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EXHIBIT 10.15
PROGRAM LICENSE AGREEMENT
Dated as of Nov. 13, 1998
This Program License Agreement shall serve to confirm the agreement between
Hallmark Entertainment Distribution Company ("HEDC" or "Licensor") and the
Odyssey Holdings L.L.C. ("Licensee") in connection with Licensee's acquiring
from HEDC certain exhibition rights to various HEDC product as follows:
1. Licensed Programs. Licensed Programs shall consist of television movies
and mini-series (each a "Picture" and collectively "Pictures") as follows: (a)
the programs listed on Schedule A hereto ("Library Pictures"); (b) two-hour made
for television movies and mini-series in one- or two-hour segments (in the
aggregate more than two hours and less than thirteen hours) produced by HEDC and
completed after the date hereof and during the Term for premier on a free, basic
or pay television service and which becomes available thereafter to HEDC to use
or license during the Term ("New Pictures"); and (c) programming produced by or
on behalf of HEDC for Licensee pursuant to Paragraph 8 hereof ("Original
Pictures").
2. Term. The Term shall commence as of the date hereof and expire five
years from the launch date of the Odyssey Channel (as defined in the Amended and
Restated Company Agreement of Odyssey Channel L.L.C., dated as of the date
hereof (the "Company Agreement"); provided, however, that this Agreement shall
automatically renew for successive additional three-year terms subject to the
rate adjustments provided in Paragraph 6 hereof for so long as Hallmark
Entertainment, Inc. or an affiliate thereof ("HEI") owns an interest of 10% or
more in Licensee; provided that if at the time HEI ceases to own at least 10% of
Licensee the term remaining shall be less than two years, this Agreement shall
be extended to the date two years after the date HEI ceased to own said 10%
interest subject to the rate adjustment provisions in Paragraph 6. Despite
expiration of the Term hereof the provisions of Paragraphs 3, 6, 9, 10 and 11
and all rights granted pursuant to Paragraph 5 shall remain in effect during any
Picture Term or Second Picture Term as defined in Paragraph 5 below.
3. Territory. The Territory shall be the United States together with its
possessions and territories.
4. Licensed Product. Licensee agrees to license from HEDC and HEDC agrees
to license to Licensee all Library Pictures, all New Pictures and all Original
Pictures produced by or on behalf of HEDC hereunder for exhibition on all forms
of television on the Odyssey Channel, but not including pay per view television,
commencing upon the date the Picture is available as set forth on Schedule "A"
hereto (the "Availability Date"); provided, however, if any Pictures are
televised by over-the-air broadcast, Licensee shall be responsible for payment
of all residuals in connection with such broadcast and shall copy Licensor on
all residual reports and payments sent to any guild. Schedule "A" shall be
amended from time to time to add New Pictures and Original Pictures and their
respective Availability Dates.
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5. Licensed Exhibitions.
(a) Licensee will license each Picture in the Territory for a period
of five years (or such shorter period for which any Library
Picture is available as specified on Schedule A hereto or for
which any New Picture is available despite HEDC's reasonable
efforts to obtain the right to license the Program for such
five-year period) from the Availability Date ("Picture Term") and
shall be entitled to thirty exhibition days during the Picture
Term and unlimited runs per exhibition day (collectively, the
"License"). The rights granted under the License include without
limitation the following:
(i) The right to use the title of each Picture for the
purpose of promoting, publicizing and advertising the exhibition
of the Picture on Odyssey Channel;
(ii) The right to use and perform any and all music, lyrics
and musical compositions contained in each Picture and/or
recorded in the soundtrack solely as embodied in the picture and
as part of the exhibition, advertising and publicizing of such
Picture subject to paragraph 10 of the Standard Terms and
Conditions;
(iii) The right to edit the videotapes to the extent
necessary for purposes of timing and commercial insertions,
provided that Licensee will not edit out the copyright notice or
credits
(iv) The right to publicize and advertise the exhibition of
each Picture on the Odyssey Channel throughout the Territory
during the Term, including without limitation, the right in the
Territory for the purpose of advertising and publicizing the
exhibition of each Picture on the Odyssey Channel:
(A) to publish and to license and authorize others to
publish any synopses and summaries from each Picture and
from any literary or dramatic material included in such
Picture in newspapers, magazines, trade periodicals,
booklets, press books and any other periodicals and in all
other media of advertising and publicity not exceeding 1000
words in length;
(B) to broadcast by radio and television for
advertising purposes and to authorize others to so broadcast
any parts or portions of each Picture not exceeding two
minutes in length;
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(C) to use and authorize others to use the name,
physical likeness and voice (and any simulations or
reproduction of any thereof as embodied in the Picture) of
any party appearing in such Picture for the purpose of
advertising or publicizing the Picture, subject to HEDC's
prior approval, not to be unreasonably withheld;
(D) to use Licensee's name and trademark in all
advertising and publicity issued by Licensee in connection
with the exhibition of each Picture on the Odyssey Channel;
(E) to permit commercial messages to be exhibited
during and after the exhibition of each Picture;
(F) to cause trailers of the Pictures and prints
thereof to be manufactured, exhibited and distributed by
every means, medium, process, method and device now or
hereafter known.
Licensee's rights hereunder are not transferable except as provided in
Paragraph 9 hereof.
(b) The License shall be exclusive to Licensee during the Term
against all forms of television, including pay per view, and
linear distribution of Pictures over the Internet, in the
Territory, and HEDC may not license or otherwise authorize the
exhibition of the Pictures in any form of television during the
Term, including, but not limited to, basic cable, traditional pay
cable, pay per view or, as described, over the Internet.
(c) Licensee shall have the option of extending the Picture Term of
any Picture for an additional three-year period ("Second Picture
Term") by providing HEDC with notice at least six months prior to
expiration of the original Picture Term. Such extension shall be
at 60% of the rate set forth in Paragraph 6 hereof.
(d) HEDC shall have the option of extending the Picture Term of any
Picture for an additional three-year period ("Second Picture
Term") by providing Licensee with notice at least six months
prior to expiration of the original Picture Term. Such extension
shall be at 50% of the rate set forth in Paragraph 6 hereof.
6. License Fees.
(a) For and in consideration of the rights and licenses granted to
Licensee hereunder, Licensee shall pay to HEDC the License Fees
set forth on
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Schedule "B" for Library Pictures and New Pictures and the
License Fees set forth on Schedule "C" for Original Pictures.
The amounts of such License Fees shall remain in effect until
December 31, 1999, and thereafter shall be adjusted as provided
in subparagraphs (b) and (c) below. The License Fee for each
Library Picture and New Picture shall be payable in equal annual
installments over the Picture Term payable commencing on the
Availability Date and on each anniversary thereof until paid in
full. The License Fee for each Library and New Picture in the
Second Picture Term shall be paid in full at the commencement of
the Second Picture Term. The License Fee for all Original
Pictures shall be paid one-third at the start of production,
one-third on completion of production and one-third on delivery.
(b) Commencing January 1, 2000, the amounts of such License Fees
shall increase by 5% per year on a cumulative basis and such
increase shall apply to any and all Picture Terms commencing
after January 1, 2000.
(c) Commencing January 1, 2006, the amounts of such License Fees
shall increase by the greater of (x) 5% per year and (y) the
average percentage price increase paid by Licensee for third
party programming for that same year ("Third Party Increase").
The Third Party Increase shall be estimated in good faith by the
parties in determining annual payments. The actual Third Party
Increase shall be calculated and reconciled with the estimate
within forty-five days of each year end. Such increase shall be
on a cumulative basis and shall apply to any and all Picture
Terms commencing after January 1, 2006.
7. Other Product. During the Term Licensee shall have a right of first
negotiation on a product-by-product basis with respect to television exhibition
rights controlled by HEDC for any new television product produced by HEDC which
does not fall under this agreement (i.e., specials, documentaries, etc). The
parties agree to negotiate in good faith with respect to any such product for a
period of 45 days. HEDC will negotiate exclusively with Licensee during such
period. If HEDC and Licensee fail to reach an agreement within such 45-day
period, HEDC will not thereafter offer the product to a third party on terms
more favorable than those offered to HEDC by Licensee.
8. Production. The parties agree that Licensee shall order and HEDC shall
produce or cause to be produced for Licensee four two-hour television movies and
one series (twenty-six thirty-minute episodes) during each year of the Term of
this Agreement (the "Original Pictures") except that during the first two years
of the Term, Licensee shall be required to order only two movies and one series
per year from HEDC; provided, however, HEDC shall not be required to produce any
production for which good faith revenue projections indicate HEDC will not
recoup any production deficit within five years. The parties shall have mutual
creative approval with respect to the production of the Original Pictures. If
Licensee desires any additional television
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movies or series produced for it during the Term, it shall order them as
follows: the first two additional movies from HEDC and the third from The Xxx
Xxxxxx Company; the first two additional series from The Xxx Xxxxxx Company and
the third from HEDC and continue that sequence for additional pictures. All
rights in each Original Picture shall belong to HEDC subject to the licenses
granted to Licensee pursuant to this Agreement.
9. Transferability. Licensee may sublicense and transfer its rights
hereunder to the Library Pictures and New Pictures to a third party provided
that if the compensation it receives is greater than the Licensee Fee it is
obligated to pay HEDC, the excess shall be divided equally between HEDC and
Licensee.
10. Standard Terms and Conditions. The Standard Terms and Conditions
attached hereto are incorporated herein and made a part hereof. All Licensed
Programs shall also comply with the Standards and Practices and Programming
Philosophy of Licensee, attached to the Company Agreement.
11. Governing Law. This agreement shall be construed and governed in
accordance with the laws of the State of New York and any action arising out of
or in connection with this agreement shall be brought in a court having
jurisdiction of the subject matter in New York City, and the parties hereto
agree to submit themselves to the jurisdiction of any such court.
12. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first written
above.
HALLMARK ENTERTAINMENT ODYSSEY L.L.C.
DISTRIBUTION COMPANY
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXXXXXXX X. XXXXXX
------------------------------ ---------------------------------
Title: Vice President Title: President and CEO
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STANDARD TERMS AND CONDITIONS
1. DELIVERY OF PRINTS.
(a) Licensor will deliver or cause to be delivered to Licensee ( )
type videotape of each Picture licensed by this Agreement (hereinafter
collectively called "prints" and individually called "print"). Delivery of each
print to Licensee or to Licensee's agent at a location designated by Licensee
shall be deemed to be delivery by Licensor to Licensee hereunder. All costs and
charges in connection with such delivery, including without limitation shipping
charges and insurances thereon shall be borne by Licensee. HEDC will be
responsible for all costs associated with creation and manufacture of and
insurance for the videotapes.
(b) Licensee agrees to give Licensor reasonable prior written notice
of the initial scheduled date of telecast of each Licensed Program, provided
that failure by Licensee to deliver any such notice (other than repeated
failures) shall not constitute a material breach of this Agreement. Licensee
shall notify Licensor by telefax within ten (10) business days after receipt of
a print if such print is physically defective for television broadcasting by
customary industry standards. In the event any print has not reached its
destination at least fifteen (15) days in advance of the date of scheduled
telecast thereof, Licensee shall notify Licensor by telefax. If Licensee so
notifies Licensor with respect to any such physical defect of failure of
delivery, as aforesaid, Licensor shall deliver to Licensee a replacement print
of the same Picture (or another Picture of comparable quality reasonably
acceptable to Licensee) at least two (2) days prior to the scheduled telecast.
If Licensor fails to do so, such telecast shall be deemed eliminated and the
Picture withdrawn, as provided in subparagraph (b) of paragraph 11 of this
Agreement. Failure of Licensee to give Licensor such notice as aforesaid shall
be deemed Licensee's irrevocable acknowledgment that such print has been
received and is satisfactory in all respects.
2. RETURN OF PRINTS. Licensee agrees to return to Licensor, prepaid, within
forty-eight (48) hours after the last licensed telecast of each picture, the
print (which includes the container thereof), in the same form and condition as
delivered by Licensor, ordinary wear and tear from proper use excepted. Such
print shall be returned to Licensor (along with any other material furnished by
Licensor) as specified in Schedule "A" hereto, or to any other party, or places
as Licensor may from time to time designate. Additionally, Licensee agrees to
return to Licensor, prepaid, all other material that may have been furnished by
Licensor, within one (1) week following completion of the use of such material
by Licensee, but in no event later than after the last licensed telecast. If any
prints are lost, stolen, destroyed or damaged, Licensee shall pay Licensor the
cost of replacement thereof, within seven (7) days after billing by Licensor.
Such payment shall not be construed to transfer to Licensee any right, title or
interest in or to said prints. Licensor may request that Licensee have the
prints destroyed and in such event Licensee agrees to do so, and to furnish
Licensor with Certificates of Destruction.
3. ALTERATION OF PRINTS. Licensee shall telecast each picture as delivered,
in its entirety and Licensee agrees not to cut, change, alter, modify or add to
the prints of the Pictures, or any of them, without Licensor's prior written
consent. However, Licensee may insert commercial material and make such minor
cuts as are necessary to conform to time
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segment requirements but under no circumstances shall Licensee delete or
reposition the copyright notice or the credits and xxxxxxxx incorporated in the
pictures as delivered by Licensor. In no event may any such insertions of
commercial material or such minor cuts to conform to time segment requirements
adversely affect the artistic or pictorial quality of the picture or interfere
with its continuity.
4. USE OF PRINTS
(a) Licensor reserves the right to change the title of any Pictures(s)
covered by this Agreement if reasonably prudent because of third party claims or
threatened claims and to license to third parties film excerpts of up to five
(5) minutes in length from any picture for television exhibition in any area at
any time.
(b) In the event Licensee does not telecast any Picture hereunder the
number of times permitted hereunder, then Licensee shall, nevertheless, pay
Licensor the applicable licensing fee specified herein with respect thereto as
if such Picture had been telecast. The paragraph shall not apply, however, in
the case of a telecast which has been eliminated and the Picture withdrawn
pursuant to subparagraph (b) of paragraph 11 of this Agreement.
(c) Licensee shall not acquire any right, title or interest in or to
any Picture or print hereunder and shall not make, authorize or permit any use
of the Picture or print other than as specified herein, Additionally, Licensee
shall not duplicate, reproduce or copy same in any manner or form whatsoever.
(d) Licensee acknowledges that the title to the Pictures and prints
furnished by Licensor shall remain in Licensor and Licensee acknowledges that
with respect to each Picture and the literary, dramatic and music material
included in each and upon which each is based, Licensor hereby expressly
reserves any and all rights not herein specifically granted to Licensee,
including, but without limitation thereof, all theatrical, non-theatrical and
home video rights and all re-make rights and sequel rights, and that such
reserved rights may be exercised and exploited by Licensor concurrently with and
during the term hereof, freely and without limitation or restriction.
5. USE OF NAMES FOR ADVERTISING. HEDC will supply Licensee with all
reasonably available promotional and marketing materials for use in any medium
(including but not limited to marketing materials, on-air promos, talent
interviews, trailers, etc.). Licensee warrants and agrees that: (a) it will
abide by and comply with the advertising and billing of each licensed picture in
accordance with such advertising, billing instructions as Licensor may timely
furnish Licensee, and that such advertising shall be made by Licensee so as not
to constitute an express, implied, direct or indirect endorsement of any
product, service or sponsor; (b) it will not advertise or announce in any manner
or media the fact that any title has been changed by Licensor of any Picture or
Pictures withdrawn by Licensor; (c) it will abide by and comply with the screen
billing in the same form as it appears on the print of the Picture or Pictures;
and (d) it will indemnify Licensor against all costs, damages, and expenses,
including, but not limited to reasonable attorney's fees and expenses, incurred
or caused to Licensor by reasons of any actual or alleged breach by Licensee of
the provisions of this paragraph. No inadvertent failure to
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accord a proper credit shall be a material breach of this Agreement provided the
Network cures such failure prospectively after receipt of written notice.
6. FORCE MAJEURE. If Licensor shall fail to make timely delivery of any
print or prints hereunder, by reason of any act of God, war, fire, flood,
strike, labor dispute, public disaster, transportation or laboratory
difficulties, order or decree of governmental agency or tribunal or another
similar or dissimilar cause beyond the control of Licensor, such failure on the
part of Licensor shall not be deemed to be a breach of this Agreement; provided
that if such failure shall continue for more than 90 days, Licensee shall have
the right to terminate the License with respect to such Picture and receive
reimbursement for any advance payments made for such Picture.
7. PAYMENT. All payments by Licensee to Licensor herein shall be made in
United States dollars by wire transfer as instructed by Licensor.
8. TAXES. Licensee shall pay and hold Licensor harmless from, all taxes
(excluding Licensor's income and franchise taxes), censorship charges or any
other charges (including interest and penalties on such amounts), assessments
and other fees now or hereafter imposed or based upon or resulting from the
delivery, exhibition, possession or use hereunder to or by Licensee of the
prints and Pictures, in whole or in part, licensed hereunder. Licensee shall
promptly provide Licensor with all written documentation requested by Licensor,
substantiating such payments including official governmental receipts. Payment
by the Licensee of the foregoing shall in no way diminish the license fees due
Licensor hereunder. To the extent that payment of any of the foregoing is made
by Licensor, Licensee shall reimburse Licensor within 20 days of written notice
thereof, and upon the failure of Licensee to so reimburse Licensor, Licensor
shall have all the remedies herein for the collection of unpaid license fees, as
well as all other remedies provided by law.
9. WARRANTY AND INDEMNITY. Licensor represents and warrants that (i) it has
the right to grant this license for the telecasting of the Pictures herein
specified, including the sound tracks forming a part thereof, and that
Licensee's exercise of the rights granted hereunder will not violate the right
of others, including without limitation trademark, copyright, privacy or
publicity; (ii) each of the Pictures is, or upon delivery will be, completely
finished, fully edited and titled and fully synchronized with dialogue, sound
and music and in all respects ready and of technical quality, adequate for
commercial television exhibition; (iii) each picture consists, or upon delivery
will consist, of a continuous and connected series of scenes, telling or
presenting a story, free from any obscene material and suitable for television
exhibition; (iv) Licensor has the right and authority to grant all rights
granted to Licensee hereunder. Licensor has not sold, assigned, licensed,
granted, encumbered or utilized any Picture or any of the literary or musical
properties used in the Pictures in any way that may negatively affect or impair
the rights, licenses and privileges granted to Licensee, and Licensor will not
do so during the Term; and (v) all claims and rights of owners of copyright or
other rights appearing, used or recorded in each Picture have been, or prior to
delivery will be, fully paid and discharged. Licensor agrees to indemnify and
hold Licensee, its officers, employees, successors and assigns free and harmless
from any and all claims, damages, liabilities, costs or expenses, including
reasonable attorney's fees and expenses, incurred by Licensee by reason of the
breach of any warranty, representation
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or agreement made by Licensor hereunder, provided, however, Licensor shall not
be liable for loss of profits or consequential damages. Licensor agrees to
defend at its own expense any action or proceedings arising out of an alleged
breach of the foregoing, warranty, provided, however, that Licensee notifies
Licensor promptly of any such claim or of the commencement of any such action or
proceedings, delegates complete and sole authority to Licensor to defend or
settle same, and cooperates fully with Licensor in the defense thereof. Licensee
represents and warrants that it has the right to enter into this Agreement and
to fully perform its obligations hereunder that it will not permit the
transmission of the pictures other than as specified herein, or after the
expiring or earlier termination of this Agreement. Licensee agrees to indemnify,
defend and hold Licensor, its officers, employees, successors and assigns, free
and harmless from any and all claims, damages, liabilities, costs or expenses,
including reasonable attorney's fees and expenses arising out of or in
connection with the use by Licensee, its successors, assigns and sublicensees of
the prints or pictures hereunder, or arising out of or by reason of any breach
of any warranty, representation or agreement made by Licensee hereunder, other
than such items for which Licensor is obligated to indemnify Licensee
hereunder.
10. MUSIC PERFORMANCE RIGHTS. Licensor warrants that the small performance
rights in and to the music contained in each Picture are either (a) controlled
by and available for license from ASCAP, BMI or other similar music performance
rights society or (b) in the public domain, or (c) controlled by Licensor and
granted to Licensee to the extent necessary to permit Licensee's use of said
prints hereunder. Licensor does not represent or warrant that Licensee may
exercise the performing rights to said material without the payment of a
performing rights royalty or license fee. Licensee shall, at its sole costs and
expense, secure all small performance rights licenses necessary for the telecast
of the musical compositions contained in each print and shall hold harmless
Licensor from any liability or damage arising from Licensee's failure to do so.
11. WITHDRAWAL AND ADJUSTMENT.
(a) Licensor may, in its absolute discretion, withdraw any licensed
Picture if Licensor determines that the telecasting thereof would or might (i)
infringe upon the rights of others; (H) violate any law, court order, government
regulation or other ruling of any governmental agency; or (iii) subject
Licensor to any liability.
(b) If Licensor elects to withdraw any Picture as set forth in the
preceding subparagraph (a) of this paragraph 11, before its initial telecast, or
if the Picture is not acquired or produced by Licensor or if Licensor does not
control distribution rights, then Licensor shall have the right, in its sole
discretion, either to deliver to Licensee another picture of comparable quality
(which picture shall be deemed to replace the Picture withdrawn) or may reduce
the number of Pictures to be delivered and paid for hereunder by one and
Licensee shall be given a refund or credit, at Licensor's election, of such
license fee for such Picture. In the event Licensee has expended out of pocket
funds for advertising and/or promoting or editing or modifying such withdrawn
Picture prior to notice of withdrawal, Licensor will reimburse Licensee such
costs of advertising, promotion, editing or modifying.
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12. BANKRUPTCY AND DEFAULT. If Licensee becomes insolvent or bankrupt or
makes an assignment for benefit of creditors, or if any property of Licensee is
attached and if such attachment is not released within 10 days after the date of
attachment, or if a receiver, liquidator, or trustee is appointed for any of
Licensee's property, or if Licensee breaches any of the material terms or
provisions of this Agreement, Licensor in addition to any and all other rights
it may have under this Agreement or in law or in equity, may at its option, from
time to time during such occurrence, do any one or more of the following:
suspend delivery or telecasting by Licensee of one or more pictures hereunder
until default is ended or remedied, terminate this Agreement, or declare the
Agreement breached and declare all unpaid amounts payable to Licensor hereunder
immediately due and specifically, if Licensee shall fail to make the payments to
Licensor or payments to any guild for residuals on a timely basis as provided in
this Agreement, Licensor shall have the right but not the obligation upon 15
business days written notice to declare Licensee in default and thereby either
to suspend the rights herein granted until the default is ended or to terminate
this Agreement without foregoing any of Licensor's rights to recover damages
deriving from Licensee's default. Licensee shall immediately return all
materials to Licensor.
If Licensor becomes insolvent or bankrupt or makes an assignment for benefit of
creditors, or if any property of Licensor is attached and not released within 10
days of the attachment, or if a receiver, liquidator or trustee is appointed for
any of Licensor's property, Licensee in addition to any and all other rights it
may have under this Agreement or in law or in equity, may upon 10 days written
notice declare Licensor in default and terminate this Agreement without
foregoing any of Licensee's rights to recover damages deriving from Licensor's
default.
A default by Licensee under this Agreement shall be deemed a default under any
and all other licenses granted by Licensor to Licensee and shall entitle
Licensor to terminate any and all such other licenses and to declare any then
unpaid balance of license fees thereunder immediately due and payable.
Upon a material breach by Licensee of any of its material obligations hereunder
other than nonpayment as described above continuing after 30 days written
notice to Licensee, Licensor shall have the right to terminate this Agreement.
Upon a material breach by Licensor of any of its material obligations hereunder
continuing after 30 days written notice to Licensor, Licensee shall have the
right to terminate this Agreement. Provided, however, neither party shall have
the right to cure the same breaches occurring twice in any one-year period.
If Licensor elects or becomes obligated to make payments in place of Licensee or
if Licensor incurs any expenses for legal services, court costs, and associated
expenses because of any breach by Licensee, the sum or sums so paid by Licensor
and the amount of such fees, costs and associated expenses shall be payable
forthwith from Licensee to Licensor, together with interest thereon at the rate
of one and one-half percent (1.5%) per month. If Licensee fails to pay the
license fees herein provided at the times due in the amounts set forth herein,
the sums unpaid shall bear interest at the rate of one and one-half percent
(1.5%) per month from the due date thereof until paid. Any payment not made
within thirty (30) days after its due date shall bear interest at the rate of
one and one-half percent (1.5%) per month computed from the original due date
until paid; however, if said rate is in excess of the maximum permitted under
the laws of the
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jurisdiction where the debt accrues, then in such event the rate of interest
shall be the maximum permitted by law. Acceptance of any payment by Licensor
after its due date shall not constitute a waiver by Licensor of any of the
rights hereunder.
13. EARLY EXPIRATION OF TERM. Notwithstanding anything contained herein to
the contrary, if Licensee releases any one or more of the pictures the number of
times permitted hereunder prior to the expiration of the term specified herein,
this license shall be deemed terminated with respect to each such picture as of
the date upon which the last permitted run is made.
14. ASSIGNMENT. Licensor reserves the right to hypothecate or pledge this
Agreement and to obtain loans from a bank or other lenders by the assignment as
security. The Licensee recognizes that this Agreement may be exhibited and or
assigned to such bank or other lenders which may thereby be induced to enter
into substantial commitments in reliance thereon. The Licensee agrees that in
the event of receipt of written notice of assignment by Licensor, monies due to
Licensor shall be paid to any bona fide third party assignee in accordance with
such instructions without offset, deductions, counter-claim, or other credits
which the Licensee may have or claim to have against Licensor. Licensor may
freely assign this Agreement to its successor or successors or to any of its
associated, affiliated and subsidiary companies, provided that any such assignee
assumes all of Licensor's obligations hereunder. This Agreement may not be
assigned by Licensee, either voluntarily or by operation of law, without the
prior written consent of Licensor. Any such assignment, if consented to by
Licensor, shall not relieve Licensee of its obligations hereunder.
15. GENERAL.
(a) HEDC will obtain and maintain in full force and effect during the
term of this Agreement errors and omissions insurance with limits of at least
$1,000,000 for any single party's claim arising out of a single occurrence and
$3,000,000 for all claims in the aggregate after a deductible of $50,000 for
each claim.
(b) Licensee acknowledges that due to spillage, telecasts or releases
of the licensed Pictures originating outside the Territory may be received by
television sets located within such basic territory and Licensee agrees that
such reception shall not constitute a breach of this Agreement by Licensor.
(c) Subject to the provisions of Paragraph 14 hereof, this Agreement
and all of its terms, conditions and other provisions and all rights herein
shall inure to the benefit of and shall be binding upon the parties hereto and
to their respective successors and assigns.
(d) The titles of the paragraphs of this Agreement are for convenience
only and shall not in any way affect the interpretation of any paragraph of this
Agreement or of the Agreement itself.
(e) A waiver by either party of any of the terms or conditions of this
Agreement in any instance shall not be deemed or construed to be a waiver of
such term or
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condition for the future, or of any subsequent breach thereof. All remedies,
rights undertakings, obligations and agreements contained in this Agreement
shall be cumulative and none of them shall be in limitation to any other remedy,
right, undertaking, obligation or agreement of either party.
(f) All notices, statements, and other documents required to be given
hereunder shall be given in writing either by personal delivery, by mail, or
telefax (except as herein otherwise expressly provided) to the persons and at
the addresses set forth in Schedule "A" hereto, or to such other persons and
addresses as may be designated in writing by either party. Notice given by mail
or by telefax shall be deemed given on the date of mailing thereof or of the
sending of such telefax.
(g) This Agreement shall be deemed made in, and shall be construed and
interpreted in accordance with the laws of, the State of New York pertaining to
contracts entirely made and to be performed therein. In the event of any
disagreement between the parties which cannot be settled by mutual agreement,
the parties agree that the federal or state courts sitting in the City, State
and County of New York (and courts with appellate jurisdiction therefrom) shall
have exclusive jurisdiction over such dispute and the resolution thereof, and
the parties agree that jurisdiction and venue in such courts in appropriate,
and that any process in connection therewith may be served in the manner
provided hereinabove for notices to the parties.
(h) All rights not specifically granted herein to the Licensee are
reserved for Licensor's use and disposition without any limitations whatsoever,
regardless of the extent to which the same are competitive with Licensee or the
license granted hereunder.
(i) This Agreement constitutes the entire agreement between Licensee
and Licensor with respect to the subject matter hereof and may not be changed,
modified, amended. or terminated except by operation of law or by a writing
signed by the parties hereto.
(j) In the event of any conflict between any provision of this
Agreement and any material law, rule or regulation, this Agreement shall be
deemed modified to the minimum extent necessary to remove such conflict.
