic material included in such Picture in newspapers, magazines,
trade periodicals, booklets, press books and any other periodicals and
in all other media of advertising and publicity not exceeding 1000
words in length;
(ii) to broadcast by radio and television for the purpose of
advertising and promoting the exhibition of such Picture and to
authorize others to so broadcast any parts or portions of each Picture
not exceeding two minutes in length;
(iii) to permit commercial messages to be exhibited during and
after the exhibition of each Picture;
(iv) to cause trailers of the Pictures and excerpts therefrom
not exceeding three minutes in length to be manufactured, exhibited and
distributed by every means, medium, process, method and device now or
hereafter known (including via the internet) for the purpose of
advertising the exhibition of the Picture subject to the foregoing.
13. BANKRUPTCY AND DEFAULT. If Licensee becomes insolvent or bankrupt or
makes an assignment for benefit of creditors, or if any property of Licensee is
attached and if such attachment is not released within ten (10) days after the
date of attachment, or if a receiver, liquidator, or trustee is appointed for
any of Licensee's property, or if Licensee breaches any of the material terms or
provisions of this Agreement, Licensor in addition to any and all other rights
it may have under this Agreement or in law or in equity, may at its option, from
time to time during such occurrence, do any one or more of the following:
suspend delivery or telecasting by Licensee of one or more pictures hereunder
until default is ended or remedied, terminate this Agreement, or declare the
Agreement breached and declare all unpaid amounts payable to Licensor hereunder
immediately due and specifically, if Licensee shall fail to make the payments to
Licensor on a timely basis as provided in this Agreement, Licensor shall have
the right but not the obligation to declare Licensee in default and thereby
either to suspend the rights herein granted until the default is ended or to
terminate this Agreement without foregoing any of Licensor's rights to recover
damages deriving from Licensee's default. Licensee shall immediately return all
materials to Licensor.
A default by Licensee under this Agreement shall be deemed a default under any
and all other licenses granted by Licensor to Licensee and shall entitle
Licensor to terminate any and all such other licenses and to declare any then
unpaid balance of license fees thereunder immediately due and payable.
Licensee acknowledges that the industry custom of licensing pictures
substantially in advance of the scheduled telecast dates have the effect of
rendering the Pictures hereunder unmarketable to third parties in the United
States during any period which includes the period of this license or any part
thereof. Licensee also acknowledges that, by reason of the foregoing, no method
exists
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for accurate measurement of damages for any breach of Licensee's agreement to
pay Licensor as provided in this Agreement. It is therefore agreed that, in
addition to all other remedies available at law, in equity, or under the other
provisions of this Agreement, Licensor shall be entitled (upon breach by
Licensee of such agreement to pay Licensor) to recover from Licensee, as
liquidated damages, the total unpaid license fees for all telecasts authorized
hereunder, whether or not such telecasts actually occur, and in addition,
reasonable attorney's fees and expenses or collection agency fees and expenses
of any attorney or collection agency is retained by Licensor at any time to
enforce the provisions hereof, plus such other amounts as may be due hereunder.
If Licensor elects or becomes obligated to make such third party payments in
place of Licensee or if Licensor incurs any expenses for legal services, court
costs, and associated expenses because of any breach by Licensee, the sum or
sums so paid by Licensor and the amount of such fees, costs and associated
expenses shall be payable forthwith from Licensee to Licensor, together with
interest thereon at the rate of one and one-half percent (1.5%) per month. If
Licensee fails to pay the license fees herein provided at the times due in the
amounts set forth herein, the sums unpaid shall bear interest at the rate of one
and one-half percent (1.5%) per month from the due date thereof until paid. Any
payment not made within thirty (30) days after its due date shall bear interest
at the rate of one and one-half percent (1.5%) per month computed from the
original due date until paid; however, if said rate is in excess of the maximum
permitted under the laws of the jurisdiction where the debt accrues, then in
such event the rate of interest shall be the maximum permitted by law.
Acceptance of any payment by Licensor after its due date shall not constitute a
waiver by Licensor of any of the rights hereunder.
14. ASSIGNMENT. Licensor reserves the right to hypothecate, pledge or
discount this Agreement and to obtain loans from a bank or other lenders by the
assignment of this Agreement as security. The Licensee recognizes that this
Agreement may be exhibited and or assigned to such bank or other lenders which
may thereby be induced to enter into financial commitments in reliance thereon.
The Licensee agrees that in the event of receipt of written notice of assignment
by Licensor, monies due to Licensor shall be paid to any bona fide third party
assignee in accordance with Licensor's instructions. Licensor may freely assign
this Agreement to its successor or successors or to any of its associated,
affiliated and subsidiary companies. This Agreement may not be assigned by
Licensee, either voluntarily or by operation of law, without the prior written
consent of Licensor. Any such assignment, if consented to by Licensor, shall not
relieve Licensee of its obligations hereunder.
15. GENERAL.
(a) Licensee acknowledges that telecasts or releases of the Pictures
originating outside its basic territory may be received by television sets
located within such basic territory and Licensee agrees that such reception
shall not constitute a breach of this Agreement by Licensor.
(b) Subject to the provisions of Paragraph 14 hereof, this Agreement
and all of its terms, conditions and other provisions and all rights herein
shall inure to the benefit of and shall be binding upon the parties hereto and
to their respective successors and assigns.
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(c) The titles of the paragraphs of this Agreement are for convenience
only and shall not in any way affect the interpretation of any paragraph of this
Agreement or of the Agreement itself.
(d) Time is of the essence in the performances by Licensee of its
obligations for payment hereunder.
(e) A waiver by either party of any of the terms or conditions of this
Agreement in any instance shall not be deemed or construed to be a waiver of
such term or condition for the future, or of any subsequent breach thereof. All
remedies, rights undertakings, obligations and agreements contained in this
Agreement shall be cumulative and none of them shall be in limitation to any
other remedy, right, undertaking, obligation or agreement of either party.
(f) All notices, statements, and other documents required to be given
hereunder shall be given in writing either by personal delivery, by mail, or
telegraph (except as herein otherwise expressly provided) to the persons and at
the addresses set forth in Appendix A hereto, or to such other persons and
addresses as may be designated in writing by either party. Notice given by mail
or by ptelegraph shall be deemed given on the date of mailing thereof or of
delivery of such telegram to a telegraph office, charges prepaid or to be
billed.
(g) This Agreement shall be deemed made in, and shall be construed and
interpreted in accordance with the laws of, the State of New York pertaining to
contracts entirely made and to be performed therein. In the event of any
disagreement between the parties which cannot be settled by mutual agreement,
the parties agree that the federal or state courts sitting in the City, State
and County of New York (and courts with appellate jurisdiction therefrom) shall
have exclusive jurisdiction over such dispute and the resolution thereof, and
the parties agree that jurisdiction and venue in such courts in appropriate, and
that any process in connection therewith may be served in the manner provided
hereinabove for notices to the parties.
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