NO QUOTE BASIS** BUZZ KILL, INC. New York, New York 10016 As of April 13, 2007
**NO
QUOTE BASIS**
BUZZ
KILL, INC.
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As
of
April 13, 2007
Seasmoke,
Inc. f/s/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Re:
Buzz
Kill/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Dear
▇▇.
▇▇▇▇▇▇▇▇:
The
following shall set forth the agreement (”Agreement") between Buzz Kill, Inc.
("Company'), which is or shall become by principal photography of the Picture
a
signatory to the applicable DGA Agreement, and Seasmoke, Inc. (”Lender") with
respect to Lender furnishing the services of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“Director") for
Director’s directing services in connection with the motion picture currently
entitled “Buzz Kill" ("Picture") as follows; contingent upon, however, that
Company secures financing for the Picture:
1.
Services.
Lender
shall cause Director to render all services reasonably required by Company
during the pre-production, production and post-production of the
Picture.
1.1
Pre-Production
Services:
During
the pre-production period,commencing as one (1) week on either side of June
11,
2007 until one (1) week on either side of July 16, 2007 ('Pre-Production
Period"), Lender shall cause Director’s services to be on a exclusive, first
priority, in-person basis; it being understood that in the event that Director
provides services for a third party, Lender shall ensure that such services
shall not interfere or in any way hinder either Lender's or Director’s
obligations hereunder. During the Pre-Production Period, Director shall, amongst
other things, attend development, casting, location, scheduling, financing
and
budget meetings as reasonably designated by Company and perform all other
services customarily rendered by directors of first-class independently produced
theatrical motion pictures.
1.2
Production/Post-Production
Services:
Director's services shall be exclusive commencing one (1) week on either side
of
July 16, 2007 through completion of principal photography and first priority
through Directors delivery of the final cut of the Picture; thereafter,
Director’s services shall be non-exclusive but rendered on a regular in-person
basis until delivery of the completed Picture (including airline and television
coverage, and any additional photography required by Company), provided that
Director’s professional availability does not materially interfere with the
delivery of the completed Picture. Notwithstanding the foregoing, any of
Director’s services subsequent to September 8, 2007 shall be subject to
Directors teaching schedule.
1.3
Pay
and Play Basis:
Provided Lender and Director have fully Performed all material services required
by Company in connection with the Picture, provided further that neither Lender
nor Director are in material default or breach of this Agreement, and subject
to
Company’s right of suspension and/or termination on account of Directors
default, disability or an event of force majeure, Director shall become "pay
and
play" for the Director Fees in Paragraph 4.1(a) once the Company sets the
Picture for production; it being understood that the Picture shall be deemed
"set for production" when the financing for the Picture has been secured, final
screenplay and budget have been approved by Company, the principal cast and
creative personnel have been engaged and a definite start date has been
scheduled by the Company for commencement of principal photography; provided,
however, that in no event shall Director become "pay and play" later than any
other “pay and play" individual associated with the Picture (except the
producers of the Picture).
2.
Picture
Specifications.
Notwithstanding anything to the contrary contained herein, all of Company's
obligations hereunder shall be conditioned upon the following specifications
for
the Picture unless otherwise approved by Company in writing. The Picture shall:
(i) conform to the Company-approved screenplay dated as of February 8, 2007,
except for minor changes during production; (ii) have a running time of not
less
than eighty-five (85) minutes (exclusive of main and end titles) nor more than
one hundred twenty (120) minutes (inclusive of main and end titles); (iii)
receive a MPAA rating no more restrictive than "R"; and (iv) have sufficient
alternative footage of scenes and dialogue necessary for airline and U.S.
network television exhibition of the Picture.
3.
Credit.
Provided that the Picture is substantially completed with Director as the sole
director (excluding, however, second unit photography) thereof and there is
no
material uncured breach by Lender and/or Director hereunder, Director shall
be
accorded the following credits:
3.1
Directed
By Credit:
a
“Directed By" credit on a separate card in the main titles on positive prints
of
the Picture and in the billing block portion of all paid advertising of the
Picture under Company's control (subject to the customary exclusions and
practices of the distributor(s) of the Picture). Director’s credit shall be at
the same size height, width, thickness and duration) of the credit of
any other individual rendering producing or executive producing services on
the
Picture. If any individual producer or executive producer credit is displayed
in
the billing block portion of an excluded ad issued by or under the control
of
Company (other than an advertisement related to awards, nominations,
congratulations and the like or in the audio portion of any excluded ad in
which
only the honoree is mentioned), then Director shall receive Director's "Directed
By" credit in the billing block portion of such excluded ad. In the event that
Company elects, in its sole discretion, to include a "billing block" on the
packaging of video and soundtrack items (collectively, "Packaging"), Director
shall receive Director's "Directed By" credit on the packaging of the video
and
soundtrack items (collectively, the "Packaging").
3.2
Possessory
Credit:
A "Film
By" credit on a separate card in the main titles on positive prints of the
Picture and in the billing block portion of all paid advertising of the Picture
under Company's control (subject to the customary exclusions and practices
of
the distributor(s) of the Picture). Director's credit shall be at the same
size
(i.e., height, width, thickness and duration) of the credit of any other
individual rendering producing or executive producing services on the Picture.
If the production credit accorded for the Picture is displayed in the billing
block portion of an excluded ad issued by or under the control of Company (other
than an advertisement related to awards, nominations, congratulations and the
like or in the audio portion of any excluded ad in which only the honoree is
mentioned), then Director shall receive Director's "Film By" credit in the
billing block portion of such excluded ad. In the event that Company elects,
in
its sole discretion, to include a 'billing block" on the Packaging, Director
shall receive Director's "Film By" credit on the Packaging.
3.3
Miscellaneous:
Company
shall contractually obligate the distributor(s) of the Picture to comply with
the credit herein, but shall not be responsible for such distributor(s)' failure
to comply nor for inadvertent breach. Subject to the applicable provisions
of
the Directors Guild of America Low Budget Agreement ("DGA Agreement"), all
other
aspects of Director's credit shall be determined in Company's sole discretion.
No casual or inadvertent failure of Company to comply with the provisions of
this paragraph, nor any failure by third parties to comply with their agreements
with Company, shall constitute a breach of this Agreement by Company or such
third parties. In the event of any failure by Company to comply with the
foregoing credit provisions, and upon written notice from either Lender or
Director, Company shall make good faith efforts to prospectively cure any such
failure which is commercially practicable.
4.
Compensation.
Provided that the Picture is produced by Company or its assignees, licensees
or
successors and that neither Lender nor Director is in material uncured breach
hereunder, Lender shall be entitled to receive the following
compensation:
4.1
Director Fees: Fixed Compensation in the amount of: (a) Twenty Thousand Dollars
($20,000), for Director's services required by Company hereunder, which shall
be
due and payable as follows:
(i)
twenty percent (20%) upon execution of this Agreement;
(ii)
sixty percent (60%) in weekly installments over the in-going schedule of
principal photography;
(iii)
ten
percent (10%) upon the conclusion of principal photography; and
(iv)
ten
percent (10%) upon the Picture being delivered.
(b)
a
”Deferral" in the amount of Fifty Thousand Dollars ($50,000) which shall be
due
and payable according to the Definition and Application of Proceeds to be
attached hereto as Exhibit "A";
(c)
An
additional fee of Ten Thousand Dollars ($10,000) for every One Hundred Thousand
Dollars ($100,000) that the final ”actualized" budget of the Picture (excluding
contingency, completion bond costs, interest and other finance charges and
any
amounts payable to Lender hereunder) in excess of the currently anticipated
budget of Six Hundred Fifty Thousand Dollars ($650,000).
4.2
Contingent
Compensation:
If
Company or its assignees, licenses or successors produces or causes the Picture
to be produced, in addition to the amount set forth in Paragraph 4.1 above,
Lender shall each receive an amount equal to five percent (5%) of one hundred
percent (100%) of the “Net Proceeds", which shall be defined, calculated, due
and payable in accordance with Company's standard definition, subject to good
faith negotiations but in any event defined, computed, accounted for and paid
on
a most favored nations basis with any other Net Proceeds
participant.
4.3.
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 Company shall pay to Lender 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 Lender pursuant to this Paragraph 4.3 shall
be
applicable against Lender's Net Proceeds Participation.
5.
Transportation.
Lender
and Director acknowledge that Director is to be considered a local hire.
Accordingly, no travel, hotel or per-diem expenses shall become due or payable
as a result of either Lender's or Directors participation in the filming of
the
Picture. Notwithstanding the foregoing, if Company shall require Director to
render services hereunder (other than for publicity or promotional services)
at
a location which is more than one hundred (100) miles from Directors principal
residence (the "Location"), then Company shall provide Director with: (i) one
(1) round-trip, coach-class air transportation (if available, appropriate and
if
used), between Director's residence and the Location (only if such travel is
provided to other non-cast members; provided, however, that no such
transportation shall be accorded if traveling within the state of New Jersey);
(ii) hotel accommodations (room and tax only) (only if such accommodations
are
provided to other non-cast members); and (iii) ground transportation between
the
airport and hotel accommodations and ground transportation between hotel and
the
set and between locations (only if such transportation is provided to any other
non-cast member). Lender and Director expressly acknowledge that no such
transportation or expenses are required in order for Director to render
Director's services hereunder.
6.
Cutting
& Editing.
Subject
to the customary restrictions of the distributor(s) of the Picture, and subject
further to the DGA Agreement, and provided that: (i) principal photography
of
the Picture is completed with Director as the sole director thereof: (ii)
neither Lender nor Director materially breach any of the terms hereunder and
such breach remains uncured; and (iii) the Picture is completed in conformity
with the picture specifications as set forth in Paragraph 2 herein, Director
shall have the right of "final cut." Director agrees to deliver the “locked"
Picture no later than eight (8) weeks after the conclusion of principal
photography and the "final cut" not later than twelve (12) weeks thereafter.
Director's cutting and preview rights hereunder shall be, as set forth in the
DGA Agreement, exercised in a manner so as not to result in any costs in excess
of the approved budget for the Picture. Further, subject to the customary
restrictions of the distributor(s) of the Picture, Director shall have the
right
to cut the foreign, festival, television, music videos and airline versions
of
the Picture.
7.
Approvals.
Lender
and Director acknowledge and agree that Director shall have all approvals and
controls subject to meaningful consultation with Company, including, without
limitation, with respect to all key creative elements and the key crew. Director
shall have meaningful consultation regarding the production schedule, script,
the score and soundtrack for the Picture. Lender and Director acknowledge that
the services to be rendered hereunder are personal to Director and may not
be
delegated or assigned.
8.
Work-For-Hire.
Lender
and Director acknowledge that all results and proceeds of Lender's and
Director's services hereunder and any material, whether written or oral,
contributed or submitted to Company in connection with the Picture are being
specially ordered by Company for use as part of a motion picture and shall
be
considered a "work-made-for-hire" for Company and, therefore, Company shall
be
the author and copyright owner thereof for all purposes throughout the universe.
If for any reason any of the foregoing results and proceeds or materials are
not
deemed a work-made-for-hire then Lender and Director hereby grant and
irrevocably assign to Company all such rights. Lender and Director hereby grant
to Company the right, in perpetuity and throughout the world, to use, issue
and
authorize publicity concerning Director and to use Director's name, approved
image, approved voice, approved likeness, approved photograph and approved
biography in connection with the production (except with respect to Director's
acting services should he elect to render such services), exhibition, promotion,
advertising, distribution and exploitation of the Picture, provided Director
is
not depicted as directly or indirectly endorsing any product or
service.
9.
Force
Majeure.
In the
event the preparation or production of the Picture is materially hampered,
interrupted or prevented due to an event of force majeure (as that term is
customarily defined in the motion picture industry) including, but not limited
to, an act of God, war, riot, civil commotion, tire, casualty, strike, labor
dispute, act of any governmental authority or any other reason which is beyond
Company's reasonable control, (and provided that Company also suspends the
rendition of services by all other personnel on the Picture for such event
of
force majeure), Company shall have the right to (a) suspend the Agreement (by
serving notice of such suspension to Director in writing) while such event
continues (and such additional period of time as Company may require to make
preparation for the utilization or resumption of Lender's and Director's
services) and/or (b) terminate the Agreement (by serving notice of such
termination to Director in writing). In the event of a suspension pursuant
to
this paragraph, Company's obligation to make the payments provided hereunder
shall likewise be suspended, except for any payments, which have accrued prior
to the suspension, but have not yet been paid; provided that if any other person
associated with the Picture has been paid during such suspension, Director
shall
also be paid. Director shall have the right to work for third parties during
the
suspension period. Company may not suspend either Lender or Director under
this
Paragraph 9 unless all other personnel principal cast members and above-the-line
crew members are also suspended; and neither Lender nor Director may be
terminated under this Paragraph 9 unless all other personnel are also
terminated. In the event of a termination pursuant to this paragraph, Company,
Lender and Director shall be released and discharged from any further obligation
to each other hereunder and the compensation if any theretofore accrued to
Lender hereunder when paid shall be deemed payment in full of the compensation
payable to Lender; provided however that Company's credit, indemnification
and
insurance obligations to Lender and Director shall survive any such termination.
If Company has exercised its suspension rights with respect to any event of
force majeure and subsequently reinstated Lender and Director, then Company
may
not suspend again for a continuation of the same event of force majeure (other
than where such event of force majeure is a strike or anticipated strike by
the
DGA, WGA and/or SAG). If Company requests Director to remain on location during
any such period of suspension, Company shall continue to provide for Director
as
described in this Agreement. Director shall only be subject to a single
suspension for a force majeure event. Director shall be reinstated if production
of the Picture is recommenced after a force majeure termination on the terms
as
set forth herein.
10.
Default/DisabiIity.
Upon
written notice to Lender of any breach by Lender and/or Director of any of
the
provisions of this Agreement, and provided that Lender and/or Director shall
have a reasonable time in light of the time restraints imposed by the production
schedule, but in no event to exceed forty eight (48) hours after receipt of
written notice to cure such breach (such reasonable time, the “Cure Period")
Company shall thereafter immediately have the right, exercisable at any time
after the expiration of the Cure Period, to suspend Lender's engagement
hereunder and/or to terminate this Agreement by so notifying Lender in writing.
If either Lender or Director fail or refuse or neglect for any reason whatsoever
to render the services or fulfill the material obligations provided hereunder,
or if Lender shall be unable to cause Director to render the services or fulfill
the obligations provided hereunder by reason of sickness, disability (and such
sickness and/or disability lasts longer than seven (7) consecutive days or
fourteen (14) days in the aggregate), death or unavoidable accident, Company
shall have the right to (a) suspend the Agreement (by serving notice of such
suspension to Director in writing) which such default or disability continues
(and such additional period of time as Company may require to make preparation
for the utilization or resumption of Lender's and Director's services hereunder)
and/or (b) terminate the Agreement (by serving notice of such termination to
Director in writing). In the event of a suspension pursuant to this paragraph,
Company's obligations to make payments hereunder described shall be suspended,
except for any payments that have accrued prior to the suspension, but have
not
yet been paid. In the event Company elects to terminate the Agreement because
of
either Lender's or Directors materially uncured default, Company shall have
no
further obligation to either Lender or Director hereunder, except for Company's
credit, indemnity and insurance obligations to Lender and Director. In the
event
that Company elects to terminate the Agreement because of sickness, disability,
death or accident, the compensation if any theretofore accrued to Lender when
paid shall be deemed payment in full of the compensation payable to Lender
hereunder. At Company's election, (i) a material breach by either Lender or
Director of any other agreements entered into between Lender and/or Director
and
Company ('Other Agreements") will be deemed to be a material breach of this
Agreement; and (ii) if Lender's or Director's services are suspended and/or
terminated under the Other Agreements, then Company shall have the right to
suspend Lender's and/or Director's services hereunder or terminate this
Agreement, as applicable.
11.
Representations
and Warranties.
Lender
and Director hereby represent, warrant and agree that:
11.1
Lender is a duly organized and existing corporation in good standing under
the
laws of its place and country of incorporation, and has the exclusive right,
power and authority to enter into this Agreement, to grant the rights agreed
to
be granted by Lender hereunder and to furnish the services of Director as herein
provided under a valid and subsisting exclusive binding contract of employment
pursuant to which Lender employs Director for a term extending at least until
the completion of all services required of Director hereunder, and if Lender
was
incorporated outside the United States of America, it is not engaged in any
trade or business in the United States and does not have a “permanent
establishment" in the United States (as that term is defined in the Tax Treaty
between the United States and the country of incorporation), and it does not
have any agent in the United States who has, or habitually exercises, general
authority to negotiate and conclude contracts on its behalf.
11.2 Lender
will make all payments of compensation required to be made to Director on
account of the services rendered by Director pursuant to this Agreement and
by
reason of the exploitation of any rights granted to Company hereunder. Lender
will discharge all obligations imposed upon Lender in connection with furnishing
Director's services hereunder under applicable local, state, federal and
international laws, including, but not limited to, obligations with respect
to
tax withholdings, worker’s compensation laws, national health insurance, social
security and unemployment and disability insurance.
11.3
Neither Lender nor Director is subject to any obligation or disability which
will or might prevent Lender or Director from fully keeping and performing
all
of the material covenants and conditions to be kept or performed by Lender
or
Director hereunder, and neither Lender nor Director has made nor will make
any
grant, assignment, commitment or do or permit any act which will or might
interfere with or impair the full and complete performance of Lender's and
Director's services or Company's full and complete enjoyment and exercise of
the
rights and privileges granted herein.
11.4
Any
and all material written or furnished by Lender and Director hereunder is or
will be original, shall not have been exploited in any manner or medium or
(provided that Lender and/or Director notifies Company thereof) shall be in
the
public domain throughout the world, and shall not, to the best of Director's
knowledge, infringe upon or violate the right of privacy of, or constitute
a
libel, slander, or unfair competition against, or violate any common law right,
copyright or any other right of any person or entity.
11.5
to
the best of Lender and Director's knowledge, there are (and will be) no liens,
claims or encumbrances by or through Lender and/or Director which might conflict
with or otherwise affect any of the provisions of the Agreement or Company's
promotion or exploitation of the Picture (and all rights therein) in any and
all
media whether now known or hereafter devised throughout the universe in
perpetuity; it being agreed, without limiting the generality of the foregoing,
that Lender's and Director's representations, warranties, indemnity and grant
of
rights hereunder shall survive the suspension and/or termination, if ever,
of
Lender's and Director's engagement in connection with the Picture. Company's
indemnity, Company's obligation to accord Director credit as set forth herein
and Company's obligation to provide insurance coverage as set forth herein
shall
survive the suspension and/or termination.
11.6
Lender shall cause Director to deliver the completed Picture in accordance
with
Company's approved budget (excluding costs and/or delays that are beyond
Director's control), production and post-production schedule, delivery date
and
shooting script (it being understood that neither Lender nor Director shall
make
any changes in connection therewith, except as provided in Paragraph 2 above,
without Company's prior approval).
12.
Indemnity.
Lender
and Director shall defend and indemnify and hold harmless Company and Company's
employees and its officers, agent, successors, assign and licensees from and
against any and all liabilities, claims, costs, damages and expenses (including
reasonable outside attorneys' fees and disbursements) arising out of or in
connection with a breach of the foregoing covenants, warranties or
representations. Except with respect to matters arising from a breach hereof
by
Lender and/or Director and/or the gross negligence or willful misconduct of
Lender and/or Director, Company shall indemnify Lender, Director, and each
of
its respective successors, heirs, assigns, administrators, trustees, executors
and personal representatives and hold them harmless from and against any and
all
liabilities, claims, costs, damages and expenses (including reasonable outside
attorneys' fees and disbursements) arising out of Company's development,
production, distribution and/or exploitations of the Picture and/or any element
thereon.
13.
No
Obligation to Proceed.
Company
has no obligation to actually use the results and proceeds of Directors services
or to make, produce or exploit the Picture; it being understood that in the
event Company abandons production of the Picture, it may terminate Lender’s and
Director’s services pursuant to this Paragraph 13, Company shall not have any
further obligation to either Lender or Director other than the obligation to
pay
all vested monies theretofore accrued and yet unpaid to Lender hereunder.
Further, Company may, at its sole discretion, abandon the Picture at any time
without further obligation to either Lender or Director other than the
obligation to pay all monies theretofore accrued and yet unpaid to Lender
hereunder. Payment of all compensation earned and accrued hereunder, subject
to
Company's right of termination or suspension, shall fully discharge Company
of
all of its obligations hereunder.
14.
Remedies.
Lender
agrees that the services to be rendered by Director hereunder and the rights
and
privileges granted to Company 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
either Lender or Director hereunder or the failure of either Lender or Director
to render services in accordance with any of the provisions hereof may cause
Company to suffer irreparable injury and damage. Lender hereby expressly agrees
that Company will be entitled to seek injunctive and other equitable relief
to
prevent or cure any breach or threatened breach of this Agreement. Resort by
Company to injunctive or equitable relief, however, will not be construed as
a
waiver of any of the rights which Company may have against either Lender or
Director for damages or otherwise. Notwithstanding the foregoing, in the event
of any breach or alleged breach of this Agreement by Company, Lender's and
Director's sole right shall be to seek the recovery of money damages, and
neither Lender nor Director shall have any right to terminate or rescind this
Agreement or to otherwise enjoin or restrain the production, distribution,
advertising or exploitation of the Picture or any rights therein.
15.
Publicity.
Lender
and Director warrant and agree that neither Lender nor Director shall authorize
the publication of any news story, magazine article or other publicity or
information of any kind or nature relating to the Picture or Lenders and/or
Directors services hereunder or to Company or Company's personnel or operations
or to any exhibitor or any distributor of the Picture without the prior written
consent of Company in each instance; provided, however, that Lender and Director
may issue personal publicity solely concerning Director in which the Picture
is
mentioned incidentally, so long as such references to the Picture, Company
or
Company's personnel are not derogatory.
16.
Premiere.
Upon
the condition that Lender and Director fully and faithfully perform all of
the
material services and obligations required to be performed by Lender and
Director hereunder and that neither Lender nor Director are in material uncured
default hereunder, Company shall provide Director plus one (1) guest with an
invitation to attend all major United States celebrity premiere(s) and all
major
film festivals (if any) of the Picture. If any individual receives travel and
expenses to any premiere or film festival, and in the event any such premiere
or
festival is more than two hundred fifty (250) miles from Director's then current
place of residence, Company shall use reasonable good faith efforts to require
the distributor of the Picture to provide Director with the following: (i)
one
(1) round-trip air transportation, if available and if used (only if such
transportation is provided to other non-cast members); (ii) hotel accommodations
(room and tax only) (only if such accommodations are provided to any other
non-cast member); and (iii) reasonable expenses incurred in connection with
or
arising from the attendance of Director at any such premiere or festival (only
if such expenses are reimbursed for any other non-cast member). All provisions
contained in this Paragraph 16 shall be on a most favored nations basis with
all
other producers rendering services in connection with the Picture (ie, if any
other producer is accorded air transportation, accommodations and/or expenses
for any premiere or festival, Director shall also receive air transportation,
accommodations and/or expenses for such premiere or festival). If Director
receives the same or similar benefits under the terms of a "Literary Purchase
Agreement" between Purchaser and Lender dated April 1, 2007, then Director
shall
be only entitled to such premiere invitations and/or transportation and expenses
so as not cause a duplication of benefits accorded to Director
hereunder.
17.
Errors
& Omissions Insurance.
Company
shall add Lender and Director as additional insureds under Company's errors
and
omissions and general liability policies 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 Lender and Director on said
policy will relieve neither Lender nor Director from
his representations, warranties and indemnities contained
herein.
18.
Union
Agreement and Membership.
Company
hereby warrants and represents that it will be a signatory in good standing
with
the Directors Guild of America, and shall be subject to the terms and conditions
contained within the DGA Agreement no later than the commencement of principal
photography for the Picture. To the extent that any provision in this Agreement
conflicts with the mandatory provisions of any collective bargaining agreement
applicable to and binding upon Company in connection with the rendition of
Director's services hereunder, including, without limitation, the DGA 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. To the extent and during such period as it may be lawful for Company
to require Director to do so, Lender shall cause Director to become and remain
a
member in good standing of any appropriate union(s), including, without
limitation, the Directors Guild of America. If Director fails, neglects or
refuses to become a member in good standing of any such union(s), Company shall
have the right at Company's sole election (in addition to its other rights
and
remedies hereunder) to terminate this Agreement or to pay on Director's behalf
any required dues, fees or other payments to such union(s) and in the event
of
any such payment, Company may deduct the amounts paid by Company from any
compensation otherwise payable to Lender hereunder. Company shall acquire the
maximum rights permitted to be acquired pursuant to the Union Agreement.
Director agrees to the content of any and all waivers that Company may obtain
from any relevant union. Company shall not be entitled to apply overscale
compensation for Director's services in connection with the Picture in reduction
of any other payments due Lender and/or Director 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 Lender directly to the proper authority concerned all
applicable DGA 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 Company would be required to make had
Company employed Director directly. Any such payments will be treated by Company
for United States federal, state and local tax purposes as additional income
paid by Company to Lender and as if Lender made such payment to the proper
authority concerned.
19.
Jurisdiction.
This
Agreement shall be governed by and construed pursuant to the laws of the State
of New York, United States of America applicable to agreements executed and
to
be performed entirely therein.
20.
Commitment
to Others.
Neither
Lender nor Director shall have any right or authority to nor shall employ any
person in any capacity, nor contract for the purchase or rental of any article
or material, or make any commitment, agreement or obligation whereby Company
shall be required to pay any monies or other consideration without Company's
prior written consent in each instance.
21.
DVD
For Private Use:
Upon
condition that Director shall substantially perform all of the material services
and obligations required to be performed by Director hereunder and that Lender
and/or Director is not in material default hereunder, Company shall furnish
Director (for Director's private, non-commercial use) with one (1) DVD copy
of
the Picture, when the same is manufactured and generally commercially
available.
22.
Office/Assistant:
Company
shall make best efforts to provide an intern for Director during the course
of
production and provide Director with access to Company's offices during the
course of production.
23.
Subsequent
Production:
If
within seven (7) years after the initial general theatrical release (if any)
of
the Picture, if Company or its assignee elects (in its sole discretion) to
create an initial live action theatrical sequel to and/or an initial live action
theatrical prequel to and/or the initial live action theatrical remake of the
Picture (collectively the “Theatrical Production") and provided Director
receives sole “Directed by" credit for the Picture and is then active as a
director in the theatrical motion picture industry and is available as, when
and
where reasonably required by Company, then Company shall first negotiate in
good
faith (within Company's standard parameters but in no event upon financial
terms
for Director's directing services less favorable to Director than the financial
terms as set forth in this Agreement) with Director on the direction for the
first such Theatrical Production. If Producer and Director fail to agree on
terms for Director's services on such Theatrical Production within thirty (30)
days following Company's service of notice on Director of the commencement
of
negotiations therefore, if Director is unavailable, or if Director elects not
to
direct, then Company shall the right to engage another director(s) and shall
have no further obligation to Director. If Company and Director enter into
such
an agreement for the initial Theatrical Production, such agreement shall contain
a provision substantially similar to this Paragraph 23.
24.
Miscellaneous.
24.1
This
Agreement contains the entire understanding of the parties relating to the
subject matter hereof and cancels and supercedes any prior understandings or
agreements whether written or oral of the parties. Lender and Director
acknowledge that no representation or agreement not expressly contained in
this
Agreement has been made by Company or any of its agents, employees or
representatives to either Lender or Director. This Agreement may not be modified
or amended except in writing signed by the party to be charged.
24.2
All
written notices which either party hereto is required or may desire to give
to
the other shall be given by delivering or mailing the same to the other at
the
address shown on the face hereof, or at such other address as may be designated
in writing by any such party in a notice to the other given as aforesaid.
Notices shall be sufficiently given when hand-delivered or when the same shall
be deposited so addressed, postage prepaid, in the mail and/or when the same
shall have been transmitted by facsimile or similar means and three (3) days
after mailing of said delivery, mailing or transmission shall be the date of
the
giving of such notice. Copies of all notices to Company shall be sent to ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, PLLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn.: ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇, Esq. Copies of all notices to Lender and/or Director shall be sent to
Myman ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ Light, LLP, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
24.3
Within five (5) business days after Lender’s and/or Director’s receipt of
written request from Company, Lender and/or Director shall execute, acknowledge
and deliver to Company any and all further documents or instruments consistent
herewith necessary to carry out the purposes and intent of this Agreement.
Lender and Director hereby irrevocably appoint Company (which appointment Lender
and Director acknowledge is a power coupled with an interest) the true and
lawful attorney-in-fact of Lender and Director to execute, acknowledge and
deliver any such document or instrument if Lender and/or Director shall fail
or
refuse to execute, acknowledge or deliver the same within such period. If
Company signs any documents as either Lender’s or Director’s attorney-in-fact,
Company will provide Lender and/or Director with copies of such documents;
provided, however, that inadvertent failure to do so shall not be deemed a
breach of this Agreement.
24.4
In
no event shall either Lender or Director be provided with transportation, a
per
diem, invitations to premieres or other benefits pursuant to this Agreement, or
Other Agreements so as to result in double benefits to either Lender or
Director.
24.5
This
Agreement is not a partnership between or joint venture by the parties hereto
and neither is the agent of the other. This Agreement is not for the benefit
of
any third party, whether or not referred to herein. Captions and organization
are for convenience only and shall not be used to construe meaning. A waiver
of
any breach shall not waive a prior or subsequent breach. All remedies shall
be
cumulative and pursuit of any one shall not waive any other. This Agreement
may
be signed in counterpart, each of which shall be deemed an original, but all
of
which together shall constitute the Agreement.
IN
WITNESS HEREOF, the parties hereto have executed this Agreement the day and
year
first above written.
ACCEPTED
AND AGREED:
BUZZ
KILL, INC.
By: /s/
▇▇▇▇▇▇
▇▇▇▇▇
An
Authorized Signatory
SEASMOKE.
INC.
By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
An
Authorized Signatory
EIN:
▇▇-▇▇▇▇▇▇▇
