Exhibit 6.4
THIS AGREEMENT will take effect from the first day of November one thousand nine
hundred and ninety seven between FILMBANK DISTRIBUTORS LIMITED whose registered
office is at 000 Xxxxxxx Xxxxxx, Xxxxxx, XXX 0XX (hereinafter called "The
Licensor") of the one part and CVS - Travelhost SA cc whose Registered Office is
at X00 Xxxxxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxx Xxxxx Xxxxxx,
(hereinafter called "the Licensee") of the other part.
DEFINITIONS
1. In this ,Agreement (which shall include all of the terms and conditions
contained in the schedule attached hereto) the following words and
expressions shall have the following meanings:
"The Territory" shall mean the country presently known as South Africa.
"The Hotels" shall mean the hotels listed in Schedule A hereto, together
with such other hotels as may from time to TIME BE ADDED TO SUCH LIST
PROVIDED THAT THEY ARE WITHIN the territory as defined above at the
approval of the Licensor.
"The Rooms" shall mean each and every bedroom in the Hotels, with a
television outlet, available for letting to the public including those made
available for the officers or employees of the hotels but not rooms
permanently set aside as staff accommodation.
"The Films" shall mean the cinematograph films which under franchise
agreements with its member companies the Licensor has the right to
distribute by the means described herein and which the Licensor has elected
to make available to the Licensee.
"Video Cassettes" shall mean a video cassette embodying any of the Films
for use by means of a playback device directly connected to or forming part
of a television receiver or comparable or similar device.
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"THE PAY PER VIEW SYSTEM" shall mean the system of exhibition of feature
films in the Hotels on closedCIRCUIT CABLE by means of Video Cassettes
whereby the viewer pays a specific charge to the Hotel for each separate
viewing.
"The Ticket Price" shall mean the individual charge made by the Hotels to
viewers of the Pay Per View System for each viewing of the Film.
"Ticket Sales" shall mean the amounts receivable (excluding VAT) by the
Licensee in respect of the exhibition of the Films in the Hotels and shall
be the product of the Ticket Price and the number of times that the Films
are viewed by means of Pay Per View System.
"Returns" shall mean all details necessary to calculate the amount payable
to the Licensor, in the format as shown on Schedule C.
"VAT" shall mean "Value Added Tax" or any other sales or like tax incurred
on the sale or supply of goods and services which may now or at any time in
the future during the Period of the Agreement be imposed by the Government
of the United Kingdom of Great Britain and Northern Ireland.
TERM
2. This agreement shall remain in force for a period of one (1) year from the
1st November 1997. Following the initial period of one (1) year the
Licensor or the Licensee may terminate the agreement by the giving of six
months notice in writing. The said one (1) year period and any extension
thereof is hereinafter called "the Period of the Agreement".
LICENSER
3. During the Period of the Agreement the Licensor grants to the Licensee the
non-exclusive right to show or to permit the Hotel proprietors to show
Films by means of the Pay Per View system to guests in the Rooms in the
Hotels. In no event shall there be exhibitions of the films in any public
rooms of the Hotels or any areas within the Hotels
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TO WHICH MEMBERS OF the general public including persons attending
conferences have access.
SELECTION OF FILMS
4. (a) The Licensor shall advise the Licensee in writing of the titles of
the films which it has elected to make available to the Licensee for
distribution in the Hotels pursuant hereto and such titles shall not
be unreasonably withheld.
(b) Whilst the Licensor reserves the right to elect which of, the films it
will make available to the Licensee hereunder and when those films
shall be made available the Licensor shall use its best endeavours to
make films available to the Licensee at the same time as they are made
available to others for distribution in Hotels through the Pay Per
View System.
(c) Titles made available to the Licensee in the Hotels pursuant hereto
are not automatically available for all Hotels but only for those
listed at the time the title is elected by the Licensor.
(d) The Licensee shall programme a maximum of 48 of the Licensor's films
per annum on the Pay Per view system in each Hotel which receives a
Pay Per View service. For the avoidance of doubt the minimum programme
requirement will apply pro rata during the agreed notice period unless
specifically waived by the Licensor.
FEES
5. The Licensee shall in respect of each day of the term of this Agreement in
accordance with the provisions of Clause 10 pay to the Licensor the fees
shown in Schedule B in the format as shown in Schedule C for each Hotel to
which the Licensee makes Films available. Following the initial period of
one (1) year the fees may be reviewed a any time.
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SUPPLY OF VIDEO CASSETTES
6. (a) The Licensor shall arrange to deliver to the Licensee such number
of Video Cassettes of each of the Films as may be agreed in writing by
the parties The Licensee shall reimburse the Licensor's actual
out-of-pocket costs of supplying such video cassettes provided that
the Licensor uses the best endeavours to enable the Licensee to
benefit from bulk orders for the manufacturers of cassettes made by
the Licensor and, where that is not possible, obtains copies from the
cheapest practicable source of supply.
(b) The Licensor shall use its best endeavours to ensure that the Video
Cassettes shall be of a standard consistent with the needs of
closed-circuit cable transmission but if any Video Cassettes are not
of such standard the Licensor shall supply the Licensee with
replacements.
(c) Video Cassettes shall remain the sole property of the Licensor and
legal title thereto shall be vested in the Licensor and the Licensee
may only deliver the Video Cassettes to Hotels listed in the schedule
or subsequently notify to the Licensor in accordance with Clause 1.
(d) The Licensee may only use the Video Cassettes for the purpose of and
in conformity with this Agreement. In particular the Licensee shall
not sell or pledge the Video Cassettes and the Licensee shall not
prepare or permit others to prepare any copies thereof or of any parts
thereof.
(e) Should any Video Cassette be accidentally lost, stolen or destroyed,
the Licensee shall promptly report such fact to the Federation Against
Copyright Theft (F.A.C.T) or the equivalent local organisation without
delay and with a copy to the Licensor. If the cassette has been
stolen, this should also be reported to the local police force.
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(f) THE LICENSEE SHALL TAKE ALL THE NECESSARY STEPS TO PROTECT the Video
Cassettes from unauthorised use, distribution and/or commercialisation
and shall if so required by the Licensor permit F.A.C.T. (or the local
equivalent) to inspect its security arrangements with regard to safe
keeping of the Video Cassettes and shall implement all recommendations
of F.A.C.T (or the local equivalent) arising from such inspection.
RETURNS OF VIDEO O CASSETTES
7. (a) The Licensee shall ensure that each Video Cassette is returned to
it by each Hotel within seven days of the end of the playing period.
(b) Each Video Cassette shall be returned by the Licensee in the same
condition as received, reasonable wear due to the proper use thereof
excepted. Alternatively, subject to the Licensors consent, each video
cassette may be erased and a Certificate of Erasure supplied by the
Licensee.
WARRANTIES
8. (a) The Licensor hereby warrants and undertakes that:
(i) Prior to delivery of each film it shall have obtained any and
all necessary Licenses, consents and rights in respect thereof
to enable the Licensee to exhibit the selected film in
accordance with this Agreement subject only to the provisions
of Clause 18 hereof.
(ii) When delivered to the Licensee each film shall not infringe
any copyright or patents or other rights and will not contain
any defamatory or other matter which would give any third
party a right of action against the Licensee and shall have
been. granted a Certificate by the British Board of Film
Censors for public exhibition.
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(iii) It shall indemnify and keep the Licensee fully indemnified
against all liabilities claims demands actions and costs or
expenses or damages arising out of or in CONNECTION WITH any
breach of the warranties and undertakings by the Licensor in
the Agreement.
(b) The Licensee hereby warrants and undertakes that it shall ensure that
all apparatus owned by it to exhibit the films is maintained in first
class working order and regularly inspected and maintained.
CENSORSHIP
9. The Licensee will be responsible for conforming to whatever local
censorship regulations govern transmission in the Hotels. All costs in
relation thereto will be borne by the Licensee. The Licensor retains the
right to view any Video Cassette that has been altered in order to conform
with local censorship regulations.
ACCOUNTING AND AUDIT
10. The Licensee will send to the Licensor within 30 days of the end of each
month a return for Pay Per View showing the usage at each Hotel of each
Film during the playing schedule in such form as defined under Schedule C.
The Licensor retains the right to audit and check the Licensees books and
records, given that these visits are within normal working hours and not
more frequent than twice a year. The Licensor's aforementioned rights of
audit shall subsist during the Period of Agreement and for a period of TWO
YEARS THEREAFTER OR UNTIL THE SETTLEMENT of any dispute arising in
connection herewith whichever shall be the longer. The Licensee shall keep
all records and operate such a system of checks as may be necessary to
ensure that the returns in respect of all screenings of the Films are
accurate and will require each Hotel to do the same including in particular
but without limiting the generality of the foregoing details of the dates
and at which Hotels each of the films were available for exhibition. The
Licensor will issue an invoice to the
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Licensee not LATER THAN 40 DAYS AFTER THE END OF THE MONTH to which it
relates. The Licensee will pay all invoices in full 14 days after the
invoice date but no later than 54 days after the end of the play month. In
the event that the Licensee has not paid the Licensor for all invoices on
the term described above, then the Licensor will apply interest at the Bank
of England base rate plus 2 DEG.s to the outstanding monies until they
have been paid. In the event that an audit results in a claim against the
Licensee in excess of 10t of the reported turnover during the time period
being audited, the Licensee will be liable for the costs of the said audit.
PAYMENT
11. All payment due to the Licensor hereunder shall be made to the credit of
the Licensor's bank account:
Barclays Bank
00 Xxxxxx Xxxxxxxx
Xxxxxx
XX0 0XX
Xxxxxxx
Account Number: 00000000
Sort Code: 20-35-90
or such other bank as Filmbank Distributors Limited may be from time to
time specify. All payments due are to be made in Sterling pounds and all
charges of transactions are to be borne by the Licensee.
DEFAULT
12. If the Licensee shall:
(a) Make default in payment of any monies due and owing under this
Agreement by the Licensee to the Licensor for seven (7) days after
demand by notice in writing which said notice shall inform the
Licensee of the right by this Clause conferred on the Licensor and
which demand shall not be invalidated by reasons of any error in the
amount therein mentioned.
(b) Commit any other material breach of any term of this Agreement that is
incapable of being remedied within
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seven (7) DAYS AFTER the giving of written notice by the Licensor to
the Licensee requiring such remedy then and in any such case the
Licensor may by notice in writing determine this Agreement without
prejudice to the rights and remedies of the Licensor hereunder or in
respect of any antecedent breach of this or any similar Agreement and
upon such determination all monies payable shall forthwith be due and
payable.
COPYRIGHT
13. (a) The Licensee shall take and shall procure to be taken all
reasonable steps to prevent any breach of copyright in each of the
Films.
(b) In. addition the Licensee shall supply to the Licensor in writing all
such information and at the Licensor's cost take such action as the
Licensor shall reasonably require from time to time for the purpose of
protecting the Licensor's rights and interests in the Film.
(c) The Licensee shall be liable to the Licensor for any damage sustained
through any breach of copyright in any Film due to any act default or
omission by the Licensee or any failure to exercise reasonable care on
the Licensee's part and to comply with any reasonable care on the
Licensee's part and to comply with any reasonable requirement of the
Licensor (including any requirement as to the disposal of copyright
material in the possession or control of the Licensee) for the
protection of the copyright in such Film.
(d) The Licensee shall not remove any copyright notice or trademark from
any prints or advertising accessories relating to the Film.
(e) The Licensee shall have no right of its own to any trademark of the
Licensor and its suppliers and it shall not use the same except with
reference to the Film.
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TERMINATION
14. If any legal proceedings shall be threatened or taken against the Licensor
or the Licensee or any person responsible for the exhibition hereunder of a
Film to restrain the exhibition of such film or making any claim in respect
of such exhibition the Licensor may by notice require the Licensee not to
commence or if commenced to cease to exhibit such Film and the Licensor
SHALL HAVE the right to determine forthwith the licence in respect of the
Film effected in such proceedings. If the Licensor elects to determine the
exhibition of a film so effected the Licensee shall only be obliged to pay
to the Licensor the fees based on the number of days of availability for
exhibition of each Film prior to determination. If any proceedings shall be
taken against the Licensee or any person responsible as aforesaid alleging
any infringement of any right (other than the right to perform musical
works where an effective licence has been acquired by the Licensee as
hereinafter mentioned) or that a Film is defamatory of any person the
Licensor shall be entitled on behalf of the Licensee or any such person to
conduct defend settle or otherwise dispose of any such proceedings and
shall indemnify and keep indemnified the Licensee or any such person
against any damage or costs awarded in or payable or paid to settle or
dispose of any such proceedings PROVIDED ALWAYS and upon condition that the
Licensee or any such person makes no statement admission offer promise or
payment to and enters into no communication with any party instituting such
proceedings or anyone acting on his or her or their behalf but immediately
informs the Licensor thereof and delivers to the Licensor any relevant
communication the Licensee or any such person may receive and gives to the
Licensor such information and assistance as may reasonably be required in
relation thereto. In any contract which the Licensee may make with any
person concerning the exhibition of a film it shall require such person to
comply with the provisions of this Clause and shall take such proceedings
against such person as the Licensor may require to secure such person's
compliance therewith.
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INSOLVENCY OF LICENSEE
15. If either party shall enter into liquidation compulsory or voluntary
(otherwise than for the purpose of amalgamation or re-construction) or if a
receiver over either party's property or any part thereof be appointed then
and in any such case the other may by notice in writing to the first party
determine this Agreement without prejudice to the rights and remedies of
the other hereunder or in respect of any antecedent breach hereof PROVIDED
ALWAYS that if any liquidator or receiver of the Licensee shall so request
the Licensor in writing at any time before this Agreement has been
determined as aforesaid such liquidator or receiver shall be entitled to
fulfil the terms of this Agreement upon giving such security or making such
arrangements to the reasonable satisfaction of the Licensor as will secure
to the Licensor all monies to which the Licensor may be entitled hereunder
and the performance of the terms and conditions of this Agreement.
FORCE MAJEURE
16. If at any time the exhibition of any Film in accordance with the provisions
of the Agreement shall be prevented either wholly or in part and whether
permanently or temporarily by any cause of whatsoever nature outside the
control of the Licensee the Licensee shall have the option to determine
such exhibition in respect of the affected Film by notice in writing to the
Licensor and thereafter the Licensee shall only be obliged to pay to the
Licensor fees in respect of the relevant Film based on the numbers of days,
rooms and territories available for exhibition.
PERFORMANCE RIGHTS
17. The Licensee shall when necessary at its own expense acquire an effective
licence to perform any music works forming part of each Film from the
Performing Rights Society Ltd (or equivalent local authority) or it's
successors in title in respect of the exhibition of the Film in Hotels.
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CREDITS
18. The Licensee will comply with all instructions furnished to it by the
Licensor with respect to advertising credits and the Licensee agrees to and
will indemnify and hold the Licensor harmless from any loss or damage
caused or expense (including reasonable legal fees) incurred or suffered by
the Licensor by reason of the failure of the Licensee to adhere to and
observe any such credit instructions. In no event shall the names of actors
appearing in or any persons connected with the production of the Films be
used so as to constitute an endorsement expressed or implied of any product
of service. Furthermore no advertising of any kind may be screened on the
same channel on which "The Films" are shown in "The Rooms" of "The Hotels".
EXHIBITION
19. The Licensee shall exhibit or cause to be exhibited each Film in its
entirety (without cuts, deletions or editing of any kind except pursuant to
Clause 9) including credit titles, trade marks and censorship certificates
(if any).
ASSIGNMENT
20. (a) The Licensee shall not transfer assign or sub let the benefit of
this Agreement without the agreement in writing of the Licensor.
(b) The Licensor may at any time assign the benefit of this Agreement.
NO WAIVER
21. (a) No waiver by either party of a breach or default of the other
party shall be construed as a waiver of any preceding or succeeding
breach or default.
(b) The Agreement may be modified and/or amended solely by writing signed
by both parties.
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NO AGENCY OR PARTNERSHIP
22. The Licensee is not an agent or representative of the Licensor and this
Agreement does not constitute a partnership or a joint venture. The
Licensor shall not be bound by any representation of the Licensee nor shall
the Licensor be liable for any act or omission of the Licensee.
NOTICES
23. Any notice given under the provisions of this Agreement shall be in writing
and be sent to the address of the party to be served as above written or to
such other address, of which notice has been previously given. All notices
shall be delivered by hand by registered or recorded delivery letter or by
telex. Notices shall be deemed received when delivered by hand or on the
date on which they would be received in the normal course of posting if
posted or when the proper answerback code is received by the sender if sent
by telex.
ENTIRE AGREEMENT AND PROPER
24. (a) This Agreement sets forth the entire Agreement between the parties
at the date hereof with respect to the subject matter hereof. Any
amendment or variation to this Agreement must be in writing and signed
by both parties.
(b) This Agreement shall be interpreted in accordance with the Laws of
England.
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AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first hereinbefore written.
SIGNED BY /s/ILLEGIBLE
---------------------------
for and on behalf of
FILMBANK DISTRIBUTORS LIMITED
Witnessed by: Witness' address:
[SEAL]
SIGNED BY:
For and on behalf of
CVS - TRAVELHOST SA cc
Witnessed by: Witness' address:
/s/ ILLEGIBLE ILLEGIBLE
-------------------
SCHEDULE A
HOTEL ROOMS
TERRITORY. SOUTH AFRICA
XXXXXX HOTEL, DURBAN 101
ROYAL HOTEL, DURBAN 272
KOPANONG HOTEL GROUP, JOHANNESBURG 252
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SCHEDULE H
1. PAY PER VIEW (SCHEDULER SERVICE)
40% royalty per title for Blockbuster titles (50 million at US Box Office)
and 35% royalty per title for nonblockbuster titles with a minimum
guarantee of:
75p per room per month.
2. PRODUCT COMMITMENT
PAY PER VIEW
A maximum of 48 titles per annum.
SCHEDULE
RETURN STATEMENT FOR CVS - TRAVELHOST SA CC
Hotel Name:
Number of Rooms:
Month:
TITLE Total Sales
Viewing Price
Gross Revenue
Royalty
Percentage
Royalty Due
Amount
35% 40%
Minimum Guarantee:(pound)0.75 X (No. of rooms)
Revenue Due: Higher amount from A or B
