EXHIBIT 6.30
EXECUTIVE PRODUCER AGREEMENT
"SUNDOWNING" ▇▇▇▇▇▇ ▇▇▇▇▇
The following are the terms and conditions of the agreement
("Agreement") dated as of July 29,1998 between SUNDOWNING, INC. (producer), a
Nevada corporation, and TOTAL FILM GROUP, INC. ("Lender") for the executive
producing services of ▇▇▇▇▇▇ ▇▇▇▇▇ ("Artist")(Social Security Number 611 44
3355) in connection with a proposed motion picture project tentatively
entitled "SUNDOWNING" ("Picture").
1. CONDITIONS PRECEDENTS: Producer's obligations under this
Agreement are conditioned upon the following "Conditions Precedents": 1.
Producers receipt of copies of this Agreement fully executed by Lender and
Artist; b/ Artist providing Producer with all documents which may be required
by any governmental agency or otherwise for Artist to render services
hereunder; and U Producer's receipt of all forms and documents necessary to
enable Producer to effect payment to Lender, including tax and corporation
identification forms.
2. ENGAGEMENT: The services of Artist are being furnished to
Producer by Lender. Consequently, all services and obligations to be
performed hereunder by Artist shall be deemed to be performed by Artist at
the direction of Lender, and all compensation and other payments, if any, for
the performances of such services and obligations shall be paid by Producer
to Lender. All agreements, warranties and representations made by Artist
shall be deemed made in addition by Lender and vice-versa, and at the
election of Producer a breach of this Agreement by Lender and/or Artist
individually shall be deemed a breach by both.
3. SERVICES / EXCLUSIVITY: If Producer elects to proceed with the
production of the Picture and subject to Paragraph 10 below, then Lender
shall 'provide the services of Artist to personally render all services
customarily rendered by individual producers in the motion picture industry
in connection with the pre-production, production and post-production of the
Picture and as otherwise required by Producer. The term of Artist's services
shall commence on the date hereof and shall continue until the full and
satisfactory completion of all services to be rendered by Artist hereunder or
the earlier termination hereof, if any, by Producer (as herein provided).
Artist shall render services hereunder on an non-exclusive basis - but first
priority, in person basis -during development until 8 weeks prior to the
Start Date and on an exclusive basis during the "Pre-Production Period"
(i.e., the period commencing 8 weeks prior to the scheduled date for
commencement of principal photography of the Picture ("Start Date") and
continuing until four (4) weeks after the conclusion of principal photography
of the Picture; thereafter Artist's services shall be non-exclusive to
Producer (provided that Artist's services to third parties or on Artist's own
account shall not materially interfere with Artist's services hereunder)
until Delivery (as defined in Paragraph 8 below) of the completed Picture
(including required television coverage) which shall be delivered by Artist
in connection with the post-production schedule approved by Producer. Time is
of the essence in connection with all producing services and Delivery of the
Picture hereunder.
4. APPROVALS AND CONTROLS:
a. Producer shall retain all approvals and controls,
including without limitation, the right to designate the production manager,
estimator and location auditor, and the right to initiate at any time and in
any respect in connection with the Picture.
b. Lender shall cause Artist to render Artist's services at
such places Producer will designate and at the times required by Producer,
including Saturdays, Sundays, nights and holidays. Lender shall cause Artist
to render Artist's services hereunder and devote Artist's best talents,
efforts and abilities in accordance with the instructions, control and
directions of Producer (including those of creative, artistic or dramatic
taste and judgment). Lender shall cause Artist to meet or collaborate with
persons designated by Producer at such time and place as Producer may
designate.
5. COMPENSATION: Upon the conditions that Lender and Artist fully
perform all services and obligations required hereunder and that neither
Lender nor Artist is not in material default hereunder, and subject to
Producer's right of suspension and/or termination on account of Lenders
and/or Artists default or disability or an event of force majeure and subject
to the provisions of paragraph 10 hereunder, Producer shall pay Lender as
full and complete consideration for Artist's services, rights granted and
representations, warranties and agreements made hereunder, the following
Fixed Compensation at the following times
a. Fixed Compensation: The amount ("Fixed Compensation") of
$350,000 as follows:
(i) 25% upon commencement of pre-production of the
Picture
(ii) 25% upon commencement of principal photography
of the Picture;
(iii) 25% upon completion of principal photography of
the Picture; and
(iv) 25% upon completion of the final corrected
answer print of the Picture and of all items required
by Producer in connection with the completion and
full delivery of the Picture to Producer.
b. Payment: Said compensation is an all-inclusive flat fee
and no additional compensation shall be payable by reason of overtime,
weekend work, holidays, etc. All payments of Cash Compensation to Artist)
hereunder shall be made on Producers regular payday in the week following
that week in which such payment shall have accrued. No additional payments
shall be required for services rendered at night or on Saturdays, Sundays or
holidays or for meal delays, hazardous work, violation of rest periods, or
otherwise.
c. Deferred Compensation: Provided that Lender nor Artist
are not in material default hereunder, Lender shall receive:
(i) Deferred Compensation: $100,000 (one hundred
thousand dollars), which shall be deferred and
payable on a pro-rata basis with all similar
deferments from unspent contingency, if any, as
reflected in the cost report at the delivery of the
Picture and the balance, if any, at the point
immediately preceding when net Proceeds first became
payable, if ever.
(ii) Participation Definition: The balance of the
Deferred Compensation, if any, shall be computed,
determined and paid in accordance with Producer's
standard definition of Net Proceeds.
6. TRANSPORTATION AND EXPENSES: If Producer requires Artist to
perform services a t a location more than 50 miles away from Artist's
principal residence, which is Los Angeles, California:
(a) Transportation: Producer shall furnish Artist with
first-class (if available and if used)transportation (by air if appropriate)
to and from such location.
(b) Living expenses: If such location is an overnight
location, then Producer shall pay Artist first class living expenses.
7. CREDIT: If the Picture is produced and if Artist fully performs
all services and materials obligations as executive producer of the Picture,
then subject to Producers standard exclusions and exceptions (including
artwork title exceptions), Artist's name shall be accorded an Executive
Producer credit - such credit accorded to Artist to precede the credit
accorded to any other Executive Producer" credit, if any - as follows:
a. On screen: On a separate card, in the main titles (i.e.,
where the individual credits for the principal cast and individual
Producer(s) appear, whether located at the beginning or the end of the
Picture), on all positive prints of the Picture in a size of type not less
prominent than that used for credit to any other individual in connection
with the Picture.
b. In paid advertising: In the billing block portion of any
paid advertising relating primarily to the Picture issued by, or under the
control of, Producer ('Paid Ads") in a size of type not less prominent than
that used for credit to any other individual in connection with the Picture.
c. Exclusions and exceptions: Producer's Paid Ad credit
obligations shall not apply to the following ("Excluded Ads"): group, list,
institutional or so-called teaser advertising; announcement advertising;
advertising relating primarily to the source material upon which the Picture
is based, or to the author, any member of the cast, the Producer(s),
Artist(s) or any other personnel involved with the production of the Picture;
so-called "award" or "congratulatory" advertisements, including
advertisements or announcements relating to consideration or nomination for
an award; trailers (including promotional films) or other advertising;
screen, radio or television advertising; advertising in narrative form;
advertising for film festivals, film markets and the like; advertising % page
(or the equivalent in SAG's) in size or less; outdoor advertising
(including, but no limited to, 24-sheets); theater display advertising ;
advertising in which no credit is accorded other than credit to one or two
stars of the Picture and/or to Producer and/or to any other company financing
or distributing the Picture. The following items shall not be considered Paid
Ads or Excluded Ads for any purposes hereunder: videocassettes, videodiscs
and other home video devices and the covers, packages, containers or jackets
therefore; publicity or promotional items and materials; advertising relating
to subsidiary or ancillary rights in the Picture (including, but not limited
to, novelizations, screenplays or other publications, products,
merchandising, music publishing or soundtrack recordings); voice-overs;
advertising, publicity and exploitation relating to by-products or commercial
tie-ins; and other advertising not relating primarily to the Picture; or
other customary excluded advertising of any distributor(s) of the Picture.
d. General terms: All other matters with respect to
Artist's credit shall be determined by Producer in its sole discretion. Any
reference to the "title" of the Picture shall be deemed to mean the "regular"
title unless such reference is specifically made to the "artwork" title.
Producer shall inform its licensees of the above credit information. The
casual or inadvertent failure by Producer or any failure by a third party to
comply with the credit provisions of this Agreement shall not be deemed to be
a breach by Producer. Producer agrees upon receipt of written notice from
Artist of a failure to comply with the credit provisions of this Agreement to
take such steps as are reasonable and practicable to cure such failure on a
prospective basis as to future prints and advertisements, as applicable,
which are distributed or issued by Producer or under the control of Producer.
8. DELIVERY/LENGTH/RATING/COVER SHOTS: Lender shall cause Artist to
deliver the completed Picture to Producer within a post-production schedule
and delivery date approved by Producer, and in this regard time is of the
essence. "Delivery" shall be deemed to have occurred only upon Artist's
delivery to Producer of an answer print which conforms with all of Producer's
delivery requirements, including, without limitation, the following
requirements: provided, however, that in the event that the requirements for
the delivery, length, rating and cover shots set forth in the agreement for
the director of the Picture are less restrictive than Artist's requirements,
then such less restrictive delivery, length, rating and cover shots
requirements shall apply:
a. The Picture shall have a running time, including main
and end titles, of not less than 90 minutes and no more than 110 minutes,
shall be photographed on 35mm film, in the English language and in color.
b. The Picture shall adhere to the existing
producer-approved shooting script as of the commencement of principal
photography of the Picture, and Artist shall not make any changes therein
without the prior written approval of Producer, excepting only minor changes
required by the exigencies of production.
c. The Picture shall qualify for an MPAA rating in the
United States no more restrictive than "R".
d. Artists shall photograph and furnish to Producer "cover
shots" and alternative scenes and dialogue which can be incorporated into the
Picture to render it suitable for exhibition on United States network
primetime television and Mist shall deliver to Producer a television version
which shall be in accordance with applicable network "Standard and Practices"
regulations. Such cover shots and alternate scenes and dialogue shall be such
that same can be integrated into such primetime network version of the
Picture without materially changing or impairing the continuity of the
storyline of the Picture. Producer shall have the absolute right to use such
cover shots and/or cut the Picture (or such television version) in order to
meet broadcast requirements.
e. Artist will comply with Producer's budget and business
practices.
9. NAME AND LIKENESS: Lender also hereby grants to Producer
the right to use and display Artist's name and/or likeness and/or
biographical material for advertising, publicizing, promoting and exploiting,
in whole or in part, the Picture, and all subsidiary and ancillary rights of
any nature relating to the Picture, or Artist's services hereunder throughout
the universe, in perpetuity, in any and all media now known or hereafter
devised, including, but not limited to, featurettes, promotional films and/or
commercial tie-ins The foregoing shall not be construed as granting Producer
the right to use Artist's name or likeness in connection with any
merchandising items, except that Producer may use Artist's name as contained
in the billing block of the Picture in connection with such uses. Lender
shall have the right to furnish Producer with a written biography of Artist.
Provided Lender delivers such material to Producer within 5 business days
after Producer's request therefore, Producer shall use good faith efforts to
utilize information contained therein in connection with the advertisement
publicity, promotion and/or exploitation of the Picture.
10. UTILIZATION OF SERVICES/"PAY OR PLAY":
a. Producer's rights: Producer is not obligated to produce,
distribute and/or exploit the Picture, or, if commenced, to continue the
production, distribution or exploitation of the Picture in any territory;
provided that in no event shall the foregoing limit Producers obligation to pay
sums accrued and unpaid to Lender hereunder, including pursuant to any "pay-
or-play" obligation hereunder. Regardless of whether or not Producer elects to
produce, distribute and/or exploit the Picture (or to commence same) Producer is
not obligated to use the services in whole or in part of Lender and/or Artist
hereunder.
b. "Pay or Play": Lender shall be deemed to be "pay or
play" for purposes of the preceding section upon notice in writing to Lender
of Producer's election to make Lender "Pay or Play" or when all of the
following have occurred: (i) Producer has approved, in its sole discretion,
the final shooting script, budget and production and post-production
schedules for the Picture; and (ii) All principal cast members of the Picture
have been made unconditionally "pay or play" for their fixed compensation;
and (iii) Producer's receipt of a signed agreement (in form and substance
satisfactory to Producer) with the financier by which such financier
unconditionally agrees to finance the Picture; and (iv) Producers receipt of
a signed agreement (in form and substance satisfactory to Producer) with a
completion guarantor by which such guarantor
unconditionally agrees to bond the Picture and approves the final budget of
the Picture; and (v) Producer's receipt of a signed agreement (in form and
substance satisfactory to Producer) with the E&O insurance company by which
such company agrees to insure the Picture for errors and omissions.
11. RESULTS AND PROCEEDS DROIT MORAL:
a. Producer shall be the sole and exclusive owner, in
perpetuity and throughout the universe, of (i) the results and proceeds of
Artist's services hereunder which shall be a "work made for hire" for
Producer under the U.S. Copyright Law, specially ordered or commissioned for
use as a part of a motion picture or other audio-visual work and/or prepared
within the scope of Artist's employment; (ii) all right, title and interest
in and to the Picture and the material upon which it is based, including but
not limited to, the copyright in and to the Picture and any renewals and
extensions of such copyright; (iii) all distribution, exhibition and
exploitation rights in the Picture and the results and proceeds of Artist's
services hereunder in any and all media, whether now known or hereafter
devised; (iv) any and all allied, ancillary and subsidiary rights in and to
the Picture; and (v) all other tangible and intangible rights properties, and
proceeds of every kind and nature in and to the Picture and in each of the
foregoing, in every stage of development, production and completion. Lender
and Artist hereby specifically acknowledge that the compensation payable
hereunder by Producer includes and is full and adequate compensation in
respect to any right to which Lender and/or Artist may now be or shall
hereafter become entitled to (including Lenders and/or Artist's rental and
lending rights to the Picture and other derived products). If under the
applicable law of any territory or jurisdiction, any additional or different
form of compensation is required with respect to rental and lending rights,
Producer, Lender and Artist agree that the grant of said rights shall
nevertheless be fully effective; provided, however, that Producer shall pay
Lender the minimum compensation required, if any, under such applicable law
or, if required by such law, the parties shall in good faith negotiate the
amount hereof in accordance with the applicable law, and further provided
that any sums paid to Lender pursuant to this Agreement, including, without
limitation, the Fixed Compensation, any payments in excess of the minimum
required under any applicable collective bargaining agreement and any
payments in connection with the exploitation of the Picture in supplemental
and ancillary markets and media shall be credited toward the amount required
to be paid to Lender under such law to the maximum extent allowed. Without
limiting the generality of the foregoing, in the event the results and
proceeds of Artist's services hereunder are not deemed to be a
"work-made-for-hire" for Producer, Lender and Artist hereby irrevocably and
exclusively grant and assign all right, title and interest in and to such
results and proceeds to Producer, including all rights of every kind and
nature therein and thereto, throughout the universe, in perpetuity, in any
and all media, whether now known or hereafter devised, and all copyrights,
renewals rights and extensions thereof. Lender and Artist hereby waives any
so-called "moral rights of author" or "droit moral" rights Lender and Artist
may have in connection with the Picture.
b. No termination of this Agreement shall affect the rights
granted hereunder by Lender and Artist, and the representations and
warranties of Lender and Artist shall survive such termination.
12. PUBLICITY LIMITATIONS: Lender and Artist shall not by means
of press, publicity or advertising agencies employed or paid by Lender and/or
Artist, or otherwise, authorize, circulate, publish or otherwise disseminate
any news stories or articles or other publicity of any kind, containing
Artist's name and relating directly or indirectly to Artist's engagement, the
subject matter of this Agreement, the Picture, or the services to be rendered
by Artist or others in connection with the Picture, unless the same are first
approved in writing by Producer. Lender and/or Artist may, however,
disseminate publicity which contains Artist's name and incidentally
identifies the Picture and the services Artist rendered thereon so long as
such publicity is not an advertisement for the Picture and does not contain
any material which is derogatory in nature to Producer, the Picture or any
element thereof or individual(s) or entity(ies) rendering services in
connection therewith.
13. INJUNCTIVE RELIEF: Lender and Artist acknowledge that the
services to be rendered by Artist hereunder are of a special, unique,
unusual, extraordinary and intellectual character, making them difficult to
replace and giving them a peculiar value, the loss of which cannot be
reasonably compensated in damages in an action of law; that if Lender and/or
Artist breach any provision of this Agreement, Producer will be caused
irreparable damage: and that, therefore, Producer shall be entitled, as a
matter of right, at its election, to enforce this Agreement in all of the
provisions hereof by injunction or other equitable relief.
14. CONTINGENCIES:
a. Suspension: In the event of Force Majeure (e.g.,
interruption of or material interference with the preparation, commencement,
production, completion, or distribution of the Picture or of a substantial
number of motion pictures produced and/or proposed to be produced by Producer
by any cause or occurrence beyond the control of Producer, including fire,
flood, epidemic, earthquake, explosion, accident, riot, war - declared or
undeclared -, blockade, embargo, act of public enemy, civil disturbance,
labor dispute, strike, lockout, inability to secure sufficient labor, death
or disability of key personnel rendering services on the Picture other than
Artist, power, essential commodities, any applicable law or any act of God),
or any capacity of Artist which prevents Artist from performing or complying
with any of the material terms or conditions of this Agreement ("Artist's
incapacity'), or any failure or refusal by Lender and/or Artist to perform or
comply with any of the material terms or conditions hereof at the times and
in the manner specified (other than by reason of Force Majeure or Artist's
Incapacity) ("breach by Artist"), Producer shall have the right, by notice to
Lender, to postpone the commencement of or suspend the rendition of services
by Artist and/or the running of time hereunder, which suspension shall
commence as of the occurrence of the event. Such suspension shall end within
2 weeks (or, if such event is a breach by Artist, 4 weeks) after the
cessation of such event.
b. Termination:
(i) Producer termination right: If an Artist's
incapacity continues for a consecutive period in excess of 10 days or an
aggregate period in excess of 14 days during the performance of Artist's
services hereunder, or if a Force Majeure continues in excess of 6
consecutive weeks, or if there is a breach by Lender and/or Artist, Producer
shall have the right to terminate this Agreement by written notice to Lender,
which termination shall be effective as of the effective date set forth in
such notice. Prior to a termination of this Agreement by Producer based upon
the first breach by Lender and/or Artist, Producer shall notify specifying
the nature of the breach and Lender and/or Artist shall have a period of 2
business days (1 business day during principal photography) after receipt of
Producers notice within which to cure such first breach. Even if such breach
is cured within said period, Lender and Artist shall remain liable for
damages and expenses occurred by Producer as a result of such breach. If such
breach is not cured to the reasonable satisfaction of Producer within said
period, Producer may terminate this Agreement as set forth above. If Artist
dies, this Agreement shall immediately and automatically terminate.
(ii) Artist termination right: If Producer
suspends payment of compensation due to a Force Majeure for 6 weeks or more,
Lender and/or Artist shall have the right to terminate this Agreement and
Producer shall subsequently have the right to re-establish the operation of
this Agreement within 1 week after receipt of Lenders termination notice and
resumption of payment of compensation, if any, due Lender hereunder, and the
operation hereof, if so re-established, shall not thereafter be suspended
because of the same event of Force Majeure.
c. Right of examination: If any claim disputing the
existence of Artist's incapacity is made by either party, Producer shall have
the right to have Artist examined by such physicians as Producer may
designate. Artist's own physician may be present at such examinations at
Artist's sole cost and expense, provided Artist's physician shall not
interfere with any such examination.
d. Effect of suspension: During the period of any
suspension, no compensation or other benefits hereunder shall accrue, become
payable or be provided to Lender. Lender shall not cause Artist to render
services for any third party during the exclusive period. Nevertheless,
Lender shall have the right to cause Artist to render services to third
parties during any Force Majeure suspension, subject to Producer's right to
require Artist to resume services hereunder upon 48 hours' prior notice.
Producer shall have the right (exercisable at any time) to extend the period
of services of Artist and the running of time hereunder for a period equal to
the period of such suspension.
e. Effect of termination: Except with respect to the "pay
or play" provisions, termination of this Agreement for any reason shall
release and discharge Producer from all further obligations whatsoever to
Lender and/or Artist and shall terminate any rights of Lender and/or Artist
hereunder. Nevertheless, if the termination is not for a breach by Lender or
Artist, Producer shall pay any Cash Compensation due and unpaid prior to the
termination.
15. NOTICES AND PAYMENTS: Any notice pertaining hereto shall be in
writing. Any such notice and any payment due hereunder shall be served by
delivering said notice or payment personally or by sending it by mail
(postage prepaid) addressed as follows:
To Lender and/or to Artist:
Total Film Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇ ▇▇▇▇
To Producer:
Sundowning, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇ ▇▇▇▇
The date of personal delivery, mailing of such notice or payment
shall be deemed the date of service of such notice or payment.
16. REPRESENTATIONS AND WARRANTIES: Lender and Artist represent and
warrant that: (a) There is a valid agreement between Lender and Artist
whereby Artist is obligated to render services to Lender throughout at least
the full term set forth in this Agreement; (b) Lender is authorized under
said agreement to enter into this Agreement with Producer, to furnish
Artist's services to Producer, to grant to Producer the rights herein set
forth, and to authorize the payments by Producer to third parties, if any,
specified in this Agreement. Lender is free to enter into this Agreement and
not subject to any conflicting obligations or any disability which will or
might prevent or interfere with the execution and performance of this
Agreement by Lender or Artist; ( c) Lender shall fully perform and Lender
shall cause Artist to fully perform each and all of the terms and obligations
of this Agreement to be performed by Lender or Artist; (d) No rights of any
third party are or will be violated by Lenders or Artist's entering into or
performing this Agreement, and neither Lender nor Artist have made nor shall
hereafter make any agreement with any third party which could interfere with
the rights granted to Producer hereunder or the full performance of Lenders
or Artist's obligations or Artists services hereunder; (e) All of the work
performed by Artist shall be wholly original with Artist and none of the same
has been or will be copied from or based upon other work. To the best of
Lender's and Artist's knowledge, the reproduction, exhibition or any other
use of Artist's work or any of the right herein granted shall not defame any
person or entity nor violate any copyright, right of privacy or publicity, or
any other right of any person or entity. The warranty in this sub-paragraph
(e) shall not apply to any material as furnished to Artist by Producer; (f)
That Lender is, and has been for more than 30 days prior to the date hereof,
a corporation duly organized and existing under the laws of Lenders state or
country of incorporation; that Lender is a bone fide corporate business
entity established for a valid business purpose within the meaning of the tax
laws of its country of incorporation and not a mere sham, conduit, or Agent
for Artist. Lender acknowledges that the foregoing representations and
warranties will be relied upon by Producer for the purpose of determining
whether or not it is necessary to make withholdings for taxes from monies
being paid to Lender hereunder, and Lender agrees that if withholdings are
not made from said payments, and if thereafter it is determined that such
withholdings were legally required, Lender and Artist will indemnify Producer
against all loss, costs, damages and expenses relating thereto.
17. INDEMNITY:
a. Lender and Artist will indemnify Producer, its
associates, affiliated and related entities, successors, assigns, licensees,
officers, directors, employees and agents, and hold them harmless from and
against any and all claims, liabilities, damages, costs and expenses,
including reasonable outside attorneys' fees, arising out of, resulting from,
based upon or incurred because of a breach by Lender and/or Artist of any
agreement, representation or warranty made by Lender and/or Artist hereunder.
Except with respect to (I) matters constituting a breach by Lender and/or
Artist of any of the representations, warranties and/or agreements contained
in this Agreement; and/or (ii) gross negligence or willful misconduct by
Lender and/or Artist, Producer shall indemnify Lender and Artist and hold
them harmless from and against any and all liability, damages, costs and
expenses, including reasonable attorneys' fees, (other than with respect to
any settlement entered into without Producer's prior written consent) arising
out of any third party claim against Artist resulting from (I) any material
supplied by Producer for use in connection with the Picture; and (ii)
Producers development, production, distribution and/or exploitation of the
Picture.
b. Producer, on one hand, and Lender and Artist, on the
other hand, shall, upon presentation of any claim or institution of any
action covered by the indemnity provisions, promptly notify the other of the
presentation of such claim or the institution of such action, giving full
details thereof.
18. RIGHT TO WITHHOLD: Producer shall have the right to deduct and
withhold from any sums payable to Lender hereunder any amounts required to be
deducted and withheld by Producer pursuant to any present or future law,
ordinance or regulation of the united States or of any state thereof or any
subdivision of any state thereof, or any other country, including without
limitation, any country wherein Lender causes Artist to perform any of his
services hereunder, or pursuant to any present or future rule or regulation
of any union or guild (if any) having jurisdiction over the services to be
performed by Artist hereunder.
19. INSURANCE: Producer shall have the right to apply for and take
out, at Producer's expense, life, health, accident, cast or other insurance
covering Artist, in any amount Producer deems necessary to protect Producer's
interest hereunder. Lender and Artist shall not have any right, title or
interest in or to such insurance. Lender shall cause Artist to assist
Producer in obtaining such insurance by submitting to usual and customary
medical and other examinations, and by signing such applications, statements
and other instruments as may be reasonably required by any insurance company.
In the event Artists fails or is unable to qualify for such insurance at
customary rates and subject only to customary exclusions and deductible
amounts (if any), Producer shall have the right to terminate this Agreement.
During the term of this Agreement, Artist shall not travel on any chartered
or unscheduled airline or plane, unless requested to do so by Producer, or
engage in any conduct prohibited by any policy of insurance obtained by
Producer in accordance with this Agreement.
20. E&O/GENERAL LIABILITY INSURANCE: Lender and Artist shall be
covered by the errors and omissions and general liability insurance policies
for the Picture to the extent that Producer obtains and maintains same and
subject to the terms, conditions and restrictions of such policies and
endorsements thereto.
21. MISCELLANEOUS:
a. Governing law / legal proceedings / non-waiver / effect
of termination / entire agreement / separability: This Agreement shall be
governed and construed in accordance with the laws of the State of California
applicable to contracts entered into and fully performed therein. Only the
California courts (state and federal) shall have jurisdiction over
controversies regarding this Agreement; any proceeding involving such
controversies shall be brought in those courts, in Los Angeles county, and
not elsewhere. Any process in such proceedings may be served upon Artist by,
among other methods, delivering it or mailing it, by registered or certified
mail, directed to such address Artist designated in this Agreement. Any such
delivery or mail service shall have the same effect as personal services
within the State of California. No waiver by Artist or Producer of any
failure by the other to keep or perform any covenant or condition of this
Agreement shall constitute a waiver of any preceding or succeeding breach of
the same or any other covenant or condition. Neither the expiration nor
termination of this Agreement shall affect Producers ownership of the results
and proceeds of Lenders and Artists services hereunder or alter Producer's
rights therein, or any warranty or undertaking made by Artist hereunder. This
Agreement constitutes the entire agreement between Producer, on one hand, and
Lender and Artist, on the other hand, with respect to the subject matter and
may only be amended by a written instrument executed by Producer, Lender and
Artist.
b. Visas and labor permits: Lender shall cause Artist to
cooperate with Producer and assist Producer in securing such visas and labor
permits which may be required by any governmental agency in connection with
Artist's rendition of services hereunder. If, in spite of such cooperation
and assistance, Producer is unable to secure such visas and labor permits
within a reasonable period of time prior to the Start Date, Producer shall
have the right to suspend Lender's and Artist's services hereunder until a
final determination concerning such visa or labor permit is made by the
applicable authority, and Producer shall have the right to terminate this
Agreement, Lenders and Artist's engagement hereunder if such visas and labor
permits cannot be secured.
c. Remedies cumulative: All remedies accorded herein or
otherwise available to either Producer, Lender or Artist shall be cumulative
and no one such remedy shall be exclusive of any other. Without waiving any
rights or remedies under this Agreement or otherwise, Producer may from time
to time recover, by action at law, any damages arising out of any breach of
this Agreement by Artist and may institute and maintain subsequent actions
for additional damages which may arise from the same or other breaches. The
commencing or maintaining of any such action or actions by Producer shall not
constitute an election on Producers part to terminate this Agreement nor
constitute or result in the termination of Lenders and/or Artist's services
hereunder unless Producer shall expressly so elect by written notice to
Lender.
d. Artist's remedies: No action or omission by Producer
shall constitute a breach of this Agreement unless Lender first notifies in
writing setting forth the alleged breach or default and Producer does not
cure the same. If Producer breached its obligations hereunder, the damage, if
any, caused Lender and/or Artist shall not be irreparable or sufficient to
entitle Lender and/or Artist to injuctive or other equitable relief.
Consequently, Lender's and Artist's rights and
remedies shall be limited to the right, if any, to obtain damages at law and
Lender and Artist shall not have any right in such event to terminate or
rescind this Agreement or any of the rights granted to Producer hereunder or
to enjoin or restrain the development, production, advertising, promotion,
distribution, exhibition or exploitation of the Picture and/or any of
Producers rights hereunder. Producers payment of any compensation or
performance of any obligation hereunder shall not constitute a waiver by
Producer of any breach by Lender and/or Artist or of any rights or remedies
which Producer may have as a result of such breach.
e. Captions: The captions used in connection with the
paragraphs and subparagraphs of this Agreement are inserted only for the
purposes of reference. Such captions shall not be deemed to govern, limit,
modify, or in any other manner affect the scope, meaning, or intent of the
provisions of this Agreement or any part thereof, nor shall such captions
otherwise be given any legal effect.
f. Illegality: Nothing contained herein shall require the
commission of any act or the payment of any compensation which is contrary to
law, and if there shall exist any conflict between any provision contained
herein and any law, regulation or provision of any applicable collective
bargaining agreement, the latter shall prevail, and the provision or
provisions herein affected shall be curtailed, limited or eliminated to the
extent (but only to the extent necessary to remove such conflict), and as so
modified, this Agreement shall continue in full force and effect.
g. Assignment: This Agreement is non-assignable by Lender
or Artist. This Agreement may be assigned freely by Producer, in whole or in
part, to any party (including any successor entity or other party acquiring
all or substantially all of the business or assets of Producer or into which
Producer is merged or consolidated), without restriction, and such assignment
shall be binding upon Lender and Artist and inure to the benefit of Producers
successors, assignees, licensees, grantees and associates, affiliated and
subsidiary entities and shall be deemed a notation forever releasing and
discharging Producer from any further liability or obligation to Lender and
Artist.
h. Further instruments: Lender and Artist shall duly
execute, acknowledge and deliver to Producer or cause to be executed,
acknowledged and delivered to Producer, any and all assignments or
instruments which Producer may deem necessary to carry out and effectuate the
purposes and intent of this Agreement, including, without limitation,
separate assignments of any rights granted by Lender and Artist in this
Agreement. Lender and Artist hereby irrevocably grant Producer the power
coupled with an interest, with rights of substitution and delegation, to sign
such separate documents in Lenders and/or Artist's name and as Lenders and/or
Artist's attorney-in-fact if Lender and/or Artist have not complied with
Producers request within 5 business days thereafter (or such shorter period
of time as Producer shall reasonably require. If Producer signs any document
as Lenders and/or Artist's attorney-in-fact, Producer will provide Lender
with copies of any such documents.
This Agreement constitutes the entire understanding of the parties
hereto and replaces any and all formal agreements, understandings and
representations, either oral or written, relating in any way to the subject
matter hereto. No modifications, alterations or amendments of this
Agreement shall be valid or binding unless it is in writing and signed by the
party to be charged with such modification, alteration or amendment.
By signing in the spaces provided below, Producer and Lender accept
and agree to all of the terms and conditions hereof
The parties hereto have executed and delivered this Agreement as of
the date first written above.
SUNDOWNING, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
Its: Director
AGREED TO AND ACCEPTED
TOTAL FILM GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Its: President
By signing below, Artist acknowledges that Artist has read this
Agreement and confirms all grants, representations, warranties and agreements
made by Lender and agrees to perform the services provided for therein in
accordance with the terms and conditions thereof and, if Artist fails to do
so, Artist acknowledges that Producer shall have the same rights and remedies
against Artist as Producer has against Lender. Artist shall look solely to
Lender for any and all compensation hereunder and, if Artist's employment
agreement with Lender becomes ineffective or if Lender ceases to exist, then
Artist, at the election of Producer, shall be deemed substituted as a direct
party hereto in lieu of Lender.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇