ADMINISTRATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 20th day of October, 1997,
by and between SONGS FOR THE PLANET, INC., 0000 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxx, 00000, a Tennessee Corporation (hereinafter referred to as "Company")
and XXXXXX XXXXXX MUSIC (BMI), a sole proprietorship, 0000 Xxxxx Xxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000 (hereinafter referred to as "Publisher").
WHEREAS, Company is engaged in the business of publishing and administering
copyrights in musical compositions in all fields of use throughout the world;
and
WHEREAS, Publisher desires to engage the services of Company to administer
the copyrights and interests of Publisher in musical compositions under the
terms and conditions hereinafter stated.
NOW, THEREFORE, it is agreed as follows:
1. Publisher hereby employs the services of Company to administer the
copyrights and interests in musical compositions of Publisher in all fields of
use in the United States of America and Canada. The musical compositions subject
to this agreement are and include each and every musical composition in which
Publisher now owns or hereafter acquires rights or interests under the
copyrights therein or any contractual rights in connection there with, during
the term of this agreement (hereinafter referred to as the "Compositions").
Company's rights, powers, privileges and duties with respect to the
Compositions, as hereinafter more particularly stated, shall extend and apply to
any and all contracts and licenses heretofore made or issued by on in behalf of
or for the benefit of Publisher and hereafter, during the term hereof, made or
issued by or in behalf of or for the benefit of Publisher with respect to the
Compositions and rights therein and proceeds therefrom in all fields of use
throughout the territory, including, without limitation, all rights of a
copyright owner set forth in the United States Copyright Law, together with
mechanical, electrical transcription, synchronization, audio- visual,
performance and printed matter rights and usages as well as other rights and
usages of the Compositions now known or hereafter coming into existence during
the term hereof (hereinafter referred to as "Licensed Usages").
2. During the term of this agreement, Company agrees to perform or secure
the performance of, the following services for Publisher with respect to the
Compositions:
A. To register claims to copyright in the United States of America
and to secure renewals of the same in the name of Publisher as the copyright
proprietor thereof or as otherwise designated by Publisher as the copyright
proprietor of the same. In order to assist Company in the performance of such
services, Publisher shall furnish Company with such information and documents as
it may reasonably request, including, without limitation the information and
documents hereinafter described. Publisher shall provide Company with copies of
all Compositions or furnish Company with a schedule of same setting forth as to
each of the Compositions the title thereof, the date of registration of a claim
to copyright therein, the name and address of the copyright proprietor or
proprietors and the name and address of the writer or writers; and Publisher
shall furnish Company with a demonstration recording, and/or master recordings
of each of the Compositions to be copyrighted together with a written statement
of the name and address of the copyright proprietor or proprietors and of the
writer or writers and the title thereof (if the same does not appear on such
lead sheet), the date of first publication, if any, and the approximate date
when the first commercial recording is to be released embodying the same.
B. To prepare Single Song Agreements and Copyright Assignments
between Publisher and writer or writers and Publisher will furnish Company with
copies of all contracts between Publisher and writers or composers of the
Compositions now in existence and hereafter made during the term hereof.
C. To accept and deliver to Publisher all accounting and royalty
statements hereafter received by Publisher during the term hereof with
respect to the Compositions, to collect royalties, monies and all other
compensation or advances for Licensed Usages and unpaid and hereafter
accruing during the term hereof, as the agent for collection of Publisher,
including, without limitation, the Publisher's share of performance monies
from the performance rights organizations with which Publisher is affiliated.
In order to assist Company in the performance of
said services, Publisher shall provide Company with copies of all contracts
and licenses now existing and here after made or issued during the term
hereof with respect to all Licensed Usages of the Compositions, including,
without limitation, copublishing agreements with other publishers and persons
throughout the world together with copies of all accounting statements
heretofore rendered to Publisher thereunder, if any. Publisher shall furnish
Company with copies of its agreements with each performing rights
organization with which it is or has been affiliated together with copies of
all accounting statements heretofore received thereunder, if any.
D. To negotiate and execute all contracts and licenses in respect to
any and all Licensed Usages of the Compositions in the Territory during the term
hereof, including amendments to and modifications of existing contracts and
licensing. Company warrants that any and all royalty rates and terms granted in
licenses for uses of Compositions are to be approved by Publisher.
E. To report to Publisher all unauthorized usages of the
Compositions that come to the attention of Company together with whatever facts
Company has discovered in that regard (without any obligation on the part of
Company to affirmatively uncover unauthorized usages on the Compositions or make
any discovery in connection therewith). Company shall assist Publisher to
negotiate, compromise or settle any contractual disputes or litigated matters
with respect to the Compositions. Publisher shall execute any and all such
settlement agreements and Company shall not have any duty hereunder with respect
thereto.
F. To render statements to writers, authors and composers of the
Compositions with respect to royalties or other monies accrued to or for their
account from Licensed Usages of the Compositions, if requested by Publisher,
and to pay from the funds received and collected by Company with respect to the
Compositions, all royalties and other sums becoming due to the writers, authors
and composers of the Compositions or for their benefit (including reimbursements
due to Publisher with respect to advances by Publisher to any writer, author or
composer). All statements and payments rendered by Company to the writers,
authors and composers of the Compositions pursuant to this agreement shall be
rendered for, on behalf of and in the name of Publisher and in accordance with
the publishing contracts and other documents and information provided by
Publisher and Company shall have no liability of any kind or nature to Publisher
or said writers, authors and composers with respect thereto.
G. To perform all other administrative services customarily incident
to the administration of the music publishing catalogue, including without
limitation, necessary secretarial and clerical services, telephone and similar
services; provided, however, that all direct expenses incurred by Company in
connection with the performance of its services hereunder shall be reimbursed to
Company from and out of the money, property and other valuable consideration
received by Company hereunder for the benefit of Publisher with respect to the
Compositions pursuant to the provisions of paragraph 4.E. of this agreement.
3. Publisher hereby constitutes and appoints Company or its designee as
the agent and special attorney-in-fact to do each and all of the following acts
and things in the name of Publisher:
A. If requested by Publisher, too prepare, execute, file and
register Claims of Copyright in the Compositions and renewals of the same, in
the name of Publisher as copyrights proprietor.
B. If requested by publisher to collect royalties, monies and all
other compensation or advances for Licensed Usages of each and all of the
Compositions throughout the United States of America and Canada heretofore
accrued and unpaid and hereafter accruing during the term hereof, including,
without limitation, the Publisher's share of all such payments for mechanical,
electrical transcription, synchronization, audiovisual, performance and printed
matter rights and usages as well as all other rights and usages of the
Compositions now known or hereafter coming into existence during the term
hereof; and to receive and deliver receipts for any and all such collections if
necessary to do so.
C. If requested by Publisher, to endorse all checks and drafts
received by Company with respect to the Compositions for deposit only and to
deposit all such checks, drafts and other receipts in the accounts maintained by
Company at banking institutions selected from time to time by Company for such
purposes.
D. If requested by Publisher, to collect all monies and payments
arising from or in connection with settlement agreements of any kind or nature
executed by Publisher with respect to the Compositions; and to execute and
deliver receipts for the same; and to endorse and deposit checks and drafts and
all other receipts in connection with the foregoing in Company's said trust
account.
E. To render statements, accountings and payments to the writers,
authors and composers of the Compositions as provided in paragraph 2E hereof.
F. Company shall furthermore have the incidental right, power and
authority to execute any and all other additional documents, instruments or
other writings that may be necessary to carry out any of the foregoing acts, in
the name of and for the benefit of Publisher. Publisher hereby ratifies all of
the acts and conduct of Company performed under and pursuant to the authority
given and granted to Company hereunder and reasonably implied therefrom.
4. A. For all services performed by Company hereunder, Company shall
retain a sum equal to Ten percent (10%) of the gross income (as defined below)
with regard to the Compositions received during the term hereof and otherwise
set forth in paragraph 7.B. below.
B. As used herein, the term "gross income" shall mean all monies
actually received hereunder by Company from the exploitation of the Compositions
in the Territory from all sources less all costs of collection and fees paid by
Company to collection agents and subpublishers. With respect to performance
credits and fees regarding the Compositions, it is understood that the
appropriate performing rights society shall be authorized and directed to
allocate such credits and fees one hundred percent (100%) to Publisher and to
pay one hundred percent (100%) thereof to Company to be administered pursuant
hereto.
C. Company shall deposit all royalties, monies and other
compensation or payments of whatsoever kind or character collected by Company
with respect to the Compositions into the account maintained by Company at
banking institutions selected from time to time by Company.
D. Within forty-five (45) days following the end of each calendar
year during the term hereof, or more frequently if requested by Publisher, but
no more frequently than monthly, Company will render to Publisher a statement of
all money, property and other valuable considerations received by Company
hereunder and shall pay to Publisher an amount equal to all money, property and
other valuable considerations received by Company hereunder with respect to the
Compositions, reduced by: (1) the compensation due to Company pursuant to
paragraph 4A hereof; (2) all direct costs and expenses (excluding secretarial,
clerical and similar general overhead expenses) incurred by Company in the
performance of its duties hereunder; and (3) the royalties and other
compensations paid or payable to the writers, authors and composers of the
Compositions.
E. It is the intention and understanding of the parties hereto that
Company shall be the exclusive agent for Publisher for the administration of the
Compositions. Publisher acknowledges that Company may employ other companies or
agents to perform document administration and income collection, provided that
any fees or expenses payable to such agent or third party will be Company's sole
responsibility and will not increase the fees payable to Company by Publisher.
If Publisher collects any royalties, monies or compensation or advances of any
kind or nature with respect to any of the Compositions, Publisher may deliver
same to Company for administration pursuant hereto.
F. Company shall keep complete books and records at its principal
place of business with respect to all of its receipts from each and all of the
Compositions during the term hereof. Publisher shall have the right to inspect
and examine the said books and records of Company at Company's said place of
business during its normal business hours upon reasonable notice to Company.
5. Publisher understands and agrees that Company may perform
administrative services for publishers and writers of musical compositions other
than Publisher during the term hereof and that Company's services hereunder to
Publisher are nonexclusive and Company shall not be deemed to breach of violate
any contractual duty
hereunder or fiduciary duty arising by implication of law by reason of its
performance of administration services for any other publishers or writers.
Company shall perform its services for Publisher hereunder from offices
established from time to time by Company, and Company shall have the right
but shall not be obligated to send any representative of Company outside the
metropolitan area of its principal office in connection with the performance
of services hereunder.
6. A. Publisher warrants, represents and covenants that:
[1] It has the full right, power and authority to enter into
this agreement and grant to Company all of the rights herein granted;
[2] The Compositions are original and shall not infringe upon
the copyright or other rights of any other person or entity;
[3] No exercise of any such rights by Company in accordance with
this agreement shall infringe upon the copyright or any other rights of any
third party, and no other party has or shall have any rights in and to the
Compositions which would in any way diminish or impair Company's rights
hereunder;
[4] There are and shall be no advances or other payments made by
any third parties to Publisher which are or will be recoupable from the earnings
hereunder from the Compositions;
[5] There is no suit, claim, action or other legal or
administrative proceeding involving the Compositions or the writers thereof now
pending or threatened or any basis therefor;
[6] There are and will be valid and binding songwriters
agreements between Publisher and the writers of the Compositions which enable
Publisher to grant to Company the rights herein granted, the terms of which are
within the range of industry custom. Publisher has fully complied and shall
fully comply with all of the terms and conditions of said songwriter agreements.
On Company's request, Publisher shall provide Company with a copy of each such
agreement.
B. Publisher agrees to indemnify and hold Company harmless from and
against any and all claims, demands, liabilities, obligations, causes of action
and judgments, including costs and attorney's fees, arising from any claim which
is inconsistent with, or any breach of, any of Publisher's warranties,
representations or covenants contained herein. In the event of any such claim,
until same has been finally adjudicated or settled, Company, in its sole
discretion, shall have the right to withhold any and all monies becoming due and
payable to Publisher hereunder. Upon the final adjudication or settlement of
such claim, Company shall disburse all funds held by it in accordance with terms
of any settlement, judgment or other disposition thereof, subject to
indemnification as provided herein.
7. A. The term of Company's services hereunder shall commence on the
effective date hereof and shall continue for a period of Three (3) year(s) from
and after said date. Either party may terminate this agreement by giving
written notice to the other party not less than ten (10) days prior to the
expiration of the initial Three-year term; provided, however, that if neither
party gives such written notice as provided in the preceding sentence, it shall
be deemed to be the desire of the parties hereto that the term hereof be
considered automatically renewed and extended, and this agreement shall continue
in full force and effect until such time thereafter as either party shall
terminate this agreement by written notice given to the other party, such
written notice to be given not less than ten (10) days prior to the expiration
of any calendar quarter. Such termination shall become effective on the last day
of such calendar quarter. Any notice terminating the initial term of this
agreement or the agreement as extended which is given less than ten (10) days
prior to the end of the initial 1-year period or any calendar quarter thereafter
shall not be effective until expiration of the following calendar quarter.
B. Notwithstanding expiration or termination of the term hereof,
Company shall be entitled to collect and administer pursuant to the terms hereof
all gross income earned with regard to the Compositions as of the end of the
calendar quarter in which such expiration or termination occurs, regardless of
when such sums are received.
8. This agreement constitutes the entire agreement of the parties hereto,
and any and all prior or contemporaneous agreements of any kind or nature
relating to the subject matter hereof shall be deemed merged herein. This
agreement can only be modified or amended by an instrument in writing signed by
all of the parties hereto. This agreement shall be construed under the laws of
the state of Tennessee applicable to agreements entered into and to be performed
in said state. in the event any provision of this agreement is declared to be
invalid or unenforceable by a court of competent jurisdiction, the same shall be
deleted herefrom and the remainder of this agreement shall continue in full
force and remainder of this agreement shall continue in full force and effect.
This agreement is personal to Company and its duties hereunder may not be
delegated except as expressly provided herein.
9. All notices hereunder shall be in writing and sent by prepaid
registered or certified mail, return receipt requested, to the addresses of the
parties set forth above or to such other address as shall be designated by
written notice from time to time. Accounting statements and payments may be sent
by regular mail, subject to actual receipt. The date of mailing in the required
manner shall be deemed the date such notice is served, with the exception of
notices of change of address which shall be effective only upon actual receipt.
IN WITNESS WHEREOF, the parties hereto have executed this agreement on the
day and year first above written.
COMPANY:
SONGS FOR THE PLANET, INC.
By: ______________________________
Xxxxxxxxx X. Xxxxxx, President
PUBLISHER:
XXXXXX XXXXXX MUSIC
By: _______________________________
Xxxxxx Xxxxxx
