As of March 20, 2006 POW! ENTERTAINMENT, INC. (f/s/o STAN LEE) GANFER & SHORE New York, New York 10017 Attn: Arthur Lieberman, Esq.
As of March 20, 2006
(f/s/o
XXXX XXX)
GANFER
& SHORE
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxxxxxx, Esq.
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Re:
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XXXX
XXX / PRODUCER / OVERALL DEAL
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Gentlemen:
Reference is made to the Memorandum of
Agreement (the “Agreement”), as of March 20, 2006, between Silver Creek
Pictures, Inc. (“Silver Creek”) and POW! Entertainment, Inc. (“Lender”) for (a)
submission by Xxxx Xxx (“Artist”), on an exclusive “first look” basis, of any
and all ideas, materials and/or properties (“Property[ies]”, as defined in
Paragraph I.E.1. below) owned or controlled by Lender or Artist that Artist is
interested in developing in any medium or media, as more particularly described
below; and (b) the producing services of Artist in connection with the
development, production and distribution of such Properties in any medium or
media, including but not limited to by means of live action and/or animated
theatrical motion pictures, direct-to-video (“DTV”) motion pictures (each
individually and/or collectively, as the context may require, a “Picture”),
television motion pictures, stage play project(s), internet project(s), theme
park project(s), video and/or computer game project(s), wireless and/or mobile
projects and/or any and all other projects to be designated hereunder
(“Non-Picture Projects”).
In consideration of the mutual
covenants and agreements contained herein, Silver Creek, Lender and Artist
hereby amend the Agreement by this letter amendment (“Letter Amendment”) as
follows:
1. Silver
Creek shall have no obligation to perform under this Letter Amendment unless and
until all Conditions Precedent set forth in Paragraph 1. of the Agreement have
been satisfied, and Silver Creek has received a fully executed original of this
Letter Amendment (in form and substance acceptable to Silver
Creek).
2. Reference
is made to Paragraphs II.A.2. and II.A.3. of the
Agreement. Notwithstanding anything to the contrary set forth
therein, with respect to any Artist-Submitted Property that is solely owned by
Lender and/or Artist and is accepted for development by Silver Creek as a
live-action theatrical Picture or a live-action direct-to-video (“DTV”) Picture,
if by the date that is six (6) months after Silver Creek’s acceptance of the
applicable Artist-Submitted Property for development as a live-action theatrical
Picture or live-action DTV Picture, Silver Creek has not engaged a writer to
render writing services on the script for such applicable Picture (provided
that, if Silver Creek has in place a deal for the writing services of a writer
for the applicable Picture, then Silver Creek shall be deemed to have engaged
the writer for purposes of this Paragraph 2., even if a written agreement for
such writing services has not yet been executed or the writer has not yet begun
rendering writing services pursuant to such agreement), then Lender or Artist
may notify Silver Creek in writing of such failure to engage a writer within the
foregoing six (6)-month period, and if Silver Creek does not thereafter engage a
writer within thirty (30) days after receipt of such notice, all of Silver
Creek’s right, title and interest in and to the applicable Picture shall revert
to Lender, subject to the following:
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a. The
periods set forth above shall be extended for any period during which a claim
with respect to the applicable Artist-Submitted Property has been asserted and
remains unresolved and for any period during which Silver Creek’s development
and/or production activities in connection with the applicable Picture based
upon the Artist-Submitted Property are interrupted or postponed due to any
occurrence of an event of force majeure, including without limitation, any labor
strike, threatened labor strike, or other labor dispute.
b. At
such time, if ever, that the rights to the applicable Picture revert to Lender
as set forth above, to the extent Silver Creek has expended any monies in
connection with the development of such applicable Picture (including without
limitation any Rights Payment made pursuant to Paragraph I.E.2. of the
Agreement), Silver Creek shall be provided with a first-priority security
interest/lien (including, but not limited to, a copyright mortgage and UCC-1s
for the State of California, State of New York, and New York County) (“Lien”)
for the applicable costs in connection with the applicable Picture based on the
Artist-Submitted Property accepted for development as a live-action theatrical
Picture or live-action DTV Picture, plus accrued interest thereon from the time
an item of cost was paid, incurred or charged, at an annual rate (the “Interest
Rate”) equal to 125% of the U.S. prime rate as published by the Bank of America,
as such rate may vary from time to time. Such costs plus interest
shall be paid to Silver Creek no later than the time the applicable Picture is
set up for development in any medium by a third party. In addition,
in the event of a reversion, the rights in the applicable Picture shall revert
to Lender subject to the assumption by such third party of any and all of Silver
Creek’s obligations in connection with the applicable Picture.
3. Reference
is made to Paragraph III.D. of the Agreement. Notwithstanding
anything to the contrary set forth therein, the parties acknowledge and agree
that Artist shall not be responsible for ensuring that the applicable Picture
meets the applicable “Delivery” requirements as set forth in Paragraph III.D. of
the Agreement.
Except as expressly set forth herein,
the Agreement shall remain unchanged and in full force and
effect. Capitalized terms not defined herein shall have the same
meaning as set forth in the Agreement.
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Please confirm the foregoing as
accurately reflecting the agreement and understanding of the parties by having
your client sign in the space provided below.
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SILVER
CREEK PICTURES, INC.
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By:
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Its:
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ACCEPTED
AND AGREED:
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By:
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Its:
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Federal
ID No.:_________________
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