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EXHIBIT 10.25
TALENT AGREEMENT
This Talent Agreement (the "Agreement") is entered into and made effective
as of this 30th day of October 1995, by and between Xxxxx Xxxxxx Productions, a
California corporation ("KRP"), and Inland Casino Corporation, a Utah
corporation ("ICC").
1. PURPOSE OF AGREEMENT. ICC shall engage KRP to provide the services of
Xxxxx Xxxxxx ("Xxxxxx"), and KRP shall cause Xxxxxx to act and Xxxxxx shall
agree to act as the spokesman in a promotional and advertising campaign for the
Barona Casino to be developed by ICC (the "Project"). The Project shall include,
but shall not be limited to, television, radio, outdoor billboards, newspapers,
magazines, direct mail, and transit buses. ICC agrees that Xxxxxx shall have
prior approval of the creative concepts of the Project; provided, however, that
Xxxxxx shall not unreasonably withhold his approval.
2. SCOPE OF SERVICES. Xxxxxx shall act in the Project, shall personally
appear at the Barona Casino for two (2) full days on October 30 and 31, 1995,
and shall perform the following services related to the Project: be photographed
in still photography sessions, act in filming sessions, and voice recording. For
the purposes of this Agreement, it is understood that the Project shall include
the following original songs to be sung and recorded by Xxxxxx:
a. Song No. 1 -- the slow version recorded in Branson, Missouri on
October 15, 1995.
b. Song No. 2 -- the upbeat tempo version to be recorded in San Diego,
California.
3. USE OF XXXXXX' LIKENESS.
a. During the term of this Agreement, ICC shall have the right to the
use of Xxxxxx' name, voice, likeness, sound and similar characteristics
("Xxxxxx' Likeness") for the purpose of advertising, promoting, selling,
and otherwise merchandising the Barona Casino. Except as provided for in
subparagraph b. below, ICC shall not be restricted in its use of Xxxxxx'
Likeness, including, without limitation, the number, design and format of
television commercials, radio commercials, outdoor billboards, newspaper or
magazine advertisements, direct mail pieces, and transit buses, so long as
the film, photographic, and audio elements of such uses are limited solely
to those recorded, filmed, and/or photographed on October 15, 1995 in
Branson, Missouri and/or on October 30 and 31, 1995 in San Diego,
California.
b. Prior to the use of Xxxxxx' Likeness, ICC shall submit an example
of the still photograph, print layout, television advertisement, or other
proposed uses of KRP, which shall have forty-eight (48) hours from receipt
to approve the proposed use(s); provided, however, that KRP shall not
unreasonably withhold its approval; and provided, further, that KRP shall
approve no less than fifty percent (50%) of the proposed uses. If KRP does
not object to a proposed use within the 48-hour period, KRP will be deemed
to have approved such use. After KRP has approved a proposed use, ICC shall
be free to use such use in its sole discretion. For the purposes of this
subparagraph, ICC shall submit the proposed use(s) to KRP in care of Kragen
& Company at the address indicated in paragraph 18 below.
4. COMPENSATION. For the services and other consideration that Xxxxxx is
to render and/or give under this Agreement, ICC shall pay the sum of Two Hundred
Fifty Thousand Dollars ($250,000.00), payable as follows: One Hundred
Twenty-Five Thousand Dollars ($125,000.00) upon execution of this Agreement and
One Hundred Twenty-Five Thousand Dollars ($125,000.00) upon completion of the
services. Each such payment shall be paid as follows: One Hundred Twelve
Thousand Five Hundred Dollars ($112,500.00) to Xxxxx Xxxxxx Productions and
Twelve Thousand Five Hundred Dollars ($12,500.00) to Kragen & Company.
5. TERM OF AGREEMENT. This Agreement shall commence as of the date that
the Project first appears in a public medium and shall continue for the
following one-year period. ICC shall have the option to extend this Agreement
for one additional 30-day period upon the payment of Twenty-Five Thousand
Dollars ($25,000.00) to KRP. ICC shall notify KRP of the date that Project first
appears in a public medium. ICC
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shall have an option to use the services of Xxxxxx for an additional year on
terms and conditions mutually acceptable to the parties.
6. SERVICES USED AT DISCRETION OF ICC. No provision of this Agreement
shall be construed to require that ICC include the services rendered by Xxxxxx
in the completed project for which those services have been retained. The
compensation paid to Xxxxxx under paragraph 4 above shall be deemed to
constitute the total consideration for Xxxxxx' services.
7. EXCLUSIVITY. During the term of this Agreement, Xxxxxx shall not accept
employment as a spokesman for any other casino or gaming enterprise advertising
and/or promoting itself in San Diego County. Xxxxxx shall not, without the
express prior written authorization of ICC, make any such arrangements or
undertake any such employment that may in any way conflict with his obligations
to ICC as set forth in this Agreement.
8. COOPERATION OF XXXXXX. During the term of this Agreement, KRP shall
cause Xxxxxx to, and Xxxxxx shall, comply with all directions and reasonable
requests of ICC in relation to Xxxxxx' services. Xxxxxx shall at all times
attempt to perform to the best of his ability.
9. SUSPENSION.
a. ICC shall have the right to suspend this Agreement if Xxxxxx
suffers any physical, mental, or other disability on or before October 31,
1995, including but not limited to, changes in his physical appearance or
voice, that will, in the judgment of ICC, interfere with Xxxxxx' services,
or if Xxxxxx fails, refuses or neglects to perform any duties set forth in
this Agreement, or declares either personally or through a representative
that he does not intend to perform those duties.
b. If ICC suspends the operation of this Agreement as provided in
section a. of this paragraph, the compensation provided for in paragraph 4
above shall be suspended accordingly.
c. Upon the cessation of the event or condition causing the suspension
of this Agreement, Xxxxxx shall be obligated to complete his services;
provided, however, that ICC may, in its sole discretion, elect to rescind
the Agreement in which case KRP shall be obligated to return to ICC all
payments made under paragraph 4 above.
10. OWNERSHIP RIGHTS. ICC shall have sole ownership of all rights in the
Project and may, but shall not be required to, secure a copyright to protect its
interests against infringement. ICC shall have the right to do all of the
following with respect to the Project and Xxxxxx' work in the Project:
distribute, show and adapt it or any portion of it for any medium; cut, edit,
add to, subtract from, arrange, rearrange, and revise any or all of it; and
promote it in any manner ICC desires.
11. TERMINATION. ICC shall have the right to terminate this Agreement upon
any permanent change in Xxxxxx' ability to perform or upon conduct of Xxxxxx
which results in a violation of the law or adverse publicity which ICC
reasonably believes may reflect badly on Xxxxxx, the Barona Casino, and/or the
Project. During the term of this Agreement, Xxxxxx agrees that he shall not
engage in any conduct which results in a violation of the law or adverse
publicity which, in the sole discretion of ICC, reflects badly on Xxxxxx, the
Barona Casino, and/or the Project.
12. INDEPENDENT CONTRACTORS. KRP's and Xxxxxx' relationships with ICC are
and shall be that of independent contractors, and nothing in this Agreement
shall be construed as creating an employer-employee relationship between KRP and
Xxxxxx, on the one hand, and ICC, on the other hand. No party is authorized to
nor shall act as the agent of any other party. It is acknowledged that KRP and
Xxxxxx shall not be entitled to any of ICC's employee benefits, nor will any
part of the compensation payable to KRP or Xxxxxx be subject to withholding by
ICC for the payment of any federal or state social security or other employee
payroll taxes. KRP and Xxxxxx shall be solely responsible for the payment of any
federal or state social security or other employment taxes associated with KRP's
and/or Xxxxxx' services under this Agreement, but shall not be responsible for
the payment of any federal or state social security or other employment taxes or
fringe benefits, including, without limitation, pension or welfare benefits,
payable by or on behalf of any other person or entity associated with ICC or the
Project.
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13. REPRESENTATIONS AND WARRANTIES OF KRP AND XXXXXX. KRP and Xxxxxx
covenant, represent, and warrant as follows:
a. KRP is a corporation duly organized, existing and in good standing
under the laws of the State of California. The execution and delivery of
this Agreement and the consummation of this transaction by KRP have been
duly authorized, and no further corporate authorization is necessary on the
part of the KRP.
x. Xxxxxx' has the right, power, legal capacity and authority to enter
into and perform his obligations under this Agreement and no approvals or
consents of any person or entity other than Xxxxxx is necessary in
connection with it.
c. Neither KRP's nor Xxxxxx' execution, delivery and performance of
this Agreement will not result in or constitute (1) a breach of any term or
provision of any agreement or obligation binding on KRP or Xxxxxx; (2) a
default or an event that, with notice or lapse of time or both, would be a
default, breach or violation of any lease, license, promissory note,
conditional sales contracts, commitment, franchise, permit or indenture or
other agreement, instrument or arrangement to which KRP or Xxxxx is a party
or by which KRP or Xxxxxx is bound or affected; or (3) any breach or
violation of any law, rule or regulation of any governmental authority, or
any order, injunction or decree.
14. ICC'S REPRESENTATIONS AND WARRANTIES. ICC is a corporation duly
organized, existing and in good standing under the laws of the State of Utah.
The execution and delivery of this Agreement and the consummation of this
transaction by ICC have been duly authorized, and no further corporate
authorization is necessary on the part of the ICC.
15. INDEMNITY BY KRP AND XXXXXX. KRP and Xxxxxx shall each jointly and
severally indemnify, save and hold harmless ICC and the Barona Band of Mission
Indians, their respective affiliates and subsidiaries, and their respective
employees, representatives, officers, directors and agents from and against any
and all costs, losses (including, without limitation diminutions in value),
liabilities, damages, lawsuits, deficiencies, claims and expenses (whether or
not arising out of third party claims), including, without limitation, interest,
penalties, reasonable attorneys' fees and all amounts paid in investigation,
defense or settlement of any of the foregoing (collectively referred to herein
as the "Losses"), incurred in connection with or arising out of or resulting
from or incident to: (i) any breach of any covenant or warranty, or the
inaccuracy of any representation, made by KRP or Xxxxxx in or pursuant to this
Agreement and (ii) any liability, obligation or commitment of any nature
(absolute, accrued, contingent or otherwise) arising from or in connection with
any acts or omissions of KRP or Xxxxxx.
16. INDEMNITY BY ICC. ICC shall indemnify, save and hold harmless KRP and
Xxxxxx, and their respective employees, representatives, officers, directors and
agents from and against any and all costs, losses (including, without limitation
diminutions in value), liabilities, damages, lawsuits, deficiencies, claims and
expenses (whether or not arising out of third party claims), including, without
limitation, interest, penalties, reasonable attorneys' fees and all amounts paid
in investigation, defense or settlement of any of the foregoing (collectively
referred to herein as the "Losses"), incurred in connection with or arising out
of or resulting from or incident to: (i) any breach of any covenant or warranty,
or the inaccuracy of any representation, made by ICC in or pursuant to this
Agreement and (ii) any liability, obligation or commitment of any nature
(absolute, accrued, contingent or otherwise) arising from or in connection with
any acts or omissions of ICC.
17. NOTICE OF INDEMNITY CLAIM. The Indemnified Party shall promptly notify
the Indemnifying Party in writing of the existence of any claim, demand or other
matter which could give rise to a right of indemnification pursuant to
paragraphs 14 or 15 above. The Indemnifying Party shall have the right, at its
and/or their option, and with the consent of the Indemnified Party as referred
to hereinbelow, to compromise or defend, at its and/or their own expense and by
its and/or their own counsel, any such matter involving the asserted liability
of the Indemnified Party. If the Indemnifying Party undertakes to compromise or
defend any such asserted liability, it and/or they shall promptly notify the
Indemnified Party of its and/or their intention to do so, and the Indemnified
Party agrees to cooperate fully with the Indemnifying Party and its and/or their
counsel in the compromise of, or defense against, any such asserted liability.
All costs and expenses incurred in
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connection with such cooperation shall be borne by the Indemnifying Party. If
the Indemnifying Party elects not to compromise or defend the asserted
liability, fails to notify the Indemnified Party of this election as herein
provided or contests his obligations to indemnify under this Agreement, the
Indemnified Party shall have the right, but not the obligation to undertake the
defense of, and to compromise or settle (exercising reasonable business
judgment), the claim or other matter on behalf, for the account, and at the
risk, of the Indemnifying Party. Notwithstanding the foregoing, the Indemnifying
Party may not settle or compromise any claim over the objection of the
Indemnified Party; provided, however, that consent to settlement or compromise
shall not unreasonably be withheld. Nothing contained in this paragraph 16 shall
limit the Indemnified Party's right to participate, at its own expense, in the
defense of such asserted liability.
18. MISCELLANEOUS PROVISIONS.
a. The subject headings of the paragraphs of this Agreement are
included for convenience only and shall not affect the construction or
interpretation of any of its provisions.
b. This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter contained in it and supersedes all prior
and contemporaneous agreements, representations and understandings of the
parties. No supplement, modification or amendment of this Agreement shall
be binding unless executed in writing by all the parties. No waiver of any
of the provisions of this Agreement shall be deemed, or shall constitute a
waiver of any other provisions, whether or not similar, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
c. Except as otherwise provided for in this Agreement, nothing in this
Agreement, whether express or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
parties to it and their respective successors and assigns, nor is anything
in this Agreement intended to relieve or discharge the obligation or
liability of any third persons to any party to this Agreement, nor shall
any provision give any third persons any right of subrogation or action
over or against any party to this Agreement.
d. Any controversy, claim or dispute between the parties, directly or
indirectly, concerning this Agreement or the breach hereof or the subject
matter hereof, including questions concerning the scope and applicability
of this arbitration clause shall be finally settled by arbitration held in
San Diego, California pursuant to the rules of the American Arbitration
Association. The parties severally agree to expedite the arbitration
proceedings in every way, so that the arbitration proceedings shall be
commenced within 30 days after request therefor is made, and shall continue
thereafter, without interruption, and that the decision of the arbitrator
should be handed down within 30 days after the hearings in the arbitration
proceedings are closed. The arbitrator shall have the right and authority
to assess the cost of the arbitration proceedings, including, but not
limited to, an award of attorneys' fees of the prevailing party, and to
determine how his decision or determination as to each issue or matter in
dispute may be implemented or enforced. The decision in writing of the
arbitrator shall be binding and conclusive on all of the parties to this
Agreement. Any decision or award of the arbitrator shall be final and
conclusive on the parties to this Agreement; judgment upon such decision or
award may be entered in any competent Federal or state court located in the
court for confirmation of such decision or award for an order of
enforcement and for any other legal remedies that may be necessary to
effectuate such decision or award. The arbitrator shall be required to
apply the substantive law of the State of California, and any arbitration
hereunder shall be conducted pursuant to section 1280 et. seq. of the
California Code of Civil Procedure. Nothing herein shall preclude any party
from seeking or obtaining any provisional remedy from a court of competent
jurisdiction located in San Diego, California whether or not such remedy is
included within the meaning of section 1281.8 of the California Code of
Civil Procedure or any successor statute.
e. If any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of
this Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorneys' fees and other costs incurred in
that action or proceedings, in addition to any other relief to which it or
they may be entitled.
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f. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is
to be given, or on the fifth (5th) day after mailing if mailed to the party
to whom notice is to be given, by first class mail, registered or
certified, postage prepaid and properly addressed as follows:
To KRP or Xxxxxx: Xxxxx Xxxxxx Productions
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx XxXxxx
With Copies to: Xxx Xxxxxx
Kragen & Company
0000 Xxxxx Xxxxxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Myman, Abell, Fineman, Xxxxxxxxx & Xxxxx
00000 Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
To ICC: Inland Casino Corporation
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Opel
With Copy to: Page, Xxxxx, Xxxxx & Xxxxxxxxxx
000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Any party may change its address for purposes of this paragraph by
giving the other parties written notice of the new address in the manner
set forth above.
g. Each party to this Agreement shall be responsible for, and shall
pay, all of its own fees and expenses, including those of its counsel,
incurred in the negotiation, preparation and consummation of this Agreement
and the transactions described herein. The parties to this Agreement are
represented by counsel. This Agreement, and related agreements executed in
connection with this Agreement, shall not be construed against any party on
the basis that such party or its agents drafted parts of, or the entirety
of such documents.
h. If any provision of this Agreement is held invalid or unenforceable
by any court of final jurisdiction, it is the intent of the parties that
all other provisions of this Agreement be construed to remain fully valid,
enforceable and binding on the parties.
i. This Agreement shall bind and inure to the benefit of each party
hereto and their respective successors, heirs and assigns.
j. This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may
be executed by facsimile, with originals to follow by overnight courier.
k. This agreement shall be construed in accordance with, and governed
by, the internal laws of the State of California. Any legal proceeding to
enforce any provision of this Agreement shall be maintained only in San
Diego, California.
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IN WITNESS WHEREOF, the parties have executed this Talent Agreement as of
the date first written above.
XXXXXX
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
KRP
XXXXX XXXXXX PRODUCTIONS,
a California corporation
By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Title:
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ICC
INLAND CASINO CORPORATION,
a Utah corporation
By: /s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Title: Director of Marketing
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