screen nsw production grant agreement nsw produ… · documentary production grant agreement...

PI.XXXX: [Development Executive]: [date]

" FILM TITLE"

PRODUCTION GRANT AGREEMENT

between

NEW SOUTH WALES FILM AND TELEVISION OFFICE trading as SCREEN NSW

and

[PRODUCER]

and

[SPV]

Dated 20XX

NOTES TO THIS AGREEMENT

1. THIS IS AN IMPORTANT DOCUMENT. IT CONTAINS BINDING LEGAL OBLIGATIONS. READ IT CAREFULLY AND CONSULT YOUR SOLICITOR BEFORE SIGNING IT.

2. PLEASE NOTE THAT THIS AGREEMENT MAY CONTAIN PROVISIONS WHICH

ARE NOT APPLICABLE TO YOUR FILM (FOR EXAMPLE CLAUSE 10 AND ASSOCIATED DEFINITIONS IF YOUR FILM IS NOT A PRODUCER OFFSET FILM AND/OR CLAUSE 4 AND ASSOCIATED DEFINITIONS DEALING WITH ICIP RIGHTS IF YOUR FILM DOES NOT INCORPORATE INDIGENOUS CONTENT). YOU MAY DISREGARD THESE PROVISIONS.

________________________________________________________________ Documentary Production Grant Agreement

CONTENTS Production Particulars Schedule Finance and Film Asset Schedule Transaction Documents Schedule Delivery Materials Schedule Special Conditions Schedule The Budget Schedule Notice Schedule

Annexure A Statutory Declaration

1. Definitions 2. Your Warranties, Representations and Undertakings 3. Special Conditions 4. ICIP Rights 5. Delivery Materials 6. Payment and the Production Account 7. Condition Precedent to Screen NSW's Payment Obligations 8. Intentionally Deleted 9. Screen NSW's Approval Rights 10. Producer Offset and production of the Film as an Australian Film 11. Screen NSW's Accounting and Reporting Rights 12. Insurance 13. Screen NSW Credit 14. Ownership of Film Assets 15. Film Income 16. Marketing the Film 17. Indemnity 18. Rectification and Remedy of Event of Default 19. Default and Termination 20. General Provisions 21. Governing Law 22. GST

PRODUCTION PARTICULARS SCHEDULE

1. Film Details Title Written by Based on an original work by Length 2a. Screen NSW Grant $ 2b. Funding Program 3. Principal Personnel Name M/F Nationality Executive Producer Producer Writer Director D.O.P. Editor Principal Participant Principal Participant Principal Participant Principal Participant Principal Participant 4. Production Schedule Start of Pre-Production Start of Principal Photography Start of Post Production Rough Cut Fine Cut Completion Date Delivery Date Delivery of Final Cost Report 5. Production Company and SPV details Production Company ABN SPV ABN Address Email

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Documentary Production Grant Agreement

FINANCE & FILM ASSET SCHEDULE

1. Finance Plan Type of investment Amount 100% Screen NSW Devt Screen NSW Time Critical

Screen NSW Production

Total 2. Drawdown Schedule Date Amount 100% Development/Time Critical Previously Paid Execution of Agreement On or about the date

of this agreement

Screen NSW approval of Rough Cut and Rough Cut Cost Report

Delivery to Screen NSW of DVDs and Marketing Materials

Delivery of Final Cost Report, NSW Production Report & Statutory Declaration of NSW Spend

Total

3. Film Asset Ownership 100% Screen NSW Producer /Other 4. Production Account of the SPV Name of Account Bank Branch address BSB Account Number Signatories

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TRANSACTION DOCUMENTS SCHEDULE

1 Chain of Title documentation for the Underlying Rights 2 Executed participant release(s)/ pro forma participant release 3 Certificate of incorporation of the Producer and SPV 4 Producer Offset Cashflow documentation (letter from Producer & accountant/ loan agreement) 5 Provisional Certificate 6 Completion Guarantee (if applicable) 6 Broadcast Licence Agreement 7 Distribution Agreement 8 Indigenous community agreement or release(s) from representatives of the Indigenous

community 9 Other Funding Agreements

10 ASIC search (Form 964) for the Producer 11 Screen NSW Notice of Election (if applicable) 12 MEAA written approvals for entry into Australia of any foreign actors on the Film (if applicable) 13 Authority/clearance by the NSW Office of Childrenʼs Guardian or related body (if applicable)

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DELIVERY SCHEDULE

To Screen NSW (all documentaries): Qty What 3 DVD copy of the completed Film 3 (If applicable) copies of commercial DVD release of the Film 1 An electronic press kit and written publicity pack 1 A copy of the master set of production stills on CD Rom (plus 6 additional stills for Regional Filming Fund if applicable) 2 (If applicable) theatrical posters for Australia and overseas supplied when first available 1 (If applicable) Soundtrack on CD when first available 1 Where cross-platform or website - URL address and or one copy of the relevant element on DVDcopy of each cross

platform element of the Film at the same time as such element is delivered under any Funding Agreement or Marketing Agreement

1 NSW Production Report (Screen NSW to provide template) 1 Final Cost Report & Statutory Declaration including NSW spend 1 (if requested) Audit

To NFSA (all documentaries): Qty What NFSA Delivery Materials to be delivered at the same time as Screen NSW Delivery Materials 1 Program Master in HD or Digital Betacam, whichever is native format and highest resolution 1 DVD copy with time coded window refernced form the Program Master 2 Copies of any commercially released DVD (if available) 1 PDF file of press kit for Australian and international release 1 PDF file of synopsis, cast and crew list and biographies of key participants 1 Statement of technical details complete with formats and file types, incl. details of production & post- production path 1 PDF file of Post Production Script 1 Each of captioned image of Producer, Director, DoP and key participants as per NNFSA standards 15 Still images in TIFF with one JPEG derivative 1 Fully operational and resolved version of the website on disc (if applicable). Refer to NFSA for details NFSA Completion Materials to be delivered to NFSA at completion of Major Marketing or 3 years after

completion: Spare masters, sub-masters or higher digital master recording Any elongated festival releases on highest resolution Soundtrack release (if applicable)- see NFSA for acceptable media format List of audio and video interviews Other documentation materials (research, draft scripts, handbills, production notes, video/DVD slicks, press clippings List of festivals and awards won Gross Box Office figures

To the Study Guide Provider (where applicable): Qty What Study Guide Delivery Materials to be delivered within 30 days of the Completion Date 3 DVD copy of completed Film PDF file of Post Production Script An electronic press kit and written publicity pack

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SPECIAL CONDITIONS SCHEDULE

A. SCREEN NSW SPECIAL CONDITIONS 1. You must ensure that 100% of [production/post-production] takes place in NSW. 2. You must provide a copy of the Rough Cut to Screen NSW for viewing on the date

specified for Rough Cut in the Production Particulars. 3. You must spend a minimum of $[X] representing [X]% of the total budgeted cost

(excluding fees for non NSW cast if reasonably required) in NSW. B. CREDITS PRESENTATION CREDITS: First card:

SCREEN NSW

AND [PRODUCER] AND [SPV]

PRESENT END CREDITS: Full frame rolling end credit (location credit)

FILMED ON LOCATION IN NEW SOUTH WALES, AUSTRALIA OR

POST-PRODUCED IN NEW SOUTH WALES AUSTRALIA OR

FILMED AND POST-PRODUCED IN NEW SOUTH WALES, AUSTRALIA (Screen NSW LOGO)

Static full frame end credit (finance credit)

FINANCED IN ASSOCIATION WITH SCREEN NSW

[Screen NSW LOGO ]

© 20XX PRODUCER/SPV/ [Screen NSW]/Other Investors C. SCREEN NSW SPECIAL CREDIT PROVISIONS Screen NSW requires its logo in both the location credit and finance end credits. The Screen NSW finance credit would normally be a single card static end credit.

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The Screen NSW logo should be no smaller than the logo of any other agency, the Producer, any Broadcaster or any other person who is party to a Funding Agreement.

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THE BUDGET SCHEDULE

Approved budget to be attached here

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NOTICE SCHEDULE

Any written notice, document or other communication to be served or made to a party:

(a) must be sent to the address shown below for that party or to such alternative address as one party may notify to the other in writing

Producer: Address: Email: to the attention of: SPV: Address: Email: to the attention of: Screen NSW: Address: Level 43, MLC Centre, 19 Martin Place, Sydney,

New South Wales 2000 Australia facsimile no: 612 8222 4840 to the attention of: Business Affairs Manager

(b) may be served by hand, registered or certified post, facsimile transmission or electronic mail and shall be deemed sufficiently served or delivered:

(i) in the case of hand delivery, on the next business day after delivery; (ii) in the case of registered or certified post, 3 Business Days after

posting; (iii) in the case of facsimile transmission, on the next Business Day after

legible transmission; or (iv) in the case of electronic mail, at the time it is sent.

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ANNEXURE A – STATUTORY DECLARATION I, …………………………………………………………………………………..……………… of………………………………………………………………………………………………… in the State of………………………………………………………………………(Declarant) being …………………………………(occupation) make the following declaration under the Statutory Declarations Act 1959: 1. I am a director of ………………………………..(“Production Company”). 2. The defined terms used in this statutory declaration shall have the same meaning as specified in the Production Grant Agreement between Screen NSW and the Production Company for the Film titled ……………......on…./…./20... (“the PGA”). 3. The Final Cost Report attached to this statutory declaration marked “A” and initialed

by me is a true copy of the Final Cost Report delivered to Screen NSW in accordance with the PGA.

4. The attached Final Cost Report is true and correct in all material respects. 5. The Grant has been expended by the Production Company solely on the cost of production of the Film. 6. The Production Company has spent a minimum of $[X] in New South Wales,

representing [X]% of the Budget of the Film. 7. I declare that the amount listed at Paragraph 6 above specifically excludes

application fees for the Producer Offset, agency administration fees, SPAA fees, financing costs (legal, administration and interest) and any development costs.

I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular. ……………………………………………… signed by Declarant Declared at ………………………………………(place) on …./…./20… Before me. …………………………………………………..on…./…./20… signature of person before whom the declaration is made ……………………………………………………………………………… ……………………………………………………………………………… Insert full name, qualification and address of person before whom the declaration is made in printed letters NOTE: Please refer to Schedule 2 of the Statutory Declarations Regulation 1993 (Cth) to find persons before whom a statutory declaration may be made

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THIS IS A CONTRACT BETWEEN: [PRODUCER] (ABN XXX) a company duly incorporated in the State of XXXX, having its registered office at XXXX (“the Producer”) AND [SPV] (ABN XXX) a company duly incorporated in the State of XXXX, having its registered office at XXXXX (“the SPV”), (the Producer and the SPV being jointly and severally referred to as “you”) AND NEW SOUTH WALES FILM AND TELEVISION OFFICE trading as SCREEN NSW of Level 43, MLC Centre, 19 Martin Place, Sydney, in the State of New South Wales, 2000, (“Screen NSW” or "us" or "we") BACKGROUND: A. The Producer intends to enter into a licence with the SPV to produce the Film, as

described in Item 1 of the Production Particulars Schedule. B. You have requested our financial assistance to produce the Film. C. We have agreed to provide the sum specified in Item 2(a) of the Production

Particulars Schedule as a grant for the purpose of enabling the SPV to produce the Film subject to the terms set out in this Agreement.

AGREEMENT: 1. DEFINITIONS 1.1 In this Agreement, (including the Schedules), except where the context otherwise

requires, the following expressions are interpreted as follows: “administrator” has the meaning given to that term in the Corporations Act 2001 (Cth); "Ancillary Rights" means the following rights throughout the world:

(a) the exclusive right in the Work, Script and Music, and a nonexclusive right in

any Selected Music and Archive Footage, to make and exploit and to authorise others to make and to exploit:

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(i) cinematograph films about the production of the Film and about the production of any Sequel or Spin Off;

(ii) books in volume form developed from: (A) the Script; (B) the Film; (C) any Sequel or Spin Off; or (D) cinematograph films mentioned in (i) of this paragraph;

(iii) still photographs of the production, taken during production of the Film; and

(iv) recordings of the soundtrack of the Film; (b) the exclusive right to use and to authorise others to use the whole or part of

the title of the Film as a trade mark, service mark, style or business name; (c) the exclusive right to use and to authorise others to use the characters and

situations in the Script and the Film; (d) all rights in the Film Materials, the Production Assets (other than hired or

leased assets) and the Marketing Materials; and (e) the New Technology Rights. "Archive Footage" means parts of cinematograph films incorporated into the Film and not being footage created for the production of the Film; " Budget" means the budget for the production of the Film set out in the Budget Schedule as varied subject to the prior approval of Screen NSW in writing where required under this Agreement; “Business Day” means a day that is not a Saturday, Sunday, public holiday or bank holiday in Sydney; "Claim" means any legally enforceable claim, action, proceeding, judgment, liability, loss, damage or cost incurred or suffered by, or brought, made or recovered against, a person; “Completion Date” means the date specified in Item 4 of the Production Particulars Schedule; ”Completion Guarantee” means an agreement between the Investors in the Film and a completion guarantor in which the completion guarantor agrees to complete the Film and provide sufficient money for that purpose; “Controller” has the meaning given to that term in the Corporations Act 2001 (Cth); "Copyright" means: (a) copyright in the Film according to Section 86 of the Copyright Act 1968 (Cth); (b) copyright in the Film according to the law of a country other than Australia;

and (c) rights in the Film in the nature of or analogous to the rights in (a) and (b)

according to the law of Australia or any other country; “Cost Report” means a cost report required to be delivered to Screen NSW as set out in clause 11.2; “Delivery Date” means the date specified in Item 4 of the Production Particulars Schedule; "Drawdown Schedule" means the schedule for payment of the Installments of the Grant specified in the Finance and Film Asset Schedule;

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“Event of Default” means: (a) breach by you of any warranty or other term of this Agreement; (b) breach by you of any warranty or other term of any Funding Agreement or Marketing Agreement; (c) any Funding Agreement or Marketing Agreement is terminated for any reason or becomes void, illegal, invalid, unenforceable or of limited force and effect; (d) the occurrence of any Insolvency Event; or (e) the Film is not completed by the Completion Date.

“Final Cost Report” has the meaning given to that term in clause 11.3; "Film" means the cinematograph film described in Item 1 of the Production Particulars Schedule and includes all Film Materials and all versions of the whole or any part of the Film; "Film Assets" means the Underlying Rights, the Film, the Copyright, the Production Assets (other than hired or leased assets) and the Marketing Materials; "Film Authority" has the meaning defined in the ITAA; "Film Materials" means all masters, negatives, positives, video and sound recordings created during the production of the Film, whether or not incorporated into the completed Film; "Final Certificate" means a certificate issued by the Film Authority in respect of the Film according to Section 376-65 of the ITAA and Part 3 of the Producer Offset Rules; "Finance Plan" means a complete statement of all sources of finance for the production of the Film in accordance with the Budget and as set out in the Finance and Film Asset Schedule; “Funding Agreement” means any agreement between you and the Investors (or any of them); “Funding Program” means the Screen NSW funding program under which the Grant is paid as specified in Item 2(b) of the Production Particulars Schedule; "Grant" means the total amount paid by Screen NSW pursuant to this agreement, as specified in Item 2(a) of the Production Particulars Schedule; “GST” means the Goods and Services Tax under A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any associated legislation and regulations; “Heritage” comprises all objects, sites and knowledge, the nature or use of which has been transmitted or continues to be transmitted from generation to generation, and which is regarded as pertaining to a particular Indigenous group or its territory. The heritage of an Indigenous people is a living one and includes objects, knowledge and literary and artistic works which may be created in the future based on that heritage. Heritage includes:

(a) literary, performing and artistic works (including songs, music, dances, stories, ceremonies, symbols , languages and designs); (b) Scientific, agricultural, technical and ecological knowledge (including cultigens, medicines and the phenotypes of flora and fauna); (c) All items of movable cultural property; (d) Human remains and tissues; (e) Immovable cultural property (including sacred and historically significant sites and burial grounds);

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(f) Documentation of Indigenous peoplesʼ heritage in archives, film, photographs, videotape or audiotape and all forms of media;

“ICIP Rights” means Indigenous Cultural and Intellectual Property Rights, being a reference to indigenous peoplesʼ cultural Heritage “Insolvency Event” means the occurrence of any one or more of the following events:

(a) an application is made to a court for an order that you be wound up, or that a provisional liquidator be appointed to you, and the application is not withdrawn, struck out or dismissed within 21 days of being made; (b) a liquidator or provisional liquidator is appointed to you; (c) an administrator or controller is appointed to you or any of your assets; (d) you enter into an arrangement or composition with one or more of your creditors, or you enter into an assignment for the benefit of one or more of your creditors; (e) you propose, or resolve to enter into, a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of your creditors; (f) you are or become insolvent or you are presumed to be insolvent under an applicable law; (g) you are taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act 2001 (Cth); (h) a notice in relation to you is issued under sections 601AA or 601AB of the Corporations Act 2001 (Cth); (i) a writ of execution is levied against you or your property; (j) you cease to carry on business or threaten to do so; or (k) anything occurs in relation to you under the law of any jurisdiction which has a (l) substantially similar effect to any of the events or circumstances mentioned in any of the above paragraphs of this definition.

“Installment” means an installment of the Grant; “Investor” means those persons listed in the Finance Plan as providing funding by way of investment, grant or otherwise; “ITAA" means the Income Tax Assessment Act 1997 (Cth); “ISAN” means International Standard Audiovisual Number; "Market the Film" includes: (a) promotion and exploitation of the Copyright and the Underlying Rights; (b) securing the Copyright and the Underlying Rights; (c) protecting the Copyright and prosecuting infringements of the Copyright and

the Underlying Rights; (d) obtaining any benefit from statutory licenses according to the Copyright Act

1968 (Cth) in relation to the Film and equivalent legislation in other jurisdictions;

(e) enforcement and ensuring compliance with the terms of each Marketing Agreement; and

(f) creation and use of the Marketing Materials; "Marketing Agreement" means any agreement in respect of the Marketing of the Film including a sales agreement, license agreement, agency agreement and distribution agreement;

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"Marketing Materials" means materials created to Market the Film, including posters, still photographs and artwork; “Marketing Report” has the meaning given to that term in clause 16.6; "Music" means the following created or made for use in the Film and incorporated into the soundtrack of the Film: (a) musical works and associated literary works; and (b) sound recordings. “NFSA” means the National Film and Sound Archive; “NFSA Completion Materials” means the items specified as such in the Delivery Schedule; “NFSA Delivery Materials” means the items specified as such in the Delivery Schedule; "New Technology Rights" means the right to use, store and reproduce digitally all or any part of the Film, the Work, the Script, the Music and any other works and subject matter created for the production of or incorporated into the Film, by means of computer technology or any other technology now known or later brought into existence, in any format and to deliver it through any platform or on-line or internet service whether or not it is interactively presented; “Principal Personnel” means any person described in Item 3 of the Production Particulars Schedule; ”Producer Offset" means the refundable tax offset for qualifying Australian expenditure incurred in making an eligible Australian film, as provided for by Division 376 of ITAA; "Producer Offset Advance" means an amount equal to the sum advanced to the SPV against the benefit of the Producer Offset for the Film including, without limitation, all principal, interest, penalties or charges of any nature payable under the terms of the Producer Offset Cashflow Documentation; "Producer Offset Cashflow Documentation" means the documents approved by Screen NSW evidencing the Producer Offset Advance; "Producer Offset Rules" means the rules made by the Film Authority under Sections 376-265(1) and (2) of ITAA; “Production Account” means the interest bearing bank account specified in the Finance and Film Asset Schedule; “Production Assets" means any equipment, goods, materials, software and other tangible assets (other than the Film) bought, hired or leased for the production of the Film and paid for from the Budget; “Production Particulars” means the particulars relating to the Film set out in the Production Particulars Schedule; "Provisional Certificate" means a certificate issued by the Film Authority in respect of the Film according to Part 2 of the Producer Offset Rules; “Records” means accounts, records, invoices, timesheets, bank statements, agreements and other documents relating to the production and Marketing of the Film whether in hard copy, electronic form or any other form; "Screen NSW Delivery Materials" means the items specified as such in the Delivery Schedule;

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"Script" means the proposal, treatment, script outline and script (including revisions) for the Film written by the Writer and includes research materials created by the Writer for writing the Script; "Selected Music" means the following not created or made for use in the Film and incorporated into the soundtrack of the Film: (a) musical works and associated literary works; and (b) sound recordings; “Security Interest" includes any: (a) mortgage, pledge, lien, charge, encumbrance, option or third party security; (b) contractual, proprietary or preferential interest or arrangement of any kind; and (c) right of or arrangement with any creditor to have its claims satisfied before other creditors from any asset; "Sequel" includes any cinematograph film featuring one or more of the leading characters in the Film taking part in events that are different from but related to and developed from the events of the Film, whether before or after; "Spin Off" includes any cinematograph film that features and develops some or all of the participants, scenarios, events, sequences, names and titles of the Film or any other cinematograph film that is part of the same series as the Film; “Study Guide Delivery Materials” means the items specified as such in the Delivery Schedule; “Study Guide Provider” means a reputable and recognised provider of study guides and educational teaching materials; “Transaction Documents” means the documents specified in the Transaction Documents Schedule; "Underlying Rights" means the following rights throughout the world for the respective periods of copyright in the respective works and subject matter and subject to the rights of the Australasian Performing Right Association Limited in respect of the Music: (a) the Ancillary Rights; (b) the exclusive right in the Work, Script, Music and other works created for the production of the Film to make and to authorise others to make any Sequel or Spin Off; (c) the exclusive right in the Work, Script, Music and any other works created for the production of the Film (referred to collectively below as the “works and subject matter”) to do, and to authorise others to do, all the following in the production and Marketing of the Film and any Sequel or Spin Off:

(i) to reproduce the works and subject matter in any material form (whether visible or not);

(ii) to perform the works and subject matter in public; (iii) to publish the works and subject matter; (iv) to cause the Music to be heard in public; (v) to communicate the works and subject matter to the public; and (vi) to make an adaptation of any of the works and subject matter

and to do all or any of the acts specified in paragraphs (i) to (v) above in relation to that adaptation; and

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(d) the nonexclusive right in any Selected Music, Archive Footage and any other works and subject matter not created for the production of the Film and incorporated into the Film (referred to collectively below as the “independent works and subject matter”) to do, and to authorise others to do, all the following in the production and Marketing of the Film:

(i) to reproduce the independent works and subject matter in any material form (whether visible or not);

(ii) to perform the independent works and subject matter in public; (iii) to publish the independent works and subject matter; (iv) to cause the Selected Music to be heard in public; (v) to communicate the independent works and subject matter to

the public; and (vi) to make an adaptation of any of the independent works and

subject matter and to do all or any of the acts specified in paragraphs (i) to (v) above in relation to that adaptation.

“Unspent Component” has the meaning given to that term in clause11.4. "Work" means the literary or dramatic work (including any revisions of that work) described in Item 1 of the Production Particulars Schedule.

1.2 Where the Film is being produced or part produced on tape or hard drive, unless the context otherwise requires: (a) "answer print" or "print" means the full length, edited, synchronised, end-titled

and credited copy of the Film; and (b) "fine cut stage" means completion of the off-line edit.

1.3 In this Agreement (including the Schedules) except where the context otherwise

requires: (a) words importing the singular include the plural and vice versa; (b) words importing one gender include the other gender; (c) words and expressions used in connection with matters of copyright, unless

defined in this Agreement, have the meaning attributed to them in the Copyright Act 1968 (Cth);

(d) words and expressions defined in the Corporations Act 2001 (Cth) have the same meaning;

(e) clause headings and underlining are for reference purposes only; (f) references to clauses, paragraphs, Schedules and Annexures are references

to clauses and paragraphs in, and Schedules and Annexures to, this Agreement, all of which form part of the Agreement;

(g) references to a party includes that partyʼs successors and permitted assignors;

(h) where Screen NSW is contracting with more than one person, “you” means each and all of them jointly and severally;

(i) "Dollars" and "$" refer to Australian dollars unless otherwise stated; (j) if any act is required to be done on a day which is not a Business Day, that

act must be done on the next Business Day after that day.

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2. YOUR WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS 2.1 In consideration of Screen NSWʼs agreement to pay you the Grant, you warrant,

represent and undertake to Screen NSW that:

(a) you do, and will continue to, comply with all of the eligibility requirements in Screen NSWʼs Terms of Trade and the guideline requirements for the Funding Program specified in Item 2(b) of the Production Particulars;

(b) you have full capacity, power and authority to enter into this Agreement, and to perform all of the obligations imposed on you under this Agreement;

(c) you are not in breach of any obligation under any agreement you have with Screen NSW or any of our predecessors;

(d) the SPV will produce the Film in all material respects based on the Script; (e) the Producer owns or have the exclusive rights to acquire by the Completion

Date, the Underlying Rights in the Work and the Script; (f) the Producer will acquire the Underlying Rights in the Work and the Script

before the Completion Date (where the Underlying Rights have not been acquired by the Producer prior to this time);

(g) the Producer will obtain an exclusive licence of the Underlying Rights in the Music (excluding the Selected Music) before the Completion Date;

(h) the Producer will obtain a non-exclusive licence of the Underlying Rights in the Selected Music before the Completion Date;

(i) the exploitation of the Underlying Rights does not and will not infringe any personʼs copyright or create any Claim;

(j) you will ensure that the Film is of a technical quality suitable and fully acceptable for international theatrical release, television broadcast and video distribution;

(k) the details in the Production Particulars are accurate and complete; (l) you have opened the Production Account prior to execution of this Agreement

and the details of the Production Account in the Finance and Film Asset Schedule are correct and complete;

(m) the Budget is adequate in all respects to complete the production of the Film to the standard required under this Agreement and to enable the production or purchase of the Delivery Materials,

(n) the Finance Plan is an accurate record of all sources of finance for the production of the Film;

(o) the terms and conditions of this Agreement have been approved by the Investors and any other relevant party as may be required under any Funding Agreement or Completion Guarantee;

(p) you will expend the Grant solely on the production and Marketing of the Film and in accordance with the Budget;

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(q) the SPV will complete the Film by the Completion Date, including by completing the production or purchase of the Delivery Materials;

(r) you will comply with all applicable laws relating to the production of the Film including all those relevant to the employment or engagement of personnel;

(s) you have obtained an interview release from each person interviewed for inclusion in the Film whereby each interviewee agrees that his/her story may be included in the Film and grants you the rights (including copyright) in the interview in all media throughout the world for the life of the copyright;

(t) if the Film incorporates Heritage of a particular Indigenous community, you have obtained: (1) a release from the appropriate representative of the Indigenous community whereby the representative agrees that the Heritage may be included in the Film; and (2) any other permissions, consents or releases from the appropriate representative of the Indigenous community where required having regard to the content of the Film (e.g., due to the inclusion of images and or footage of a deceased Indigenous person); and (3) an acknowledgment by the appropriate representative that the relevant Indigenous community does not have any rights (including copyright) or interest in the Film;

(u) you have entered into, or prior to the Completion Date will enter into enforceable agreements with Principal Personnel, with cast and crew and any other relevant person, for the use of location(s), for the clearance of all material incorporated into the Film (including any Archive Footage, Music, Selected Music, and any Work) and for the use of all material incorporated into the Marketing Material as is necessary for the production and Marketing of the Film throughout the world;

(v) in respect of moral rights, you have procured or prior to the Completion Date will procure the consents of the author(s) of the Work, the author(s) of the Script , the individual producer and director of the Film and author(s) of the Music (but not the Selected Music) to material alterations to the Script, the Film and the Music in accordance with the provisions of the Industry Accord and as necessary to produce the Film, and Market the Film throughout the world;

(w) if the Film is to incorporate a recording of a live performance, in respect of

performers moral rights, you have procured or will in a timely manner procure the consents of all of the performers included in each live performance in the Film to any treatment of the performance in the Film which could amount to a derogatory treatment within the meaning of Copyright Act 1968 (Cth);

(x) there is no inconsistency between the terms of this Agreement and any Funding Agreements, Marketing Agreements and, where applicable, Completion Guarantee;

(y) all copies of documents and agreements provided to us (including the Transaction Documents) are true, complete and in full force and effect and there is no uncured default by you or, to the best of your knowledge, by any other person under any of those agreements or documents;

(z) all reports including but not limited to the Cost Reports, Final Cost Report and the Marketing Reports which you are required to provide to Screen NSW under this Agreement will be accurate and complete;

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(aa) you have not and will not allow the creation of a Security Interest in the Copyright, except as provided in the Transaction Documents;

(bb) there is no subsisting uncured Event of Default. (cc) you will give us immediate written notice if you:

(I) become a party to any litigation, arbitration or similar proceedings:

(A) involving any Claim in relation to the Film Assets; and (B) otherwise involving a Claim in the sum of $20,000 or more; or

(ii) become aware of any Event of Default. (dd) you will consider all our recommendations and advice with respect to the

production of the Film in good faith.; (ee) you will meet any overage; (ff) you will apply any underage to the cost of the production and Marketing of the

Film; and (gg) the Producer will not enter into any Marketing Agreement which is

inconsistent with any of the rights or entitlements of Screen NSW granted under clause 16.3.

2.2 Each warranty, representation and undertaking set out in clause 2.1 is given on and

as at the date of this Agreement and deemed to be repeated as at the date on which each Installment is paid.

2.3 You will notify us in writing immediately on becoming aware of any actual, potential or

threatened breach of any of the above warranties, representations or undertakings . 2.4 If requested in writing by us, you must promptly provide us with duly executed copies

of any and all documents or agreements listed in clause 2.1(u), (v), (w) and (x). 2.5 Each warranty and representation made by you under clause 2.1 survives termination

of this Agreement for any reason. 3. SPECIAL CONDITIONS 3.1 You agree that the provisions set out in the Special Conditions Schedule apply to and

form part of this Agreement in the manner set out in the Special Conditions Schedule. 3.A SPV TO PRODUCE

3A.1 Right to produce (a) Screen NSW and Producer license the SPV to use the Film Assets to produce and

complete the Film subject to the terms of this Agreement. (b) The SPV must produce, complete and deliver the Film according to the terms of this

Agreement and any agreement entered into by the Producer or its licensees for

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Marketing the Film. The SPV must carry out or make all the arrangements for the carrying out of all activities necessary for the making of the Film within the meaning of section 376-65 of the ITAA.

(c) The interest of the SPV acquired by Clause 3A.1(a) is contractual only and does not

create any proprietary interest in the Film Assets in favour of the SPV.

3A.2 Artistic control The SPV controls the artistic and technical aspects of the Film, subject to the terms of this Agreement. 4. ICIP RIGHTS (IF APPLICABLE) 4.1 You and Screen NSW acknowledge the existence of ICIP Rights of Indigenous

participants in the Film. You agree and undertake to endeavour to ensure that the ICIP Rights of the Indigenous participants are respected and upheld in the production and all aspects of distribution of the Film.

4.2 In the event that you wish to include ICIP Rights material in the Film, the Producer

shall obtain a non-exclusive licence from the ICIP Rights holder/s or custodian/s to include such ICIP Rights material in the Film before the Completion Date;

4.3 If requested in writing by us, you must provide us with duly executed copies of each

non-exclusive licence referred to in clause 4.2 above. 4.4 In the event of a dispute regarding the ICIP Rights of any Indigenous participant in

the Film, you must act in good faith and use your best endeavours to resolve the dispute.

5. DELIVERY MATERIALS 5.1 You must provide to us the Screen NSW Delivery Materials within the time specified

in the Production Particulars Schedule. 5.2 You must provide to the NFSA the NFSA Delivery Materials and the Completion

Materials within the time specified in the Delivery Materials Schedule.

5.3 (If applicable) You must provide to your chosen Study Guide Provider the Study Guide Delivery Materials within the time specified in the Delivery Materials Schedule.

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6. PAYMENT AND THE PRODUCTION ACCOUNT 6.1 Subject to clause 7.1and to due compliance by you with the terms of this Agreement,

we agree to pay the Grant into the Production Account by Installments in accordance with the Drawdown Schedule set out in the Finance and Film Asset Schedule.

6.2 The Production Account must be used solely for the receipt and disbursement of the monies paid to the SPV for the purpose of producing and Marketing the Film in accordance with the Finance Plan and the Drawdown Schedule.

6.3 You must not:

(a) deposit your own money in the Production Account other than your investment in the Film (if any);

(b) transfer money in the Production Account to another account owned or operated by you; or

(c) deposit any money required by this Agreement to be deposited in the Production Account, in any other account.

6.4 The SPV must, and we may at any time and from time to time, nominate at least two

signatories each to the Production Account. The SPV must obtain our prior approval in writing of your signatories and any replacement signatories. Any two signatories (provided that they are signatories nominated or approved by us) may operate the Production Account provided that both signatories must sign for each transaction.

6.5 You must provide to us on our written request copies of any or all of the bank

statements for the Production Account 6.6 You must not establish a bank account other than the Production Account for the

purposes of the Film without our prior written consent. 6.7 All interest that accrues on money in the Production Account must be applied to the

cost of the production and Marketing of the Film. 6.8 Clause 6.2 through to clause 6.7 are subject to the requirements of the Funding

Agreements. 7. CONDITION PREDECENT TO SCREEN NSWʼS PAYMENT OBLIGATIONS 7.1 It is a condition precedent to Screen NSW paying any Installment that:

(a) each Transaction Document is provided to us and is fully executed by all parties on terms and in a form acceptable to us;

(b) if requested in writing by us, you provide us with a copy of an opinion at your cost in a form approved by us from a solicitor qualified in our opinion to give such an opinion, that the Producer has cleared all Underlying Rights and that the Producer is In a position to give the warranties, representations and

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undertakings in relation to the Underlying Rights set out in this Agreement; and

(c) there is no subsisting uncured Event of Default. 8. INTENTIONALLY DELETED 9. SCREEN NSWʼS APPROVAL RIGHTS 9.1 You must obtain our prior approval in respect of the following: (a) any amendment to any Transaction Document;

(b) any change to the Principal Personnel and, if applicable, proposed cast; (c) any reallocation of more than 20% of any budget category in the Budget; (d) any change to the Finance Plan; and (e) any change to the Production Schedule

9.2 Our approval as to any of the matters specified in clause 9.1 (or any other matter for

which our agreement, approval or consent is required under this Agreement) may be provided subject to conditions and is ineffective unless in writing. We shall not unreasonably withhold or delay our agreement, approval or consent.

10. PRODUCER OFFSET AND PRODUCTION OF THE FILM AS AN AUSTRALIAN

FILM (IF APPLICABLE) 10.1 If the Producer Offset forms part of the Finance Plan for the Film, you must:

(a) unless otherwise agreed by us, obtain and maintain the Provisional Certificate;

(b) ensure that the SPV produces and completes the Film in accordance with the Provisional Certificate;

(c) obtain the Final Certificate not more than six months after the Completion Date; and

(d) provide us with a copy of the Final Certificate promptly on receipt. 10.2 You must provide us on request, any information or documents relating to the issue

or proposed issue and maintenance of the Provisional Certificate and the Final Certificate.

11. SCREEN NSWʼS ACCOUNTING AND REPORTING RIGHTS 11.1 You must

(a) keep adequate and proper Records; (b) ensure your accounts are prepared according to the Corporations Act 2001

(Cth) and generally accepted Australian accounting principles; (c) ensure that the Records show a true and fair view of all of your transactions in

relation to the production and Marketing of the Film and of your financial and

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contractual position including, where applicable, your financial and contractual position in relation to the third parties listed as providing funding in the Finance Plan;

(d) organise and safely store the Records; and (e) upon reasonable notice from us, provide us or our nominees with unrestricted

access to, and copies of, the Records. 11.2 Within 5 days of the date specified for Rough Cut in the Production Particulars

Schedule you must ensure that the SPV provides us with a report of the expenditure of the Grant to date in an acceptable industry standard format (“Cost Report”).

11.3 Within 60 days after the Completion Date, you must give us:

(a) a report of expenditure of the Grant in an accepted industry standard cost report format (“Final Cost Report”); and

(b) statutory declarations made by each of the directors of the SPV in the form of the Statutory Declaration annexed to this Agreement

11.4 If the Final Cost Report discloses that part of the Grant remains unspent (“Unspent Component”), you must give us further expenditure reports at six (6) month intervals (commencing with a further expenditure report on the date which is six (6) months from the Completion Date) until the Unspent Component has been fully expended in accordance with the terms of this Agreement.

11.5 If requested in writing by us at any time following the Completion Date, you must procure and deliver to us at our cost a fully audited statement of the total production costs of the Film in accordance with the classifications of the Budget.

11.6 The auditor must be independent of you and both the auditor and the auditorʼs proposed fee must first be approved in writing by us

11.7 The audited statement must address the following matters:

(a) income and expenditure including, without limitation, sums payable and receivable concerning production of the Film (using the categories in the Budget) and a comparison of those sums with provisions in the Budget on an item by item basis;

(b) reconciliation of the Production Account; (c) assets, liabilities and investments acquired or incurred by you and any

Investors relating to production of the Film; (d) satisfaction of debtors and creditors of the production; (e) that purchased Production Assets have been disposed of at an arms length

price; (f) any overage or underage; the name of each recipient of a share of underage

and the sum received; (g) interest accrued on money in the Production Account; and (h) any gain realised from foreign currency movements.

11.8 The audited statement must be accompanied by the auditor's written opinion that the

statement represents a true and fair view of the matters contained in it. 11.9 The audit of the statement shall, on acceptance by us, be conclusive and binding on

the parties to this Agreement, unless there is manifest error.

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11.10 If you fail to provide us with an audited statement in compliance with this clause: (a) you agree that we may appoint an auditor to effect the audit at your cost; (b) you agree to provide us, any auditor appointed by us and any other nominee

of Screen NSW appointed for the purpose of this clause with unrestricted access to, and copies of, the Records for the purpose of this clause;

(c) in addition to our other rights under this Agreement and at law, we may cease any further scheduled payments of the Grant under this Agreement.

12. INSURANCE 12.1 You must effect and maintain the following with reputable insurers in relation to the

Film: (a) all usual and customary insurances that it would be prudent to obtain

concerning production of the Film; (b) any other insurance that Screen NSW may reasonably require. 12.2 If requested in writing by us, you must promptly provide us with receipts for payment

of all the insurances required by this Agreement and all cover notes and policies upon issue.

13. SCREEN NSW CREDITS 13.1 We must receive a full frame presentation credit in the opening titles of all copies of

the Film (whether positive or negative) and in the title block of any posters, in the order and containing the words set out in the Special Conditions Schedule.

13.2 We must receive full frame credits with logo in the end titles of all copies of the Film

(whether positive or negative) appearing immediately before the copyright notice, in the order and containing the words set out in the Special Conditions Schedule.

13.3 Subject to clause 13.4, our logo, conforming to the standard artwork, must appear in

all advertising and promotional material for the Film, including websites, theatrical posters, theatrical trailers, press releases, DVD and video sleeves and soundtrack album covers.

13.4 You are not obliged to accord our credit in television and radio commercials;

newspaper and magazine advertisements less than ten column centimetres in length; or materials dealing exclusively with the promotion of individuals concerned in the making of the Film.

13.5 Our credit and logo is to be no smaller than the credit and logo of any Investors. 13.6 Before the completion of the titles of the Film, the you must provide in writing to

Screen NSW the full credit roll for approval of Screen NSW credits. 13.7 Before completion of the titles of the Film, we may direct you to remove our credits

from the Film and not to use our name and logo in advertising and promotion of the Film.

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13.8 You must acknowledge our role in financing the Film in any interviews, press

conferences, industry events including award nights, or other promotional or press meetings in which the Film is discussed.

14. OWNERSHIP OF FILM ASSETS 14.1 Upon payment of the first Installment, the Producer assigns to us the proportion of

the Film Assets of the Film Assets (if any) as is specified in the Finance and Film Asset Schedule.

14.2 Upon the assignment described in clause 14.1, the Producer and we and any other

Investor who has an entitlement to the Film Assets of the Film (if any), own the Film Assets as tenants in common.

14.3 Where applicable, we must be named as a copyright owner in all notices of

Copyright. 14.4 We (to the extent of our interest therein) grant the Producer an exclusive licence to

use the Copyright throughout the world to produce and complete the Film subject to the terms of this Agreement.

14.5 The Producer must take or ensure that sublicensees take all reasonable steps to

register, maintain, prosecute infringements of and defend Claims in respect of the Copyright.

14.6 You must immediately notify us in writing if you become aware of any Claim with

respect to the Film Assets and provide us with further information in relation to such a Claim upon our written request.

14.7 You must not settle any Claim relating to the Film Assets without our prior written

consent. 14.8 You must register and obtain an ISAN for the Film. 15. FILM INCOME 15.1 We agree that as between you and us, the Producer is entitled to retain any income

from the Marketing of the Film. 16. MARKETING THE FILM 16.1

(a) Subject to clause 16.3, we grant the Producer an exclusive licence of the Copyright throughout the world to Market the Film.

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(b) the exclusive licence for Marketing the Film commences on the date of this

Agreement and, subject to this Agreement, continues until the expiration of the term of the Copyright.

16.2 The Producer must Market the Film to maximum commercial advantage consistent

with good business judgment and sound commercial practice. 16.3 Subject to any necessary approvals or contractual restrictions of cast in relation to

any copyright work or other subject matter included in the Film, as notified by you to Screen NSW in writing, you agree that: (a) we may use excerpts from the Film or the whole of the Film, and the

Marketing Materials, for our own corporate, promotional or educational purposes including, without limitation, for showreels and Parliamentary screenings;

(b) Screen NSW may require access to the Marketing Materials (including,

without limitation, still photographs) before or after completion of the Film for the purposes of this clause.

16.4 You must give us reasonable prior notice of any film festival screening of the Film. 16.5 You agree to keep us informed about the organisation of, and invite us to attend, the

Australian premiere of the Film. 16.6 (a) The Producer must deliver to us a report relating to the Marketing of the Film

(“Marketing Report”), the first such report being due on 31 January or 31 July, whichever occurs first after delivery of the Film and thereafter future reports due at 12 monthly intervals for a period of 2 years.

(b) Each Marketing Report must include, in respect of the period to which the Marketing Report relates: (i) a statement of total revenue received or receivable in respect of the

Marketing of the Film; (ii) details of any selection or entry of the Film for any film festival, film

market, season or exhibition; and (iii) a summary of the terms of any new Marketing Agreement entered

into. 17. INDEMNITY 17.1 You must indemnify us and keep us indemnified on demand against:

(a) any Claim arising from breach by you of any warranty or any other term of this Agreement or from any Event of Default; and

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(b) without limiting paragraph (a) of this clause, any legal costs and expenses incurred by us in respect of breach by you of any warranty or other term of this Agreement or in respect of the occurrence of any Event of Default.

17.2 This indemnity survives termination of this Agreement for any reason. 18. REMEDY OF AN EVENT OF DEFAULT 18.1 If in our opinion an Event of Default can be rectified, we may give written notice to

you specifying the Event of Default and requiring you to rectify the Event of Default within fourteen (14) days of the date of the notice or within such longer period as is specified in the notice.

19. DEFAULT AND TERMINATION 19.1 If an Event of Default is incapable of rectification in our opinion or if you fail to rectify

an Event of Default within the time required by any notice given in accordance with Clause 18.1, we may, by written notice to you, terminate this Agreement with immediate effect.

19.2 If this Agreement is terminated by us under clause 19.1, in addition to any other

remedies available to us at law or in equity, upon termination:

(a) we will cease any further scheduled payments of the Grant under this Agreement; and

(b) you must pay to us within fourteen (14) days of a demand in writing by us an

amount equal to that part of the Grant which we had paid to the SPV up to the date of any notice of termination and any other amount to which we are entitled under this Agreement.

20. GENERAL PROVISIONS 20.1 Nothing in this Agreement constitutes a partnership between us or renders one of us

liable for any debt or obligation of the other. 20.2 You must not enter into any contract nor incur any liability on our behalf, nor

represent that you have authority to do so. 20.3 The failure of one of us to rely on or enforce a provision of this Agreement must not

be construed as a waiver by that party of its right to subsequently rely on or enforce that provision.

20.4 (a) Subject to clause 20.4(b), each party must keep the terms of this Agreement

confidential and not disclose such terms without the prior written consent of the other party, except as required by law. Where a party considers that it is bound to disclose terms of this Agreement by law, it must first inform the other party and comply with any reasonable request of the other party in relation to the disclosure.

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(b) You may disclose the terms of this Agreement to any Investor.

20.5 This Agreement may only be varied in writing and signed by the parties. 20.6 This Agreement will bind and continue for the benefit of you, us, and any of our

executors, administrators, successors and permitted assigns. 20.7 You must not assign or agree to assign any of your benefits, rights, powers, duties or

obligations under this Agreement without our prior written consent. 20.8 You must pay any stamp duty or other duty payable in respect of this Agreement

promptly upon its execution, and give us evidence of such payment on request.

20.9 This Agreement may be executed in any number of counterparts and all such counterparts taken together must be deemed to constitute one and the same instrument.

20.10 This Agreement supersedes all prior agreements, representations negotiations, and

correspondence with respect to the transactions contemplated in this Agreement and comprises the entire agreement between us.

20.11 Any written notice, document, or other communication to be served or made to a

party must be made in accordance with the Notice Schedule. 21. GOVERNING LAW 21.1 Our rights and obligations under this Agreement will be governed by and construed in

accordance with the law of the State of New South Wales and the parties agree to submit to the jurisdiction of the courts of that State in all such matters.

22. GST 22.1 The parties agree that all amounts referred to in this Agreement are exclusive of

GST. 22.2 If GST is imposed upon any supply made under this Agreement ("Taxable Supply")

then the recipient of the Taxable Supply will pay to the supplier, in addition to any consideration payable for that Taxable Supply under this Agreement (the "Consideration"), the amount of GST imposed upon the Taxable Supply.

22.3 Any increased amount under Clause 22.2 will be payable to the supplier in the same

manner and at the same time as the Consideration is payable to the supplier, provided that the recipient has received from the supplier a tax invoice in the form required by the GST legislation, setting out the amount of GST payable by the supplier on the Taxable Supply, and evidence of the supplier's registration for the purposes of GST. In all cases, any increased amount under Clause 22.2 must be paid within 14 days of receipt of such tax invoice.

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THIS AGREEMENT is dated 20XX EXECUTED for and on behalf of ) NEW SOUTH WALES FILM AND ) TELEVISION OFFICE ) trading as SCREEN NSW ) by its duly authorised officer ) in the presence of: ) Chief Executive Witness Name of Chief Executive Print name EXECUTED as an Agreement ) by [PRODUCER] ABN XXXX ) in accordance with s127 of the ) Corporations Act 2001 in the presence of ) --------------------------------------- ) Director --------------------------------------- ) Director/secretary ) EXECUTED as an Agreement ) by [SPV] ABN XXXX ) in accordance with s127 of the ) Corporations Act 2001 in the presence of ) --------------------------------------- ) Director --------------------------------------- ) Director/secretary )