***THIS EXHIBIT HAS BEEN FILED IN REDACTED FORM PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT. A COMPLETE COPY OF THIS EXHIBIT HAS BEEN FILED IN
UNREDACTED FORM WITH THE SECURITIES AND EXCHANGE COMMISSION.
ENTERTAINMENT PRODUCTION AGREEMENT
THIS ENTERTAINMENT PRODUCTION AGREEMENT (the "Agreement"), made and
entered into this 8th day of December, 1995, at Las Vegas, Nevada by and between
IMPERIAL PALACE, INC., a Nevada corporation (hereinafter "IMPERIAL PALACE"), and
XXXX X. XXXXXX, an individual ("STUART"), and LEGENDS IN CONCERT, INC., a Nevada
corporation (hereinafter referred to as "LEGENDS").
W I T N E S S E T H
WHEREAS, IMPERIAL PALACE is the owner of a resort hotel, now existing
in Xxxxx County, Nevada, known as the IMPERIAL PALACE Hotel and Casino
(hereinafter "Hotel");
WHEREAS, on or about May 1, 1985, IMPERIAL PALACE entered into an
agreement with STUART under which STUART was permitted to use the Hotel's
Imperial Theater (the "Theater") for public presentation of the Production on an
ongoing basis;
WHEREAS, subsequently, STUART has assigned the May 1, 1985 agreement to
LEGENDS, and LEGENDS has assumed and agreed to perform each and all of the
obligations and responsibilities of STUART under the May 1, 1985 agreement, and
LEGENDS is currently the producer of the production show entitled "Legends in
Concert" (hereinafter "Production");
WHEREAS, subsequent to May 1, 1985, STUART, and subsequently LEGENDS,
have used the Theater on a regular basis for a public presentation of the
Production;
WHEREAS, IMPERIAL PALACE, STUART and LEGENDS have subsequently modified
the May 1, 1985 agreement, both orally and in writing, on various occasions;
WHEREAS, it is the intent of the parties hereto, in executing this
Agreement, to restate, supersede, and replace the agreement of May 1, 1985, as
amended from time to time, to resolve any and all disagreements and disputes
that have arisen between IMPERIAL PALACE, on the one hand, and STUART and
LEGENDS, on the other hand, and to establish new terms and conditions for
LEGENDS' use of the Theater from the date of this Agreement forward;
NOW, THEREFORE, in consideration of the terms, covenants, conditions
and provisions hereafter set forth, and for other good and valuable
consideration, it is hereby agreed by and between IMPERIAL PALACE and LEGENDS as
follows:
1. Grant and Acceptance of Right to Use Theater. IMPERIAL PALACE hereby
grants to LEGENDS, during the term of this Agreement, the right to use the
Theater for purposes of publicly presenting the Production, subject to the
further terms and provisions of this Agreement. LEGENDS, in turn, hereby agrees
to accept and use the Theater in publicly presenting the Production, subject to
the further terms and provisions of this Agreement.
2. Nature of Relationship. LEGENDS is, and shall be in the performance
of all duties and responsibilities arising under this Agreement, an independent
contractor. The right of LEGENDS to use the Theater as granted herein is in the
nature of a revocable non-exclusive license. No term or provision in this
Agreement, nor any method or manner of payment hereunder, shall be deemed to
create any relationship between LEGENDS and IMPERIAL PALACE, other than that
expressed in this paragraph. Under no circumstance shall this Agreement be
deemed or construed to create any relationship of the nature of a joint venture,
partnership, or landlord/tenant between IMPERIAL PALACE and LEGENDS. Neither
LEGENDS nor the staff and employees of LEGENDS shall be deemed or construed, at
any time, under any circumstances, or in any way, to be employees, agents,
representatives or personnel of IMPERIAL PALACE or the Hotel.
3. Attributes of the Production. The Production shall consist of a
tribute to the legends of American pop music, entitled "Legends In Concert", and
shall consist of artists impersonating or recreating such legendary superstars
as Xxxxx Xxxxxxx, Xxxx, Xxxxxxx, Xxxxx Xxxxx Xx., Xxxxxxx Xxxxxxx, Xxxx Xxxxxxx,
and others with the prior approval of both IMPERIAL PALACE and LEGENDS. A seven
(7) piece orchestra will perform as a back-up group for the artists. Not less
than six (6) artists will perform in each showing of the Production, with each
featured artist being on stage for approximately fifteen (15) minutes. The
Production shall, with the prior approval of both IMPERIAL PALACE and LEGENDS,
employ special
effects equipment including, but without limitation, mist machines, strobe
lights, accent lighting, and holographic effects. The Production will be
presented in a form, style, and format which meets or surpasses the generally
accepted quality and performance standards for variety shows and reviews
presented in Las Vegas, Nevada, in theaters of similar size.
4. Performance of Production. The Production shall be performed, in its
entirety, two (2) times each day, six (6) days a week. The first performance of
the Production will commence at approximately 7:30 o'clock p.m. The second
performance of the Production will commence at approximately 10:30 o'clock p.m.
Unless and until otherwise agreed, in writing, by and between IMPERIAL PALACE
and LEGENDS, there will be no showings of the Production on Sunday night.
5. Determination and Approval of the Production's Content. The content
of the Production shall be set and established by LEGENDS with the written
approval of IMPERIAL PALACE. LEGENDS may vary the format of the Production from
time to time to enhance the Production and further the interests of both LEGENDS
and IMPERIAL PALACE; however, material changes in the Production's content
and/or format shall be made only with the prior written consent and approval of
IMPERIAL PALACE. For purposes of this paragraph, material changes in the
Production's content and format shall be deemed to include, without limitation:
a. The substitution or replacement of any artist who has been
engaged to impersonate or recreate a legendary superstar;
b. The addition of any legendary superstar to the Production
as performed for the public; and,
c. The deletion of any legendary superstar from the Production
as performed for the public.
It is understood and acknowledged by and between LEGENDS and IMPERIAL PALACE
that the purpose of the approval right that is granted to IMPERIAL PALACE in
this paragraph is to enable IMPERIAL PALACE to control the quality of the
Production that is being made available to its clientele and guests, so as to
preserve its reputation as a gaming hotel and resort in the eyes of the public.
6. Term. This Agreement shall be effective as of the date that it is
executed by both IMPERIAL PALACE, STUART and LEGENDS, and shall remain in full
force and effect until it is terminated pursuant to Paragraph 19 hereinbelow.
7. IMPERIAL PALACE'S DUTIES. IMPERIAL PALACE agrees to do the following
in order to facilitate the public presentation of the Production as contemplated
herein:
a. Make the Theater available to LEGENDS for
rehearsals, auditions, and public presentation of the Production during
the term of this Agreement. To that end, IMPERIAL PALACE shall provide,
at its own cost, a new sound system, but otherwise shall provide only
those fixtures customarily found in showrooms in Las Vegas, Nevada of a
size and type comparable to
the Theater, including normal lighting, seating, and table facilities.
LEGENDS acknowledges that it is intimately familiar with the present
condition of the Theater, and, with the exception of the new sound
system, nothing herein shall be construed to require IMPERIAL PALACE to
further improve or equip the Theater beyond the condition, as provided
by IMPERIAL PALACE, that exists on the date this Agreement is executed.
b. Make available to LEGENDS such stage production
personnel as IMPERIAL PALACE determines are necessary for the efficient
preparation and presentation of the Production in the Theater. The term
"stage production personnel", as it is used in this Agreement, includes
stage hands, lighting crew personnel, sound crew personnel, and a stage
technical director ("Technical Director"). All costs incurred by
IMPERIAL PALACE in furnishing such stage production personnel,
including salaries, taxes, and benefits paid, shall be borne by LEGENDS
and shall be reimbursed to or deducted by IMPERIAL PALACE weekly from
proceeds that are otherwise distributable to LEGENDS from the
Production as calculated pursuant to paragraph 13 hereinbelow.
c. Provide beverage service in the Theater during the
presentation of the Production. Each holder of a ticket to the
Production shall be entitled to receive two (2) cocktails, beers, or
fruit juices, or one (1) polynesian cocktail, or one-half (1/2) share
of a bottle of wine during the presentation of
the Production as a standard policy in the Theater. Additional
beverages will be made available for purchase at current showroom
beverage prices. All beverage costs shall be borne by IMPERIAL PALACE.
All beverage income shall belong exclusively to the IMPERIAL PALACE.
d. Provide such cocktail servers, captains, ushers,
maitre d', clean-up personnel, ticket sellers, cashiers, and bar
tenders as are reasonably necessary to assist and serve the needs of
patrons of the Production in connection with and during the public
presentation of the Production. All costs incurred by IMPERIAL PALACE
in furnishing the personnel referenced in this subparagraph shall be
borne by IMPERIAL PALACE.
e. Provide a showroom reservation booth which shall
be located in the Hotel's casino. IMPERIAL PALACE will instruct ticket
sellers at the showroom reservation booth to suggest the Production
before any other show unless the patron or customer requests a specific
show. All costs incurred by IMPERIAL PALACE in furnishing the
reservation booth and ticket sellers referenced in this subparagraph
shall be borne by IMPERIAL PALACE.
f. Provide, for LEGENDS' use, sufficient office space
upon the Hotel premises to accommodate two desks; provided, however,
LEGENDS shall bear all expense incurred in equipping the office space.
g. Provide, for LEGENDS' use, up to two hotel rooms
at no cost to LEGENDS for the temporary use by cast members of the
Production in order to further promote and improve the Production at
the IMPERIAL PALACE. The hotel rooms shall not be used for the
convenience of those cast members who are to be used for other shows in
locations outside of the IMPERIAL PALACE or for the convenience or
promotion of other such shows or productions; however, the rooms may be
used for auditioning artists for the IMPERIAL PALACE show or for
temporary replacements of cast members during leaves and vacations for
the Production at the IMPERIAL PALACE.
h. Provide, for the performing artists and members of the
orchestra, one meal per working day in the IMPERIAL PALACE employees'
cafeteria for performing artists and orchestra members currently
performing or working in the Production.
8. LEGENDS' Duties. LEGENDS agrees to do the following in furtherance
of the public presentation of the Production as contemplated herein:
a. Present the Production for public viewing in the Theater in
the manner and at the times specified in paragraphs 3 and 4
hereinabove.
b. Revise the Production with the cooperation and the approval
of the IMPERIAL PALACE in order to provide a "fresh look" onstage by
way of updating, modernizing, repainting and freshening existing and by
adding new stage backdrops, staging
aids and other facilities utilized in the Production for the purposes
of providing a "modernized" and "fresh" and "new" look to the
Production.
c. Provide all special effects equipment necessary to
the presentation of the Production (with the exception of the new sound
system to be provided by IMPERIAL PALACE), including, without
limitation, mist systems, strobe lights, accent lighting, lasers and
other special effects lighting, and holographic effects. LEGENDS shall
bear all costs and expenses incurred in procuring and providing the
balance of the special effects equipment. During the term of this
Agreement, LEGENDS shall make all of the aforesaid special effects
equipment available for IMPERIAL PALACE's use without charge when the
Theater is not being used by LEGENDS for rehearsals, auditions, and/or
the public presentation of the Production.
d. Retain, employ, and provide all artists,
musicians, cast members and choreographers, and purchase or otherwise
furnish all costumes, sets and other items of personal property and
equipment necessary to prepare and present the Production.
e. Bear sole responsibility for, and pay when due,
all federal income tax withholding, FICA, Social Security, worker's
compensation and payroll taxes incurred on behalf of or in connection
with LEGENDS' employees and personnel. Upon request, LEGENDS shall
provide evidence of a nature that is satisfactory to IMPERIAL PALACE
establishing that all of the
foregoing payroll expenses have been and are being paid in a
timely manner.
f. Process for identification purposes, all persons
performing in or otherwise associated with the Production, including
all members of LEGENDS' staff, through IMPERIAL PALACE's personnel
office. All said persons shall then be provided identification badges
which shall be presented to IMPERIAL PALACE personnel upon request when
said persons are in any area restricted to employees or guests of the
Hotel. In order to enable IMPERIAL PALACE to maintain a consistent
level of service for Hotel patrons, LEGENDS shall take all steps
necessary to insure that LEGENDS's staff, employees and personnel abide
by all rules and codes of conduct imposed for Hotel employees while
upon the Hotel premises.
g. Subject to the provisions of paragraph 11
hereinbelow, promote and provide advertising for the Production.
h. Obtain, and present to IMPERIAL PALACE on request,
all licenses, permits, accounts, and other authorizations necessary for
LEGENDS to act as an employer and/or to present the Production in the
Theater in Las Vegas, Xxxxx County, Nevada on an ongoing basis. Without
limitation, the foregoing shall specifically be deemed to include all
business licenses, federal identification numbers, State Industrial
Insurance System numbers and/or accounts, registration with the Nevada
Employment Security Department, and all other acts necessary to achieve
full compliance with the regulations and requirements of any
governmental body or agency having jurisdiction over any aspect of the
presentation of the Production in the Theater.
i. Obtain, pay for and maintain, in full force and
effect, throughout the term of this Agreement all licenses, approvals
and royalties, including ASCAP, BMI and other similar licensing
entities, and all other rights necessary to the performance of the
Production without infringement upon or violation of estate property
rights, copyrights, patents and/or other ownership interests in or
affecting the legendary superstars and/or the subject matter of the
Production.
j. Obtain and maintain in full force and effect
throughout the term of this Agreement, at LEGENDS' sole expense, a
policy of liability insurance insuring IMPERIAL PALACE, as an
additional named insured, against liability to the public for injury or
damage to the persons or property of LEGENDS's employees and staff,
showroom personnel, stage crew members, patrons of the Production, and
all other persons who are on the premises of the Theater for any reason
during any audition for, or rehearsal or performance of the Production,
or at any other time that LEGENDS has access to and is using the
Theater. Said insurance coverage shall have policy limits of not less
than One Million Dollars ($1,000,000) per occurrence, and Two Million
Dollars ($2,000,000) per policy period. All
insurance policies shall be written and issued by companies
satisfactory to IMPERIAL PALACE and licensed to transact business in
the State of Nevada, and all policies shall contain a waiver of
subrogation against IMPERIAL PALACE. The insurance policy required of
LEGENDS hereunder shall be written in such a manner as to protect the
interests of both IMPERIAL PALACE and LEGENDS. LEGENDS shall provide
IMPERIAL PALACE with either the original or a duplicate original of the
policy of insurance required hereunder. All policies of insurance
obtained pursuant to this paragraph shall not be subject to
cancellation by the insurer or LEGENDS unless and until IMPERIAL PALACE
has been given thirty (30) days advance written notice of such
cancellation. In the event that LEGENDS fails to obtain or maintain any
insurance required hereunder, IMPERIAL PALACE may obtain such
insurance, and the cost thereof shall be borne by LEGENDS and shall be
payable to IMPERIAL PALACE within ten (10) days following IMPERIAL
PALACE's submission of its invoice to LEGENDS for the insurance policy
premium. The foregoing notwithstanding, nothing herein shall be deemed
to require IMPERIAL PALACE to obtain the requisite insurance on
LEGENDS's behalf. IMPERIAL PALACE may purchase liability insurance in
excess of the amounts stated hereinabove, in the exercise of its
discretion.
k. Make the artists and other cast members of the
Production available to participate in promotional activities,
and such other ceremonies or festivities as may be sponsored by
IMPERIAL PALACE in its discretion from time to time during the term of
this Agreement.
l. Unless otherwise specifically indicated in this
Agreement, assume responsibility for, and pay and satisfy all
costs and expenses that in any way relate to preparations for
and/or the public presentation of the Production in the Hotel's
Theater.
9. LEGENDS' Covenants, Representations, and Warranties. LEGENDS
covenants, warrants, and represents to IMPERIAL PALACE in connection with this
Agreement, as follows:
a. That LEGENDS has all power and authority necessary to enter
into this Agreement, and to render a full and complete performance
pursuant to the terms hereof.
b. Except for claims arising from acts or omissions
of IMPERIAL PALACE employees which shall be the responsibility of
IMPERIAL PALACE, that LEGENDS will defend, indemnify, save and hold
IMPERIAL PALACE and the Hotel free, clear, and harmless from and
against any and all claims, liability, loss, and/or expenses arising
out of or by reason of the acts, omissions, or negligence of LEGENDS
and/or his agents, employees, servants, contractors, licensees,
customers, or business invitees which in any way relate to the
Production, or which arise from any accident, injury, or damage,
howsoever and by whomsoever caused, to any person or property
whatsoever, occurring in, upon or about the premises of the Theater, or
any portion thereof, during any audition for, or rehearsal or
performance of the Production, or at any other time when the Theater is
being used by LEGENDS. In the event that any suit, action or proceeding
is brought against IMPERIAL PALACE by reason of such claim, LEGENDS
shall, upon receipt of notice from IMPERIAL PALACE, resist or defend
such action or proceeding with the assistance of counsel chosen by
IMPERIAL PALACE, and LEGENDS shall bear all costs and expenses relating
thereto.
c. That LEGENDS has procured all licenses, rights, and
approvals necessary to performance of the Production without
interference with or infringement upon estate property rights,
copyrights, patents, and/or any other compensable rights held by any
and all persons or entities whatsoever.
d. That LEGENDS will save, defend, indemnify, and hold
IMPERIAL PALACE and its officers, directors, agents, representatives,
employees, heirs, and assignees harmless from and against any and all
actions, demands, causes of action, judgments, liability, damages,
penalties, losses, and expenses (including attorneys' fees and costs)
which may be suffered by or asserted against IMPERIAL PALACE by reason
of any actions of STUART or LEGENDS hereunder or arising as a result
thereof or due to any breach of any express or implied warranty arising
hereunder.
10. Rehearsals and Auditions. LEGENDS' use of the Theater for
rehearsals and auditions shall be limited exclusively to rehearsals and
auditions for, and which relate to, the Production at the IMPERIAL PALACE.
LEGENDS shall cause that all rehearsals and auditions in the Theater be
conducted between the hours of 10:00 a.m. and 5:00 p.m., where possible, and in
every event said rehearsals and auditions shall be concluded no later than one
(1) hour before the time set for commencement of any showing of the Production.
Rehearsals, auditions and work on the Theater stage shall be scheduled through
and approved by the Showroom Manager. A minimum of one (1) day's advance notice
will be given by LEGENDS if the presence of any stage production personnel is
required for any scheduled
rehearsal, audition or work on the Theater stage, and the decision of whether to
make IMPERIAL PALACE stage production personnel available for those purposes
will be in the Showroom Manager's sole discretion.
11. Advertising and Publicity. All advertising of the Production
created by LEGENDS during the term of this Agreement shall be subject to the
prior reasonable written consent and approval of IMPERIAL PALACE prior to public
dissemination of any such advertisement or publicity. The foregoing
notwithstanding, IMPERIAL PALACE is expressly granted a continuing right to use,
and to authorize others to use, with or without LEGENDS' consent, the name and
likeness of LEGENDS, the Production and/or any and all artists and other
Production cast members to advertise and publicize the Hotel and/or the
engagement of the Production at the Hotel in any and all media. It is agreed
that advertising of the Production will continue generally along the same lines
as in the past.
12. Admission Price. The price of public admission to performances of
the Production in the Theater ("Admission Fee") will be set and established from
time to time with the prior written consent and approval of both IMPERIAL PALACE
and LEGENDS. Effective as of the date of this Agreement, and unless and until
modified, the Admission Fee shall be Twenty-Nine and 50/100 Dollars ($29.50),
including taxes and gratuities. It is understood and agreed by and between
LEGENDS and IMPERIAL PALACE that a discounted ticket price may be established
with the mutual consent of the parties for wholesale ticket sales. Provided,
however, every Admission Fee and discounted wholesale ticket price shall include
all applicable taxes, gratuities and cocktails.
13. Collection and Disbursement of Revenues. It shall be the sole right
and responsibility of IMPERIAL PALACE to collect Admission Fees, wholesale
ticket sales proceeds, beverage charges, and all other proceeds derived from or
in connection with the Production. IMPERIAL PALACE shall make accountings to
LEGENDS on a weekly basis summarizing the costs incurred and the gross revenues
derived from or in connection with the Production, the backup data for which
LEGENDS shall be entitled to examine and review in a reasonable manner. The
weekly accountings shall further disclose the manner of disbursement of all
proceeds derived from or in connection with the Production. By the execution of
this Agreement, the undersigned acknowledge their consent to disbursement of
Admission Fees, wholesale ticket sales
proceeds, beverage charges, and other proceeds from the Production in
the following manner:
a. Admission Fees / Wholesale Ticket Sales Proceeds.
IMPERIAL PALACE is expressly authorized and empowered to deduct
and withhold the following sums from each Admission Fee and
from the proceeds from each wholesale ticket sale:
i. An amount equal to all applicable taxes imposed by
taxing authorities in connection with the sale of the ticket;
ii. An amount equal to the established gratuity; and,
iii. The sum of [***] to cover beverage service costs
that are included in the Admission Fee and wholesale ticket
price.
The balance of the Admission Fees and/or proceeds
from wholesale ticket sales shall be distributed to LEGENDS and
IMPERIAL PALACE weekly on the basis of [***]for LEGENDS and [***]to
IMPERIAL PALACE. Provided, however, IMPERIAL PALACE shall be entitled
to deduct weekly, from funds available for distribution to LEGENDS
under this paragraph, an amount equal to all unreimbursed costs
incurred by IMPERIAL PALACE as contemplated in subparagraph 7(b) above.
By way of example, assuming a $29.50 Admission Fee and the taxing and
gratuity structure that exists as of the date of this Agreement, each
Admission Fee would be applied and disbursed as follows:
Total Admission Fee: $ 29.50
Less:
Amount withheld for taxes ( 2.65)
Amount withheld for gratuity ( 2.50)
Amount withheld for beverage cost ( 3.00)
--------
Total Proceeds Available
for Distribution $ 21.35
Proceeds Distributable to LEGENDS* $ [***]*
[***]
Proceeds Distributable to
IMPERIAL PALACE $ [***]
[***]
* Subject to reimbursement of costs incurred
by IMPERIAL PALACE for stage production personnel as
contemplated in subparagraph 7(b) above.
b. Beverage Charges. IMPERIAL PALACE shall be entitled to
[***] from beverage service and the sale of beverages in the Theater
during the Production.
c. Merchandising Proceeds. The net profit from the sale of
merchandise such as posters, tee-shirts and/or other apparel
or souvenirs relating to or in connection with the Production shall be
divided and disbursed to IMPERIAL PALACE and LEGENDS as follows:
i. If the merchandise is sold by LEGENDS at the
Theater, the net profits will be divided on the basis of [***]
to LEGENDS and [***] to IMPERIAL PALACE.
ii. If the merchandise is sold by IMPERIAL PALACE
through the Hotel's gift shop or otherwise, the net profit
will be divided between LEGENDS and IMPERIAL PALACE equally.
For the purpose of this subparagraph, "net profit"
shall be calculated by deducting from gross sales the cost of goods
sold (including shipping costs if applicable) and all taxes collected
and incurred in connection with the sale of the merchandise.
Notwithstanding the foregoing, it is understood and agreed that LEGENDS
will not produce, market, distribute or cause to be distributed any
item or merchandise relating to the Production without IMPERIAL
PALACE's prior written consent and approval, both as to the nature of
the merchandise and as to pricing schedules. IMPERIAL PALACE shall have
the right to market any approved merchandise relating to the Production
in the Hotel's gift shop in accordance with the approved pricing
schedules.
d. Other Proceeds. All other proceeds derived from or
in connection with the production, if any, shall be divided
between IMPERIAL PALACE and LEGENDS on the basis of [***] for
LEGENDS and [***] for IMPERIAL PALACE.
14. BMI/ASCAP. LEGENDS shall bear responsibility for payment and
satisfaction of all BMI and/or ASCAP charges and similar licensing and royalty
charges assessed as result of or in connection with the public presentation of
the Production.
15. Complimentary Covers. IMPERIAL PALACE and LEGENDS shall each be
entitled to issue up to two hundred forty (240) complimentary covers ("Comps")
for performances of the Production each week. If either party issues more than
two hundred forty (240) Comps in any week, the party issuing the excess Comps
shall pay for the same at the full Admission Fee. As used herein the term "week"
refers to seven (7) consecutive days commencing on Monday and running through
the following Sunday.
16. Exclusivity. During the term of this Agreement the Production,
including each and all of the acts in the Production, shall remain exclusive to
IMPERIAL PALACE for [***] unless IMPERIAL PALACE issues its prior written
consent, in each instance, to a waiver of the requirements of this paragraph.
a. The consent of the IMPERIAL PALACE shall not be
unreasonably withheld; however, LEGENDS agrees that in the event the
IMPERIAL PALACE requests that LEGENDS utilize or distribute coded
coupons to the audience at any such Production at a location other than
the Hotel premises, LEGENDS agrees to do so, so that the Hotel can
determine the potential benefits
to the Hotel arising as a result of the presentation of the Production
at locations other than the Hotel premises. Without limitation, the
provisions of this paragraph shall be deemed to apply and preclude the
presentation of the Production, or any one or more of the acts from the
Production, at conventions, tradeshows, or other public gatherings at
locations other than on the Hotel premises, as well as the use of Hotel
stage hands or other employees for that purpose. Additionally, if this
Agreement is terminated by LEGENDS, LEGENDS will not, without IMPERIAL
PALACE's prior written consent, publicly present the Production or any
part thereof in [***] for a period of [***] following the termination
of this Agreement.
b. LEGENDS and STUART agree to cooperate in good
faith with Hotel and/or Hotel's subsidiaries, so long as it is in the
best interests of both LEGENDS and the Hotel, to create and present a
similar production under similar terms at the hotel and casino facility
presently under construction by Imperial Palace of Mississippi, Inc. in
Biloxi, Mississippi.
17. Remedies. Any failure, refusal or neglect on the part of LEGENDS
(other than because of death or incapacity of STUART or force majeure) to
perform the duties and obligations that are imposed under this Agreement,
whether then existing or prospective, including any declaration by LEGENDS of an
intention not to perform or present the Production as scheduled, shall render
LEGENDS in default of this Agreement. In the event of any such default, IMPERIAL
PALACE shall
be entitled to exercise all rights and remedies available to it at law or in
equity, including, without limitation, the remedy of specific performance.
18. Termination of Agreement. This Agreement may be terminated as
follows:
a. By either IMPERIAL PALACE or LEGENDS if there is a
material default in performance of the duties and obligations arising
under this Agreement, and the default is not cured within ten (10) days
after the non-defaulting parties' service of written notice of default
and demand for cure upon the defaulting party.
b. By IMPERIAL PALACE, in its sole discretion:
i. Upon the giving of not less than eight
(8) weeks advance written notice of the intent to terminate to
LEGENDS; or,
ii. If the number of paying customers or
patrons of the Production, excluding complimentary covers,
falls below two thousand, four hundred (2,400) persons per
week, based on a six (6) show night week, for three (3)
consecutive weeks;
iii. In the event of the death of STUART;
iv. In the event of the incapacity of
STUART, if that incapacity precludes LEGENDS from performing
any duty or responsibility imposed hereunder for a period of
seven (7) consecutive days; or,
v. If there is any accident, fire,
explosion, casualty, epidemic, Act of God, strike, lockout,
labor condition or unrest, unavailability of power or other
utility or commodity, civil disturbance, riot, war, armed
combat (whether or not there has been an official declaration
of war), enactment of any law, issuance of any judicial order
or decree, or any other occurrence beyond the parties control
in the nature of force majeure which interrupts or materially
hampers or interferes with the performance of the Production
for a period of seven (7) consecutive days or more (force
majeure).
Upon termination of this Agreement pursuant to this paragraph IMPERIAL
PALACE shall be released from all further obligations arising hereunder, with
the sole exception of its obligations to pay such compensation, if any, as may
have become due but was not paid prior to such termination.
19. Condition of Theater Upon Termination. LEGENDS shall repair any and
all deteriorations or injuries to the Theater occasioned by its failure to use
ordinary care during the term of this Agreement.
20. Removal of Personal Property. Any property which LEGENDS has
brought to or installed in the Theater during the term of this Agreement shall
be removed immediately upon the termination of this Agreement. In the event the
property is not so removed within seven (7) days following the date of
termination, IMPERIAL PALACE may have
said property removed at a cost which will be borne by LEGENDS, or IMPERIAL
PALACE may in its sole discretion retain the property as its own.
21. Release. In consideration of the mutual execution of this
Agreement, IMPERIAL PALACE, on the one hand, and STUART and LEGENDS, on the
other hand, for themselves and each of them and their respective
representatives, heirs, successors and assigns, do hereby release, acquit and
discharge one another and their respective agents, employees, servants,
officers, directors, stockholders, successors and assigns, and each of them
where applicable, of and from any and all liability, claims, debts, demands,
accounts, accountings, costs, fees, charges, obligations, actions, causes of
action and claims for relief of every kind and nature, known and unknown,
anticipated and unanticipated, suspected and unsuspected, past, present or
future, which STUART, LEGENDS or IMPERIAL PALACE might otherwise have or have
had to assert arising out of duties imposed or performances rendered by either
LEGENDS or IMPERIAL PALACE in connection with the Production prior to the date
of this Agreement under the terms of the pre-existing agreement between STUART
and/or LEGENDS and IMPERIAL PALACE dated May 1, 1985, as amended from time to
time.
22. Compliance with Governing Law. In providing services hereunder,
LEGENDS agrees to comply with, and to cause all personnel associated with the
Production to comply with all applicable federal, state and local laws, rules,
and regulations. LEGENDS acknowledges
that he is aware that in the ownership and operation of the Hotel, IMPERIAL
PALACE is subject to various business, regulatory and licensing authorities
including, but not limited to, the Nevada Gaming Commission, the Nevada Gaming
Control Board, and the Xxxxx County Liquor and Gaming Licensing Board
(collectively, the "Nevada Gaming Authority"). LEGENDS agrees not to perform any
act or fail to perform any act which would be or may result in violation of any
law, rule or regulation of any of the Nevada Gaming Authorities. If there should
arise any matter of any kind whatsoever in connection with this Agreement, the
Production or LEGENDS which may, in the reasonable opinion of IMPERIAL PALACE
jeopardize any governmental authorization or license, IMPERIAL PALACE shall have
the right to terminate this Agreement immediately without any further obligation
or liability whatsoever. If the Nevada Gaming Authorities require LEGENDS or any
other personnel associated with the Production to submit applications for
findings of suitability, or other information or documentation, or otherwise
request LEGENDS or said personnel to respond pursuant to any investigation by
nevada Gaming Authorities, LEGENDS covenants and agrees that it will take any
actions which may be necessary and appropriate to respond timely to the Nevada
Gaming Authorities. Failure by LEGENDS or personnel associated with the
Production to respond as required by the Nevada Gaming Authorities shall
constitute grounds for immediate termination of this Agreement by IMPERIAL
PALACE, without any further obligation or liability whatsoever on the part of
IMPERIAL PALACE.
23. Notice. All notices required or permitted to be given hereunder
shall be in writing and shall be delivered in person or by certified mail,
return receipt requested, postage pre-paid and addressed as follows:
TO STUART or LEGENDS: TO IMPERIAL PALACE:
Xxxx X. Xxxxxx IMPERIAL PALACE, Inc.
0000 X. Xxxxx Xxxxx 0000 Xxx Xxxxx Xxxx. Xxxxx
Xxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
or to such other address as such party may hereafter designate in writing.
Notices mailed as provided herein shall be deemed given on the third business
day following the date the notice is deposited in the United States mail.
24. Attorneys' Fees. In the event either IMPERIAL PALACE or LEGENDS
shall bring any action or proceeding for damages for an alleged breach of any
provision of this Agreement, to enforce, protect, or establish any right or
remedy of either party, the prevailing party shall be entitled to recover as a
part of such action or proceedings reasonable attorneys' fees and court costs.
25. Severability. If any portion of this Agreement is in conflict with
any applicable Federal or State law now in force or hereafter enacted, such
provisions shall become inoperative, but all other provisions of this Agreement
shall remain in full force and effect.
26. Interpretation. This Agreement shall be interpreted in accordance
with the laws of the State of Nevada.
27. Entire Agreement. This Agreement contains the entire understanding
of the parties with respect to the matters covered herein, and no other
agreement, statement or promise made by any party or to any employee, officer,
or agent of any party, which is not contained in this Agreement shall be binding
or valid.
IN WITNESS WHEREOF, the parties described above enter into this
Agreement on the day and year first above written.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
LEGENDS IN CONCERT, INC. IMPERIAL PALACE, INC.
By: _________________________________ By:_______________________
XXXX X. XXXXXX, President XXXXX XXXXXXXXX, President
____________________________
XXXX X. XXXXXX, individually
