The parties to this agreement are Columbia Pictures
Industries, Inc., a Delaware corporation ("CPII"), and ML Delphi
Premier Partners, L.P., a Delaware limited partnership (the
"Seller"). CPII desires to purchase (in such capacity, the
"Purchaser") from the Seller, and the Seller desires to sell to
CPII, all of Seller's right, title and interest in and to the
Interest (as hereinafter defined), subject to the terms and
provisions of this Agreement.
It is therefore agreed as follows:
1. Sale.
For and in consideration of the Purchase Price (as
hereinafter defined) and upon the execution and delivery of this
Agreement by CPII, the Seller does hereby sell, transfer, set
over and assign to CPII all of the Seller's right, title and
ownership interest in and to the Films set forth on Schedule 1
hereto (collectively, the "Films"; such right, title and
ownership interest, the "Interest"). Concurrently with the
execution and delivery of this Agreement by CPII and the Seller,
the Seller shall execute and deliver to CPII a Xxxx of Sale and a
Copyright Assignment in the forms of Exhibit A and Exhibit B,
respectively, attached hereto.
2. Termination of Distribution Agreements.
Effective as of the date hereof upon payment by CPII
and receipt by the Seller of the Purchase Price (as hereinafter
defined), the Distribution Agreement dated August 28, 1986 (such
agreement, as amended, being the "Distribution Agreement")
between Columbia Pictures, a division of CPII, and the Seller
relating to the Films shall automatically terminate without any
further action on the part of either party hereto.
Notwithstanding the foregoing, the provisions of Article XV of
the Distribution Agreement shall survive such termination.
3. Purchase Price.
Within two business days of the execution and delivery
of this Agreement by CPII and the Seller, CPII shall pay to the
Seller, as the purchase price for the Interest, $200,000 (the
"Purchase Price"), which shall be paid, without deduction or
setoff, by wire transfer of immediately available funds to the
account of the Seller as set forth on Schedule 2 hereto. The
parties hereto acknowledge and agree that, subject to the terms
of this Agreement, (i) the Purchase Price constitutes full
satisfaction and settlement for the purchase of the Interest and,
in addition, of any and all amounts payable by CPII to the
Seller, and any amounts payable by Seller to CPII, in each case
with respect to the distribution and exploitation of the Films
under the terms of the Distribution Agreement and the other
agreements and instruments entered into in connection with the
production, distribution and exploitation of the Films as
contemplated by the Seller's Prospectus dated September 4, 1986,
as such agreements as amended, supplemented or modified have been
entered into (the "Subject Agreements"), and (ii) upon receipt of
the Purchase Price by the Seller, CPII shall have no further
liability or obligation to the Seller and Seller shall have no
further liability or obligation to CPII for the purchase of the
Interest or the Films, or for payments arising under the Subject
Agreements with respect to the distribution and exploitation of
the Films, except that notwithstanding the foregoing, the
indemnities in the Subject Agreements set forth in Schedule 3
hereto shall survive.
4. Representations and Warranties of the Seller.
The Seller represents and warrants to CPII that (a) the
Seller is the owner of the Interest free and clear of all
mortgages, pledges, liens, security interests and other
encumbrances of any nature whatsoever; (b) the Seller has not
assigned or transferred to any other person, firm, corporation,
trust or other entity in any manner, including by way of
subrogation or operation of law or otherwise, all or any portion
of any claim, demand, right (including a right to receive any
payment, whether in respect of a participation interest or
otherwise), action or cause of action that it had, has or might
have arising under or in respect of the Interest, the Films or
the Subject Agreements; and (c) to the best of Seller's
knowledge, no litigation, investigation or administrative
proceeding of or before any court, arbitrator or governmental
authority is pending or threatened against the Seller or the
Seller's general partner, under or in connection with the
Interest, the Subject Agreements or the transactions contemplated
hereby.
5. Representations and Warranties of CPII.
CPII hereby represents and warrants to the Seller that
no material books or records of CPII or its affiliates related to
the computation of costs of the Films or Seller's share of the
revenues derived from the exhibition, distribution and other
exploitation of the Films have been withheld by CPII from Seller
or any agent or representative of Seller (including without
limitation, Xxxxxx Management Corporation) with respect to the
distribution and production audits heretofore performed by or on
behalf of the Seller. Seller acknowledges that it has been given
the opportunity to audit the books and records of CPII and its
affiliates related to the production and distribution of the
Films and agrees that unless Seller has a reasonable basis to
believe that the foregoing representation is untrue, Seller shall
have no further right to audit any such books or records. The
Seller represents and warrants to CPII that neither the Seller
nor any of its directors, officers, employees, affiliates, agents
or representatives (including, without limitation, Xxxxxx
Management Corporation) is presently aware of any breach of the
foregoing representation and warranty of CPII.
6. Additional Representations and Warranties of the
Parties.
Each of CPII and the Seller represents and warrants to
the other that (a) it has the right, power and authority to
execute, deliver and perform this Agreement; (b) this Agreement
and each other agreement entered into in connection herewith to
which it is a party have been duly and validly authorized,
executed and delivered by it and each such agreement constitutes
its legal, valid and binding obligation, enforceable against it
in accordance with its terms, except as such rights may be
limited by bankruptcy, insolvency and other laws affecting
creditors' rights generally and by equitable principles; (c) no
consent by any third party (including, without limitation, in the
case of the Seller, the limited partners of the Seller) is
required in connection with its execution, delivery and
performance of this Agreement and such agreements referred to in
clause (b) above; (d) it has made its own business determination
and judgment regarding the purchase and sale of the Interest for
the Purchase Price pursuant to this Agreement and that it is not
relying upon any representation or warranty by the other party in
connection therewith or otherwise with respect to the Interest or
the Films, except as expressly set forth herein; and (e) to the
best of its knowledge, no litigation, investigation or
administrative proceeding of or before any court, arbitrator or
governmental authority is pending or threatened with respect to
the production of any of the Films which is likely to result in
any liability or damages to the other.
7. Further Assurances.
(a) The Seller agrees, after the date hereof, to take
all further actions which are reasonably requested by CPII in
connection with the sale and transfer of the Interest to CPII to
carry out the terms of this Agreement; provided that the Seller
shall not be required to incur any out-of-pocket cost or expense
in connection with any such action unless CPII agrees to
reimburse the Seller for such cost or expense.
(b) CPII agrees, after the date hereof, to take all
actions (i) necessary or appropriate for CPII to evidence the
transactions effected hereby, including, without limitation, any
filings with governmental authorities, and to bear the costs of
any such actions or (ii) reasonably requested by Seller in
connection with the sale and transfer effected by this Agreement,
at the cost and expense of Seller; provided that the foregoing
shall in no event impose on CPII any obligations or liabilities
under the federal or state securities laws with respect to
filings thereunder required to be made by Seller.
8. Records.
For a period of seven (7) years following the date of
this Agreement, each of CPII and the Seller agree for the benefit
of the other, upon reasonable prior notice and during regular
business hours, to make its business records relating to the
Interest and the Films available to the other (subject to any
applicable confidentially obligations to which either party may
be subject) for purposes of any tax audit and/or litigation.
9. Indemnification.
(a) Each party (for purposes of this Section 9 each an
"Indemnifying Party") shall indemnify and hold harmless the other
party and its respective subsidiaries, affiliates, shareholders,
partners and agents (including but not limited to Xxxxxx
Management Corporation) and the respective shareholders,
partners, officers, directors and employees of each of them (each
an "Indemnified Party") against any and all claims, damages,
judgements, losses, costs, expenses (including, without
limitation, reasonable attorneys' fees and disbursements incurred
in connection with investigating, preparing to defend or
defending against any action, suit or proceeding threatened or
commenced), penalties and liabilities of any kind or nature
whatsoever which may be sustained or suffered by any such
Indemnified Party directly or indirectly, relating to or arising
out of, a breach of any of the covenants, agreements,
representations or warranties contained in this Agreement by such
Indemnifying Party or in any certificate or other document
executed and delivered by such Indemnifying Party pursuant to
this Agreement or at the closing of the sale transaction
contemplated by this Agreement.
(b) All rights and remedies conferred by this
Agreement to an Indemnified Party shall be cumulative and shall
not interfere with or prevent the exercise of any other right or
remedy which may be available to such Indemnified Party hereunder
or otherwise under law or in equity. Any Indemnified Party shall
promptly notify the Indemnifying Party of any claim, demand, suit
or proceeding with respect to which it seeks indemnification
(provided that the failure to give such prompt notice shall not
affect the obligation of the Indemnifying Party unless the
failure to give the notice materially and adversely affects its
interest) and the Indemnifying Party shall at all times have the
right to defend, settle or compromise such claim, demand, suit or
proceeding with counsel of its own choosing and in such manner as
it may deem advisable; provided, however, that an Indemnifying
Party may not settle any such claim, demand, suit or proceeding
which in any way would affect the rights, interest or reputation
of an Indemnified Party without the prior written consent of such
Indemnified Party. If the Indemnifying Party shall elect to
control such defense, the Indemnified Party shall have the right
to engage separate counsel of its choice and participate in the
defense, negotiation or settlement of such action or proceeding
but shall bear the fees and expenses of such separate counsel
retained by it and the Indemnified Party shall cooperate in the
defense of any such claim, demand, action or other proceeding at
no cost or charge to the Indemnifying Party other than for the
other party's reasonable out-of-pocket expenses for performing
such acts as the Indemnifying Party shall request. If the
Indemnifying Party shall fail to appoint counsel on a timely
basis and undertake such defense, the Indemnified Party may
engage its own counsel, and the reasonable charges made in
connection therewith shall be paid by the Indemnifying Party.
The parties' rights, powers and remedies set forth herein shall
be in addition to, and not in lieu of, any rights, powers and
remedies hereunder at law or in equity, by statute or otherwise.
10. Location of Transfer.
The parties agree that the transfer of the Interest
shall occur in California.
11. Revocation of Empowerment to Appear in Suits.
The parties agree that to the extent that CPII
heretofore empowered the Seller to bring, prosecute, defend and
appear in suits, actions and proceedings of any nature under or
concerning all copyrights in the Films and all renewals of these
copyrights, or concerning any infringement of any of these
copyrights or renewals, or interference with any of the rights
granted under these copyrights or renewals, such empowerment is
hereby revoked and terminated effective immediately.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable
to agreements made and to be performed in that State, and may not
be amended, changed or terminated, except by an instrument in
writing signed by each of the parties hereto.
(b) All communications under this Agreement shall be
in writing and shall be deemed to have been duly given when
delivered personally or sent by overnight courier or mailed by
certified or registered first class mail, postage prepaid, return
receipt requested, to the party to whom the same is directed (or
to such other address as a party may have specified by written
notice to the other party):
If to the Seller, to it at:
ML Delphi Premier Partners, L.P.
World Financial Center
Xxxxx Xxxxx -00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Xxxxx & Co.
World Financial Center
Xxxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxx
If to CPII, to it at:
Columbia Pictures Industries, Inc.
c/o Sony Pictures Entertainment Inc.
00000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
General Counsel
with a copy to:
Columbia Pictures Industries, Inc.
c/o Sony Pictures Entertainment Inc.
00000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Xx.
Chief Financial Officer
(c) This Agreement together with the Exhibits and
Schedules attached hereto sets forth the entire agreement and
understanding between the parties with respect to the subject
matter hereof and supersedes all prior agreements and
understandings with respect to such subject matter (whether
written or oral) all of which are merged herein.
(d) This Agreement may be entered into in one or more
counterparts, each of which together shall constitute one
agreement.
ML DELPHI PREMIER PARTNERS, L.P.
By: ML Delphi Partners, L.P.,
General Partner
By: ML Film Entertainment Inc.,
General Partner
By:/s/ Xxxxx Xxxxx
Name:Xxxxx Xxxxx
Title: Vice President
COLUMBIA PICTURES INDUSTRIES, INC.
By:/s/ Xxxxxx
Xxxxxx
Name:Xxxxxx Xxxxxx
Title: Assistant Secretary
SCHEDULE 1
SCHEDULE OF FILMS
Armed and Dangerous
Ishtar
That's Life
SCHEDULE 2
FUNDING INSTRUCTIONS
Amounts payable to ML Delphi Premier Partners, L.P. (the
"Seller") pursuant to the Purchase and Sale Agreement dated as of
October 23, 1998, between the Seller and Columbia Pictures
Industries, Inc. shall be paid to the account of the Seller, as
follows:
ML Delphi Premier Partners, L.P.
Bankers Trust Co.
ABA #: 000000000
Receipts Account #: 00-000-000
SCHEDULE 3
SCHEDULE OF INDEMNIFICATION PROVISIONS
Distribution Agreement, dated August 28, 1986, between
Columbia Pictures, a division of Columbia Pictures
Industries, Inc., and ML Delphi Premier Partners, L.P.
("Delphi Premier") (Section XV).
Product Origination Agreement, dated August 28, 1986,
between Delphi Premier and Columbia Pictures Industries,
Inc. (Section 8) with respect to "Armed and Dangerous",
"That's Life" and "Ishtar".
EXHIBIT A
XXXX OF SALE
For and in consideration of the sum of One Dollar ($1.00)
and other good and valuable consideration paid simultaneously
herewith by COLUMBIA PICTURES INDUSTRIES, INC., a Delaware
corporation ("CPII"), to ML DELPHI PREMIER PARTNERS, L.P., a
limited partnership organized under Delaware law (the "Seller"),
receipt of which the Seller hereby acknowledges, the Seller
hereby sells, assigns, transfers, delivers and sets over to CPII
all of the Seller's right, title and interest in and to the
feature-length theatrical motion pictures set forth on Schedule 1
attached hereto (the "Films"), including, without limitation: (i)
all common law and statutory copyrights the Seller owns therein
(and all renewals and extensions thereof) throughout the world,
(ii) all preprint materials and copies thereof, (iii) such rights
in the music and literary property rights relating to the Films
and/or on which Films are based, including without limitation,
rights in the screenplay and the underlying literary rights on
which the screenplay was based, as may have been necessary to
permit the exploitation of the Films in all media for which the
Seller has rights, to the full extent of those rights, (iv) the
right to cause the Films to be exhibited, distributed, marketed
and exploited in all media in all territories in which the Seller
has rights, to the full extent of those rights and (v) all
positive and negative film of the Films, wherever located.
Without limiting the generality of the foregoing, the rights
sold, assigned, transferred and delivered to CPII include the
following rights in and to the Films to the extent the Seller
owns or controls such rights:
(a) To secure copyright registration in the Films in CPII's
own name anywhere in the world to the extent of the interest
herein conveyed, and to secure any renewals and extensions
thereof wherever and whenever permitted;
(b) To produce, issue and make negatives and positive
prints of the Films and trailers thereof;
(c) To use the titles of the Films and the right to change
such titles;
(d) To distribute, exhibit, transmit, project, perform,
reissue, subdistribute, sublicense, lease, rent, exploit, turn to
account, dispose of and generally deal in and with the Films, and
trailers thereof, and excerpts and clips therefrom, in any and
all languages (including dubbed, titled and narrated versions) in
all sizes and gauges of film and other materials and for any and
all purposes and uses, including, without limitation, theatrical
purposes of any and all kinds, non-theatrical purposes of all
kinds, and television in all forms, by every means, method,
process, medium or device now or hereafter known, invented,
contemplated or devised, subject, however, to the limitations
imposed by any applicable contracts for the use of literary,
dramatic or musical material;
(e) To publish, or cause or permit to be published, in any
languages and forms, synopses, summaries, resumes and stories of
and excerpts from the Films and any literary, dramatic or musical
material included in the Films or upon which the Films are based,
in newspapers, magazines, trade periodicals, heralds, programs,
booklets, posters, lobby displays, press books and any other
periodicals and in all other media of advertising and publicity
whatsoever, subject, however, to the limitations imposed by any
applicable contracts and guild agreements for the use of
literary, dramatic or musical material;
(f) To broadcast or transmit by radio, wire, television or
any other means or method, or license or authorize others to so
broadcast or transmit, in any language, adaptations, versions or
sketches of the Films, or any parts or portions thereof, from
audio or audiovisual works or with living persons, or otherwise;
and in connection therewith, to use parts of, or excerpts from,
or the theme of any literary, dramatic or musical material
contained in the Films or upon which the Films are based, and to
use in conjunction therewith any other literary, dramatic or
musical material, subject, however, to the limitations imposed by
any applicable contracts and guild agreements for the use of such
materials;
(g) To use the name and reproductions of the physical
likeness and voice of any party rendering services in connection
with the Films for the purposes of advertising or exploiting the
Films, including any product, commodity or service manufactured,
distributed or offered by any person, firm or corporation,
subject, however, to the limitations imposed by any applicable
contracts of employment and guild agreements;
(h) To publish, market and exploit all music and lyrics
composed or written for the Films and synchronized with it as
released, subject, however, to the limitations imposed by any
applicable contracts and guild agreements for the use of such
materials;
(i) To use, or license the use of, all or any part of the
sound recordings, musical scores and individual parts made for or
used in connection with the Films for the purpose of producing or
reproducing phonograph, tape, wire or other recordings of any
kind, whether in albums, single records, cartridges, cassettes,
tapes or otherwise, and whether or not designated for sale to the
public, for electrical transcription for advertising purposes or
for any other purpose, subject, however, to the limitations
imposed by any applicable contracts and guild agreements for the
use of such material;
(j) To use, exercise, employ, exploit and merchandise all
of the characters, situations, objects, properties, wardrobe,
designs, equipment and events depicted, described or portrayed in
the Films, the actors appearing therein and the logos and artwork
therefrom, subject, however, to the limitations imposed by any
applicable contracts for the use thereof and guild agreements;
and
(k) To publish and distribute novelizations, photonovels
and photocomic books of the Films and printed versions of the
literary material on which the Films are based in book form and
in magazines, newspapers and other periodicals, whether in
installments or otherwise, subject, however, to the limitations
imposed by any applicable contracts and guild agreements for the
use of such material.
This Xxxx of Sale is being delivered pursuant to the terms
of the Purchase and Sale Agreement dated as of October 23, 1998,
between CPII and the Xxxxxx.XX WITNESS WHEREOF, the Seller has
caused this Xxxx of Sale to be executed by its duly authorized
officer as of October 23, 1998.
ML DELPHI PREMIER PARTNERS, L.P.
By: ML Delphi Partners, L.P.,
General Partner
By: ML Film Entertainment Inc.,
General Partner
By:/s/ Xxxxx
Xxxxx
Name:Xxxxx Xxxxx
Title: Vice President
EXHIBIT B
COPYRIGHT ASSIGNMENT
The undersigned hereby sells, assigns and transfers to
COLUMBIA PICTURES INDUSTRIES, INC., a Delaware corporation, and
its successors and assigns (the "Assignee"), all of its right,
title and interest in and to the motion pictures set forth on
Schedule 1 attached hereto (collectively, the "Films"), and all
copyrights therein (including, without limitation, all copyrights
in the Films registered in the United States Copyright Office).
The undersigned hereby irrevocably appoints the Assignee as
its attorney-in-fact, with full and irrevocable power and
authority to do all acts and things, and to execute, acknowledge,
deliver, file, register and record all documents, in the name and
on behalf of the undersigned, as Assignee may deem necessary or
proper to accomplish the purpose of this Copyright Assignment.
Dated October 23, 1998.
ML DELPHI PREMIER PARTNERS, L.P.
By: ML Delphi Partners, L.P.,
General Partner
By: ML Film Entertainment Inc.,
General Partner
By:/s/ Xxxxx
Xxxxx
Name:Xxxxx Xxxxx
Title:Vice President
STATE OF NEW YORK )
)
)ss.:
)
COUNTY OF NEW YORK )
On this ____ day of October, 1998, before me personally came
_____________________ to me personally known and who, being by me
duly sworn, did depose and say that he is the ___________________
of ML FILM ENTERTAINMENT INC., the general partner of the general
partner of ML DELPHI PREMIER PARTNERS, L.P., the limited
partnership described herein and which executed the foregoing
instrument, and that he signed his name thereto.
Notary Public
