EXCLUSIVE SONGWRITING AGREEMENT As Amended

 

    IN CONSIDERATION of the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which each party acknowledges, the parties do hereby agree as follows:

 

    1.  Engagement and Exclusivity.   Composer agrees to render Composer's exclusive services to Publisher as an author, composer, arranger and adaptor of musical compositions during the term hereof. Composer agrees not to write, compose, arrange or adapt musical compositions for anyone other than Publisher during the term of this agreement. Composer further agrees to devote the necessary time, attention, skill and energy to Composer's duties hereunder and to render Bothend that the intent and purposes of this agreement may be fully realized and achieved.

 

       2.01      Composer hereby assigns to Publisher Composer's entire interest in and to all musical compositions and related works and materials written, composed, arranged, adapted or acquired in whole or in part by Composer (or by any person or entity owned or controlled by Composer in whole or in part) prior to the term hereof that has not been previously assigned to a third party publisher or during the term of this agreement (collectively the "Compositions") together with all copyrights therein and all renewals and extensions thereof throughout the world (the "Territory"), as well as all other rights of whatsoever nature therein, whether now in existence or hereafter coming into existence. The rights herein granted and assigned to Publisher in the Compositions shall include, without limitation, the right to reproduce the Compositions in copies or phonorecords, to prepare derivative works based upon the Compositions, to distribute copies or phonorecords of the Compositions, and to perform and display the Compositions publicly. All rights herein granted and assigned shall vest in Publisher immediately upon creation or acquisition of each Composition or any portion thereof. Composer warrants, represents and covenants that Exhibit A attached hereto accurately sets forth each Composition in existence as of the date hereof that has not been assigned to a third party publisher (the "Pre-existing Compositions").

 

       2.02      Publisher agrees to exert reasonable efforts to commercially exploit the Compositions in accordance with its customary business practices. Notwithstanding the foregoing, however, the method, manner and timing of any efforts to exploit any one or more of the Compositions, including the publication of sheet music or other printed editions, or the production of demonstration recordings thereof, or the decision to refrain therefrom, shall be determined by Publisher in its discretion.

 

   3.  Delivery and Instruments of Transfer.    Composer shall prepare and deliver to Publisher completed manuscripts, lead sheets or sound recordings and typed lyric sheets of each Composition hereunder immediately after the creation or acquisition thereof. Upon delivery of each Composition, Composer shall execute a separate instrument of transfer (in the form of Exhibit B annexed hereto, the provisions of which are incorporated herein and made a part hereof) with respect thereto. Thereafter, Composer shall also execute and deliver to Publisher such other documents and instruments with respect to the Compositions as Publisher, in its judgment, may deem necessary or desirable to effectuate the intent and purposes of this agreement or to evidence the rights granted to Publisher herein. Notwithstanding the foregoing, Composer hereby grants to Publisher the power of attorney to execute on Composer s behalf, any such instrument of transfer or any other document or instrument required or desired to be executed by Composer hereunder which is consistent with the terms hereof, and such agreement, document or instrument thereupon shall be fully valid, effective and operative as if personally executed by Composer. Said power of attorney shall be irrevocable and coupled with an interest and shall survive the termination of this agreement. With the exception of short-form assignments, copyright registration applications and copyright renewal applications, Publisher shall not exercise the foregoing power unless and until Composer fails to execute the document in question within five (5) days after Publisher's request that Composer do so. Publisher may dispense with the foregoing waiting period when necessary in Publisher's judgment to protect or enforce Publisher's rights, which shall not be a breach of this agreement. Notwithstanding the foregoing, the power of attorney herein granted may not be exercised by Publisher to grant to itself rights in any Composition after the proper exercise by Composer of the right to terminate a prior grant of such Composition under the applicable provisions of the United States Copyright Laws.

 

4.01     Fifty percent (50%) of any and all Gross Receipts derived from printed (including, without limitation, name and likeness print royalties attributable to Composer), mechanical, synchronization, performance and all other uses of the Compositions, provided that Composer shall not be entitled to share in Publisher's share of any sums received by Publisher with respect to public performances of the Compositions from any performing rights organization which pays a share of performance fees directly to writers or composers or any sums payable pursuant to the Audio Home Recording Act 17 U.S.C. §1001. et seq. ("AHRA").

 

4.02     Publisher shall not be required to pay royalties on professional or complimentary copies or any copies or derivative works which are distributed or sold at or below Publisher's cost or for promotional or similar purposes. In the event any Composition is cowritten by Composer and another person or persons, Publisher shall pay to Composer a share of the foregoing sums corresponding to Composer's authorship interest in the Composition.

 

4.03     The term "Gross Receipts" shall mean the gross sums actually received by Publisher or its agent in the United States (or credited against an outstanding advance previously paid Publisher to the extent Composer did not receive his share of said advance pursuant hereto), reduced by collection fees actually charged by any collection agent, subpublisher or organization (including, without limitation, subpublishers affiliated with Publisher) or legal fees, court costs, accounting fees or other direct costs incurred by Publisher in the collection of such sums. Gross Receipts shall not be deemed to include any portion of any advance payments, guarantee payments or minimum royalty payments which Publisher may receive in connection with any subpublishing agreement, collection agreement, licensing agreement or other agreement with respect to the Compositions unless such payments are made solely for the use of specific and separately identifiable Composition(s) and no other musical compositions or other works of authorship, in which event such sums shall be deemed Gross Receipts actually received by Publisher for such uses.

 

4.04     During the term hereof and thereafter until the end of the first accounting period in which all advances and other recoupable sums hereunder ("advances") are fully recouped (the "Recoupment Period"), Publisher shall have the right to collect (or authorize others to collect) the so-called "writer's share" of all monies payable with regard to the Compositions pursuant to the Audio Home Recording, Act, 17 U.S.C. §1001 et seq. ("AHRA Monies"), and Composer hereby assigns said AHRA Monies to Publisher. Publisher shall recoup all advances from the AHRA Monies and account for and pay to Composer 100% of the balance thereof in accordance with paragraph 5 below. At the end of the Recoupment Period, Publisher shall re-assign to Composer ail rights in and to AHRA Monies payable thereafter.

 

    7.       Name and Likeness.      Publisher shall have the exclusive right to use and to allow others to use Composer's legal and professional name and likeness, biographical material and facsimile signature in connection with the use, promotion and exploitation of the Compositions in particular, including, without limitation, personality folios, and in connection with institutional advertisements concerning Publisher, provided that nothing herein shall be deemed to grant Publisher any so-called "merchandising rights" in Composer's name, likeness, biographical material or facsimile signature. Publisher shall have the further sole and exclusive right to refer to Composer during the term hereof as Publisher's "exclusive writer" or words to that effect.

    9.      Minimum Writing Requirement.        During each year of the term, Composer shall compose and deliver to Publisher hereunder not less than twelve (12) new and original musical compositions of marketable commercial quality (as determined by Publisher in its sole discretion) written by Composer in their entirety during the year in question at the rate of not less than one (1) such musical composition each month ("Composer's minimum writing requirement"). Compositions which are arrangements of works in the public domain shall be subject to all the terms and conditions hereof but shall not apply towards Composer's minimum writing requirement. For the purposes hereof any Composition in which Composer's authorship interest is less than one hundred percent (100%) of the entire copyright shall be credited against Composer's minimum writing requirement in the same proportion as Composer's fractional authorship interest in the Composition in question. [For example, a Composition cowritten by Composer and two (2) other writers in equal shares would count as one- third (1/3) Composition for the purposes of determining Composer's compliance with his minimum writing requirement.] Composer shall not be deemed to have complied with Composer's minimum writing requirement until Publisher's actual receipt with regard to each Composition in question of the materials required to be delivered pursuant to the first sentence of paragraph 3 hereof.

 

    10.     Unique Services.       Composer acknowledges and agrees that Composer's services hereunder and the products thereof are unique and extraordinary, the loss of which would cause Publisher irreparable harm for which no adequate remedy at law exists. Composer acknowledges that Publisher, in addition to all other available rights and remedies, shall be entitled to equitable relief to enforce this agreement in the event of Composer's breach or threatened breach hereof.

 

    11.     Suspension.          If, for any reason, Composer fails or refuses to render Composer's services as provided in this agreement, (including, without limitation, failure to comply with Composer's minimum writing requirement) Publisher, without limiting any other rights it may have, shall have the right, by written notice to Composer, in its discretion, to terminate this agreement.

 

13.01   The Compositions are or will be new and original and will not infringe upon or unfairly compete with any other works, compositions, arrangements or material, and will not violate, invade, infringe upon or interfere with the rights of any third party.

 

13.02   Composer has the full right, power and authority to make this agreement, perform its terms and conditions, grant the rights herein granted to Publisher and furnish Composer's services hereunder, and to vest in Publisher all the rights as provided in this agreement free and clear of all other claims, rights, obligations and encumbrances whatsoever.

 

13.03   The exercise of Publisher's rights in and to each of the Compositions, including the copyright therein, will not violate, conflict with or unfairly compete with the rights of any third party, and there does not now and will not hereafter exist any claim by a third party in or to any of the Compositions and no third party has or will have any conflicting rights in and to any of the Compositions.

 

13.04    Composer has heretofore executed an agreement with the performing rights organization with which Publisher is affiliated. During the term of said agreement, said organization shall have rights of public performance of the Compositions. Composer agrees to give written notification to Publisher of any termination, modification or extension of said agreement within sixty (60) days of any such event.

 

    14.       Indemnification.

 

14.01  Composer shall and does hereby indemnify save and hold Publisher harmless from any loss or damage, including reasonable attorneys' fees, arising out of or in connection with any breach or default by Composer hereunder or any claim against Publisher by a third party which is inconsistent with any of the warranties, representations and covenants or agreements made by Composer in this agreement. In the event of the assertion of any claim against Publisher by a third party which is inconsistent with any of the warranties, representations, covenants or agreements made by Composer in this agreement, including, without limitation, a claim that any Composition infringes upon any other musical composition. Publisher shall promptly serve notice of such claim upon Composer, and Composer may, at Composer's sole cost and expense, participate in the defense of any such claim, provided that Publisher shall have the right to control the defense thereof subject to the foregoing. Publisher shall be entitled to settle any such claim and shall be entitled to indemnification in respect of any such settlement, unless Composer shall demonstrate in writing, within five (5) days after Composer's receipt of notice that Publisher intends to settle such claim, a good faith and reasonable basis for objecting to such settlement, which basis is not inconsistent with the terms of this agreement and the consummation of the transactions contemplated hereby; provided, however, that if such basis is so demonstrated, Publisher shall, nonetheless, be entitled, at its election:

 

    16.      Demonstration Recordings.

 

16.1. Composer shall not be entitled to any compensation of any nature with respect to any services rendered by Composer in any capacity in connection with recordings of the Compositions for demonstration purposes ("Demos"). Composer shall incur no costs in connection with Demos for which Publisher shall be responsible (including, without limitation, any costs associated with any recording studio or facility owned by Composer in whole or in part) without Publisher's prior written consent in each instance. Subject to the foregoing, Publisher will not disapprove a budget for Demo recording costs with regard to any Composition which is otherwise acceptable to Publisher and which does not exceed Six Hundred Dollars ($600.00), prorated in the event that Composer's authorship of the Composition in question is less than one hundred percent (100%). All Demos, Master Productions, and all other recordings and reproductions made at Demo sessions or otherwise hereunder shall be the sole and exclusive property of Publisher. Fifty percent (50%) of the costs of the production of Demos shall be deemed advances to Composer, recoupable from any sums otherwise payable to Composer pursuant hereto. Nothing herein, however, shall obligate Publisher to produce or allow the production of a Demo of any one or more Compositions.

 

16.2. Publisher shall not exploit commercially any Demo containing Composer's featured vocal performances without obtaining Composer's prior consent in each instance, which Composer shall not unreasonably withhold. In the event, however, Publisher commercially exploits any Demo with Composer's consent the income actually received by Publisher with regard to such exploitation (after deduction of all expenses associated therewith) shall be deemed to be Gross Receipts hereunder.

 

    17.      Approvals.     With regard to any right granted Composer herein to consent to or approve any designated thing or action:

 

17.1 Composer agrees not to withhold Composer's consent or approval unreasonably; and,

 

17.2 Composer shall be deemed to have rendered Composer's consent or approval in any given instance in which Composer, or someone on Composer's behalf, fails to respond to Publisher's request for same within five (5) business days after Publisher's request therefore.

 

    19.      Cure of Defaults.     As a condition precedent to the assertion by either party hereto that the other party is in default in performing any obligation contained herein (with the exception of Composer's obligations of exclusivity to Publisher and alleged breaches of the provisions of paragraph 9 hereof), the asserting party shall advise the other party in writing specifying any such alleged default, and such party shall be allowed a period of thirty (30) days after such written notice within which to cure such alleged default. For the purposes hereof, no alleged breach of this agreement by either party shall be deemed incurable, provided that nothing shall prohibit a party from seeking equitable relief to prevent or restrain any alleged breach hereof.

 

    20.      Advances.

 

20.01 Provided Composer has fully complied with all the terms and conditions hereof. Publisher shall pay the following advances to Composer during the term of this agreement which shall be deemed nonreturnable advances recoupable from any and all royalties otherwise payable to Composer pursuant hereto:

 

(a)      Monthly Payments of Two Thousand Dollars ($2,000) per month.

 

20.02  From time to time during the term hereof, Composer may travel in connection with the rendition of his services hereunder. If Publisher, in its sole discretion, agrees in writing to advance additional sums to Composer in connection with such travel, the sums so advanced shall be recoupable from any royalties otherwise payable to Composer hereunder.

 

20.03  Fifty percent (50%) of ail sums expended by Publisher in connection with the independent promotion of records embodying any Composition which are incurred with Composer's prior approval shall be deemed advances to Composer hereunder, recoupable from any royalties otherwise payable to Composer hereunder.

 

    21.      Notices.     All notices given hereunder by either party to the other (excluding accounting statements) shall be transmitted in writing by United States registered or certified mail, return receipt requested and postage prepaid, or by telegraph to the parties' addresses set forth above or to such other address as a party shall designate by notice to the other. All notices and accountings shall be deemed given upon the date of deposit thereof in the United States Mail with the exception of notices of change of address which shall be deemed given only upon actual receipt by the intended recipient. Courtesy copies of all notices shall be provided as follows:

 

 

(1)      Royalties which shall be paid by Publisher to Composer pursuant to this agreement and royalties which shall be paid by Publisher to any other publishers or writers of the Copublished Compositions;

(2)      Direct, reasonable, out-of-pocket, administrative and exploitation expenses of Publisher with respect to the Copublished Compositions, including, without limitation, registration fees, advertising and non-in-house promotion expenses directly related to the Copublished Compositions, Demo production costs related to the Copublished Compositions (to the extent not recouped from royalties otherwise payable to Composer), and the costs of transcribing for lead sheets.

 

(3)      Attorneys' fees, if any, actually paid by Publisher for any agreements (other than the within agreement) affecting solely the Copublished Compositions.

 

 

       24.03  Notwithstanding the foregoing, at any time after the Reversion Date, Copublisher shall have the right to notify Publisher of its election that Copublisher administer its ownership interest in the copyrights in the Copublished Compositions and the right to administer the royalties payable to Composer hereunder (collectively, "Copublisher's Interest"), subject to any existing licenses and agreements. "Reversion Date" refers to the later of (a) three (3) years following the date of the expiration of the term hereof and (b) the date Publisher renders an accounting statement hereunder to Composer/Copublisher reflecting Publisher's recoupment or receipt of repayment from Copublisher of all unrecouped advances and other recoupable charges hereunder. Any such reversion shall be effective as of the end of the first full calendar semi-annual period after Publisher's receipt of such notice. Thereafter, Copublisher shall have the right to administer Copublisher's Interest in the