Exhibit 6(b)(ii)(6)
OUTPUT AGREEMENT
Dated: October 1, 1994
Avenue Pictures, Inc.
X/X Xxxxx X. Xxxxxxxxxx
Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxx & Xxxxxxxxxx
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Re: Producer Output Deal
Gentlemen:
This letter sets forth the agreement (the "Output Agreement") reached
between Avenue Pictures, Inc. ("Producer") and RHI Entertainment, Inc. ("RHI")
with respect to all two-hour motion pictures (i) produced by Producer for which
Producer owns one-hundred percent (100%) of the copyright and controls all
worldwide distribution rights (other than the rights granted to the network
licensee of any Picture (as defined below) to broadcast such Picture on network
television for not more than three (3) runs over not more than four (4) years
pursuant to the initial network license agreement for such Picture) (it being
understood that the intent of this clause is not to preclude Producer from
honoring any pre-existing commitments Producer may have to third parties as set
forth in Exhibit A attached hereto and incorporated herein by this reference or
from accepting employment with any third party pursuant to a producer-for-hire
or production services arrangement (as such terms are understood in the
entertainment industry); provided that Producer shall not grant any distribution
rights or rights in and to the copyright of any MOW produced by Producer or
enter into such a producer-for-hire or production services arrangement in order
to avoid Producer's obligations to RHI hereunder or to frustrate the intent of
this Agreement), (ii) intended for initial broadcast on prime-time network
television ("MOW's") and (iii) ordered for production by a television network
(i.e., ABC, CBS, NBC) at any time during a term (the "Term") commencing as of
the date hereof and ending on the date three (3) years thereafter (each such MOW
shall be hereinafter referred to as a "Picture", collectively, the "Pictures").
Notwithstanding the generality of the foregoing, the Pictures shall not include
any pilots or other specials intended to be broadcast as part of an episodic
television series, miniseries, MOW's with a running time in excess of two-hours
or MOW's for which the network license fee is less than $2,500,000 developed or
produced by Producer during the Term; provided, however, that RHI shall have the
right within five (5) business days after written notice from Producer of the
availability of such MOW, but not the obligation, to accept by written notice to
Producer during such five (5) day period and thereby deem a "Picture" any MOW
which meets the criteria specified above except that the initial network license
fee is less than $2,500,000. RHI acknowledges that the projects listed in
Exhibit A attached hereto and incorporated herein by this reference are hereby
excluded.
Producer hereby agrees to grant to RHI upon execution in each case of an
agreement in the form of Exhibit B attached hereto (the "Agreement") the right
to distribute each of the Pictures throughout the universe in all media (other
than theatrically), including, but not limited to, all television (subject only
to the rights of the network licensee of any Picture to broadcast such Picture
on network television for not more than three (3) runs during a period of four
(4) years pursuant to the License Agreement related thereto), home video,
non-theatrical and interactive for a term ("License Term") ending on the date
twenty-five years after Initial Delivery (as defined in Paragraph 20 of the
Agreement) for such Picture, all as more fully described in the Agreement.
Neither Producer nor RHI shall have the right to exploit any Picture
theatrically during the License Term for such Picture without the prior written
consent of the other. Producer shall retain all rights in and to the Pictures
not expressly granted to RHI hereunder, including, without limitation, all music
publishing, merchandising and print publication rights, as well as, subject to
the provisions of Paragraph 13 of Exhibit B attached hereto, all remake, sequel
and episodic television rights in and to the Pictures.
The grant of rights contemplated hereby shall be subject to all of the
terms and conditions set forth in the Agreement, and Producer and RHI each
hereby agrees to enter into an agreement substantially in the form of said
Exhibit B with respect to each Picture within fifteen (15) days following
written confirmation from the network licensee of the initial network license
fee for such Picture.
Kindly confirm your agreement to and acceptance of the foregoing by
signing below where indicated and returning this signed agreement to RHI at the
address first written above. This Agreement shall be the entire, binding and
enforceable agreement between the parties hereto and shall be interpreted and
construed under the laws of the State of New York.
Sincerely,
RHI ENTERTAINMENT, INC.
------------------------
AGREED TO AND ACCEPTED:
AVENUE PICTURES, INC.
-----------------------
Authorized Officer
EXHIBIT "A"
No projects excluded.
EXHIBIT B
as of _________, 1994
[addressee]
RE: "______________"
Dear _________:
This letter sets forth the agreement between __________ ("Producer") and
RHI Entertainment, Inc. ("RHI") for RHI to acquire certain distribution rights
to the two-hour television movie presently entitled "______________" ("Program")
to be produced by Producer or an affiliated production entity.
1. PROGRAM. Two-hour television movie of the week starring ______________
directed by ________, based upon a script written by ____________ dated
___________, to be initially exhibited on the ____ television network for an
initial network license fee of not less than $2,500,000.
2. RIGHTS GRANTED.
(a) Upon full execution hereof and all exhibits hereto requiring
signature, Producer hereby grants exclusively to RHI in the Territory throughout
the License Term the following rights in and to the Program:
(ii) The right to distribute the Program in its entirety in all
media now known or hereafter developed (other than Theatrically), including, but
not limited to, Non-Theatrical (including hotels, clubs, schools and ships and
airlines flying the flag of the Territory), all forms of Videogram and
Videocassette (including CD-1 and CD-ROM), Television (including Free, Pay Cable
and Direct Satellite Broadcast and subject only to the rights granted to the
Network Licensee pursuant to the Network License Agreement) and Interactive, and
the rights to advertise and promote the Program in accordance with the terms
hereof, but excluding the Excluded Rights listed below. Neither Producer nor RHI
shall exploit the Program theatrically without the prior written consent of the
other.
(ii) RHI shall have the right to pre-sell the Program in al areas of
the Territory immediately upon execution of this Agreement. RHI shall have the
right to license the Program for exhibition on such terms as it deems
appropriate, and shall have complete discretion relating to its promotion
(subject to all contractual restrictions of Producer, including, without
limitation, performer approvals and paid ad requirements, provided that RHI
shall have received from Producer timely written notification of such
contractual restrictions, and provided further that no casual or inadvertent
failure of RHI to comply with any such contractual restriction, and no failure
by any third party to comply with any such provision, shall constitute a breach
of this Agreement by RHI) and distribution of the Program. RHI shall have the
right to edit the negatives and positive prints of the Program in order to
satisfy time, legal and foreign censorship requirements and to dub the Program
in foreign languages as it sees fit. RHI shall not edit or alter without prior
approval of Producer the credits for the Program or the copyright notice affixed
thereto.
(b) Producer shall retain all rights in and to the Program not granted to
RHI hereunder, including without limitation, music, music publishing,
merchandising, novelization, and remake, prequel, sequel and series rights in
and to the Program (the "Excluded Rights"); provided, however, that RHI shall
have a right of first negotiation/matching last refusal with respect to
television remakes, prequels, sequels and series based upon the Program as set
forth in Paragraph 13 hereof.
3. TERRITORY. Worldwide (subject only to the rights granted to the
Network Licensee pursuant to the Network License Agreement).
4. LICENSE TERM. Commencing immediately and ending twenty-five
(25) years from Initial Delivery (as defined in Paragraph 19 hereof). The
Program shall be available to RHI as follows:
(a) U.S. - immediately upon expiration or earlier termination (i.e.,
upon last contemplated network run) of the Network License.
(b) Canada - three (3) days prior to the first scheduled U.S. network
television broadcast of the Program.
(c) Outside of U.S. and Canada - day and date with U.S. network first
run.
5. ADVANCE. $850,000, payable as follows:
(i) 1/3 upon later of commencement of principal photography of
the Program and signing hereof.
(ii) 1/3 upon completion of principal photography.
(iii) 1/3 (less a "holdback" of $10,000) upon Initial Delivery.
(iv) $10,000 "holdback" upon Completion of Delivery (as defined in
Paragraph 19 hereof).
6. NETWORK LICENSEE: _____________
7. NETWORK LICENSE AGREEMENT. The Network License Agreement for the
Program shall provide for no more than three (3) runs over not more than four
(4) years commencing on delivery of the Program to the Network Licensee, which
delivery shall be made by Producer no later than _________. Producer shall
provide prompt written notice to RHI of each and every scheduled broadcast date
for the Picture by the Network Licensee as soon as Producer has knowledge
thereof.
8. GROSS RECEIPTS. "Gross Receipts" shall mean an amount equal to (i) all
monies or other consideration actually received by or credited to RHI or any
subdistributor from any and all sources from the exploitation of the Rights
granted in the Territory including, without limitation, all Net Statutory
Royalties, less (ii) (unless non-refundable) all security deposits, advances or
the sums received by RHI and not earned until earned and amounts received and
thereafter refunded. As used herein, the term "Net Statutory Royalties" shall
mean an amount equal to all sums arising out of, payable as a result of, or
based upon (y) any secondary transmission of the Program by a cable television
and/or other distribution system or service which is permitted or mandated by
statute or other governmental regulations, and the primary transmission of which
is made under the authority of RHI and/or where the secondary transmission
occurs during the term hereof in a territory for which RHI has been granted free
and/or pay television exhibition rights hereunder (irrespective of the
availability date of any of such rights to RHI hereunder) and/or (z) any other
exploitation, use or presumed use of any such primary transmission and/or where
any such other exploitation, use or presumed use occurs during the term hereof
in a territory for which RHI holds the rights to license such primary
transmission and/or any such other exploitation, use or presumed use
(irrespective of the availability date of any such rights to RHI hereunder)
provided that such sums are payable pursuant to or arise under any statutory or
other governmental framework ((y) and (z) being sometimes hereinafter referred
to, collectively and individually, as "Statutory Royalties"). For the purposes
of Paragraph 9, RHI's fee on any given Net Statutory Royalties shall be the same
as the fee payable to RHI for television exploitation under Paragraph 9(a)(i) or
9(a)(ii), as the case may be, for the applicable territory in which the
secondary transmission shall have occurred. Producer grants to RHI the right to
make, or authorize the making of, all necessary filings relating to Statutory
Royalties with respect to the Program, and to collect, or authorize the
collection of, all Statutory Royalties, or Net Statutory Royalties, as the case
may be.
9. RHI DISTRIBUTION FEES.
(a) In consideration for RHI's services hereunder, RHI shall be entitled
to retain the following fee from "Gross Receipts" from the exploitation of the
Program in the Territory:
(i) Foreign - All rights: 40%
(ii) U.S. - All television: 35%
(iii) U.S. Home Video - 35%, unless RHI self distributes, in which
case no fee will be charged and Producer will receive a royalty equal to 20% of
the wholesale price.
(iv) All other - 50%
(b) The foregoing distribution fees shall be inclusive of all third party
subdistributor's or agents' fees.
10. APPLICATION OF GROSS RECEIPTS. Producer will receive 100% of
Gross Receipts remaining after deducting therefrom the following:
(a) RHI Distribution Fees;
(b) actual, out-of-pocket direct distribution expenses incurred by
RHI and its subdistributors, including, without limitation, the cost of
obtaining any music synchronization licenses and any scale residuals which RHI
will advance hereunder in connection with RHI's exploitation of the Rights;
(c) any unrecouped portion of the Advance.
11. ACCOUNTING AND PAYMENTS.
(a) RHI shall furnish to Producer accounting statements no later
than sixty (60) days after the end of each calendar quarter period during the
first thirty (30) months of the Term hereof and thereafter sixty (60) days after
each semi-annual calendar period. Each statement to Producer shall be
accompanied by payment of the amount shown to be due to Producer, unless such
amount is less than $500.00 in which case no statement shall be rendered,
provided that in the event no accountings have been made during any calendar
year, RHI shall render a statement to Producer upon written request of Producer
but in no event more than once in any calendar year.
(b) Producer shall have the right to audit and copy such books and
records of RHI as are related solely to the Program at least once annually
throughout the License Term and such audit and copy costs shall be born by
Producer. No transaction will be audited more than one time and no audit shall
be permitted after two years from the date of any statement which is the subject
of the audit.
12. Intentionally Omitted.
13. RIGHT OF FIRST NEGOTIATION. Producer hereby grants to RHI the
exclusive right of first negotiation and matching last refusal to acquire the
Rights in the Territory after the License Term ("Post-Term Rights") and to
acquire the Rights to any television motion picture sequel, prequel or remake of
the Program ordered to production within five (5) years of the end of the Term
set forth in the Output Agreement ("Output Agreement") attached hereto as
Exhibit D (collectively, "Sequel Rights") and the exclusive right of first
negotiation only to acquire the Rights in the Territory to any television series
based on the Program ordered for production within three (3) years of the end of
the Term of the Output Agreement ("Series Rights") as follows: Producer agrees
to negotiate with RHI in good faith during the period set forth below (the
"Rights Negotiation Period") the terms and conditions upon which the Rights
shall be acquired by RHI. Producer agrees that it shall not negotiate with any
other party concerning the Rights and shall not exercise or exploit or otherwise
dispose of, except as provided in this Agreement, to Rights prior to the end of
the Rights Negotiation Period. If, at the end of the Rights Negotiation Period,
Producer and RHI have not reached agreement for the acquisition of the Rights,
Producer may then negotiate elsewhere for the sale or disposition of the Rights;
provided, however, that, with respect to Post-Term Rights and Sequel Rights,
Producer may not enter into an agreement with any third party for the Rights on
terms equal to or materially less favorable than the terms of RHI's last written
offer with respect thereto, if any, without first notifying RHI in writing
("Producer's Offer Notice") of the terms and conditions of such third-party
offer ("Third-Party Offer") and according RHI the right to acquire the Rights
upon the terms and conditions of such Third-Party Offer. RHI shall have five (5)
business days after the receipt of Producer's Offer Notice to exercise its
rights to acquire the Rights on the terms and conditions of such Third-Party
Offer by giving Producer written notice of RHI's acceptance thereof. It is
specifically understood and agreed that the terms and conditions which RHI shall
be obligated to accept in order to meet the terms and conditions of any
Third-Party Offer shall only be financial terms and shall not be related to any
other property or the services or materials of any person or entity and shall
not include terms which cannot be met as easily by one party as by another,
except in the event that the non-financial terms of such Third-Party Offer are a
condition precedent to receiving a production order for such sequel or prequel
to or remake of the Program from a network licensee, providing that Producer
shall provide RHI with a writing signed by the network licensee setting forth
the terms of such condition precedent, and provided further that it is hereby
understood and agreed that Producer shall not seek to obtain such a condition
precedent to a production order for a sequel, prequel or remake of the Program
so as to frustrate RHI's rights hereunder. If RHI shall fail to accept the terms
and conditions of such Third-Party Offer in writing within such period, Producer
shall thereafter be free to enter into an agreement with such third-party upon
the terms of such Third-Party Offer provided, however, that if Producer and such
third-party shall not enter into such agreement within thirty (30) days
following the earlier of (i) receipt by Producer of written notice from RHI that
it does not wish to accept the terms and conditions of such Third-Party Offer or
(ii) the expiration of such five (5) business day period without response from
RHI, Producer may not enter into such agreement with such third-party without
first according RHI, pursuant to the procedures in this Paragraph 13, the right
to acquire the Rights on the terms and conditions of such Third-Party Offer. The
aforesaid procedure shall be repeated ad infinitum with respect to each
Third-Party Offer.
The Rights Negotiation Period shall be as follows:
(a) Post-Term Rights - commencing upon the receipt of written notice
from RHI to Producer given at any time on or before six (6) months prior to the
end of the Term (and, if RHI shall not have so given written notice, commencing
six (6) months prior to the end of the Term) and continuing through the next
succeeding ninety (90) days.
(b) Sequel Rights & Series Rights - ten (10) business days following
written notice from Producer to RHI of Producer's intent to develop and produce
a sequel or prequel to or remake of the Program.
14. REPRESENTATIONS AND WARRANTIES.
(a) Producer hereby covenants, warrants and represents to RHI that:
(i) intentionally deleted; (ii) intentionally deleted; (iii) the initial network
license fee for the Program shall not be less than $_________; (iv) the Program,
when delivered to RHI, will be free and clear of any lien by any third party
(other than customary liens granted to unions and guilds in connection with the
production of the Program); (v) Producer has obtained all of the rights,
permissions and licenses (including, subject to and in accordance with
subparagraph 14(a)(ix) below, all music licenses, i.e. synchronization and
performance) required to enable RHI to fully exploit the Program herder,
including, without limitation, the right (subject to Paragraph 14(b)(ii) below)
to use performers' names, likenesses and biographies to advertise and promote
the Program; (vi) no part of the Program (including the music contained therein)
nor RHI's exercise of any rights granted hereunder will infringe upon the
trademark, tradename, copyright, right of privacy, property right or any other
right of any person or entity; (vii) Producer shall, at its sole expense, take
all steps necessary to secure and maintain Copyright protection for the Program
throughout the Territory for the duration of this Agreement, and Producer shall
register the Program with the U.S. Copyright Office within ninety (90) days
after its first exhibition and shall affix good and sufficient copyright notice
on the Program; (viii) Producer has full power and authority to make this
Agreement and has not done and will not do anything which interferes with the
full performance of Producer's obligations of RHI's rights hereunder; (ix) the
small performing rights in and to each musical composition in the Program are
(A) available for license through ASCAP, BMI or SESAC or (B) in the public
domain or (C) controlled by Producer and granted to RHI to the extent required
to enable RHI to exercise its rights hereunder, and Producer has obtained all
music synchronization licenses required to allow RHI to exploit the Program
throughout the Territory on all forms of free television worldwide for a five
(5) year term, as well as options allowing RHI to renew and extend such licenses
beyond the initial five (5) year period and into other media (RHI shall have the
right to replace the music used in the Program in consultation with Producer);
(x) Producer shall provide RHI, at no additional expense to RHI, access to all
foreign language tracks of the Program, if any; (xi) Producer shall notify RHI
in writing of the dates of all scheduled U.S. network broadcasts and/or pay
television windows of the Program (and any changes in such dates) as soon as
Producer has knowledge thereof; (xii) none of the RHI Rights in the Program have
been or will be exploited anywhere in the Territory by Producer or anyone other
than RHI authorized by Producer prior to the expiration of the term hereof
(other than by the Network Licensee pursuant to the Network License Agreement);
and (xiii) through the date hereof, no claims or limitations have been made or
filed relating to the Picture, any part thereof or any rights therein, other
than as set forth on Schedule I attached hereto and incorporated herein by this
reference.
(b) RHI hereby (i) represents and warrants that it has the authority
to enter into this Agreement and (ii) agrees to adhere to all applicable guild
and Network restrictions and obligations and all contractual paid ad credit
requirements and publicity restrictions of Producer in connection with the
Program, provided that RHI receives timely written evidence of such contractual
paid ad credit requirements and publicity restrictions, and provided further
that any casual or inadvertent failure by RHI or any failure by any third party
to comply with the terms and provisions of this clause 14(b)(ii) shall not
constitute a breach of this Agreement by RHI. RHI agrees to use reasonable
efforts to prospectively cure any such casual or inadvertent failure upon
written notice thereof from Producer.
15. INDEMNIFICATION.
(a) Each party shall indemnify and save harmless the other, its
successors, licensees and assigns, and any representatives thereof, against any
and all claims, losses, causes of action, costs and expenses (including without
limitation reasonable legal fees) incurred by any of them by reason of the
breach of any warranty, undertaking, representation, agreement or certification
made or entered into herein by such party.
(b) RHI shall indemnify Producer regarding any claims, losses,
causes of actions, costs and expenses (including without limitation reasonable
legal fees) arising from or in connection with (i) any change to the title of
the Program (other than for purposes of foreign translation as permitted
pursuant to Paragraph 2(b) hereof) made by RHI in connection with its
distribution of the Program, (ii) the use of any music which RHI may substitute
into the Program as provided for in Paragraph 14(a)(ix) above, (iii) any change
to the Program by reason of RHI's editing thereof, and/or (iv) otherwise in
connection with RHI's exploitation of the Program; provided, however, that RHI
shall not be obligated to so indemnify Producer to the extent any such claim,
loss, cause of action, cost or expense arises by reason of the breach by
Producer of any warranty, undertaking, representation, agreement or
certification made or entered into herein by Producer.
16. PRODUCERS LIABILITY INSURANCE. Producer shall, at its sole cost and
expense, secure standard producer's errors and omissions liability insurance in
the minimum amounts of $1,000,000/$3,000,000 for a term of three (3) years
commencing on the initial network broadcast of the Program, which shall name RHI
and RHI's parent, subsidiaries, successors and assigns and their respective
officers, directors, agents and employees as additional insureds and shall
contain a provision negating the "other insurance" clause therein, together with
a statement that such policy is primary and that any insurance carried by RHI is
neither primary nor contributory.
17. CREDIT. RHI shall be entitled to receive an "In association with"
producers credit on all prints of the Program and in all advertising and
distribution materials issued or controlled by Producer or RHI in the Territory.
RHI shall also receive a "released by" or "distributed by" credit on all prints
distributed by RHI.
18. CLEARANCE/RESIDUALS. RHI shall pay all residuals (other than in
connection with any exploitation of the Program under the Network License
Agreement which shall be the responsibility of the Producer) that may be payable
in connection with the exploitation of the Rights during the License Term
pursuant to applicable union or guild collective bargaining agreements at
minimum scale. The schedule of union or guild residual obligations which
Producer shall deliver to RHI as a delivery item shall be complete and accurate,
and RHI may rely thereon in making payments required hereunder.
19. DELIVERY. Producer shall deliver to RHI, at Producer's cost, all of
the materials set forth on Exhibit A hereto (the "Materials"). "Initial
Delivery" shall be deemed to have been made when RHI has received and approved
the technical quality of all materials marked with an asterisk on Exhibit A
hereto. Producer hereby agrees that Initial Delivery shall be made to RHI
simultaneously with delivery to the Network Licensee. Delivery shall be deemed
complete when RHI has approved the technical quality of all the materials set
forth in Exhibit A by written notice to Producer ("Completion of Delivery"). For
purposes of approving the technical quality of tendered Materials, RHI shall
have a ten (10) business day inspection period commencing upon the tendering by
Producer of the last of the items required pursuant to Exhibit A (first with
respect to Initial Delivery and again with respect to the additional items
required for Completion of Delivery). Failure to object to any item within such
ten (10) business day inspection period shall be deemed acceptance thereof. If
thereafter the parties continue to disagree about the acceptability of tendered
delivery, the parties shall submit the matter to binding arbitration before a
single arbitrator in New York City in accordance with the rules of the American
Arbitration Association for expedited arbitration. The arbitrator shall have the
authority to award professional fees and expenses to the prevailing party.
20. SECURITY INTERESTS.
(a) Producer hereby grants to RHI a security interest, subordinated
to the security interest of unions or guilds, in and to the following collateral
(the "Collateral"): (i) the copyright of the Program, (ii) the rights granted to
RHI hereunder with respect to the Program, (iii) the preprint film elements and
master video elements of the Program, and (iv) the proceeds from any of the
foregoing. The foregoing security interest is granted to RHI solely to secure
the delivery by Producer of the Program and recoupment by RHI of the Advance.
Such security interest shall become effective on the date hereof and shall
terminate automatically upon the earlier of (a) the recoupment of the Advance
for the Program, (b) the expiration of the term of this Agreement and (c) the
expiration of the Rights. If Producer fails to make timely delivery, and such
failure is not cured within ten (10) business days after receipt by Producer of
written notice from RHI of such failure, then RHI shall have all the rights and
remedies of a secured party with respect to the Program.
(b) Producer and RHI shall each execute and deliver necessary and
appropriate instruments, including, without limitation, UCC Financing Statements
and a shortform Memorandum of Exclusive License in the form attached hereto as
Exhibit B and a Mortgage of Copyright in the form attached hereto as Exhibit C
and terminations thereof), as required by the other to reflect and to terminate
the security interests granted hereunder, and each hereby irrevocably designates
the other as attorney-in-fact to execute and file any such Statements or other
documents which have not been executed and delivered promptly after written
request therefor.
21. EXECUTORY AGREEMENTS. Producer and RHI acknowledge and agree that this
agreement is considered executory under Section 365, Title 11, U.S.C. Producer
agrees to consult with RHI throughout the License Term, at RHI's request, with
respect to marketing and distributing and dubbing and/or editing the Program,
which obligation shall be material, continuing and executory.
22. BANKRUPTCY. Producer agrees and acknowledges that (i) the Program is a
work of authorship protected under Title 17 of the United States Code and is
intended to constitute, and does constitute, "intellectual property" within the
meaning of sections 101(56)(E) and 365(n) of Title 11 of the United States Code
(the "Bankruptcy Code"), (ii) the rights of RHI hereunder are "rights to
intellectual property" within the meaning of such sections and, (iii) the
obligations of Producer set forth in this Agreement shall continue in full force
and effect, the obligations of Producer set forth in this Agreement shall
continue in full force and effect, and shall bind Producer or any trustee in
bankruptcy of Producer, in the circumstances described in subsections (3) and
(4) of such section 365(n) of the Bankruptcy Code.
23. REMEDIES. After the Advance for the Program has been paid in
full and the union or guild assumption agreements for such Program have been
signed and have been delivered by RHI pursuant to the terms hereof,
Producer's rights and remedies in the event of a breach of this agreement by
RHI thereafter shall be limited to bringing an action at law to recover
damages; and Producer shall not have any right to terminate or rescind this
agreement or to enjoin or restrain or otherwise interfere with the
distribution or exhibition of the Program; provided that nothing herein shall
limit Producer's rights under Section 365, Title 11, U.S.C. if RHI is in
reorganization or bankruptcy.
24. FURTHER AGREEMENTS. Upon written request from Producer (but in no
event earlier than the commencement of principal photography of the Program),
RHI shall enter into standard distributor assumption agreements with respect to
the amounts payable, if any, pursuant to the applicable WGA, the DGA, and SAG
and any other applicable collective bargaining agreements from the exploitation
of Rights in such Program in the Territory (other than second, and if
applicable, third run network residuals which shall be the sole responsibility
of Producer), and RHI shall pay amounts due thereunder as and when due and RHI
shall indemnify Producer and hold Producer harmless if RHI fails to pay any such
amounts as and when due.
25. NOTICES. Unless otherwise provided herein, all notices, payments or
other writings which either party is required or may desire to send or deliver
or serve upon the other shall be delivered by hand, or by mail, postage prepaid,
addressed to the parties at the addresses set forth herein. Either party may
change its address for purposes hereof by written notice to the other in the
manner specified herein. If deposited in the mails, notices shall be deemed
received on the earlier of the actual date of receipt or five business days
after the date of mailing. If sent by courier for overnight delivery, notices
shall be deemed received on the earlier of the date received or two business
days after the date so sent. If sent by telecopier, notices shall be deemed
received on the next business day at the place of receipt. Whenever in this
Agreement there is a period of time specified for the giving of notices or the
taking of action, the period shall be calculated excluding the day on which the
giver sends notice and/or the day on which the action to be taken is actually
taken, as applicable.
26. ASSIGNMENT. Neither party may assign its rights hereunder to any third
party without the prior written consent of the other (which approval shall not
be unreasonably withheld); provided, however, that RHI shall be permitted to
assign its rights hereunder to any related entity (e.g., any parent, subsidiary
or other affiliated entity) or to any third party of at least comparable
financial stature to RHI without the prior approval of Producer, provided that
such related entity or third party shall have fully assumed all of RHI's
obligations hereunder.
If the foregoing is acceptable to you, kindly sign the enclosed copy of this
letter agreement and return it to us. This letter agreement shall be the entire,
binding and enforceable agreement between the parties hereto and shall be
interpreted and construed under the laws of the State of New York.
Sincerely,
RHI ENTERTAINMENT, INC.
------------------------
Authorized Officer
AGREED TO AND ACCEPTED:
[PRODUCER]
-----------------------
SCHEDULE 1
To be supplied by Producer
