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Exhibit 10.23
CONFIDENTIAL TREATMENT REQUESTED
KING WORLD PRODUCTIONS, INC.
1700 BROADWAY
NEW YORK, NEW YORK 10019
Dated as of October 1, 1991
Mr. William Bernstein, President
Orion Pictures Corporation
1325 Avenue of the Americas
New York, New York 10019
Re: "Hollywood Squares"
_________________
Dear Bill:
This letter, when executed on behalf of Orion Pictures Corpora-
tion ("Orion") and King World Productions, Inc. ("KW"), shall constitute an
agreement between Orion and KW in connection with the rights in and to the
television series entitled "Hollywood Squares", on the following terms and
conditions:
1. (a) As used herein, the "Rights" shall mean all trademarks,
service marks, copyrights, underlying rights, and all right, title, and
interest of any kind whatsoever in and to the property known as "Hollywood
Squares" (the "Series"), including, without limitation, the content,
format, title, set, set design, components, game rules, scripts, and all
appearances and depictions thereof and all of such rights necessary or
desirable to create and exploit new episodes and/or properties based in
whole or in part thereon and to advertise, promote and market same, by any
and all means, as well as all rights ancillary thereto, throughout the
world in any and all media.
(b) Orion hereby sells, grants and transfers to KW all of
the Rights throughout the world exclusively and irrevocably (subject to the
provisions of Paragraph 8 below). At KW's request, Orion shall execute a
copyright assignment and such other documents as reasonably required to
evidence the transfer hereunder and both parties shall execute whatever
further instruments are reasonably necessary to effectuate the intent of
this agreement including, without limitation, a security agreement in the
form attached hereto as Exhibit A, granting Orion a security
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interest in the Rights to the extent of (i) KW's obligations to pay Orion a
share of Net Profits in accordance with Paragraph 3 below and (ii) the
possible reversion of the Rights to Orion in accordance with Paragraph 8
below. Promptly upon execution of this agreement, Orion shall arrange, at
its sole expense, to deliver to KW (at a place within the United States
designated by KW) all existing elements of the Series necessary or desir-
able for KW to exercise the Rights, including without limitation, all
available promotional materials and scripts, relevant contracts, game
questions, residual schedules, and the Series set. The Series set shall be
made available to KW where it is presently stored and KW shall be responsi-
ble for all costs of the transportation from such location, as well as, if
KW so elects, insurance and rehabilitation of the Series set (which costs
shall be recoupable by KW as a development cost pursuant to Paragraph 4(c)
below).
(c) Notwithstanding anything to the contrary contained
herein, the Rights shall not include the rights to distribute, in whole or
in part, the negatives and/or mastertapes (or copies made therefrom) of the
television episodes of the Series existing as of the date hereof (the
"Existing Episodes"), but such rights in and to the Existing Episodes shall
not be exploited in any manner or media by Orion anywhere in the world
except for Orion's issuance of licenses for the use of photographs from the
Existing Episodes and except for an existing license from Orion to USA
Network ("USA") for basic cable broadcast of the Existing Episodes in the
United States for a term expiring December 31, 1992, subject to USA's
options as set forth in those provisions of the USA license annexed hereto
as Exhibit B. Orion warrants and represents that: (i) such license to USA
is the only existing license agreement with respect to the Existing
Episodes, and (ii) USA is not entitled, as a matter of contract, to
injunctive relief of any nature in the event Orion, is in breach of the USA
license. Orion shall use its best efforts to negotiate an agreement with
USA giving Orion the option, in exchange for a reasonable payment consis-
tent with industry standards (the "Option Payment"), to terminate USA's
exclusivity (but not necessarily USA's telecast rights) with respect to
telecasts of the Series, as of August 15, 1992 (the "USA Termination
Option"). Orion shall consult with KW regarding such negotiations and
agreement and, if such agreement is concluded, then at KW's election, Orion
shall exercise the USA Termination Option; provided, however, that upon
such exercise, KW shall reimburse Orion for the Option Payment.
(d) Orion warrants and represents that it has entered into
the following existing license agreements with respect to format rights in
the Series (the "Existing Format
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Licenses") and that such Existing Format Licenses are the only format
licenses existing for the Series:
(i) license to Fremantle International Inc.
("Fremantle") for television broadcast in Spain for a term expiring March
4, 1993;
(ii) license to Fremantle for television broadcast in
Italy for a term expiring September 30, 1993; and
(iii) license to Reg Grundy Productions, Inc. ("RGP")
as set forth in a letter from Irwin Moss of Orion to RGP's attorney,
Richard Barovick, dated May 1, 1990 and a letter from Barovick to Moss
dated June 13, 1990 (the "RGP Agreement") pursuant to which, inter alia,
RGP is authorized for a period of two years from the date thereof to enter
into format arrangements for the Series on behalf of Orion throughout the
world excluding the United States, Canada, Spain and Italy.
Notwithstanding anything to the contrary contained herein, the Rights shall
not include the rights granted to Fremantle and RGP pursuant to the
Existing Format Licenses during their respective terms set forth above.
Upon termination of each such Existing Format License, the rights granted
by Orion therein shall revert to KW and constitute part of the Rights
hereunder; provided, however, that the Rights shall include all of Orion's
rights with respect to the Series under the RGP Agreement as of the date
hereof, and Orion hereby assigns to KW all of its right, title, and
interest in the RGP Agreement to the extent relating to the series.
(e) With respect to Series game questions, KW shall be
entitled to utilize only game questions available to Orion from the
Existing Episodes produced between 1986 through 1989 (the "Existing
Questions"). The rights in and to all other Series game questions shall be
frozen and shall not be exploited by Orion. KW acknowledges that its use
of the Existing Questions might be subject to KW's payment of residuals (in
no greater amounts than Writers Guild of America scale payments) in accor-
dance with the residuals summary schedule prepared by Orion and annexed as
Exhibit C hereto. KW further acknowledges that pursuant to the IJE License
(as defined in Paragraph 1(g) below), Orion has made certain Series game
questions available to IJE.
(f) KW acknowledges that in the event it produces new
episodes of the Series for exploitation in the United States, KW shall pay
a royalty in the amount of [****] per strip of five original new Series
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episodes to Four Star International ("Four Star"), pursuant to an agreement
between Four Star and Orion dated March 11, 1970 and annexed as Exhibit D
hereto.
(g) With respect to merchandising rights in and to the
Series, Orion warrants and represents that its exclusive merchandising
agent, Creative Licensing Corporation ("CLC"), has entered into an existing
license agreement for electronic games with I.J.E. (the "IJE License", a
copy of which is annexed as Exhibit E hereto), that the IJE License is the
only existing license with respect to merchandising of any rights in the
Series, and that the IJE License expires in September 1993. The Rights
shall include, without limitation, all of Orion's rights with respect to
the IJE License as of the date hereof, and Orion hereby assigns to KW all
of its right, title and interest in the IJE License. KW accepts such
assignment and agrees to assume Orion's obligations commencing on the date
hereof pursuant to the IJE License. KW acknowledges that pursuant to an
oral agreement between CLC and Orion, CLC is entitled to a commission equal
to [30%] of Orion's revenue pursuant to the IJE License, and KW agrees that
CLC shall be entitled to deduct such commission from the revenues it
receives pursuant to the IJE License, prior to remittance to KW of the
balance of such revenues.
(h) With respect to the theme music for the Existing
Episodes produced between 1986 through 1989 (the "Theme"), Orion warrants
and represents that the Theme was composed by Stormy Sacks ("Composer") as
a work-for-hire for Orion, and that pursuant to the agreement between Orion
and Composer (the "Theme Agreement", a copy of which is attached hereto as
Exhibit F), in the event KW utilizes the Theme in the production of new
episodes of the Series, Composer is entitled to receive credit for such
use, public performance fees (payable through the applicable performing
rights society from the telecaster), and the composer's share (fifty
percent) of a fair and reasonable synchronization fee for such use. The
publisher's share (fifty percent) of such synchronization fee is owned by
Orion Music Publishing ("OMP"). The Rights shall include, without limita-
tion, all of OMP's rights in the Theme and Orion hereby assigns same to KW,
along with all of Orion's and OMP's right, title and interest in the Theme
Agreement.
2. Orion acknowledges, warrants and represents that the Rights
transferred hereunder shall include, without limitation, all rights (except
as otherwise specifically excluded from the Rights and/or subject to
restriction, all as set forth in Paragraph 1 above) in and to the Series
necessary for KW, as it determines in its sole discretion, (a) based on the
Series and/or the elements thereof, to create, produce, and/or manufacture
new Series episodes and/or productions, programs, merchandising,
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commercial tie-ins, and properties, as well as advertising, marketing and
promotion thereof, in any and all media now known or hereafter existing
throughout the world (individually and collectively, the "Series Product"),
and (b) to exploit the Series Product, including without limitation,
selling, licensing, exhibiting and/or arranging for the exploitation of any
and all Series Product in any territories throughout the world in any
manner or media now known or hereafter existing, including, without
limitation, on all forms of television or similar transmissions, video
disc, cassette, theatrically, non-theatrically and through merchandising
(the "Distribution Rights").
3. As full consideration for the rights granted, agreements,
warranties and representations made, and the full performance hereof by
Orion, KW shall pay Orion an amount equal to [****] of KW's "Net Profits"
(as defined below) from its exploitation of the Rights. KW shall pay
Orion, as a non-refundable advance against Orion's share of KW's Net
Profits, the amount of [****], which shall be payable on full execution of
this agreement (the "Advance"). Orion warrants and represents that it has
negotiated this agreement as an arm's-length transaction and that, to the
best of its knowledge after a thorough assessment of the market for the
Rights, the consideration to be paid by KW hereunder represents at least
the fair market value of the Rights.
4. "Net Profits" as used herein shall mean all sums or other
consideration actually received by or credited to KW (or its
subdistributors and subsidiaries) from the exploitation of the Rights from
all sources (including, without limitation, recoveries from claims,
lawsuits or proceedings against third parties, net of the costs and
expenses thereof), less refunds and security or deposits subject to refund
("Gross Receipts") and after deduction of the following: (a) the amount of
[****] of such receipts as a distribution fee to KW in all media (except
that if KW engages a non-affiliated subdistributor with respect to home
video distribution, the distribution fee shall be the distribution fee
charged by such subdistributor plus an override to KW of [****] of the
applicable receipts on which such subdistributor's fees is calculated),
which distribution fee shall be inclusive of fees payable to any
subdistributors engaged by KW, (b) the amount of direct out-of-pocket
distribution expenses paid by KW or incurred by KW and which KW reasonably
anticipates to be paid within six months following the issuance of the
accounting statement on which such expense is deducted, including, without
limitation, direct out-of-pocket advertising, promotion and other third
party distribution expenses and residuals, reuse fees, royalties or other
compensation payable by KW to third parties on account of such
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exploitation, and (c) the amount of the development and production costs
paid by KW to produce Series Product in any format (but not including any
overhead or production fees to KW), together with interest thereon from the
time expended, at the prime rate from time to time in effect at The Bank of
New York, New York, all applied on a cross-collateralized basis among
Distribution Rights for all Series Product hereunder. In no event shall KW
be required to include in Gross Receipts any revenue of its subdistributors
unless and until KW is actually paid with respect thereto. With respect to
revenue received by KW's subdistributors, the amount of KW's distribution
fee shall be based on revenues collected by such subdistributors at their
source.
5. Within sixty (60) days after the close of each quarterly
period in which KW receives Gross Receipts ending on November 30, February
28, May 31, and August 31 of each year, commencing with the first exploita-
tion by KW of the Rights hereunder, KW shall furnish to Orion a written
statement which reflects in reasonable detail the amounts, if any, payable
to Orion pursuant to Paragraph 4 above, and following recoupment by KW of
the Advance from Orion's share of such Net Profits, KW shall send Orion
with such statements a check payable to Orion in the appropriate amount of
any such share of Net Profits. Each statement shall be deemed accepted by
Orion unless Orion notifies KW in writing within two years from the date of
such statement setting forth its specific objections thereto. Any such
objections shall be deemed waived unless within three years following the
date of the applicable statement such objections are settled or Orion
commences a lawsuit to contest such statement. Orion or its designated
representative shall have the right, at KW's usual place of business,
during business hours and on reasonable notice to KW (but in no event more
than once annually), to audit KW's books and records to confirm the
accuracy of any such statements not otherwise deemed accepted or with
respect to which any objections are not waived as set forth above. Orion
shall promptly furnish KW with a copy of any audit report and KW shall pay
the reasonable costs of such audit if such audit reveals an error of at
least 10% in KW's favor.
6. Orion warrants and represents that: (a) it is duly autho-
rized, and it has the requisite right, power, and authority, to enter into
and to perform this agreement, and it owns or controls all of the Rights
hereunder; (b) to the extent of KW's rights in the elements thereof, the
Existing Episodes were produced in accordance with all applicable laws and
agreements, and all contracts, and rules and regulations of labor organiza-
tions having jurisdiction thereover; (c) except as specifically provided
herein, no residuals, reuse fees, or other payments or compensation shall
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be due or payable, arising out of the exploitation by KW of the Rights
hereunder; (d) the exploitation of the Rights by KW hereunder shall not
violate or infringe the copyright, trademark, patent, literary, intellec-
tual or similar rights, or rights of privacy or publicity, or any other
rights whatsoever, of any party; (e) there are no existing claims or, to
the best of its knowledge, threatened claims by any party affecting the
Rights hereunder; (f) except as specifically set forth in Paragraph 1
above, there are no liens or encumbrances to the Rights hereunder; (g)
except as specifically set forth in Paragraph 1 above, it has not taken any
action or granted any rights adversely affecting and/or in any way encum-
bering the Rights hereunder and it will not take any action or grant any
rights inconsistent with the grant of rights hereunder; and (h) except as
specifically excluded from the Rights pursuant to Paragraph 1 above, the
Rights hereunder constitute all rights, title and interest in and to the
Series. Without limitation of the warranties and representations made
above, Orion has advised KW that Orion granted Manufacturers Hanover Trust
Company ("MHTC"), as agent for Hanover Trust Co. ("HTC"), a security
interest (the "Security Interest") on various properties of Orion including
the Series pursuant to, without limitation, a security agreement dated
December 17, 1987 and a so-called "Second Amended and Restated Credit
Agreement" dated as of July 27, 1990 (such documents, together with any
other documents relating to the Security Interest, to be referred to
collectively as the "MHTC Security Agreement"). Orion represents and
warrants to KW that pursuant to the MHTC Security Agreement (i) Orion has
the right to sell and transfer the Rights to KW as provided in this agree-
ment, free and clear of the Security Interest, (ii) upon the sale and
transfer of the Rights to KW pursuant to this Agreement, the Security
Interest will attach solely to Orion's rights pursuant to this agreement
and the proceeds herefrom payable to Orion, and (iii) MHTC's and HTC's
rights thereunder, even in the event of a default by Orion of its obliga-
tions to MHTC and/or HTC, shall not adversely affect or in any way encumber
KW's rights pursuant to this agreement.
7. KW warrants and represents that: (a) it is duly authorized,
and it has the requisite right, power and authority to enter into and to
perform this agreement, (b) with respect to its production and exploitation
of Series Product, it shall assure compliance with those obligations as
specifically set forth in Paragraphs 1(e), 1(f), 1(g), and 1(h) above and
(c) as between it and Orion, it shall be solely responsible for all costs
and obligations in connection with its production and/or exploitation of
Series Product; provided, however, that such costs and obligations shall
not include any costs or obligations assumed or created by or under the
authority of Orion, unless KW has specifically agreed to same in this
agreement.
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8. KW shall use its best endeavors in accordance with its sole
business judgment to exploit the Rights. Nothing contained in this
agreement, however, shall require KW to exploit the Rights or to create any
Series Product and KW makes no guarantee as to the amount of Net Profits,
if any, payable to Orion hereunder. Notwithstanding the foregoing, in the
event KW does not exploit any Series Product in the television medium prior
to the date seven years following the date hereof, or following such
initial exploitation, during any consecutive six year period thereafter,
then upon written notice from Orion, and provided that at the time of such
written notice KW has not commenced or resumed the exploitation of any
Series Product in the television medium, Orion shall have the right to
terminate KW's rights hereunder. In the event of such termination, KW
shall not produce any new Series Product nor shall KW engage in any further
exploitation of Distribution Rights, and the Rights shall revert to Orion;
provided, however, that such termination shall not affect KW's rights to
collect and retain revenue in accordance with this agreement (and subject
to KW's obligation to account to Orion pursuant to Paragraph 5 above) from
any prior existing exploitation of Distribution Rights (so long as the
duration of the terms thereof are within customary industry parameters) and
Orion shall not thereby acquire any rights in or to any Series Product
produced or created by KW pursuant to this agreement.
9. Each party hereto (the "indemnitor") shall indemnify and
hold harmless the other (the "indemnitee") from and against any and all
loss, damage, liability, cost and expense (including reasonable attorneys'
fees and court costs) incurred by the indemnitee as a result of, arising
out of, or in connection with a breach by the indemnitor of any representa-
tion or warranty contained in this agreement or the failure by the indemni-
tor to perform any agreement, act or other obligation, required to be
performed by the indemnitor pursuant to this agreement. KW's indemnifica-
tion of Orion shall extend, without limitation, (i) to any new materials
added to the Series or the Rights hereunder, and (ii) to breaches by KW of
the third party obligations it is assuming pursuant to Paragraphs 1(e),
1(f), 1(g) and 1(h) above.
10. This agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to agreements
to be wholly performed therein, and the parties hereby submit to the
exclusive jurisdiction of the Federal and State courts located in New York
City to adjudicate any dispute hereunder. Orion acknowledges that the
rights granted to KW hereunder are of a unique and special nature, such
that orion's breach of this agreement would cause irreparable harm to KW
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which could not be compensated solely by money damages and, therefore,
without limitation of any rights or remedies otherwise available, KW shall
have the right to obtain injunctive and other equitable relief to prevent
such breach by Orion. In the event of a breach of the agreement by KW,
other than a breach following termination by Orion pursuant to Paragraph 8
above, Orion agrees that it shall be limited to recovery of money damages.
11. This agreement constitutes the full and binding agreement of
the parties and may not be amended or modified without a writing signed by
the party to be charged. Nothing contained herein shall be deemed to
create a partnership or joint venture between the parties, their relation-
ship being independent contractors. Neither Orion nor KW shall disclose to
any third party (other than its respective employees, directors, and
officers, in their capacity as such, on a need-to-know basis), any informa-
tion with respect to the financial terms and conditions of this agreement
except: (i) to the extent necessary to comply with law, public reporting
obligations, or the valid order of a court of competent jurisdiction, in
which event the party making such disclosure shall so notify the other as
promptly as practicable (if possible, prior to making such disclosure) and
shall seek confidential treatment of such information, (ii) as part of its
normal reporting or review procedure to its parent company, auditors and
its attorneys, provided, however, that such parent company, auditors and
attorneys agree to be bound by the provisions of this paragraph, (iii) in
order to enforce its rights pursuant to this agreement, (iv) to banks
making loans or actively considering making loans to such party provided
that such party instructs each such bank not to disseminate such informa-
tion unless required by law or regulatory authorities, or in order to
enforce its rights against such party, and (v) to prospective financiers of
such party and their respective investment bankers, attorneys, accountants
and other experts (as said term is commonly used for U.S. securities law
purposes) provided that such financiers, investment bankers, attorneys,
accountants and other experts have agreed in writing to be bound by these
provisions.
12. All notices hereunder shall be sent by telecopy, personal
delivery, receipted overnight or certified mail to the parties at the
address first set forth above or to such other addresses as the parties so
designate. Copies of notices to KW shall be sent to the attention of Vice
President, Business Affairs and General Counsel. Copies of notices to
Orion shall be sent to the attention of Senior Vice President of Business
Affairs, Home Entertainment and copies of accounting statements to Orion
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shall be sent as well to the attention of Vice President, Producer Account-
ing; the address for such copies to Orion being 1888 Century Park East, Los
Angeles, California 90067.
Very truly yours,
KING WORLD PRODUCTIONS, INC.
By:__________________________
ACCEPTED AND AGREED TO:
ORION PICTURES CORPORATION
By:__________________________
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EXHIBIT A
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of October __, 1991 (the "Security
Agreement") between King World Productions, Inc., a Delaware corporation
(the "Debtor"), and Orion Pictures Corporation, a Delaware corporation (the
"Secured Party").
W I T N E S S E T H:
WHEREAS, the Secured Party and the Debtor have entered into that
certain letter agreement dated as of October 1, 1991 (the "King World
Production Agreement"), under which the Secured Party has agreed to
transfer to the Debtor certain trademark, copyright and other property
rights as more fully described in the King World Production Agreement (the
"Rights") in and to the television series entitled "Hollywood Squares" (the
"Series") to enable the Debtor to create and exploit new episodes of the
Series;
WHEREAS, pursuant to Section 3 of the King World Production
Agreement, the Secured Party will receive [****] of the Debtor's "Net
Profits" (as defined therein) from its exploitation of the Rights, and
pursuant to Section 8 of the King World Production Agreement, the Secured
Party has retained an automatic reversion right in the Rights;
WHEREAS, pursuant to the King World Production Agreement, the
Debtor has agreed to grant to the Secured Party a security interest in the
Rights, as provided herein, to secure the Secured Party's payment and
reversion rights under Sections 3 and 8 of the King World Production
Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained and for other good and valuable consideration,
the receipt of which is hereby acknowledged, as a condition to the effec-
tiveness of, and in order to induce the Secured Party to enter into, the
King World Production Agreement, the parties hereto hereby agree as
follows:
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1. GRANT OF SECURITY INTEREST.
__________________________
(a) GRANT: The Debtor hereby mortgages, hypothecates, grants
and assigns to the Secured Party as security for the Secured obligations
(as such term is defined in subparagraph 1(b) below) a continuing first
priority security interest in and to all of the Debtor's rights, title, and
interest of every kind and nature in and to (but none of the Debtor's
obligations with respect to) all of the items listed in subparagraph 1(c)
below, which items are hereinafter collectively referred to as the "Collat-
eral".
(b) PURPOSE OF GRANT: The security interest in the Collateral
granted to the Secured Party pursuant hereto is being granted to secure the
Secured Obligations. The term "Secured Obligations" shall mean and include
the Debtor's obligation to (A) assign to the Secured Party the Rights
in accordance with the terms of the reversion right retained by the Secured
Party under Section 8 of the King World Production Agreement, (B) pay the
Secured Party the amounts required to be paid by the Debtor pursuant to
Section 3 of the King World Production Agreement and (C) fully and timely
pay to the Secured Party all damages incurred by Secured Party arising from
the Debtor's failure to perform its agreements, obligations, representa-
tions, warranties and covenants hereunder and under the King World Produc-
tion Agreement.
(c) COLLATERAL: The term "Collateral" as used herein shall mean
all the Debtor's right, title and interest of every kind and nature in and
to the Rights granted to the Debtor under Section 1(a) of the King World
Production Agreement.
(d) RIGHTS OF SECURED PARTY: With respect to the security
interest hereby granted to the Secured Party and granted to the Secured
Party pursuant to the other Security Documents (as hereinafter defined),
the Secured Party and any of its successors or assigns shall at all times
be entitled to exercise in respect of the Collateral all the rights,
remedies, powers and privileges available to a secured party under all
applicable laws, including, without limitation, the United States Copyright
Act and the New York Uniform Commercial Code in effect at the time, which
shall be applicable for the purpose of establishing the relative rights of
the Secured Party and of the Debtor, and to those procedures to be followed
thereunder in the event this subparagraph 1(d) shall become operative,
including the right to sell the Collateral or any portion thereof, and, in
addition thereto, to the rights and remedies provided for herein and under
the King World Production Agreement and to such other rights and remedies
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as may be provided by law or in equity. Any proceeds received by the
Secured Party in respect of any sale of, collection from or other realiza-
tion upon all or any part of the Collateral pursuant to the exercise of its
remedies as a secured creditor shall be held by the Secured Party and
applied first to the payment of the costs and expenses, of such sale,
collection or other realization, including the expenses, liabilities and
advances made or incurred by the Secured Party in connection therewith, and
second to the payment of the Secured Obligations.
(e) EXERCISE OF RIGHTS; EVENTS OF DEFAULT. The Secured Party or
any of its successors or assigns shall be entitled to exercise all or any
of the rights granted hereunder with respect to the Collateral in the event
the Debtor or its successors or assigns (i) breaches or defaults in the
Debtor's obligation to make payments to the Secured Party under Section 3
of the King World Production Agreement, and such breach or default contin-
ues for five business days after written notice thereof to the Debtor
specifying such breach or default, (ii) breaches or defaults in the
Debtor's obligation to assign to the Secured Party the Rights pursuant to
Section 8 of the King World Production Agreement, or (iii) breaches or
defaults, in any material respect, in the performance of any of the
Debtor's obligations hereunder, and such breach or default continues for 20
days after written notice thereof to the Debtor specifying such breach or
default. Any of such breaches or defaults shall constitute an "Event of
Default" hereunder. After and during the continuance of an Event of
Default, the Secured Party, after giving notice of its intention to do so,
may take any reasonable action which it may deem necessary for the mainte-
nance, preservation and protection of any of the Collateral or its security
interest therein.
(f) FURTHER DOCUMENTS. The Debtor hereby agrees to execute and
deliver to the Secured Party all such financing statements or similar
documentation for all jurisdictions designated by the Secured Party
(collectively, the "Financing Statements"), one or more copyright mortgages
and assignments in form reasonably satisfactory to the Secured Party
(including the Copyright Mortgage, as hereinafter defined) and such other
documents, agreements or instruments as the Secured Party shall reasonably
request and are reasonably required to better perfect, protect, evidence,
renew and/or continue the security interest in the Collateral granted
hereunder and/or to effectuate the purposes and intents of this Security
Agreement (collectively, the "Security Documents"), and to file, register
and/or record the same under the Uniform Commercial Code and all other
similar applicable laws of the States of California and New York and under
the laws of any other jurisdiction where such filing,
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registration and/or recordation may reasonably be required by the Secured
Party concurrently with the execution and delivery of this
Security Agreement and under the United States Copyright Act. Concurrently
with the execution hereof, the Debtor will deliver to the Secured Party a
copyright mortgage (the "Copyright Mortgage") in form and substance
satisfactory to the Secured Party, duly executed and notarized and in
proper form for recordation in the United States Copyright Office or other
applicable governmental authority. If after the occurrence and during the
continuance of an Event of Default, the Debtor fails to execute and deliver
to the Secured Party any of the Financing Statements or any other Security
Document on request of the Secured Party, the Debtor hereby appoints the
Secured Party its irrevocable attorney-in-fact to sign any such document
for the Debtor, and agrees that such appointment constitutes a power
coupled with an interest and is irrevocable throughout the term of the King
World Production Agreement and this Security Agreement. Whether or not an
Event of Default has occurred, the Debtor hereby authorizes the Secured
Party to file one or more continuation statements, and amendments to
previously filed financing statements of a technical nature (other than a
description of the Collateral), relative to all or any part of the Collat-
eral without the signature of the Debtor where permitted by law. A carbon,
photographic or other reproduction of this Security Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
(g) TERM OF SECURITY INTEREST. The security interest created
hereunder and under the Copyright Mortgage shall commence as of the date of
this Security Agreement and shall terminate upon the expiration of the last
to expire of Secured Party's rights under the King World Production
Agreement and payment and performance by the Debtor of all of its obliga-
tions thereunder, at which time the Secured Party, on the Debtor's request
and at the Secured Party's expense, shall execute and deliver to the Debtor
termination statements releasing and terminating the Financing Statements,
and the other Security Documents, and with filing thereof at the sole cost
and expense of the Secured Party.
(h) PRIORITY OF SECURITY INTEREST. The security interest
granted by the Debtor to the Secured Party in and to the Collateral shall
be a first priority security interest.
(i) CONTINUING SECURITY INTEREST. This Security Agreement shall
create a continuing security interest in the Collateral and shall (a) be
binding upon the Debtor, its succes-
[* Deleted pursuant to a request for confidential treatment]
sors and assigns, and (b) inure to the benefit of the Secured Party and its
successors, transferees and assigns.
2. DEBTOR'S CONFIRMATIONS, REPRESENTATIONS, WARRANTIES AND COVE-
NANTS: The Debtor warrants and represents that it is duly authorized, and
it has the requisite right, power and authority to enter into and perform,
this Security Agreement. Without the Secured Party's prior written
consent, the Debtor may not during the term hereof (a) grant any first
priority security interest in or lien on all or any of the Collateral, or
(b) convey, transfer or otherwise dispose of an interest in all or any of
the Collateral except to a transferee who shall acknowledge in writing in
advance, and agree to be bound by, this Security Agreement and the terms
and conditions hereof and the security interest provided for herein.
Anything herein to the contrary notwithstanding, the Rights shall be as-
signable to the Secured Party, and shall automatically revert to the
Secured Party as provided in Section 8 of the King World License Agreement.
3. GOVERNING LAW: THIS SECURITY AGREEMENT AND EACH OTHER
SECURITY DOCUMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS WHOLLY EXECUTED AND PERFORMED THEREIN, AND WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OR CHOICE OF LAWS THEREOF.
4. ANY LEGAL ACTION: THE DEBTOR AND THE SECURED PARTY (A)
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS SECURITY AGREEMENT OR ANY OTHER
SECURITY DOCUMENT, (B) AGREE THAT ANY LEGAL SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR ANY OTHER SECURITY
DOCUMENT SHALL BE INSTITUTED IN A STATE OR FEDERAL COURT IN THE CITY OF NEW
YORK, STATE OF NEW YORK, (C) WAIVE ANY OBJECTION WHICH THEY MAY HAVE NOW OR
HEREAFTER TO THE COUNTY OF NEW YORK AS THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING, AND (D) IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, OR
ANY COURT OF THE STATE OF NEW YORK LOCATED IN THE CITY OF NEW YORK IN ANY
SUCH SUIT, ACTION OR PROCEEDING, AND ANY SUMMONS, ORDER TO SHOW CAUSE,
WRIT, JUDGMENT, DECREE, OR OTHER PROCESS WITH RESPECT TO ANY SUCH SUIT,
ACTION OR PROCEEDING MAY BE DELIVERED TO THE DEBTOR PERSONALLY OUTSIDE THE
STATE OF NEW YORK, AND WHEN SO DELIVERED, THE DEBTOR SHALL BE SUBJECT TO
THE JURISDICTION OF SUCH COURT, AND AMENABLE TO THE PROCESS SO DELIVERED AS
THOUGH THE SAME HAD BEEN SERVED WITHIN THE STATE OF NEW YORK, BUT OUTSIDE
THE COUNTY IN WHICH SUCH SUIT, ACTION OR PROCEEDING IS PENDING.
5. NOTICES: Any notice or other communication herein required,
permitted or desired to be given hereunder shall be
[* Deleted pursuant to a request for confidential treatment]
given in the manner provided in Section 12 of the King World Production
Agreement.
6. AMENDMENTS AND WAIVERS: No amendment or waiver of any
provision of this Security Agreement nor consent to any departure by the
Debtor herefrom shall in any event be effective unless the same shall be in
writing and signed by the Secured Party, and then such waiver or consent
shall be effective only in the specific instance and for the specific
purpose for which given.
7. DEBTOR'S OFFICES: The Debtor's chief executive office and
chief place of business is located at 830 Morris Turnpike, Short Hills, New
Jersey 07078. The Debtor shall give Secured Party prompt written notice
(and shall use its best efforts to give 30 days' advance notice) of any
change in the location of its principal place of business and its books and
records.
8. SECURED PARTY'S DUTIES AND LIABILITIES: Except as provided
in the Uniform Commercial Code, the Secured Party shall have no duties as
to any Collateral or as to the taking of any necessary steps to preserve
rights against prior parties or any other rights pertaining to any Collat-
eral.
9. INDEMNITY AND EXPENSES: The Debtor agrees to indemnify the
Secured Party from and against any and all claims, losses and liabilities
growing out of or resulting from this Agreement (including, without
limitation, enforcement of this Agreement), except for claims, losses or
liabilities resulting from the Secured Party's gross negligence or willful
misconduct. Upon the occurrence of an Event of Default, the Debtor agrees
to pay to the Secured Party the amount of any and all expenses, including
the reasonable fees and disbursements of its counsel, and of any experts
and agents, that the Secured Party may incur in connection with, (i) the
sale of, collection from, or other realization upon any of the Collateral,
(ii) the exercise or enforcement of any of the rights of the Secured Party
hereunder or (iii) the failure by the Debtor to perform or observe any of
the material provisions hereof. The Secured Party agrees to indemnify the
Debtor for the Debtor's claims, losses and liabilities arising from the
gross negligence or willful misconduct of the Secured Party in the exercise
or enforcement other than in a commercially reasonable manner of any of the
rights of the Secured Party hereunder.
10. ENTIRE AGREEMENT; AMENDMENT; HEADINGS: This Agreement and
the King World Production Agreement contain the entire understanding of the
parties with respect to the subject matter hereof. This Agreement super-
sedes all prior agreements
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and may only be modified by a writing signed by all of the parties hereto.
The section headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
By signing in the spaces provided below, the parties hereto have
agreed to all of the terms and conditions of this Security Agreement.
ORION PICTURES CORPORATION
Secured Party
By:_________________________
Title:___________________
Address:_________________
KING WORLD PRODUCTIONS, INC.
Debtor
By:_________________________
Title:___________________
Address:_________________
[* Deleted pursuant to a request for confidential treatment]
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On ________________, 19__, before me, the undersigned, a Notary
Public in and for said State, personally appeared ________________________,
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the within instrument as
_______________ on behalf of King World Productions, Inc., the corporation
therein named, and acknowledged to me that the corporation executed it.
Witness my hand and official seal.
____________________________
[*Deleted pursuant to a request for confidential treatment]
ASSIGNMENT
__________
The undersigned, Orion Pictures Corporation ("Orion"), for One
Dollar in hand paid and for other valuable consideration received, hereby
sells forever, to King World Productions, Inc. ("KWP") all right, title,
and interest of any kind whatsoever in and to the original property known
as "Hollywood Square" (the Property"), including, without limitation, all
trademarks, service marks, copyrights (and any renewals or extensions
thereof), underlying rights, content, format, title, set design, compo-
nents, game rules, scripts, and all appearances and depictions thereof, and
all of such sole and exclusive rights necessary or desirable to create and
exploit new episodes and/or properties based in whole or in part thereon,
to copyright same in KWP's name, and to advertise, promote and market same,
by any and all means, as well as all rights ancillary thereto and deriva-
tive therefrom, throughout the world in any and all media (the "Rights").
This Assignment is subject to the terms and conditions of that
certain agreement between the parties dated as of October 1, 1991 (the
"Agreement"), including, without limitation, the exclusion from the Rights
of distribution rights in and to the television episodes of the Property
existing as of October 1, 1991.
Orion agrees, insofar as it now or later may have the power or
authority to do so, to cause renewals or extensions of any copyrights in
the Property duly to be obtained, and the Rights herein granted are now
assigned to KWP for the current term and the renewal or extended term of
copyright and after such renewal or extension, further or like documents of
confirmation of assignment will be given to KWP, if requested. Orion
appoints KWP as its irrevocable attorney-in-fact, with the right, but not
the obligation, to execute and file all such documents and to do all acts
necessary for the obtaining of such extensions or renewals and evidencing
the continuation of the Rights in KWP for such renewal or extended terms as
are now vested in KWP.
KWP, and its successors and assigns, are hereby empowered to
bring, prosecute, defend and appear in suits, actions and proceedings of
any kind or nature under or concerning the Rights, including without
limitation, said copyrights or their renewals or extensions, or concerning
any infringement thereof, and particularly infringement of or interference
with any of the
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Rights now granted under said copyrights or renewals or extensions, in
KWP's name.
Dated: As of October 1, 1991
ORION PICTURES CORPORATION
By:___________________________
Its:__________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of October, 1991, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is the __________________ of Orion Pictures Corpora-
tion, the corporation described in and which executed the foregoing
Assignment; that he knows the seal of said corporation; that the seal
affixed to said Assignment is such corporate seal; that it was so affixed
pursuant to authorization of the board of directors of said corporation,
and that he signed his name thereto by like authority.
_________________________________
Notary Public