filed: new york county clerk 07/12/2012

filed: new york county clerk 07/12/2012
INDEX NO. 652429/2012
FILED: NEW YORK COUNTY CLERK 07/12/2012
NYSCEF DOC. NO. 1
RECEIVED NYSCEF: 07/12/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------)(
Index No.: _ _ _ _ _ __
HEAVY ROTATION LLC,
Plaintiff,
Date Filed:- - - - - - -
v.
EARL SIMMONS PIKIA DM)(, J-MIKE
MANAGEMENT AND ENTERTAINMENT, LLC
and JASON FOWLER,
Plaintiff designates New York
County as the place of trial.
SUMMONS
Defendants.
-------------------------------------------------------------)(
To the Above-Named Defendant(s):
You ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy
of your Answer, or, if the Complaint is not served with this Summons, to serve a notice of
appearance, on the Plaintiff s attorneys within 20 days after the service of this Summons,
exclusive of the day of service (or within 30 days after the service is complete if this Summons is
not personally delivered to you in the State of New York); and in case of your failure to appear
or answer, judgment will be taken against you by default for the relief demanded in the
Complaint.
The basis of the venue designated is the Plaintiffplace of business, which is in New York
County at 64 Fulton Street, Suite 1100, New York, NY 10038 and agreement between the
parties.
Dated: New York, New York
July 12, 2012
MEISTER SEELIG & FEIN LLP
Gary Adelman, Esq.
Two Grand Central Tower
140 East 45 th Street, 19th Floor
New York, NY 10017
Phone: (212) 655-3580
Attorneys for Plaintiff
To:
Earl Simmons plkla DM)(
142 McLain Road
Mt. Kisco, New York 10549
1
J -Mike Management and Entertainment, LLC
225 Country Forest Lane
Lyman, South Carolina 29365
Jason Fowler
225 Country Forest Lane
Lyman, South Carolina 29365
2
THE SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
)(-------------------------------------------------------)(
HEAVY ROTATION LLC,
Index No.:_ _ _ _ _ _ __
Plaintiff,
v.
VERIFIED COMPLAINT
EARL SIMMONS PIKJA DM)(, J-MIKE
MANAGEMENT AND ENTERTAINMENT,
LLC and JASON FOWLER,
Defendants.
)(-------------------------------------------------------)(
Plaintiff HEAVY ROTATION LLC ("Heavy Rotation" or "Plaintiff') by its
attorneys Meister Seelig & Fein LLP, alleges as and for its Complaint against EARL
SIMMONS p/k/a DM)( ("DM)("), J-MIKE MANAGEMENT AND ENTERTAINMENT
("J-Mike") and JASON FOWLER ("Fowler") (collectively "Defendants") as follows:
NATURE OF THE CASE
1.
This is an action by Plaintiff Heavy Rotation for injunctive relief, specific
performance, breach of contract, unjust enrichment, quantum meriut, fraud, and
intentional interference with contract.
NATURE OF THE PARTIES
2.
Heavy Rotation is a limited liability company duly organized under the
laws of New York, with its principal place of business located at 64 Fulton Street, Suite
1100, New York, New York, 10038.
3.
Heavy Rotation is a booking agency founded in 1998, which specializes in
booking urban musical artists in the United States and around the world. Heavy Rotation
was founded by Sivash Aghaiepour ("Aghaiepour"), previously a club promoter, who
1
wanted to introduce urban artists to the German club scene. Aghaiepour began by
booking deejay legends such as Tony Touch. Through Aghaiepour's success his
reputation began to grow and Heavy Rotation quickly developed a reputation in the
German club scene for being able to bring deejays from the United States to perform in
clubs overseas. Soon thereafter club promoters started contacting Heavy Rotation to
book talent for their shows. In fact, Heavy Rotation organized the Lucky Strike Beatnuts
Tour throughout Germany, Switzerland and Austria. After the tour's success, Germany's
festival promoters began to rely on Heavy Rotation to handle the talent buying for the
urban genre for their festivals. Heavy Rotation placed famous artists such as Busta
Rhymes, Raekwon, and Mobb Deep, to name a few, at Europe's leading festivals such as
the Splash Festival and the MTV Hip-Hop Open.
4.
Through Heavy Rotation's strong relationships with urban deejays in the
United States, Heavy Rotation started booking after parties for famous artists such as 50
Cent, Alicia Keys and Eminem. Clothing brands such as Rocawear, Baby Phat,
Southpole and Phat Farm also used the agency to provide talent for their corporate
events.
5.
Heavy Rotation was also the first agency to introduce southern hip-hop
artists such as the Ying Yang Twins, Lil Scrappy and Lil Jon to the European club scene.
6.
As a result of Heavy Rotation's hard work and valuable relationships with
clubs, festival promoters and artists, Heavy Rotation now books artists at venues across
the United States and in countries around the world.
7.
Upon information and belief, DMX is a natural person domiciled in the
State of New York who resides at 142 McLain Road, Mt. Kisco, New York 10549.
2
8.
Upon information and belief Fowler is a natural person who currently
resides in the state of South Carolina at 225 Country Forest Lane, Lyman, South Carolina
29365.
9.
Upon information and belief J-Mike is a limited liability company duly
organized under the laws of South Carolina, with its principal place of business located at
225 Country Forest Lane, Lyman, South Carolina 29365.
10.
Upon information and belief J-Mike, is a management firm owned and run
by Fowler.
11.
Upon information and belief when DMX hired Fowler and J-Mike as his
manager, DMX granted Fowler and J-Mike authority to act on his behalf as his agent.
JURISDICTION AND VENUE
12.
Venue in this action is proper pursuant to CPLR § 503(a) as New York is
Heavy Rotation's county of residence. Additionally, pursuant to CPLR § 501, venue in
New York County was agreed to, in writing by the parties prior the commencement of
this action.
13.
The Court has personal jurisdiction over DMX as he is a resident of New
York and is domiciled in this State.
14.
Upon information and belief, the Court has personal jurisdiction over J-
Mike and Fowler pursuant to CPLR § 302(a)(1) as J-Mike and Fowler regularly transact
business within the state of New York and contract to supply the services of DMX within
the State of New York. CPLR § 302(a)(3) also confers jurisdiction over J-Mike and
fowler as they have committed tortious acts, by making fraudulent misrepresentations and
tortiously interfering with contracts, that have caused substantial injury to Heavy
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Rotation, which is a person within New York State. Additionally, J-Mike and Fowler
regularly do or solicit business and derive substantial revenue from DMX rendering
services in New York State and J-Fowler and Mike expected or should reasonably
expected their fraudulent misrepresentations and tortuous acts to have consequences
within New York State. Lastly through their activities as entertainment managers J-Mike
and fowler derive substantial revenue from interstate and international commerce.
15.
Personal jurisdiction over all Defendants is also proper as Defendants
submitted themselves to the jurisdiction of the Supreme Court of the State of New York
by written agreement between the parties for the purposes of the claims made by Plaintiff
in this action.
FACTUAL BACKGROUND
16.
In August of2011, Heavy Rotation was introduced to DMX by Julio J
Martinez, who at the time was DMX's road manager and friend.
17.
Aghaiepour met with DMX. At the time DMX had recently been released
from jail. DMX had heard of Heavy Rotation because of Heavy Rotation's valuable
reputation within the music community. At the time they met, DMX expressed that he
wanted to work with Heavy Rotation and needed Heavy Rotation's help to tum his career
around and get him back on track.
18.
At the time DMX had a different offer from a different booking agent in
Germany. DMX asked Aghaiepour if Heavy Rotation would work with DMX as his
exclusive agent to book him shows in the United States, Europe and other places around
the world. In fact DMX specifically said that if Heavy Rotation would match the offer
from the German booking agent and pay him an advance, DMX would give Heavy
4
Rotation exclusivity because DMX knew that Heavy Rotation provided domestic and
international booking services.
19.
DMX informed Aghaiepour that there was a lien on his passport because
of child support payments that had not been made to Divita Darcy (the "Darcy Lien"). At
the time DMX represented that he owed arrears in the amount of approximately $50,000.
DMX asked Heavy Rotation to pay $50,000 of his advance to Divita Darcy ("Darcy") so
that the Darcy Lien would be removed. DMX also asked Heavy Rotation to pay for a
lawyer for DMX to help DMX with any paperwork that would be necessary to remove
the Darcy Lien and re-apply for his passport.
20.
DMX also requested that Heavy Rotation help rehabilitate his online
image. Heavy Rotation and DMX agreed that DMX would start doing shows and
bettering his image and Heavy Rotation would start working with various internet service
providers to take down negative images and videos of DMX.
21.
Prior to entering into the agreement Aghaiepour, at the behest of DMX,
contacted Darcy to ascertain the status of the Darcy Lien. Darcy expressed a willingness
to enter into a payment arrangement with DMX so that the Darcy Lien could be lifted and
DMX could re-apply for his passport.
THE AGREEMENT BETWEEN HEAVY ROTATION AND DMX
22.
In or about August 15,2011, Heavy Rotation and DMX entered into the
Exclusive Booking Agent / Promotion Agreement (the "Agreement"). A true and correct
copy of the Agreement is annexed hereto as Exhibit A.
23.
On August 15,2011, Heavy Rotation gave the Agreement to DMX who
verbally agreed to the terms in the Agreement.
5
24.
Upon information and belief, DMX did not return the signature pages of
the Agreement until October 13,2011.
25.
Notwithstanding the delay in returning the signature pages, DMX agreed
to enter into, perform under and be bound by the Agreement as of August 15,2011.
26.
The Agreement was entered into in the State of New York.
27.
Pursuant to the terms ofthe Agreement, Heavy Rotation was granted the
exclusive right to bind DMX to perform at music shows in the Territory, i.e. the World,
during the Term. "No other person or entity [has] the right to book [DMX] during the
term, unless there are gaps in shows and then DMX can use another agent to fill in the
gaps, but Agent [has] the first right of refusal to have all shows." Additionally the
Agreement provides that "[Heavy Rotation] shall have the right during the Term to
advertise itself as [DMX's] exclusive personal Agent." See Exhibit A, p. 1.
28.
The Term of the Agreement consisted of an initial period of one (1) year
commencing on August 15,2011 (the "Initial Period"), followed by three (3) irrevocable
options for Heavy Rotation to extend the term of the Agreement for additional periods of
one (1) year each. See Exhibit A.
29.
As consideration for Heavy Rotation's services in booking shows for
DMX, Heavy Rotation would be compensated by retaining an agent' fee of 10% from
DMX's bookings.
30.
In consideration for DMX's promises of exclusivity and performance at
bookings made by Heavy Rotation, Heavy Rotation agreed to pay initial advances to
DMX and/or on his behalf in the total amount of $60,000 (the "Initial Advances").
Pursuant to the Terms of the Agreement Heavy Rotation was to pay $10,000 of the Initial
6
Advance to DMX and $50,000 of the Initial Advance directly to Darcy, on DMX's
behalf.
31.
The Agreement also provided that Heavy Rotation "may" advance further
advances at Heavy Rotation's discretion (the "Further Advances").
32.
DMX authorized Heavy Rotation to deduct and retain the amount of any
advances from any sums Heavy Rotation received that are due to DMX for performances
under the Agreement until the advances were paid in full.
HEAVY ROTATION'S PERFORMANCE UNDER THE AGREEMENT
33.
Shortly after entering into the Agreement, in or around August and early
September of 20 11, Heavy Rotation paid the first part of the Initial Advances in the
amount of$10,000 in cash to DMX, pursuant to the terms of the Agreement.
34.
Additionally, pursuant to the Agreement, Heavy Rotation began
contacting venues in Europe to book a tour of performances for DMX in October of
2011.
35.
Upon information and belief, in late August or early September of2011,
DMX was arrested for a driving infraction.
36.
DMX contacted Aghaiepour and requested that Heavy Rotation send him
$1,800 as a Further Advance, so that he could bail himself out of j ail. Heavy Rotation
sent him the additional $1,800 as a Further Advance under the Agreement and DMX was
released from jail.
37.
After wiring DMX the money, Aghaiepour flew to see DMX to discuss
the upcoming tour dates for DMX.
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38.
At their meeting Aghaiepour expressed his concern that DMX's actions
were jeopardizing the tour Heavy Rotation was organizing. DMX promised Aghaiepour
that he would not get into any more trouble. At the meeting Aghaiepour and DMX also
discussed the anticipated tour dates in October of 20 11. At the time Heavy Rotation had
not finalized the dates.
39.
DMX requested that Heavy Rotation move the tour to the end of October
and into November of2011, which Heavy rotation agreed to do. DMX expressly agreed
to 20 days of travel outside the United States for the tour dates in late October and
November of2011.
40.
After this conversation Heavy Rotation began booking shows for DMX in
late October and November of2011.
41.
The only reason the foreign venues agreed to book DMX for shows was
because of Heavy Rotation's highly respected reputation and Aghaiepour's assurances
that DMX would be able to travel and perform at said bookings.
42.
Heavy Rotation and Aghaiepour had every reason to believe that DMX
would perform at these bookings because DMX promised to do so in the Agreement and
Heavy Rotation had agreed to pay Darcy $50,000 on DMX' s behalf so that the Darcy
Lien would be removed and DMX could re-apply for his passport.
43.
DMX also asked Heavy Rotation to organize a publicity presence on the
internet, which Heavy Rotation did. By way of example, Heavy Rotation created
itallmakessense.com to publicize DMX's return to touring. Heavy Rotation also spent at
least 52 hours helping clean up DMX's image online.
8
44.
As a result of the publicity for the European tour Heavy Rotation was
organizing, Heavy Rotation started receiving inquiries from venues and club promoters
who wanted to book performances for DMX in the United States. Heavy Rotation started
to tentatively set up dates for domestic performances.
45.
Upon information and belief, on or about September 30,2011 DMX hired
Fowler and J-Mike as his manger.
46.
In or around the beginning of October 2011, DMX, through Fowler, sent
Heavy Rotation the signature pages of the Agreement.
47.
Fowler and J-Mike had knowledge of the Agreement and the terms of the
Agreement between Heavy Rotation and DMX.
48.
Shortly thereafter pursuant to the Agreement, Heavy Rotation paid the
remaining portion of the Initial Advances in the amount of$50,002.00 to Darcy on behalf
ofDMX.
49.
In total, Heavy Rotation paid to or on behalf ofDMX Initial Advances
under the agreement in the amount of $60,002.00.
50.
Additionally, between October of2011 and January 2012, Heavy Rotation
paid DMX, or on his behalf, Further Advances under the agreement, in the amount of at
least $48,977.
DEFENDANTS' BREACHES OF THE AGREEMENT
51.
Shortly after J-Mike and Fowler were hired, in mid October of2011,
Fowler and J-Mike began distributing their contact information as DMX's booking
contact, instead of Heavy Rotation.
9
52.
At that time the tour dates for shows abroad were scheduled for late
October 2011 and November 2011 and the domestic tour dates were scheduled for
January 2012. These dates had been finalized and agreed to by DMX.
53.
In or around early October of2011, it became apparent that the Darcy
Lien would not be lifted in time for the European tour scheduled to begin in October
2011.
54.
Around that time, Fowler and J-Mike expressed their desire to add some
dates in the United States for DMX. Fowler and J-Mike requested that Heavy Rotation
move the November 2011 tour dates to begin in early December 2011.
55.
Heavy Rotation agreed to move the October and November 2011 tour
dates to begin in late November and early December 2011, however Heavy Rotation had
to cancel a couple of shows as a result of the change. The parties agreed to start the tour
with a show in Africa on November 28, 2011, and move on to Europe after that. The
domestic dates that Heavy Rotation had booked in January of2012 would not change.
56.
On or about October 28,2011, DMX performed a show in Atlanta,
Georgia that had been booked by Heavy Rotation.
57.
After the show in Atlanta, Fowler and J-Mike informed Heavy Rotation
that DMX no longer wanted Heavy Rotation to do DMX's domestic bookings and that
Heavy Rotation should only book international shows for DMX.
58.
Fowler and J-Mike began booking domestic shows for DMX. By way of
example Fowler and J-Mike booked shows for DMX on November 26,2011 in St. Louis,
December 1-4,2011 in Texas, February 25,2012 in San Diego, February 23, 2012 in
10
New York City, February 17,2012 in Reno and February 16,2012 in Las Vegas.
Defendants never gave Heavy Rotation a right of first refusal for these shows.
59.
By reason of Defendants booking domestic shows directly, Heavy
Rotation was denied the ability to obtain the benefit ofthe Agreement i.e. earning a fee
for these and other domestic bookings.
60.
Then on or about November 5, 2011, in violation of the Agreement,
Fowler and J-Mike informed Heavy Rotation that DMX intended to breach the
Agreement and instructed Heavy Rotation not to book any further shows. Fowler and JMike further informed Heavy Rotation that DMX would be returning all of the advances.
61.
Aghaiepour immediately flew to South Carolina to meet with Fowler.
Fowler informed Aghaiepour that DMX wanted to work with another booking agency,
Streetlife International GmbH ("Streetlife").
62.
Shortly thereafter Aghaiepour met with DMX and Fowler. At this
meeting DMX denied that he had any intention of working with Streetlife and
specifically told Aghaiepour that DMX had rejected Streetlife's offer and expressed
DMX's ongoing desire to work with Heavy Rotation.
63 .
Heavy Rotation relied upon DMX's statements and continued to perform
under the Agreement.
64.
Although Heavy Rotation continued to perform it was concerned that
DMX did not have his passport issues resolved, because it had booked tour dates abroad,
which DMX had agreed to, in December 2011 .
11
65.
Shortly thereafter Defendants requested that Heavy Rotation pay DMX
additional advances. DMX told Aghaiepour that he needed the money to stop a
foreclosure action against his wife's home.
66.
Then, on or about November 9, 2011, Fowler sent an email to Heavy
Rotation demanding that Heavy Rotation pay DMX an additional $135,000 by the end of
the day. Fowler and J-Mike's November 9,2011 email further represented that Fowler
would personally be flying to Arizona on November 11,2011 to take care ofDMX's
passport issue and represented that the passport would be finalized by November 14,
2011.
67.
Pursuant to the Agreement, Heavy Rotation had no obligation to give
DMX any Further Advances. However, Heavy Rotation had the discretion to, and did,
wire $20,000 to DMX's wife on DMX's behalf as a Further Advance under the
Agreement on November 9, 2011.
68.
Thereafter, in mid November 2011 Defendants informed Heavy Rotation
that DMX wanted to be in a television show in December of2011 and Heavy Rotation
should postpone the tour dates abroad again. Defendants requested that the tour dates
begin in January, 2012.
69.
In or around November 2011, Heavy Rotation also learned that the Darcy
Lien was actually in the amount of $285,000, not $50,000 as DMX had represented to
Heavy Rotation initially.
70.
Upon information and belief, DMX and Darcy entered into an agreement
wherein, in addition to the $50,000 that had already been paid to Darcy on DMX's behalf
by Heavy Rotation, DMX would pay Darcy $5,000 a month until the child support had
12
been paid off in whole. In exchange Darcy agreed to drop her case, which would in turn
release the Darcy Lien on DMX's passport.
71.
Heavy Rotation was very concerned about pushing back the tour dates a
third time and relied upon Defendants' assurances that DMX would perform under the
Agreement and that DMX's passport issues were resolved.
72.
DMX failed to perform at the show in Africa on November 28,2011
because he did not have his passport and could not travel out of the country.
73.
DMX and Fowler instructed Heavy Rotation not to tell anyone that DMX
did not have his passport and concealed the reason DMX could not attend the show in
Africa. In Folwer's communications with the booking agent for the show in Africa,
Fowler blamed the booking agent for the show in Africa and said that DMX did not
attend the show because he accused the promoter of paying the deposit late so they had
already booked another show in the United States.
74.
In reality DMX did not have another show booked on November 28,2011.
75.
Heavy Rotation used its best efforts to move the tour dates to begin in
January 2012. Many of the club promoters were extremely unhappy that they had to
rebook their venue for DMX for a third time. The club promoters were also upset
because most of them had already gone out of pocket for radio promotions, print costs,
venue rentals etc., and moving the show dates again would cost them additional money.
76.
Heavy Rotation was able to convince most of them to change the dates
because of its close working relationship with these club promoters and its valuable
business reputation. However some of the promoters were not willing to re-book the
dates for a third time.
13
77.
In or around early December 2011, Defendants again requested that Heavy
Rotation send them additional advances under the Agreement. Defendants again began
threatening to breach the Agreement with Heavy Rotation, and book the tour dates
through Streetlife if Heavy Rotation would not give DMX further advances.
78.
At this point Heavy Rotation was very concerned that DMX still had not
received his passport. Heavy Rotation expressed to Defendants that it was concerned
about DMX still not having a passport given that the tour dates abroad were scheduled
for January of2012.
79.
Heavy Rotation informed Defendants that he would not release any
additional monies as Further Advances until DMX had shown a valid passport to Heavy
Rotation and Defendants agreed.
80.
Defendants assured Heavy Rotation that the Darcy Lien had been removed
pursuant to DMX's agreement with Darcy and that DMX could have his passport within
a couple of days as soon as he could request it from the appropriate authorities.
81.
In fact on December 13, 2011, Fowler specifically informed Heavy
Rotation, by email, that the paperwork to re-apply for the passport would be filed that
day.
82.
Based upon that representation, on December 13, 2011, Heavy Rotation
sent a Further Advance in the amount of$5,000 to Fowler on behalf ofDMX.
83.
On December 28,2011, J-Mike and Fowler informed Heavy Rotation that
although the Darcy Lien had been removed the paperwork had not been sent to the right
government agency, but assured Heavy Rotation that Fowler would personally call and
ensure that the passport could be released.
14
84.
Then on or about January 2, 2012, only days before the scheduled
perfonnance dates abroad, Heavy Rotation found out that DMX could not leave the
country and would not be appearing at the scheduled tour dates because there was a
second lien on his passport from a child support unit in California because ofDMX's
failure to pay child support in the amount of$I,OOO,OOO to a second woman (the "Second
Lien").
85.
When Heavy Rotation confronted Defendants about the Second Lien,
Fowler and J-Mike denied that it existed. Fowler told Aghaiepour that the Second Lien
was actually the Darcy Lien and represented to Heavy Rotation that Fowler had spoken
with the child support unit himself and they had told Fowler that it would only take 2-3
business days to get the Darcy Lien cleared from the system.
86.
Fowler asked Heavy Rotation not to call the child support unit because it
may lengthen the process of removing the lien.
87.
In reality, upon infonnation and belief, Fowler did not want Heavy
Rotation to call because he did not want Heavy Rotation to find out about the Second
Lien.
88.
On January 3, 2012, Fowler and J-Mike sent a letter to promoters who
booked shows through Heavy Rotation, which stated that "DMX will not be able to come
to Europe to perfonn at the dates booked in January 2012." The correspondence further
urged promoters to work with Defendants directly to reschedule the dates for a later time
in 2012.
89.
That same day, January 3, 2012, unbeknownst to Heavy Rotation, Fowler
sent Streetlife a cease and desist letter that was addressed to Heavy Rotation (the "Cease
15
and Desist Letter"), which demanded that Heavy Rotation "cease and desist from falsely
purporting to promote concert tour dates for [DMX] as [DMX] has no affiliation with
[Heavy Rotation] and [Heavy Rotation does] not have the authority, actual, implied or
otherwise, to represent [DMX] in [DMX's] affairs or to act as [DMX's] legal agent in
any capacity."
90.
Upon information and belief the Cease and Desist Letter was initially only
sent to Streetlife so they could use it to fraudulently represent that Heavy Rotation was
not DMX's booking agent.
91.
However, upon information and belief, Streetlife with the consent of or at
the direction of Defendants distributed the Cease and Desist Letter to third party club
promoters.
92.
A couple of days later, a third party who works with Heavy Rotation sent
a copy of the Cease and Desist Letter to Heavy Rotation.
93.
When Heavy Rotation found out about the Cease and Desist Letter it
confronted Defendants. Fowler denied having sent the Cease and Desist Letter.
94.
At that point the tour was days away. Heavy Rotation independently
confirmed the existence of the Second Lien and again confronted Defendants about it.
During that conversation Fowler, who was with DMX in Los Angeles at the time, assured
Heavy Rotation that the Second Lien would not be a problem because DMX was not the
father ofthe child and DMX was going to have a DNA test done to confirm that fact.
95.
Heavy Rotation asked Defendants to have the DNA test done
immediately, because if the results were obtained immediately there could still be a
chance to get DMX's passport and save the tour.
16
96.
DMX wanted to wait to do the DNA test until he went back to South
Carolina a couple of days later.
97.
Knowing that would be too close to when DMX needed his passport to
leave for the tour, Heavy Rotation, relying on DMX's statements that he was not the
father, offered to send a doctor to DMX's hotel room to perform the DNA test. DMX
agreed and Heavy Rotation paid $3,000 for a doctor to go to DMX's hotel the following
day and perform the test.
98.
Upon information and belief, sometime prior to January 3, 2012,
Defendants authorized Streetlife to act as his booking agent.
99.
Upon information and belief, shortly thereafter, on or about January 9,
2012, Streetlife began disseminating the Cease and Desist Letter to the booking agents
that Heavy Rotation worked with to organize tour dates for DMX. Streetlife sent the
Cease and Desist Letter along with an email encouraging those booking agents and
venues to re-book DMX's tour dates through Streetlife.
100.
Upon information and belief, Defendants authorized Streetlife to distribute
the Cease and Desist Letter and to try to re-book the tour dates through Streetlife.
101.
Despite the fact pursuant to the terms of the Agreement Heavy Rotation is
DMX's exclusive agent, Defendants encouraged promoters to work with J-Mike, Fowler
and/or Streetlife to reschedule the same tour dates and venues that Heavy Rotation had
previously booked.
102.
Additionally, upon information and belief, Defendants have been telling
the club promoters, venues and other third parties that Heavy Rotation was never
17
authorized to book shows for DMX and that DMX never received any money from
Heavy Rotation.
103.
DMX failed to perfonn at the shows booked by Heavy Rotation in
January, 2012.
104.
Now, venues and club promoters that previously paid deposits to Heavy
Rotation for DMX performances have demanded their deposits refunded and/or
threatened legal action against Heavy Rotation for the return of their deposits.
105.
Upon infonnation and belief, the venues and promoters have demanded
their money back because based upon Defendants misrepresentations they believe that
DMX never received any advances from Heavy Rotation. Additionally venues and club
promoters have demanded their money back so they can re-pay the same deposits to
DMX's new agent, Streetlife, who is booking shows for DMX at the exact same venues
that Heavy Rotation previously booked DMX performances with.
106.
Upon information and belief, Defendants encouraged venues and
promoters to re-book the tour dates through J-Mike, Fowler and/or Streetlife in order to
avoid paying Heavy Rotation the agent fee under the Agreement.
107.
As a direct and proximate result of Defendants actions Heavy Rotation has
lost the ability to earn its agent fee that it was promised under the Agreement in at least
the amount of$55,754.32, despite the fact that it worked very hard on DMX's behalf to
book tour dates for him and pursuant to Defendants' requests worked to re-book those
dates twice.
108.
As a direct and proximate result of Defendants above actions Heavy
Rotation has suffered severe damage to its valuable business reputation with the club
18
promoters and venues that it has spent years developing and which Heavy Rotation
depends upon to be able to conduct its business.
109.
Furthennore as a direct and proximate result of Defendants actions Heavy
Rotation has been damaged in the amount of monies it has paid in Initial Advances and
Further Advances in the amount of at least $108,977.00, which it also lost the ability to
recoup, because DMX has refused to and failed to perfonn pursuant to the Agreement.
110.
As a direct and proximate result of Defendants actions Heavy Rotation has
also been damaged in the amount it paid in out of pocket costs for travel and lodging for
DMX and his agents, in the amount of at least $3,839.96.
111.
Additionally, the venues and/or promoters that had already paid deposits
to Heavy Rotation, have demanded their money back, and refused to do any further
business with Heavy Rotation until it is paid. Their refusal to do business with Heavy
Rotation has interfered with Heavy Rotation's ability to book shows for other artists it
represents. As a direct and proximate result of Heavy Rotation's inability to do business
with these promoters and venues with its other clients it has lost almost $20,000 and will
continue to lose monies until the problem is fixed.
112.
In addition to this many ofthe promoters and venues have threatened
lawsuits against Heavy Rotation and claimed that Heavy Rotation should refund their
legal costs in connection with DMX's failure to perfonn under the Agreement.
113.
Pursuant to the Agreement DMX should indemnify Heavy Rotation for all
loss, damage and expense (including reasonable attorneys' fees) arising out of or
connected with DMX's breach of the Agreement and any claim by the club promoters
19
and venues that arise from DMX's failure to perform and breach of warranties and
representations in the Agreement.
COUNT I
INJUNCTIVE RELIEF
114.
Heavy Rotation repeats and re-alleges each and every allegation in
paragraphs 1 to 113 above as if fully set forth herein.
115.
As set forth above, there is a valid binding Agreement between the parties,
which is annexed to this Complaint as Exhibit A.
116.
Pursuant to the terms of the Agreement between Heavy Rotation and
DMX, Heavy Rotation was given the exclusive right to book performances for DMX.
117.
Heavy Rotation fully performed its obligations under the Agreement by
inter alia, paying DMX the Initial Advances and Further Advances and providing
booking and other services for DMX under the Agreement.
118.
DMX has repeatedly failed to abide by the terms ofthe Agreement by
inter alia, failing to perform at shows booked by Heavy Rotation abroad and within the
United States, authorizing Streetlife, J-Mike and/or Fowler to book shows on DMX's
behalf and falsely representing to third parties that Heavy Rotation was not authorized as
DMX's agent.
119.
By failing to perform and authorizing Streetlife, Fowler and/or J-Mike as
DMX's agent, DMX is refusing to and failing to perform under the Agreement.
120.
Furthermore by authorizing Streetlife to book shows on his behalf and
sending press releases that falsely allege that Heavy Rotation was not authorized to act as
DMX's agent, DMX and Fowler, have damaged and continue to damage Heavy
Rotation's valuable business reputation.
20
121.
As a direct and proximate result ofDMX's breaches of the Agreement,
Heavy Rotation has suffered extensive damage to its business reputation. Heavy
Rotation has also lost its ability to benefit from the Agreement.
122.
If Defendants are allowed to continue to book andlor use agents other than
Heavy Rotation to book shows for DMX, Heavy Rotation will continue to suffer damage
to its valuable business reputation.
123.
Heavy Rotation is without any adequate remedy at law and if the
injunction is not granted Heavy Rotation will suffer irreparable damage to its business
reputation.
124.
As such this Court should enjoin DMX and any of his agents, including
Fowler and J-Mike: (i) from booking or authorizing anyone but Heavy Rotation to book,
shows for DMX in the United States or abroad pursuant to the terms of the Agreement;
and (ii) from disseminating the Cease and Desist Letter or communicating to any thirdparty that Heavy Rotation was not authorized to act as DMX's agent.
COUNT II
SPECIFIC PERFORMANCE
125.
Heavy Rotation repeats and re-alleges each and every allegation in
paragraphs 1 to 113 above as if fully set forth herein.
126.
As set forth above, there is a valid binding Agreement between the parties,
which is annexed to this Complaint as Exhibit A.
127.
Pursuant to the terms of the Agreement between Heavy Rotation and
DMX, DMX authorized Heavy Rotation to be his exclusive agent.
21
128.
Heavy Rotation fully performed its obligations under the Agreement by
inter alia, paying DMX the Initial Advances and Further Advances and providing
booking and other services for DMX under the Agreement.
129.
DMX has repeatedly failed to abide by the terms of the Agreement by
inter alia, failing to perfonn at shows booked by Heavy Rotation abroad and within the
United States, authorizing Streetlife, J-Mike and Fowler to book shows on DMX's behalf
and falsely representing to third parties that Heavy Rotation was not authorized as
DMX's agent.
130.
DMX has further breached the Agreement by failing to give Heavy
Rotation a right of first refusal for the shows he has booked through Fowler, J-Mike and
Streetlife.
131.
Heavy Rotation is ready willing and able to continue to perform under the
Agreement.
132.
Additionally, DMX is able to perfonn under the Agreement by performing
at shows in the United States.
133.
As a direct and proximate result ofDMX's breaches ofthe Agreement,
Heavy Rotation has suffered extensive damage to its business reputation. Heavy
Rotation has also lost its ability to benefit from the Agreement.
134.
However, monetary damages cannot properly compensate Heavy Rotation
for the damage to its business reputation, nor can monetary damages properly
compensate Heavy Rotation for the loss of the ability to benefit from the bargain. Legal
remedy is simply inadequate.
22
135.
As such DMX should be decreed to specifically perform under the
Agreement with Heavy Rotation, by (i) allowing Heavy Rotation to book shows for
DMX; and (ii) ordering DMX to perform at those shows as he promised to pursuant to
the terms of the Agreement.
COUNT III
BREACH OF CONTRACT
136.
Heavy Rotation repeats and re-alleges each and every allegation in
paragraphs 1 to 113 above as if fully set forth herein.
137.
As set forth at length above there is a valid Agreement between the
parties, annexed to this Complaint as Exhibit A.
138.
Heavy Rotation fully performed its obligations under the Agreement by
inter alia, paying DMX the Initial Advances, Further Advances, expending monies on
travel for DMX and his agents, and performing booking and other services for DMX
under the Agreement.
139.
DMX has repeatedly failed to abide by the terms of the Agreement by
inter alia, failing to perform at shows booked by Heavy Rotation both abroad and within
the United States, authorizing Streetlife, Fowler and/or J-Mike to book shows on DMX's
behalf and falsely representing to third parties that Heavy Rotation was not authorized as
DMX's agent.
140.
DMX has further breached the Agreement by failing to give Heavy
Rotation a right of first refusal for the shows he has booked through Fowler, J-Mike and
Streetlife.
141.
DMX has also breached his duty of good faith and fair dealing implied in
all contracts.
23
142.
By reason of the foregoing, and as direct and proximate result ofDMX's
breach of the Agreement, Heavy Rotation has suffered extensive damage to its business
reputation and sustained monetary damages in an amount to be determined at trial, but
not less than $188,571.28, together with the costs and disbursements of this action,
including reasonable attorneys' fees.
COUNT IV
UNJUST ENRICHMENT
143.
Heavy Rotation repeats and re-alleges each and every allegation in
paragraphs 1 to 113 above as if fully set forth herein.
144.
DMX has been enriched at the expense of Heavy Rotation by Heavy
Rotation's payment of the Initial Advance, the Further Advances, to DMX and/or on
DMX's behalf, and by Heavy Rotation's payment of travel expenses for DMX and his
agents, in the sum of at least $112,816.96.
145.
As a direct result ofDMX's refusal and/or failure to perform at the shows
booked for him by Heavy Rotation, Heavy Rotation has no way to re-coup the Initial
Advance, the Further Advances and the travel expenses Heavy Rotation paid on DMX's
behalf.
146.
In light ofDMX's failure to perform at the shows booked by Heavy
Rotation both in the United States and abroad and DMX's failure to allow Heavy
Rotation to act as his exclusive booking agent, it is against equity and good conscience to
permit DMX to retain the benefit of the Initial Advance, the Further Advances and the
travel expenses that Heavy Rotation paid on DMX's behalf for DMX and his agents.
147.
As a result of the foregoing, DMX has been unjustly enriched at the
expense of Heavy Rotation in the sum of no less than $112,816.96, which sum Heavy
24
Rotation has demanded and which sum DMX has failed to pay Heavy Rotation, plus
interest thereon. DMX should be forced to return to Heavy Rotation the Initial Advance,
the Further Advances and all monies Heavy Rotation has paid on his behalf, including
travel expenses, that he has unjustly retained, or retained the benefit of, in the amount of
at least $112,816.96.
COUNT V
QUANTUM MERIUT
148.
Heavy Rotation repeats and re-alleges each and every allegation in
paragraphs 1 to 113 above as if fully set forth herein.
149.
In or around August of2011, DMX requested that Heavy Rotation render
services to DMX in connection with being his booking agent.
150.
Furthermore at DMX's request Heavy Rotation performed other services
in connection with pUblicity and removal of negative internet material for DMX.
151.
DMX promised and agreed to pay Heavy Rotation for its services by
authorizing Heavy Rotation to retain a fee from DMX's bookings.
152.
Heavy Rotation accepted and performed the requested services by inter
alia, booking, and upon request continually re-booking, shows for DMX, in good faith.
The venues and club promoters were ready, willing and able to pay DMX for the
scheduled performances in the total amount of at least $250,000. Heavy Rotation also
performed services in connection with publicity for DMX and removal of negative
material from the internet for DMX.
153.
Heavy Rotation duly performed all of the conditions and obligations
required of it under the terms of its agreement with DMX and DMX accepted Heavy
Rotation's services.
25
154.
DMX, without any fault on the part of Heavy Rotation, refused andlor
failed to perform at the shows booked by Heavy Rotation, although the venues and club
promoters were ready, willing and able to pay DMX.
155.
In light ofDMX's authorization for Heavy Rotation to be his exclusive
agent, and Heavy Rotation's hard work, Heavy Rotation had a reasonable expectation to
retain a fee of 10% of all ofDMX's bookings for its services.
156.
As a direct and proximate result ofDMX's failure to perform at the shows
booked by Heavy Rotation and DMX's attempt to have a different agent re-book those
same shows, Heavy Rotation has not and cannot receive its 10% fee for services rendered
toDMX.
157.
By reason ofthe foregoing, there is now due and owing to Heavy Rotation
from DMX the reasonable and agreed upon fee in the sum of at least $40,754.32, no part
of which has been paid.
COUNT VI
FRAUD
158.
Heavy Rotation repeats and re-alleges each and every allegation in
paragraphs 1 to 113 above as if fully set forth herein.
159.
As set forth above, at the time the parties entered into the Agreement,
DMX represented to Heavy Rotation that the only impediment to receiving his passport
and being able to perform outside of the United States was the Darcy Lien.
160.
On November 9, 2011, Fowler and J-Mike represented that Fowler would
personally be flying to Arizona on November 11,2011 to take care ofDMX's passport
issue and represented that the passport would be finalized by November 14, 2011.
26
161.
In or about early December 2011, Defendants represented to Heavy
Rotation that the Darcy Lien had been removed and that DMX would be able to obtain
his passport shortly.
162.
Then in early January, Heavy Rotation discovered that there was in fact a
Second Lien on DMX's passport.
163.
Upon information and belief, prior to January 2, 2012 the existence of the
Second Lien was known to Defendants. The existence of the Second Lien was not
known to Heavy Rotation prior to January 2, 2012, however, and Defendants knew that
fact.
164.
Moreover even though the Defendants knew that Heavy Rotation was
unaware of the existence of the Second Lien, the Defendants refrained from disclosing its
existence to Heavy Rotation.
165.
In fact Defendants discouraged Heavy Rotation from independently
verifying the Second Lien in an intentional effort to conceal the Second Lien.
166.
Upon information and belief, all of Defendants representations concerning
DMX's passport made prior to January 2, 2012, were false at the time they were made.
167.
Moreover, upon information and beliefDMX and Fowler knew that their
representations made prior to January 2,2012 were false because Defendants knew that
DMX could not receive his passport because of the Second Lien.
168.
Upon information and belief, DMX made the initial representation that the
Darcy Lien was the only impediment to DMX receiving his passport with an intent to
deceive Heavy Rotation and to induce Heavy Rotation to enter into the Agreement.
27
169.
In reliance upon DMX's representation that the Darcy Lien was the only
impediment to DMX receiving his passport, Heavy Rotation entered into the Agreement.
170.
Upon information and belief Defendants made further representations that
they could obtain DMX's passport with an intent to deceive Heavy Rotation and to
induce Heavy Rotation to pay the Initial Advance, Further Advances and additional
monies on their behalf, in reliance on Defendants representations.
171.
In fact upon information and belief, Defendants actively tried to conceal
the Second Lien as long as possible so that Heavy Rotation would continue to advance
monies to DMX or on his behalf.
172.
To this end Defendants, repeatedly requested that Heavy Rotation push
back tour dates for shows outside of the United States.
173.
Each time Defendants requested that Heavy Rotation postpone the show
dates outside the United States they gave Heavy Rotation a different excuse, while upon
information and belief their real motive was to conceal the fact that DMX would not be
able to leave the country.
174.
In reliance on Defendants representations concerning their abilities to
obtain DMX's passport, Heavy Rotation paid the Initial Advance, paid the Further
Advances, continued to pay travel expenses for Defendants and their agents and
continued to book shows for DMX outside of the United States.
175.
Moreover, upon information and belief Defendants made the above
representations with the malicious intent to take Heavy Rotation's money, when DMX
never had the ability to perform at the shows booked outside of the United States.
28
176.
Heavy Rotation was ignorant of the falsity of the representations and
believed Defendants' above described representations concerning DMX's passport to be
true.
177.
Heavy Rotation relied upon Defendants representations, and as a result,
paid the Initial Advance, paid the Further Advances, continued to pay travel expenses for
Defendants and their agents, continued to book shows for DMX outside of the United
States and represented to third parties that DMX would be able to perform at those
shows.
178.
Heavy Rotation would not have entered into the Agreement with DMX,
except for Heavy Rotation's reliance on the representations made by DMX.
179.
Additionally Heavy Rotation would not have paid the Initial Advance,
would not have paid the Further Advances, to DMX and persons on DMX's behalf, and
would not have paid for travel expenses for Defendants and their agents, except for
Heavy Rotation's reliance on the representations made by Defendants.
180.
Lastly, Heavy Rotation would not have booked dates abroad for DMX and
assured club promoters and venues that DMX would be able to attend those dates, except
for Heavy Rotation's reliance on the representations made by Defendants.
181.
As a result of Defendants false representations and concealment Heavy
Rotation made payments to or on behalf of Defendants in the amount of at least
$112,816.96.
182.
Additionally as a result of Defendants' false representations and
concealment Heavy Rotation rendered services to or on behalf of DMX that are
reasonably valued at least in the amount of $40,754.32.
29
183.
As a further result of Defendants false representations and concealment
Heavy Rotation lost the remaining benefit of the Agreement in the amount of at least
$15,000.
184.
Additionally as a result of Defendants' false representations and
concealment Heavy Rotation has lost the ability to do business with various club
promoters and has been damaged in the sum of at least $20,000.
185.
In addition to the monetary damages sustained by Heavy Rotation, as a
direct result of Defendants' false representations and concealment Heavy Rotation has
suffered irreparable damage to its business reputation. As such, Defendants should also
be required to pay punitive damages to punish them for their malicious conduct in
making false representations and concealing the truth from Heavy Rotation, in the
amount of$100,000, in order to deter Defendants and others similarly situated from
engaging in such conduct in the future.
COUNT VII
TORTIOUS INTERFERENCE WITH CONTRACT
186.
Heavy Rotation repeats and re-alleges each and every allegation in
paragraphs 1 to 113 above as if fully set forth herein.
187.
As set forth at length above there is a valid Agreement between the Heavy
Rotation and DMX, annexed to this Complaint as Exhibit A.
188.
At the time they were hired by DMX, Fowler and J-Mike had knowledge
of the Agreement between DMX and Heavy Rotation.
189.
Fowler and J-Mike intentionally interfered with the Agreement without
justification by inter alia advertising J-Mike and Fowler as DMX's booking agent,
encouraging DMX to authorize J-Mike, Fowler and/or Streetlife to book shows for DMX
30
in violation of the Agreement, actively trying to book, or help others book, shows that
Heavy Rotation had already booked for DMX, and sending the Cease and Desist Letter
which falsely states that Heavy Rotation was never authorized as DMX's agent.
190.
As a direct and proximate result of Fowler and J-Mike's unjustified
interference with the Agreement between DMX and Heavy Rotation, DMX has been
damaged in an amount to be determined at trial, but no less than $188,571.28.
WHEREFORE, Heavy Rotation respectfully requests judgment against the
Defendants as follows:
(i)
An order enjoining Defendants: (i) from booking or authorizing anyone
but Heavy Rotation to book, shows for DMX in the United States or outside the United
States, pursuant to the terms of the Agreement; and (ii) from disseminating the Cease and
Desist Letter or communicating to any third-party that Heavy Rotation was not
authorized to act as DMX's agent;
(ii)
DMX be decreed to specifically perform under the Agreement with Heavy
Rotation, by allowing Heavy Rotation to book shows for DMX, and performing at those
shows;
(iii)
That Heavy Rotation have judgment for at least $188,571.28, against
DMX on the third cause of action;
(iv)
In the alternative that Heavy Rotation have judgment for at least
$112,816.96 against DMX on the fourth cause of action and that Heavy Rotation have
judgment for at least $40,754.32 against DMX on the fifth cause of action;
(v)
That Heavy Rotation have judgment for at least $288,571.28 against
Defendants on the sixth cause of action;
31
(vi)
That Heavy Rotation have judgment for at least $188,571.28 against
Fowler and J-Mike on the seventh cause of action;
(vii)
That Heavy Rotation have judgment for the costs of this action, including
reasonable attorneys fees, against DMX pursuant to the Agreement;
(viii)
Any other such relief as the Court deems just and proper.
Dated: New York, New York
July 3,2012
Respectfully submitted,
MEISTER SEELIG & FEIN LLP
Gary Adelman, Esq.
Attorneys for Plaintiff
Two Grand Central Tower
140 East 45th Street, 19th Floor
New York, New York 10017
Telephone: (212) 655-3580
E-mail: [email protected]
32
VERIFICATION
STATE OF NEW YORK
COUNTY OF NEW YORK
)
)ss. :
)
SIVASH AGHAIEPOUR, being duly sworn, deposes and says:
I am a member and Chief Executive Officer of the Plaintiff HEAVY ROTATION, LLC,
I have read the foregoing Verified Complaint, and know the contents thereof; the same is true to
my own knowledge, except as to the matters therein stated to be alleged on information and
belief, and as to those matters I believe them to be true. This verification is made by me because
the above party is a limited liability company and I am a member thereof. The grounds of my
belief as to all matters not stated upon my own knowledge are books and records of the
corporation.
SIVASH AGHAIEPOUR
\--L]:).,.~
Sworn to before me this
_ _ day of J.w:l0, 2012
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_"'''''''''' Patrick J. Peters
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{~y 'JI..' ';fcl~COMMISSION # DD831013
~~·'.A:~ EXPIRES: QCT.14, 2012
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Exhibit A
Heavy Rotation, LLC
64 Fulton Street
Suite 1100
New York, N.Y. 10038
Dated: August 15,2011
Earl Simmons plkla DMX
Re; Exclusive Booking Agent/Promotion Agreement
Dear Mr. Simmons:
The following, when signed by you (hereafter collectively "DMX", "you" or "Artist")
and Siavash Aghaiepour olblol Heavy Rotation, LLC (hereafter "Agent"), will constitute
a complete and binding agreement between you and Agent with respect to your
engagement of Agent as your exclusive personal Agent.
1.
Territory: The World.
2.
Scope of Agent's Activities:
Agent shall be your personal Agent and shall have the right to bind you to
perfonn at music shows in the Territory during the Tenn ("Bookings"). No
other person or entity shall have right to book you to perfonn during the
Term, unless there are gaps in shows and then DMX can use another agent to
fill in the gaps, but Agent gets the first right of refusal to book all shows.
Agent shall have the right during the Tenn to advertise itself as your exclusive
personal Agent.
3.
Term:
(a) The term ofthe agreement (the "Tenn") shall consist of an initial period of
one (1) year commencing as of the date hereof (the "Initial Period"). Artist
grants to Agent three (3) irrevocable options to extend the term of the
Agreement for additional periods of one (1) year each, upon all of the same
terms and conditions herein contained (the "Option Periods"). Each option
shall commence automatically upon the expiration of the Initial period or
preceding Option period, and shall be deemed exercised by Agent, unless, not
later than thirty (30) days before the end of the Initial Period or applicable
Option Period, Agent sends to artists written notice terminating this
Agreement. The Initial period and each Option Period may also sometimes be
referred to herein as the "Term".
(b) Notwithstanding anything to the contrary herein contained, in the event that
Agent is unable to secure on behalf of Artist during the Initial Period, earnings
of at least four hundred thousand ($400,000) dollars, then Artist shall have the
right to terminate this Agreement by providing Agent with written notice of
termination.
4.
As compensation for the services to be rendered to Artist by Agent hereunder,
Agent shall retain from Artist's Bookings or from Artist, an agents fee. The fee
shall be determined at the time of the Booking (the "Agent Fee"). Agent is
authorized by DMX to collect all monies from the Bookings, retain its Agent Fee
and remit the rest to DMX, subject to paragraph 6 below.
5. Agent's Power of Attorney;
During the Term of the Agreement, You hereby irrevocably authorize and appoint
Agent as your true and lawful agent and attorney-in-fact during the Term (which
power of attorney, as well as the other terms and conditions of this Agreement, shall
be deemed irrevocable and coupled with an interest) to do the following:
(a) Receive and review any and all personal information about DMX, and this
agreement shall authorize Agent to receive information from any Attorney hired by
DMX, on any matter and the Attorney upon receipt of this authorization shall release
any information requested by Agent to Agent
______________________
Earl Simmons
X~
(b) Contact websites such as Y outube on your behalf to demand that the web sites
take down unauthorized videos and other unauthorized content.
6. Advances:
Agent has agreed to make advances to or for the account of Artist and make payments
on behalf of Artist up to sixty ($60,000) thousand. DMX acknowledges that Agent
has given DMX, ten thousand ($10,000) dollars and will be paying fifty thousand
($50,000) dollars to Divita Darcy, to resolve a child support payment (the Initial
Advances"). Agent may advance further advances at the Agents discretion ("Further
Advances"). Artist shall repay such advances promptly. Artist hereby authorizes
Agent to deduct and retain the amount of any such advances from any sums Agent
may receive that are due DMX for performances under this agreement until the Initial
Advances and any Further Advances are paid in full. It is hereby agreed and
understood that any such loans or advances not repaid to Agent by the expiration or
earlier termination of this agreement shall be repaid to Agent promptly upon
expiration. Any such loans or advances shall accrue interest at a rate equal to the
prime rate ofCitibank, New York, New York, on the last day of the calendar quarter
during which loans or advances are outstanding until repaid in full. Upon Manager's
request, Artist shall execute and deliver to Manager Promissory Notes in accordance
with the foregoing in a form acceptable to Manager.
7.
Warranties and Representations;
a.
You warrant, represent and agree that:
(i)
You are of legal age, and are not under any disability, restriction or
prohibition, either contractual or otherwise, with respect to your
right to execute this Agreement or to fully perform its terms and
conditions.
(ii)
You have and shall have the full right, power and authority to use
the professional names chosen and used by you, Including the
name: "DMX", and Agent's activates on your behalf under this
Agreement will not infringe upon, violate or interfere with the
rights, whether statutory or otherwise, of any third party( s):
(iii)
You shall actively and diligently pursue your career in the
entertainment industry and give due consideration to the advice
and counsel provided by Agent.
b.
Agent warrants and represents and agrees that Agent is not under any
disability, restriction or prohibition, either contractual or otherwise, with respect
to Agent's right to execute this Agreement or to fully perform its terms and
conditions. You understand that Agent has the right to render its services to
anyone else either in the capacity in which engaged by you here under or
otherwise, except that such activities will not materially interfere with Agent
rendering its reasonable services to you as provided hereunder. Agent shall
represent Artist in a professional manner, using reasonable business judgment.
7. Indemnification:
You and Agent each agree to and do hereby indemnify, save and hold harmless the
other party from all loss, damage and expense (including reasonable attorney's fees)
arising out of or connected with any breach of this agreement or any claim by any
third-party which shall be inconsistent with any agreement, warranty or
representation made by Agent or by you, as applicable, in this Agreement; provided
same is reduced to final adverse judgment or settled with the prior written consent of
the indemnification party. The indemnification party agrees to reimburse the other
party, on demand, for any payment made at any time after the date hereof with
respect to any liability to which the foregoing indemnity applies. Pending the
determination of any such claim, your accountant shall be authorized to withhold
form your Gross Income or from Agent's Fee, as applicable, an amount reasonably
related to the potential liability at issue. In the event that an amount is withheld from
Artist's Gross Income or Agent's fee as aforesaid, then the party from whom said
amount has been withheld may have said amount released by posting a bond subject
to reasonable approval of the other party, which approval shall not be unreasonably
withheld or delayed.
8. Cure:
In order to make specific and definite and/or to eliminate, if possible, any controversy
which may arise between the parties hereunder, you and Agent agree that if at any
time you or Agent, as applicable, believe that the terms of this Agreement are not
being fully and faithfully performed hereunder you or Agent as, applicable, will so
advise the other in writing by registered or certified mail, return receipt requested, of
the specific nature of any claim, non-performance, default or misfeasance, and the
party receiving such notice shall have a period of thirty (30) days after receipt thereof
within to cure such claimed breach. If such claimed breach is cured within such thirty
(30) day period, it shall not be deemed a material breach of the Agreement unless it
reoccurs, in which event the cure provisions of this Paragraph 10. shall again apply.
If the claimed breach is not capable of being cured within said thirty (30) day period,
it shall be sufficient to commence to cure such breach within that period and to
proceed to cure with reasonable diligence.
9. Independent Counsel:
Each of the Parties hereto warrant and represent that in executing this agreement, they
have relied solely upon their own judgment, belief and knowledge and the advise and
recommendations of their own independently selected and retained counsel,
concerning the nature, extent and duration of their rights and claims, and that they
have not been influenced to any extent whatsoever in executing this Agreement by
any representations or statements with respect to any matters made by any party or
representative of any party.
10. Notices:
All notices pursuant to this Agreement shall be in writing and shall be given by
registered or certified mail, return receipt requested, postage prepaid, or by telegraph
(prepaid) at the respective addresses herein above set forth or such other addresses as
may be designed by either party. Such notices shall be deemed given when mailed or
delivered to a telegraph office, except that a notice of change of address shall be
effective only from the date of its receipt. A courtesy copy of all notices sent by
Agent to you shall simultaneously be sent to:
A courtesy copy of all notices sent by you to Agent shall simultaneously be sent to:
4. Additional Provisions:
(a)
Entire Agreement. This Agreement contains the entire understanding and
agreement between the parties with respect to the subject matter hereof and
shall not be changed except by an instrumental signed by you and Agent. A
waiver by either party of any term or condition of this Agreement in any
instance shall not be deemed or constructed as a waiver of each term or
condition for the future, or of any subsequent breach thereof. Any provision
or clause of this Agreement that is deemed invalid or unenforceable, at law or
otherwise, shall not affect the validity and binding nature of the rest of this
Agreement.
(b)
Law and Forum. This Agreement has been entered into in the State of New
York, and the Validity, interpretation and legal effect of this Agreement shall
be governed by the laws of the New York applicable to contracts entered into
and performed entirely within the State of New York.
(c)
Suspension and Extension. In the event that the term of any recording
agreement to which Artist is a signatory, either individually or through a
corporation or other entity, shall be suspended, then this Agreement shall be
deemed extended for the time of any such suspension, with the amount of
days of any such suspension being added to the then current contract period of
this Agreement. In addition, in the event of a reach by Artist hereunder, this
Agreement shall be automatically extended for the duration of any such
breach, and the amount of days thereof shall be added to the then current
period of this Agreement.
(d)
Artist Incorporation. In the event that Artist does business as a corporation or
other business entity, or forms a corporation or other business entity during
the Term hereof for the purpose of furnishing Artist's services or discharging
Artist's obligations hereunder (the "Corporation"), Artist agrees that such
Corporation shall promptly enter into a management agreement with Agent
identical in all respects to this Agreement with respect to the activities of any
such Corporation. In that event, the Agent's commission shall be charged
against the gross income of any such Corporation, prior to the deduction of
any corporate income taxes or any corporate expenses, but any salary paid to
Artist by any such Corporation shall be excluded from Artist's Gross Income
for the Purpose of calculating commissions due to Agent hereunder. Artist
shall personally guarantee the obligations of any such Corporation.
(e)
Assignment. Artist may not assign this agreement under any circumstances.,
without the express written consent of Agent.
(f)
Meaning ofTemls. E very word or phrase defined herein shaH unless herein
specified to the contrary, have the same meaning throughout. As used herein
whenever applicable, and as the context shall so require, the singular shall
include the plural and the plural shan include the singu1ar, the masculine shall
lllclude the feminine or the neuter and the feminine shall include the
masculine or the neuter. The neuter shall include the masculine and the
feminine.
(g)
Headings. The beadings of the paragraphs herein are intended for
convenience only, and shall not be of any effect in construing the meaning of
this Agreement.
Very tnlly yours,
Heavy Rotation, LLC
By: ________~----------­
An authorized signatory
AGREED TO AND ACCEPTED:
By: ____--:---,------___________
Earl Simmons ("Artist")
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