10.1 Personal Management Agreement - Xxxxxx Xxxxxx
SKREEM ENTERTAINMENT CORPORATION
00000 Xxxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
Dated: March 1, 2004
To:
3RD WISH
PERSONAL MANAGEMENT AGREEMENT
This letter will confirm our agreement as follows:
1. ENGAGEMENT
3RD WISH and the members thereof, (hereinafter referred to as "you")
hereby engage SKREEM ENTERTAINMENT CORP.(hereinafter referred to as "we" or
"us", as
the context may require) and we hereby accept the engagement as your sole and
exclusive personal management company in connection with all your activities in
the entertainment industries throughout the world, including but not limited to
your services as musicians, songwriters, producers, actors, publishers,
packagers or performers in any medium now known or hereafter devised.
2. TERM
The term of this agreement shall be for an initial period of five (5)
years (the "initial period"), commencing on the date hereinabove written. If,
during the initial
period, you or we secure a contract with a major record company or a national
distributor for the national distribution of phonograph recordings containing
your musical
performances, the term of this agreement shall be automatically extended for an
additional period of five (5) years.
3. DUTIES AND AUTHORITY OF MANAGEMENT COMPANY
We agree to provide you with our advice, counsel, direction and
knowledge relating to your career in the entertainment industries. Among other
things, we agree to
advise, counsel and direct you with respect to the following matters:
A. To represent you and act as your advisor in matters of policy and
career decisions relating to your entertainment career as well as with regard to
general practices in the entertainment industry;
B. To advise you as to your professional engagements, and to consult
with employers engaging your services in an effort to assure the proper use of
your services;
C. To consult with any booking agents whom you may employ from time to
time.
D. To advise and counsel you in respect to the proper format and
setting for presentation of your artistic talents; (and in the determination of
the proper style, mood, setting, business and characterization with your
talents);
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E. To advise you about and to approve and authorize any publicity,
press and advertising as well as the use of your name, photograph, likeness,
voice sound effects, caricatures and literary, artistic and musical materials
for the purposes of advertising and publicity and in the promotion and
advertising of products and services;
F. To execute for you, in your name and/or on your behalf, any
agreements and other documents for your services, talents and/or artistic,
literary and musical materials;
G. To collect and receive compensation or other income or payments
payable to you for forwarding to you or your business manager;
H. To perform, wherever and whenever possible and whenever called upon,
such other functions as may be consistent with the aforesaid;
I. To exclusively sell, market, license and/or negotiate all of your
media deals
and productions in all markets throughout the world, including music, audio,
television, home video, film, merchandising, licensing, publishing, print media,
music publishing and live performance rights;
J. To act as your true and lawful attorney-in-fact to sign, execute,
and deliver any and all pre-approved contracts in your name (it being expressly
agreed and understood
that we shall not have the authority to commit you to commercial endorsements or
product sponsorships without your consent); to approve all photographs and
publicity materials; to accept and collect any and all bills of exchange,
checks, notes and compensation as your said attorney in demand, xxx for,
collect, recover, and receive all goods, claims, money interest or other items
that may be due to you or belong to you; and to make, execute and deliver
receipts, release and other discharges therefore under sale or otherwise and to
defend, settle, adjust, compound, submit to arbitration and compromise, all
actions, suits, accounts, reckoning, claims and demands whatsoever that are or
shall be pending in such manner and in all respects as we in our reasonable
business judgment shall deem advisable, and without in any way limiting the
foregoing, generally to do, execute and perform any other act, deed or thing
whatsoever that reasonably ought to be done, executed and performed of any and
every nature and kind as fully and effectively as you could do if personally
present; and you hereby ratify and affirm all acts performed by us by virtue of
this power of attorney.
K. Without limiting the generality of the foregoing, we shall, for
example, perform services with regard to the selections and maintenance of your
wardrobe, costuming and musical equipment; assistance in the handling of travel
arrangements; assistance in the coordination of performances and tours including
assistance with publicity and promotion, staging, lighting, equipment set-up,
hotel accommodations, assistance with respect to your relationships with any
employers, including concert promoters, record companies, music publishers,
record producers, musicians, stage crew, union representatives, attorneys,
accountants and other persons from whom services or assistance is required or
desirable.
5. COMPENSATION
A. Percentage Arrangement
Since the nature and extent of the success or failure of your
career cannot be
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predetermined, it is our mutual desire that the compensation to be paid to us be
determined in such a manner that we accept the risk of failure and likewise
benefit to the extent of your success. Accordingly, you agree to pay us a sum
equivalent to fifteen (15%) percent of any and all gross compensation earned,
received or acquired by you, directly or indirectly, as a result of your
activities in the entertainment industry.
B. Nature of Gross Compensation
The term "gross compensation" shall include, without limitation; salaries,
earnings, fees, royalties, residuals, repeat and/or re-run fees, bonuses, shares
of profit, shares of stock, gifts, partnership interests, percentages and the
total amount paid for a package television or radio program (live or recorded),
motion picture or other entertainment package, any and all sums resulting from
your activities (and from the activities of any "controlled entities", as
defined in section 5 (F), below) in the entertainment industries and uses of the
results and proceeds thereof, payments for termination of your activities,
payments to refrain from any such activities and payments in connection with the
settlement or other disposition of any dispute concerning said activities, which
are earned or received, directly or indirectly, by you or your heirs, executors,
administrators or assigns, or by any other person, firm or corporation on your
behalf without deduction of any nature or sort.
As to the proceeds of any motion picture, phonograph record, film, tape,
wire, transcriptions, recording or other reproduction or result of your
activities in the entertainment industries which is created in whole and
released during the term hereof, our commission shall continue for so long as
any of the same are used, sold, leased or otherwise exploited, whether during or
after the term hereof.
In the event you receive, as all or part of your compensation for
activities hereunder, stock or the right to buy stock in any corporation, or you
become the packager or owner of all or part of rights in any entertainment
property, whether as individual proprietor, stockholder, partner, joint venture
or otherwise, our percentage shall apply to your said stock, right to buy stock,
individual proprietorship, partnership, joint venture or other form of interest,
and we shall be entitled to our percentage share thereof. Should you be required
to make any payment for such interest, we will pay our percentage share of such
payment, unless we do not want our percentage share thereof.
Notwithstanding the above, while artist advances and/or overages paid to
you by record companies and/or television or film/video producers are included
in "gross compensation", the actual costs of recording, the actual costs of
production, the production costs of any promotional videos and/or any tour
support amounts advanced by such entities are excluded from the definition of
"gross compensation" hereunder and shall not be subject to commission by us.
Likewise, the actual costs of staging or producing live or televised or filmed
performances which do not result in personal income to you shall not be
commissionable by us.
We shall receive the foregoing compensation whether or not any engagements,
contracts and agreements or income producing activities shall have been procured
by you as a result of our advice, consultation or other efforts and whether or
not the term of said employment, engagement, contract, agreement or income
producing activity shall be effective or continue before, during or after the
term of this agreement, provided that you earn gross compensation with respect
thereto during the time periods set forth in clauses 5 (c) (ii) and (iii),
herein below.
3.
C. Scope of Activities Subject to Commission
Gross compensation shall be deemed the result of your activities in the
entertainment industries if such gross compensation is earned, received or
acquired by you during the term of this agreement or during any and all
extensions thereof, or if such gross compensation accrues after the term of this
agreement as a result of any employment performed during this agreement or if
such gross compensation is the result of:
(i) Any and all contracts, engagements and commitments now in
existence;
(ii) Any and all contracts, engagements and commitments entered into or
substantially negotiated during the term thereof;
(iii) Any and all extensions, additions, substitutions, renewals,
replacements, modifications and amendments of or for all contracts, engagements
and commitments referred to in (i) and (ii) above; and any resumption's of such
engagements, contracts and commitments which may have been discontinued during
the term hereof and resumed within one (1) year thereafter;
(iv) Any and all judgments, awards, settlements, payments, damages and
proceeds or arbitration proceedings arising out of any alleged breach or
non-performance by others or any of the contracts, engagements, commitments, or
other agreements referred to in (i), (ii), and (iii) above.
D. Activities Not Subject to Commission
Notwithstanding anything to the contrary stated in paragraph C,
including its subparagraphs, compensation you receive from songwriter publishing
income (so long as Manager or Manager's related entity is the publisher of such
songs) and live engagements promoted by Manager's related entities shall not be
considered "Gross Compensation" commissionable by Manager under this Agreement,
as more fully described in paragraph 9, below.
E. Time of Payment
It is expressly agreed and understood that during the term of this
agreement and any extensions thereof, we (and our assigns) shall have the
exclusive right and authority, on your behalf, to receive your gross
compensation from your activities in the entertainment industry. Upon our
receipt of such gross compensation, we shall remit the entire amount due to you
(minus commissions or expenses due us) or your authorized business manager
within fifteen (15) days after our receipt thereof.
In the event you receive gross compensation directly from any employer
or purchaser of your services in the entertainment industry, payments due us
hereunder shall be payable to us within ten (10) days after your receipt of the
same. Gross compensation shall be deemed to have been received by you, and we
shall receive our commission thereof, if such gross income is received, directly
or indirectly, by you or by any other party or entity for you or on your behalf,
or by any party or entity which furnished your services.
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F. Controlled Entities
You will cause any corporation, partnership, trust or other business
entity which you now own or control or may hereafter own or control (including
any musical "group"
in which you are a member or featured performer) in or in which you have a
direct or indirect interest of any nature or sort or which is directly or
indirectly controlled by you or under the common control of you and others
(hereinafter "firm") and which firm has a right to any of your services, to
enter into an agreement with us on the same terms and conditions as contained in
this agreement, and you agree that all gross compensation directly or indirectly
earned or received by such firm in connection with your activities in the
entertainment industries shall be subject to our commission hereunder. Any
agreement with such firm shall provide that such firm has a right to furnish
your services on the terms and conditions set forth in this contract and the
firm shall become a party to this contract. You shall personally guarantee the
obligations of any such firm.
G. Scope of Entertainment Industry
As used herein, the term "entertainment industries" shall include, without
limitation, any and all aspects of the entertainment, amusement, music,
recording, television, motion picture, nightclub, concert, and theatrical
industries, and shall also include any and all forms of advertising,
merchandising, endorsements, or other exploitations using your name, photograph,
voice, sound effects, likeness, caricatures, talents or materials. The term
"activities" shall include, without limitation, your activities in any capacity
whatsoever in the entertainment industries, whether as a live performer,
recording artist, musician, singer, songwriter, publisher, arranger, packager,
owner of entertainment packages, actor, producer, author, director, cameraman,
technician, consultant or otherwise, and shall also include the use of your
name, voice likeness and biography as aforesaid.
6. EXPENSES
All expenses other than our normal office expenses, actually incurred
by us on your behalf, including, without limitation, long distance telephone
calls, messenger fees, reasonable travel expenses, promotion and publicity
expenses approved by you, and any other disbursements attributable to you shall
be paid by you and/or reimbursed by you if we initially advance the funds for
said expenses. Any expenses we propose to incur in excess of Five Hundred
($500.00) Dollars per engagement however, shall be approved by you in advance.
In the event our presence is required outside of our normal place of business
you agree that you will pay and/or reimburse our expenses, including reasonable
travel expenses, reasonable living accommodations and requirements. We will make
available to you invoices and/or itemized expense statements with respect to the
expenses we incur.
7. ACCOUNTING
Within fifteen (15) days after either of us receives funds, we shall
remit to the other a written accounting statement setting forth all gross
compensation received, specifying the source thereof and any deductions there
from and accompanied by payment.
Each of us agrees that our respective representatives may examine the
books and records of the other (during reasonable business hours, upon
reasonable notice) to ascertain all amounts due either of us.
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8. LOANS/ADVANCES/INTEREST
We are not required to make any loans or advances to you. In the event
that we do make loans or advances to you, you shall promptly repay them to us
and you hereby authorize us to deduct the amounts of said loans or advances from
any funds we receive.
9. CONFLICTS OF INTEREST/ACTIVITIES NOT SUBJECT TO MANAGEMENT COMMISSIONS
From time to time during the term of this agreement, other persons or
entities owned and/or controlled, directly or indirectly by us or our partners,
shareholders, officers, directors, and employees, whether acting alone or in
association with others, may package an entertainment program in which you are
employed as an artist, or may act as the entrepreneur or promoter of an
entertainment program in which you are employed as an artist, or may employ you
in connection with the creation of literary or musical works. Such activity on
our part shall not be or deemed a breach of this agreement or of our fiduciary
obligations and duties to you, and shall not in any way affect our right to
commissions hereunder in all instances not covered by the following exceptions.
We shall not be entitled to commissions from you in connection with any
gross compensation derived by you:
A. From any employment or agreement under which you are employed by us
or by any person, firm or corporation owned or controlled by us, or by our
partners, shareholders, officers, directors or employees, whether we (or such
person, firm or corporation or such partners, shareholders, officers, directors
or employees) are acting as (i) the package agent for the entertainment program
in which you are so employed or (ii) your music or literary publisher (as
referenced by the "Music Publishing Agreement" between you and us
dated_________________.
B. From the sale, license or grant of any literary or musical rights to
us or any person, firm or corporation owned or controlled by us.
Nothing contained herein, however, shall be construed to excuse you
from the payment of commissions upon gross compensation derived by you from your
employment or any sale, license or grant of rights in connection with any
entertainment program, phonograph record or other matter merely because we or
any of our partners, shareholders, officers, directors or employees are also
employed in connection therewith as a producer, director, conductor, or in some
other management or supervisory capacity, but not as your employer, grantee or
licensee.
Further, in the event that either the aforesaid "Music Publishing
Agreement", or the "Exclusive Artist Recording Agreement", or both, for whatever
reason, are no longer in effect during the term of this agreement, and you enter
into an agreement with another Music Publisher or Record Company during the term
of this agreement, ("Successor Agreements"), any fees or royalties paid to you
pursuant to such "Successor Agreements" which would be commissionable to us
shall be included in the computation of your "Gross Compensation" for purposes
of determining our commissions hereunder.
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10. INDEMNITY
In the event that you do not fulfill or cause to be fulfilled any
agreement or obligation undertaken by you, you agree to indemnify and hold us
harmless from any claims, demands, actions, judgments and awards against us by
third parties in connection with such non-fulfillment. It is agreed that we will
not be held liable or responsible for any breach of contract or act or omission
on the part of any person, firm or corporation with respect to any engagement or
agreement concerning your services.
11. SUSPENSION
We shall have the right, at our election, to suspend the operation of
this contract if for any reason whatsoever you are unable or unwilling to render
your services in the entertainment industries. Such suspension shall commence
upon written notice to you and shall last for the duration of any period of time
equal to the duration of such suspension, and shall be added to the term of this
contract. In addition, if you fail to render your services in the entertainment
industries as aforesaid then we may, in addition to other remedies provided for
herein, terminate this contract upon written notice to you.
12. LIFE INSURANCE
We shall have the right during the term hereof to obtain life insurance
on your life at our sole cost and expense, with us being the sole beneficiary
thereof. You agree to fully cooperate in connection with the obtaining of the
same and to submit to a physical examination and complete any and all documents
necessary or desirable in respect thereof. You hereby acknowledge that neither
you nor your estate shall have any right to claim the benefits of any such
policy obtained by us.
13. MANAGEMENT COMPANY'S SERVICES NON-EXCLUSIVE
You acknowledge that our services hereunder are not exclusive to you
and that we may perform the same or similar services for others as well as
engage in other activities during the term of this agreement or any renewal or
extension thereof. Further, it is understood that we execute this agreement as
an independent contractor, not as an employee of you.
14. GROUP CLAUSE
Due to the fact that you are a musical "group", your obligations under
the terms of this agreement shall be joint and several among the members of this
group, and all references to you shall include all members of the group jointly
and each member of the group individually, unless otherwise specifically
provided herein. In the event any member currently comprising the group shall
cease to perform as a member of the group, the following shall apply:
A. You shall promptly notify us thereof and such leaving member shall
be replaced by a new member, and such new member shall be subject to our
approval. Such approved new member shall thereafter be deemed substituted as a
party to this agreement in the place of such leaving member and shall
automatically be bound by all of the terms and conditions of this agreement and,
upon our request, and as an express condition of this agreement, you will cause
any such new member to execute and deliver to us such documents as we, in our
reasonable
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judgment, may deem necessary or advisable to effectuate the foregoing sentence.
Thereafter, the leaving member shall no longer be required to render services
hereunder as a member of the group, but all remaining members of the group, new
members of the group (and any leaving members, individually) shall continue to
be bound by the other provisions of this agreement.
B. Notwithstanding anything to the contrary contained herein, we shall
have the right to terminate the term of this agreement with respect to some or
all of the remaining members of the group by written notice given to you at any
time prior to the expiration of ninety (90) days after our receipt of your
notice to us concerning a leaving member.
C. Each leaving member hereby relinquishes all of his rights in the
group name to the remaining and replacement members of the group.
D. We shall have, and you hereby grant to us, an option to engage each
leaving member of our group as either a solo or group performing artist
("Leaving Member Option") in an exclusive personal management agreement
identical in all respects to this agreement. Such Leaving Member Option may be
exercised by us by providing notice to such leaving member at any time prior to
the expiration of ninety (90) days after the date of (i) Our receipt of your
notice provided for in subparagraph "a", above, or (ii) our termination notice
pursuant to subparagraph "b", above, as the case may be. If we exercise such
Leaving Member Option, the leaving member concerned shall be deemed to have
executed our then-current standard form of exclusive personal management
agreement on all of the same basic terms and conditions as are now contained in
this agreement, except that the term of the new exclusive personal management
agreement shall commence on the date we exercise our Leaving Member Option.
15. COMPLIANCE WITH LAWS/MORALS
During the term of this agreement, you shall observe and comply with
all federal, state and local laws, ordinances, rules and regulations, including
but not limited to, those laws prohibiting use/sale of controlled substances.
Additionally, you agree not to commit any act which shall subject us, our
officers, employees, assigns or yourself to public ridicule, humiliation or
disrepute. Failure by you to comply with the provisions of this paragraph shall
give us the right to immediately terminate this agreement.
16. ARBITRATION OF DISPUTES
In the event of any dispute under or relating to the terms of this
agreement, or the breach, validity, or legality thereof, it is agreed that the
same shall be submitted to arbitration to the American Arbitration Association
in Orlando, Orange County, Florida (for so long as our principal place of
business remains in Orange County, Florida), and in accordance with the rules
promulgated by the said association, and judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. In the
event we move our principal place of business from Orange County, Florida, you
and we shall negotiate in good faith as to the venue for arbitration, but if we
cannot agree, venue shall remain in Orlando, Orange County, Florida. This
arbitration provision shall remain in full force and effect notwithstanding the
nature of any claim or defense hereunder.
8.
17. ASSIGNMENT
We shall have the right to assign this agreement to any other
corporation or partnership or proprietorship in which any of the proprietors of
our company actively participate in the business.
18. RIGHT TO SECURE INDEPENDENT LEGAL COUNSEL
You represent and warrant that you have been advised of your right to
seek legal counsel of your own choosing in connection with the negotiation and
execution of this agreement.
19. MANAGEMENT COMPANY NOT AN "EMPLOYMENT AGENCY" OR "TALENT
AGENCY"
We have advised you, and it is clearly understood, that we are not any
employment agency, talent agency or theatrical agency, and that we are active
solely as a personal manager company, and that we are not licensed as a "talent
agency" or "booking agency" under the laws of the State of Florida or any other
jurisdiction. We have at all times advised you that we are not licensed to seek,
procure, or obtain employment or engagements for you, and we do not agree to do
so; we have made no representations to you, either oral or written, to the
contrary, and you acknowledge that we are not obligated, authorized, licensed or
expected to do so.
20. WARRANTIES AND REPRESENTATIONS
You warrant, represent and agree that you are over the age of eighteen
(18) years, that you have not heretofore made and will not hereafter make any
engagement, commitment or agreement with any person, firm or corporation which
will, can or may interfere with your full and faithful performance of the
covenants, terms and conditions of this agreement to be performed by you or
interfere with our full enjoyment of our rights and privileges hereunder.
21. NOTICES
All notices hereunder shall be delivered by personal service or sent by
prepaid telegram or cablegram, or by certified or registered mail, return
receipt requested, postage prepaid, and if to us, shall be sent to the address
above and if to you, shall be sent to the addresses on the first page unless you
and we notify each other as provided herein that notices should be sent to a
different address. The date of mailing or telegraphing or in the case of
personal service, the date of delivery, shall be deemed the date of the giving
of said notice except notice of change of address which shall be effective only
upon actual receipt thereof.
22. MISCELLANEOUS
A. This agreement sets forth the entire understanding of the parties
hereto relating to the subject matter hereof. You and we acknowledge that we
have had preliminary discussions concerning this agreement. We each understand
that all such discussions and the hopes expressed in such discussions are not
binding hereunder unless expressly stated in this agreement. This agreement is
the only agreement of the parties and there is no collateral agreement (oral or
written) between the parties in any manner relating to the subject matter
hereof. No modification, amendment, waiver, termination, or discharge of this
agreement or any of the terms or provisions thereof shall be binding upon either
of us unless confirmed by a written instrument signed by you
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and by us. No waiver by either of us of any term or provision of this agreement
or of any default hereunder shall affect our respective rights thereafter to
enforce such term or provision or to exercise any right or remedy in the event
of any other default, whether or not similar.
B. If any provision of this agreement shall be held void, invalid or
inoperative, no other provisions of this contract shall be affected as a result
thereof, and, accordingly, the remaining provisions of this agreement shall
remain in full force and effect as though such void, invalid or inoperative
provision had not been contained herein. In the event this entire agreement is
for any reason deemed to be invalid, illegal, or unenforceable, we shall be
entitled to the reasonable value of our services and to retain all compensation
paid to us hereunder as the reasonable value of said services.
C. We shall not be deemed to be in breach of any of our obligations
hereunder unless and until you shall have given us specific written notice by
certified or registered mail, return receipt requested, of the nature of such
breach, and we shall have failed to cure such breach within thirty (30) days
after our receipt of such written notice.
D. Nothing herein contained shall constitute a partnership or joint
venture between you and us. Neither you nor we shall hold ourselves out contrary
to the terms of this paragraph, and neither you nor we shall become liable for
any representation, act or omission of the other contrary to the provisions
hereof. This agreement shall not be deemed to give any right or remedy to any
third party whatsoever unless said right or remedy is specifically granted by us
in writing to such third party.
E. We shall not be required to travel or to meet with you at any
particular place or places except in our discretion and following arrangements
for costs and expenses of such travel as set forth herein.
F. In the event of any action, suit, or proceeding arising from or
based upon this agreement brought by either party hereto against the other, the
prevailing party shall be entitled to recover from the other its reasonable
attorney fees in connection therewith in addition to the costs of such action,
suit or proceeding.
G. Except as otherwise provided herein, all rights and remedies herein
or otherwise shall be cumulative and none of them shall be in limitation of any
other right or remedy.
H. This agreement has been entered into in the State of Florida, and
its validity, construction, interpretation and legal effect shall be governed by
the laws and judicial decisions of the State of Florida, applicable to contracts
entered into and performed entirely within said State. Whenever there is any
conflict between the provisions of this agreement, any present or future
statute, law, ordinance or regulation, or rule or regulation of any union or
guild, the latter shall prevail, but in such event the provisions of this
agreement affected shall be curtailed or limited to the extent necessary to
bring this agreement within the requirements of the said Law or regulation.
I. This agreement shall not become effective until signed by you and
countersigned by us.
10.
J. When the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
K. Expiration of the term of this agreement shall not affect our
right to payment with respect to this agreement in any
way.
L. We shall have the right to advertise and publicize our company as
your personal management company.
If the foregoing fully and accurately sets forth our understanding,
please sign this agreement where indicated below, indicating acceptance to the
terms set forth herein:
Very Truly Yours,
SKREEM ENTERTAINMENT CORP.
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By: ___________________________
As Its: _________________________
AGREED TO AND ACCEPTED:
3rd Wish
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