LITERARY PURCHASE AGREEMENT
This
Literary Purchase Agreement ("Agreement") is entered into as of April 1, 2007,
between Buzz Kill, Inc. ("Purchaser"), which is or shall become by the start
of
principal photography a signatory to the WGA Agreement and Seasmoke, Inc.
("Lender") f/s/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”) (collectively
hereinafter referred to as “Seller") with respect to the acquisition of all
right, title, and interest in and to the screenplay and all rewrites and
polishes thereof written by Seller presently entitled "Buzz Kill" (the
screenplay together with the title, themes, contents, characters, stories,
rewrites, polishes and all elements contained therein are herein referred to
as
the “Property") for the production of a theatrical motion picture currently
entitled "Buzz Kill" (the "Picture").
A. CONDITIONS
PRECEDENT:
All
of
Purchaser’s obligations hereunder are conditioned upon (i) Purchaser’s approval
of the chain of title attendant to the Property, and (ii) Purchaser’s receipt of
a fully executed copy of this Agreement, the Assignment and the Certificate
of
Authorship attached hereto as Exhibits "A” and “B" respectively.
1. PURCHASE:
1.1 Fixed
Compensation.
Purchaser shall pay to Seller, as full and complete consideration for all of
the
rights granted hereunder the following: (a) to Lender (i) Six Thousand Two
Hundred Fifty Dollars ($6,250) payable one-third (1/3) upon execution of this
Agreement with the remaining two-thirds (2/3) payable upon Purchaser’s receipt
of the entire financing for the Picture and (ii) a "Deferral" in the amount
of
Twelve Thousand Seven Hundred Thirty One Dollars ($12,731) which shall be due
and payable according to the Definition and Application of Proceeds to be
attached hereto as Exhibit “C”; and (b) to Smollon (i) Six Thousand Two Hundred
Fifty Dollars ($6,250) payable one-third (1/3) upon execution of this Agreement
with the remaining two-thirds (2/3) payable upon Purchaser’s receipt of the
entire financing for the Picture and (ii) a "Deferral" in the amount of Twelve
Thousand Seven Hundred Thirty One Dollars ($12,731) which shall be due and
payable according to the Definition and Application of Proceeds to be attached
hereto as Exhibit "C".
1.2 Contingent
Compensation.
If
Purchaser or its assignees, licensees or successors produces or causes the
Picture to be produced, in addition to the amount set forth in Paragraph 1.1
above, Lender and Smollon shall each receive an amount equal to three and
one-half percent (3.5%) of one hundred percent (100%) of the "Net Proceeds",
which shall be defined, calculated, due and payable in accordance with
Purchaser’s standard definition, subject to good faith negotiations by in any
event on a most favored nations basis with any other Net Proceeds
participant.
1.3 Box
Office Bonus.
If the
Picture is released as a theatrical motion picture and if the Picture’s North
American (i.e., the United States and Canada) theatrical box office receipts
(as
reported in weekly Variety or EDI) reach or exceed Fifteen Million Dollars
($15,000,000) then Purchaser shall pay to Seller the amount of Twenty Five
Thousand Dollars ($25,000) and an additional Twenty Five Thousand Dollars
($25,000) thereafter for each Fifteen Million Dollars ($15,000,000) in
theatrical box office receipts (as reported in weekly Variety or EDI) reached
thereafter. All amounts paid to Seller pursuant to this Paragraph 1.3 shall
be
applicable against Seller’s Net Proceeds Participation.
2. WRITING
SERVICES
2.1 Rewrite
and Polish.
Purchaser shall have an irrevocable option to engage Seller as an employee
for
hire to write one or more rewrites (each a "Rewrite") of the Property and one
or
more polishes (each a "Polish") thereof and Seller hereby agrees to render
such
writing services. Seller’s services pursuant to this Paragraph 2.1 shall be on
an exclusive basis during all writing periods and on a non-exclusive but first
priority basis at all other times. Seller shall prepare each Rewrite and/or
Polish upon Purchaser’s written notice thereof (subject to Seller’s
then existing professional availability) in accordance with and subject to
the
reasonable instructions, directions and writing schedule designated by
Purchaser.
2.2 Rewrite
and Polish Fees.
Provided that Seller fully and faithfully performs all services required
hereunder and is not otherwise in material uncured default hereof, Seller shall
be paid in accordance with the minimum requirements of the applicable provisions
of the Writers Guild of America Basic Agreement. Any rewrite or polish shall
be
due two (2) weeks before the commencement of principal photography of the
Picture.
3. GRANT
OF RIGHTS.
3.1 Rights
in the Property.
Contingent upon Seller’s receipt of the Fixed Compensation as set forth in
Paragraph 1.1 above, Seller hereby sells, grants, conveys and assigns to
Purchaser, its successors, licensees and assigns exclusively and forever all
rights throughout the world in and to the Property. Purchaser may in its
discretion make any and all changes in, additions to, and deletions from the
Property in the exercise of its rights hereunder and Seller waives any rights
of
“droit morale" it may have therein. The rights granted to Purchaser include,
without limitation, all motion picture rights (including all silent, sound,
dialogue and musical motion picture rights), all television motion picture
rights and other television rights, throughout the world, in and to the Property
and in and to the copyright thereof and all renewals and extensions of
copyright. Included among the rights granted to Purchaser hereunder (without
in
any way limiting the grant of rights hereinabove made) are the following sole
and exclusive rights throughout the world:
3.1.1 To
make, produce, adapt, sell, lease, rent, reissue, perform and generally deal
in
and with the Property and to copyright one or more motion picture adaptations
or
versions based in whole or in part on the Property, of every size, gauge, color
or type, whether produced for exhibition theatrically, non-theatrically or
otherwise, including musical motion pictures and remakes of sequels and prequels
to any motion pictures produced hereunder, and for such purposes to record
and
reproduce and license others to record and reproduce, in synchronization with
such motion pictures, spoken words taken from or based upon the text or theme
of
the Property and any and all kinds of music, musical accompaniments and/or
lyrics to be performed or sung by performers in any such motion picture and
any
and all other kinds of sound and sound effects.
3.1.2 To
exhibit, perform, rent, lease and generally deal in and with any motion picture
produced hereunder: (i) by all means or technical processes whatsoever, whether
now known or hereafter devised including, by way of example only, film, tape,
disc, wire, audio-visual cartridge, cassette or television (including
commercially sponsored, sustaining and subscription or pay-per-view television,
or any derivative thereof); and (ii) in any place whatsoever, including homes,
theaters and elsewhere, whether or not a fee is charged, directly or indirectly,
for viewing any such motion picture.
3.1.3 To
broadcast, transmit and reproduce the Property or any adaptation or version
thereof (including, but not limited to, any motion picture produced hereunder
and/or any script or other material based on or utilizing the Property or any
of
the characters, themes or plots thereof), by means of television or any process
analogous thereto whether now known or hereafter devised (including, but not
limited to, commercially sponsored, sustaining and subscription, or pay-per-view
television), through the use of motion pictures produced on films or by means
of
magnetic tape, wire, disc, audio-visual cartridge or any other device now known
or hereafter devised and including such television productions presented in
series or serial form, and the exclusive right generally to exercise for
television purposes all the rights granted to Purchaser hereunder for motion
picture purposes.
3.1.4 For
the foregoing purposes, to use all or any part of the Property and any of the
characters, plots, themes and/or ideas therein contained, and the title of
the
Property and any title or subtitle of any component of the Property, and to
use
said titles or subtitles in connection with any motion picture or other version
or adaptation whether or not the same is based on or adapted from the Property
and/or as the title of any musical composition contained in any such motion
picture or other version or adaptation.
3.1.5 To
use and exploit, in any and all media, commercial and merchandise tie-ups and
recordings of every kind and nature and of any sort and nature arising out
of or
connected with the Property and/or motion picture or other versions and/or
the
title or titles thereof and/or the characters thereof and/or their names or
characteristics.
3.1.6 All
rights, licenses, privileges and property herein granted to Purchaser shall
be
cumulative and Purchaser may exercise or use any or all of said rights,
licenses, privileges and property simultaneously with or in connection with
or
separately and apart from the exercise of any other of said rights, licenses,
privileges and property. If Seller hereafter makes or publishes or permits
to be
made or published any revision, adaptation, translation or dramatization or
other versions of the Property, then Purchaser shall have and Seller hereby
grants to Purchaser without payment therefor all of the same rights therein
as
are herein granted Purchaser. The term "motion picture" shall be deemed to
mean
and include any present or future kind of motion picture production with or
without sound recorded and reproduced synchronously therein, whether the same
is
produced on film or by any other method or means now or hereafter used for
the
production, exhibition and/or transmission of any kind of motion picture
production.
3.2 Name,
Likeness, Etc.
Purchaser shall have the perpetual right to use and authorize others to use
the
name, voice and approved likeness of Seller and approved biographical
information (provided that Seller provides Purchaser therewith in a timely
manner as required by Purchaser) pertaining to Seller for advertising and
publicity purposes in connection with any use or proposed use of the Property,
the Picture or any other motion picture, television program or other production
based on the Property, provided that Seller shall not be portrayed as using
or
directly or indirectly endorsing any product or service without Seller’s prior
written consent.
4. REPRESENTATIONS
AND WARRANTIES.
Subject
to Article 28 of the WGA Basic Agreement and except for any material provided
by
or on behalf of Purchaser for inclusion in the Picture, Seller hereby represents
and warrants that:
4.1 Seller
is the sole and exclusive owner of all of the rights herein granted to Purchaser
in and to the Property, and Seller has the full and exclusive right, power
and
authority to enter into and perform this Agreement and to convey all of the
rights hereby conveyed to Purchaser;
4.2 Seller
is not subject to any obligation or disability which could or
might prevent Seller from performing all of the covenants and
conditions to be kept or performed by Seller hereunder, and Seller has not
heretofore made nor will Seller hereafter make any grant, assignment,
commitment, agreement or do any act which could or might materially interfere
with the full and complete enjoyment by Purchaser of Seller’s services hereunder
or the rights granted hereunder;
4.3 The
Property is wholly original with Seller in all respects and no part thereof
has
been taken from or based upon any other literary, dramatic or musical material
or any motion picture or television production (except for material in the
public domain) and to the best of Seller’s knowledge, will not in any way
infringe upon or violate any copyright, common law rights or literary, dramatic
or motion picture rights of, or constitute a defamation or invasion of the
rights of privacy and/or publicity of any person, firm or corporation
whatsoever;
4.4 No
part of the rights herein conveyed to Purchaser have in any way been encumbered,
conveyed, granted or otherwise disposed of, and the same are tree and clear
of
any liens or claims whatsoever and to the best of Seller’s knowledge, there are
no claims, litigation or other proceedings pending, outstanding or threatened
which might in any way prejudice, interrupt, impair, limit, diminish or
interfere with the rights granted to Purchaser hereunder;
4.5 The
Property has not previously been exploited in any medium of communication (other
than in printed screenplay form); and
4.6 The
Property is and shall be wholly protected by copyright in the United States,
is
not and shall not be in the public domain and may be protected elsewhere so
far
as the laws of other countries provide copyright in the United States for such
protection.
5. INDEMNIFICATION.
Subject
to Article 28 of the WGA Basic Agreement, Seller hereby indemnifies and agrees
to hold Purchaser, its directors, employees, agents, successors, assigns and
licensees harmless from and against any and all judgments, liabilities, damages,
penalties, losses, claims and expenses (including reasonable outside attorneys’
fees and disbursements) arising out of or in connection with any breach by
Seller of any of his respective warranties, representations or agreements
contained in this Agreement.
Purchaser
shall defend, indemnify and hold harmless Lender and Seller and Seller’s
directors, employees, agents, successors, assigns and licensees from and against
any and all claims, demands, liabilities, damages, losses, costs and expenses
(including reasonable outside attorney’s fees) arising out of the development,
pre-production, production, completion and exploitation of the Picture and/or
any element thereof (other than those arising out of any breach of Seller’s
representations, warranties and agreements).
6. CREDITS.
In
the
event the Picture is produced and provided that Seller is not in default hereof,
Seller shall be accorded writing credit in accordance with the minimum
requirements of the Writers Guild of America Basic Agreement. Subject to the
foregoing, all other aspects of Seller’s credit (if any) shall be determined in
the sole discretion of Purchaser, if applicable, or the third party distributor
and/or financier of the Picture. Purchaser shall use best efforts to
contractually obligate the distributor(s) of the Picture to comply with the
provisions contained in this Paragraph 6. No casual or inadvertent failure
by
Purchaser, nor any failure by a third party, to accord Seller credit hereunder
shall be deemed to be a breach of this Agreement.
7. UNION
AGREEMENT AND MEMBERSHIP.
To
the
extent that any provision in this Agreement conflicts with the mandatory
provisions of any collective bargaining agreement applicable to and binding
upon
Purchase in connection with any rights granted to Purchaser by Seller herein,
or
in connection with the rendition of Seller’s services hereunder (including,
without limitation, the WGA Agreement) (the "Union Agreement"), the Union
Agreement shall prevail; provided, however, that in the event of such conflict,
the affected provisions of this Agreement so affected shall be curtailed and
limited only to the extent necessary to permit compliance with the minimum
mandatory terms and conditions of the Union Agreement. If, pursuant to the
Union
Agreement, Seller is entitled to any payment in addition to or greater than
those set forth herein, then any such additional or greater payment made by
Purchaser shall, except to the extent expressly prohibited by such collective
bargaining agreement, be considered as an advance against and deducted from
any
such sum which may subsequently become payable to Seller hereunder. If in
determining the payments to be made hereunder, there is required any allocation
of the compensation paid to Seller as between Seller’s various services, Seller
agrees to be bound by such allocation as may be made by Purchaser in good faith.
Purchaser shall acquire the maximum rights permitted to be acquired pursuant
to
the Union Agreement. Seller agrees to the content of any and all waivers that
Purchaser may obtain from any relevant union. Seller warrants and represents
that Seller is a member in good standing of the Writers Guild of America.
Purchaser shall not be entitled to apply overscale compensation for Seller’s
services in connection with the Picture in reduction of any other payments
due
to Seller under the Agreement or of any union or guild residual payments or
to
cross collateralize contingent compensation with union or guild residual
payments or vice versa. Company agrees to pay on behalf of Seller directly
to
the proper authority concerned all applicable WGA union pension, health and
welfare fund contributions; provided, however, in no event shall the aggregate
amount of such payments exceed the total of all similar payments which Purchaser
would be required to make had Purchaser employed Seller directly. Any such
payments will be treated by Purchaser for United States federal, state and
local
tax purposes as additional income paid by Purchaser to Seller as if Seller
made
such payment to the proper authority concerned.
8. PREMIERES/FESTIVALS.
Upon
the
condition that Seller shall fully perform all services and obligations required
to be performed by Seller hereunder, and provided that Seller is not in material
uncured default hereunder, Company shall invite ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇
and one (1) non-business related guest each to attend one (1) major U.S.
"celebrity" premiere of the Picture and all "first tier" film festival
screenings of the Picture. In the event such premiere is more than one hundred
(100) miles from Seller’s then current place of residence, Purchaser shall use
reasonable good faith efforts to require the distributor of the Picture to
provide Seller with the following: (i) one (1) round-trip air transportation,
if
available and if used, for Seller (only if such transportation is provided
to
other non-cast members); (ii) reasonable hotel accommodations (room and tax
only) (only if such accommodations are provided to other non-cast members);
and
(iii) reasonable expenses incurred in connection with or arising from the
attendance of Seller at any such premiere and/or A festival (only if such
expenses are reimbursed for any other non-cast member). Notwithstanding the
foregoing, Seller’s travel and expenses hereunder shall be on a favored nations
basis with any non-cast member of the Picture. If Lender and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
receive the same or similar benefits under the terms of a "Director Agreement"
between Purchaser and Lender dated April 13, 2007, then Lender and/or ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ shall be only entitled to such premiere invitations so as not cause
a
duplication of benefits accorded to Lender and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
hereunder.
9. REMEDIES.
Seller
agrees that the rights and privileges granted to Purchaser hereunder are of
a
special, unique, unusual, extraordinary and intellectual character involving
skill of the highest order which gives them a peculiar value, the loss of which
may be reasonably or adequately compensated by damages in an action at law,
and
that a breach by Seller of any of the provisions contained herein may cause
Purchaser to suffer irreparable injury and damage. Seller hereby expressly
agrees that Purchaser will be entitled to seek injunctive and other equitable
relief to prevent or cure any breach or threatened breach of this Agreement
by
Seller. Resort by Purchaser to injunctive or equitable relief, however, will
not
be construed as a waiver of any of the rights which Purchaser may have against
Seller for damages or otherwise. The waiver by either party of any breach hereof
shall not be deemed a waiver of any prior or subsequent breach hereof. All
remedies of either party shall be cumulative and the pursuit of one remedy
shall
not be deemed a waiver of any other remedy. Notwithstanding the foregoing,
in
the event of any breach or alleged breach of this Agreement by Purchaser,
Seller’s sole right shall be to seek the recovery of money damages, and Seller
shall not have the right to terminate or rescind this Agreement or in any way
to
enjoin or restrain the development, production, distribution, exhibition,
advertising or exploitation of the Picture or any of the other rights granted
to
Purchaser hereunder.
10. NO
OBLIGATION TO PROCEED.
Nothing
contained herein shall in any way obligate Purchaser to utilize the Property,
use Seller’s services hereunder or to include the results and proceeds of
Seller’s services in the Picture, or to produce, exhibit, advertise or exploit a
motion picture, television program or any other work based on the
Property.
11. ASSIGNMENT.
Purchaser
shall have the right to assign this Agreement, in whole or in part, in any
manner and to any party as Purchaser shall determine in its sole discretion;
provided, that Purchaser’s assignee is a "major" or "mini-major" motion picture
company or television network or cable television company (as such terms are
commonly understood in the entertainment industry); otherwise Purchaser shall
remain secondarily liable. Seller may not assign this Agreement, except for
a
one (1) time only right to assign the receipt of the compensation received
hereunder to a third party.
12. ADDITIONAL
DOCUMENTS.
Seller shall deliver to Purchaser the Assignment and the Certificate of
Authorship attached hereto as Exhibits "A" and "B" respectively, duly executed
by Seller, and any amendments or modifications thereto required by Purchaser
and, at Purchaser’s request, any and all further assignments and other
instruments consistent herewith reasonably necessary or desirable to carry
out
the purposes and intent of this Agreement. Seller hereby irrevocably appoints
Purchaser (which appointment shall be coupled with an interest) the true and
lawful attorney-in-fact of Seller to execute, acknowledge and deliver any such
assignment or instrument if Seller shall fail or refuse to execute, acknowledge
or deliver same, following written notice and an opportunity to review and
negotiate any such assignments or instruments.
13. NOTICES.
All
notices hereunder shall be in writing and shall be deemed given hereunder on
the
date delivered by hand or facsimile or a date forty-eight (48) hours after
the
date mailed by certified mail. Until further notice, the addresses of the
parties shall be as follows:
|
Seller:
|
Seasmoke,
Inc.
c/o
Elkins & ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
|
|
|
With
a copy to:
|
Benchmark
Entertainment
▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇#▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Myman
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ Light, LLP
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
|
|
Purchaser:
|
Buzz
Kill, Inc.
▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.:
▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
|
|
With
a copy to:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, PLLC
▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
|
14. INSURANCE.
Purchaser
shall cause Lender and Seller (including ▇▇▇▇▇▇ Kampmarm and Smollon personally)
to be added as an additional insureds under the Picture’s general liability,
▇▇▇▇▇▇▇’▇ compensation and errors and omissions policy in connection with the
Picture, if any, subject to the terms and conditions of said policy, including
any deductible or policy limits; provided, however, the inclusion of Seller
on
such policy will not relieve Seller from a breach of Seller’s representations,
warranties and indemnities contained herein.
15. SUBSEQUENT
PRODUCTIONS.
If
within seven (7) years after the initial general theatrical release (if any)
of
the Picture, if Purchaser or its assignee elects (in its sole discretion) to
have written a screenplay for the initial live action theatrical sequel to
and/or the initial live action theatrical prequel to and/or the initial live
action theatrical remake of the Picture (collectively a "Theatrical Production")
and provided Seller received sole "Written by" or “Screenplay by" credit for the
Picture upon Final Credit Determination and is then active as a writer in the
theatrical motion picture industry and is available as, when and where
reasonably required by Purchaser, then Purchaser shall first negotiate in good
faith (within Purchaser’s standard parameters, but in no event upon financial
terms for Seller writing services less favorable to Seller than the financial
terms for Seller’s writing services set forth in this Agreement) with Seller on
the screenplay for the first such Theatrical Production. If Purchaser
and Seller fail to agree on terms for Seller’s services on such Theatrical
Production within thirty (30) days following Purchaser’s service of notice on
Seller of the commencement of negotiations therefor, if Seller is unavailable,
or if Seller elects not to write, then Purchaser shall have the right to engage
another writer(s) and shall have no further obligation to Seller. If Purchaser
and Seller enter into an agreement for the initial Theatrical Production, such
agreement shall contain a provision substantially similar to this Paragraph
15.
16. DVD.
Upon
condition that Seller shall fully perform all of the required services and
material obligations required to be performed by Seller hereunder and that
Seller is not in material, uncured default hereunder, Seller shall be entitled
to two (2) DVDs of the Picture upon commercial availability of the
same.
17. TRAVEL.
If
Seller
shall be required by Purchaser to travel to a remote location more than one
hundred (100) miles from Seller’s principal residence, Purchaser shall provide
each Seller with one (1) round-trip transportation (if used), by air, (if
available and if appropriate) (only if such transportation is provided to other
non-cast members; provided, however, that in no event shall Seller that no
such
transportation shall be accorded if traveling within the state of New
Jersey), plus hotel accommodations (room and tax only) (only if such
accommodations are provided to other non-cast members), reasonable expenses
incurred in connection with or arising from the attendance of Seller in the
remote location (only if such expenses are reimbursed for any other non-cast
member) and ground transportation to and from the airport, hotel (if any) and
from the hotel to the set and between locations (only if such transportation
is
provided to any other non-cast member). The class of travel and accommodation
for Seller’s travel hereunder will be no less favorable than that for any other
party, including, without limitation, Purchaser’s producers.
18. REVERSION/TURNAROUND.
In
the
event that Purchaser has paid to Seller the Fixed Compensation but principal
photography of the Picture has not commenced, subject to force majeure
extensions, within eighteen (18) months from the date Purchaser pays Seller
the
Fixed Compensation hereunder, Seller shall have the right thereafter to
repurchase from Purchaser on a quitclaim basis all of Purchaser’s rights in the
Property by written notice to Purchaser accompanied by instruments in a form
reasonably satisfactory to Purchaser (a) guaranteeing full payment to Purchaser
of an aggregate amount equal to all payments made to Seller hereunder and under
any other agreement between Seller and Purchaser no later than commencement
of
principal photography of the first production based on the Property, plus
interest on such aggregate amount at the average commercial lending rate charged
from time to time by Purchaser’s principal lenders through the date of
repayment, and (b) assuming all executory obligations in connection with the
Property and any productions based thereon, and indemnifying Purchaser with
respect to all claims and liabilities which may arise in connection with the
Property and any productions based thereon.
19. MISCELLANEOUS.
19.1 The
titles of the paragraphs of this Agreement are for convenience only and shall
not in any way affect the interpretation of this Agreement.
19.2 This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts entered into and fully performed
therein.
19.3 This
Agreement contains the entire understanding of the parties hereto relating
to
the subject matter hereof and supersedes any prior understandings or agreements
of the parties. Seller acknowledges that no representation or agreement not
expressly contained in this Agreement has been made by Purchaser or any of
its
agents, employees or representatives. This Agreement may not be modified or
amended except in writing signed by the party to be charged.
IN
WITNESS WHEREOF, the parties have executed this agreement as of the day and
year
first written above.
BUZZ
KILL, INC.:
By:
/s/▇▇▇▇▇▇
▇▇▇▇▇
An
Authorized Signatory
SEASMOKE,
INC.:
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
An
Authorized Signatory
EIN
#: ▇▇-▇▇▇▇▇▇▇
/s/
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
