SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 of 15(d) of the
Securities Exchange Act of 1934
December 7, 1995
Date of Report (Date of earliest event reported)
DELPHI FILM ASSOCIATES
II
(Exact name of registrant as specified in its
charter)
New York 0-11915 13-
3133772
(State or other (Commission (IRS
Employer
jurisdiction of incorporation) File Number)
Identification No.)
666 Third Avenue, New York, New York
10017
(Address of principal executive officer) (Zip Code)
Registrant's telephone number, including area
code 212-983-9040
<PAGE>
Item 2. Acquisition or Disposition of Assets
Columbia Pictures Industries, Inc. ("Columbia") and TriStar
Pictures, Inc. ("TriStar") offered to purchase from Delphi Film
Associates II (the "Partnership") its interest in Columbia-Delphi
Productions II (the "Columbia Joint Venture") and in Tri-Star-
Delphi II Productions (the "Tri-Star Joint Venture"),
collectively (the "Joint Ventures")for $625,000 and $25,000,
respectively. The General Partner, on behalf of the Partnership,
accepted this offer. The definitive documentation for these
transactions (the "Transactions") was executed and delivered on
December 7, 1995 and is retroactively effective as of December 1,
1995 (the "Effective Date"). The Partnership received the
aggregate sale proceeds of $650,000 on December 8, 1995. The
gain to be recognized from the Transactions will approximate
$258,000, representing $650,000 less the amounts recorded by the
Partnership as receivables from the Joint Ventures as of the
Effective Date. The sale proceeds, less Partnership expenses and
a reserve for expenses, will be distributed to partners in
accordance with the Amended and Restated Limited Partnership
Agreement (the "Partnership Agreement").
Item 5. Other Events
The Partnership received the proceeds from the sale of its
interest in the Joint Ventures on December 8, 1995. As a result
of the sale of its interest in the Joint Ventures, the
Partnership dissolved in accordance with the provisions of the
Partnership Agreement.
On December 19, 1995, the Partnership made a final cash
distribution to its limited partners in the amount of $720,960
($60.08 per unit). On December 19, 1995, the Partnership made a
final distribution to the General Partner in the amount of
$7,282. In addition, on December 15, 1995, the Partnership
transferred approximately $229,000 to the General Partner, as a
reserve to pay and/or otherwise satisfy liabilities and/or
obligations of the Partnership that presently exist or that are
expected to arise in the future. These distributions and
payments represented the final distributions of the Partnership.
Accordingly, the Partnership has been effectively liquidated and
terminated.
Item 7. Financial Statements, Pro forma Financial Information
and Exhibits
Pro forma financial information.
The following unaudited pro forma financial information
reflects the Transactions as if they had occurred as of January
1, 1995 or January 1, 1994, respectively. The results of
operations for the nine month period ended September 30, 1995 and
the year ended December 31, 1994 would not have reflected the
Share of Profit in Motion Picture Venture--Columbia-Delphi
Productions II. In addition, the results of operations for the
nine month period ended September 30, 1995 and the year ended
December 31, 1994 would reflect the gain on sale of interests in
the Joint Ventures, interest income from short-term investments
retained after distributions to partners and would provide for
operating expenses to liquidate the Partnership. Giving effect
to the Transactions, as if they had occurred on January 1, 1995
and January 1, 1994, respectively, the pro forma net income for
the nine month period ended September 30, 1995 and the year ended
December 31, 1994 would have been approximately $55,000 and
$122,000, respectively. Net profit (loss) per unit of limited
partnership interest is calculated in accordance with the
Partnership Agreement. For the nine month period ended September
30, 1995 and the year ended December 31, 1994, the pro forma net
profit per unit of limited partnership interest would have been
approximately $5 and $10, respectively, as compared to the stated
net loss per unit of limited partnership interest of $17 and $12,
respectively. In addition, if the Transactions and distribution
to partners had occurred as of September 30, 1995, the balance
sheet as of that date would have only reflected cash and accrued
expenses necessary to liquidate the Partnership.
Exhibits
10.1 Purchase and Sale Agreement dated as of December 1, 1995-
Interest in Columbia-Delphi Productions II.
10.2 Purchase and Sale Agreement dated as of December 1, 1995-
Interest in Tri-Star-Delphi II Productions.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
DELPHI FILM ASSOCIATES II
A New York Limited Partnership
By: THE DELPHI ORGANIZATION,
General Partner
By: ML Film Entertainment Inc.,
Managing Partner
December 20, 1995 /s/ Diane T. Herte
Date Diane T. Herte
Treasurer of the Managing Partner
of the
General Partner
(principal financial officer and
principal
accounting officer of the
Registrant)
December 20, 1995 /s/ Steven N. Baumgarten
Date Steven N. Baumgarten
Director and Vice President of the
Managing Partner of the General
Partner
The parties to this agreement are Columbia Pictures
Industries, Inc., a Delaware corporation ("CPII"), and Delphi
Film Associates II, a New York limited partnership (the
"Seller"). CPII and the Seller are joint venturers in Columbia-
Delphi Productions II, a joint venture organized under New York
law (the "Joint Venture") pursuant to a Joint Venture Agreement
dated February 3, 1983, as amended (the "Joint Venture
Agreement"). 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"), all of which are owned
through the Joint Venture, and the Seller's interests in the
Joint Venture (hereinafter referred to collectively as 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) an Assignment of Joint Venture Interest
with respect to its interest in the Joint Venture in the form of
Exhibit A attached hereto, and (b) as a joint venturer in the
Joint Venture, a Bill of Sale and a Copyright Assignment in the
forms of Exhibit B and Exhibit C, 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 February 3, 1983 (such
agreement, as amended, being the "Distribution Agreement")
between CPII and the Joint Venture, relating to the Films shall
automatically terminate without any further action on the part of
either party hereto or the Joint Venture. Notwithstanding the
foregoing, the provisions of Article XX of the Distribution
Agreement shall survive such termination.
3. Termination of Joint Venture.
Effective as of the date hereof upon payment by CPII
and receipt by the Seller of the Purchase Price (as hereinafter
defined) and the delivery of the Assignment of Joint Venture
Interest in the form of Exhibit A attached hereto, without any
further action by the parties, the Joint Venture shall terminate
and all right, title and interest in and to the assets of the
Joint Venture and all obligations (other than obligations
incurred by Seller on behalf of the Joint Venture outside of the
scope of Seller's authority) of the Joint Venture shall inure to
CPII as successor in interest.
4.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, $625,000 (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
or the Joint Venture, and any amounts payable by Seller to CPII
or the Joint Venture, in each case with respect to the
distribution and exploitation of the Films under the terms of the
Joint Venture Agreement, 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 April 12, 1983, 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 or the Joint Venture 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 and the
indemnities granted in Sections 25 and 28 of the Joint Venture
Agreement shall survive.
5.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, the
Subject Agreements or the business or operations of the Joint
Venture; 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 Joint Venture, Seller or the Seller's
general partner, under or in connection with the Interest, the
Joint Venture, the Subject Agreements, the business or operations
of the Joint Venture or the transactions contemplated hereby.
6.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, Magera 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, Magera
Management Corporation) is presently aware of any breach of the
foregoing representation and warranty of CPII.
7.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 effecting
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; and (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.
8.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 as purchaser or
for the Joint Venture or CPII as a joint venturer in the Joint
Venture 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.
9.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, and those business records, if any, in
its possession relating to the 1986 limited partner consent
solicitation and subsequent reorganization of the Seller,
available to the other (subject to any applicable confidentiality
obligations to which either party may be subject) for purposes of
any tax audit and/or litigation.
10.Indemnification.
(a) Each party (for purposes of this Section 10
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
Magera 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.
11.Location of Transfer.
The parties agree that the transfer of the Interest
shall occur in California.
12.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.
13.Miscellaneous.
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.
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:
Delphi Film Associates II
World Financial Center
North Tower -27th Floor
New York, New York 10281-1327
Attention: Kevin K. Albert
with a copy to:
Magera Management Corporation
666 Third Avenue
New York, New York 10017
Attention: Richard M. Mason
If to CPII, to it at:
Columbia Pictures Industries, Inc.
c/o Sony Pictures Entertainment Inc.
10202 West Washington Boulevard
Culver City, CA 90232-3195
Attention: Ronald N. Jacobi
General Counsel
with a copy to:
Columbia Pictures Industries, Inc.
c/o Sony Pictures Entertainment Inc.
10202 West Washington Boulevard
Culver City, CA 90232-3195
Attention: Edgar H. Howells, Jr.
Chief Financial Officer
(c) This Agreement is being entered into by Seller
in its individual capacity and, as to Section 3 hereof, as a
joint venturer in the Joint Venture. This Agreement is being
entered into by CPII in its individual capacity, as Purchaser,
and, as to Section 2 hereof as a party to the Distribution
Agreement and as a joint venturer in the Joint Venture, and as to
Section 3 hereof, as a joint venturer in the Joint Venture. This
Agreement is further entered into by Seller and CPII, as to
Section 4 in their respective capacities as parties to or
beneficiaries of interests in the Subject Agreements.
(d) 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 supercedes all prior agreements and
understandings with respect to such subject matter (whether
written or oral) all of which are merged herein.
(e) This Agreement may be entered into in one
or more counterparts, each of which together shall constitute one
agreement.
DELPHI FILM ASSOCIATES II
By: The Delphi Organization
General Partner
By: ML Film Entertainment Inc.
Managing Partner
By:
Name:
Title:
COLUMBIA PICTURES INDUSTRIES, INC.
By:
Name:
Title:
<PAGE> SCHEDULE 1
PURCHASE AND SALE AGREEMENT
SCHEDULE OF FILMS OWNED THROUGH THE JOINT VENTURE
Blue Thunder
Spacehunter
Adventures In The
Forbidden Zone
The Survivors
Krull
The Big Chill
Richard Pryor-Here And Now
The Man Who Loved Women
Christine
Against All Odds
Moscow On The Hudson
Hardbodies
The Karate Kid
Ghostbusters
Sheena
A Soldier's Story
The Razor's Edge
Body Double
No Small Affair
Starman
The New Kids
The Slugger's Wife
The Karate Kid: Part II
The Karate Kid: Part III
Ghostbusters II
<PAGE> SCHEDULE 2
FUNDING INSTRUCTIONS
Amounts payable to Delphi Film Associates II (the "Seller")
pursuant to the Purchase and Sale Agreement dated as of December
1, 1995 between the Seller and Columbia Pictures Industries, Inc.
shall be paid to the account of the Seller, as follows:
Delphi Film Associates II
Chemical Bank, NY, NY
ABA#: 021000128
Receipts Account
#004058879
SCHEDULE 3
<PAGE>
SCHEDULE OF INDEMNIFICATION PROVISIONS
- - Joint Venture Agreement dated February 3, 1983 between
Columbia Pictures Industries, Inc. ("CPII") and Delphi Film
Associates II ("Delphi")(Section 25 and the second paragraph
of Section 28).
- - Distribution Agreement dated February 3, 1983 between CPII
and Columbia-Delphi Productions II (Article XX) regarding
joint venture films.
- - Production Services Agreement dated October 31, 1983 between
CPII and Columbia-Delphi Productions II (Sections 10 & 12)
with respect to "Karate Kid".
- - Production Services Agreement dated September 23, 1985
between CPII and Columbia-Delphi Productions II (Sections 10
& 12) with respect to "Karate Kid II".
- - Production Services Agreement dated December 1, 1988 between
CPII and Columbia-Delphi Productions II (Sections 10 & 12)
with respect to "Karate Kid: Part III".
- - Production Services Agreement dated November 28, 1983
between CPII and Columbia-Delphi Productions II (Sections 10
& 12) with respect to "New Kids".
- - Production Services Agreement dated March 3, 1983 between
CPII and Columbia-Delphi Productions II (Sections 10 & 12)
with respect to "Blue Thunder".
- - Production Services Agreement dated February 21, 1984
between CPII and Columbia-Delphi Productions II (Sections 10
& 12) with respect to "Body Double".
- - Production Services Agreement dated March 14, 1984 between
CPII and Columbia-Delphi Productions II (Sections 10 & 12)
with respect to "The Slugger's Wife".
- - Production Services Agreement dated March 12, 1984 between
CPII and Columbia-Delphi Productions II (Sections 10 & 12)
with respect to "No Small Affair".
- - Production Services Agreement dated February 20, 1984
between CPII and Columbia-Delphi Productions II (Sections 10
& 12) with respect to "The Starman".
- - Production Services Agreement dated November 28, 1983
between CPII and Columbia-Delphi Productions II (Sections 10
& 12) with respect to "Next of Kin".
- - Acquisition Agreement dated March 25, 1983 between CPII and
Columbia-Delphi Productions II relating to "Against All
Odds" (Section 7).
- - Acquisition Agreement dated March 25, 1983 between CPII and
Columbia-Delphi Productions II relating to "The Survivors"
(Section 7).
- - Acquisition Agreement dated March 25, 1983 between CPII and
Columbia-Delphi Productions II relating to "The Big Chill"
(Section 7).
- - Acquisition Agreement dated March 25, 1983 between CPII and
Columbia-Delphi Productions II relating to "Christine"
(Section 7).
- - Acquisition Agreement dated March 25, 1983 between CPII and
Columbia-Delphi Productions II relating to "The Man Who
Loved Women" (Section 7).
- - Acquisition Agreement dated March 25, 1983 between CPII and
Columbia-Delphi Productions II relating to "Moscow on the
Hudson" (Section 7).
- - Acquisition Agreement dated March 25, 1983 between CPII and
Columbia-Delphi Productions II relating to "Spacehunter"
(Section 7).
- - Acquisition Agreement dated March 25, 1983 between CPII and
Columbia-Delphi Productions II relating to "A Soldier's
Story" (Section 7).
- - Acquisition Agreement dated August 11, 1982 among Richard
Pryor Movies, Inc., Columbia-Delphi Productions and Columbia-
Delphi Productions II relating to "Richard Pryor Here & Now"
(Section 6).
- - Letter Agreement dated February 23, 1988 between Columbia
Pictures Entertainment, Inc. and Delphi Film Associates II.
- - Letter Agreement dated December 15, 1983 between CPII and
Columbia-Delphi Productions II relating to "Sheena, Queen of
the Jungle" (Section 6).
- - Letter Agreement dated May 24, 1988 between CPII and
Columbia-Delphi Productions II relating to "Ghostbusters"
(Section 6).
- - Purchase and Sale Agreement dated February 3, 1983 between
Columbia-Delphi Productions II and Rastar Features, Inc.
relating to "Blue Thunder" (Section 5).
<PAGE> EXHIBIT A
ASSIGNMENT OF JOINT VENTURE INTEREST
KNOW THAT Delphi Film Associates II ("Assignor"), for good
and valuable consideration received from Columbia Pictures
Industries, Inc. ("Assignee"), hereby assigns to Assignee all of
its right, title and interest in Columbia-Delphi Productions II
(a New York joint venture) (the "Joint Venture") from and after
the date hereof (the "Interest").
TO HAVE AND TO HOLD the same unto Assignee and to the
successors and assigns of Assignee forever.
By accepting this Assignment, Assignee hereby assumes all
obligations associated with the Interest, whether arising prior
to, on, or after the date hereof (other than obligations incurred
by Assignor on behalf of the Joint Venture outside of the scope
of Assignor's authority).
IN WITNESS WHEREOF, Assignor has executed this Assignment as
of the __ day of December, 1995.
DELPHI FILM ASSOCIATES II
By: The Delphi Organization,
General Partner
By: ML Film Entertainment Inc.,
Managing Partner
By:
Name:
Title:
Accepted as of the date
first above written
COLUMBIA PICTURES INDUSTRIES, INC.
By:
Name:
Title:
<PAGE> EXHIBIT B
BILL 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 COLUMBIA-DELPHI PRODUCTIONS II (the
"Seller"), a joint venture organized under New York law between
CPII and Delphi Film Associates II ("Delphi"), 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 Bill of Sale is being delivered pursuant to the terms
of the Purchase and Sale Agreement dated as of December 1, 1995,
between CPII and Delphi.
IN WITNESS WHEREOF, the Seller has caused this Bill of Sale to be
executed by its duly authorized officer as of this ___ day of
December, 1995.
COLUMBIA-DELPHI PRODUCTIONS II
By: DELPHI FILM ASSOCIATES II,
a Joint Venturer
By: The Delphi Organization,
General Partner
By: ML Film Entertainment Inc.,
Managing Partner
By:
Name:
Title:
By: COLUMBIA PICTURES INDUSTRIES, INC.,
a Joint Venturer
By:
Name:
Title:
<PAGE> EXHIBIT C
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 copy-
rights 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 this __ day of December, 1995.
COLUMBIA-DELPHI PRODUCTIONS II
By: DELPHI FILM ASSOCIATES II,
a Joint Venturer
By: The Delphi Organization,
General Partner
By: ML Film Entertainment Inc.,
Managing Partner
By:
Name:
Title:
By: COLUMBIA PICTURES
INDUSTRIES, INC.,
a Joint Venturer
By:
Name:
Title:
C-1
STATE OF NEW YORK )
)
)ss.:
)
COUNTY OF NEW YORK )
On this __ day of December, 1995, 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 managing partner of the general partner
of DELPHI FILM ASSOCIATES II, a joint venturer in COLUMBIA-DELPHI
PRODUCTIONS II, the joint venture described herein and which
executed the foregoing instrument, and that he signed his name
thereto.
Notary Public
C-2
STATE OF CALIFORNIA )
)
)ss.:
)
COUNTY OF )
On this __ day of December, 1995, before me personally came
_______________ to me personally known and who, being by me duly
sworn, did depose and say that he is the ___________ of COLUMBIA
PICTURES INDUSTRIES, INC., a joint venturer in COLUMBIA-DELPHI
PRODUCTIONS II, the joint venture described herein and which
executed the foregoing instrument, and that he signed his name
thereto.
Notary Public
C-3
The parties to this agreement are TriStar Pictures, Inc. , a
Delaware corporation ("TriStar"), and Delphi Film Associates II,
a New York limited partnership (the "Seller"). TriStar, as
successor in interest to TriStar Pictures, a joint venture, and
the Seller are joint venturers in Tri-Star-Delphi II Productions,
a joint venture organized under New York law (the "Joint
Venture") pursuant to a Joint Venture Agreement dated as of July
1, 1983, as amended (the "Joint Venture Agreement"). TriStar
desires to purchase (in such capacity, the "Purchaser") from the
Seller, and the Seller desires to sell to TriStar 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 TriStar, the Seller does hereby sell, transfer, set
over and assign to TriStar all of the Seller's right, title and
ownership interest in and to the Films set forth on Schedule 1
hereto (collectively, the "Films"), all of which are owned
through the Joint Venture, and the Seller's interests in the
Joint Venture (hereinafter referred to collectively as the
"Interest"). Concurrently with the execution and delivery of
this Agreement by TriStar and the Seller, the Seller shall
execute and deliver to TriStar (a) an Assignment of Joint Venture
Interest with respect to its interest in the Joint Venture in the
form of Exhibit A attached hereto, and (b) as a joint venturer in
the Joint Venture, a Bill of Sale and a Copyright Assignment in
the forms of Exhibit B and Exhibit C, respectively, attached
hereto.
2.Termination of Distribution Agreements.
Effective as of the date hereof upon payment by TriStar
and receipt by the Seller of the Purchase Price (as hereinafter
defined), the Distribution Agreement dated as of July 1, 1983,
(such agreement, as amended, being the "Distribution Agreement")
between TriStar and the Joint Venture, relating to the Films
shall automatically terminate without any further action on the
part of either party hereto or the Joint Venture.
Notwithstanding the foregoing, the provisions of Article XXI of
the Distribution Agreement shall survive such termination.
1
3.Termination of Joint Venture.
Effective as of the date hereof upon payment by TriStar
and receipt by the Seller of the Purchase Price (as hereinafter
defined) and the delivery of the Assignment of Joint Venture
Interest in the form of Exhibit A attached hereto, without any
further action by the parties, the Joint Venture shall terminate
and all right, title and interest in and to the assets of the
Joint Venture and all obligations (other than obligations
incurred by Seller on behalf of the Joint Venture outside of the
scope of Seller's authority) of the Joint Venture shall inure to
TriStar as successor in interest.
4.Purchase Price.
Within two business days of the execution and delivery
of this Agreement by TriStar and the Seller, TriStar shall pay to
the Seller, as the purchase price for the Interest, $25,000 (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 TriStar to the
Seller or the Joint Venture, and any amounts payable by Seller to
TriStar or the Joint Venture, in each case with respect to the
distribution and exploitation of the Films under the terms of the
Joint Venture Agreement, 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 April 12, 1983, as
such agreements, as amended, modified or supplemented, have been
entered into (the "Subject Agreements"), and (ii) upon receipt of
the Purchase Price by the Seller, TriStar shall have no further
liability or obligation to the Seller and Seller shall have no
further liability or obligation to TriStar or the Joint Venture
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 granted in the
Subject Agreements set forth in Schedule 3 hereto shall survive
and the indemnities granted in Section 23 of the Joint Venture
Agreement shall survive.
5.Representations and Warranties of the Seller.
The Seller represents and warrants to TriStar 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, the
Subject Agreements or the business or operations of the Joint
Venture; 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 Joint Venture, Seller or the Seller's
general partner, under or in connection with the Interest, the
Joint Venture, the Subject Agreements, the business or operations
of the Joint Venture or the transactions contemplated hereby.
6.Representations and Warranties of TriStar.
TriStar hereby represents and warrants to the Seller
that no material books or records of TriStar 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 TriStar
from Seller or any agent or representative of Seller (including
without limitation, Magera 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 TriStar
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 TriStar that neither the Seller
nor any of its directors, officers, employees, affiliates, agents
or representatives (including, without limitation, Magera
Management Corporation) is presently aware of any breach of the
foregoing representation and warranty of TriStar.
7.Additional Representations and Warranties of the
Parties.
Each of TriStar 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 effecting
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; and (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.
8.Further Assurances.
(a) The Seller agrees, after the date hereof, to
take all further actions which are reasonably requested by
TriStar in connection with the sale and transfer of the Interest
to TriStar 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 TriStar
agrees to reimburse the Seller for such cost or expense.
(b) TriStar agrees, after the date hereof, to take
all actions (i) necessary or appropriate for TriStar as purchaser
or for the Joint Venture or TriStar as a joint venturer in the
Joint Venture 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
TriStar any obligations or liabilities under the federal or state
securities laws with respect to filings thereunder required to be
made by Seller.
9.Records.
For a period of seven (7) years following the date of
this Agreement, each of TriStar 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, and those business records, if any,
in its possession relating to the 1986 limited partner consent
solicitation and subsequent reorganization of the Seller,
available to the other (subject to any applicable confidentiality
obligations to which either party may be subject) for purposes of
any tax audit and/or litigation.
10.Indemnification.
(a) Each party (for purposes of this Section 10
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
Magera 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.
11.Location of Transfer.
The parties agree that the transfer of the Interest
shall occur in California.
12.Revocation of Empowerment to Appear in Suits.
The parties agree that to the extent that TriStar
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.
13.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:
Delphi Film Associates II
World Financial Center
North Tower -27th Floor
New York, New York 10281-1327
Attention: Kevin K. Albert
with a copy to:
Magera Management Corporation
666 Third Avenue
New York, New York 10017
Attention: Richard M. Mason
If to TriStar, to it at:
TriStar Pictures, Inc.
c/o Sony Pictures Entertainment Inc.
10202 West Washington Boulevard
Culver City, CA 90232-3195
Attention: Ronald N. Jacobi
General Counsel
with a copy to:
TriStar Pictures, Inc.
c/o Sony Pictures Entertainment Inc.
10202 West Washington Boulevard
Culver City, CA 90232-3195
Attention: Edgar H. Howells, Jr.
Chief Financial Officer
(c) This Agreement is being entered into by Seller
in its individual capacity and, as to Section 3 hereof, as a
joint venturer in the Joint Venture. This Agreement is being
entered into by TriStar in its individual capacity, as Purchaser,
and, as to Section 2 hereof as a party to the Distribution
Agreement and as a joint venturer in the Joint Venture, and as to
Section 3 hereof, as a joint venturer in the Joint Venture. This
Agreement is further entered into by Seller and TriStar, as to
Section 4 in their respective capacities as parties to or
beneficiaries of interests in the Subject Agreements.
(d) 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 supercedes all prior agreements and
understandings with respect to such subject matter (whether
written or oral) all of which are merged herein.
(e) This Agreement may be entered into in one or
more counterparts, each of which together shall constitute one
agreement.
DELPHI FILM ASSOCIATES II
By: The Delphi Organization
General Partner
By: ML Film Entertainment Inc.
Managing Partner
By:
Name:
Title:
TRISTAR PICTURES, INC.
By:
Name:
Title:
The undersigned hereby waives
any rights it has to purchase
the Interest pursuant to
Section 10.4 of the Amended and
Restated Agreement of Limited
Partnership of Delphi dated
February 4, 1983, as amended,
or pursuant to any right of first
offer or right of first refusal
that it may otherwise have
COLUMBIA PICTURES INDUSTRIES, INC.
By:
Name:
Title:
SCHEDULE 1
<PAGE>
PURCHASE AND SALE AGREEMENT
SCHEDULE OF FILMS OWNED THROUGH THE JOINT VENTURE
The Evil That Men Do
The Natural
The Muppets Take Manhattan
Places In The Heart
Lovelines
Songwriter
Blame It On The Night
Little Treasure
Real Genius
The Principal
Suspect
<PAGE> SCHEDULE 2
FUNDING INSTRUCTIONS
Amounts payable to Delphi Film Associates II (the "Seller")
pursuant to the Purchase and Sale Agreement dated as of December
1, 1995 between the Seller and TriStar Pictures, Inc. shall be
paid to the account of the Seller, as follows:
Delphi Film Associates II
Chemical Bank, NY, NY
ABA#: 021000128
Receipts Account
#004058879
SCHEDULE 3
<PAGE>
SCHEDULE OF INDEMNIFICATION PROVISIONS
- - Joint Venture Agreement dated as of July 1, 1983 between
TriStar Pictures, Inc. (as successor in interest to TriStar
Pictures, a joint venture)("TriStar") and Delphi Film
Associates II ("Delphi")(Section 23).
- - Distribution Agreement dated as of July 1, 1983 between
TriStar and Tri-Star-Delphi II Productions and Tri-Star-
Delphi III Productions (Article XXI) regarding joint venture
films.
- - Production Services Agreement dated January 13, 1984 among
TriStar, Tri-Star-Delphi II Productions and Tri-Star-Delphi
III Productions (Sections 11 & 13) with respect to "Places
in the Heart" a/k/a/ "The Texas Picture".
- - Production Services Agreement dated January 13, 1984 among
TriStar, Tri-Star-Delphi II Productions and Tri-Star-Delphi
III Productions (Sections 11 & 13) with respect to
"Songwriter".
- - Production Services Agreement dated January 30, 1984 among
TriStar, Tri-Star-Delphi II Productions and Tri-Star-Delphi
III Productions (Sections 11 & 13) with respect to "Little
Treasure".
- - Production Services Agreement dated January 13, 1984 among
TriStar, Tri-Star-Delphi II Productions and Tri-Star-Delphi
III Productions (Sections 11 & 13) with respect to
"Lovelines".
- - Production Services Agreement dated July 1, 1983 between
TriStar and Tri-Star-Delphi II Productions (Sections 10 &
12) with respect to "The Muppets Take Manhattan".
- - Production Services Agreement dated January 13, 1984 among
TriStar, Tri-Star-Delphi II Productions and Tri-Star-Delphi
III Productions (Sections 11 & 13) with respect to "The
Natural".
- - Production Services Agreement dated October 29, 1984 among
TriStar, Tri-Star-Delphi II Productions and Tri-Star-Delphi
III Productions (Sections 11 & 13) with respect to "Real
Genius".
- - Production Services Agreement dated January 13, 1984 among
TriStar, Tri-Star-Delphi II Productions and Tri-Star-Delphi
III Productions (Sections 11 & 13) with respect to "Blame it
on the Night".
- - Production Origination Agreement dated as of July 1, 1983
between Tri-Star-Delphi II Productions and TriStar (Section
8).
<PAGE> EXHIBIT A
ASSIGNMENT OF JOINT VENTURE INTEREST
KNOW THAT Delphi Film Associates II ("Assignor"), for good
and valuable consideration received from TriStar Pictures, Inc.
("Assignee"), hereby assigns to Assignee all of its right, title
and interest in Tri-Star-Delphi II Productions (a New York joint
venture) (the "Joint Venture") from and after the date hereof
(the "Interest").
TO HAVE AND TO HOLD the same unto Assignee and to the
successors and assigns of Assignee forever.
By accepting this Assignment, Assignee hereby assumes all
obligations associated with the Interest, whether arising prior
to, on, or after the date hereof (other than obligations incurred
by Assignor on behalf of the Joint Venture outside of the scope
of Assignor's authority).
IN WITNESS WHEREOF, Assignor has executed this Assignment as
of the __ day of December, 1995.
DELPHI FILM ASSOCIATES II
By: The Delphi Organization,
General Partner
By: ML Film Entertainment Inc.,
Managing Partner
By:
Name:
Title:
Accepted as of the date
first above written
TRISTAR PICTURES, INC.
By:
Name:
Title:
<PAGE> EXHIBIT B
BILL OF SALE
For and in consideration of the sum of One Dollar ($1.00)
and other good and valuable consideration paid simultaneously
herewith by TRISTAR PICTURES, INC., a Delaware corporation
("TriStar"), to TRI-STAR-DELPHI II PRODUCTIONS (the "Seller"), a
joint venture organized under New York law between TriStar and
Delphi Film Associates II ("Delphi"), receipt of which the Seller
hereby acknowledges, the Seller hereby sells, assigns, transfers,
delivers and sets over to TriStar 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 TriStar 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
TriStar'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 Bill of Sale is being delivered pursuant to the terms
of the Purchase and Sale Agreement dated as of December 1, 1995,
between TriStar and Delphi.
IN WITNESS WHEREOF, the Seller has caused this Bill of
Sale to be executed by its duly authorized officer as of this __
day of December, 1995.
TRI-STAR-DELPHI II PRODUCTIONS
By: DELPHI FILM ASSOCIATES II,
a Joint Venturer
By: The Delphi Organization,
General Partner
By: ML Film Entertainment Inc.,
Managing Partner
By:
Name:
Title:
By: TRISTAR PICTURES, INC.,
a Joint Venturer
By:
Name:
Title:
<PAGE> EXHIBIT C
COPYRIGHT ASSIGNMENT
The undersigned hereby sells, assigns and transfers to
TRISTAR PICTURES, 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 copy- rights 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 this __ day of December, 1995.
TRI-STAR-DELPHI II PRODUCTIONS
By: DELPHI FILM ASSOCIATES II,
a Joint Venturer
By: The Delphi Organization,
General Partner
By: ML Film Entertainment
Inc.,
Managing Partner
By:
Name:
Title:
By: TRISTAR PICTURES, INC.
a Joint Venturer
By:
Name:
Title:
STATE OF NEW YORK )
)
)ss.:
)
COUNTY OF NEW YORK )
On this __ day of December, 1995, 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 managing
partner of the general partner of DELPHI FILM ASSOCIATES II,
a joint venturer in TRI-STAR-DELPHI II PRODUCTIONS, the
joint venture described herein and which executed the
foregoing instrument, and that he signed his name thereto.
Notary Public
STATE OF CALIFORNIA )
)
)ss.:
)
COUNTY OF )
On this __ day of December, 1995, before me personally
came _______________ to me personally known and who, being
by me duly sworn, did depose and say that he is the
___________ of TRISTAR PICTURES, INC., a joint venturer in
TRI-STAR-DELPHI II PRODUCTIONS, the joint venture described
herein and which executed the foregoing instrument, and that
he signed his name thereto.
Notary Public
