Exhibit 6(b)(ii)(5)
PUBLIC BROADCASTING SERVICE
NATIONAL PROGRAM PRODUCTION AN DISTRIBUTION
AGREEMENT PROGRAM
Agreement made as of June 3, 1993 between Wombat Productions ("Producer"),
and the Public Broadcasting Service ("PBS"), a nonprofit corporation organized
under the laws of the District of Columbia.
WHEREAS, PBS is responsible for developing and delivering a national
program service to public television stations;
WHEREAS, the Station Independence Program ("SIP") of PBS is responsible for
assuring the production of high-quality television specials designed to maximize
public television stations' on-air fundraising efforts;
WHEREAS, Producer desires to produce a sixty-minute Program entitled
XXXXXX XXXXXXX REMEMBERED (w.t.)
for distribution to public television stations as a SIP fundraising special
("Program"); NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Program Production
1.1 Producer agrees to produce the Program in accordance with (i) the
description thereof attached hereto as Exhibit A, (ii) the Program Budget,
attached hereto as Exhibit B and (iii) the PBS Production Cost Principles and
Procedures.
1.2 Producer will furnish and/or arrange for all necessary Program
elements, rights and permissions and for all personnel, services and facilities
required for acquisition or production and recording of the Program. Producer
will maintain, or will arrange to have maintained, a complete file of all
funding agreements, production subcontracts, property acquisitions, rights
arrangements, talent contracts, employment agreements, clearance forms and other
agreements or documents related to Program production or acquisition and will
make copies of the same available to PBS upon reasonable request.
1.3 Program acquisition and production shall be under Producer's direct
supervision and co-production arrangements and subcontracts for substantial
Program production hereunder may not be made by Producer without prior PBS
approval. All expenditures in connection with the Program will be on Producer's
own behalf so that any obligations incurred by Producer with respect to the
Program will be at Producer's own risk without obligation of any kind on the
part of PBS to such obligee. Nothing herein shall be deemed to create any
association, partnership or joint venture between PBS and Producer with respect
to the Program or otherwise.
1.4 Producer acknowledges that SIP member stations have delegated to PBS
the responsibility of delivering to them programs designed not only to meet the
highest artistic and journalistic standards, but also to motivate viewers to
contribute to their local public television stations. Producer agrees that PBS
shall be entitled to participate in the pre-production, production and
post-production creative decision making process in order to ensure maximum
fundraising potential of the completed Program. Producer therefore agrees to
consult with PBS on Program production matters and agrees to give reasonable
good faith consideration to any suggestions made by PBS. As part of such
consultation, Producer agrees to provide PBS with scripts or script outlines as
requested by PBS; to invite an individual designated by PBS to attend principal
shooting and editing sessions upon request and to screen the rough and fine cuts
of the Program on a timely basis. All final creative and production decisions
shall be made by Producer provided, however, that PBS shall have approval over
the format and placement in the Program of pledge breaks and the use of any
narration, text, or other Program material that makes specific reference to
talent or viewer support of public television.
1.5 Material changes from the Program Description in Exhibit A and in any
of the major items of the Program Budget cannot be made without the express
approval of PBS.
1.6 The Program shall bear a proper copyright notice in the name of
Producer, and Producer will take all steps necessary and appropriate within its
control to protect all copyright and other property rights.
2. Program Rights
2.1 Producer hereby grants to PBS the right to duplicate the Program as
desired and distribute the same by interconnection or recording for broadcast
and rebroadcast throughout the United States, its territories and possessions
(including Puerto Rico) ("License Area") over any and all public television
stations and state networks.
2.1.1 Producer grants to PBS the nonexclusive right to caption the Program,
to duplicate and to perform publicly the captions whether in open or closed
captioned format in any medium or form and under the same terms and conditions
under which PBS, pursuant to this Agreement or by separate agreement, shall
obtain the right to duplicate, distribute, broadcast or otherwise exhibit the
Program. To the extent PBS exercises the right to caption granted hereunder, the
captioning shall be considered a work made for hire, and, as such, Producer
shall own all rights in the captions, subject to the duplication and public
performing rights granted to PBS.
2.1.2 Producer grants to PBS the nonexclusive right to describe the Program
on a separate audio channel as a special service for the visually impaired.
Producer further grants to PBS the nonexclusive right to duplicate and perform
publicly the descriptions in any medium or form and under the same terms and
conditions under which PBS, pursuant to this agreement or by separate agreement,
shall obtain the right to duplicate, distribute, broadcast or otherwise exhibit
the Program. To the extent PBS exercises its rights granted hereunder to add
descriptions to the Program, the addition of the descriptions shall be
considered a work made for hire, and, as such, Producer shall own all rights in
the descriptions, subject to the duplication and public performing rights
granted to PBS.
2.1.3 The rights granted pursuant to this paragraph shall consist of an
initial public television release and five additional releases during a
thirty-seven month period commencing on August 1, 1993, provided that the
Program has been delivered to PBS in accordance with this Agreement (the
"License Term"). Producer shall use its reasonable efforts to obtain additional
releases for a longer period of time. For the purposes hereof, a "public
television release" shall mean unlimited broadcasts over any and all public
television stations during a seven-day period commencing with each station's
first broadcast of the Program (either on a live or delayed basis) plus the
right to authorize educational institutions in the License Area to record the
Program off-air and to retransmit the Program over limited frequency, closed
circuit and playback facilities for educational purposes for seven (7) days
following any broadcast.
2.2 Except as otherwise specified in Exhibit A, Producer further grants to
PBS during the License Term, (i) the right to duplicate, distribute and
authorize broadcast, rebroadcast and cablecast of the Program on a nonsponsored,
sustaining basis over commercial television stations or cable channels in any
geographic area in the License Area not serviced by a public television station,
(ii) the right to duplicate, distribute and authorize cablecast of the Program
during the seven-day release period on a
during the seven-day release period on a sponsored, sustaining basis over
non-pay cable channels programmed and operated by public television stations,
and (iii) the right to duplicate, distribute and authorize broadcast and
rebroadcast of the Program audio, whether separately or on a simulcast basis, on
public radio stations, and on commercial radio stations on a nonsponsored,
sustaining basis, in the license area.
2.3 The Program will be completely exclusive to PBS in the License Area
prior to and during the License Term. Producer agrees that it will not otherwise
license, authorize or permit the following uses of the Program in the License
Area prior to or during the License Term: (i) broadcast of the Program over
public or commercial television or radio stations; (ii)cablecast of the Program
over cable systems; or (iii) theatrical release of the Program. Producer further
agrees that there will be no broadcast, cablecast or theatrical release of the
Program in Canada prior to and during the License Term.
2.4 Producer shall share with PBS revenue generated from all ancillary
sales, license and other distribution of the Program, Program elements or
material derived from or based upon the Program, in accordance with Exhibit C.
PBS's right to share in Ancillary Revenue shall include, but not be limited to,
revenue generated from all domestic and foreign sale or license of the Program
and Program elements, and revenue generated form the sale or license of video
and/or audio recordings of the Program or elements thereof.
2.5 If Producer desires to sell or license broadcast or cablecast rights in
the Program for any period commencing within three years of the conclusion of
the License Term, PBS shall be entitled to a right of first negotiation and last
refusal which shall operate as follows: (a) Producer shall not engage in
negotiations with any third party for such rights before engaging in good faith
negotiations with PBS; (b) if no agreement is reached between Producer and PBS
after such negotiations, Producer may enter into negotiations with third
parties; provided, however that (c) if Producer offers any of the aforementioned
rights to a third party, Producer shall inform PBS in writing of the price and
terms on which Producer proposes to sell or license such rights to such third
party; and (d) PBS shall then have 20 days in which to meet such price and
terms, also in writing, failing which Producer shall be free to sell or license
such rights to a third party at a price and terms no more favorable to such
third party than those of which Producer notified PBS.
2.6 During the License Term, the Program concept and title will be
completely exclusive to PBS in the License Area and Producer will not otherwise
license or authorize any broadcast or cablecast of any Program or Series with
the same or similar concept or title in the License Area during the License Term
without prior approval from PBS.
2.7 All versions of the Program produced for PBS and licensed for non-PBS
exhibition, in addition to including the standard funding credit(s), shall
include the standard PBS logo. If, however, the distributor cannot agree to
distribute the Program with the PBS logo, Producer shall undertake to
incorporate into the closing production credits the following acknowledgment:
"This Program (or "XXXXXX XXXXXXX REMEMBERED") was originally produced for the
Public Broadcasting Service." PBS acknowledges that the inclusion of standard
funding credits in programs licensed for foreign broadcast is subject to
applicable foreign law and custom.
2.8 All rights other than those specifically granted to PBS hereunder,
subject only to the limitations provided hereunder, are retained and reserved to
Producer for its own exercise. In no event will arrangements with respect to any
ancillary rights in the Program made by Producer materially interfere with the
rights granted to PBS hereunder.
3. Program Funding
3.1 PBS hereby agrees to pay Producer up to $250,000 (the "Program
Payment") towards the production of the Program in accordance with the Program
Budget contained in Exhibit B. Producer acknowledges having received an advance
against the PBS Program Payment in the amount of $25,000. The $225,000 balance
of the Program Payment will be paid in accordance with the payment schedule
contained in Exhibit D. The total budgeted production cost for the Program, in
accordance with the Program Budget, is $469,105 ("Total Budget").
3.2 Producer agrees that it will complete and deliver the Program in its
entirety, even if any funding from any source other than PBS is not forthcoming,
and regardless of whether or to what extent the final total costs of the Program
may exceed the Total Budget.
3.3 Producer agrees not to make substantial revisions in the Program Budget
or to apply funding to the production of the Program from third parties without
prior approval from PBS, which shall not be unreasonably withheld.
3.4 The Program Payment shall be paid in the manner and at the times
specified in Exhibit D. Payments made hereunder are subject to Producer's
compliance with the terms and conditions of this Agreement and to the delivery
and acceptance of the reports specified in paragraph 7.1 hereof. The payment
schedule specified in Exhibit D may be modified in the event that PBS makes a
reasonable determination that Producer will not be financially able to perform
its obligations under this Agreement. Producer will notify PBS in a timely
manner if it is successful in its efforts to secure Program underwriting.
3.5 Producer agrees that all funds provided by PBS to Producer are provided
on a cost-reimbursement basis only, and that in no event will any portion of the
Program Payment (except for the production fee, if any) be disbursed or applied
by Producer for any purpose other than Program production and promotion
hereunder, it being understood that this provision allows all payments made
hereunder to be comingled with other production funds. No commitment, express or
implied, is assumed by PBS to provide any funds in excess of the Program Payment
or to extend or modify in any way the indicated scope of the Program.
3.6 Producer acknowledges that the Programs are being funded by PBS in
connection with the Station Independence Program and that the primary source of
the Program Payment is payments made to PBS by participating public television
stations. If defaults occur on stations' purchase obligations which
significantly affect payments made to PBS by purchasing stations, PBS and
Producer at PBS's election, agree to enter into good faith negotiations to
modify this agreement with respect to delivery, budget, payment schedule, and
other terms as may be necessary to accommodate any resulting delay or shortfall
in the Program Payment.
4. Program Delivery
4.1 Producer will deliver to PBS, at Producer's expense, all Program
materials in accordance with the schedule set forth in Exhibit E and at such
time(s) and place(s) as PBS may designate.
4.2 Producer shall use its best efforts to make VHS cassettes of the
Program available to stations for use as membership thank you gifts. The cost to
the stations will be approximately $10 per cassette, plus shipping and handling.
4.3 The Program will conform to the PBS Technical Operating Specifications,
excerpts of which are attached hereto as Exhibit F, relating to technical
quality for interconnection, recording and broadcasting, stereo sound, color
standards, opening and closing credits and cues, and similar matters. Producer
will remake the Program to conform to amendments or alterations in the PBS
Technical Operating Specifications made after completion of production of the
Program at PBS's reasonable request and expense.
4.4 The Program shall comply with the following PBS policies:
(a) PBS "National Program Funding Standards and Practices," incorporated
herein by reference;
(b) Statement of Policy on Program Standards, incorporated herein by
reference (attached as Exhibit G);
(c) Public Broadcasting Journalism Policy, incorporated herein by reference
(attached as Exhibit H);
(d) PBS Guidelines for On-Air Announcements Promoting Program-Related Goods
and Services (attached as Exhibit I);
(e) all other PBS policies existing at the effective date of this Agreement
and those thereafter duly promulgated by PBS; provided, however, that any of the
aforesaid policies promulgated or amended subsequent to the effective date of
this agreement which materially alter the obligations and responsibilities of
Producer hereunder will be deemed to be subject to paragraph 11.3 hereof. If
adoption of any such policy would require edits or modification to the completed
Program, Producer shall remake the Program to conform to the policy at PBS's
expense.
4.5 Producer warrants that the Program shall comply with applicable
provisions of the Communications Act of 1934, as amended, all applicable rules
and regulations of the Federal Communications Commission (including Sections 317
and 508 of the Communications Act and Section 73.1212 of FCC rules and
regulations concerning payola and plugola, attached as Exhibit J) and all other
state and federal laws and regulations pertaining to the production,
duplication, distribution and broadcast of programs. In the event that
modifications to the Program may be required to achieve compliance with this
paragraph or that the Program may raise any other legal question relating to the
broadcast of the Program, Producer will give PBS detailed notification in
writing at least three weeks before delivery of the Program or as soon as
Producer is aware thereof, describing the problem and the proposed solution.
4.6 PBS shall retain any and all videotape stock for the Program delivered
pursuant hereto, which may either be erased, or archived after distribution
hereunder.
5. Program Distribution
5.1 PBS undertakes to distribute the Program for broadcast subject to its
available resources, established PBS practices and policies, and Producer's
compliance with all terms and conditions herein. Producer will not represent or
imply any intention on the part of PBS to distribute the Program without having
first received express notice from PBS that such representations may be made.
PBS shall have the right to schedule, reschedule or pre-empt the Program, after
having first notified Producer.
5.2 PBS will not (and will not authorize any television station to) make
any changes in the content of the Program, cut, edit or otherwise alter the
Program without notice to and consultation with Producer provided that nothing
in this paragraph shall prohibit PBS or any such station from interrupting the
Program -- in the event of any emergency or other eventuality of national or
local public importance -- to cover such emergency or eventuality. A public
television station may, without prior notice to or consultation with Producer or
PBS, cut, edit or otherwise alter the Program only as provided in the PBS
station Users Agreement, which is attached hereto as Exhibit J.
6. Program Promotion
6.1 Producer will furnish PBS promotion and publicity materials as set
forth in Exhibit E and such other or additional materials that may be available
as PBS may reasonably request. PBS agrees that it shall use its reasonable
efforts to utilize all such materials for the promotion of the Program.
6.2 PBS may use and authorize others to use the Program title, the names,
voices, likenesses and biographies of all persons in connection with the Program
(including the right to excerpt portions of the Program or Program elements of
no longer than three minutes in length) for the purpose of advertising,
promoting or publicizing the Program or for institutional promotion. Producer
shall be responsible for obtaining the rights necessary to enable PBS to conduct
promotion in accordance with this paragraph, at no charge to PBS, and shall
notify PBS in writing and in advance of Program delivery whenever such rights
are not obtained.
6.3 Producer agrees to comply with the PBS "Promotion and Advertising
Guidelines," as contained in the PBS "National Program Funding Standards and
Practices," incorporated herein by reference.
7. Reports and Records
7.1 Producer shall provide PBS with interim production status reports and
financial reports as PBS may reasonably require during Program preparation and
production, including, without limitation, statements certified by Producer's
chief financial officer as to the exact status of the Program for which payments
have been made to Producer but which has not yet been delivered to PBS. Within
one hundred and twenty (120) days after delivery of the Program hereunder, and
within one hundred and twenty (120) days after completion of the Program,
Producer shall submit final and complete financial reports to PBS for the
Program which will provide actual cost data directly comparable to the line
items of the Program Budget.
7.2 Producer shall provide to PBS reports specifying the amount of income
received by Producer from ancillary sales as set forth in Exhibit C. These
reports shall be provided within thirty days after December 31 of each year
hereafter beginning with the December 31 immediately following initial
distribution of the Program or related materials in any media and ending when
any two consecutive reports reflect that Producer has received no such income
for the periods covered by such reports; provided, however, that the reporting
obligations described above shall resume in the event that Producer receives
such income at any time thereafter. All such reports shall provide gross income
and cost of sales data and information relating to the priority distributions
pursuant to Exhibit C hereunder. The appropriate payments to PBS, if any, shall
accompany all such reports.
7.3 Producer will maintain auditable books, records, documents and other
evidence (hereinafter "records") pertaining to (a) the expenditure of any
portion of the Program Payment, (b) the source and value of all grants,
facilities, goods and services used in, and all costs and expenses incurred in
Program production hereunder to the extent and in such detail as will properly
reflect all costs, direct and indirect, of labor, materials, equipment, supplies
and services, and other costs and expenses for production of the Program
hereunder, and (c) gross sales, income and expenses relating to ancillary sales
pursuant to Exhibit C. Such records will be maintained and be available for
inspection by PBS or its authorized agent at all reasonable times commencing
with the execution of this Agreement and, in the case of subparagraphs (a) and
(b), for a period of three years from the date of final payment hereunder, and
in the case of subparagraph (c), until three years from the date of final
payment to PBS pursuant to paragraph 7.2.
7.4 PBS shall have the right at its expense to undertake, or have
undertaken by an independent public accounting firm, an examination and audit of
all records which in PBS's judgment are necessary to determine distribution
income and Program expenses incurred by Producer under this Agreement.
8. Warranties and Indemnities
8.1 Producer represents and warrants that Producer is free to enter into
and fully perform this Agreement; that Producer has all of the rights necessary
to fully grant all the rights granted to PBS herein; that all of the rights,
releases, clearances and/or licenses with respect to all materials and elements
in, and all persons participating in, or performing services on, the Program
have been secured by Producer for duplication, distribution, broadcast and other
exhibition hereunder; that the duplication, distribution, broadcast and other
exhibition rights granted hereunder will not violate any copyright, trademark,
literary, artistic, musical or any other rights (including, but not limited to,
defamation or invasion of privacy of any person, firm or corporation), and will
not require any payment by PBS or those authorized to use or distribute the
Program to Producer or to any third party whatsoever, except to the extent that
PBS is responsible for the payment of non-dramatic music performance rights
fees.
8.2 To the extent permitted by law, Producer shall indemnify and hold PBS,
its assigns and licensees authorized to use the Program hereunder, harmless from
and/or against any and all claims, damages, costs, liabilities and expenses,
including reasonable attorneys' fees, that may be suffered or incurred arising
out of the exercise of the rights granted hereunder, or out of the material
contained in the Program or related materials licensed or provided by Producer
or out of any breach of any representation, agreement or the foregoing
warranties made by Producer hereunder.
8.3 Producer shall secure a policy of liability insurance applicable to the
Program hereunder, acceptable to PBS, insuring Producer against the liabilities
assumed hereunder and naming PBS and public television stations as additional
insureds (including, but not limited to, copyright infringement, defamation,
invasion of privacy, unauthorized use of titles, ideas or characters) provided,
however, such policy shall not be required where applicable state or local laws
or regulations prohibit it and where PBS is notified in writing to this effect.
A copy of the policy shall be supplied to PBS prior to the initial public
television release of the Program.
8.4 PBS represents and warrants that PBS is free to enter into and fully
perform this Agreement and shall indemnify and hold Producer or its assigns,
harmless from and/or against any and all claims, damages, costs, liabilities and
expenses, including reasonable attorneys' fees, which may be suffered or
incurred arising out of any breach of any representation, agreement or the
foregoing warranty made by PBS hereunder.
8.5 PBS and Producer will promptly notify each other of any such claim of
which either has knowledge, and each will assist the other in defending against
any such claim, if so requested.
9. Rescheduling and Cancellation of Program
9.1 If Producer fails to comply fully with the delivery schedule set forth
in Exhibit E, PBS shall have the right, after notice to Producer to reschedule
the Program and/or to modify any arrangements or understandings with respect to
promotion and advertising of the Program.
9.2 PBS will promptly review the Program and notify Contractor if, in PBS's
best judgment, the Program does not comply with paragraphs 4.3, 4.4 and 4.5, or
that such compliance would require modifications to the Program. If Producer and
PBS, after consultation, cannot resolve such issues raised by the Program, PBS
may reschedule the Program or redetermine the means of distribution. Where,
however, PBS determines that distribution or broadcast would involve a
substantial risk of legal liability, PBS may remove the Program from
distribution. Where, in PBS's judgment, modifications to the Program are
required to achieve compliance with paragraph 4.5, Producer shall be responsible
for delivery of such modified Program pursuant to the terms of this Agreement.
9.3 In the event that Producer fails to comply with the delivery schedule
or with paragraph 4.3, 4.4 and 4.5, PBS may charge Producer (by deductions from
the Program Payment or otherwise) a late delivery fee for handling late
delivered materials and for its reasonable and necessary costs in substituting
other promotional and advertising material for nondelivered or late-delivered
promotional and advertising material, or in achieving a correction of the
Program in order to comply with paragraphs 4.3, 4.4 and 4.5.
9.4 In addition to the foregoing, PBS reserves the right to cancel the
undelivered Program in the event of a material failure by Producer to deliver
the Program in compliance with this Agreement. In the event of cancellation
hereunder, Producer shall return to PBS forthwith any amount of the Program
Payment previously received by Producer subject to paragraph 9.5 below.
9.5 If Producer is (or may be) unable to deliver the Program as a result of
fire, flood, hurricane, labor strike, earthquake, riot, war, acts of God, or
similar causes beyond the control of the Producer ("force majeure"), Producer
shall immediately notify PBS. PBS shall decide, after consultation with Producer
if the Program can be completed, and if so, by whom. Such consultation shall
include without limitation consideration of the following factors (to the extent
relevant to the particular situation): the point in the production process at
which the event of force majeure occurs, the length of the event of force
majeure, the potential delay in the production schedule, the amount of time
necessary to resolve any problems created by the event of force majeure, the
nature of the Program, the extent of the injury to Program materials,
facilities, and key production staff, PBS's need for timely delivery, the
timeliness of the subject matter of the Program, the oral and written
contractual obligations to Producer's coproducers and underwriters of the
Program, and any other information that PBS deems relevant. In addition to the
foregoing factors, PBS acknowledges a presumption in favor of having Producer
complete the Program. Producer shall have a reasonable time after the onset of
the force majeure event to demonstrate to PBS that it will be able to deliver
the Program in accordance with Exhibit E ("Demonstration Period"). PBS shall, on
the basis of the above factors, determine the length of the Demonstration
Period, which shall be no less than 30 business days, unless the event of force
majeure occurs less than 30 business days prior to the scheduled delivery date,
in which case it may be shorter, and PBS shall determine a reasonable
Demonstration Period. If, based on such consultation and evidence provided by
Producer PBS reasonably determines that the Program will not be delivered in
accordance with Exhibit E and that timely delivery is necessary, PBS may, at its
option, (a) designate a person or entity acceptable to both Producer and PBS to
assume responsibility for completing the Program, or (b) if PBS determine that
having Producer or another party complete the Program would be impossible or
impractical, cancel the Program. In either event, (a) Producer shall only be
required to return to PBS the PBS share of the amount of the budgeted Program
costs not expended or irrevocably committed for budgeted Program costs hereunder
up to the amount already received by Producer and Producer shall have no further
liability for the undelivered Program; provided, however, that if Producer sells
or licenses the rights to any footage from the undelivered Program or recovers
any part of the Program Payment under any insurance policy, Producer shall pay
PBS a share of any such proceeds, based on the ratio of PBS funding to the
Program Budget, and (b) PBS shall not be obligated to make any further payments
under this Agreement. If, pursuant to the payment schedule in Exhibit D hereof,
PBS has paid Producer amounts insufficient to meet Producer's budgeted Program
costs already expended or irrevocably committed, PBS shall pay Producer PBS's
share of the difference between such amounts. If PBS designates another party to
complete production of the Program, the provisions of paragraph 9.7 hereof shall
apply.
9.6 In the event of cancellation hereunder, all Program segments completed
prior thereto shall be governed by the provisions of this Agreement.
9.7 In the event of material failure by Producer to deliver the Program in
compliance with this Agreement, PBS may, in lieu of exercising its right of
cancellation hereunder, designate a person or entity acceptable to both PBS and
Producer to assume responsibility for having the Program completed, in which
case Producer shall use its reasonable efforts to insure to the extent necessary
that all production agreements, subcontracts, and funding arrangements for the
Program provide for assignment to PBS or its designees under the circumstances
described in this paragraph. In that case, Producer shall also furnish to PBS or
its designees at no charge all of Producer's work in progress for the Program,
and shall return to PBS or its designees any amount of the Program Payment not
properly attributable to work in progress hereunder. PBS shall retain the right
to cancellation hereunder in the event that efforts to have responsibility for
the completion of the Program assumed by a person or entity designated by PBS
should fail.
9.8 If PBS determines for any reason not to distribute either or both of
the Program, or if PBS fails to distribute any Program within one year of its
acceptance by PBS, then, at Producer's sole option, the rights to the Program
granted to PBS hereunder shall either (a) remain under License to PBS, or (b)
revert to Producer provided that Producer returns to PBS any amount of the
Program Payment properly attributable to such nondistributed Program.
9.9 Producer and PBS agree to consult, at each other's request, on all
actions taken under this paragraph.
10. Nondiscrimination
10.1 Producer will not discriminate against any employee or applicant for
employment because of race, color, religion, age, sex, national origin, or
physical or mental handicap. Producer will take affirmative action to ensure
that applicants are employed -- and that employees are treated during employment
-- without regard to their race, color, religion, age, sex, national origin, or
physical or mental handicap.
10.2 Producer further agrees that it will comply with all laws and
regulations prohibiting discrimination on the basis of race, color, religion,
age, sex, national origin, or physical or mental handicap that may be applicable
to Producer. These laws may include, but are not limited to: Title VII of the
Civil Rights Act of 1964 (42 U.S.C. 2000e); the Equal Pay Act of 1963 (29 U.S.C.
206); the Age Discrimination in Employment Act of 1964 (42 U.S.C. 2000d); and
Title IX of the Education Amendments.
11. Effects and Amendments
11.1 This Agreement shall be deemed to supersede and replace any previous
documents, correspondence, conversations or other written or oral understandings
between PBS and Producer related to the Program.
11.2 No waiver by either party of any breach hereunder shall be deemed a
waiver of any other subsequent breach.
11.3 This Agreement cannot be altered, amended, changed or modified in any
respect or particular unless each such alteration, amendment, change or
modification shall have been agreed to in writing, signed and delivered by each
such party hereto.
11.4 This Agreement shall be deemed to become effective upon signature by
the parties hereto.
12. Bankruptcy/Loss of Property
12.1 Producer shall immediately notify PBS, in writing, if: (i) Producer
files a voluntary petition in bankruptcy, a voluntary petition to reorganize its
business, or a voluntary petition to effect a plan or other arrangement with
creditors; and (ii) Producer files an answer admitting the jurisdiction of the
court and the material allegation of an involuntary petition filed pursuant to
the Bankruptcy Code, as amended; (iii) Producer makes an assignment for the
benefit of creditors, applies for or consents to the appointment of any receiver
or trustee of all or any part of its property; (iv) Producer institutes
dissolution or liquidation proceedings with respect to its business; (v) a writ
or warrant of attachment, execution, distraint, levy, possession, or any similar
process is issued by any court against any property of Producer or (vi) any
lease or mortgage covering any significant portion of the property of Producer
is terminated other than in the ordinary course of business.
12.2 In the event that said petition, writ, or warrant or termination is
not dismissed or a stay of foreclosure obtained or said assignment, appointment,
or proceedings is not rescinded or terminated, within one hundred and twenty
(120) days of the issuance, making or commencement thereof, and the effect
thereof is to materially frustrate or impede Producer's ability to carry out its
obligation pursuant to, and the purposes of, this Agreement, then PBS may
terminate this Agreement on such terms and conditions as PBS may specify,
unless:
(a) within one hundred and twenty (120) days after his election or
appointment, any receiver or trustee of Producer or, within one hundred and
twenty (120) days of the commencement thereof, Producer itself as a
debtor-in-possession in connection with any such reorganization or similar
proceedings, shall have remedied any uncured failure to comply with any
provisions of this Agreement; and,
(b) within said one hundred and twenty (120) days, said receiver or
trustee, or Producer itself as a debtor-in-possession, shall have executed an
agreement, duly approved by PBS and the court having jurisdiction over the
premises, whereby said receiver or trustee or Producer in said capacity, assumes
all obligations and agrees to be bound fully by each and every provision of this
Agreement.
13. Assignment
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
that no rights under this Agreement may be assigned by either party (unless
specifically authorized hereunder) without the prior written consent of the
other party, which consent may not be unreasonably withheld. No assignment shall
relieve the assignor of any liability whatsoever.
14. Miscellaneous
14.1 This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.2 Unless otherwise provided herein or agreed to by the parties, any
notice, report or demand required or permitted by any provision of this
Agreement shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes upon being sent by telegram, fax, mail, or
personally delivered to the respective parties hereto at the following addresses
or such other addresses as either party shall notify the other party of:
Public Broadcasting Service
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
ATTENTION: Director, Program Business Affairs
WOMBAT Productions (Contractor)
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ATTENTION: Xxxx Xxxxxxx
14.3 The relationship between the parties hereunder shall be as independent
contractors and neither shall have the authority to commit, bind, incur any
expenses, enter into any agreement or otherwise act, or represent to any third
party that it has authority to act, on behalf of the other, except as may be
expressly set forth herein. Nothing herein shall create any association,
partnership, joint venture or the relationship of principal or agent between PBS
and the Producer.
14.4 The captions contained in this Agreement are for reference purposes
only and are not party of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date first above written.
PUBLIC BROADCASTING SERVICE
BY: /s/Xxx Xxxxxx
Xxx Xxxxxx
Director
Program Business Affairs
WOMBAT PRODUCTIONS
BY: /s/Xxxx Xxxxxxx
