The Exhibitor (Jun-Nov 1944)

THE EXHIBITOR 17 Loew's Contract ( Continued from preceding page ) tures hereunder (and, if Loew's elects, also under any or all such other contracts) pending compliance by Exhibitor. Said remedies shall be in addition to and without prejudice to any right or remedy Loew's has at law, in equity, or provided for elsewhere in this agreement, on account of any such violation or breach. If Exhibitor fails or refuses to pay any license fee due under this or any such other contract, Loew's may declare such failure or refusal a breach of this entire contract, or, a breach of this and such other contract(s) and Loew's shall then have the right to recover as damages therefor the amount payable as license fees of all pictures so cancelled and not therefore exhibited and paid for. If Loew's wilfully fails or refuses to deliver any picture licensed here¬ under, the amount of damages which may be claimed or awarded therefor in any litigation or arbitration shall in no event exceed the license fee herein pro¬ vided therefor. As to any picture licensed, or desig¬ nated, on guarantee against a participation in re¬ ceipts, said damage shall not exceed such guaran¬ tee; and as to a picture on straight percentage, the damage may not exceed an amount to be determined as provided under "Liquidated Damages." XVI. PREVENTION OF PERFORMANCE. If Exhibitor is prevented from exhibiting, or Loew's from deliver¬ ing, any of said pictures for any cause beyond its direct control this license in respect to each such picture shall terminate and revert to Loew's without liability on the part of either party, if written notice of such prevention and its cause is given within a reasonable time, thereafter; provided that if non¬ performance by Exhibitor for any such cause con¬ tinues thirty (30) days or more either party may terminate this agreement. XVII. PARTICIPATING PICTURES. All money ac¬ cruing to Loew's as its share of the receipts of any participating picture shall be held by Exhibitor in trust for Loew's. Exhibitor agrees to furnish im¬ mediately after the end of the engagement of each participating picture a boxoffice statement showing the number of admissions at the respective prices charged at each performance and the number of free admissions, on forms furnished by Loew's and signed by Exhibitor's cashier and countersigned by Exhibitor or the manager. At all times upon such date(s) Loew's may check the sale of tickets and all receipts therefrom, for which purpose Loew's representatives shall have free access to all parts of the theatre and premises including the boxoffice and may examine all ticket machines and devices, tickets and stubs, and all entries in Exhibitor's books and records pertaining to the receipts of each such picture. Loew's will instruct the checker to leave at the theatre a copy of each boxoffice statement which has been signed by the checker and by or for Ex¬ hibitor; and if such copy is not left will furnish it upon written request made promptly after the engagement by Exhibitor. Loew's may, also, audit at any time after conclusion of its engagement all Exhibitor's books and records pertaining to or useful in determining the correct and accurate receipts of each participating picture, and also Exhibitor's books and records concerning Exhibitor's operating ex¬ pense if it is an element in computing the license fee. In computing operating expense all income — such as Exhibitor's returns from renting and sub renting space in the building — shall be deducted from such expense. LIQUIDATED DAMAGES. If Ex¬ hibitor fails or refuses to exhibit any participating picture as provided in this contract Exhibitor shall pay as to each such picture, as liquidated damages for each day it should have been exhibited (in addition to any fixed sums payable in respect to such picture) a sum equal to the percentage specified in the Schedule, or designated by Loew's, of the theatre's average daily gross receipts during the exhibition thereof of all of Loew's participating pic¬ tures during the ninety (90) days prior to the date of such failure or refusal. If none of Loew's fea¬ tures were exhibited thereat on participating basis during such period, the average to be used shall be the theatre's average daily gross receipts during the 30 operating days prior to the date of such failure or refusal. XVIII. GENERAL RELEASE means the public ex¬ hibition of a picture under license by Loew's (except any roadshow, tryout, preview or pre-release ex¬ hibition) at any theatre in the territory served by the Exchange for 3 consecutive days, at such the¬ atre's usual admission prices. Loew's agrees that each of said pictures shall be generally released not later than 8 months from the date of this applica¬ tion; and that each shall be made available as provided in this agreement but not later in any event than 18 months after its general release in said territory. XIX. WAIVER. The waiver by either party of any breach or default by the other shall not be construed as a waiver of any other or subsequent breach or default by such other party. XX. ACCEPTANCE OF APPLICATION. This instru¬ ment is only an application for license, and not binding until accepted in writing without alteration by an officer of or any person duly authorized by Loew's and notice of acceptance sent Exhibitor as herein provided. Acceptance or deposit of any check or other consideration given by Exhibitor, or delivery of a print or sending of notice of availability, or furnishing of accessories, shall not be deemed ac¬ ceptance hereof. Unless notice of acceptance is sent Exhibitor by mail or telegraph within 15 days after date hereof if the theatre is located east of the Mississippi River, or 30 days after date hereof if west of said River, this application shall be deemed withdrawn. Upon acceptance as above provided, a duplicate copy signed by Loew's shall be for¬ warded Exhibitor. Approval or rejecion of this application shall not be deemed an approval or re Schine Case Starts BUFFALO — After being postponed three times, the Schine trial was scheduled to get under way here yes¬ terday (Sept. 26) before Federal Judge John Knight. Although not parties to the Schine action, John Caskey and Frederick Lorenzen are attending the hearings on behalf of RKO, 20th Century-Fox, Warners, MGM, and Paramount. During the first week of the trial, it is expected that among the witnesses will be Richard Morgan, Paramount attorney; William Zimmerman, RKO; Felix Jenkins, 20th Century-Fox; E. M. Saunders, MGM, and H. M. Doh¬ erty, Warner auditor. MEETING ALL TRAINS New York — Enrique Baez, general man¬ ager for UA in Brazil, left last week for his post in Rio de Janeiro, following con¬ ferences with home office foreign execu¬ tives. New York — G. L. Carrington, president, Altec Service, was enroute last week from the coast to visit the general offices. New York — Irving Rapper, Warner di¬ rector, who just completed “Rhapsody In Blue,” arrived last week from Hollywood. New York — Ben Kalmenson, general sales manager for Warners, returned last week from a midwestern and southern tour. New York — I. F. Dolid, supervisor of ex¬ changes for Warners, returned last week from Pittsburgh. Goldman, Greenblatt Feted Pittsburgh — The Variety Club will hold a farewell testimonial dinner in honor of Mark Goldman and Herb Greenblatt on Oct. 2. Greenblatt, branch manager for RKO here, recently became midwestern district manager, and Goldman, who was at one time head of Monarch Pictures here, was recently appointed district manager for PRC. jection of any other application signed by Exhibitor at the same or at any other time. XXI. THIS CONTRACT IS COMPLETE AND NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE BY EITHER PARTY TO THE OTHER EXCEPT AS SET FORTH HEREIN. ACCORDING TO Universal, which supplied the photographic department with this picture iast week, the above represents A. R. Bender, owner, Melba, Cleveland, Okla., whose claim to fame is that for 23 years he has been signing U contracts. He enjoys amateur photography, U says. C. V. HAKE RESIGNS PITTS. 20TH-F0X POST Pittsburgh — C. V. Hake last week an¬ nounced his resignation as branch man¬ ager for 20th Century-Fox effective the end of this month. He has been with the company 18 years, mostly in the foreign department. He is expected to go into business for himself. Suceeding him will be Herman Beiersdorf, midwestern district manager. Jack Lorentz, who recently was succeeded as Milwaukee branch manager by Harold Beecroft, former special representative, and transferred to the home office, be¬ comes Beiersdorf’s successor. Astra Examinations Due New York — Martin Licht and Oliver Unger, Astra Corporation, will be ex¬ amined before trial on Sept. 28, according to stipulation filed in New York Federal court last week. The examinations are in connection with a $250,000 suit brought by Astra Pic¬ tures, Inc. against David O. Selznick, Dan¬ iel T. O’Shea, Ernest L. Scanlon, and Ray¬ mond A. Clune for alleged breach of con¬ tract involving the distribution rights to three pictures. Patterson An Ambassador Washington — Richard C. Patterson, Jr., had his nomination as Ambassador to the Yugoslavia Government in exile, in Lon¬ don, approved by the Senate last week. Patterson is vice-chairman, RKO Cor¬ poration board, and a member of the boards of RKO Radio and RKO Pathe News. He was formerly Commissioner of Cor¬ rection of New York, executive vice-presi¬ dent of NBC, and Assistant U. S. Secretary of Commerce. Texas Variety Aids Boys Dallas — James O. Cherry, Chief Barker, announced last week that proceeds from Variety Club of Texas’ fifth annual durtle derby, estimated to total $85,000, will be added to proceeds from other sources, and put into a Variety Club Foundation to assure the perpetuity of Boys’ Ranch of Copperas Cove, now able to handle 25 boys. Exactly 1,214 additional acres of land have been recently purchased by the Club and others deeded to the ranch, which will be extended to take care of 60 youngsters, and, in time, extend its services nationally. Golden, Smith Speak Washington — It was learned last week that Allen C. Smith, WPB theatre special¬ ist, and Nathan D. Golden, Department of Commerce picture officer, would attend the Chicago meeting of the Theatre Equipment Dealers Protective Association on Oct. 6-8. The situation on materials for equipment manufacture will be explained by Smith, while Golden will tell of the outlook for foreign business. Miss de Havilland Denied Los Angeles — An injunction to restrain Warners from interfering with her right to work for other studios was denied Olivia de Havilland last week by the Distict Court of Appeals. Her contract with War¬ ners has not expired. September 27, 1944