Ex. 10.02
ADMINISTRATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 20th day of October,
1997, by and between SONGS FOR THE PLANET, INC., 2831 Dogwood Place,
Nashville, Tennessee, 37204, a Tennessee Corporation (hereinafter referred to
as "Company") and TRUTHWORKS MUSIC (BMI) AND ITS AFFILIATED ASCAP AND SESAC
COMPANY, a sole proprietorship, 7107 Crossroads Blvd., Suite 105, Brentwood,
Tennessee 37027 (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 throughout the world. 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 or 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 the United States Copyright Law, together with mechanical, electrical
transcription, synchronization, audiovisual, 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
three (3) legible lead sheets, and/or demonstration records, and/or master
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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.
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.
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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, to 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. To collect royalties, monies and all other compensation or
advances for Licensed Usages of each and all of the Compositions throughout
the world 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 Two and One-Half percent (2.5%) 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.
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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 4.A. hereof; (2) all direct costs and expenses
(excluding secretarial, clerical and similar general overhead expense)
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 businesses 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 or 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.
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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
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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 effectively 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: ______________________________________
ELIZABETH A. PETERS, PRESIDENT
PUBLISHER:
TRUTHWORKS MUSIC (BMI) AND ITS AFFILIATED
ASCAP AND SESAC COMPANIES
BY: ______________________________________
DEZ DICKERSON
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