THIS AGREEMENT is made the 11th day of October 1996
but is effective as of the first day of September 0000
X X X X X X X
(1) BMG ENTERTAINMENT INTERNATIONAL UK & IRELAND LIMITED of
Bedford House 00-00 Xxxxxx Xxxx Xxxxxx Xxxxxx XX0 0XX
(hereinafter called "BMG" which expression shall include its
successors and assigns) and
(2) The Company whose name address and company number are set out
in paragraph 1 of the Schedule hereto (hereinafter called "Company"
which expression shall include its successors and assigns)
WHEREAS
(1) BMG provides distribution services in relation to audio and
audio-visual products and
(2) The Company wishes to avail itself of such distribution services on
the terms and conditions herein set out
N O W I T I S H E R E B Y A G R E E D as follows:
1. DEFINITIONS
The following terms shall have the meanings set out herein:
1.1 "Affiliate of Company" shall mean Company's successors in title and
any company firm person or record label which is directly or indirectly
owned or controlled in whole or in part by Company and at BMG's
election every company firm or person which is directly or indirectly
owned or controlled in whole or in part by any person who directly or
indirectly owns or controls Company in whole or in part.
1.2 "Applicable Fees" shall mean such fees as are set out in the
Schedule hereto in respect of distribution services rendered hereunder by BMG
to Company.
1.3 "BMG Distribution Centre" shall mean the premises at Xxxx Xxxx
Xxxx Xxxxxxxx Xxxx Xxxxxxxx Xxxxxxx from which BMG operates its distribution
services.
1.4 "Company Records" shall mean each Record derived in whole or in
part from any Master Recording now or hereafter owned or controlled
by Company or by any Affiliate of Company for the Territory during
the Term and/or comprised in the catalogue of any third party in
relation to which Company has any license or agreement relating to
the release or distribution of Records during the Term
1.5 "Company Videograms" shall mean each Videogram derived in whole
or in part from any Master Recording now or hereafter owned or
controlled by Company or by any Affiliate of Company for the
Territory during the Term and/or comprised in the catalogue of any
third party in relation to which Company has any license or agreement
relating to the release or distribution of Videograms during the Term
1.6 "Contract Year" shall mean each period of twelve months
commencing on the first day of the Term hereof and thereafter
commencing on the yearly anniversary of each such day.
1.7 "Customer" and "Customer Accounts" shall mean respectively
(a) each retailer and wholesaler or any other party (including without
limitation Company) to whom Company Records are shipped hereunder and
(b) each account maintained and held by BMG in relation thereto
1.8 "Dealer Price" shall mean the Company's list price as advised by
Company to BMG from time to time during the Term and showing the
price at which each Company Record (or such Records if more than
one such Record is packaged together) is available for sale in the
Territory before deducting any discounts but after deducting any sales
or other taxes levied on sales which form a recognized distinct
element of such price and which are recoverable directly or indirectly
as part of the selling price.
1.9 "Deletions" shall mean Company Records and Company Videograms
deleted from Company's catalogue PROVIDED THAT no Company
Record and/or Company Videogram shall be treated as a Deletion
hereunder unless the retail trade and BMG have been notified in
writing of such deletion at the same time by Company.
1.10 "File Discounts" shall mean discounts which are negotiated by
Company with its major retail and wholesale customers and which are
notified by Company to BMG in writing and maintained by BMG from
time to time on its computer file programme.
1.11 "Gross Invoice Value" shall mean the gross value of sales of
Company Records and, Company Videograms at Dealer Price.
1.12 "LP" and "Company LP" shall mean respectively a Record and a
Company Record (other than a Single) played at 33 1/3 rpm in
double-sided disc form twelve inches in diameter (and the cassette
compact disc or other equivalent thereof).
1.13 "Line" shall mean each Company Record and Company Videogram
referable to a catalogue number designated by. Company.
1.14 "Master Recording" shall mean the original material object in which
sounds with or without visual images comprising the material of any
Record or Company Record or Videogram or Company Videogram are
fixed by any method now known or later developed.
1.15 "Net Invoice Value" shall mean the Gross Invoice Value less the value
of applicable File Discounts.
1.16 Intentionally Deleted
1.17 "Overstocks" shall mean those Company Records and Company
Videograms which exceed the Required Stock Level (as defined in
clause 3.10 hereof) and in relation to which certain charges shall be
made all as more particularly described in clause 3.10 hereof
1.18 "Pledge" shall mean the letter of Pledge as set out in Schedule 2
attached.
1.19 "Privileged Returns" shall mean returns of Company Records and/or
Company Videograms (not being faulty or damaged returns or returns
of Company Records and/or Company Videograms sent in error)
which are permitted by virtue of a Privileged Returns scheme
operated by Company with respect to Customers but only in the case
where details of such scheme shall first have been supplied by
Company to BMG in writing prior to the commencement of the Term
hereof. Notwithstanding the foregoing in the event that Company
does not operate such a scheme or details of such scheme have not
been supplied by Company to BMG in writing prior to the
commencement of the Term then at BMG's election "Privileged
Returns" shall; mean returns of Company Records and/or Company
Videograms (not being faulty or damaged returns or returns of
Company Records and/or Company Videograms sent in error) which
are permitted by virtue of any Privileged Returns scheme operated by
BMG with respect to Customers.
1.20 "Promotional Record Account" shall mean an account which will be
debited with the value of such Company Records and/or Company
Videograms as are supplied to Company for the purpose of promoting
sales of further Company Records and/or Company Videograms and
in relation to which an Applicable Fee will be charged pursuant to
paragraph 5 of the Schedule hereto.
1.21 "Record" shall mean any reproduction of a Master Recording in any
currently available form or any which may later be developed and in
which sounds with or without visual images can be perceived reproduced or
otherwise communicated either directly or with the aid of a machine or other
device including but not limited to vinyl discs (whether in LP or Single
form), audio tapes and compact discs and which shall be technically suitable
for release to the public. For the avoidance of doubt such definition shall
not include Videograms as hereinafter defined.
1.22 "Single" and "Company Single" shall mean respectively a Record and
Company Record (45 or 33 1/3 I pm) in double-sided disc form (including
so-called EPs) which is not an LP and which is seven or twelve inches in
diameter and the cassette and compact disc equivalent thereof.
1.23 "Stock Transfer Charge" shall mean the charge for picking packing and
despatching Overstocks or any other quantities of Company Records or Company
Videograms designated by BMG as stock transfers and subject to a Stock
Transfer Charge prior to returning the same to Company or destroying the same
and set out at paragraph 7 of the Schedule hereto.
1.24 "Term" shall mean the period set out in paragraph 2 of the Schedule
hereto subject to the provisions hereof relating to extension of the Term and
to termination of the agreement.
1.25 "Territory" shall mean the United Kingdom of Great Britain including
Northern Ireland, the Channel Islands, and the Isle of Man.
1.26 "Videogram" shall mean all devices whether now known or hereafter
devised by which audio-visual performances can be perceived reproduced or
otherwise communicated either directly with the aid of a machine or by other
means whether with or without sound and including for the avoidance of doubt
all laser optical formats including without limitation CDV and laser disc.
2. GRANT OF RIGHTS
2.1 Company hereby grants to BMG the sole and exclusive right during
the Term and in the Territory (as Company's sole agent) to distribute Company
Records and Company Videograms hereunder to Customers. To this end and in
connection with such grant of rights Company hereby acknowledges that BMG
shall have the exclusive right (as Company's sole agent) to invoice all
Customers in relation to all supplies of Company Records and Company
Videograms PROVIDED THAT nothing shall compel BMG to distribute Company
Records or Company Videograms to any Customer who is subject to
a credit referral by BMG s credit control department and/or with
whom in any circumstances BMG does not wish to trade.
2.2 For the avoidance of doubt Company shall undertake all selling,
marketing and promotion of Company Records and Company Videograms and Company
shall utilize its own sales representatives for the purposes of soliciting
orders of Company Records and Company Videograms which orders shall then be
submitted by Company to BMG in accordance with the terms hereof. BMG
confirms that BMG's Retail Services operation may be used for the purposes of
receiving orders for Company Records and Company Videograms. No Company
Record or Company Videogram sold by Company's sales force may be sold for
cash.
2.3.1 Subject as provided herein BMG shall provide a distribution service
for Company Records and Company Videograms comparable to that provided by BMG
for Records and Videograms distributed for its own account or any of its
other distributed labels and such service shall include storing, handling,
invoicing, picking, packing, delivery and reasonable commercial endeavors
(not including commencement of legal proceedings) to collect monies when due.
2.4 In consideration of the services of BMG to be rendered to Company as
herein provided Company shall pay to BMG the Applicable Fees namely
(a) the domestic fee set out at paragraph 3 of the Schedule in respect of
distribution of Company Records and Company Videograms to each Customer
(b) Intentionally deleted.
(c) the fee set out at paragraph 6 of the Schedule in respect of Company
Records and Company Videograms distributed and allocated to the Promotional
Record Account and
(d) the Stock Transfer Charge set out at paragraph 7 of the Schedule in
respect of stock transfers of Company Records and Company Videograms
(e) a fee of 14p in respect of music cassettes (MC) and 24p in respect of
CD's for each MC or CD case corresponding to Company Records which BMG changes
in respect of Company Records returned to BMG by reason of standard cases of
the same being cracked but otherwise in saleable condition
The Applicable Fee set out in (a) above shall be calculated on the Gross
Invoice Value of Company Records and Company Videograms shipped during the
month relating to which the Applicable Fees are charged. The Applicable Fees
set out in (c) and (d) above shall be calculated on the Dealer Price of each
Company Record and Company Videogram in respect of which such Applicable Fees
are charged.
2.5 Such Applicable Fees and any other deductions specified herein shall
be deducted from sums paid by or collected from Customers by BMG in respect
of Company Records and Company Videograms distributed to them by BMG on behalf
of Company.
2.6 The rights hereby granted shall not be interpreted in any manner which
may directly or indirectly contravene or conflict with the principles of the
Treaty of Rome 1957, nor with any applicable decisions, rules provisions or
other legislation binding the United Kingdom as a member of the European
Economic Community together with any resulting legislation within the United
Kingdom.
2.7 The coming into effect of this Agreement is conditional upon the
Company executing and delivering to BMG a Pledge in the form attached as
Schedule 2.
3. STOCK
3.1 Company shall supply to BMG during the Term stocks of Company
Records and Company Videograms in their sleeves or other packaging
together with all inserts which shall for the avoidance of doubt
already be inserted in such packaging together with any point-of-sale
or other material intended for distribution to Customers.
3.2 Company shall be solely responsible for monitoring stock levels of
Company Records and Company Videograms and shall ensure that BMG at all times
has adequate supplies thereof to fulfil demand therefor.
3.3.1 The stock risk in Company Records and Company Videograms and
point of sale/marketing materials shall pass to BMG upon delivery of
the same to BMG's storage racks and BMG's liability shall be limited
as hereunder provided and in particular shall be limited to the extent
of the insurance cover afforded BMG as provided under sub-clause 3.5 hereof.
3.3.2 Title to the Property in Company Records and Company Videograms
shall remain vested in Company up to the point at which such Title passes to
Customers by virtue of the exercise by BMG of its rights hereunder as
Company's agent and subject to BMG's rights under this Agreement and in
particular (but without limitation) sub-clause 3.11 hereof and BMG's rights
under the Pledge.
3.3.3 For the avoidance of doubt Company hereby irrevocably appoints
BMG as its sole duly authorized agent for all-purposes connected with
the rights granted to BMG by Company under this Agreement and without
limiting the foregoing Company irrevocably appoints BMG as its sole authorized
agent for the purposes of passing Title to the property in Company Records and
Company Videograms to Customers in accordance with BMG's Terms and Conditions
of Sale (from time to time) and (if applicable) in accordance with the terms
and conditions of the Pledge.
3.4 No payment shall be due from BMG in respect of any Company Record or
Company Videogram which is not invoiced by BMG or is invoiced and returned.
3.5 BMG shall procure that Company Records and Company Videograms stored at
the BMG Distribution Centre are insured under any comprehensive BMG policy
covering Records, Videograms and such other materials including packaging as
aforesaid. In the event that any Company Records and/or Company Videograms
shall be lost or damaged in transit by any carrier for BMG then BMG shall
ensure that Company shall have the same remedies against such carrier as BMG
would have had if Company Records lost or destroyed had been Records
distributed by BMG for its own account.
3.6 BMG shall maintain accurate stock information relating to Company
Records and Company Videograms and shall promptly prepare and supply to
Company free of charge any-sales and inventory or other reports as are
routinely available to any of BMG's distributed labels. Any other data or
reporting systems required by the Company shall be provided at the discretion
of BMG and at Company's cost.
3.7 Company shall be permitted once in each Contract Year of the Term at
reasonable times during normal working days to check the stock held at BMG's
Distribution Centre provided it shall have given BMG reasonable notice of its
intention to do so and provided that no disruption to BMG's distribution
services shall be caused thereby.
3.8 BMG shall once in each Contract Year of the Term undertake a
physical check of stock and a representative of Company shall be entitled to
attend such stock check.
3.9 Finished stock discrepancies (including sleeves and printed labels)
exceeding one percent (1 %) of the total of gross shipments of Company
Records and Company Videograms during each Contract Year (and pro-rata for any
period of less than one year at the end of the Term) shall be credited to
Company. Such credit shall be based on the manufacturing price in effect at
the end of the applicable Contract Year and shall be accounted for to Company
in the Accounting (as hereinafter defined) in respect of the final month of
each such Contract Year (or the last month of the Term as the case may be).
3.10 Stock Review: Overstocks and Deletions
3.10.1 The parties hereto shall undertake a calendar monthly sales
performance review of each Line distributed by BMG hereunder in the
manner set out below and Company shall adjust its stocks of Company Records
and Company Videograms at BMG's Distribution Centre in accordance with the
findings of each such review as follows:
Each calendar month following the expiry of two (2) months after the release
of each Company Record and Company Videogram, BMG and Company shall review
the preceding eight weeks' sales, together with the level of stocks held by
BMG of such Company Records and Company Videograms. Such information shall be
processed by BMG's computer systems which will assess (by applying a weighted
average to previous sales achieved) the necessary level of stocks for the six
(6) months ensuing each such monthly review, such stock level being referred
to as "the Required Stock Level". Stocks of such Company Records and Company
Videograms held or received by or at BMG's Distribution Centre subsequent to
each such review and which exceed the Required Stock Level (ie. Overstocks)
shall be subject to a pick-slot rental fee charged per month on the following
basis. For the purpose of computing such pick-slot rental fee Overstocks in
respect of each Line shall be notionally divided into sections of up to
one thousand five hundred (1,500) units each ("the Overstock Sections")
(a) If the number of Company Records and Company Videograms within each
Overstock Section numbers between one (1) and one hundred and fifty (150)
then such Overstock Section shall be subject to a charge of two pounds and
twenty xxxxx (L2.20) per month.
(b) If the number of Company Records and Company Videograms within each
Overstock Section numbers between one hundred and fifty one (151) and six
hundred (600) then such Overstock Section shall be subject to a charge of
four pounds and forty xxxxx (L4.40) per month.
(c) If the number of Company Records and Company Videograms within each
Overstock Section numbers between six hundred and one (601 ) and one thousand
five hundred (1,500) (in the case of Company Records (and one thousand
(1,000) in the case of Company Videograms)) then such Overstock Section shall
be subject to a charge of six pounds and sixty xxxxx (L6.60) per month.
(d) By way of example of the foregoing, if one thousand seven hundred (1,700)
Company Records within a particular Line are Overstocks then the fee charged
shall be six pounds sixty (L6.60) per month in respect of the first Overstock
Section of one thousand five hundred (1,500) units, and four pounds forty
(L4.40) per month in respect of the second Overstock Section of two hundred
(200) units, making a total pick slot rental fee of eleven pounds (L11.00)
per month in respect of such Line.
(e) If Company shall instruct BMG to remove Overstocks (or Deletions as the
case may be) to a location other than the BMG Distribution Centre, then the
"Stock Transfer Charge" set out at paragraph 7 of the Schedule shall be made
in respect of each unit of Company Records and/or Company Videograms handled
by BMG as an Overstock or Deletion. BMG shall not be obliged to comply with
any instruction in-this regard which shall in BMG's opinion be likely to
result in any breach of the terms of this agreement.
The rates set out in this clause may be increased by BMG once during each
Calendar Year of the Term and upon written notice.
3.10.2 Overstocks and Deletions may be destroyed by BMG either upon Company's
written instruction or at BMG's election following thirty (30) days from
BMG's notification to Company of its intention to destroy the same PROVIDED
THAT Company has not notified BMG in writing of its intention to sell
Overstocks or Deletions at a reduced Dealer Price or to remove such Overstocks
or Deletions elsewhere. Such removal must occur promptly following Company's
notification of its intention to do so and shall be subject to the provisions
of paragraph (e) above.
3.11 Without prejudice to BMG's rights under the Pledge at the end of the
Term (whether by effluxion of time or otherwise) Company shall within thirty
(30) days thereof collect all remaining unsold stocks of Company Records and
Company Videograms together with any promotional material of any description
held by BMG SUBJECT TO any lien which BMG may elect to exercise over such
unsold stocks in respect of any debts due from Company to BMG or to any other
company within the BMG Group of companies. (For the avoidance of doubt, if
BMG exercises its lien aforesaid Company hereby grants BMG the right to sell
such unsold stocks and to apply the proceeds from such sale against sums owed
by Company to BMG or a Company within the BMG Group of Companies aforesaid.)
BMG shall be entitled at the end of such thirty (30) day period to destroy
such remaining unsold and uncollected stocks of Company Records and Company
Videograms without further notice and with no liability to Company.
3.12 Accurate records of any Company Records and Company Videograms destroyed
by BMG pursuant to the terms hereof shall be maintained by BMG and an
affidavit of destruction shall be supplied to Company upon request.
3.13 Company shall keep true and accurate records of all transactions
relating to Overstocks and Deletions and shall permit BMG or any firm
of chartered accountants nominated by BMG to inspect and verify such records
and to take copies thereof at any time during usual business hours during the
Term (but no more than twice during each period of twelve (12) months) and
once within a period of twelve (12) months following the expiration of the
Term
4. CONDITIONS OF SALE OF COMPANY RECORDS AND COMPANY VIDEOGRAMS
4.1 Subject as hereinafter provided Company agrees that all Company Records
and Company Videograms shall be distributed and supplied to Customers by BMG
hereunder pursuant to BMG's Standard Terms and Conditions of Sale a copy of
which is annexed hereto.
4.2 No liability is accepted by BMG in respect of Company Records or Company
Videograms which are sold by any agent of Company (excluding BMG) or other
third party on terms which differ from those set out herein.
4.3 Company shall designate in writing prior to the pre-release distribution
of any Company Record or Company Videogram the Dealer Price of each such
Company Record and Company Videogram. Company shall be responsible for
keeping BMG informed in a timely manner of any alterations in any Dealer
Prices.
4.4 File Discounts shall be deducted from the Gross Invoice Value appearing
on each statement rendered hereunder to Company by BMG as if they were an
Applicable Fee and charged to Company pursuant to clause 2 hereof.
4.5 Notwithstanding the provisions set out above in relation to File
Discounts, Company may request in writing of BMG that BMG shall in relation
to a Company Record offer a level of discount to certain customers which
differs from the usual File Discounts. Such arrangement shall be described as
a "Special Discount". Provided that Company requests any Special Discount at
least thirty (30) days in advance of the release of the Company Record to
which such proposed Special Discount relates, and provided that BMG agrees in
writing to each Special Discount in relation to each Customer proposed by
Company no later than seven (7) days before such release, then the Special
Discount shall be applied to sales of such Company Record and shall be
deducted from Gross Invoice Value in the same manner as File Discounts.
4.6 Returns
4.6.1 Company acknowledges that faulty or damaged Company Records and
Company Videograms shall be returned to BMG in accordance with its Standard
Terms and Conditions and in compliance with statutory requirements. Unless
otherwise agreed in writing, upon receipt by BMG such returns shall be treated
as follows:
(a) in the case of MC or CD versions of Company Records which have been
returned to BMG by reason of standard cases being cracked or damaged (but not
for any other reason) BMG shall replace the cracked or damaged case with a
new "standard" case and return the re-packaged Company Record to inventory. If
BMG undertakes such replacement service BMG shall charge Company the fee(s)
set out at 2.4(e) of this Agreement. For the avoidance of doubt this clause
4.6.1 (a) shall only apply to CD's or MC's in standard cases and which are
returned solely by reason of such casing being damaged or cracked
(b) subject to 4.6.1 (a) above all faulty or damaged Company Records and
Company Videograms shall be scrapped.
In accordance with its Standard Terms and Conditions in the case of units
returned as faulty, damaged or sent in error, BMG shall issue Customers with
replacement Company Records and/or Company Videograms or issue a credit in
respect thereof to the applicable Customer.
4.6.2 With respect to "Sale or Return" schemes, Company may not reach any
agreement with Customers which would allow for any "Sale or Return" scheme to
be employed in relation to any Company Record or Company Videogram unless
Company has notified BMG in writing in advance of such scheme setting out all
the terms thereof and BMG has agreed in writing to accept such a scheme
4.6.3 BMG shall have the right to accept all returns of Company Records
and/or Company Videograms of any nature. With respect to returns of Company
Records and/or Company. Videograms which are not Privileged Returns, sent in
error, faulty or damaged, BMG shall not be obliged to accept such returns
unless they have been pre-authorized in writing by Company and notified to
BMG. With respect to returns made as part of a "Sale or Return Scheme" BMG
shall not be obliged to accept such returns unless Company has complied with
the provisions of Clause 4.6.2 above. With respect to any returns accepted by
BMG and not treated in accordance with 4.6.1 (a) and/or (b) of this Agreement
BMG shall sort such returns by catalogue number and adjust such returns back
into inventory. Notwithstanding the foregoing Company hereby indemnifies BMG
against any loss or damage which may be caused to BMG by BMG's processing in
good faith of unauthorized or otherwise disputed returns of Company Records
and/or Company Videograms.
4.6.4 BMG shall, when rendering an Accounting to Company (as defined in
clause 6 hereof) deduct the value of all actual returns including without
limitation Privileged Returns, and returns of Company Records and/or Company
Videograms which are sent in error or which are faulty or damaged. In addition
BMG shall (whether these are replaced by Company or whether a credit to the
applicable Customer is granted by Company) make a deduction from sums
otherwise due to Company as a reserve against potential returns of Company
Records and Company Videograms distributed hereunder and being sum equivalent
to such percentage of the Gross Invoice Value as is set out in paragraph 8 of
the Schedule hereto and referred to herein as the Returns Reserve. The Returns
Reserve shall be released (subject to the terms hereof) in the Accounting for
the month ending no later than three (3) months after the month in respect of
which such Returns Reserve was taken. Notwithstanding the aforegoing:
(a) BMG shall be entitled to increase the Returns Reserve to twenty five per
cent (25%) of the Gross Invoice Value in the Accounting for the last four
months of the Term and/or in the Accounting for any month when BMG reasonably
anticipates that the Returns Reserve will be insufficient to cover returns of
Company Records and Company Videograms during subsequent months after such
Accounting
(b) BMG shall have no liability to make any payment to Company if on the date
of any Accounting ("the Accounting Date") the value of returns received prior
to such Accounting Date exceeds the aggregate of payments due to Company
after deduction of the Returns Reserve and all other deductions hereunder. In
such event no further payment to Company shall be made until such time as by
reason of the sale of further Company Records and/or Company Videograms the
aggregate of payments due to Company on an Accounting Date (after deduction of
the Returns Reserve and all other deductions hereunder) exceeds the value of
returns received by BMG since the last Accounting Date on which payment was
made to Company. BMG shall be entitled to charge interest on sums outstanding
in Company's account with BMG hereunder at the rate of 3% above Barclays Bank
pie's base lending rate until such time as Company's account is restored to a
credit balance or otherwise repaid to BMG's satisfaction.
4.6.5 Notwithstanding the foregoing it is hereby agreed that if at any
time in any Contract Year the total value of credits thus far issued to
Customers in that Contract Year in respect of non-faulty returns shall exceed
7.5% of the Gross Invoice Value of all Company Records and Company Videograms
thus far shipped in that Contract Year, then a further fee of 6% of Dealer
Price shall be charged to Company by BMG in respect of each non-faulty unit
returned thereafter for the remainder of that Contract Year. This fee (to be
referred to as the "Returns Handling Charge") shall be treated as an
Applicable Fee and charged to Company pursuant to clause 2 hereof.
4.7 Invoices
4.7.1 In accordance with BMG's own policy for its Records, BMG undertakes to
prepare invoices to Customers in respect of all Company Records and Company
Videograms distributed pursuant to this Agreement and to use its reasonable
endeavors to collect amounts due from such Customers pursuant to all such
invoices in accordance with its collection policy for invoices relating to
its own Records and Videograms.
4.7.2 Without prejudice to the above, Company shall be responsible for and
Company's account and statement with and from BMG shall be charged with all
bad debts arising out of non-payment of any invoice or part thereof relating
to Company Records and Company Videograms. Such bad debts shall be charged to
Company when the unpaid invoice in question is referred for legal action
and/or to a bad debt collection agency and/or when BMG has reason to believe
that such unpaid invoice is likely to become a bad debt. In the event that
the invoice is paid (whether in part or in full) then such monies less the
administration costs relating thereto and the legal costs and expenses of
recovering the same shall be credited to Company's account.
5. OTHER SERVICES PROVIDED BY BMG
5.1 Intentionally deleted.
5.2 MARKETING FACILITIES
5.2.1 BMG shall procure for Company upon request the services of any
company engaged by BMG for the mailing and distribution to the
trade and otherwise hereunder of promotional literature (herein
sometimes referred to as "Dealer Mail-Outs") which shall be
delivered by Company at its sole cost and expense to the relevant
company's premises (the minimum number of A4 sheets required for
any particular mail out being 3,000). Company hereby expressly
warrants, represents and undertakes to and with BMG and shall
ensure that the content of any such literature shall comply with the
Trade Descriptions Act and any other applicable regulations laws or
statutes and shall not infringe the copyright of any third party nor
shall be obscene or defamatory.
5.2.2 The delivery of release sheets and other promotional literature to the
BMG Distribution Centre or to such other location designated by BMG not less
than 48 hours prior to the date of such mail out as notified by BMG to
Company shall be Company's responsibility and BMG shall have no liability in
relation thereto.
5.2.3 The charge for the use of BMG's Dealer Mail-Out facility shall be that
set out at paragraph 9 of the Schedule
6. ACCOUNTING
6.1 BMG shall account to Company for Company Records and Company Videograms
distributed and invoiced by BMG to Customer Accounts in each calendar month
ofthe Term hereunder by rendering to Company a statement on the forty fifth
day after the end of each such month ("an Accounting") showing in respect
thereof (inter alia) the Gross Invoice Value during the month to which the
Accounting relates and the Applicable Fees due to BMG in respect of its
services to Company PROVIDED ALWAYS THAT when such forty fifth day shall fall
on a Bank Holiday or Saturday or Sunday then the relevant Accounting shall be
rendered on the next working day thereafter.
6.2 Company shall not permit Customers to take any reserves or retentions
nor otherwise come to any arrangement which shall allow Customers to pay
other than full invoice value by the due date unless by prior written
arrangement with BMG. If, notwithstanding such provision, Customers make such
retentions or delay payment for any reason pursuant to such unauthorized
arrangement or otherwise howsoever, BMG shall be entitled to withhold from
Company the same amount so withheld retained or delayed by such Customers
until payment of such sums is received by BMG, without incurring any liability
to Company.
6.3 Company shall upon execution of this Agreement deliver to BMG a fully
completed and duly executed undertaking in the form a copy of which is
annexed hereto and marked "VAT SELF BILLING SCHEME". Pursuant thereto BMG
shall (without thereby incurring any liability to Company in respect thereof)
submit VAT invoices to HM Customs and Excise in respect of supplies on behalf
of Company of Company Records and Company Videograms to Customers during the
month to which each Accounting relates and PROVIDED THAT such undertaking is
executed, BMG shall remit sums including VAT payments when Accounting to
Company hereunder subject to clause 6.4 hereof.
6.4 When rendering such Accounting BMG shall pay to Company the balance of
the Gross Invoice Value for which BMG itself has received full payment from
Customers after deduction from the Gross Invoice Value of the Applicable Fees
and any other deductions made hereunder including without limitation the
repayment instalments referred to in clause 10, bad debts, File Discounts,
Special Discounts, reserves and retentions and the value of any returns of
any description.
7. AUDIT:
Company shall have the right upon giving BMG not less than 90 days' prior
written notice to appoint an independent firm of chartered accountants to
inspect during the Term (but not more than once during each consecutive
twelve (12) month period thereof) and once thereafter within a period of
twelve (12) consecutive months following the expiration of the Term and during
normal working hours those documents relating solely to Company Records and
Company Videograms distributed by BMG hereunder and the calculation of sums
payable to Company hereunder. No firm or person shall be designated as such
accountant if their remuneration is to be calculated wholly or partially by
reference to the amount of any discrepancy revealed by such inspection. In the
event that an accountant is or is employed by a member of a firm which is
involved in a similar inspection of BMG's documents for any third party as of
the date designated in the notice hereunder then such accountant may not be
used for such inspection. Company shall procure that its accountant will prior
to the start of any inspection hereunder execute an undertaking to BMG to
treat as confidential all information regarding BMG's affairs and business
which he may acquire in the course of such inspection and not to disclose same
to any person except to the extent necessary to discharge his responsibility
to Company in relation to such inspection. Unless within two (2) years of the
date of any statement rendered hereunder Company shall have notified BMG in
writing of any specific objections thereto such statement shall be conclusive
evidence as to the total monies payable by BMG to Company hereunder during
the period covered by such statement and final and binding upon and not open
to dispute by Company
8. CONTINGENCIES:
8.1 Neither party shall be liable to the other for failure to fulfil any of
its obligations hereof or for delay hereunder if such failure or delay shall
be due caused by or resulting from adverse weather conditions, war, fire,
strike, lock-out, riot, act of God, legal act of any public or governmental
authority, shortage of raw materials or labor or outbreak of hostilities
(whether or not war is declared), act of terrorism, insurrection, civil
disturbance, flood, explosion, accident, theft, any act by any trade union or
any circumstances beyond the control of that party
8.2 Notwithstanding any contrary provision contained herein, BMG shall
have the right without liability to Company or any third party to decline the
distribution of any Company Record or Company Videogram which it has
reasonable cause to believe (a) may be in violation of any statute or
regulation or (b) may subject BMG to civil or criminal liability or (c) may
cause industrial unrest or disruption or (d) may put BMG in violation of any
agreements entered into by BMG or (e) may contain obscene or defamatory
material or (f) may in BMG's good faith business (or legal) judgment be in
contravention of public morals, contain libelous matter, violate or infringe
the copyright, moral rights, performance rights the rights of privacy or
any other rights of any person and/or infringe existing common law or
statutory rights or subject BMG to claims or demands from third
parties or (9) may be detrimental to the name or reputation of BMG
8.3 If BMG shall be unable or shall elect to decline to perform its
obligations hereunder as a result of any such contingency or condition
as mentioned in clauses 8.1 or 8.2 hereof Company may as its sole
remedy make other arrangements (at its sole cost and expense) with
respect to the specific Company Records and/or Company
Videograms affected by such contingency or condition and for the
duration thereof PROVIDED THAT Company shall have first given
BMG prior written notice of its intention to make such other
arrangements and such contingency still exists at the time such
arrangements are intended to become effective
9. TERMINATION AND EXPIRATION:
9.1 Either party may terminate this Agreement by prior written notice to
the other if the other of them shall commit any material breach of this
Agreement (otherwise than as a result of any contingency referred to
in clause 8 hereof) and shall not remedy the-same (if same is capable
of being remedied) within thirty days after receipt of notice in writing
from that party specifying the breach and calling for the same to be
remedied or shall not have commenced within such period with due
diligence to remedy the breach complained of in as short a time as is
reasonably practicable or, having so commenced, shall not continue so to
remedy same.
9.2 If Company shall compound or make any arrangement with its creditors or
go into liquidation (other than a voluntary liquidation for the purpose of
amalgamation or reconstruction) or have a receiver appointed of any of its
assets then BMG shall have the right by service of notice in writing to
terminate the Term of this Agreement.
9.3 Either party may terminate this Agreement by prior written
notice to the other if any contingency referred to in clause 8.1 hereof
shall prevent that other party from performing its obligations
hereunder for a continuous period of six months.
9.4 BMG shall have the option (by service of notice in writing) to
terminate the Term of this Agreement forthwith in the event that by the end of
any Contract Year the aggregate gross invoice value of sales of Records and
Videograms distributed by BMG on behalf of Company during the whole of such
Contract Year shall be less than five hundred thousand pounds (L500,000).
9.5 The termination howsoever occasioned of this Agreement shall
be without prejudice to any rights or obligations already accrued
prior to such termination and shall not destroy or diminish the binding
force of any of the provisions of this Agreement which are expressly or
by implication to come into effect or to continue to be effective
on or after such termination
9.6 The provisions of clauses 3.11 and 3.12 hereof (relating to
disposal of stocks) shall apply upon termination or expiration of the
Term.
9.7 Without limiting the provisions of clause 4.6.4 hereof, upon
serving notice pursuant to clauses 9.1, 9.2, 9.3 or 9.4 hereof,
reasonable reserves (if necessary in excess of the Returns Reserve) may
thereafter be retained by BMG until final accounting occurs which shall take
place within 120 days after such termination or expiration and thereupon
(subject to any other remedies available to BMG in respect of any unremedied
breach of this Agreement by Company) all such retentions pursuant to this
Clause (and Clause 4.6.4 hereof) shall be fully liquidated.
Notwithstanding the foregoing
(a) BMG may make a reasonable deduction from sums payable to Company in the
event of any dispute remaining unresolved by such time; and
(b) any SOR retentions shall be maintained until all such SOR sales have been
returned; and
(c) if any retentions made hereunder are insufficient to cover returns
hereunder BMG shall invoice Company in respect of such deficiency and
Company will pay to BMG the amount so invoiced within thirty (30) days
following the date of such invoice
10. WARRANTIES AND REPRESENTATIONS:
Company hereby represents and warrants to BMG:
10.1 that it has and will at all times during the Term have all such rights
in respect of Company Records and Company Videograms and otherwise as are
necessary to enable it to enter into this Agreement and to grant BMG the
rights herein granted and for Company to perform its obligations hereunder
and
such rights are and will remain free from any Pledges, charges, mortgages,
liens or any other encumbrances;
10.2 that the distribution and sale of any Company Records and Company
Videograms and related materials hereunder shall be in accordance
with the BPI Code of Conduct (a copy of which Company acknowledges it has
received from BMG) and will not as the result of any act or omission by
Company contravene any Act of Parliament, statutory instrument, regulation or
by-law and will not infringe any patent, trademark or copyright or any rights
of any third party and BMG shall have no liability in respect thereof
10.3 that all artists' and copyright royalties (including value added or
similar tax thereon) and any other similar charges of whatsoever nature
payable to any third party in respect of any Company Records and Company
Videograms manufactured sold or distributed hereunder shall be the sole
responsibility of Company and BMG shall have no liability in respect thereof
10.4 that it is under no disability, restriction or prohibition in respect of
its rights to enter into this Agreement and to perform its obligations
hereunder and that it has not entered into and will not enter into any
agreement with any third party which in any way conflicts or is
incompatible with any of the terms of this Agreement or derogates
from or otherwise adversely affects any rights granted to BMG hereunder
10.5 neither the Company Records and Company Videograms delivered
hereunder nor any material embodied therein or associated therewith
(including without limitation promotional literature) shall infringe the
rights of any third party or be obscene, defamatory of any person,
firm or company or be in violation of the Trade Descriptions Act or
any and all other applicable statutes and regulations
10.6 except as otherwise provided herein all costs and charges and
expenses incurred or to be incurred in connection with Company
Records and Company Videograms and the making of Master
Recordings embodied in Company Records and Company Videograms
shall be the sole responsibility of Company and shall be promptly paid
in full by Company when due
10.7 that it is the exclusive owner of all trademarks, trade names and
logos used by Company in connection with Company Records and
Company Videograms and that no other person or entity has an
interest therein or any grounds for disputing Company's use thereof.
10.8 that it shall be fully responsible for any and all "VAT" in connection
with Company Records withdrawn from the Promotional Record Account
10.9 that Company shall ensure that the outer sleeve or other outer
packaging of all Company Records and Company Videograms distributed and sold
hereunder shall bear in the appropriate place the legend "Distributed by BMG
Entertainment International UK & Ireland Limited" or any other appropriate
legend which BMG shall notify that Company shall employ in substitution
therefor and so that the name and logo of BMG shall always appear in the
type-face directed by BMG and in accordance with the artwork provided by BMG.
BMG in this connection hereby grants to Company a non-exclusive licence
during the Term to use its logo or xxxx solely for the purposes set
out herein and not otherwise.
11. INDEMNITIES:
Company undertakes and agrees that it shall upon demand by BMG fully
indemnify BMG and keep it indemnified against all actions, claims, demands,
liabilities, costs, charges and expenses whatsoever (including reasonable
legal fees and expenses) which may be brought against BMG or which BMG may
sustain suffer or incur by reason of any breach or alleged breach or
non-observance of any provisions hereof or any guarantee, warranty or
representation or undertakings given by Company hereunder being untrue,
inaccurate or unfulfilled. In the event of any claim being made to which this
indemnity applies BMG may withhold from any sums payable by BMG to Company
under this Agreement and any other agreements between the parties hereto an
amount reasonably sufficient to meet such claim or potential claim BMG shall
give Company prompt notice in writing of any claim made to which this
indemnity applies and BMG shall advise Company
of any monies withheld hereunder in respect thereof, Company shall have the
right to participate in the defense of such claim at Company's sole
expense. BMG shall not settle any claim without Company's consent which
consent shall not be unreasonably withheld or delayed
12. MISCELLANEOUS:
12.1 Assignment The benefit and/or burden of this Agreement to BMG
and the rights and/or obligations of BMG hereunder may be freely
assigned by BMG. The Company may not assign the benefit or burden of this
agreement
12.2 Partnership Nothing herein contained shall constitute a partnership
or joint venture between the parties or constitute either party the
representative or agent of the other. Neither party shall hold itself
out as carrying on business in circumstances contrary to the provisions of
this Agreement and neither party shall become liable by reason of any
representation, act or omission of the other party contrary to such
provisions
12.3 Notice All notices hereunder and all requests and approvals in
connection herewith shall be in writing and shall be addressed as
follows :
To: The Company at the address specified in the Schedule hereto
To: BMG at Xxxx Xxxx Xxxx Xxxxxxxx Xxxx Xxxxxxxx X00 0XX Attention: Director,
Distribution and Operations and a copy to BMG Entertainment International UK
&
Ireland Limited Bedford House 00-00 Xxxxxx Xxxx Xxxxxx XXXXXX XX0 0XX
Attention: Director, Business Affairs or such other address as may be so
notified in writing. Notices shall be sent by recorded delivery or registered
post or personal delivery and shall be deemed to be given on the day on which
they are sent in such manner
12.4 Modification The terms and provisions herein constitute the entire
agreement between the parties and shall supersede all previous
communications either oral or written. No modification amendment
or waiver of this Agreement or any provision hereof shall be binding
upon any party unless confirmed in writing under their hands or the
hands of their duly authorized representatives. No waiver of any
provisions of or default under this Agreement shall affect any party's
right thereafter to enforce such provision or to exercise any right or
remedy hereunder
12.5 Headings. Clause headings used herein are for convenience of
reference only and are not part of the clause and shall not be used in
construing the clause or this Agreement
12.6 Extension of Term. BMG shall have an irrevocable option to extend
the Term by a further two (2) years ("the Extension Period") which
option shall be exercisable by notice in writing given by BMG to
Company no later than three (3) months prior to the date when the
Term would otherwise expire. In the event that BMG exercises its
option to extend the Term in accordance with this clause 12.6 the
Extension Period shall commence on the first day of September
1998 and all of the terms and conditions contained herein shall apply
in respect thereof SAVE THAT the Applicable Fees shall be subject
to renegotiation (both parties acting in good faith) using as a guide
the preceding Contract Year's Applicable Fees.
12.7 Governing Law. This Agreement and any and all extensions and/or
modifications thereof shall be governed by and construed in
accordance with the laws of England and the High Court of England
and Wales shall have exclusive jurisdiction to determine all matters
arising hereunder
AS WITNESS the hands of the duly authorized representatives of the
parties hereto the day and year first above written.
SIGNED/s/Xxxx X. Xxxxxxx
For and on behalf of:- In the presence of:-/s/X. Xxxxx
BMG ENTERTAINMENT INTERNATIONAL
UK & IRELAND LIMITED
SIGNED/s/
For and on behalf of:- In the presence of:
IMMEDIATE RECORDS LIMITED
DISTRIBUTION AGREEMENT
SCHEDULE
TO THE AGREEMENT DATED 11th October 1996
1. Company Name: IMMEDIATE RECORDS LIMITED
Address: 00 Xxxxxxxx Xxx
Xxxxxxxxxx Xxxxx.
XXXXXX XX00 0XX
(for BMG administrative purposes only:
Contact Name: Xxxx Xxxxxx/Xxxx Xxxxxx
Telephone No. 0000 000 0000
Fax No. 0000 000 0000/6530)
Company No: 3154022
2. Term: Two (2) years commencing 1st September 1996
3. Domestic Fee (both Audio and Video): twelve percent (12%)
PROVIDED THAT in the event that by the end of any Contract Year the aggregate
gross invoice value of sales of Records and Videograms distributed by BMG on
behalf of Company during the whole of such Contract Year shall exceed one
million pounds (L1,000,000), then the Domestic Fee for the whole of the next
following Contract Year only shall be eleven percent (11%)
AND PROVIDED FURTHER THAT in the event that by the end of any Contract Year
the aggregate gross invoice value of sales of Records and Videograms
distributed by BMG on behalf of Company during the whole of such Contract
Year
shall exceed two million pounds (L2,000,000), then the Domestic Fee for the
whole of the next following Contract Year only shall be ten percent (10%)
4. Intentionally deleted
5. Intentionally deleted
6. Promotional Fee (both Audio and Video): 5% on Dealer Price
7. Stock Transfer Charge: 5% on Dealer Price
8. Returns Reserve: 15%
9. Dealer Mail-Out: 14p per A4 sheet - (A minimum of 3,000 sheets
required for BMG to provide this service)
V.A.T. SELF-BILLING SCHEME
U N D E R T A K I N G
We, the undersigned, in consideration of BMG Record UK Limited's
("BMG's") promise to use its reasonable endeavors to notify HM Customs
& Excise in a timely manner of the details of all supplies of Company
Records and Company Videograms (as defined in the agreement annexed
hereto) occurring in each month of the Term (as defined likewise), such
procedure being referred to as "the Self-Billing System", hereby consent
and undertake as follows:
1. to co-operate fully with and to execute any documents required by
BMG for the Self-Billing System
2. to issue no tax invoice in respect of any transactions covered by
the Self-Billing System
3. to notify BMG immediately in the event that we shall be de
registered for VAT purposes and to indemnify BMG in respect of any
VAT which may incorrectly be paid to us following our failure so to
notify BMG
4. to notify the Distributed Labels Accountant of BMG (whose present
details are, for administrative purposes, given below) of any change in
any details such as the VAT number given below or our address
It is hereby acknowledged by us and by BMG that the Self-Billing System
has been approved by HM Customs & Excise and that we are not thereby
relieved of any of our statutory or other legal duties in respect of our
accounting thereto in respect of VAT or other excise duty payments. BMG
shall be indemnified by us and held harmless from any claims costs or
damages which may at any time be made or ordered against us by HM
Customs & Excise or otherwise in respect of tax invoices raised pursuant
to the Self-Billing System.
NAME UNDER WHICH REGISTERED: IMMEDIATE RECORDS LIMITED
V.A.T. REGISTRATION No:672 0233 62
DATE OF V.A.T. REGISTRATION:......................................
DATE: SIGNED:/s/
duly authorized for and on behalf of
IMMEDIATE RECORDS LIMITED
...... /s/X.X. Xxxxxxx
(SECRETARY)
Please return to: Xxxxx Xxxxxx
Distributed Labels Accountant
BMG Entertainment International UK & Ireland Limited
Bedford House
00-00 Xxxxxx Xxxx Xxxxxx
Xxxxxx XX0 0XX
SCHEDULE 2
BMG Entertainment International
UK & Ireland Limited
Bedford House
00-00 Xxxxxx Xxxx Xxxxxx
XXXXXX XX0 0XX
Dear Sirs,
In consideration of BMG enforcing into the attached Distribution Agreement
(as
hereinafter defined) with us, we the undersigned (the "Pledgor") undertake to
and agree with BMG as follows:
1. Definitions
1.1 In this Pledge unless the context otherwise requires:
"Pledged Goods" means: all goods and warrants delivery orders
warehouse-keepers' certificates or receipts and all documents of title and
the goods to which the same relate which are now or may in the future be
deposited or lodged with or otherwise in the possession of or transferred to
or warehoused or stored in the name of BMG or its agents or nominees or
otherwise held by or to its or their order or under its or their control
whether for safety, custody, security or for any specific purpose or
generally, and including without prejudice to the generality of the foregoing
all those goods transferred into the possession of BMG pursuant to sub-clause
2.1, or otherwise under, the Distribution Agreement ("the Agreement") of even
date herewith between the Pledgor and BMG.
"Secured Liabilities" means all monies, obligations and liabilities whether
principal interest or otherwise which may now or at any time in the future be
due owing or incurred by the Pledgor to BMG on any account whatsoever or
howsoever owing or incurred including without limiting the generality of the
foregoing under or pursuant to the Agreement.
2. Covenant to Pay
2.1 The Pledgor covenants when the same shall be or become due or,
in the absence of any specified due date (contained in the Agreement),
on demand to pay and discharge the Secured Liabilities to BMG.
3. Pledge
3.1 BMG shall have a pledge on the Pledged Goods which shall be
continuing security for the payment or discharge of the Secured Liabilities.
4. Representations Warranties and Covenants by the Pledgor
4.1 The Pledgor represents and warrants to BMG and undertakes that:
(a) it has good title to the Pledged Goods and that the documents
referred to in clause 1.1 are valid and that the Pledged Goods are and
will remain free from any pledge mortgage charge lien or any other
encumbrance.
5. Authority
5.1 Intentionally Deleted
5.2 The Pledgor irrevocably authorizes BMG and its agents and nominees
as the agent of the Pledgor to execute all documents and do all other
acts and things whatsoever which BMG considers necessary or
desirable to perfect its security or to effect any sale of any of the
Pledged Goods or to enforce any rights to which the Pledgor or BMG
is entitled in connection with the Pledged Goods.
6. Enforcement
6.1 If any of the Secured Liabilities are not paid or discharged by the
Pledgor in accordance with clause 2.1 BMG may without further
notice to the Pledgor sell transfer or assign or otherwise dispose of
the Pledged Goods in such manner and generally on such terms and
conditions and for such consideration as BMG may in its absolute
discretion think fit.
6.2 BMG may apply the proceeds of the sale or other disposal of the
Pledged Goods in or towards the payment of the costs incurred and
the Secured Liabilities whether or not then due and payable in such
order as BMG may in its absolute discretion determine.
6.3 Sections 93 and 103 of the Law of Property Act 1925 shall not
apply to this Pledge.
6.4 BMG shall not be liable to account to the Pledgor (whether as
mortgage in possession or on any other basis) for anything except its
actual receipts or be liable to the Pledgor for any loss or damage
arising from the possession or realization of the Pledged Goods or for
any act default or omission in relation to them whether on the part of
BMG or any of its agents or nominees.
7. Further Assurance
7.1 The Pledgor shall whenever requested by BMG immediately execute
and sign all such transfers and documents and do all such things as
BMG may require at the Pledgor's cost for the purpose of perfecting
its title or security to any of the Pledged Goods to BMG its agents or
nominees or facilitating any sale or other disposition of any of the
Pledged Goods or more effectively providing security to BMG for the
payment and discharge of the Secured Liabilities.
8. Costs and Indemnity
8.1 All costs charges and expenses properly incurred by BMG in
relation to this Pledge shall be reimbursed by the Pledgor to BMG on demand
on a full indemnity basis and until so reimbursed shall carry interest as
mentioned in the definition of "Secured Liabilities" from the date of
payment to the date of reimbursement.
8.2 BMG and its agents shall be entitled to be indemnified on a full
indemnity basis against all actions claims liabilities costs charges and
expenses suffered or incurred by them directly or indirectly in connection
with the Pledged Goods or in the exercise or purported exercise of any of the
powers or discretion to which they are entitled under this Pledge and BMG may
retain and pay all sums in respect of the same out of the proceeds of sale of
the Pledged Goods.
9. Miscellaneous
9.1 The security constituted by this Pledge shall be in addition to
and shall not be prejudiced determined or affected or operate so as in any
way to determine prejudice or affect any other security which BMG may now or
at any time in the future hold for or in respect of all or any part of the
Secured Liabilities nor shall any prior security held by BMG over the Pledged
Goods or any part of them merge in the security constituted by this Pledge
which will remain in force and effect notwithstanding any intermediate
settlement of account as a continuing security until discharge by BMG.
9.2 BMG may without discharging or in any way affecting the security
created by this Pledge or any remedy of BMG grant time or other
indulgence or abstain from exercising or enforcing any remedies
securities guarantees or other rights which it may now or in the future
have from or against the Pledgor and may make any other
arrangement variation or release with any person or persons without
prejudice either to this Pledge or liability of the Pledgor for the
Secured Liabilities.
9.3 The provisions of this Pledge shall be severable and if at any
time any one or more such provisions is or become invalid illegal or
unenforceable the validity legality and enforceability of the remaining
provisions shall not in any way be impaired.
9.4 The rights and remedies of BMG provided by this Pledge are
cumulative and are not exclusive of any rights powers or remedies
provided by law and may be exercised from time to time and as often
as BMG may deem expedient.
9.5 Any reference in this Pledge to any statute or any section of any
statute shall be deemed to include reference to any statutory
modification or re-enactment thereof for the time being in force.
10. Notices
10.1 Any demand or notice under this Pledge shall be in writing signed
by a Director of BMG or may be sent by post to the Pledgor's address
specified in this Agreement. If such demand or notice is sent by post
it shall be deemed to have been received on the day following the day
on which it was posted and shall be effective notwithstanding that it
was not in fact delivered or was returned undelivered.
11. Governing Law and Jurisdiction
11.1 This Pledge shall be governed by and construed with the laws of
England and the Pledgor hereby irrevocably submits to the non-exclusive
jurisdiction of the English Courts.
EXECUTED as a deed under )
the Common Seal of )
IMMEDIATE RECORDS LIMITED )
In the presence of )
Director:/s/
Secretary:/s/X. X. Xxxxxxx
