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EXHIBIT 10.104
HBO
As of October 5, 1998
American Artists Film Corp.
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
RE: MIRACLES
Gentlemen:
The following shall confirm the Agreement between American Artists Film
Corporation ("Producer") (Federal ID No. 00-0000000) and Home Box Office
("HBO"), a division of Time Warner Entertainment Company, L.P.
("TWE") in connection with the above- referenced program.
1. DEVELOPMENT MATERIALS
Producer shall prepare and deliver to HBO for HBO's approval
in its sole discretion:
(a) a treatment;
(b) a budget; and
(c) selects.
(collectively, the "Development Materials") for an original television program
(an original television pilot) of approximately sixty (60) minutes in length
based on the captioned project (the "Program"), and for the option set forth in
Paragraph 4, below. The Program shall focus on Xxxxx Xxxx, Xxxxxxxx Xxxxxx and
Xxx Xxxxxx, three televangilists who claim to have divine powers to heal the
sick. Their ministries are followed by thousands of people all over the world
and in some cases, according to medical doctors, people are miraculously being
healed.
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2. DELIVERY DATE
The Development Materials shall be delivered to HBO on a date
to be mutually agreed upon by the parties.
3. PAYMENT
HBO shall pay to Producer the sum of $20,663 (which shall be
credited against the license fee in the event HBO exercises its Option pursuant
to Paragraph 5, below) as full consideration for the work to be done by Producer
(including expenses) and the rights and option granted by Producer to HBO
hereunder. Payment shall be made as follows:
(a) one-half (1/2) within ten (10) days after approval of
the development budget; and
(b) on-half (1/2) within ten (10) days after execution
and delivery of this Agreement and delivery to HBO of the Development Materials
as revised pursuant to Paragraph 4, below.
4. REVISIONS AND OPTION
(a) Upon receipt by HBO of the Development Materials, HBO
shall advise Producer, within a reasonable amount of time after HBO receives
same, whether any revisions or changes are necessary and, if so requested,
Producer agrees to make such revisions and/or changes to the Treatment as soon
as possible thereafter. Commencing upon the date hereof and continuing for a
period of three (3) months after receipt by HBO of the final Development
Materials (the "Option Period"), HBO shall have the exclusive option to require
Producer to produce and deliver the Program based upon the Development Materials
(the "Option"). Not later than the end of the Option Period, HBO shall advise
Producer whether HBO elects to exercise the Option, pursuant to Paragraph 5,
below.
(b) In the event that HBO does not exercise the Option,
HBO shall have no further right, titled or interest in the Development
Materials; subject, however, to the provision of Paragraph 6 below.
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5. PRODUCTION
In the event that HBO elects to exercise the Option, then HBO
and Producer shall negotiate in good faith, during a six (6) month period after
HBO's exercise of the Option (the "Negotiation Period"), the terms of a
production services agreement pursuant to which (i) Producer shall produce the
Program as a producer-for-hire; (ii) HBO will be responsible for supplying all
financing required to produce the Program; (iii) HBO will own all rights, title
and interest in the Program including, without limitation, the copyright herein
and the right to distribute the Program in any and all media throughout the
world in perpetuity and (iv) Producer shall be entitled to receive 50% of 100%
of the Net Profits from HBO's distribution of the Program other than on HBO
programming services. "Net Profits" will be defined in accordance with HBO's
standard net profits definition, subject to good faith negotiation.
6. RECOUPMENT
If HBO does not exercise the Option or if HBO and Producer
fail to enter into an Agreement relating to the production of the Program,
Producer shall reimburse HBO the full amount paid to Producer by HBO hereunder
out of first monies received by Producer, directly or indirectly, in connection
with the sale, transfer, assignment, license, option or other disposition or
exploitation of the Development Materials in whole or in part. Such
reimbursement shall be made promptly after Producer's receipt of such first
monies. For purposes of this Paragraph, "first monies" shall exclude any sums
paid to Producer and intended for additional writing, research or other strictly
developmental expenses incurred in connection with the captioned project.
Producer hereby grants to HBO as security for such reimbursement a lien upon,
and first priority security interest in, the Development Materials and proceeds
of all exploitation of the Development Materials in all media. Producer shall
execute such security agreements, financing statements and other documents as
HBO deems necessary or proper to create and perfect such security interest, and
HBO shall execute such documents as are necessary to terminate such security
interest upon reimbursement of all amounts paid by HBO hereunder.
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7. EXCLUSIVITY
Producer shall not produce or cause the production of any
television program based on or derived from the Development Materials for
exhibition on any form of television during a period commencing on the date
hereof and ending on the later date of the expiration of the Option Period or
the Negotiation Period.
8. WARRANTY AND INDEMNITY
(a) Producer hereby warrants and represents that it has
the right to enter into this Agreement and grant all rights herein granted and
to fully perform all its obligations hereunder; that it owns or controls and
will own or control all rights relating to HBO's distribution, exhibition or
exploitation of the Development Materials or Program; that no portion of the
Development Materials shall infringe upon or violate the right of privacy of, or
right of publicity of, or constitute a libel or slander against, or defame, or
violate any copyright, trademark or service mark, common law or any other right
of, any person, firm or corporation; that Producer shall employ writers who
shall be the sole authors of the Development Materials and that all such
Development Materials shall be original with them and not copied in whole or in
part from any other work or are in the public domain or otherwise controlled and
owned by Producer; that all such writers employed by Producer shall enter into
written agreements which shall provide that such work is specifically ordered or
commissioned as a work made-for-hire and that there are no liens, claims or
encumbrances whatsoever adversely affecting, or that would or might in any way
prejudice, Producer's grant of rights to HBO herein.
(b) Producer assumes liability for, and shall indemnify,
defend, protect, save and hold harmless HBO and TWE, their partners, divisions,
subsidiary and affiliated divisions and companies, distributors, assigns,
licensees and the respective shareholders, directors, officers, employees and
agents of the foregoing (the "HBO Indemnified Parties") from and against any and
all claims, actions, suits, costs liabilities, judgments, obligations, losses,
penalties, expenses or damages (including, without limitation, legal fees and
expenses) of whatsoever kind and nature, imposed on, incurred by or
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asserted against any of the HBO Indemnified Parties, arising out of any breach
or alleged breach by Producer of any of its representation, warranty, covenant
made or obligation assumed, by Producer pursuant to this Agreement. The
provisions of this subparagraph 8(b) shall apply, without limitation, to claims
brought by HBO against Producer.
9. INDEPENDENT CONTRACTORS
HBO and Producer are independent contractors with respect to
each other, and nothing herein shall create any partnership, joint venture or
agency relationship between the parties hereto. Producer shall be solely
responsible for all withholding taxes, contributions to Social Security and any
other deductions and contributions which may be required by any law or any union
agreement applicable to programs produced for HBO. Producer shall hold HBO
harmless from and indemnify HBO against the payment of any such taxes or
contributions.
10. MISCELLANEOUS
(a) No waiver of any term or condition of this Agreement
shall be construed as a waiver of any other term or condition, nor shall any
waiver of any default under this Agreement be construed as a waiver of any other
default.
(b) It is contemplated that in the event the Option is
exercised and further negotiations are concluded, a more formal agreement shall
be signed by the parties hereto incorporating HBO's standard terms and
conditions for the production and distribution of a television program as well
as such other terms and conditions to which the parties shall mutually agree.
(c) The terms and conditions of this Agreement shall be
governed by the laws of the State of New York applicable to agreements entered
into and to be fully performed within such State.
(d) Producer shall not assign any of its rights or
obligations hereunder without the prior written consent of HBO. Any
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purported assignment without such prior written consent shall be null and void
and of no force and effect.
If the foregoing is agreeable to you, please sign below where
indicated.
Very truly yours,
HOME BOX OFFICE, a Division
of Time Warner Entertainment Co., L.P.
By /s/ Xxxxx Xxxxxxxx
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Agreed to and Accepted as of
the date first written above
AMERICAN ARTISTS FILM CORP.
By: /s/ X. Xxxx Xxx Xxxx, Vice President
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X. Xxxx Xxx Xxxx, Vice President
