Exhibit 10.1
February 23, 2002 Multiple Rights Distribution Agreement.
This International Multiple Rights Distribution License Agreement is made as of
February 23, 2002 between NEW ▇▇▇▇▇▇ DISTRIBUTION LTD ("Licensor") (located at
Channel Islands) mail address New ▇▇▇▇▇▇ Distribution Ltd c/o New ▇▇▇▇▇▇, Inc -
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, ▇▇▇ and PYRAMID located at 1/12
▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ # ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, with respect to the Picture
and Territory briefly described for reference purposes only as follows:
Picture: TRAIN TO HELL
Territory: RUSSIA
Region: Not Applicable
Subject to timely payment of all monies due Licensor and Distributor's due
performance of all other Terms of this Agreement, Licensor licenses exclusively
to Distributor, and Distributor accepts from Licensor, the Picture in the
Territory for the Term identified below on all the Terms and Conditions of this
Agreement.
This Agreement consists of the following parts: this Cover
Page, Deal Terms, being the Basic License Deal Terms, Financial Deal Terms,
Delivery Deal Terms and Additional Terms. All parts of this Agreement will be
interpreted together to form one Agreement. Where not defined where they first
appear, words used in this Agreement are otherwise defined in the Standard Term
and Conditions, Schedule of Definitions or in accordance with industry custom.
Where either party is an agent acting for a principal, that
party represents and warrants to the other that it has full authority to execute
this Agreement on behalf of its principal and that its principal will be bound
by its terms.
IN WITNESS WHEREOF, Licensor and Distributor have executed
this Agreement as of the date first written to constitute a binding contract
between them.
Licensor Distributor
NEW ▇▇▇▇▇▇ DISTRIBUTION LTD PYRAMID
By: By:
------------ ---------
Its Chairman Its title
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DEAL TERMS
BASIC LICENSE DEAL TERMS
Picture: TRAIN TO HELL
Territory: RUSSIA
Region: Not Applicable
Term: Starting on execution and ending FIVE (5) years from delivery of initial
materials.
Authorized Language(s): RUSSIAN and ENGLISH
Authorized Video Use(s): PAL, SECAM, CASSETTE, DISC, DVD
Authorized Television Run(s): Unlimited
II.
LICENSED RIGHTS TERMS
A Right is licensed to Distributor only if expressly so designated by
▇▇▇▇ in the "Yes" box. Any Right not marked or marked in the "No" box is a
Reserved Right of Licensor.
A. Cinematic Rights:
Licensed
Theatrical: [ ] Yes [x] No
Non-theatrical: [ ] Yes [x] No
Public Video: [x] Yes [ ] No
B. Video Rights:
Licensed
Home Video: [x] Yes [ ] No
Commercial Video: [x] Yes [ ] No
C. Ancillary:
Licensed
Airline: [ ] Yes [x] No
Ship: [ ] Yes [x] No
Hotel: [ ] Yes [x] No
D. Pay-Per View:
Licensed
Residential: [x] Yes [ ] No
Commercial: [x] Yes [ ] No
Demand View: [x] Yes [ ] No
E. Television Rights:
Pay Television Licensed
Terrestrial: [x] Yes [ ] No
Cable: [x] Yes [ ] No
Satellite: [x] Yes [ ] No
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Free Television
Terrestrial: [v] Yes [ ] No
Cable: [v] Yes [ ] No
Satellite: [v] Yes [ ] No
Initial/:____ Initial/:____
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III.
FINANCIAL TERMS
Guarantee: U.S. FOUR THOUSAND. FLAT PRICE
Amount: US $4,000 payable as follows:
--------------------------- ----------------------------------------------- --------------------------------------
Installment Payment Method
% AAmount Payment Event W/T L/C Other
-------- ------------------ ----------------------------------------------- -------------- ----------- -----------
10% US$ 400 on Execution of this Agreement v N/A N/A
-------- ------------------ ----------------------------------------------- -------------- ----------- -----------
90% US$ 3,600 on Notice of Initial Delivery v N/A N/A
-------- ------------------ ----------------------------------------------- -------------- ----------- -----------
The Guarantee is a minimum net sum and no taxes or charges of any kind may be
deducted from it.
IV.
DELIVERY TERMS
A. Initial Materials of Feature & Trailer:
[x] Dialogue List [x] PAL Video Master (625)
[ ] Press Books [ ] B&W Stills
[ ] One Sheets [ ] Color Slides
[ ] Trailer (Post) [ ] Color Keyart Transparency
B. Method of Delivery:
By Physical Delivery, Lab Access, or otherwise as Licensor may
designate for each item.
C. Materials Payment:
Prior to delivery, Distributor will remit payment to Licensor for the
materials ordered in accordance with the Proforma Invoice provided by
Licensor and in accordance with Licensor's instructions.
D. Materials Shipment:
Per Distributor's instructions
Initial/:____ Initial/:____
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V.
ADDITIONAL TERMS
----------------
A. Governing Law:
State of California, U.S.A
B. Forum:
Los Angeles
C. Additional Deal Terms:
1. Any dispute under this Agreement will be resolved by final and
binding arbitration under the Rules of International
Arbitration of the American Film Marketing Association in
effect when the arbitration is filed.
2. If so requested by Licensor, Distributor agrees to execute a
Notice and Acknowledgment of Assignment in favor of Licensor's
lender.
Initial/:____ Initial/:____
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NOTICE AND ACKNOWLEDGEMENT OF ASSIGNMENT
----------------------------------------
This Notice and Acknowledgment of Assignment (the "Agreement") is
entered into as of February 23, 2002, by and between PYRAMID ("Distributor"),
NEW ▇▇▇▇▇▇ DISTRIBUTION LTD ("Licensor") and BARKLAYS BANK PLC (the "Bank").
This Agreement is entered into with reference to the following facts:
A.This Agreement is entered into with reference to that certain motion picture
currently entitled TRAIN TO HELL (the "Picture").
B.Licensor and Distributor have entered into that certain Multiple Rights
License Agreement, dated as of February 23, 2002 relating to the distribution
and exploitation of the Picture (the "Distribution Agreement") with respect to
the territories of the United States of America.
▇.▇▇ a condition precedent to the Bank's entering into the Loan Agreement and
making any loans thereunder, the Bank requires that Distributor enter into his
Agreement.
NOW, THEREFORE, for good and valuable consideration, and in order to
induce the Bank to enter into the Loan Agreement and to make loans on the terms
and conditions set forth therein, and as a material consideration to the Bank
for doing so, the parties hereto agree as follows:
NOTICE OF ASSIGNMENT.
---------------------
1.1 Assignment to the Bank. Licensor has irrevocably assigned
to the Bank all amounts payable to Licensor in connection with the Picture,
including, without limitation, the distribution guarantee due to Licensor
pursuant to the Distribution Agreement (in the sum of U.S. FOUR THOUSAND
[$10,000])(the "Advance") and all other amounts payable to Licensor under the
Distribution Agreement (collectively "the Bank's Assigned Receipts").
1.2 Notice to Distributor. Licensor hereby:
1.21 notifies Distributor of the above-referenced assignment;
1.22 instructs Distributor to furnish to the Bank and
Guarantor duplicates of all notices and statements from Distributor to Licensor
under the Distribution Agreement; and
1.23 notifies Distributor that the authority, instructions and
directions contained in this paragraph 1 are coupled with an interest and are in
all respects irrevocable and without right of rescission or modification without
the Bank's and Guarantor's written consent.
ACCEPTANCE AND ACKNOWLEDGEMENT. Distributor and Licensor each hereby agree:
------------------------------
2.1 to pay the Bank's Assigned Receipts as and when due and
payable (as set forth in Exhibit "A" hereto), by wire transfer, to the Bank at
its offices at NEW ▇▇▇▇▇▇ DISTRIBUTION LTD at Barklays Bank PLC, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
, ▇▇▇ ▇▇▇▇, ▇▇▇, Swift Code: ▇▇▇▇ ▇▇▇▇, ▇▇▇ Number 257 (account - Global
Treasury Services, London), (sub account: Barclays Bank plc, Jersey) for the
credit of:: NEW ▇▇▇▇▇▇ DISTRIBUTION LTD, US dollar call account number ▇▇▇▇▇▇▇▇,
Reference TRAIN TO HELL (or such other address as the Bank may designate in
writing);
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2.2 until repayment of the Indebtedness and any sums owing to
Licensor, to send to the Bank duplicates of all legal notices and accounting
statements pertaining to the Picture furnished by Distributor to Licensor under
the Distribution Agreement, and to permit the Bank or its representatives to
audit, examine and take excerpts from all of Distributor's books and records
pertaining to the Picture, at reasonable times and on reasonable notice, subject
to any limitations set forth in the Distribution Agreement; and
2.3 to notify the Bank promptly of any conflicting notice
received by Distributor or of any claims by any third party that such third
party is entitled to receive all or any portion of the Advance.
ADDITIONAL AGREEMENTS. Notwithstanding anything to the contrary
contained in the Distribution Agreement, Distributor hereby agrees as follows:
3.1 The grant of rights to Distributor pursuant to the
Distribution Agreement is expressly conditioned upon and subject to
Distributor's payment of the Advance in full as and when due and payable in
accordance with the terms and provisions of this Agreement. If the Licensor
fails to deliver the Picture in accordance herewith and makes payment to the
Bank in an amount equal to the Advance and if Distributor has been refunded all
monies theretofore paid to Licensor, the Distribution Agreement shall be null
and void and Distributor's rights with respect to the Picture, pursuant to the
Distribution Agreement, or otherwise, shall terminate automatically;
3.2 Distributor acknowledges that its obligation to pay the
Bank's Assigned Receipts as set forth herein and pursuant to the terms of
Exhibit "A" hereto is absolute and conditioned only upon Distributor's receipt
of written notification of the availability of the materials listed in Exhibit
"A" hereto;
3.3 Distributor hereby agrees to make payment (in lawful money
of the United States) of the Bank's Assigned Receipts to the Bank, on the dates
specified for such payments in Exhibit "A" hereto;
3.4 Distributor acknowledges and agrees that it has no right
to terminate the Distribution Agreement. If Distributor notifies the Bank and
Licensor in writing that it is terminating the Distribution Agreement (a
"Distributor Termination Notice"), such termination shall be ineffective as
against the Bank and Licensor unless, concurrently with such termination,
Distributor pays to the Bank and Licensor, as applicable, an amount equal to the
lesser of either (i) the outstanding balance of all sums theretofore advanced,
loaned, expended or incurred by the Bank and Licensor, as applicable, with
respect to the Picture (including, without limitation, all interest accrued and
fees, costs and expenses incurred) pursuant to the Loan Agreement and the
Completion Guaranty as of the date of the Distributor Termination Notice, or
(ii) the full amount of the Advance payable by Distributor under the
Distribution Agreement as if the Picture were delivered to Distributors as and
when due, less any amounts received by the Bank and Licensor, as applicable,
from Distributor prior to the date of the Distributor Termination Notice;
3.5 Unless Distributor has terminated the Distribution
Agreement pursuant to paragraph 3.4, above, if Distributor assigns any or all of
its rights under the Distribution Agreement prior to payment of the Advance, as
between Distributor and the Bank, Distributor and its assignee shall be and
remain jointly and severally liable to the Bank pursuant to the Distribution
Agreement and this Agreement; and
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3.6 Distributor acknowledges that the Bank has taken an
assignment only of the right to receive payment of the Bank's Assigned Receipts
and that the Bank has not assumed any of Licensor's obligations or liabilities
under the Distribution Agreement. Distributor further acknowledges that it shall
look solely to Licensor for the performance and discharge of any such
obligations and liabilities.
PAYMENTS TO THE BANK; DISTRIBUTOR'S WAIVER OF RIGHTS OF
OFFSET, ETC. Subject only to Exhibit "A" attached hereto, Distributor hereby
agrees to make payment (in lawful money of the United States) of the Bank's
Assigned Receipts to the Bank, in accordance with the instructions in paragraph
2.1, above. Distributor shall pay to the Bank an amount equal to the Advance
without the assertion, as against the Bank, of any right of offset, reservation,
counterclaim, cross-collateralization or defense that Distributor may have
against Licensor or any other party. In that regard, solely as between
Distributor, the Bank and Licensor, Distributor hereby waives each and every
such right, whether provided for in the Distribution Agreement or otherwise,
which could or would adversely affect such payment to or any rights of the Bank.
IRREVOCABLE PAYMENT OF ADVANCE. Notwithstanding anything to
the contrary contained in the Distribution Agreement or in this Agreement,
Distributor hereby acknowledges and agrees that, solely as between Distributor
and the Bank, payment of the Advance to the Bank shall be irrevocable and not
subject to return or recession of any kind or nature whatsoever; provided,
however, that Distributor shall retain all of its rights and remedies against
Licensor under the Distribution Agreement, at law or otherwise.
NO MODIFICATION OF THE DISTRIBUTION AGREEMENT. Except as
expressly provided herein, Distributor shall not modify, amend or terminate the
Distribution Agreement, or enter into or do any of the foregoing with respect to
any other agreement in any way relating to the Picture, that would affect or
lessen any of the rights granted to the Bank under the Loan Agreement, any other
Loan Document or otherwise, without the Bank's prior written consent in each
instance. Distributor shall send the Bank a courtesy copy of all other
modifications or amendments to the Distribution Agreement or any such other
agreement, although Distributor's inadvertent failure to do so shall not be
deemed a breach hereof.
ADDITIONAL REPRESENTATIONS AND WARRANTIES. Distributor hereby
represents and warrants as follows:
7.1 it has all necessary power and has taken all action
necessary to make this Agreement, upon its execution, a valid, binding and
enforceable obligation of Distributor; and
7.2 no consent, waiver or approval of any third party is
necessary for Distributor to enter into and perform this Agreement or the
consummation of the transactions contemplated hereby.
CALIFORNIA LAW; AMENDMENTS. This Agreement in all respects
shall be governed and construed in accordance with the internal laws of the
State of California, applicable to contracts made and to be performed therein,
but excluding any laws regarding conflicts of law. No amendment to this
Agreement shall be effective unless in writing and signed by each party hereto.
ARBITRATION. Each of the parties hereto agrees that any
dispute under the Distribution Agreement or this Agreement, including, without
limitation, any disputes relating to Distributor's obligation to pay the Advance
to the Bank when due, shall be resolved by mandatory binding arbitration under
the Rules of International Arbitration of the American Film Marketing
Association ("AFMA") in effect as of the date the request for arbitration is
filed (the "Rules")(or, in the event that, at such time, AFMA is not in the
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business of conducting such arbitrations, the arbitration rules of any successor
international film marketing association based in Los Angeles that provides
arbitration procedures, or, if none, the rules of the American Arbitration
Association). Each of the parties may initiate such an arbitration pursuant to
the Rules. The arbitration will be held in Los Angeles or at an alternate forum
chosen pursuant to the Rules (the "Forum"). Distributor, the Bank and Licensor
agree that they each will abide by any decision rendered in such arbitration,
and that any court having jurisdiction may enforce such a decision. Each of the
parties hereto submits to the exclusive jurisdiction of the courts of the state
and county of the Forum as an appropriate place for compelling an arbitration or
accept service of process for all arbitral proceedings in accordance with the
Rules and to accept service of process for any judicial or other proceedings by
registered mail.
FURTHER DOCUMENTS. The parties hereto agree to execute such
further documents as may be reasonably necessary to carry out the intent and
purposes of this Agreement.
COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument and shall bind and inure
to the benefit of each of the parties hereto and their respective successors and
assigns.
ASSIGNABILITY. Distributor acknowledges that the Bank may sell
or assign any or all of its rights or obligations pursuant to the Loan
Agreement, the Note and all related agreements, including this Agreement, to any
party acquiring any or all of the Bank's rights with respect to the Loan
Agreement.
NOTICES. Except as otherwise expressly provided herein, any
notice, request, demand or other communication provided for hereunder or under
any of the other Loan Documents to be given shall be in writing and shall be
personally served or send by United States mail, and shall be deemed to have
been given when deposited in the United States mail, registered or certified,
with postage prepaid. The addresses of the parties hereto (until notice of a
change thereof is served as provided in this paragraph) shall be as follows:
To the Bank: BARKLAYS BANK PLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
(Global Treasury Services, London
Barclays Bank plc, Jersey)
With a copy to: NEW ▇▇▇▇▇▇ INC.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
To Distributor: PYRAMID
1/12 ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ # ▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
To Licensor: NEW ▇▇▇▇▇▇ DISTRIBUTION LTD
C/o New ▇▇▇▇▇▇, Inc
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the day and year first written above.
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Licensor Distributor
NEW ▇▇▇▇▇▇ DISTRIBUTION LTD PYRAMID
By:________________________ By:________________________
Its Chairman Its title
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ACCEPTED TO AND ACKNOWLEDGED:
Licensor Distributor
NEW ▇▇▇▇▇▇ DISTRIBUTION LTD PYRAMID
By:________________________ By:________________________
Its Chairman Its title
