Exhibit 10.5
LICENSE AGREEMENT
BY AND BETWEEN
HARD ROCK HOTEL LICENSING, INC.
AND
PREMIER ENTERTAINMENT, LLC
DATED: AS OF MAY 15, 2003
TABLE OF CONTENTS
Section Page
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SECTION 1. DEFINITIONS AND INTERPRETATION....................................1
SECTION 2. GRANT; SCOPE.....................................................11
SECTION 3. TERM; EXTENSION OF TERM..........................................12
SECTION 4. COMPENSATION TO LICENSOR.........................................13
SECTION 5. DEVELOPMENT/OPERATION OF HOTEL/CASINO............................14
SECTION 6. LEASE............................................................24
SECTION 7. PERSONNEL........................................................24
SECTION 8. ADVERTISING......................................................25
SECTION 9. STANDARDS OF QUALITY AND OPERATION...............................28
SECTION 10. ADDITIONAL COVENANTS OF LICENSEE.................................32
SECTION 11. PROTECTION AND ACKNOWLEDGMENT OF THE LICENSED RIGHTS.............37
SECTION 12. ACCOUNTING RECORD; RIGHT TO INSPECT..............................40
SECTION 13. REQUIRED INSURANCE...............................................42
SECTION 14. TERMINATION......................................................44
SECTION 15. LICENSEE'S OBLIGATIONS UPON TERMINATION OR EXPIRATION............49
SECTION 16. TRANSFER.........................................................50
SECTION 17. NON-COMPETITION..................................................53
SECTION 18. DISPUTE RESOLUTION...............................................54
SECTION 19. INDEMNIFICATION..................................................57
SECTION 20. CONFIDENTIAL INFORMATION.........................................58
SECTION 21. GENERAL PROVISIONS...............................................59
SECTION 22. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
LICENSOR AND LICENSEE............................................64
SECTION 23. RIGHT OF FIRST OFFER.............................................65
SECTION 24. SECURED PARTY RIGHTS.............................................66
SECTION 25. INITIAL SECURED PARTY RIGHTS.....................................73
SECTION 26. LETTER OF CREDIT.................................................73
EXHIBITS
Exhibit A Licensed Marks
Exhibit B Form of Cafe Lease Agreement
Exhibit B-1 Business Terms of Retail Store Lease Agreement
Exhibit C Form of Memorabilia Lease
Exhibit D Project Concept Plan
Exhibit E Description of Pre-Approved Site
Exhibit F Map of Competitive Territory
Exhibit G Collateral Assignment of
License Agreement
Exhibit H Consent to Collateral Assignment of
License Agreement
LICENSE AGREEMENT
This
LICENSE AGREEMENT (the "AGREEMENT") is made and executed as of May
15, 2003, by and between HARD ROCK HOTEL LICENSING, INC., a Florida
corporation ("LICENSOR"), and PREMIER ENTERTAINMENT, LLC, a Mississippi
limited liability company ("LICENSEE").
RECITALS
A. Licensor will be developing or has developed a Hotel System (as
hereinafter defined) for operating the hotel aspects of Hotel/Casino
establishments that provide Accommodation, Food and Beverage, Branded
Merchandise and Gaming (each as hereinafter defined) of a distinctive character
and quality under the name "Hard Rock Hotel" and "Hard Rock Casino" and has
publicized such names and the related trademarks, trade names, service marks,
logos, slogans, trade dress, commercial symbols, and other intellectual property
rights of Licensor in connection with the operation of such Hotel System at
hotel and/or casino establishments throughout the world.
B. Licensor will own certain rights in the Hotel System with respect to
the Competitive Territory (as hereinafter defined) and desires to develop and
operate in the Competitive Territory music-themed hotels and casinos under the
name "Hard Rock Hotel", "Hard Rock Casino" and certain other trademarks, trade
names, service marks, logos, slogans, trade dress, commercial symbols, and other
intellectual property rights of Licensor as used from time to time in connection
with the operation of Hotel/Casino establishments and the production and sale of
Branded Merchandise in conformity with the Hotel System.
C. Licensee is desirous of developing and operating a hotel and casino
using the Hard Rock Marks (as hereinafter defined) and has requested that
Licensor grant to the Licensee the Licensed Rights defined hereunder and the
other rights contained in this Agreement for, INTER ALIA, use at the Licensed
Location (as hereinafter defined) within the Competitive Territory.
D. Licensee and Licensor desire to enter into this Agreement to have a
hotel and casino developed and operated at the Licensed Location within the
Competitive Territory upon the terms and conditions set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and obligations contained herein, the grant by Licensor to Licensee of
the rights to utilize the Licensed Rights as contained herein, and for other
good and valuable consideration, the receipt and sufficiency of all of which is
hereby acknowledged by each party hereto, Licensor and Licensee hereby agree as
follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
(A) DEFINITIONS. For purposes of this Agreement, the following
definitions shall apply:
"AAA" shall have the meaning set forth in Section 18(B)(i) hereof.
"AAA RULES" shall have the meaning set forth in Section 18(B)(i) hereof.
"ACCOMMODATION" means lodging for the public in a hotel setting and other
associated services and facilities.
"ACCOUNTING REFEREE" shall have the meaning set forth in Section 18(A)(i)
hereof.
"ADJUSTED FOR INFLATION" means an amount adjusted for inflation by being
increased on each anniversary of the Opening Date by the lesser of (i) Three
percent (3%) or (ii) an adjustment based upon the "Inflation Index" (as defined
below). The amount of the adjustment under (ii) shall be determined by
multiplying the amount which is the subject of the escalation by a fraction the
denominator of which is the "Inflation Index" for the month from which such
adjustment shall be made (the "BASE MONTH"), and the numerator of which is the
"Inflation Index" for the month immediately prior to the month in which the
adjustment for inflation shall be made (the "ADJUSTMENT MONTH"), provided that
if the Inflation Index for the Base Month is less than the Inflation Index for
the Adjustment Month, the amount to be adjusted will be multiplied by one (1)
for purposes of making calculations hereunder. In the event an amount is to be
Adjusted for Inflation and there is no reference to the Base Month, the Base
Month shall be the month that includes the Effective Date. For purposes of this
paragraph, the Inflation Index shall mean the U.S. City Average Price Index for
All Urban Consumers for All Items (Base Year 1982 - 1984) as published by the
United States Department of Labor, Bureau of Labor Statistics; provided that if
such index is discontinued or is unavailable, then the parties will substitute
therefor a comparable index for use in calculating changes in the cost of living
or purchasing power of consumers published by any other governmental agency,
major bank, financial institution or university or by another recognized
financial publication, with such adjustments as shall be reasonably necessary to
produce substantially the same results as would have been obtained under the
unavailable index.
"ADVISORY SERVICES" shall have the meaning set forth in Section 5(I)
hereof.
"AFFILIATE" shall mean, with respect to any Person, any other Person which,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
"AGREEMENT" shall have the meaning set forth in the first paragraph hereof.
"BOOKS AND RECORDS" shall have the meaning specified in Section 12(B)
hereof.
"BRANDED MERCHANDISE" shall mean those items of personal property, products
and merchandise bearing the Licensed Marks which Licensor sells in the
Hotel/Casino Retail Store leased to Licensor pursuant to the Retail Store Lease
Agreement.
"BUSINESS DAY" shall mean any day other than a day on which banking
institutions are required or authorized to be closed in Orlando, Florida or
Biloxi, Mississippi.
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"CAFE LEASE AGREEMENT" shall mean that certain Lease Agreement by and
between Licensee, as landlord, and Hard Rock STP (as hereinafter defined), as
tenant, whereby Licensee shall lease space within the Hotel/Casino to Hard Rock
STP to operate a Hard Rock Cafe, in the form attached hereto as EXHIBIT B.
"CASINO" shall mean the casino portion of the Hotel/Casino.
"CLAIMS" shall have the meaning set forth in Section 19(A) hereof.
"COMPARABLE STANDARDS" shall mean, as appropriate in context, the manner of
operation, frequency of repairs made, cleanliness, quality of materials used,
degree of training and retraining for employees, and other similar
considerations, as are regularly used and/or practiced by (a) a majority of
Licensor's other similar U.S. facilities (either hotel or casino), provided
Licensor, at the time such Comparable Standards are being considered, has in
full operation at least six (6) such similar U.S. facilities, or (b) if Licensor
does not have six (6) similar U.S. facilities in full operation, similar U.S.
facilities of similar size and catering to similar clientele who have earned a
"four diamond" rating by the Automobile Club of America, at the time such
Comparable Standards are being considered.
"COMPETITIVE TERRITORY" means the geographic region depicted on the map
attached hereto as EXHIBIT F and made a part hereof, which shall include the
cities of Biloxi, Gulfport and Bay of St. Louis.
"CONFIDENTIAL INFORMATION" shall mean any information or material that is
proprietary to one of the parties hereto, or imparted or made available by one
of the parties hereto to the other party hereto, that, in either case, is either
specifically listed in the following sentence or marked confidential or
confirmed in writing within fifteen (15) Business Days of disclosure as
confidential. Notwithstanding the foregoing, the following items shall be deemed
confidential, regardless of whether the same is marked or designated as such:
(i) the Hotel System and related Manuals and all information, components and
elements set forth therein; (ii) all information, knowledge or data relating to
new products and entertainment concepts; (iii) either party's strategic plans,
pricing policies, recipes (other than generic recipes) and the testing thereof;
(iii) trade secrets; (iv) training programs and techniques; (v) proprietary
ideas and concepts; (vi) marketing and advertising techniques and plans for
design, sourcing and providing goods and services; (vii) customer research; and
(viii) financial information concerning the Hotel/Casino and its businesses.
Confidential Information shall not include information or material that: (w) is
or becomes generally available to the public other than as a result of a
disclosure by the party receiving it hereunder; (x) is or becomes available to
the party receiving it hereunder on a non-confidential basis form a source
which, to the knowledge of the party receiving it hereunder, is entitled to
disclose it without restriction: (y) was known to the party receiving it
hereunder prior to its disclosure hereunder as evidenced by written
documentation; or (z) is verifiably developed by the party receiving it
hereunder without the benefit of the information or materials disclosed
hereunder.
"CONTINUING FEE(s)" means the fee(s) Licensee will pay for the duration of
this Agreement to Licensor as consideration for the use of the Licensed Rights
under the terms and conditions of this Agreement, and as more specifically
provided for in Section 4(B) hereof.
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"CONTROLLING INTEREST" shall mean BOTH (i) the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of Licensee, whether through the ownership of voting securities, by
contract, or otherwise, and (ii) the direct or indirect ownership of twenty
percent (20%) or more of the equity interests of Licensee.
"DISPUTE" shall have the meaning set forth in Section 18(B)(i) hereof.
"DISPUTE NOTICE" shall have the meaning set forth in Section 18(A)(i)
hereof.
"FEES" shall the meaning set forth in Section 4(C) hereof.
"FF&E" shall mean all furniture, fixtures and equipment (other than
operating supplies) located at or used in connection with the Project, including
without limitation: (i) all gaming equipment, including without limitation, all
slot machines and video gaming devices; (ii) all furniture, furnishings,
built-in furniture, carpeting, draperies, decorative millwork, decorative
lighting, doors, cabinets, hardware, partitions (but not permanent walls),
televisions and other electronic equipment, interior plantings, interior water
features, artifacts and artwork, and interior and exterior graphics; (iii)
communications equipment; (iv) all fixtures and specialized hotel equipment used
in the operation of kitchens, laundries, dry cleaning facilities, bars and
restaurants; (v) telephone and call accounting systems; (vi) rooms management
systems, point-of-sale accounting equipment, front and back office accounting,
computer, duplicating systems and office equipment; (vii) cleaning and
engineering equipment and tools; (viii) vehicles; (ix) recreational equipment;
and (x) all other similar items which are used in the operation of the Project,
excluding, however, any personal property which is owned by subtenants,
licensees, concessionaires or contractors.
"FISCAL YEAR" shall mean the twelve (12) month period commencing January 1
and ending December 31, except that the first Fiscal Year shall be that period
commencing on the Opening Date and ending on the next December 31.
"FOOD AND BEVERAGE" means those items of food and beverage sold at the
Hotel/Casino, but excluding all food and beverage sold by any Hard Rock Cafe at
the Licensed Location governed by the Cafe Lease Agreement.
"FORCE MAJEURE" shall have the meaning set forth in Section 21(K) hereof.
"GAAP" shall mean United States generally accepted accounting principles as
in effect from time to time.
"GAMING" means the conduct of gaming activities, as defined by Miss. Code
Xxx. Section 75-76-5(l), or any successor or substitute statute. The Parties
acknowledge that the display or use of the Hard Rock Marks and the Memorabilia,
the electronic visual and audio aspects, including, but not limited to, music
selection and the use of videos within the gaming area does not constitute
Gaming.
"GOVERNMENTAL AUTHORITY" means any foreign, federal, state or local
governmental entity or authority, or any department, commission, board, bureau,
agency, court or
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instrumentality thereof having control or regulatory authority over the Licensed
Location, the Hotel/Casino or the Project.
"HARD ROCK ELEMENTS" shall mean those aural or visual aspects of the
Hotel/Casino which uniquely identify a facility as being a Hard Rock facility,
including but not limited to (1) the use of distinctive exterior and interior
designs, layouts, concepts, decor, music-related memorabilia and icons, and
staff uniforms; (2) the process for selecting and training employees in all
customer service and interface positions; (3) the electronic visual and audio
aspects of the Hotel/Casino, including but not limited to music and video
selection; (4) advertising and marketing standards for the uses and presentation
of the Licensed Marks, including such usage in connection with media events,
television, radio and print, and coordination of public relations activities;
(5) distinctive furniture, distinctive carpeting, decorative millwork,
decorative lighting, acoustics, graphics, signage and audio visual equipment;
and (6) any other use or display of the Hard Rock trademarks.
"HARD ROCK HOTEL" means a hotel, lodge, inn or similar establishment within
a property or resort named or identified with the Hard Rock Marks which is a
place for overnight lodging. As respects a particular Hotel/Casino, the term
"Hotel" shall include the hotel buildings and structures at any time constructed
and situated on the land, whether owned or leased, comprising that location, and
all facilities, structures and improvements relating thereto, including, without
limitation, guestrooms, any lobbies, kitchen, dining rooms, restaurants, meeting
and banquet rooms and facilities, bars, swimming pools, theaters, health clubs,
landscaping, parking areas, roadways and walkways.
"HARD ROCK LEASES" shall mean collectively the Cafe Lease Agreement and
Retail Store Lease Agreement (as hereinafter defined).
"HARD ROCK MARKS" shall mean the name "Hard Rock Hotel", "Hard Rock Casino"
and all associated or related trademarks, trade names, service marks, logos,
slogans, trade dress, commercial symbols, and other intellectual property rights
of Licensor and its Affiliates related thereto as set forth on EXHIBIT A, as
such exhibit may from time to time be amended by written agreement of the
parties to this Agreement.
"HARD ROCK STP" shall mean Hard Rock Cafe International (STP), Inc., a New
York corporation.
"HOTEL" shall mean the hotel portion of the Hotel/Casino.
"HOTEL/CASINO" shall mean the Hard Rock Hotel, Casino and live music venue
to be developed and operated at the Licensed Location and all related
improvements, including FF&E, as approved in accordance with the provisions of
this Agreement. No timeshare or other fractional ownership rights shall be
included and License has no rights to develop timeshare or fractional ownership
interest as part of the Project.
"HOTEL/CASINO RETAIL STORE" shall mean that area within the Project to be
leased to Hard Rock STP pursuant to the Retail Store Lease Agreement where Hard
Rock STP shall sell Branded Merchandise. Licensee shall build the Hotel/Casino
Retail Store in accordance with criteria specified by Licensor in the Retail
Store Lease Agreement.
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"HOTEL SYSTEM" shall mean the method, to be developed, of (a) operation of
the Hotel and (b) conforming the Casino with the Hard Rock Elements, to be
operated pursuant to the terms of this Agreement. Licensor will own the rights
in the Hotel System and the Manuals which are developed by the Licensor.
Licensor will consult with Licensee, or Licensee's designated agent, to develop
and implement the Hotel System, and all subsequent modifications to the Hotel
System and Manuals. The Hotel System shall be commercially reasonable in
accordance with Comparable Standards, and in no event shall it require any more
onerous obligations, responsibilities and expense of Licensee than Licensee
would have in creating and operating the hotel/casino in Las Vegas currently
operated under the Hard Rock brand, as it exists as of the date of this
Agreement. Notwithstanding the foregoing, and for the avoidance of doubt, the
Hotel System and Manuals shall not address Gaming or any procedures or policies
for the operation of Gaming.
"HRC COMPETITOR" shall mean (a) a Planet Hollywood, Motown Cafe, House of
Blues, Rainforest Cafe, Country Star, Harley Davidson Cafe, ESPNZone, TGI
Fridays, Chili's, Applebee's, Houlihans or Bennigans; (b) a restaurant chain (i)
operating under the same name in six or more Metropolitan Statistical Areas,
(ii) with theme-related icons or memorabilia displayed throughout the premises
in a museum or collection type manner, and (iii) which derives greater than ten
percent (10%) of its gross revenues from the sales of merchandise; or (c) any
American dining theme-restaurant whose primary business is the sale of
hamburgers or bar b-que.
"INDEMNIFY" means to defend, indemnify against, hold harmless from, and
reimburse for.
"INTEREST RATE" means the prime rate listed in the "Money Rates" section of
the WALL STREET JOURNAL from time to time plus four percent (4.0%) per annum,
provided that in no event shall the Interest Rate exceed the maximum rate
permitted by applicable Law(s).
"LAW(s)" means any and all laws, judgments, decrees, orders, rules,
regulations or official legal interpretations of any Governmental Authority.
"LEASE" shall have the meaning set forth in Section 6 hereof.
"LICENSEE'S POLICIES" means the reasonable, non-discriminatory (as applied
to Licensor, Licensee [in its operation of businesses in the Hotel/Casino],
other tenants in the Hotel/Casino and their respective employees, invitees and
licensees) written policies and procedures adopted by Licensee related to the
security and privacy of the Gaming operations conducted by Licensee and approved
in writing by Licensor, which approval shall not be unreasonably withheld,
conditioned or delayed, and all future modifications to such written policies
and procedures which are (i) approved in advance and in writing by Licensor if
such modifications adversely affect the rights or interest of Licensor
hereunder, or (ii) provided to Licensee at least thirty (30) days prior to the
effective date of such modifications, if such modifications do not adversely
affect the rights or interest of Licensor hereunder.
"LICENSED LOCATION" means the real property upon which the Hotel/Casino is
to be located as approved by Licensor pursuant to Section 5(B) hereof, and
includes such real property, all structures located or constructed thereon, all
FF&E, and all appurtenances to any of
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the foregoing, together with all easements, entrances, exits, rights of ingress
and egress thereto, and all improvements thereon or thereto.
"LICENSED MARKS" shall mean those Hard Rock Marks, as depicted and (subject
to the restrictions) set forth in EXHIBIT A hereto, as such exhibit may from
time to time be amended by written agreement of the parties to this Agreement.
"LICENSED RIGHTS" means the right to use (i) the Licensed Marks, and (ii)
the trade dress elements representing the total image and overall appearance of
a Hard Rock Hotel and Casino, including but not limited to, distinctive exterior
and interior designs, layouts, concepts, decor, color schemes, music-related
memorabilia and icons, furnishings, and staff uniforms; all in accordance with
this Agreement. Licensor will own all of the Licensed Rights incorporated into
the Hotel System, the Manuals, the Hotel/Casino and/or the Project, in each case
developed by Licensor.
"LICENSING FEE REVENUES" shall mean, during the relevant period, the
aggregate of: (a) all revenues, income and proceeds of any kind from the rental
of guest rooms, conference rooms and meeting rooms at the Hotel/Casino,
excluding any Federal, state and municipal excise, sales, resort, use and other
taxes collected from patrons or guests as a part of or based upon the sales
price of any goods or services, (b) sale of Food and Beverage, Merchandise,
collection of parking fees or other receipts of any kind and including, without
limitation, (i) the fair market values of any barter and other non-cash property
and services received as an alternative to cash payments pursuant to recurring
practices that reduce or offset or substitute for revenues, (ii) sixty percent
(60%) of the Average Daily Rate of any guest rooms charged to guests, customers
or clients on a "complimentary" basis, without charge or for a reduced charge
(other than to Hard Rock executives), whether as part of a "frequent traveler"
program offered by Licensee (except for programs that grant awards based solely
on paid room nights by a guest at the Hotel/Casino) or for any other reason,
(iii) awards or any other form of incentive payments from any source whatsoever
which are attributable to the rental of guest rooms the Hotel/Casino, and (b)
the proceeds (after deduction from said proceeds of all necessary expenses
incurred in the adjustment or collection thereof) of business interruption
insurance actually received by Licensee with respect to the revenue items
described in subsection (a) of this definition with respect to the Project, in
each case only to the extent such revenues are actually received by Licensee or,
if applicable (with respect to fair market value) as actually granted or
utilized by Licensee. As used in this section, the "Average Daily Rate" shall
mean One Hundred Dollars ($100.00) with respect to the first Operating Year,
and, thereafter, shall mean the average rate per night for rooms in the Hotel
charged to guests during the preceding Operating Year, provided, however, rooms
let or made available to guests, customers or clients on a "complimentary"
basis, without charge or for a reduced charge, regardless of the cause therefor,
shall not be included in the calculation of the Average Daily Rate.
Notwithstanding the above, and for the avoidance of doubt, the parties
agree that Licensing Fee Revenues shall not include: (i) any revenues, receipts
and income of any kind received by Licensee from "gaming", as defined by Miss.
Code Xxx. '75-76-5(1) (as hereafter amended), at the Hotel/Casino; or (ii)
revenues generated by Licensor at the Hard Rock Cafe and the Hard Rock Retail
Store located at the Project.
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"MANAGEMENT STANDARD" shall mean the standard of a first-class, four-star
resort hotel as defined by the current standard as of the date hereof of the
Hard Rock Hotel located in Las Vegas,
Nevada.
"MANUALS" shall mean, collectively, all operating manuals, training manuals
and all accompanying workbooks to be developed by Licensor to implement the
Hotel System pursuant to this Agreement, as amended, supplemented, or otherwise
modified from time to time by Licensor, in its sole discretion.
"MARKS COMPLIANCE COORDINATOR" shall have the meaning set forth in Section
9(C) hereof.
"MEMORABILIA LEASE" shall mean that certain Memorabilia Lease by and
between Hard Rock STP, as lessor, and Licensee, as lessee, whereby Hard Rock STP
shall lease "rock and roll" memorabilia to Licensee for display in the
Hotel/Casino, in the form attached hereto as EXHIBIT C.
"MERCHANDISE" shall include those items of personal property, products and
merchandise which Licensee sells at the Hotel/Casino, expressly excluding any
and all Branded Merchandise and items of personal property, products and
merchandise which Hard Rock STP sells at the Hard Rock Cafe located within the
Hotel/Casino.
"METROPOLITAN STATISTICAL AREA" shall mean the designation by the U.S.
Census Bureau for metropolitan areas with a central city or an urbanized area
having a minimum population of 50,000 with a total metropolitan population of at
least 100,000 and including all counties that have strong economic and social
ties to the central city.
"NET WIN" shall mean the amount remaining after payment of and accrual for
prizes and complimentary benefits extended to players and taxes paid by Casino
on "Gross Revenues" as defined by the Mississippi Gaming Commission on the date
hereof.
"NOTICE(s)" shall have the meaning set forth in Section 21(B) hereof.
"OPENING DATE" shall mean the date the Hotel/Casino is opened for business
to the public, the deadline of which is set forth in Section 5(N) hereof.
"OPERATING PERIOD" means the period beginning with the Opening Date and
continuing for the term of this Agreement.
"OPERATING YEAR" shall mean the twelve consecutive (12) month periods
commencing on the first day of the first calendar month after the Opening Date
and ending on the last day of the twelfth full calendar month after the Opening
Date, except that the first Operating Year shall be that period commencing with
the Opening Date and ending on the last day of the twelfth full calendar month
after the Opening Date.
"PERMITS" means any and all licenses, permits, approvals, variances,
waivers or consents from any Governmental Authority.
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"PERSON" shall mean (i) an individual, corporation, partnership, joint
venture, limited liability company, limited liability partnership, estate,
trust, unincorporated, associated or other entity, (ii) any Federal, state,
county or municipal government or any bureau, department, political subdivision
or agency thereof, and (iii) a fiduciary acting in such capacity on behalf of
any of the foregoing.
"PRE-OPENING PERIOD" means the period from the date hereof until the
Opening Date.
"PROJECT" shall mean (i) the Hotel/Casino and its related amenities, (ii) a
barge to be moored at the site with approximately 70,000 square feet of gaming
space, (iii) a Hard Rock Live! music venue, (iv) all real property interests at
the Licensed Location, and (v) such other developments as the parties may
mutually agree to include in the Project, in each case, together with all
buildings, structures, FF&E, and improvements related thereto.
"PROJECT MANAGER" shall mean the individual responsible for the day-to-day
management of the construction of the Project.
"PROPERTY SYSTEM(s)" means any property system(s) (including without
limitation all equipment and Software), whether proprietary to Licensor and/or
third parties, designated by Licensor for use by Hard Rock Hotels, as such
property systems may from time to time be modified by Licensor.
"PROTECTED PERSONS" shall the meaning set forth in Section 17(C) hereof.
"RESERVATION SYSTEM" means any reservation system designed by or utilized
by Licensor (including without limitation all equipment and Software) for Hard
Rock Hotels, as such reservation system may be from time to time modified by
Licensor.
"RESERVE FUND" shall have the meaning specified in Section 9(D) hereof.
"RETAIL STORE LEASE AGREEMENT" shall mean that certain Lease Agreement by
and between Licensee, as landlord, and Hard Rock STP, as tenant, whereby
Licensee shall lease space within the Project to Hard Rock STP to operate the
Hotel/Casino Retail Store selling Branded Merchandise, in substantially the same
form as the Cafe Lease Agreement, subject to the business terms attached hereto
as EXHIBIT B-1.
"SOFTWARE" means all computer software and accompanying documentation
(including all future enhancements, upgrades, additions, substitutions and other
modifications thereof) as may be provided pursuant to this Agreement to Licensee
by Licensor or third parties designated by Licensor for use in Hard Rock Hotels.
"TERRITORY" shall mean Biloxi, Mississippi.
"TOTAL REVENUES" shall mean, during the relevant period, total revenue as
determined under GAAP, and in any event shall include, without limitation, all
income of every kind and all proceeds of sales of every kind (whether in cash,
barter or on credit) resulting from the operation of the Project and any of the
facilities therein and goods and services provided thereby, including, without
limitation, (a) the Net Win from all gaming activities conducted at the
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Licensed Location or within the Project, (b) all income and proceeds from the
rental of rooms, Food and Beverage sales, sales of other goods and services, (c)
vending machine income, telephone revenues, parking revenues, revenues from any
recreational facilities, and entertainment revenues, (d) all income and proceeds
received from tenants, transient guests, customers, lessees, licensees and
concessionaires, including rental payments from the Hard Rock Cafe and the
Hotel/Casino Retail Store pursuant to the Lease Agreement (but not including the
gross receipts of such lessees, licensees or concessionaires) and other Persons
occupying space at the Project and/or rendering services to Project guests (but
exclusive of all consideration received at the Project for hotel accommodations,
goods and services to be provided elsewhere, although arranged by, for or on
behalf of Licensee), (e) the fair market values of any barter and other non-cash
property and services received by Licensee as an alternative to cash payments
pursuant to recurring practices that reduce or offset or substitute for
revenues, (f) the value (as reflected in the audited financial statements of
Licensee) of any Hotel rooms, facilities or services offered to guests,
customers or clients without charge or for a reduced charge, whether as part of
a "frequent traveler" program offered by Licensee or the Hotel manager or for
any other reason, (g) revenues arising from corporate sponsorships (where
permitted herein), (h) awards (other than condemnation awards for the value of
the Project), any other form of incentive payments or awards from any source
whatsoever which are attributable to the operation of the Project, (i) the
proceeds from any temporary taking (after deduction from said proceeds of all
necessary expenses incurred in the restoration of the improvements as may have
been necessitated by such taking), and (j) the proceeds (after deduction from
said proceeds of all necessary expenses incurred in the adjustment or collection
thereof) of business interruption insurance actually received by Licensee with
respect to the operation of the Project, in each case only to the extent such
revenues are actually received by or on behalf of Licensee or, if applicable, as
actually granted or utilized by Licensee.
Notwithstanding the above, the following shall, however, be excluded from
Total Revenues: (i) all revenues, receipts and income of every kind received by
Licensor or any Affiliate of Licensor in respect of, or attributable to, the
Hard Rock Cafe and the Hotel/Casino Retail Store at the Licensed Location; (ii)
Federal, state and municipal excise, sales, resort, use, and other taxes
collected from patrons or guests as a part of or based upon the sales price of
any goods or services, including, without limitation, gross receipts, room, bed,
admission, cabaret, or similar taxes; (iii) any gratuities collected and paid
over to employees; (iv) the proceeds of any financing or refinancing of the
Project or capital contributions or advances to Licensee; (v) interest on funds
in the Reserve Fund; (vi) proceeds from the sale of any FF&E; (vii) proceeds
from the sale of the Hotel/Casino or other facilities included in the Project;
and (viii) proceeds of hazard insurance, other than business interruption
insurance.
(B) SCOPE OF TERMS. The use of the words defined herein shall
include the plural or singular forms of such terms, and the male, female,
or neutral gender thereof, as appropriate.
(C) REFERENCE TERMS. The use of the words "herein", "thereof",
"hereinafter", "hereinabove", and other words of similar import shall be
deemed to refer to this Agreement as a whole, and not to a specific
section, subsection, or paragraph thereof.
10
SECTION 2. GRANT; SCOPE
(A) GRANT. Licensor hereby grants to Licensee, upon and subject to
the terms and conditions contained in this Agreement, and Licensee hereby
accepts, the exclusive right and license to develop, operate, own, and
manage one (1) Hotel/Casino using and displaying the Licensed Rights at the
Licensed Location, and to promote such facility anywhere in the world,
including the use of Licensed Marks at the Hotel/Casino. Licensor's right
to license, develop, own or operate a physical structure branded with the
Hard Rock Marks within the Competitive Territory during the term of this
Agreement shall be subject to the restrictions set forth herein.
(B) SCOPE. All rights granted to Licensee are limited to the
establishment, operation and promotion of a Hotel/Casino utilizing the
Licensed Rights from the Licensed Location to the extent specifically
provided for in this Agreement. Licensee may not otherwise commercialize or
utilize, whether or not for profit, any of the Licensed Rights. Licensee
may not use the Hard Rock Marks unless they are Licensed Marks. The rights
granted to Licensee hereunder shall not entitle Licensee to sell Branded
Merchandise from the Licensed Location or any other location, and Licensee
acknowledges that Branded Merchandise may be sold at the Licensed Location
only by Licensor or its Affiliates or by a Person duly licensed by Licensor
to sell Branded Merchandise. The rights granted to Licensee do not include
any rights to brand and operate other facilities at the Hotel/Casino on or
from the Licensed Location utilizing the Hard Rock Marks, except as
expressly approved in advance by Licensor, in its sole discretion.
(C) RESERVED RIGHTS. Licensor reserves all rights not specifically
granted to Licensee pursuant to this Agreement. Nothing in this Agreement
shall prevent Licensor or its Affiliates from (i) developing or licensing
others to develop: (a) Hard Rock Hotels with casinos or Hard Rock casinos
anywhere outside the Competitive Territory, (b) Hard Rock Hotels (without
casinos) anywhere outside the Competitive Territory, (c) Hard Rock Cafes
anywhere outside the Competitive Territory, (d) Hard Rock Live! facilities
anywhere outside the Competitive Territory, (e) facilities utilizing the
Hard Rock Marks (other than Hard Rock Hotels, Hard Rock casinos, Hard Rock
Cafes and Hard Rock Live! facilities) any where in the world including, the
Competitive Territory, (f) Hard Rock branded timeshare or other fractional
ownership anywhere in the world, including the Competitive Territory, and
(g) resorts, hotels and/or casinos, and other facilities using any names or
marks, other than the Licensed Marks anywhere in the world, and (ii)
promoting and protecting all such facilities anywhere in the world. In
addition to the foregoing, nothing in this Agreement shall prevent Licensor
or its Affiliates from (a) selling, or licensing third parties to sell,
from a site within the Competitive Territory or a location ancillary and
commonly operated by such site within the Competitive Territory, Branded
Merchandise, excluding Branded Merchandise referring to and/or depicting
the geographic location of the Project within the Competitive Territory, or
(b) owning, developing (or licensing others to develop) or operating,
anywhere in the world (i) any form of on-line gaming (no matter where a
Person logs in for such on-line gaming service) or (ii) any form of gaming
activities conducted on or from a vessel except that Licensor shall not be
entitled, directly or indirectly, to operate, own or develop vessels
11
utilizing the Hard Rock Marks on which gaming is conducted which remain
moored within the Competitive Territory or depart from the Competitive
Territory and return to the Competitive Territory within twenty-four (24)
hours of such departure. Licensee acknowledges and agrees that no rights
are or will be granted in this Agreement for the development, construction,
operation or maintenance or other interest in any "Hard Rock Cafe", which
rights shall be subject to the Cafe Lease Agreement.
(D) RESTRICTIONS.
(i) The rights granted to Licensee do not include any
rights to use or otherwise identify the Hard Rock name or the Licensed
Marks with any businesses or facilities other than as herein granted
respecting the one (1) Hotel/Casino at and from the Licensed Location,
except as expressly approved in advance in writing by Licensor in its
sole discretion, and except that Licensee may utilize the Licensed
Marks on designations and directional signage and consumables within
the confines of the Hotel/Casino. Licensee shall not use or register
any trademark which is confusingly similar to the Licensed Marks or
use the Licensed Marks in any manner which creates a unitary or
composite trademark with the trademark of any third party or in
connection with the marks of any sponsor. Licensee shall use the
representations of the Licensed Marks, with respect to the location of
the words in the design logo, only in the manner set forth in this
Agreement with the words "Hard Rock Hotel" within the circle logo and
the geographic or other designation described therein below the circle
logo. Without Licensor's express written consent, in its sole
discretion, Licensee shall not replace the word "Hotel" within the
circle logo with any other designation.
(ii) Neither Licensee nor its Affiliates shall, or shall
permit any third party to, at any time, construct, operate or maintain
at the Hotel/Casino (a) any other business that is confusingly similar
to a Hard Rock Cafe, or (b) any other business that utilizes the Hard
Rock Marks, except as expressly permitted herein, or take any actions
that would infringe or otherwise violate the Hard Rock Marks.
SECTION 3. TERM; EXTENSION OF TERM
(A) INITIAL TERM. This Agreement shall be effective and binding
from the date of its execution, as set forth on the first page hereof, and
shall continue for an initial term of twenty (20) Fiscal Years after the
Opening Date, unless sooner terminated as provided herein.
(B) RENEWAL TERM. Except as otherwise provided for in this
Agreement, Licensee shall have the option of renewing the term hereof for
two (2) successive ten (10) year renewal terms upon the same term and
conditions as are contained herein, by providing Licensor with written
notice of its exercise of its option not more than eighteen (18) months and
not less than six (6) months prior to the expiration of the then-current
term of this Agreement, provided that at the time of the exercise of such
option: (i) Licensee is not in default under the terms of this Agreement or
any other agreement between Licensee and Licensor or any of its Affiliates
after written notice and
12
opportunity to cure as provided for herein or therein, and (ii) with
respect to the second renewal option, Licensee shall have exercised the
first renewal option. Upon the elapse of such option period and prior to
termination, Licensor agrees to notify Licensee in writing of its failure
to renew in order to confirm Licensee's nonrenewal decision, whereupon
Licensee shall have seven (7) days within which to elect to exercise its
renewal option. If Licensee fails to notify Licensor of its election within
such seven (7) day period, Licensee shall be deemed to have elected not to
exercise such renewal option. Upon any such renewal, no additional
Territory Fee shall be due.
SECTION 4. COMPENSATION TO LICENSOR
(A) TERRITORY FEE. As consideration for the grant of the right to
use the Licensed Rights as provided herein, Licensee shall pay to Licensor
a one-time territory fee of Five Hundred Thousand Dollars ($500,000) (the
"TERRITORY FEE"), which is due and payable upon execution of this
Agreement.
(B) CONTINUING FEES. As further consideration for the grant of the
right to use the Licensed Rights as provided herein, Licensee hereby agrees
to pay to Licensor a fee equal to three percent (3%) of the Licensing Fee
Revenues during the term of this Agreement (the "CONTINUING FEES"). In no
event shall this Section be construed so as to allow Licensor to share in
any revenue generated by the Licensee's Gaming operations at the
Hotel/Casino.
(C) PAYMENT OF FEES. The Continuing Fees will be payable to
Licensor monthly, within ten (10) days after the end of each calendar
month, based on Licensing Fee Revenues generated during the preceding
calendar month. The Territory Fee and Continuing Fees and all other fees,
contributions, expenses and reimbursements due from Licensee hereunder
(collectively, "FEES"), shall be paid by wire transfer of immediately
available funds to an account designated in writing from time to time by
Licensor.
(D) ANNUAL FEES. As further consideration for the grant of the
right to use the Licensed Rights as provided herein, Licensee shall pay
Licensor a non-refundable annual fee ("ANNUAL FEE") in the following
amount:
Year 1 $ 1,100,000
Year 2 $ 1,200,000
Year 3 $ 1,400,000
Year 4 $ 1,400,000
Year 5 $ 1,500,000
From Year 6 until the end of the Term, the Annual Fees shall be Adjusted
for Inflation each year. The "Base Month" for the Adjustment for Inflation shall
be the first calendar month of Year 5. All Annual Fees shall be paid without
regard to the revenues or financial performance of the Hotel/Casino. The Annual
Fee shall commence on the Opening Date and continue for each year or partial
year during the Term. The Annual Fee shall be payable in equal monthly
installments in arrears within ten (10) days after the end of each calendar
month.
(E) TECHNICAL SERVICES FEES. As consideration for the Technical
Services (as defined below) to be provided by Licensor, Licensee shall pay
to Licensor One Thousand
13
Dollars ($1,000) per key or room to be part of the Hotel/Casino, which sum
shall be paid in equal monthly installments commencing upon the execution
of this Agreement until the date which is twenty-four (24) months after the
date of execution of this Agreement (the "TECHNICAL SERVICES FEE") within
ten (10) days after the end of each calendar month. For purposes of payment
of the Technical Services Fee prior to the actual determination of the
number of keys or rooms to be part of the Hotel/Casino, it shall be assumed
that Licensee will construct three hundred twenty (320) rooms. Upon final
determination of the actual number of rooms or keys to be part of the
Hotel/Casino, the parties shall reasonably cooperate to reconcile any
overpayment or underpayment of the Technical Services Fee.
(F) LATE PAYMENTS. Unpaid amounts due and owing from Licensee or
Licensor, shall bear interest, pro rata per day, on the past due balance at
the Interest Rate; provided, however, that if the last day on which any
such amounts due and owing from Licensee or Licensor can be paid without
being considered past due falls on a non-Business Day, then the last day
for paying such sums without being considered past due shall be the next
Business Day thereafter.
(G) ALL FEES ARE NONREFUNDABLE. No Fees or other sums payable
hereunder shall be refundable to Licensee, except as specifically provided
herein. Notwithstanding the foregoing, Licensor shall refund any
overpayments made by Licensee.
(H) OFFSETTING OR WITHHOLDING BY LICENSEE. The Hard Rock Leases
require an Affiliate of Licensor, Hard Rock STP to pay an ongoing rental to
Licensee, all as more particularly described in the applicable Hard Rock
Leases (collectively, the "RENTAL PAYMENT"). In the event Hard Rock STP is
more than five (5) days late (beyond any applicable grace period or
curative period set forth in the applicable Hard Rock Lease) in the payment
of any Rental Payment due under either Hard Rock Lease, and Licensee
obtains a judgment or award from the arbitrator in accordance with the
applicable Hard Rock Lease that such amount is due and owing, then,
Licensee may, in addition to any other remedies it may have under the
applicable Hard Rock Lease, offset the unpaid Rental Payment (in the amount
determined by the arbitrator), or portion thereof, against the Fees coming
due under this
License Agreement until the Rental Payments, or outstanding
portion thereof, are paid to Licensee.
(I) The parties acknowledge that a reasonable, good faith error in
the calculation of Total Revenues or Licensing Fee Revenues shall not be
deemed a default hereunder.
SECTION 5. DEVELOPMENT/OPERATION OF HOTEL/CASINO
(A) LICENSURE. If in connection with this Agreement, the Licensor
or its Affiliates are required to undergo a gaming licensure process, then
at the request of Licensor, Licensee agrees to negotiate in good faith a
modification of this Agreement that would avoid such gaming licensure
requirement, provided that such modification does not adversely affect
Licensee's or Licensor's interests. For purposes of this Section,
"interests" shall mean Licensee's and Licensor's financial, legal and other
interests.
14
(i) The Project shall be designed and developed in
substantial accordance with the scope set forth in the project concept
plan and preliminary budget attached hereto as EXHIBIT D (the "PROJECT
CONCEPT PLAN"), as such Project Concept Plan is reasonably negotiated
and amended between the parties. The number of keys or rooms within
the Hotel/Casino for lodging shall not be less than three hundred
(300) nor more than one thousand (1000), without Licensor's prior
written consent, as determined in Licensor's sole discretion. The
Project Concept Plan for the Hotel/Casino, and the Hotel/Casino as
finally constructed, shall include a Hard Rock Cafe conforming to
standards prescribed by Licensor and set forth in the Cafe Lease
Agreement, which Hard Rock Cafe shall be leased to Licensor pursuant
to the Cafe Lease Agreement.
(ii) Notwithstanding any provision of this Agreement to the
contrary (except in respect to compliance with Laws and Governmental
Authorities), Licensor shall have full discretionary approval, in its
sole discretion, over all aspects of the development of the Project
which include Hard Rock Elements to the extent not covered by the
Hotel System or Manuals. Licensor's approval rights shall not include
approval over the design and layout of the gaming area (E.G., the
placement within the gaming area of table games, machines, cashier's
cages and other elements associated with gaming activity) or the
training of the gaming personnel, but shall include approval, in its
sole discretion, over the display and use of the Licensed Marks and
the Memorabilia, the electronic visual and audio aspects, including
but not limited to music selection and the use of videos within the
gaming area and the gaming employee uniforms. Notwithstanding the
foregoing, all table games shall include a prominent visual reference
to the Hard Rock brand, such as custom felt containing the Hard Rock
Hotel logo and rock lyrics, and branded chips, similar to those in
current use at the Hard Rock Hotel in Las Vegas. Licensor agrees to
reasonably and timely consult with Licensee with respect to its
approval over the aspects of the Project that include Hard Rock
Elements.
(iii) Licensee shall use reasonably diligent efforts to
acquire and develop the Licensed Location and the Hotel/Casino and
shall, with all reasonable diligence, construct, complete, furnish and
equip the Hotel/Casino, which in no event shall be of a lesser quality
than as set forth in the Hotel System, the Manuals and the Project
Concept Plan (as defined below), and in accordance with all of the
requirements of this Agreement. Licensee shall be solely responsible
and solely at risk to make certain the Licensed Location and the
Hotel/Casino, as constructed and operated, comply in all respect with
all applicable Laws and all other requirements of all Governmental
Authorities. In the event any of the approvals required herein, the
Hotel System, the Manuals or the Project Concept Plan would prevent
such compliance, or would subject Licensor to gaming laws or
licensure, then Licensor acknowledges and agrees that the laws and
requirements of all Governmental Authorities, including without
limitation the Mississippi Gaming Commission, shall control and
govern.
15
(iv) Licensor shall own the Hotel System and the Manuals
exclusively. At all times during and after the term of this Agreement,
Licensee and its respective Affiliates shall not be entitled to use
for any other purpose: (i) the Hotel System and the Manuals, and (ii)
restaurant concepts and menus used at the Hotel/Casino at any time and
from time to time if such concepts and menus are sufficiently
significant to be uniquely associated with the Hotel/Casino. The
provisions of this clause (iv) shall survive the termination of this
Agreement.
(B) SITE REVIEW AND APPROVAL RIGHTS. (i) Licensor has reviewed and
preapproved the site described on EXHIBIT E attached hereto (the
"PREAPPROVED SITE"). Prior to any commitment by Licensee to a location
other than the Preapproved Site, Licensee shall have submitted to Licensor
a written request for written approval by Licensor of such proposed site,
and the specific location of the Hotel/Casino thereon. The written request
for approval of a proposed site shall be accompanied by a feasibility study
for the proposed site comparable to the feasibility study prepared for the
Preapproved Site and all other locational, demographic, and operating
information as Licensor shall reasonably request, including, without
limitation, area maps, initial site plans, initial floor plans and layouts,
initial business and operating plan (including Total Revenues and expense
projections), basic demographic and traffic pattern information, local
transportation and parking facilities, and location of competing
establishments. Licensee shall also provide Licensor with a site report for
the Hotel/Casino (the "REPORT") if site requested is other than the
Preapproved Site. The Report shall include salient features of the proposed
site, building type and placement information (and anticipated development
expenditures, preliminary plans, specifications or sketches of the
Hotel/Casino) and other information reasonably requested by Licensor in
order to understand the Hotel/Casino and surrounding development. Licensee
shall bear all costs it incurs in connection with the preparation and
delivery of any feasibility studies and Reports pursuant hereto. Licensor
shall be permitted to visit and inspect the proposed site prior to date by
which it would be required to submit any objections to such proposed site,
and thereafter. Licensor's approval of the proposed site will not be
unreasonably withheld provided that the projected revenues set forth in the
feasibility study for the proposed site are not less than eighty percent
(80%) of the projected revenues set forth in the feasibility study prepared
by Urban Systems Inc. (dated December, 2002) for the Preapproved Site.
Otherwise, Licensor's approval may be withheld in its sole discretion. In
the event Licensor does not approve any proposed site, Licensor shall
provide to Licensee in reasonable detail the reasons therefor. Licensor
will approve or disapprove of the location proposed by Licensee within
sixty (60) days following the submission of all information reasonably
requested by Licensor. The failure by Licensor to approve or disapprove a
proposed site within such sixty (60) day period shall be deemed to be an
approval of such proposed site by Licensor. A site for the Hotel/Casino
shall be selected by Licensee and approved by Licensor as provided above
and acquired by Licensee no later than three (3) years after the date of
this Agreement.
(C) Licensee hereby acknowledges and agrees that the selection of
a site as provided above, or the failure of Licensor to object to a site,
does not constitute an assurance, representation or warranty by Licensor of
any kind, express or implied, as to the suitability (commercially or
otherwise) of the site for the Hotel/Casino or for any
16
other purpose. Both Licensor and Licensee acknowledge that application of
criteria that may have been effective with respect to any other site and
premises may not be predictive of commercial or other potential for all
sites and that, subsequent to the selection of a site, demographic and/or
economic factors, such as competition from other similar businesses, could
change, thereby altering the potential of the site. Such factors are
unpredictable and are beyond Licensor's control, and Licensor shall not be
responsible for the failure of a site approved by Licensor to meet
expectations as to revenue, income or operational criteria. Licensee
further acknowledges and agrees that acceptance of a site of a Hard Rock
Hotel is based on its own independent investigation of the suitability of
the site.
(D) FINANCING.
(i) Subject to the terms and conditions of this
Section 5(D), Licensor shall have the right to approve (or reject) in
Licensor's reasonable discretion all direct or indirect financing
arrangements for the Project.
(ii) Prior to Licensee or any of its Affiliates commencing
a "roadshow" for any offering of debt securities the proceeds of which
will be used to finance a portion of the Project (a "Securities
Financing"), Licensee shall submit to Licensor a written request for
written approval by Licensor of the Securities Financing and all other
related direct or indirect financing arrangements for the Project (the
"Related Transactions"), which approval shall not be unreasonably
withheld. The written request for approval of the Securities Financing
and the Related Transactions shall include the then current draft of
all documents reasonably necessary for Licensor to obtain an
understanding of the proposed Securities Financing and the Related
Transactions, including a reasonably detailed budget for the Project
and those documents setting forth the material terms of the Securities
Financing and the Related Transactions. Licensor will approve or
disapprove of the Securities Financing and the Related Transactions in
writing as soon as practicable, but in any event within three (3)
business days following the submission of Licensee's written request
for approval. Provided Licensee has complied with the terms of the
following paragraph, the failure by Licensor to approve or disapprove
the Securities Financing and the Related Transactions within such
three (3) day period shall be deemed to be an approval of the
Securities Financing and the Related Transactions by Licensor. Once
Licensor's approval has been given (or deemed to have been given),
Licensor's approval of subsequent changes to the terms of the
Securities Financing and the Related Transactions shall not be
required unless such changes materially alter the rights and
obligations of Licensee under such documents or the interest of the
lender(s) in this Agreement, the Project, the Hard Rock Leases or the
Memorabilia Lease. In the event material changes are made to a
Securities Financing or Related Transaction after Licensor's approval
has been given (or deemed to have been given), Licensee shall submit
the modified terms to Licensor in writing for Licensor's review and
approval. Licensor will approve or disapprove of the Securities
Financing and the Related Transactions as modified by such terms
within two (2) business days of the time that such modified terms are
submitted to Licensor. Provided Licensee has complied with
17
the terms of the following paragraph, the failure by Licensor to
approve or disapprove the Securities Financing and the Related
Transactions as modified within such two day period shall be deemed to
be an approval of the Securities Financing and the Related
Transactions as modified by Licensor.
In addition to the other provisions of this Section 5(D)(ii),
prior to the consummation of any Securities Financing, Licensee shall
act in good faith to provide Licensor with drafts of any documents
related to or reasonably requested by Licensor with respect to such
Securities Financing, including any Related Transaction related to
such Securities Financing, as such drafts are being considered by the
other parties to such Securities Financing or Related Transaction.
(iii) Prior to Licensee or its Affiliates entering into any
direct or indirect financing arrangement with respect the Project
other than as set forth in Section 5(D)(ii), Licensee shall submit to
Licensor a written request for written approval by Licensor of its
proposed financing for the Project, which approval shall not be
unreasonably withheld. The written request for approval of such
financing for the Project shall include a general description of all
of the material terms of the proposed financing and detailed budgets
for the Project. Licensee shall provide Licensor with such additional
information and documentation regarding the proposed financing for the
Project as Licensor may reasonably request. Licensor will approve or
disapprove of such proposed financing for the Project within twenty
(20) days following the submission of Licensee's written request for
approval and receipt of all documentation related thereto reasonably
requested by Licensor. The failure by Licensor to approve or
disapprove the proposed financing within such twenty (20) business day
period shall be deemed to be an approval of such financing by
Licensor.
(iv) Licensee shall have obtained Licensor's approval and
secured all necessary financing and/or equity contributions to
complete the Project not later than eighteen (18) months following the
execution of the Agreement. Notwithstanding the forgoing, except as
provided in Section 24 of this Agreement, the rights and obligations
created herein shall not be pledged as collateral, subordinated or
otherwise encumbered in any manner whatsoever without the prior
written consent of Licensor, which consent may be withheld in
Licensor's sole discretion.
(E) Licensee hereby acknowledges and agrees that: (a) Licensor has
not made any agreements or commitments of any kind, whether express or
implied, to Licensee that Licensor or any of its Affiliates will provide a
completion guaranty or any other financial assistance to Licensee in
connection with its financing of the Project, and (b) if Licensor or any of
its Affiliates do agree to provide financial assistance to Licensee, then
the terms of such financial assistance will be set forth in a separate
written document which is mutually agreed upon between Licensee and
Licensor or, if applicable, its Affiliate.
18
(F) ADDITIONAL APPROVALS. Licensee shall also timely submit to
Licensor for Licensor's approval (which approval shall not be unreasonably
delayed) prior to construction, purchase or hire, as applicable, the
following:
(i) all preliminary and final plans and specifications for
the Hotel/Casino and all FF&E, including, without limitation, all
preliminary and final designs, site plans, floor plans and layouts,
and artist renderings relating to the initial construction of the
Hotel/Casino, which approval shall not be unreasonably withheld unless
it includes the Hard Rock Elements, in which event such approval may
be withheld in Licensor's sole discretion;
(ii) the identity and qualifications of the Project Manager
for the Project, which approval shall not be unreasonably withheld;
(iii) the identity and qualifications of all contractors,
architects and other consultants proposed to be utilized by Licensee
for preparation of the preliminary and final plans and specifications
for the Hotel/Casino and the construction of the Hotel/Casino, which
approval shall not be unreasonably withheld; and
(iv) all such other information regarding the Project as
Licensor shall reasonably request.
Licensor shall have the right to disapprove any of the foregoing items
within five (5) Business Days of written submission by Licensee. If Licensor
fails to approve or disapprove of any item within such period, Licensee shall
notify Licensor of such failure, and Licensor shall have an additional five (5)
Business Days after such notice to approve or disapprove such item. The failure
by Licensor to approve or disapprove of any item prior to the end of the second
five (5) Business Day period shall be deemed to be an approval of such item by
Licensor. If Licensor disapproves any item, Licensor shall provide to Licensee
in reasonable detail the reasons therefor, together with general suggestions for
revisions.
(G) DESIGN CONSULTANTS. Licensor shall have the right to hire up
to two (2) design consultants to review the designs of the Hotel/Casino and
consult with the Project's architects and designers with respect to the
Hard Rock Elements and other non-Gaming aspects of the design of the
Hotel/Casino. Licensee shall reimburse Licensor for the fees and other
expenses (including, without limitation, travel expenses) of such
consultants, up to a maximum aggregate amount of $75,000. Such amounts
shall be payable by Licensee within ten (10) days following Licensor's
invoice therefor.
(H) DISPUTES. The parties agree to use their reasonable efforts to
promptly resolve any disputes regarding any approvals relating to the
development or operation of the Hotel/Casino. If the parties are unable to
resolve any dispute within five (5) Business Days, then either party shall
have the right to submit such dispute to arbitration as provided in Section
18 of this Agreement (other than matters which are not subject to
arbitration as provided herein).
19
(I) ADVISORY SERVICES. Licensor will, upon Licensee's written
request, render the following advisory services to Licensee during the
Pre-Opening Period (the "ADVISORY SERVICES"):
(i) advice in formulating or refining the preliminary
plans and specifications for the construction of the Hotel/Casino
(other than Gaming aspects of same) and all related Hotel/Casino
facilities, including landscaping, and in formulating or refining
preliminary layouts, drawings, and designs for the interior of the
Hotel/Casino and the furnishing and equipping thereof, and, in
connection therewith, may recommend to Licensee layouts and other
criteria and specifications for the facilities to be included in the
Hotel/Casino;
(ii) advice as to architects, contractors, engineers,
designers, decorators, landscape architects, and such other
specialists and consultants as shall be necessary for completing the
Hotel/Casino; provided, however, that Licensee shall not be obligated
to utilize any such Person recommended by Licensor, and Licensor shall
have no liability or responsibility for any act or omission of any
such Person utilized by Licensee; and
(iii) advice in preparing budgets for the initial purchase
of FF&E for the Hotel/Casino.
It is the intention of the parties hereto that responsibility for
implementation of each of the foregoing items is upon Licensee, but that
Licensor shall remain available to assist Licensee in such implementation. All
reasonable travel costs incurred by Licensor after the date hereof, including,
without limitation, travel, accommodations, and other reasonable travel expenses
incurred by Licensor in providing Advisory Services shall be reimbursed by
Licensee within ten (10) days following invoice therefor. The forgoing shall not
exceed fifty thousand dollars ($50,000.00).
Licensor, where practical and in its sole discretion, shall make available
to Licensee Licensor's facilities for the purchase of required FF&E, and other
necessary items, and may recommend to Licensee a firm or firms from which such
items may be purchased. Any such purchase through Licensor's facilities shall be
subject to such xxxxx xxxx-ups or other charges as to which Licensor and
Licensee may mutually agree in each instance. Any such purchase through sources
recommended by Licensor shall include an acknowledgment, in form acceptable to
Licensor, specifying that the seller is not contracting with Licensor, and that
Licensor is not responsible for any payment or performance by Licensee. Licensee
shall not be obligated to purchase such items from the firms or sources
recommended by Licensor; provided, however, that, prior to purchasing from
non-recommended sources, Licensee shall submit to Licensor such samples and/or
other information with respect to the proposed purchases as shall be necessary
to assure Licensor that the quality, design, and safety of such items, together
with their compliance with applicable Law, is at least equal to that available
from sources recommended by Licensor, and that the design, appearance, and all
other aspects thereof conform to the requirements of this Agreement.
20
(J) LICENSOR MAY DELEGATE DUTIES. In rendering the Advisory
Services, Licensor shall have the right, at its sole discretion, to be
assisted by third Persons, and, accordingly, some or all of such Advisory
Services which Licensor undertakes to provide under this Agreement may be
provided by such third Persons, provided the costs for such third Persons
shall be borne by Licensor out of the funds provided by Licensee under
Section 5(I) and further provided such persons are selected by Licensor to
maintain and provide services in accordance with Comparable Standards.
(K) HARD ROCK REPRESENTATIVE. Licensor shall have the right, but
not the obligation, to assign a full-time or part-time, representative at
the Project to act as Licensor's on-site representative during the
Pre-Opening Period (the "HARD ROCK REPRESENTATIVE"). The responsibilities
of the Hard Rock Representative shall include acting as a liaison between
Licensor and Licensee with respect to Licensor's approval rights under
Sections 5(B) and 5(F) hereof and the Advisory Services to be rendered by
Licensor pursuant to Section 5(I) hereof and to generally assist in the
coordination of activities between Licensor and Licensee, provided that the
Hard Rock Representative shall not have the authority to approve any
matters requiring Licensor's approval under this Agreement. The Hard Rock
Representative shall comply with Licensee's Policies for the Licensed
Location as well as all Gaming Laws. Licensor shall be solely responsible
for acts or omissions of the Hard Rock Representative and shall indemnify
Licensee for any liability incurred by Licensee arising out of or resulting
from the Hard Rock Representative's negligence or unlawful misconduct;
provided, however, such indemnification obligation shall only apply to the
extent Licensee is unable, after a diligent, good faith effort, to obtain
insurance proceeds to cover such liability.
(L) LICENSOR ONLY AN ADVISOR. Licensee hereby acknowledges that,
Licensor acts only in an advisory capacity for purposes of this Section 5,
and Licensor shall not be responsible for the adequacy or coordination of
any plans or specifications, the structural integrity of any structures or
the systems thereof, compliance with applicable Laws, including, without
limitation, any building code of any Governmental Authority, or any
insurance requirement, or for the obtaining of any necessary Permits, all
of which shall be the sole responsibility, and at the sole risk, of
Licensee. Upon request by Licensor, Licensee shall supply Licensor with
copies of all certificates of architects, contractors, engineers and
designers, and such other similar verifications and information as Licensor
shall reasonably request.
(M) PRE-OPENING PROGRAM. Licensor and Licensee shall cooperate
with each other to develop a written pre-opening program for the Project
(the "PRE-OPENING PROGRAM") specifying, in reasonable detail: (i) any
services to be provided by Licensor in connection with the Pre-Opening
Program, as mutually agreed by the parties hereto; (ii) any sales and
promotion efforts by Licensor in connection with the Pre-Opening Program,
as mutually agreed by the parties hereto; (iii) appropriate inaugural
ceremonies for the Hotel/Casino, all as mutually agreed by the parties
hereto; and (iv) an estimate of other pre-opening costs and expenses
relating to the foregoing. Licensee shall reimburse Licensor for all
reasonable and actual costs incurred by it to provide the services
described in items (i) and (ii) above, within ten (10) days after
Licensor's invoice therefor
21
and shall otherwise be solely responsible for payment of all such
pre-opening costs and expenses which are approved by Licensee with respect
to the Project.
(N) COMMENCEMENT OF CONSTRUCTION; OPENING DATE. Subject to Force
Majeure, Licensee shall substantially commence construction of the
Hotel/Casino within eighteen (18) months following the execution of this
Agreement. In addition, subject to Force Majeure (not to exceed an
aggregate delay of six (6) months due to Force Majeure), the Hotel/Casino
shall be in operation and open to the public not later than three (3) years
following the execution of the Agreement (the "OPENING DATE"), and shall
thereafter remain continuously open (during normal business hours) during
the term of this Agreement. For purposes of this Section, the term
substantially commence construction shall mean that Licensor has installed
the entire foundation of the Hotel/Casino as the same is proposed to be
constructed by Licensee and approved by Licensor in accordance with Section
5(F) hereof.
(O) LIMITATIONS OF PRIOR APPROVALS. Notwithstanding any other term
or provision of this Agreement, the approval of any item by Licensor in
accordance with this Agreement shall not constitute a waiver by Licensor of
its right to insist upon strict compliance by Licensee with any of the
other terms of this Agreement, or prevent Licensor from requiring Licensee
to alter, remove, replace or repair any other item which was not previously
approved by Licensor and which does not comply with the requirements of
this Agreement or any applicable Law.
(P) ANCILLARY AGREEMENTS. After the acquisition by Licensee of the
site for the Hotel/Casino and prior to the commencement of the construction
of the Hotel/Casino, Licensee and Hard Rock STP shall enter into the Cafe
Lease Agreement, Retail Store Lease Agreement and the Memorabilia Lease.
The Memorabilia Lease shall be executed in the form and substance attached
hereto as EXHIBIT C, the Cafe Lease Agreement shall be executed in
substantially the form attached hereto as EXHIBIT B and the Retail Store
Lease Agreement shall be executed in substantially the same form and on
substantially the same terms as the Cafe Lease Agreement attached hereto as
EXHIBIT B, subject to the specific business terms listed on EXHIBIT B-1.
The parties shall reasonably cooperate to create and agree upon any
exhibits not attached to the version of such Ancillary Agreement contained
as an exhibit to this Agreement. Notwithstanding any provision to the
contrary contained herein, the Hard Rock Cafe shall be in a prominent
location on the main floor of the lobby of the Hotel and have access to the
Hotel lobby and exterior of the Hotel.
(Q) HOTEL MANAGER. Licensor shall have the right to approve the
Person engaged as the management company for the Hotel/Casino, which Person
shall have seven (7) years or more of experience in the management of two
(2) or more hotel/gaming properties. Licensor's approval of the management
company for the Hotel/Casino shall not be unreasonably withheld.
22
(R) SALE OF SECURITIES.
(i) If Licensee, any of its Affiliates or any lender
providing financing to Licensee shall, at any time or from time to
time, "sell" or "offer to sell" any "securities" issued by it through
the medium of any "prospectus" or otherwise, it shall do so only in
compliance with all applicable federal or state securities laws, and
Licensee shall clearly disclose to all purchasers and offerees that
(a) neither Licensor, nor any of its Affiliates, nor any of their
respective officers, directors, agents or employees, shall in any way
be deemed an "issuer" or "underwriter" of said "securities," and that
(b) Licensor, its Affiliates and said officers, directors, agents and
employees have not assumed and shall not have any liability or
responsibility for any financial statements, prospectuses or other
financial information contained in any "prospectus" or similar written
or oral communication.
(ii) Licensee shall deliver to Licensor three (3) draft
copies of any "prospectus" or similar communication to be delivered in
connection with the sale or offer by Licensee, its Affiliates or any
lender providing financing to Licensee of any "securities" not less
than three business (3) days prior to the delivery thereof to any
prospective purchaser. During such three-day period, Licensor shall
have the right to approve the description of this Agreement and
Licensee's relationship with Licensor hereunder, and any use of the
Licensed Marks contained in such materials, which approval shall not
be unreasonably withheld or delayed. Licensor will approve or
disapprove of the such description and use of the Licensed Marks
within three business (3) days following the receipt of the copies of
the draft "prospectus" or similar communication. Provided Licensee has
complied with the terms of the following paragraph, the failure by
Licensor to approve or disapprove such items within such three
business (3) day period shall be deemed to be an approval of by
Licensor. Once Licensor's approval has been given (or deemed to have
been given), Licensor's approval of subsequent changes to the draft
"prospectus" or similar communication shall not be required unless
such changes materially alter the description of this Agreement and
Licensee's relationship with Licensor hereunder, or alter the any use
of the Licensed Marks contained in such materials. In the event
material changes are made to such materials after Licensor's approval
has been given (or is deemed to have been given), Licensee shall
submit the modified document to Licensor for Licensor's review and
approval. Licensor will approve or disapprove of such document within
two business days of the time that such document is submitted to
Licensor. Provided Licensee has complied with the terms of the
following paragraph, the failure by Licensor to approve or disapprove
such document within such two business day period shall be deemed to
be an approval of by Licensor. Licensor's approval of the description
of this Agreement and Licensee's relationship with Licensor hereunder,
and any use of the Licensed Marks contained in such materials shall
not constitute any judgment or determination by Licensor that such
description is in compliance with applicable disclosure requirements.
23
In addition to the other provisions of this Section 5(R)(ii), prior to
the consummation of any Securities Financing, Licensee shall act in
good faith to provide Licensor with "prospectus" or similar
communication described in the previous paragraph as such drafts are
being considered by the other parties to such financing transaction.
(iii) Licensee agrees to indemnify, defend and hold Licensor
and its Affiliates and their respective officers, directors, agents
and employees harmless of and from any and all liabilities, costs,
damages, claims or expenses arising out of or related to the "sale" or
"offer" of any "securities" of Licensee, its Affiliates or any lender
providing financing to Licensee. All terms used in this Section 5(R)
shall have the same meaning as in the Securities Act of 1933, as
amended.
SECTION 6. LEASE
(A) LEASE OF LICENSED LOCATION. If Licensee is leasing any portion
of the Licensed Location as a tenant, Licensee shall provide Licensor with
a copy of all leases, use agreements or similar agreements for or relating
to any real property constituting any portion of the Licensed Location or
the Hotel/Casino (each, a "LEASE").
(B) LEASE TERMS AND CONDITIONS. Licensee shall use its
commercially reasonable efforts to include provisions in each Lease which
permit, without lessor's consent, the assignment of all of the right, title
and interest of Licensee under the Lease to Licensor or its designee.
SECTION 7. PERSONNEL
(A) APPOINTMENT OF GENERAL MANAGER. Prior to the Opening Date,
Licensee shall appoint a General Manager for the Hotel/Casino. Licensee
shall provide Licensor with all information available to Licensee as
Licensor shall reasonably request regarding the experience, qualifications
and character of the individual that Licensee proposes to appoint as
General Manager of the Hotel/Casino. Such appointment shall be subject to
Licensor's reasonable approval, which shall not be unreasonably withheld.
(B) TRAINING OF MANAGEMENT PERSONNEL. Licensee shall require the
individual appointed as General Manager of the Hotel/Casino and the
individuals holding the top six (6) management positions at the
Hotel/Casino (which positions shall be the General Manager, Chief Financial
Officer, Casino Operating Manager, Hotel Operating Manager, Food & Beverage
Manager and Marketing Manager) to attend not more than one (1) week of
initial training with respect to Licensor's methods, procedures and
protocols, at Licensee's expense, and such additional training as Licensor
reasonably requires from time to time for its own personnel (but in no
event more often than two (2) times in any calendar year during the Term),
at a location to be designated by Licensor.
(C) TRAINING COMPLETED. Licensee will not open the Hotel/Casino to
the public until the individuals described in Section 7(B) hereof have
satisfactorily completed all training required pursuant to Section 7(B).
Licensor shall exercise commercially
24
reasonable efforts to hold such training class at least one (1) month prior
to the Opening Date.
(D) TRAINING OF REPLACEMENT MANAGING PERSONNEL. In the event any
of the individuals described in Section 7(B) cease to be employed in such
capacity by Licensee, all approval and training requirements specified in
Section 7(B) shall be equally applicable to each employee replacing each
such individual in such position. Licensee shall use its reasonable efforts
to promptly fill any vacant Hotel/Casino management position described in
Section 7(B).
(E) FULL STAFFING; ADDITIONAL TRAINING. Licensee will retain as
Hotel/Casino employees all such staff as may be reasonably required from
time to time by Licensor for the proper operation of the Hotel/Casino in
accordance with the terms of this Agreement and the Manuals, and will
ensure that such staff (and all replacements of each member thereof) are
fully trained in accordance with this Agreement and the Manuals. If and
whenever required by Licensor, each Hotel/Casino employee (excluding Gaming
employees other than those listed in Section 7(B) above) shall attend, at
Licensee's facilities, such initial and additional training with respect to
Licensor's methods, procedures and protocols as may be required by Licensor
from time to time (but in no event more often than two (2) times in any
calendar year during the Term). Licensor shall be responsible for its own
costs and expenses in providing such training.
SECTION 8. ADVERTISING
(A) ADVERTISING PRIOR TO OPENING DATE. Licensee will, prior to the
Opening Date and at Licensee's expense, carry out or cause to be carried
out advertising for the opening of the Hotel/Casino. Licensee shall utilize
all reasonable commercial efforts to diligently promote the Hotel/Casino by
advertisements on television and radio and in newspapers, magazines,
telephone or trade directories, distributions to customers and potential
customers in an effective manner, point-of-service advertising material,
and other forms of publication.
(B) ADVERTISING AFTER OPENING DATE. Licensee will, subject to the
provisions of this section, during each Fiscal Year, expend at least three
and one-half percent (3.5%) of Total Revenues on advertising and publicity
for the Hotel/Casino. Advertising, marketing and publicity expenses
qualifying under this provision will include, but not be limited to, costs
incurred for (i) media (television, radio and print) advertising, (ii)
Casino bus and air programs, (iii) direct mail programs, including the
value of goods and services provided, (iv) Casino slot and table club
programs, (v) promotions and giveaways including tournaments, special
events, drawings, and slot jackpot prizes, (vi) coupon promotions, (vii)
customer transportation reimbursement, (viii) customer gifts, and (ix)
complimentary goods and services provided to customers. All non-cash
expenses will be valued at normal retail transfer prices as reflected in
Licensee's financial statements, or at fair market value, where
appropriate. Licensee shall provide to Licensor, from time to time,
promptly upon request, such evidence of compliance with the requirements of
this section as Licensor shall reasonably request.
25
(C) ANNUAL MARKETING PLANS. Licensee shall prepare and submit to
Licensor a marketing plan for the Hotel/Casino for each Fiscal Year,
including, without limitation, Licensee's itemized (by category)
projections of Total Revenues and other operating results. Such plan shall
be submitted to Licensor no later than thirty (30) days before the
beginning of each Fiscal Year.
(D) COOPERATION WITH LICENSOR'S ADVERTISING AND MARKETING
CAMPAIGNS/GLOBAL MARKETING FUND. Licensee will, at Licensor's request,
cooperate and participate with Licensor and Licensor's Affiliates, and
other licensees of Licensor and Licensor's Affiliates, in any System-wide
advertising campaign, sales promotion program or other special advertising
activity in which Licensor may engage or specify from time to time, and the
cost of which shall be credited against Licensee's required Fund
contribution. Upon establishment by Licensor of a System-wide advertising
campaign, sales promotion program or other special advertising activity,
Licensee shall contribute to Licensor's Global Marketing Fund (the "FUND").
Upon the establishment of the Fund, Licensee shall pay monthly to Licensor,
as a contribution (for the periods after establishment of the Fund and not
retroactively), an amount equal to one percent (1%) of Licensing Fee
Revenues for that particular month (the "CONTRIBUTION"). The Contribution
shall be paid to Licensor at the same time and in the same manner as
Licensee pays the Continuing Fee required by this Agreement and shall be
based on Licensee's Licensing Fee Revenues for the month preceding the
month in which each such monthly payment is due. Such funds shall be used
to meet any and all costs of Licensor in maintaining, administering,
directing, preparing, and reviewing advertising and marketing materials and
programs, and to provide for worldwide advertising and marketing programs,
as Licensor shall, in its sole discretion, deem appropriate. Licensee
recognizes that Licensor is under no obligation, in administering the Fund,
to ensure that expenditures are proportionate to Contributions of Licensee
for any given market area, or that Licensee benefits directly or
proportionately from the development or placement of advertising supplied
by or through the Fund. Licensor shall not be obligated to expend all or
any certain part of the Fund during any specific period of time, but shall,
upon Licensee's request, provide to Licensee an accounting of Fund monies.
Notwithstanding the foregoing, Licensor agrees to reasonably consult with
Licensee regarding the planned expenditure of any sums under the Fund,
which Fund may only be used by Licensor for the purposes for which it was
created, as the same is reasonably amended from time to time.
(E) COOPERATION WITH LICENSOR. Licensee shall publicize such
information and details of Licensor' s business operations and that of
Licensor's Affiliates and other licensees of Licensor and Licensor's
Affiliates in such places in the Hotel/Casino as Licensor shall from time
to time reasonably require. Licensor agrees to provide for reciprocal
treatment for Licensee by other licensees of Licensor to the extent the
same is currently permitted in existing agreements with other licensees of
Licensor or as permitted in future agreements entered into by and between
Licensor and licensees of Licensor, as applicable, it being agreed upon
that Licensor shall use its commercially reasonable best efforts to include
a provision similar to this Section 8(E) in future
license agreements for
Hotel/Casino developments entered into by Licensor.
26
(F) NO DONATIONS OR CONTRIBUTIONS. Licensee will not, except with
the Licensor's prior written consent in each instance, make political or
religious donations or contributions or subscriptions of any variety, and
will not, except with the Licensor's prior written consent in each
instance, permit any portion of the Hotel/Casino or the Licensed Location
to be used by any political party or religious organization or for any
political or religious purpose that is endorsed or promoted by the
Hotel/Casino.
(G) PRIOR APPROVAL OF ADVERTISING MATERIALS. No later than six (6)
months prior to the Opening Date, Licensor shall provide Licensee with a
branding manual which shall set forth the approved color, form and style of
the Licensed Marks in advertising and marketing materials and other
specified uses at the Project. All advertising carried out by Licensee
utilizing the Licensed Marks shall be in accordance with Licensor's
standards and guidelines therefor set forth in the branding manual. A copy
of all advertisements and other promotional materials utilizing the
Licensed Marks in a manner other than in accordance with the branding
manual shall be submitted to Licensor prior to publication of such
advertisements or use of such promotional materials and Licensor shall
reasonably endeavor to promptly approve or disapprove such advertising
materials in accordance with Licensee's publication schedule. If Licensor
fails to approve or disapprove of such advertisement or use of such
promotional material within twenty (20) days after receipt thereof by
Licensor, the same shall be deemed approved by Licensor. Licensee shall be
legally responsible for the content of any advertising material, other than
with respect to the Licensed Marks or any content directly reproduced from
the branding manual, each of which shall be the legal responsibility of
Licensor.
(H) APPROVAL OF OTHER ADVERTISING. Licensee will not, in
connection with any advertising of the business or operations of the
Hotel/Casino, utilize any tradename, trademark, service xxxx or other
intellectual property right other than the Licensed Rights and other rights
reasonably approved by Licensor. Licensee will not advertise any product or
service, or display any promotional material in the Hotel/Casino, other
than with respect to the business and/or operations of the Project,
provided that the foregoing shall not (i) apply to Persons leasing
commercial space at the Licensed Location from Licensee, or (ii) restrict
Licensee from operating and promoting "participation gaming" activities
(such as "Megabucks" and "Cool Million") in the Hotel/Casino.
(I) LICENSEE'S CROSS PROMOTIONS. Licensee agrees not to enter into
any sponsorship or other similar arrangements providing for the marketing
or promotion of the Hotel/Casino or the Hotel Marks or the Licensed Marks
jointly with the name or trademark of another person or entity or otherwise
associate any other Person's name or trademarks with the Hotel Marks or the
Hard Rock Marks without the Licensor's written consent in its sole and
absolute discretion, and Licensee may engage in cross promotions at the
Hotel/Casino or utilizing the Licensed Marks only as approved in writing by
Licensor.
(J) INTERNET. Licensee shall not in any manner utilize the
Licensed Marks on or in connection with any Internet Site, including but
not limited to any utilization or display of the Licensed Marks or any
derivation thereof or any trademarks, trade names, service marks, logos or
designs confusingly similar thereto, or in any buried computer
27
code, meta-tags or otherwise, except as specifically permitted herein. For
purposes of this Agreement, the term "INTERNET SITE" shall include any
world wide web site, USENET, newsgroup, bulletin board or other online
service or any successor thereto at any electronic domain name, address or
location, or any other form of online service or electronic domain name,
address or location, or any other form of online service or electronic
commerce whatsoever, that is accessible by persons other than Licensee's
employees.
Licensor and its Affiliates may develop and maintain, or license the
development and maintenance, of an Internet Site for Branded Merchandise and
other products and other Hard Rock businesses as Licensor, in its sole
discretion, shall determine (a "HARD ROCK INTERNET SITE"). Licensor agrees that
if it maintains, or licenses others the right to maintain, a Hard Rock Internet
Site then, during the term of this Agreement, such Hard Rock Internet Site shall
contain a link to the Licensee Internet Site (if any) in the same manner in
which Licensor provides links to other similar licensees of Licensor operating
hotel and casinos. Licensor and its Affiliates shall have the right to utilize
any Licensed Marks on and in connection with a Hard Rock Internet Site (and in
any other manner whatsoever) without payment or obligation of any kind to
Licensee. Licensee shall not participate in any manner in any revenues (and
shall not be liable for any costs and expenses) resulting from the offer and
sale of Branded Merchandise on the Hard Rock Internet Site, or by reason of any
link from any Licensee Internet Site (as defined in the following paragraph) to
a Hard Rock Internet Site. At Licensor's request, each advertisement of the
Project shall prominently display the Internet Uniform Resource Locator (URL) of
a Hard Rock Internet Site designated by Licensor to Licensee.
In the event that Licensee develops an Internet Site for the Hotel/Casino
(a "LICENSEE INTERNET SITE"), Licensee may include a simple link from that site
to a Hard Rock Internet Site designated by Licensor to Licensee, provided that
(i) the Hard Rock Internet Site shall not be framed or otherwise made to appear
as a part of the Licensee Internet Site or any other Internet Site; (ii) such
link shall not be designed so as to imply any association with or endorsement by
Licensor or the Hard Rock Internet Site with the Licensee Internet Site or any
other Internet Site; (iii) any use of the Licensed Marks on the Licensee
Internet Site shall be subject to Licensor's approval, in its sole discretion;
(iv) there are no other links on the Licensee Internet Site to any other
Internet Sites that (a) are offering any merchandise utilizing any Hard Rock
Marks or otherwise utilizing in any manner any Hard Rock Marks for the sale of
any merchandise (other than the Hard Rock Internet Site), or are otherwise
utilizing any Hard Rock Marks unless Licensee shall have obtained Licensor's
prior written approval to any links to such Internet Sites; or (b) are operated
by or on behalf of or otherwise promote any products or services of any person
or entity that would in Licensor's reasonable judgment be prejudicial to
Licensor or the Hard Rock Marks. The Licensee Internet Site shall be permitted
to be used solely for promotional purposes, and may provide for the taking of
reservations, making reservations at area golf courses and other promotional
activities typically found on other hotel internet sites.
SECTION 9. STANDARDS OF QUALITY AND OPERATION
(A) OPERATION OF HOTEL/CASINO MUST MEET QUALITY STANDARDS.
Licensee will, at all times, operate the Hotel/Casino as provided for
herein consistent with the high quality
28
standards required of Licensee hereunder and in accordance with the Hotel
System and Manuals.
(B) LICENSEE'S OBLIGATIONS. Licensee shall:
(i) Refrain from using the Hotel/Casino, the Licensed
Location or any portion thereof for any purpose other than operating a
Hotel/Casino pursuant to provisions herein;
(ii) Operate the Hotel/Casino and use the Licensed Rights
in the manner prescribed in this Agreement, the Hotel System and the
Manuals and in all events in accordance with Management Standard;
(iii) Feature in the Hotel/Casino and on the various
articles therein as approved by Licensor, and in advertising and
promotional material, the names, logos, colors and other aspects of
the Licensed Marks in the size, color, combinations, arrangements and
manner as reasonably determined periodically by Licensor, provided
Licensor shall provide Licensee with at least ninety (90) days prior
written notice of any modifications to such specifications;
(iv) Advertise or cause to be advertised the Hotel/Casino
and related facilities and services and, upon the written request of
Licensor, cease and desist from using or continuing to use any
advertising or publicity which Licensor reasonably believes is not in
the best interests of the preservation of the Licensed Rights or other
related intellectual property rights of Licensor;
(v) Upon reasonable prior written notice, permit Licensor
or its authorized agents to enter the Hotel/Casino and the Licensed
Location during regular business hours to inspect the same with
respect to the Licensee's use of the Licensed Rights;
(vi) Upon reasonable prior written notice, permit Licensor,
its authorized agents and/or its invited guests to enter the
Hotel/Casino and the Licensed Location during regular business hours
to tour the Hotel/Casino facilities (subject to Licensee's Policies
and Gaming Laws and regulations);
(vii) Operate the Hotel/Casino in accordance with the Hotel
System, the Manuals and all applicable Laws and Permits;
(viii) Provide to Licensor for its approval samples of staff
uniforms to be used in connection with operation of the Hotel/Casino,
which approval shall not be unreasonably withheld;
(ix) Comply with the terms of the Cafe Lease Agreement,
Retail Store Lease Agreement and the Memorabilia Lease. Licensee shall
not locate on the Licensed Location or in the Hotel/Casino any "rock
and roll" memorabilia other than as permitted by the Memorabilia
Lease;
29
(x) Provide Hard Rock Hotel promotional materials in guest
rooms and other locations at the Hotel/Casino, as reasonably requested
by Licensor;
(xi) Participate in any Hard Rock approved Reservation
System (in accordance with Section 10(R)) which may be in existence
from time to time;
(xii) Provide Licensor with up to eighty (80) hotel room
nights on a rooms-available basis at the Hotel/Casino during each
calendar year, on a complimentary basis, for invited guests of
Licensor in return for Licensor's reasonable efforts to provide
Licensee with a comparable number of room nights on a rooms-available
basis at other Hard Rock Hotels;
(xiii) Reserved;
(xiv) Cooperate with Licensor by making available to
Licensor and its Affiliates, at Licensor's request, subject to
availability, the facilities at the Hotel/Casino for use by Licensor
as a facility for the training of Licensor's and its licensees'
employees and staff in the operation and management of the Hotel
System, provided that any costs arising out of such cooperation shall
be borne by Licensor and such cooperation does not unreasonably
interfere with the operation of the Hotel/Casino;
(xv) Not permit third parties to use the Licensed Location
in the manner prohibited by Section 2(D)(ii) of this Agreement;
(xvi) Refrain from making any alterations, changes or
modifications to any Hard Rock Elements (other than repairs or
replacements which are consistent with Licensor's prior approval of
such Hard Rock Elements) without obtaining Licensor's prior approval,
which approval may be given or withheld in Licensor's sole discretion
as it relates to the Hard Rock Elements;
(xvii) Play only the type of music (at the decibel level)
prescribed by Licensor in the Manuals. Live music which is in
accordance with the standards established at other Hard Rock Hotels or
Hard Rock Cafe restaurants may be played within the Hotel/Casino or
upon or from the Licensed Location. Licensee shall purchase from Cisco
the audio and visual distribution boxes currently utilized by Licensor
and shall purchase all other audio and visual delivery systems
currently utilized by Licensor from Cisco or another supplier offering
systems of substantially equivalent quality. Licensee shall pay all
fees and licenses for the public broadcast of such content upon the
prior consent of Licensor, which consent shall not be unreasonably
withheld;
(xviii) Provide on television in guest rooms at the
Hotel/Casino (i) at least two (2) video music channels, and (ii) one
channel provided by Licensor (at its sole discretion) or its designee
to provide music entertainment and information about Licensor and its
affiliated and related entities; and
30
(xix) Provide to Licensor a copy of the lease agreement for
each lessee of commercial space at the Licensed Location prior to its
execution for the purpose of verifying the compliance of such lease
with the terms of this Agreement.
(C) MARKS COMPLIANCE COORDINATOR. At any time and from time to
time during the Operating Period, Licensor may, in its sole discretion,
designate an employee or representative of Licensor to act as Licensor's
on-site representative at the Licensed Location (the "MARKS COMPLIANCE
COORDINATOR"). The functions and duties of the Marks Compliance Coordinator
shall be as assigned by Licensor from time to time, but it is the intention
of the parties that the primary duties of the Marks Compliance Coordinator
shall be to: (i) review the operation of the Hotel/Casino and the use by
the Licensee of the Licensed Rights and to confirm compliance with this
Agreement, the Hotel System, Management Standard and the Manuals and (ii)
to serve as a liaison between Licensor and Licensee in connection with
Hotel System and Licensed Marks issues. Licensee shall provide to the Marks
Compliance Coordinator its full cooperation to enable the Marks Compliance
Coordinator to fulfill his duties as contemplated herein, including,
without limitation, providing full access to the Hotel/Casino and all
information relating to its operation other than matters relating solely to
Gaming activities. Licensee shall pay a Marks Coordinator Fee equal to
$150,000 a year to cover thereafter for all costs and expenses incurred by
Licensor in connection with the retention, training, and services provided
by the Marks Compliance Coordinator pursuant to this Agreement, including,
without limitation, salary, travel expenses, office space, office
assistance, and supplies, and similar items. For all purposes of this
Section 9(C), travel expenses and accommodations shall include all trips to
the Hotel/Casino, and, if the Marks Compliance Coordinator does not
permanently reside in the city where Licensor conducts management training,
two (2) trips per Fiscal Year to such city for training purposes. At its
option, Licensor may replace any Marks Compliance Coordinator with a
regional Coordinator of Licensor's designation upon the same terms and
conditions, including, without limitation, expense reimbursement, as are
provided for in this Section 9(C). The Marks Compliance Coordinator shall
provide feedback directly with the general manager of the Hotel/Casino or
his/her designee. The Marks Compliance Coordinator shall comply with
Licensee's Policies and all Gaming Laws. Licensor shall be solely
responsible for the negligent acts or omissions of the Marks Compliance
Coordinator and shall indemnify Licensee for any liability incurred by
Licensee arising out of or resulting from the Marks Compliance
Coordinator's negligence or unlawful misconduct; provided, however, such
indemnification obligation shall only apply to the extent Licensee is
unable, after a diligent, good faith effort, to obtain insurance proceeds
to cover such liability.
(D) RESERVE FUND. Licensee will establish a reserve fund of one
and one-half percent (1.5%) of Total Revenues in the first (1st) Fiscal
Year, two percent (2%) of Total Revenues in the second (2nd) Fiscal year,
three percent (3%) of Total Revenues in the third (3rd) Fiscal Year and
three and one-half percent (3.5%) of Total Revenues in the fourth (4th)
Fiscal Year and three and one-half percent (3.5%) in each subsequent Fiscal
Year of the Term (the "RESERVE FUND"). Such Reserve Fund shall be used to
refurbish and renovate the Hotel/Casino from time to time in order to
maintain at least the
31
Management Standard. Licensee shall use the Reserve Fund for (1)
replacements and renewals of FF&E; (2) renovations of public areas and
guest rooms; and (3) repairs to and maintenance of the Hotel/Casino's
physical facilities (which costs are normally capitalized under generally
accepted accounting principles), such as exterior and interior repainting,
resurfacing building walls, floors, roofs, and parking lots, and replacing
folding walls. Subject to the foregoing provisions, Licensee must spend the
Reserve Funds for these purposes when replacements, renovations or repairs
are reasonably needed in order to maintain the Hotel/Casino in accordance
with the Management Standard.
(E) QUALITY NOTICES.
(i) Licensor shall have the right to engage in regular
surveillance of the quality of the services rendered and the products
sold by Licensee under or in connection with Licensee's use of the
Licensed Marks by inspecting the Hotel/Casino, and Licensee shall upon
reasonable notice being given by Licensor permit duly authorized
representatives of Licensor to have access to all areas of
Hotel/Casino solely for such inspection purposes and subject to any
Licensee Policies and Gaming Laws and regulations.
(ii) In the event that Licensor should note any failure by
Licensee to maintain in any respect quality standards set forth
herein, Licensor shall notify Licensee in writing as provided herein
of the particular failure or deficiency noted, and Licensee shall
promptly and in all events within thirty (30) days after such notice
correct the same, provided that if the nature of such failure is such
that more than thirty (30) days is required to correct such failure or
deficiency, then Licensee shall be in compliance with this paragraph
if within such thirty (30) day period it promptly takes appropriate
steps to correct such failure or deficiency and thereafter diligently
pursues those steps to completion.
(iii) All uses of the Licensed Marks, including all signs,
advertisements and promotional and packaging material, shall at all
times bear appropriate trademark notices as approved in advance by
Licensor in the branding manual referred to in Section 8(G) hereof.
(iv) The parties acknowledge that all rights of Licensor to
monitor Licensee's operations, and all standards of operation set
forth herein, are established solely to ensure the quality of the
goods and services associated with the Licensed Marks and to protect
the goodwill accrued in the Licensed Marks.
(v) Licensee shall not include the Hard Rock name or any
Licensed Xxxx within its legal name or the name of any Affiliate,
without Licensor's approval, which may be given or withheld in its
sole discretion.
SECTION 10. ADDITIONAL COVENANTS OF LICENSEE
(A) KEEP HOTEL/CASINO OPEN; OBTAIN AND MAINTAIN NECESSARY PERMITS.
Subject to Force Majeure, Licensee will continuously at all times during
the term after
32
the Opening Date, keep the Hotel/Casino open (during normal business hours)
for providing gaming to the public and lodging to guests in accordance with
the terms of this Agreement. Licensee will obtain and maintain such gaming,
liquor and other licenses and other Permits as shall be necessary to
operate the Hotel/Casino in accordance with the terms hereof, including,
without limitation, all required Permits in respect of music played in the
Hotel/Casino (other than those necessary to operate Hard Rock Cafe and the
Hotel/Casino Retail Store). The risk of obtaining and maintaining any
Permits required to develop and/or to operate the Hotel/Casino and/or the
Licensed Location as contemplated herein shall be upon Licensee, and
Licensor assumes no responsibility therefor.
(B) REASONABLE EFFORTS REQUIRED. Licensee will use its
commercially reasonable efforts to procure the greatest volume and value of
turnover for the Hotel/Casino, consistent with good service to the public
and compliance with the terms of this Agreement.
(C) ATTEND CONFERENCES. Licensee will, at Licensor's reasonable
request, but on no more than two (2) occasions per calendar year during the
Term, send a suitable representative, at Licensee's reasonable expense, to
any conference within the continental United States arranged by Licensor
which is relevant to the operation of the Hotel/Casino (other than Gaming
operations).
(D) MAINTENANCE OF HOTEL/CASINO. Licensee will, at all times,
maintain the interior and exterior of the Licensed Location and the
Hotel/Casino, and all contents thereof, in a high standard of decoration,
repair, cleanliness and orderliness consistent with the Management Standard
and the standards of the Hotel System and Manuals. Licensee shall make such
replacements and renewals to FF&E and repairs to the Hotel/Casino's
physical facilities as are necessary to maintain the Hotel/Casino at such
standards. Licensee acknowledges that Licensor bears no responsibility for
any renovations at the Hotel/Casino and that Licensee in all respects bears
the responsibility for the conduct and adequacy of each renovation.
(E) PARTICIPATION IN CHARITABLE CAUSES. Licensee will adopt and
maintain a positive attitude towards charitable causes supported by
Licensor with a view to providing facilities and assistance comparable to
that provided by other Hard Rock establishments of Licensor and its
Affiliates. Licensor acknowledges and agrees to be sensitive to local and
regional demographics and local and regional charitable causes in
connection herewith.
(F) PAYMENT OF TAXES AND OTHER INDEBTEDNESS. Licensee shall
promptly pay when due all taxes levied or assessed, including, without
limitation, individual and corporate income taxes, gaming taxes, sales and
use taxes, gross receipts taxes, unemployment taxes, liquor taxes, value
added taxes, personal property taxes and real estate taxes, and all
accounts and other indebtedness of every kind incurred by Licensee in the
operation of the Hotel/Casino and the occupation of the Licensed Location
under this Agreement. This includes the prompt filing of all required tax
returns and the prompt payment of all taxes and indebtedness related to, or
resulting from, the operation of the
33
Hotel/Casino and/or the occupation of the Licensed Location covered by this
Agreement. Licensee may contest any taxes provided there is a reasonable
basis to contest such taxes and an appropriate reserve established to cover
any liability should Licensee lose the contest.
(G) USE OF APPROVED SIGNAGE. Licensee shall not (i) erect or alter
any sign or other medium of display or advertisement upon Hotel/Casino or
Licensed Location utilizing the Licensed Marks, in each case, without
Licensor's prior written approval, in its sole discretion, or (ii) erect or
alter any other sign or other medium of display or advertisement upon
Hotel/Casino or Licensed Location, in each case, without Licensor's prior
written approval, which will not be unreasonably withheld; provided that
the foregoing shall not apply to designation and directional signage which
does not bear the Licensed Marks. Each such alteration, erection, or
installation shall be made only in accordance with plans, drawings, and
specifications previously submitted to and approved by Licensor.
(H) APPEARANCE AND DEMEANOR OF PERSONNEL. Licensee shall ensure
that all personnel employed or otherwise retained by Licensee or utilized
by Licensee in connection with the operation of the Hotel/Casino shall, at
all times, be clean, cleanly and tidily clothed and polite.
(I) ATMOSPHERE. Licensee shall maintain an appropriate atmosphere
for the Licensed Location and the Hotel/Casino and will exercise reasonable
efforts not to permit any illegal activity to be conducted thereon.
(J) PERMITS TO EFFECT PAYMENTS. Licensee will obtain all Permits
necessary to effect payment of any sum due hereunder in accordance with the
provisions hereof.
(K) COMPENSATION TO PERSONNEL OF LICENSOR. Except for
complimentary hotel rooms and meals and expense reimbursements payable to
Licensor as provided for in this Agreement, Licensee shall not, at any
time, directly or indirectly, compensate or otherwise provide remuneration,
whether in cash, property, services or otherwise, to personnel, agents or
employees of Licensor or any Affiliates thereof, without Licensor's prior
written approval.
(L) SOFTWARE SYSTEMS. Licensee shall use its commercially
reasonable efforts to select software systems for use at the Hotel/Casino
which will interface and are otherwise compatible with the software systems
used by Licensor and its Affiliates.
(M) FRANCHISE LAWS AND REGULATIONS. Licensee and its Affiliates
are sophisticated entities engaged in the business of operating hotels
and/or casinos throughout the United States in accordance with applicable
laws and have significant experience in the business of developing and
operating hotels and/or casinos. Licensee and its Affiliates shall not
initiate any claim or proceeding or take any action under, or with respect
to, the franchise laws or regulations of any jurisdiction, with respect to
the negotiation, execution, delivery and performance of this Agreement and
the other agreements, instruments and documents to be executed and
delivered in connection
34
herewith, and the consummation of the transactions contemplated hereby and
thereby. Licensee and its affiliates hereby waive all rights or protections
afforded to it under all such laws or regulations.
(N) PROPERTY SYSTEM AND SOFTWARE. Licensor shall provide to
Licensee specifications and/or all required application Software for
Licensee's property systems, including, without limitation, the hardware
and software required to participate in the Reservation System and the
hardware and software required for the music video system employed by
Licensor. Licensee shall, at its expense, purchase or lease, install and
use the property system hardware and purchase or license, install and use
all required Software, including any future hardware and/or Software
enhancements, additions, substitutions, modification and upgrades at the
Hotel/Casino as prescribed by Licensor.
(O) COOPERATION WITH LICENSOR AND OTHER LICENSEES. Licensee shall,
at no cost to Licensee, provide its full commercially reasonable
cooperation to Licensor, as Licensor shall, from time to time request, to
provide for and promote the best interests of Hard Rock Hotel/Casino
operations throughout the world.
(P) MAINTAIN POSSESSION OF MANUALS. Licensee will maintain the
Manuals at the Hotel/Casino at all times. Licensee will not copy the
Manuals, or any portion thereof, and will not permit any member of
Licensee's staff or any other Person with access thereto to do so;
provided, however, that Licensor may, for its own protection, make one (1)
duplicate copy of the Manuals to be retained in a secure location. Licensee
will inform Licensor immediately if any of the Manuals, or any portion
thereof, is copied, stolen, removed from the Hotel/Casino, lost, or
damaged. Licensee will pay to Licensor such reasonable fee as Licensor
shall from time to time require for the duplication, shipping and
replacement of such lost, stolen or damaged Manuals.
(Q) CORPORATE COMPLIANCE. Upon the request of Licensor, Licensee
shall participate, with respect to the operation of the Hotel/Casino, in
any corporate compliance program developed by Licensor, including
refraining from acquiring goods or services from suppliers who do not
follow Licensor's corporate compliance guidelines, provided such compliance
guidelines allow for a choice of suppliers and are commercially reasonable.
(R) RESERVATION SYSTEM. Licensor has developed a central
Reservation System through which guests may make reservations at other Hard
Rock Hotel/Casinos and Hard Rock Hotels operated by Licensor or other
licensees of Licensor. Licensee shall cause the Hotel/Casino to participate
in the Reservation System, at Licensee's sole cost and expense (which costs
and expenses shall not exceed the industry standard for private label hotel
reservation systems), and shall observe all requirements of participation
as reasonably determined from time to time by Licensor. Licensee shall be
solely responsible for notifying the Reservation System office of any
changes in the Hotel/Casino's room rates. Licensee shall in no event charge
any Hotel/Casino guest a rate higher than the rate specified to the guest
by the Reservation System office at the time the guest's reservation was
made. Such rate shall be the rate most recently provided
35
to the Reservation System office, according to the records of such office,
by Licensee prior to the guest having made such reservation.
Licensor shall provide to Licensee (for use at or by the Hotel/Casino only)
the specifications for the hardware and all required Software for the
Reservation System. Licensee at its expense shall purchase, install, maintain,
and use at the Hotel/Casino all equipment necessary for the proper and efficient
utilization and operation of the Reservation System, including any future
enhancements, additions, substitutions, upgrades, or other modifications
specified by Licensor. Licensee at its expense also shall install and use all
Software provided for use with the Reservation System, the cost of which shall
not exceed the industry standard for private label hotels for similar software.
Licensee agrees to contribute toward the cost, maintenance and use of the
Reservation System by paying Licensor monthly fees that will be computed on a
fair and equitable basis among Hard Rock Hotel/Casinos receiving the services of
the Reservation System; provided, that the rates charged to Licensee shall not
exceed the rates charged to other Hard Rock Hotel/Casinos receiving the services
of the Reservation System. Licensee's contributions shall be on a cost
pass-through basis with no profit accruing to Licensor. Nothing herein shall
prevent Licensor from allowing other Hotel/Casinos to utilize various components
of the Reservation System, allocating to such Hotel/Casinos on a fair and
equitable basis a charge for such use. Licensor reserves the right to modify or
change, at its sole discretion, the Reservation System at any time.
As part of the Reservation System or other systems, Licensee shall be
obligated, at its cost and expense, to utilize the communication system(s) as
specified or otherwise approved by Licensor from time to time for Hard Rock
Hotel/Casinos generally.
Licensee shall use any reasonable means to encourage and promote the use of
the Hard Rock Hotel/Casinos and Hard Rock Hotels everywhere by the traveling
public provided, however, except as otherwise provided herein, Licensee shall
not bear any expense in complying with this paragraph.
If Licensee receives a request at the Hotel/Casino for Hotel/Casino or Hard
Rock Hotel reservations or accommodations in any area where a Hard Rock
Hotel/Casino or Hard Rock Hotel is located, Licensee will promptly refer such
request to such Hotel/Casino or Hard Rock Hotel. Additionally, Licensor shall
reasonably endeavor to obligate its other licensees to provide reciprocal
referrals to Licensee.
Licensee agrees to share with Licensor, on such periodic basis and in such
form as Licensor shall from time to time determine, such marketing data and
customer profile information on guests at the Hotel/Casino as Licensor shall
request. Licensor agrees to provide to Licensee, on a basis comparable to that
set forth above, for its internal use, marketing data and customer profile
information in its possession on guests at other Hard Rock Hotel/Casinos or
Hotels. In both cases, the information shall be provided to the extent such
information is available and may be disclosed in a manner consistently with
third party agreements and the disclosing party's reasonable privacy policies.
Notwithstanding any other provisions in this Agreement, Licensor and its
Affiliates shall be entitled to enter into affiliation agreements with any
Hotel/Casinos or Hotels which allow
36
members of guest recognition programs from time to time recognized by Licensor
to redeem awards for stays at such Hotel/Casinos, and Licensee agrees to
participate in such guest recognition programs on such terms and conditions as
Licensor shall prescribe on a commercially reasonable basis.
SECTION 11. PROTECTION AND ACKNOWLEDGMENT OF THE LICENSED RIGHTS
(A) LICENSED RIGHTS EXCLUSIVE PROPERTY OF LICENSOR. Subject to
this Agreement, Licensee recognizes and acknowledges the exclusive rights
of Licensor to the Licensed Rights and all other intellectual property
rights related thereto or derived therefrom and acknowledges that all such
rights are subject to the total control in their exercise by Licensor and
its Affiliates. For all purposes of the relationship between Licensor and
Licensee created hereunder, Licensor shall be deemed to be the sole and
exclusive owner of all right, title and interest in and to the Licensed
Rights in all forms and embodiments thereof, subject only to the specific
rights granted to Licensee hereunder. Licensee agrees that its use of the
Licensed Rights, and all associated goodwill generated by the Licensed
Rights, inures to the sole benefit of Licensor in accordance with its
rights in the Licensed Rights. Licensee specifically acknowledges that the
exclusive rights granted to it pursuant to this Agreement shall not prevent
or prohibit Licensor or any licensee thereof to commercialize or otherwise
utilize (and retain all profits from) the Licensed Rights or any other
intellectual property right of Licensor in any endeavor, except as
otherwise provided in Section 17(B) hereof. Licensor represents and
warrants to Licensee that it owns or otherwise has the right to license the
registered trademarks included in the Licensed Marks but, except as set
forth in the preceding sentence and in Section 22, makes no other
representations and gives no other warranties of whatsoever nature or kind
with respect to the validity of, or its rights, title and interest in or
to, the Licensed Rights.
(B) LICENSEE HAS NO RIGHT OF OWNERSHIP IN LICENSED RIGHTS. Nothing
contained in this Agreement shall be construed to confer upon Licensee any
right to the Licensed Rights registered in the name of Licensee as
proprietor or to vest in Licensee any right of ownership to the Licensed
Rights, and Licensee shall not, directly or indirectly, register or cause
to be registered, in any country or with any Governmental Authority or use
any trademark, tradename, service xxxx or other intellectual property right
consisting of, related to, similar to and/or deceptively similar to, any of
the Licensed Rights or any other intellectual property right of Licensor or
any Affiliate of Licensor.
(C) LICENSEE WILL NOT CHALLENGE LICENSOR'S OWNERSHIP OF THE
LICENSED RIGHTS. During the term of this Agreement and thereafter, Licensee
will not, and will not assist any Person to: (i) challenge the validity of
Licensor's ownership of, or right to license, the Licensed Rights or any
registration or application for registration therefor; (ii) contest the
fact that Licensee's rights to use the Licensed Rights under this Agreement
are solely those of a Licensee and terminate upon termination or expiration
of this Agreement; and (iii) represent in any manner that it has any title
or right to the ownership, registration or use of the Licensed Rights in
any manner except as set forth in this Agreement.
37
(D) LICENSEE TO COOPERATE WHERE REQUESTED. In the event, at any
time during the term of this Agreement, Licensor applies or decides to
apply for registration of a trademark, tradename, service xxxx or other
intellectual property right that is or may become a part of the Licensed
Rights, Licensee will render to Licensor all reasonable assistance, at
Licensor's expense, in obtaining and thereafter (during the Term hereof)
maintaining registration thereof (including, without limitation, the
execution of all necessary registered user or similar agreements) with
applicable Government Authorities.
(E) LICENSEE'S DUTIES. With respect to use of the Licensed Rights
at the Licensed Location, Licensee shall use the Licensed Rights only as
permitted by this Agreement. Licensee shall not use or exploit the Licensed
Marks or the Licensed Rights outside the Licensed Location, except the
Licensee may engage in the promotion, advertising or marketing of the
Hotel/Casino anywhere in the world. Licensee shall not have any right to
assign, sublicense or franchise any of the Licensed Marks to any other
persons; or develop, use, or exploit any Hard Rock Marks not expressly
identified as Licensed Marks in this Agreement without the express written
consent of Licensor, which may withheld in Licensor's sole discretion.
(F) HOTEL/CASINO NAME. In the absence of Licensor's prior written
consent, in each instance which may be withheld in Licensor's sole
discretion, during the Term hereof Licensee will operate the Hotel/Casino
only under the Licensed Marks.
(G) LICENSEE'S DUTIES. Licensee shall:
(i) Hold all goodwill generated by the Licensed Rights as
trustee for Licensor.
(ii) Not cause or permit anything within Licensee's control
to occur which is reasonably likely to damage, endanger, or reduce the
value of the Licensed Rights or, to the extent Licensee is or should
reasonably be aware of such marks, names, or rights, any other
trademark, tradename, service xxxx, or other intellectual property
right of Licensor or any Affiliate of Licensor, or Licensor's or such
Affiliate's title thereto, or the rights of any other licensee of
Licensor or any Affiliate of Licensor thereto, or assist or suffer any
other Person to do so.
(iii) Not interfere in any manner with, nor attempt to
prohibit, the use or registration by Licensor, with applicable
Governmental Authorities of the Licensed Rights or, to the extent
Licensee is or should reasonably be aware of such marks, names, or
rights, any other trademark, tradename, service xxxx or other
intellectual property right of Licensor or any Affiliate thereof.
(iv) Not use any name or xxxx similar to or capable of
being confused with the trademarks, tradenames, service marks, or
other intellectual property rights included in the Licensed Rights or,
to the extent Licensee is or should reasonably be aware of such marks,
names, or rights, any other trademark,
38
tradename, service xxxx, or other intellectual property right of
Licensor or any Affiliate thereof.
(v) Take such action in relation to the Licensed Rights as
Licensor may, from time to time, reasonably require, in order to
protect or promote the same, including, without limitation, the
marking of any advertising material, signs, or other items bearing the
Licensed Rights, in such manner as Licensor may reasonably require.
(vi) Give notice, as Licensor may, from time to time,
reasonably require, that the Hotel/Casino is operated under license
from Licensor pursuant to this Agreement and such other notices as
Licensor may deem reasonably necessary which are not commercially
unreasonable or uneconomical to inform third parties that Licensor
does not accept liability for the acts, omissions, debts, or defaults
of Licensee, and promotional material and advertisements will, if
Licensor reasonably requires, include a statement that the
Hotel/Casino is operated under license from Licensor and such other
information as Licensor may deem reasonably necessary which are not
commercially unreasonable or uneconomical to inform third parties that
it does not accept liability for the acts, omissions, debts, or
defaults of Licensee. Licensor's approval of the form and style of
such notices shall not be unreasonably withheld.
(H) LICENSEE'S DUTIES REGARDING INFRINGEMENT. Licensee will
immediately notify Licensor in writing of any known infringement or
suspected infringement of or claim of infringement of any of the Licensed
Rights or, to the extent Licensee is or should reasonably be aware of such
marks, names, or rights, any other trademark, tradename, service xxxx, or
other intellectual property right of Licensor or any Affiliate thereof, or
any action constituting passing off or any claim for passing off against
the Licensed Rights and, to the extent Licensee is or should reasonably be
aware of such marks, names, or rights, other trademark, tradename, service
xxxx, or other intellectual property right of Licensor or any Affiliate
thereof, of which Licensee becomes aware. Licensee shall not institute any
legal action with respect to any infringement or suspected infringement of
or claim of infringement of any of the Licensed Rights, but will, if
requested by Licensor and at Licensor's expense, lend all reasonably
necessary assistance in any legal action Licensor or any Affiliate thereof
may institute, against any Person infringing or passing off as described
herein, or suspected of doing so, or any legal action Licensor or any
Affiliate thereof may defend as described herein. Licensor shall, at all
times, have full control of any such proceedings.
(I) LICENSOR'S EXCLUSIVE RIGHTS. Licensee hereby acknowledges the
exclusive rights of Licensor and its Affiliates:
(i) to the Licensed Rights and all parts thereof,
including, without limitation, all amendments and modifications
thereto and all advertising matter, slogans, and similar items and
ideas which may, from time to time, be used to promote the same;
39
(ii) to make such additions or modifications to the
Licensed Marks, including, without limitation, the addition, renewal,
or substitution of other intellectual property rights as may from time
to time, in Licensor's sole judgment, be necessary to promote,
improve, or protect the Licensed Marks; provided that such additions
or modifications do not significantly impair the value of the Licensed
Marks and Licensor shall provide Licensee with reasonable advance
notice of any such additions or modifications; and
(iii) to take all actions Licensor deems reasonably
necessary to protect and promote the Licensed Rights which are not
commercially unreasonable or uneconomical.
SECTION 12. ACCOUNTING RECORD; RIGHT TO INSPECT
(A) REPORTING REQUIREMENTS. Licensee shall deliver, or cause to be
delivered, to Licensor, the following statements:
(i) by Wednesday of each week, and in a form as may be
prescribed by Licensor, a preliminary statement of Licensing Fee
Revenues of the Hotel/Casino for the previous week, and such other
information as may be reasonably requested by Licensor; and
(ii) within thirty (30) days after the end of each calendar
month of operation of the Hotel/Casino, a monthly income statement for
the Hotel/Casino showing the results of operation of the Hotel/Casino
for the preceding month and for the year to date (including, without
limitation, Total Revenues, Licensing Fee Revenues and EBITDA of the
Hotel/Casino for such period), in such reasonable detail as Licensor
shall require, and showing the previous month's Continuing Fees and
all expenditures of Licensee pursuant to Section 8(B) of this
Agreement, for such preceding month and year to date; and
(iii) within one hundred twenty (120) days after the end of
each Fiscal Year, audited separate and/or consolidated statements of
the Hotel/Casino for such Fiscal Year certified by a firm of
independent certified public accountants, showing the results of
operation for the immediately preceding Fiscal Year (including,
without limitation, Total Revenues, Licensing Fee Revenues and EBITDA
of the Hotel/Casino for such Fiscal Year).
(iv) within fifteen (15) days prior to the end of each
calendar quarter, a written narrative report describing the current
status of the Hotel/Casino, material issues in connection with its
business and operations, and Licensee's projections of Total Revenues,
Licensing Fee Revenues and expenses for the ensuing calendar quarter.
In addition, at the Licensor's request, acting reasonably, Licensee shall
make available to Licensor marketing information and analyses of the
Hotel/Casino and Licensed Location that Licensee prepares or utilizes, such as,
but not limited to, occupancy rates and demographic information regarding
customers, and shall provide to Licensor reasonable access to database
40
information regarding customers and potential customers developed by Licensee by
means of its reservation system, surveys or otherwise.
All financial statements and reports provided for in this Section 12(A) to
be submitted to Licensor shall contain a written and signed certification from
the chief executive officer or the chief financial officer of Licensee, that, to
the best knowledge and belief of such officer, the information contained in all
such statements and reports is true, correct, and complete.
(B) LICENSEE'S BOOKS AND RECORDS AVAILABLE TO LICENSOR. Licensee
shall retain and make available to Licensor, or to the designated
representatives of Licensor, upon reasonable advance Notice to Licensee,
all books and records, including, without limitation, all contracts,
documents, invoices, construction records, financial statements and
reports, tax returns, accounting or accountants' work papers, insurance
reports, computer retained information, and other items of financial and
business information of or relating to the Licensed Location, the
Hotel/Casino and all operations and activities thereof, as Licensor shall
reasonably request in order to confirm compliance with this Agreement;
provided, however, Licensor shall have no access to Gaming books and
records (collectively, "BOOKS AND RECORDS"). Licensee shall keep all such
Books and Records in all material respects in accordance with the
determination of the accountants, on an accrual basis, and in accordance
with GAAP, consistently applied.
(C) LICENSOR'S RIGHT TO AUDIT. Upon reasonable advance written
notice to Licensee, Licensee shall permit Licensor, its accountants,
attorneys and agents, to enter upon any part of the Licensed Location and
the Hotel/Casino at all reasonable times up to four (4) times a year
during, and annually for a period of three (3) years following, the term of
this Agreement (subject to Gaming Laws and regulations), for the purpose of
examining, inspecting, auditing and making extracts of all financial and
other Books and Records of Licensee which Licensor, in its discretion,
shall deem necessary or advisable in order to confirm compliance with this
Agreement. If an audit of such Books and Records discloses that Licensee
has been paid less than ninety-five percent (95%) of all Continuing Fees
and other fees and payments due under this Agreement during any Fiscal
Year, Licensee shall immediately pay the deficiencies, together with
interest thereon at the Interest Rate, and shall also pay to Licensor
immediately upon demand therefor all of Licensor's reasonable costs of such
audit. If the audit discloses that ninety-five percent (95%) or more of all
Continuing Fees and other Fees and payments due have been made, Licensee
shall pay any deficiency immediately, together with interest thereon at the
Interest Rate, and Licensor shall bear the costs of the audit.
(D) RECORD RETENTION; DELIVERY TO LICENSOR. Licensee shall keep
and preserve, at its expense, full and complete records of Total Revenues
and all other Books and Records, including without limitation, tax returns,
check registers, bank account records and all corporate records within such
time frame as may be stipulated by applicable laws or this Agreement (but
in no event less than seven (7) years) and shall also deliver at the
Licensor's expense such additional financial, operating and other
information and reports to Licensor or Licensor's designee as the parties
may agree.
41
(E) OPERATING EQUIPMENT. Licensee shall employ in the operation of
the business of the Hotel/Casino, as it relates to documenting Licensing
Fee Revenues, such cash registers, computers, and other technical equipment
as Licensor and Licensee mutually agree.
SECTION 13. REQUIRED INSURANCE
(A) COVERAGE. Licensee, at its sole cost and expense, shall
procure and maintain in full force and effect each of the following
insurance coverages with respect to the Project:
(i) DURING CONSTRUCTION. At all times during the period of
construction, furnishing and equipping of the Hotel/Casino and the
Project and at all times during any other period of construction
(including renovations, alterations and improvements), until final
completion thereof, Builder's Risk Insurance ("ALL RISK" or equivalent
coverage) for the Project in an amount not less than the estimated
cost of such construction (including "hard" and "soft" costs), written
on a completed value basis or a reporting basis, for property damage,
protecting Licensee and Licensor, as their interests may appear, with
a deductible not to exceed $100,000 and to include rental payment
coverage from the date of projected completion and extending for at
least twelve (12) months thereafter.
(ii) PROPERTY DAMAGE INSURANCE. At all times during the
term of this Agreement, "All Risk" (or its equivalent) property damage
insurance for the Project protecting Licensee and Licensor, as their
interests may appear, with replacement cost valuation and a stipulated
value endorsement (to be provided not later than promptly following
substantial completion of the Project) in an amount not less than the
full replacement value thereof and including, among other things, (a)
coverage for all physical loss or damage to the Project (including
contents); (b) coverage for hurricane, flood and windstorm to the
extent available at commercially reasonably rates, limits and
deductibles; (c) no exclusions other than industry standard exclusions
for property of similar size and location; and (d) provision for
deductible not to exceed $100,000 (other than for hurricane, flood or
windstorm, as provided above).
(iii) BUSINESS INTERRUPTION INSURANCE. At all times during
the Term after the date which is thirty (30) days prior to the Opening
Date, Business Interruption Insurance for the Project on an "All Risk"
basis. Such insurance shall include, among other things (a) coverage
against all insurable risks of physical loss or damage, (b) coverage
for hurricane, flood and windstorm to the extent available at
commercially reasonable rates, limits and deductibles, (c) a
deductible (for other than hurricane, flood or windstorm) of not more
than $100,000 per occurrence, (d) no exclusions other than industry
standard exclusions for property of similar size and location, and (e)
coverage for the Continuing Fees hereunder in an amount equal to at
least the Continuing Fees payable for one (1) Fiscal Year in
connection with Project (as reasonably projected by Licensee for the
first full
42
Fiscal Year and thereafter based on the amounts actually paid during
the most recently ended Fiscal Year).
(iv) LIABILITY INSURANCE. At all time during the Term after
commencement of construction of the Project, general public liability
insurance protecting Licensee and Licensor against claims brought in
connection with the Project for personal injury, death and damage to
and theft of property of third persons, in an amount not less than
$50,000,000 per occurrence, combined single limit, and designating
Licensee as a named insured and Licensor as an additional insured.
Such liability insurance shall include such coverage as Licensor shall
reasonably require and as shall be commercially available, which shall
include coverage against liability arising out of (a) the sale of
liquor, wine and beer on the Project premises, (b) the ownership or
operation of motor vehicles, (c) assault or battery, (d) false arrest,
detention or imprisonment or malicious prosecution, (e) libel,
slander, defamation or violation of the right of privacy, (f) wrongful
entry or eviction, (g) contractual liability, and (h) completed
operations. Such insurance shall contain no exclusion other than
industry standard exclusions for property of similar size and location
and provide for a deductible of not more than $100,000 per occurrence.
At all times during the Term commencing on the effective date of this
Agreement until commencement of construction of the Project, Licensee
shall maintain the insurance set forth in this subparagraph (iv), but
with coverage in the amount of one million dollars ($1,000,000) per
occurrence, and with a general aggregate limit of not less than two
million dollars ($2,000,000).
(v) WORKERS' COMPENSATION INSURANCE. At all times during
the Term, Statutory Workers' Compensation and Disability Benefits
Insurance and any other insurance required by applicable Law(s),
covering all Project employees and all persons employed by Licensee,
Licensor, contractors. subcontractors, or any entity performing work
on or for the Project (unless and to the extent provided by such
parties), including Employer's Liability coverage, all in amounts not
less than the statutory minimum, except that Employers Liability
coverage shall be in an amount not less than $1,000,000.
(vi) FIDELITY. At all times during the Term after
construction, Fidelity and dishonesty insurance, and money and
securities insurance in such amounts as Licensee shall deem advisable
but not less than $100,000.
(vii) OTHER. Such additional commercially reasonable
insurance as may be reasonably required with respect to the Project or
any part thereof, together with insurance against such other risks as
its now, or hereafter may be, customary to insure against in the
operation of similar property, considering the nature of the business
and the geographic and climatic nature of the Project's location.
All such policies of insurance described above shall be with companies
which have a Best rating of A or better and in the form of "occurrence
insurance" to the extent available on a commercially reasonable basis.
43
(B) INSURANCE CARRIERS; EVIDENCE OF COVERAGE. Licensee shall
promptly provide Licensor with certificates of insurance evidencing all
insurance coverages required of Licensee pursuant to this Section 13, and
Licensee shall immediately provide, upon renewal, expiration, change, or
cancellation of any insurance coverage, a new certificate of insurance to
Licensor. Upon request, Licensee shall furnish to Licensor a copy of each
and every such policy of insurance issued to Licensee.
(C) DEFENSE OF CLAIMS. All liability insurance policies procured
and maintained by Licensee pursuant to this Section 13 will require the
insurance carrier to provide and pay for attorneys to defend any legal
actions, lawsuits, or claims brought against Licensee, Licensor, or any of
their respective officers, directors, agents, or employees.
(D) LICENSOR'S RIGHTS. Licensee shall have insurance policies
procured and maintained by Licensee pursuant to this Section 13 name
Licensor as an additional insured, to not preclude coverage if a claim is
made by one insured against other insured, to contain endorsements by the
insurance carriers waiving all rights of subrogation against Licensor, and
to stipulate that Licensor will receive copies of all notices of
cancellation, nonrenewal or coverage reduction or elimination at least
thirty (30) days prior to the effective date of such cancellation,
nonrenewal or coverage change.
SECTION 14. TERMINATION
(A) TERMINATION BY LICENSOR. Licensor may not terminate this
Agreement prior to the expiration of its term except for "good cause",
which shall mean the occurrence of any Event of Default described below.
Upon the occurrence of any Event of Default, Licensor may, at its option,
and without waiving its rights hereunder or any other rights available at
law or in equity, including its rights to damages, terminate this Agreement
and all of Licensee's rights hereunder effective immediately upon the date
Licensor gives written notice of termination, upon such other date as may
be set forth in such notice of termination, upon the occurrence of, or the
lapse of the specified period following any one of the following Events of
Default:
(i) If Licensee applies for or consents to the appointment
of a receiver, judicial manager, trustee or liquidator of all or a
substantial part of its assets, files a voluntary petition in
bankruptcy, or admits in writing its inability to pay its debts as
they come due, makes a general assignment for the benefit of
creditors, files a petition or an answer seeking reorganization or
arrangement with creditors or to take advantage of any insolvency law,
or files an answer admitting the material allegations of a petition
filed against Licensee in any bankruptcy, reorganization or insolvency
proceeding, or if any order, judgment or decree shall be entered by
any court of competent jurisdiction on the application of a creditor,
adjudicating Licensee a bankrupt or insolvent or approving a petition
seeking reorganization of Licensee or appointing a receiver, trustee
or liquidator of Licensee or of all or a substantial part of the
assets of Licensee, and any such order, judgment, or decree shall
continue unstayed and in effect for any period of sixty (60)
consecutive days;
44
(ii) If Licensee fails to pay the Territory Fee when due as
provided in Section 4(A) hereof;
(iii) If Licensee fails to make any payment (other than the
Territory Fee) due hereunder within ten (10) days after receipt of
written notice that such payment is past due, provided that if this
subclause (A)(iii) is triggered three (3) or more times during the
term of this Agreement, such ten (10) day period shall be reduced to
five (5) days;
(iv) If Licensee fails to perform or commits a breach of
any non-monetary covenant, obligation, term, condition, warranty or
certification herein and fails to cure such noncompliance or
deficiency within sixty (60) days after Licensor's written notice
thereof, or in the event cure within such sixty (60) day period is not
possible, no termination shall be permitted by Licensor if Licensee
commences cure within such sixty (60) day period and diligently
pursues the same to completion;
(v) If Licensee fails (a) to maintain all gaming licenses
and permits necessary for the operation of the Hotel/Casino (other
than those required of Licensor), or (b) fails to maintain any other
Permits (other than a liquor license) or to comply with any Laws
applicable to the operation of the Hotel/Casino and/or the Licensed
Location which would materially adversely affect the Licensed Rights
or the ability of Licensee to comply with the provisions of this
Agreement;
(vi) If Licensee is convicted of or pleads guilty (or the
equivalent) to a felony, or any other crime or offense (even if not a
crime), that is reasonably likely, in Licensor's reasonable opinion,
to materially and adversely affect, the Licensed Rights, or the
goodwill associated therewith; or if any employee or officer of
Licensee who is not thereafter discharged by Licensee, or any other
Person owning an interest in Licensee, in each case, who is required
to be licensed under applicable Mississippi gaming Law(s), is
convicted of or pleads guilty (or the equivalent) to a felony, or any
other crime or offence (even if not a crime), that is reasonably
likely, in Licensor's reasonable opinion, to materially and adversely
affect the Licensed Rights, or the goodwill associated therewith;
(vii) If Licensee defaults on its obligations under the Cafe
Lease Agreement, the Retail Store Lease Agreement or the Memorabilia
Lease, and such default is not cured in accordance with the terms of
such other agreement;
(viii) If Licensee's right of possession of the Licensed
Location shall be terminated at any time for any cause whatsoever, or
if a Lease is terminated or expires or if the right of possession of
the Licensed Location is terminated due to the Law or other action of
a Governmental Authority, other than for a temporary loss of
Licensee's possession as a result of Force Majeure;
45
(ix) If Licensee fails to: (a) obtain approval of the site
for the Licensed Location within the time period specified in Section
5(B), (b) obtain financing for the Project within the time period
specified in Section 5(D), or (c) substantially commence construction
of the Hotel/Casino or commence operation of the Hotel/Casino, both as
required by Section 5(N) of this Agreement;
(x) If there is any violation of any transfer provision
contained in Section 16 of this Agreement;
(xi) If Licensee or any Affiliate, in any material respect,
violates: (i) the non-competition covenants contained in Section 17(A)
of this Agreement; or (ii) the confidential information covenants
contained in Section 20 of this Agreement, and, in each case, if such
violation is capable of being cured, fails to cure such violation
within sixty (60) days after Licensor's written notice thereof;
(xii) If Licensee fails to make a diligent, good faith
effort to obtain and maintain a liquor license for the Hotel/Casino;
or
(xiii) If Licensee is in default, after expiration of any
applicable cure period, under any obligation to a Secured Party (as
hereinafter defined).
(B) TERMINATION BY LICENSEE. Licensee may, at its option, and
without waiving its rights hereunder or any other rights available at law
or in equity, including its rights to damages, terminate this Agreement
upon written notice of termination to Licensor, upon the occurrence of, or
the lapse of the specified period following any one of the following Events
of Default:
(i) If Licensor applies for or consents to the appointment
of a receiver, judicial manager, trustee or liquidator of all or a
substantial part of its assets, files a voluntary petition in
bankruptcy, or admits in writing its inability to pay its debts as
they come due, makes a general assignment for the benefit of
creditors, files a petition or an answer seeking reorganization or
arrangement with creditors or to take advantage of any insolvency law,
or files an answer admitting the material allegations of a petition
filed against Licensor in any bankruptcy, reorganization or insolvency
proceeding, or if any order, judgment or decree shall be entered by
any court of competent jurisdiction on the application of a creditor,
adjudicating Licensor a bankrupt or insolvent or approving a petition
seeking reorganization of Licensor or appointing a receiver, trustee
or liquidator of Licensor or of all or a substantial part of the
assets of Licensor, and any such order, judgment, or decree shall
continue unstayed and in effect for any period of sixty (60)
consecutive days;
(ii) If Licensor fails to perform or commits a breach of
any non-monetary covenant, obligation, term, condition, warranty or
certification herein and fails to cure such noncompliance or
deficiency within sixty (60) days after Licensee's written notice
thereof, or in the event cure within such sixty (60) day period is not
possible, no termination shall be permitted by Licensee if Licensor
46
commences cure within such sixty (60) day period and diligently
pursues the same to completion;
(iii) If Licensor is unable for whatever reason to license
or fails to properly maintain the registered status of the registered
trademarks included in the Licensed Marks to Licensee as provided
herein;
(iv) If Licensor fails to maintain any other of its Permits
or to comply with any Laws applicable to it which would materially
adversely affect the Licensed Rights or the ability of Licensor to
comply with the provisions of this Agreement;
(v) If Licensor is convicted of or pleads guilty (or the
equivalent) to a felony, or any other crime or offense (even if not a
crime), that is reasonably likely, in Licensee's reasonable opinion,
to materially and adversely affect, the Hotel/Casino, Licensed Rights,
or the goodwill associated therewith; or if any employee or officer of
Licensor who is not thereafter discharged by Licensor, or any other
Person owning an interest in Licensor, is convicted of or pleads
guilty (or the equivalent) to a felony, or any other crime or offence
(even if not a crime), that is reasonably likely, in Licensee's
reasonable opinion, to materially and adversely affect the
Hotel/Casino, Licensed Rights, or the goodwill associated therewith;
(vi) If Licensor defaults on its obligations under the
Memorabilia Lease, and such default is not cured in accordance with
the terms of such Memorabilia Lease;
(vii) If Licensor, in any material respect, violates: (i)
the noncompetition covenants contained in Section 17(B) of this
Agreement; or (ii) the confidential information covenants contained in
Section 20 of this Agreement, and, in each case, if such violation is
capable of being cured, fails to cure such violation within sixty (60)
days after Licensee's written notice thereof; or
(viii) If Hard Rock STP, or any permitted assigns or
successors, ceases to (i) operate the Hard Rock Cafe and/or Hard Rock
Retail Store in the Hotel in breach of the applicable Hard Rock Lease,
and an arbitrator determines that such cessation of operation is in
breach of the applicable Hard Rock Lease, and (ii) pay when due (after
any applicable grace period or curative period set forth in the
applicable Hard Rock Lease) any Rental Payment due under either Hard
Rock Lease, and such failure to pay the same is not the result of a
valid, good faith dispute as to whether such Rental Payment is due and
owing or such Rental Payment has not been offset by Hard Rock STP
against Fees due hereunder (as permitted); provided, however, such
termination shall not relieve either party from its obligation to pay
amounts due and owing to the other hereunder and/or under the Hard
Rock Leases.
47
(C) If, at any time during the Term after the expiration of the
fifth (5th) Operating Year, Licensee sells its interest in the Hotel/Casino
(including its interest in the underlying real property) to an unrelated,
third-party in an arms-length transaction, in conjunction with such
transaction, Licensee may terminate this Agreement by providing at least
ninety (90) days prior written notice to Licensor and paying Licensor a
termination fee equal to the sum of all of the following:
(a) the unamortized portion of the reasonable and
actual cost incurred by Hard Rock STP in negotiating,
preparing to perform and performing in accordance with the
Hard Rock Leases, including, but not limited to reasonable
attorney's fees and costs, architectural and engineering fees
and costs, hard and soft construction costs, and employee
training expenses. All such costs shall be amortized over the
length of the term of the applicable Hard Rock Lease;
(b) an amount equal to the product obtained by
multiplying three (3) times three percent (3%) of the average
annual Licensing Fee Revenues received by Licensee over the
three (3) full Operating Year period prior to the date of
termination of this Agreement;
(c) the Annual Fee which would otherwise be due and
owing to Licensor in accordance with Section 4(D) hereof for
the three (3) full year period (i.e., not including any Annual
Fee which was paid for the year of termination of this
Agreement) following the date of termination; and
(d) the amount obtained by multiplying three (3)
times fifteen percent (15%) of the average annual Gross Sales
(as defined in the applicable Hard Rock Lease) of food,
beverage and merchandise in, at or from the Hard Rock Cafe and
Retail Store operated by Hard Rock STP in the Hotel/Casino for
the three (3) full Lease Year (as defined in the applicable
Hard Rock Lease) period prior to the date of termination of
this Agreement.
Upon any termination of this Agreement in accordance
with this Section 14(C), the Hard Rock Leases shall
simultaneously terminate and each party thereto shall be
relieved from all further liability thereunder (except as
otherwise specifically provided in such Hard Rock Leases).
(D) Notwithstanding any provision in this Agreement to the
contrary, in the event Licensor terminates this Agreement as a result of
Licensee's failure to substantially commence construction of the
Hotel/Casino or commence operation of the Hotel/Casino, both as required by
Section 5(N) of this Agreement, Licensor shall not be entitled to any
damages for such breach of this Agreement by Licensee, except the
following: (i) the right of Licensor to retain the Territory Fee, (ii) the
right of Licensor to retain or seek recovery of any installment of the
Technical Services Fee that is paid or payable prior to the date of
termination, (iii) the right of Licensor to retain or seek recovery of any
cost or
48
expense which is paid or required to be paid to Licensor under this
Agreement or the Memorabilia Lease, and (iv) the reasonable and actual cost
incurred by Hard Rock STP in negotiating, preparing to perform and
performing in accordance with the Hard Rock Leases, including, but not
limited to reasonable attorney's fees and costs, architectural and
engineering fees and costs, hard and soft construction costs, and employee
training expenses.
SECTION 15. LICENSEE'S OBLIGATIONS UPON TERMINATION
OR EXPIRATION
(A) TERMINATION OF USE OF LICENSED RIGHTS; OTHER OBLIGATIONS. Upon
expiration or termination of this Agreement for any reason, Licensee's
right to use the Licensed Rights will terminate immediately, and this
Agreement shall cease and neither party shall have any further claim
against the other whatsoever in respect of any matter or thing under this
Agreement, except that all obligations of the parties under this Agreement
which accrue or are due with respect to periods prior to, or as of, such
termination or expiration, and all obligations which expressly survive the
expiration or termination of this Agreement, including the provisions of
Sections 19 and 20 of this Agreement, shall continue in full force and
effect subsequent to and notwithstanding the expiration or termination of
this Agreement. In addition, Licensee will: (i) promptly upon demand
therefor by Licensor and, in any event, not later than the scheduled due
date thereof after any such event, pay any and all other Fees and amounts
due and owing to Licensor or any Affiliate of Licensor under this
Agreement; (ii) comply with all of Licensor's reasonable instructions, at
Licensor's expense, with respect to the transmittal or storage of all
written guidelines, advertising materials and all other printed materials
pertaining to the operation of the Hotel/Casino received at any time from
Licensor; and (iii) comply with other applicable provisions of this
Agreement.
(B) ALTERATION OF THE LICENSED LOCATION. Upon expiration or
termination of this Agreement for any reason, or if the Licensed Location
ever ceases to be used for the operation as a Hard Rock Hotel, Licensee
shall, within thirty (30) days thereof at its expense, comply with all of
Licensor's instructions to alter, modify and change both the exterior and
interior appearance of the Hotel/Casino and the Licensed Location to remove
all elements comprising the Licensed Rights from the Hotel/Casino and the
Project. At a minimum, such alterations, modifications and changes to the
Hotel/Casino will include: (i) removing all exterior and interior Hard Rock
Hotel signage; (ii) repainting and, where applicable, recovering both the
exterior and interior of the Hotel/Casino to remove distinctive colors and
designs from the walls; (iii) removing all distinctive decor items,
music-related memorabilia and icons and distinctive furnishings; (iv)
changing the staff uniforms; and (v) immediately discontinuing the use or
display of the Licensed Marks, including all usage of the Licensed Marks in
connection with the advertisement and promotion of the Hotel/Casino and the
Project.
(C) TRANSFER OF TELEPHONE DIRECTORY LISTINGS. Upon expiration or
termination of this Agreement for any reason, Licensor will have the
absolute right to notify the telephone company and all listing agencies of
the termination or expiration of Licensee's right to use all telephone
numbers and all classified and other directory listings for the
49
Hotel/Casino and to authorize the telephone company and all listing
agencies to transfer to Licensor or its designee all telephone numbers and
directory listings of the Hotel/Casino to the extent such phone numbers
incorporate the Licensed Rights. Licensee acknowledges that Licensor has
the absolute right and interest in and to all telephone numbers and
directory listings associated with the Licensed Rights. The telephone
company and all listing agencies may accept this Agreement as conclusive
evidence of the exclusive rights of Licensor to such telephone numbers and
directory listings to the extent provided herein, and this Agreement will
constitute the authority from Licensee for the telephone company and each
such listing agency to transfer all such telephone numbers and directory
listings to Licensor. This Agreement will constitute a release of the
telephone company and each such listing agency by Licensee from any and all
claims, actions, and damages of Licensee for any actions taken pursuant to
this subsection.
(D) RIGHTS ASSIGNABLE. All rights of Licensor contained within
Section 15(C) hereof shall be freely assignable by Licensor to any designee
of Licensor.
SECTION 16. TRANSFER
(A) ASSIGNMENT BY LICENSOR. This Agreement is fully assignable by
Licensor to a successor in interest to the Licensed Marks and the goodwill
therein, and shall inure to the benefit of any assignee or other legal
successor to the interests of Licensor herein.
(B) SALE OR ASSIGNMENT BY LICENSEE. The rights of Licensee
pursuant to this Agreement are personal to Licensee. Licensor has granted a
license to Licensee in reliance upon Licensee's and its principals'
individual or collective character, skill, aptitude, attitude, business
ability and financial capacity. Accordingly, Licensee shall not, directly
or indirectly, sell, assign or otherwise transfer its ownership interest in
the Hotel/Casino or the Project, or its rights under this Agreement, in
whole or in part (except for the lease of commercial space at the Project
customarily subject to lease or concession arrangements), in each instance,
without Licensor's prior written approval, which may be exercised in its
sole discretion, except as provided in Section 16(C) hereof.
(C) CONSENT PROCEDURES. If Licensee shall have received a bona
fide letter of intent to sell or assign its interest in the Hotel/Casino
and the Project, together with its rights under this Agreement, in whole
and not in part (hereinafter referred to as "LICENSEE'S PROJECT INTEREST"),
and Licensee, pursuant to the terms of such offer, desires to accept such
offer, Licensee shall give written notice thereof to Licensor, stating the
name and full identity of the prospective purchaser of Licensee's Project
Interest, including the names and addresses of the owners of the equity
interests of such prospective purchaser, the purchase price for Licensee's
Project Interest, and all of the material terms and conditions of such
proposed assignment or sale, together with all other information with
respect thereto requested by Licensor and reasonably available to Licensee.
Within thirty (30) days after Licensor's receipt of such written notice
from Licensee, Licensor shall elect, by written notice to Licensee, one of
the following alternatives:
50
(i) To acquire Licensee's Project Interest, or to have its
designee or designees (which, in Licensor's sole discretion, may be an
unrelated third party), acquire Licensee's Project Interest at the
same price and upon the same terms and conditions as those set forth
in the written notice from Licensee to Licensor, provided that
Licensor may substitute cash for the fair market value of any non-cash
consideration offered. In the event that Licensor has elected to so
acquire or have its designee(s) so acquire Licensee's Project Interest
in accordance with the provisions of the preceding sentence, Licensee
and Licensor, or its designee(s), as the case may be, shall promptly
thereafter enter into an agreement for sale of Licensee's Project
Interest at the price and on the same terms aforesaid and shall
consummate such transaction subject to and in accordance with the
terms and conditions thereof. The closing for such transaction shall
take place on the later to occur of (A) ninety (90) days after the
date of Licensor's written notice electing to exercise its rights
under this Section 16(C)(i), or (B) the fifth (5th) Business Day
following Licensor's receipt of all consents, orders and approvals of
any Governmental Authority applicable to such transaction; or
(ii) To consent or withhold consent to the sale or
assignment of Licensee's Project Interest to such prospective
purchaser, subject to the provisions of Section 16(D) below.
Licensor's consent to a sale or assignment of Licensee's Project
Interest may be given or withheld in its sole discretion, provided
that if all of the following conditions are satisfied, Licensor's
consent shall not be unreasonably withheld:
(a) At the time of Licensee's notice pursuant to
Section 16(C)(i) and at all times through the date of such
sale or assignment, Licensee has paid all Continuing Fees and
other payments due to Licensor hereunder;
(b) At the time of Licensee's notice pursuant to
Section 16(C)(i) and at all times from the date of such notice
through the date of such sale or assignment, there is no: (i)
Event of Default by Licensee under this Agreement, (ii)
existing defaults or events which would become an Event of
Default by Licensee under this Agreement with the giving of
notice and passage of time, or (iii) defaults or events which
would become an Event of Default by Licensee immediately after
the consummation of such sale or assignment;
(c) The prospective purchaser possesses management
ability and experience and a well-established reputation for
quality management in the hotel/gaming industry or has
provided by contract for the management of the Project by a
Person who possesses such ability, experience and reputation,
in accordance with the standards set forth in Section 5(Q)
hereof;
(d) The prospective purchaser has adequate financial
resources to discharge all of the obligations on its part to
be performed under this
51
Agreement as and when the same fall due (taking into account
the income generated, and reasonably anticipated to be
generated, by the Project);
(e) The identity of the prospective purchaser (and
its constituent partners, major shareholders, senior executive
officers and other controlling Persons, if appropriate) has
been disclosed to Licensor, all such Persons enjoy a
reputation for integrity, honesty and veracity, and no such
Person has been refused a gaming license or had a gaming
license revoked in any jurisdiction of the United States; and
(f) Neither the prospective purchaser nor any of its
Affiliates is a HRC Competitor.
If Licensor shall fail, neglect or refuse to elect one of the alternatives
set forth in Section 16(C)(i) or (ii) within the thirty (30) day period provided
for above, the same shall be conclusively deemed to constitute an election and
consent to the proposed sale or assignment of Licensee's Project Interest under
Section 16(C)(ii) above and the provisions thereof shall prevail as if Licensor
had in writing consented pursuant thereto.
(D) EFFECT OF SALE OR LEASE.
(i) It is the intent of the parties hereto that the
Hotel/Casino and the Project shall at all times during the term of
this Agreement be operated in accordance with the Hotel System and the
terms of this Agreement. Accordingly, in the event that Licensor
consents (or is deemed to have consented) to a sale or lease and
assignment of this Agreement pursuant to Section 16(C) above, the
prospective purchaser shall deliver to Licensor as a condition to such
sale or assignment an executed written instrument, reasonably
satisfactory in form and substance to Licensor and its counsel,
expressly assuming and agreeing to perform all of the terms and
provisions of this Agreement.
(ii) Licensor's consent (or deemed consent) to any sale or
assignment of this Agreement shall not constitute a waiver of any
claims Licensor or any Affiliate of Licensor may have against
Licensee, nor shall it be deemed a waiver of Licensor's right to
demand exact compliance with any of the terms or conditions of this
Agreement by Licensee.
(E) TRANSFER OF CONTROLLING INTEREST IN LICENSEE. Any transaction
that results in the sale, assignment, transfer (by operation of law or
otherwise) or other disposition, directly or indirectly, of a Controlling
Interest in Licensee, shall be deemed a sale or assignment of Licensee's
Project Interest within the foregoing provisions of Section 16(B) and (C),
and shall be subject to the same rights of Licensor as set forth in said
Section 16(C) with respect to such sale or assignment. Licensee from time
to time, upon Licensor's written request, shall furnish Licensor with a
list of the names and addresses of the owners of the equity interests in
Licensee; and in the event of a contemplated sale or other disposition of a
Controlling Interest in Licensee, Licensee shall forthwith notify
52
Licensor in writing of such sale or other disposition and of the names and
addresses of the transferee or transferees of such Controlling Interest.
(F) TRANSFER FEES. As a condition to any consent by Licensor to
the sale or assignment of Licensee's Project Interest, Licensee shall and
does hereby agree to pay the sum of $50,000 to Licensor at the time of such
sale or assignment of Licensee's Project Interest as a transfer fee for the
granting and processing of Licensor's consent to such transfer.
(G) BREACH. In the event of any failure by Licensee to satisfy any
terms and conditions of this Section 16, consent to any sale, assignment or
other transfer by Licensee of its interest in the Hotel/Casino or the
Project, and/or its rights under this Agreement may be withheld by Licensor
and any such sale, assignment, and/or transfer for which Licensor has not
given its consent shall constitute an Event of Default hereunder.
SECTION 17. NON-COMPETITION
(A) BY LICENSEE.
(i) During the term of this Agreement and for a period of
one (1) year after the expiration or earlier termination of this
Agreement, Licensee and its Affiliates shall not, directly or
indirectly, own, operate, or have any other interest in: (A) a
restaurant, hotel, hotel/casino or casino within the Competitive
Territory which is owned, operated or licensed by an HRC Competitor,
(B) a Planet Hollywood restaurant, hotel, hotel/casino or casino
within the United States, (C) a Music-Themed restaurant, hotel,
hotel/casino or casino within the United States, or (D) any Hard Rock
Cafe, Hard Rock Hotel and Casino or Hard Rock casino, except for the
Project. For purposes hereof, "Music-Themed" shall mean a facility
(including a hotel) that includes in its name, is licensed or endorsed
by, or has a substantial portion of its design based on, or is
otherwise identified with, music, any genre of music (E.G., blues,
jazz or rock-n-roll) any musician, musical personality or musical
group.
(ii) Licensee shall not operate or permit any other Person
to operate at the Licensed Location: (a) a restaurant owned, operated
or licensed by an HRC Competitor, or (b) a gift shop or other clothing
or merchandise store which sells clothing or merchandise depicting the
geographic location of the Project and bearing the trademarks of an
HRC Competitor. Licensee agrees that it shall include in its leases
for the Project a clause prohibiting or preventing the use of
operation thereof in a manner which would violate the provisions of
this section and that Licensor shall be deemed to be a third party
beneficiary of such lease clause.
(iii) If Licensee desires to sell or otherwise transfer any
portion of the real property of the Licensed Location, then prior to
such sale or transfer Licensee shall cause a restrictive covenant to
be filed against such parcel prohibiting the
53
use of such property for (A) an HRC Competitor restaurant, hotel,
hotel/casino or casino, or (B) a Music-Themed restaurant, hotel,
hotel/casino or casino.
(iv) Notwithstanding any provision in this Section to the
contrary, the covenants and restrictions set forth in Section 17A (i)
above shall not apply to AA Capital Direct Investments Fund, L.P. or
any co-investment fund, the principals of the general partner of which
are substantially the same as the principals of the general partner of
AA Capital Direct Investment Fund, L.P.
(B) BY LICENSOR.
(i) During the term of this Agreement, Licensor shall not
license, develop, own or operate, directly or indirectly, through its
Affiliates or otherwise, any Hard Rock Hotel with a casino or a Hard
Rock casino or any Hard Rock Cafe (other than pursuant to the Cafe
Lease Agreement) within the Competitive Territory, provided that the
foregoing shall not restrict Licensor and its Affiliates and licensees
from advertising or distributing coupons or other promotional
materials at a casino/gaming property within the Territory.
(ii) Licensor has advised Licensee that Xxxxx Xxxxxx has
the right to build Hard Rock Hotel and/or Casinos in the State of
Louisiana and other locations west of the Mississippi River. Licensee
acknowledges and agrees that the exercise of such rights shall not
constitute a violation of the non-competition restrictions applicable
to Licensor set forth herein.
(C) NECESSITY OF NONCOMPETITION RESTRICTION; INJUNCTIVE RELIEF.
Each party agrees the provisions of this Section 17 are necessary to
protect the legitimate business interests of the other party, its
Affiliates and other licensees of Licensor and its Affiliates
(collectively, the "PROTECTED PERSONS"), including, without limitation, and
as applicable, preventing the unauthorized dissemination of marketing,
promotional and Confidential Information to competitors thereof and
preventing damage to and/or loss of goodwill associated with the Licensed
Rights and other intellectual property rights of Licensor. Each party
specifically acknowledges that damages alone cannot adequately compensate
for a violation by such party of the requirements of this Section 17, and
that injunctive relief is essential for the protection of the Protected
Persons. Each party agrees that if the other party alleges any violation of
any covenant contained within this Section 17, the non-breaching party will
have the right (notwithstanding Section 18 hereof) to petition a court of
competent jurisdiction for injunctive relief, in addition to all other
remedies that may be available. The party seeking such injunctive relief
will not be required to post a bond or other security for any injunctive
proceedings.
SECTION 18. DISPUTE RESOLUTION
(A) ACCOUNTING/ FEE DISPUTES.
(i) Any dispute regarding any accounting issues hereunder,
including, without limitation, the calculation of: (a) Licensing Fee
Revenues and the Continuing Fees paid or payable by Licensee
hereunder, (b) Total Revenues, or
54
(c) the termination fee due in accordance with Section 14(B)(ix)
hereof, shall be resolved in the following manner: Licensor and
Licensee shall use their reasonable efforts with the assistance of
their respective independent public accountants to resolve such
dispute. If such persons are unable to resolve the dispute within
thirty (30) calendar days after receipt by either party of a notice
identifying the nature of such dispute (the "DISPUTE NOTICE"), then
the issues raised by the Dispute Notice shall be resolved by any
nationally recognized firm of certified public accountants mutually
acceptable to Licensor and Licensee (the "ACCOUNTING REFEREE"). Such
person shall act as an expert and not as an arbitrator. If within
forty-five (45) days after receipt by either party of the Dispute
Notice, the parties are unable to agree on an Accounting Referee, then
each party shall pick an internationally recognized firm of certified
public accountants and such firms shall select the Accounting Referee.
The parties shall use reasonable efforts to cause the Accounting
Referee to promptly resolve such issues. Such determination shall be
made within thirty (30) calendar days after the date on which the
Accounting Referee receives notice of the dispute, or as soon
thereafter as possible. Such determination shall be final and binding
upon the parties and shall not be subject to appeal. The fees, costs
and expenses of the Accounting Referee in conducting such review (if
any) shall be shared fifty percent (50%) by Licensor and fifty percent
(50%) by Licensee.
(ii) If the final resolution of any Dispute as provided
above results in an additional payment by one party hereto to the
other party hereto, then the party owing such additional payment shall
pay such amount to the other party hereto, together with Interest
thereon from the relevant due date, within fifteen (15) days of the
date on which the final determination is agreed or determined.
(iii) The right of Licensor to dispute Licensee's
calculation of the amount of: (a) Licensing Fee Revenues and the
Continuing Fees paid or payable by Licensee hereunder, or (b) any
other payment due hereunder, shall, in each case, terminate three and
one-half (3.5) years after the date each such payment was due.
(B) OTHER DISPUTES.
(i) All other disputes, disagreements, controversies or
claims (a "DISPUTE") between Licensor and Licensee arising out of or
relating to this Agreement, except for matters directly involving the
use, display or presentation, of the Hard Rock Elements, matters that
are stated to be in a party's "sole discretion" or as otherwise
expressly provided herein to the contrary, shall be resolved by
arbitration administered by the American Arbitration Association
("AAA") as provided in this Section 18(A)(2) and the Commercial
Arbitration Rules of the AAA (the "AAA RULES") in effect as of the
commencement of the applicable arbitration proceeding, except to the
extent the then-current AAA Rules are inconsistent with the provisions
of this Section 18(B), in which event the terms hereof shall control.
The arbitration shall be governed by the United
55
States Arbitration Act and this Section 18(B), and judgment upon the
award entered by the arbitrators may be entered in any court having
jurisdiction.
(ii) If either party hereto asserts that a Dispute has
arisen, such asserting party shall give prompt written notice (or
notice as otherwise provided herein) thereof to the other party and to
the AAA. Any arbitration pursuant to this Section 18(B) shall be
conducted in Atlanta, Georgia or such other place as the parties
agree.
(iii) The arbitration shall be conducted by three (3)
arbitrators, which arbitrators shall be selected in accordance with
the AAA Rules, and at least one (1) of whom (but no more than two (2)
of whom) shall have had experience in the management and/or operation
of hotel/casinos, or as a consultant in connection with the management
and/or operation of hotel/casinos. Notwithstanding the above, if the
Dispute at issue is for a liquidated amount less than $500,000,
Adjusted for Inflation, then the arbitration shall be conducted by one
(1) arbitrator in accordance with the AAA Rules for Expedited
Procedures, and which arbitrator shall be selected in accordance with
AAA Rules for Expedited Procedures, and which arbitrator shall have
experience in the management and/or operation of hotel/casinos.
In connection with any arbitration proceeding pursuant to this Section
18(B), (a) no arbitrator shall have been employed or engaged by a party hereto
within the previous five (5) year period, (b) each arbitrator shall be neutral
and independent of the parties to this Agreement, (c) no arbitrator shall be
affiliated with any party's auditors, (d) no arbitrator shall be employed by any
hotel or casino operator or an Affiliate of any hotel or casino operator, and
(e) no arbitrator shall have a conflict of interest with (including, without
limitation, any bias towards or against) a party hereto. As used in this
Agreement, the term "arbitrator" or "arbitrators" shall mean the one (1) member
arbitration panel or the three (3) member arbitration panel, as applicable,
described herein.
(iv) The award of the arbitrators shall be accompanied by a
statement of the reasons upon which the award is based. The
arbitrators shall not have the power to modify this Agreement. The
award may not include, and the parties hereto specifically waive, any
right to an award of (a) special, incidental or consequential damages,
or (b) punitive damages. Unless otherwise specifically provided in
this Agreement, the fees and costs of the arbitrators shall be borne
equally by the parties hereto.
(v) The arbitrators may consolidate proceedings with
respect to any Dispute under this Agreement with proceedings with
respect to any related controversy, provided that any parties to such
controversy who are not parties to this Agreement consent to such
consolidation.
(vi) The parties hereto will cooperate in the exchange of
documents relevant to any Dispute. Deposition or interrogatory
discovery may be conducted only by agreement of such parties or if
ordered by the arbitrators. In considering
56
a request for such deposition or interrogatory discovery, the
arbitrators shall take into account that the parties hereto are
seeking to avoid protracted discovery in connection with any
arbitration proceeding hereunder.
(vii) The obligation herein to arbitrate shall not be
binding upon either party with respect to (a) claims relating to
either party's rights to ownership of such party's trademarks, trade
names, service marks, logos, commercial symbols, slogans, trade dress,
or other intellectual property rights, or other matters materially
affecting such intellectual property rights, which claims may be
adjudicated in a court of competent jurisdiction, or (b) requests for
temporary restraining orders, preliminary (and final) injunctions, or
other procedures in a court of competent jurisdiction to obtain
interim relief when deemed necessary to prevent a default that would
result in irreparable injury pending resolution by arbitration of the
actual dispute between the parties.
(viii) The prevailing party in any Dispute shall be entitled
to recover reasonable attorneys' fees and costs from the
non-prevailing party in the Dispute.
SECTION 19. INDEMNIFICATION
(A) INDEMNIFICATION BY LICENSOR. Licensor shall Indemnify Licensee
or its Affiliates, and all of their respective managers, members,
directors, shareholders, officers, employees, agents and representatives,
from, against and in respect of any and all actions, suits, claims,
proceedings, investigations, audits, demands, assessments, fines,
judgments, costs and expenses (including, without limitation, reasonable
attorneys' fees) ("CLAIMS") actually incurred by Licensee by reason of: (i)
any breach by Licensor of any covenant or agreement made by it in this
Agreement, (ii) any trademark infringement claim as a result of its use of
the Licensed Marks, or (iii) any act or omission of Licensor or its
Affiliates or any of their respective employees which constitutes gross
negligence or willful misconduct.
(B) INDEMNIFICATION BY LICENSEE. Licensee shall Indemnify Licensor
and its Affiliates and all of their respective directors, officers,
employees, agents and representatives from and against all Claims actually
incurred by any of them by reason of: (i) any breach by Licensee of any
covenant or agreement made by it in this Agreement, (ii) any act or
omission of Licensee or any officer, employee or agent of Licensee
occurring in, on or about the Project (except in the Hotel/Casino Retail
Store or Hard Rock Cafe located in the Hotel/Casino), (iii) any act or
omission of Licensee or any officer, employee or agent of Licensee acting
or purporting to act on behalf of or for the benefit of the Hotel/Casino or
the Project, (iv) any failure by Licensee to provide the services
contracted for in connection with the operations of the Hotel/Casino and
the Project, to honor and fulfill obligations of Licensee under any
contract, commitment or obligation of Licensee, or (v) the operation of the
Hotel/Casino and the Project (other than the Hotel/Casino Retail Store or
Hard Rock Cafe located in the Hotel/Casino), including any death or
personal injury or property damage occurring at the Hotel/Casino or the
Project, unless such death, injury or damage was caused by the gross
negligence or willful misconduct of Licensor or its Affiliates or any of
their respective employees.
57
(C) METHOD OF ASSERTING CLAIMS. Whenever any Claim shall arise for
indemnification under this Section 19, the indemnified party will give
prompt written notice to the indemnifying party of such Claim, stating the
nature, basis and (to the extent known) amount thereof, and shall cooperate
fully in the defense, settlement or compromise of such Claim; provided that
failure to give prompt notice shall not jeopardize the right of the
indemnified party to indemnification unless such failure shall have
materially prejudiced the ability of the indemnified party to defend such
Claim. The indemnifying party shall have the sole right to select counsel
for the defense of such Claim, subject to the approval of the indemnified
party (which approval shall not be unreasonably withheld) and to control
the defense, settlement or compromise of such Claim. The indemnified party
shall have the right to participate in (but not control) the defense of any
such Claim, with its counsel and at its own expense. The indemnified party
shall not settle or compromise any Claim by a third party for which it is
entitled to indemnification hereunder without the prior written consent of
the indemnifying party. The indemnifying party shall obtain the prior
written approval of the indemnified party (which approval may not be
unreasonably withheld) before ceasing to defend against such third party
claim or entering into any settlement or compromise of such third party
claim involving injunctive or similar equitable relief being asserted
against any indemnified party and no indemnifying party will, without prior
written consent of each indemnified party, settle or compromise or consent
to the entry of any judgment in any pending or threatened Claim, action or
cause of action, suit or proceeding in respect of which indemnification may
be sought thereunder (whether or not any such indemnified party is a party
to such Claim, action or cause of action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of all
such indemnified parties from all liability arising out of such Claim,
action, suit or proceeding.
(D) SURVIVAL. The provisions of this Section 19 shall survive the
termination of this Agreement for any reason.
SECTION 20. CONFIDENTIAL INFORMATION
Except as provided in this Agreement, each party shall disclose
Confidential Information to the other party solely on the condition that the
recipient and its Affiliates agree, and the recipient, individually and on
behalf of its Affiliates hereby agrees, that at all times during and after the
term of this Agreement, the recipient and its Affiliates (i) shall not use the
Confidential Information in any other business or capacity other than pursuant
to its rights and obligations under this Agreement, (ii) shall maintain the
absolute confidentiality of the Confidential Information, (iii) shall not
distribute to third parties copies of any portion of the Confidential
Information which is disclosed in written or tangible form, and (iv) shall adopt
and implement reasonable procedures to prevent the unauthorized use or
disclosure of the Confidential Information, including, without limitation,
restrictions on disclosure thereof by the recipient's employees and Affiliates
who may have access to the Confidential Information. In the event that either
party is required through legal process to disclose any Confidential
Information, such party may do so, provided that the disclosing party gives the
other party written notice of the Confidential Information to be disclosed as
far in advance of its disclosure as is reasonably practicable.
58
Notwithstanding anything to the contrary set forth herein or in any other
written or oral understanding or agreement to which the parties hereto are
parties or by which they are bound, the parties acknowledge and agree that (i)
any obligations of confidentiality contained herein and therein do not apply and
have not applied from the commencement of discussions between the parties to the
tax treatment and tax structure of the transaction contemplated herein (the
"TRANSACTION") (and any related transactions or arrangements), and (ii) each
party (and each of its employees, representatives, or other agents) may disclose
to any and all persons, without limitation of any kind, the tax treatment and
tax structure of the Transaction and all materials of any kind (including
opinions or other tax analyses) that are provided to such party relating to such
tax treatment and tax structure, all within the meaning of Treasury Regulations
Section 1.6011-4; provided, however, that each party recognizes that the
privilege each has to maintain, in its sole discretion, the confidentiality of a
communication relating to the Transaction, including a confidential
communication with its attorney or a confidential communication with a federally
authorized tax practitioner under Section 7525 of the Internal Revenue Code, is
not intended to be affected by the foregoing.
Each party acknowledges that the restrictions contained in this Section are
reasonable and necessary to protect the legitimate interests of the disclosing
party, do not cause the recipient of the Confidential Information undue
hardship, and that any violation of the provisions of this Section will result
in irreparable injury to the disclosing party and its Affiliates and that,
therefore, the disclosing party shall be entitled to preliminary and permanent
injunction relief in any court of competent jurisdiction, which rights shall be
cumulative and in addition to any other rights or remedies to which the
disclosing party may be entitled.
SECTION 21. GENERAL PROVISIONS
(A) ENTIRE AGREEMENT. This Agreement, and the attachments hereto,
if any, constitute the entire, full and complete agreement between Licensor
and Licensee concerning the subject matter hereof, and supersede all prior
agreements, no other representations having induced Licensee to execute
this Agreement. No representations, inducements, promises, or agreements,
oral or otherwise, not embodied in this Agreement (as defined in the
preceding sentence) or attached hereto (unless of subsequent date) were
made by either party, and none shall be of any force or effect with
reference to this Agreement or otherwise. Except as otherwise provided in
this Agreement, no amendment, change or variance from this Agreement shall
be binding on either party unless mutually agreed to by the parties and
executed by their authorized officers or agents in writing.
(B) NOTICES. Except as otherwise provided in this Agreement, all
notices, demands, requests, consents, approvals and other communications
(collectively "NOTICES"), required or permitted to be given hereunder, or
which are to be given with respect to this Agreement, shall be in writing
and personally delivered, or sent by facsimile (with a confirming copy
mailed by international air mail), or by a recognized overnight courier
service, or by registered international air mail, postage prepaid, return
receipt requested, addressed to the party to be so notified as follows:
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If to Licensee, to: Premier Entertainment, LLC
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxx
Facsimile No.: (702) ____________
with copy to: Xxxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxx
Telephone No.:(000) 000-0000
Facsimile No.: (000) 000-0000
AA Capital Partners, Inc.
00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Xx.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Licensor, to: Hard Rock Hotel Licensing, Inc.
0000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Vice President, Business Affairs
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with copy to: Akerman Senterfitt
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esquire
Telephone: (000) 000-0000
Telecopier:(000) 000-0000
Notices shall be deemed received on the date of delivery if personally
delivered, two (2) business days after sending if sent by facsimile or overnight
courier service, or seven (7) business days after sending if sent by registered
international air mail.
(C) INDEPENDENT CONTRACTOR STATUS. This Agreement does not create
a fiduciary relationship between the parties hereto, and Licensee is and
shall, at all times, remain an independent contractor. Nothing in this
Agreement is intended to constitute either party an agent, legal
representative, subsidiary, joint venturer, partner, employee or servant of
the other party for any purpose. During the term of this Agreement,
Licensee shall hold itself out to the public only as an independent
contractor operating the business pursuant to a license from Licensor.
60
(D) SURVIVAL. Any covenant, representation, warranty, term or
provision of this Agreement which, in order to be effective, must survive
the termination of this Agreement, shall survive any such termination.
(E) SEVERABILITY. Except as expressly provided to the contrary
elsewhere herein, each section, part, term and/or provision of this
Agreement shall be considered severable and shall be construed as
independent of any other section, part, term and/or provision of this
Agreement. If, for any reason, all or any part of any section, part, term
and/or provision herein is held to be invalid, unenforceable, or in
conflict with any applicable law by a court or properly convened
arbitrators having valid jurisdiction in an unappealed final decision to
which Licensor is a party or by which Licensor may be bound, such shall not
impair the operation of, or have any other effect upon, any other section,
part, term and/or provision of this Agreement as may remain otherwise valid
and enforceable, and the latter shall continue to be given full force and
effect and bind the parties hereto, and said invalid sections, part, terms
and/or provisions shall be deemed limited by construction in scope and
effect to the minimum extent possible to render the same valid and
enforceable.
(F) WAIVERS. No failure by any party hereto to insist upon the
strict performance of any covenant, agreement, term or condition of this
Agreement, or to exercise any right or remedy consequent upon the breach
thereof, shall constitute a waiver of any such breach or any subsequent
breach of such covenant, agreement, term or condition. No covenant,
agreement, term or condition of this Agreement, and no breach thereof,
shall be waived, altered or modified except by written instrument signed by
the party to be charged therewith. No waiver of any breach of any covenant,
agreement, term or provision of this Agreement shall affect or alter this
Agreement, but each and every covenant, agreement, term and condition of
this Agreement shall continue in full force and effect.
(G) NO WARRANTIES OR GUARANTEES. Except as explicitly set forth in
this Agreement, Licensor makes no warranties or guarantees upon which
Licensee may rely, and assumes no liability or obligation to Licensee, by
providing any waiver, approval, consent or suggestion to Licensee in
connection with this Agreement, or by reason of any delay, or denial of any
request therefor. Licensee, in executing this Agreement, has not relied
upon any representation or warranty of Licensor that the business
operations to be conducted at the Hotel/Casino will be successful, or that
any specific level of profit will be achieved.
(H) CONSENTS AND APPROVALS.
(i) All consents and approvals which may be given under
this Agreement shall be in writing. Unless a different standard is
specified in a particular term or provision of this Agreement, any
provision of this Agreement which specifies that a consent or approval
by Licensor shall not be "unreasonably withheld or delayed", must be
"reasonably" given, or words of similar effect, shall entitle
Licensor, in granting or withholding any such consent or approval, to
consider the economic considerations of Licensor and Licensee, the
application of
61
Licensor policies and procedures, public relations and publicity
concerns of Licensor and Licensee, and Laws applicable to Licensor and
Licensee.
(ii) If, pursuant to this Agreement, any consent or
approval by either party which may not be unreasonably withheld is
alleged to have been unreasonably withheld, conditioned or delayed,
then any dispute as to whether such consent or approval has been
unreasonably withheld, conditioned or delayed shall be settled by
arbitration in accordance with Section 18 hereof. In the event there
shall be a final determination that such consent or approval was
unreasonably withheld, conditioned or delayed so that such consent or
approval should have been granted, the consent or approval shall be
deemed granted.
(I) INFORMATIONAL MATERIALS. In furtherance of the respective
rights of the parties contained within this Agreement, including, without
limitation, any right of approval or consent, or, in the case of Licensee,
to exploit the Licensed Rights granted hereunder to Licensee, each party
shall be entitled to receive from the other all materials and information
in the possession or control of the other party reasonably requested to
enable the requesting party to exercise the rights granted to such
requesting party hereunder.
(J) EXPENSES. Except to the extent otherwise provided herein, each
party hereto will bear its own costs, expenses and fees, including, without
limitation, the fees and expenses of their respective legal counsel, in
connection with the negotiation, preparation and execution of this
Agreement, and in connection with all due diligence reviews and
investigations conducted by such party prior to the execution of this
Agreement.
(K) FORCE MAJEURE. If by reason of war, riots, civil commotion,
labor disputes, strikes, lockouts, inability to obtain labor or materials,
fire, hurricane, windstorm, flooding, or other acts or elements, accidents,
government restrictions or appropriation or other causes, whether like or
unlike the foregoing, beyond the control of a party hereto, such party is
unable to perform in whole or in part its obligations under this Agreement,
then in such event such inability to perform, so caused, shall not make
such party liable to the other. Upon the occurrence of such an event, the
parties shall seek to determine the impact, if any, that such occurrence
shall have upon the rights and obligations of the parties under this
Agreement. Any disagreement regarding such rights and obligations shall be
referred to the Chief Executive Officer of Licensee and the President and
Chief Executive Officer of Licensor for final resolution in writing signed
by each of them. In the event that such persons are unable to so resolve
the disagreement, then they shall seek alternative means to resolve the
dispute, provided that if the parties cannot otherwise resolve that dispute
within a reasonable period under the circumstances, then the parties shall
not be precluded from pursuing the procedures set forth in Section 18 of
this Agreement.
(L) ABSENCE OF THIRD PARTY BENEFICIARY RIGHTS. Except as otherwise
specified in this Agreement, no provision of this Agreement is intended or
shall be construed to provide or create any third party beneficiary right
or any other right of any kind in any
62
client, customer, affiliate, insurer, lender, shareholder, partner,
officer, director, employee or agent of any party hereto, or in any other
Person, and all terms and provisions hereof shall be personal solely among
the parties to this Agreement and their proper successors and assigns.
(M) ASSIGNMENT. Subject to the provisions of Section 16 hereof,
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective heirs, legal representatives, successors and
permitted assigns of the parties hereto.
(N) HEADINGS. The section and other headings contained herein are
for convenience of reference only, and are not intended to define, limit or
describe the scope or intent of any provision of this Agreement.
(O) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(P) PUBLIC ANNOUNCEMENTS. No notices to third parties or other
publicity, including press releases, concerning the existence of this
Agreement or any of the transactions contemplated hereby shall be made by
either party hereto or their respective Affiliates unless agreed to by each
of the parties hereto, except to the extent required by law.
Notwithstanding the above, no notices or other public announcements
regarding this Agreement shall be made by either party until after
Licensee's acquisition of the site for the Hotel/Casino.
(Q) NO SOLICITATION. Licensor and Licensee, on behalf of itself
and its Affiliates, each agree not to, directly or indirectly, solicit the
employment of any individual who has an active management position with the
other party hereto or any of its Affiliates, without the written consent of
the other party hereto, which consent may be granted or withheld in the
other party's sole discretion.
(R) FRANCHISE LAWS NOT APPLICABLE. It is the intention of the
parties that the negotiation, execution, delivery and performance of this
Agreement and the other agreements, instruments and documents to be
executed and delivered in connection herewith, and the consummation of the
transactions contemplated hereby and thereby not trigger or be subject to
the franchise laws and regulations of any jurisdiction.
(S) CUMULATIVE REMEDIES. All rights and remedies of the parties
hereto are cumulative of each other and of every other right or remedy such
parties may otherwise have at law or in equity, and the exercise of one or
more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
(T) APPLICABLE LAW. This Agreement shall be governed and construed
in accordance with the internal laws of
Nevada, without reference to the
principles of comity or conflicts of law thereof.
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(U) RELATIONSHIP. Nothing contained in this Agreement shall be
deemed to be construed as creating the relationship of principal and agent
or of partnership or joint venture between Licensee and Licensor, it being
understood and agreed that neither the method of computing Fees nor any
other provision contained herein nor any acts of the parties hereto shall
be deemed to create any relationship between the parties other than that of
licensee and licensor.
SECTION 22. CERTAIN REPRESENTATIONS, WARRANTIES AND
AGREEMENTS OF LICENSOR AND LICENSEE
(A) REPRESENTATIONS AND WARRANTIES OF EACH PARTY.
As an inducement to enter into this Agreement and to carry out the
agreements set forth herein, each party hereby represents and warrants, as of
the date hereof, to, and agrees with, the other party, as follows, in each case
subject to the specific limitations contained herein:
(i) Such warranting party (the "WARRANTOR") is a
corporation or entity duly organized, validly existing, and in good
standing under the Laws of its respective jurisdiction of
organization.
(ii) The Warrantor has full corporate or governmental power
and authority to execute and deliver this Agreement, and all of the
other agreements and instruments contemplated hereby, to consummate
the transactions contemplated hereby and thereby, and to comply with
the terms, conditions, and provisions hereof and thereof.
(iii) The execution, delivery, and performance of this
Agreement, the Cafe Lease Agreement, Retail Store Lease Agreement and
the Memorabilia Lease by the Warrantor (or its Affiliates, as the case
may be) have been duly authorized and approved by the board of
directors or equivalent body of Warrantor or any such Affiliate, as
the case may be, and do not require any further authorization or
consent of Warrantor, any such Affiliate, or the stockholders thereof.
Each of this Agreement, the Lease Agreement and the Memorabilia Lease
constitutes, or shall constitute, the legal, valid, and binding
agreement of the Warrantor (or its applicable Affiliate, as the case
may be), enforceable in accordance with its respective terms, except
as such enforceability may be limited by: (1) applicable bankruptcy,
insolvency, reorganization, moratorium, equitable principles, or
similar Laws affecting legal or equitable rights generally; or (2) the
possibility that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses
and to the discretion of the tribunal before which any proceeding
therefor may be brought.
(iv) Neither the execution and delivery of this Agreement
or any other agreement or instrument contemplated hereby, nor the
consummation of any of the transactions contemplated hereby or
thereby, nor compliance with or fulfillment of the terms, conditions,
and provisions hereof or thereof, in each case by Warrantor (or its
applicable Affiliate, as the case may be) will conflict with,
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result in a breach of the terms, conditions, or provisions of, or
constitute a default, an event of default, or an event creating rights
of acceleration, termination, or cancellation, or a loss of rights
under, or, in the case of Licensor only, result in the creation or
imposition of any encumbrance upon any of the Licensed Rights (except
for the rights thereto granted to Licensee herein and therein), under
the organizational or governing documents of Warrantor (or its
applicable Affiliate, as the case may be), or under any note,
instrument, agreement, mortgage, lease, license, franchise, permit,
judgment, order, award, or decree to which Warrantor (or its
applicable Affiliate, as the case may be) is a party or is bound, or,
in the case of Licensor only, to which any of the Licensed Rights is
subject.
(B) INFRINGEMENTS OF OR BY THE LICENSED RIGHTS.
Licensor represents and warrants to Licensee that (a) Licensor is the sole
owner of the Licensed Marks; (b) to the best knowledge of Licensor, Licensor has
the unencumbered right to enter into this Agreement and to grant Licensee the
rights described herein; (c) Licensee's use of the Licensed Marks pursuant to
this Agreement will not infringe the rights of any other person or entity; (d)
Licensor has received no written claims of ownership adverse to Licensor's use
of the Licensed Marks; (e) it will pursue infringers of the Licensed Marks in a
commercially reasonable manner; (f) it will maintain all required filings with
the U.S. Patent and Trademark Office to preserve its rights in the Licensed
Marks; and (g) to the best knowledge of Licensor, the Licensed Marks are not
subject to any lien, encumbrance or security interest. The representations and
warranties set forth in items(a), (c), (e) and (f) shall survive execution and
delivery of this Agreement.
(C) COMPLIANCE.
Licensee hereby covenants, confirms and warrants that the proposed facility
will operate in material compliance with applicable federal, state and local
law. Licensee affirms and acknowledges that Licensor will have no control over
the conduct of gaming activities in the proposed facility, and will rely on
Licensee to insure that all such gaming activities are in compliance with
applicable Law. Licensee will indemnify and hold harmless Licensor and its
Affiliates, and their officers, directors, employees and agents (the
"INDEMNITEES") from any and all claims, demands or liabilities which might arise
as a result of this Agreement and their activities in the proposed facility,
including but not limited to payment of all legal costs which the Indemnitees
might incur in the event the legality of any games, gaming devices or activity
in the proposed facility is challenged by federal, state or local officials.
SECTION 23. RIGHT OF FIRST OFFER
(A) COVENANT CREATING RIGHT OF FIRST OFFER. Subject to Subsection
23(B) below, if, at any time during the Term of this Agreement, Licensor
desires to sell the Hotel System for operating the hotel aspects of a
Hotel/Casino establishment in Tunica, Mississippi (the "TUNICA RIGHTS"),
Licensor shall first send written notice of such election to Licensee (the
"OFFER NOTICE"), which Offer Notice shall generally specify the initial fee
(i.e., Territory Fee), recurring fees (i.e., Annual Fee and Continuing
Fee), and term, if any for which Licensor is willing to sell the Tunica
Rights (the "OFFER TERMS").
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Licensee shall have ninety (90) days from the date of its receipt of the
Offer Notice to provide Licensor written notice (the "ACCEPTANCE NOTICE")
of Licensee's intent to exercise its right of first offer ("ROFO"). In
addition to evidencing Licensee's election to purchase the Tunica Rights
for the Offer Terms, the Acceptance Notice shall specify a closing date for
such sale, which date shall be not more than sixty (60) days after the date
of the Acceptance Notice. The failure of Licensee to exercise its ROFO
within such ninety (90) day period shall result in the ROFO being waived as
to the Tunica Rights. If: (i) Licensee does not timely exercise its right
to purchase the Tunica Rights (or any portion thereof) pursuant to this
Agreement; (ii) Licensee gives written notice to Licensor of Licensee's
election to waive its ROFO with respect to the Tunica Rights; or (iii)
having exercised its ROFO, Licensee fails to close on the purchase of the
Tunica Rights at the Offer Terms within sixty (60) days after the date of
the Acceptance Notice, then Licensor shall be free to sell the Tunica
Rights (free and clear of Licensee's ROFO) for not less than ninety-five
95% of the Offer Terms and upon such other terms as Licensor may desire,
for a period of one (1) year after the later of (x) the date of the Offer
Notice, or (ii) if Licensee elects to purchase the Tunica Rights but fails
to timely close at the Offer Terms, then the date which is sixty-one (61)
days after the Acceptance Notice (the "OPEN SALE PERIOD").
(B) CERTAIN OFFERS TO PURCHASE DEEMED ELECTION TO DESIRE TO SELL.
The receipt by Licensor of an acceptable, bona fide offer to purchase the
Tunica Rights shall, for purposes of Section 23.1(A), be deemed a "desire
by Licensor to sell the Tunica Rights" and the terms and conditions of such
acceptable offer to purchase the Tunica Rights shall be deemed the Offer
Terms for purposes of Section 23.1(A).
SECTION 24. SECURED PARTY RIGHTS
(A) RIGHT TO PLEDGE. Provided Licensee has acted in strict
compliance with this Section 24, Licensee may encumber, pledge, or convey
its interests in this Agreement by way of a security agreement, a pledge
and/or a collateral assignment (collectively, a "PLEDGE") to secure the
payment of a loan or loans obtained by Licensee and secured by the Project
which loan or financing is provided by an Institution or another entity
that is approved by Licensor in its reasonable discretion, or the lender(s)
which are represented by an Institution acting as trustee or collateral
agent (the "SECURED PARTY"). The term "Institution" as used in this Section
24 shall refer to a savings bank, savings and loan association, commercial
bank, trust company, credit union, insurance company, college, university,
real estate investment trust or pension fund and shall also include other
lenders which perform functions similar to the foregoing, and which have
assets in excess of fifty million dollars ($50,000,000.00) at the time the
Pledge is made. If Licensee shall have Pledged its interest in this
Agreement and the Secured Party has been approved by Licensor, thereafter
the Secured Party shall not subsequently assign, transfer, convey or sell
participations in such Pledge to any Person other than a qualified Secured
Party, without the prior written consent of Licensor, which consent shall
not be unreasonably withheld.
(B) PLEDGE NOT A SUBORDINATION. If Licensee shall have Pledged its
interest in this Agreement in compliance with this Section 24, the Pledge
shall not cause, result in or
66
any way be deemed a subordination of Licensor's rights in this Agreement to
the rights of the Secured Party. Without limiting the foregoing, the Fees
payable to Licensor hereunder shall not be subordinate to any amounts
payable by Licensee to any Secured Party, nor shall any such Pledge
determine the priority of any payments by Licensee. The loan agreement,
credit agreement, bond indenture or other similar agreement creating the
obligation of Licensee to pay the Secured Party (the "INDENTURE") shall
provide that, until such time as the Secured Party institutes an action to
foreclose the Pledge in accordance herewith or files (either voluntarily or
involuntarily) bankruptcy, revenues from operation of the Project shall be
used first to satisfy the obligations of Licensee hereunder to Licensor
before payment of any other obligation (including any obligation to the
Secured Party) of the Licensee.
(C) NOTICE OF BREACHES TO SECURED PARTIES. In the event Licensor
gives written notice to Licensee of a breach of its obligations under this
Agreement, Licensor shall forthwith furnish a copy of the notice to each
Secured Party that has been identified by written notice to Licensor by
Licensee. To facilitate the operation of this Section, Licensee shall at
all times keep Licensor provided with an up-to-date list of Secured
Parties.
(D) SECURED PARTY MAY CURE BREACH OF LICENSEE.
(i) In the event that Licensee receives notice from
Licensor of a breach by Licensee of any of its monetary obligations
under this Agreement, and such breach is not cured by Licensee
pursuant to the provisions of this Agreement, Licensor shall not
terminate this Agreement in connection with such default except as
provided in this Section 24(D) (but shall be entitled to avail itself
of all other remedies provided to Licensor hereunder), and Licensor
shall, in addition to the notice provided in Section 24(C) hereof,
give notice of the monetary failure to cure on the part of the
Licensee to the Secured Party at the expiration of the period within
which Licensee may cure as set forth in this Agreement. Then, the
Secured Party may proceed to cure any such failure within sixty (60)
days after receipt of the additional notice herein set forth. If the
Secured Party fails to cure such monetary default within such sixty
(60) day period, Licensor shall be entitled to exercise all rights and
remedies for such monetary default as provided herein (including, but
not limited to, the right to terminate this Agreement), without the
necessity to provide any further notice or cure period whatsoever.
(ii) In the event that Licensee receives notice from
Licensor of a non-monetary breach by Licensee of any of its
obligations under this Agreement, and such breach is not cured by
Licensee pursuant to the provisions of this Agreement, Licensor shall
not terminate this Lease in connection with such default except as
provided in this Section 24(D) (but shall be entitled to avail itself
of all other remedies provided to Licensor hereunder), and Licensor
shall, in addition to the notice provided in Section 24(C) hereof,
give notice of the failure to cure on the part of Licensee to the
Secured Party at the expiration of the period within which Licensee
may cure as set forth in this Agreement ("LICENSOR'S
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NOTICE"). Thereafter, the Secured Party may, by providing written
notice of its intention to cure any such non-monetary default to
Licensor within sixty (60) days after receipt of the Licensor's
Notice, proceed to cure any such non-monetary default. In the event
the Secured Party elects to proceed to cure such non-monetary default,
the Secured Party shall complete such cure within sixty (60) days
after the date of receipt of the Licensor's Notice; PROVIDED, HOWEVER,
if (1) the non-monetary default cannot reasonably be cured within such
sixty (60) day period, (2) the Secured Party materially commences cure
of such non-monetary default within such sixty (60) day period, and
(3) after commencing efforts to cure such non-monetary default,
diligently and in good faith pursues same to completion, then such
sixty (60) day period shall be extended to a reasonable amount of time
(not to exceed one hundred (100) total days from the Licensor's
Notice) to cure such non-monetary default; PROVIDED, FURTHER, if:
(a) the Secured Party shall have commenced to use and
thereafter diligently continues to use its commercially
reasonable efforts to cure such default, including, but not
limited to, by seeking appointment of a receiver, exercising
legal self-help rights, or obtaining access to the property by
other commercially reasonable means to cure such default, as a
result of the nature of such default, such default is not
reasonably susceptible of being cured without the Secured
Party obtaining possession of the Project by institution of a
foreclosure proceeding (any such default, a "POSSESSORY
DEFAULTS");
(b) unless it is enjoined or stayed, the Secured
Party takes steps to acquire or sell Licensee's interest in
the Project by foreclosure or other appropriate means and
diligently prosecutes the same to completion; and
(c) before the expiration of such sixty (60) day
period, the Secured Party provides notice of such Possessory
Default to Licensor, an explanation of the efforts undertaken
by the Secured Party to cure such default without first
instituting foreclosure proceedings and the reasons such
efforts failed;
then such sixty (60) day cure period shall be extended for
such reasonable amount of time (not to exceed eleven (11)
total months from the Licensor's Notice) to obtain possession
of the Project and cure such non-monetary default. If the
Secured Party fails to cure such non-monetary default within
such sixty (60) day period (as extended as permitted in the
previous sentence, if applicable), Licensor shall be entitled
to exercise all rights and remedies for such non-monetary
default as provided herein (including, but not limited to,
termination of this Agreement), without the necessity to
provide any further notice or cure period whatsoever. The
Secured Party shall not be required to continue such
foreclosure
68
proceeding after the default has been cured, and if the
default shall be cured and the Secured Party shall discontinue
such foreclosure proceedings, this Agreement shall continue in
full force and effect as if Licensee had timely cured the
default under this Agreement.
(iii) Except as expressly provided in Section 24(D)(ii) with
respect to extension of the cure periods, the commencement and/or
prosecution of foreclosure proceedings shall not be deemed to xxxxx,
toll, extend or otherwise modify the cure rights of the Secured Party
set forth in this Section 24(D).
(E) RIGHTS AND DUTIES OF SECURED PARTY. Unless and until such time
as a Secured Party shall have undertaken a foreclosure of its Pledge or
security interest pursuant to Section 24(F), Secured Party shall neither be
deemed to be Licensee hereunder nor be obliged to perform or observe any of
the covenants, terms or conditions of this Agreement on the part of
Licensee to be performed or observed, nor be in anyway obligated to
complete the improvements to be constructed in accordance with this
Agreement, nor shall it guarantee the completion of improvements as
hereinbefore required of Licensee, whether as a result of (i) its having
become a Secured Party or (ii) its performance of any of the covenants,
terms or conditions on the part of Licensee to be performed or observed
under this Agreement. Notwithstanding the foregoing, if a Secured Party
exercises its rights provided in Section 24(D)(ii) hereof, such Secured
Party shall be subject to the obligation of Licensee to indemnify Licensor
as set forth herein, but solely with respect to the activities undertaken
by such Secured Party in order to cure the non-monetary breach.
(F) FORECLOSURE. Provided each of the conditions set forth below
have been satisfied to the reasonable satisfaction of Licensor, any Secured
Party shall have the right and power to exercise its rights under a Pledge
and either obtain title to the Project or sell the same (in foreclosure or
by other means in lieu thereof) to a Purchaser (as hereinafter defined). In
the event that a Secured Party desires to effect a transfer of title to the
Project in foreclosure or by deed in lieu thereof, then upon satisfaction
of each of the following conditions, the Purchaser, shall become the
Licensee and be subject to this Agreement to the same extent as Licensee:
(i) all of Licensee's accrued monetary obligations to
Licensor shall have been satisfied and no uncured default of any such
obligations shall exist prior to commencement of foreclosure
proceedings and at all times from commencement of such foreclosure
proceedings until the transfer of the Project;
(ii) upon expiration of the applicable cure periods set
forth in Section 24(D) hereof, (a) all of Licensee's non-monetary
obligations to Licensor shall have been satisfied, and (b) no default
of any such obligations shall exist;
(iii) the Purchaser shall have entered into a written
assumption agreement (conditioned upon such Person succeeding to
Licensee's interest in this Agreement), in a form reasonably
satisfactory to Licensor, assuming and agreeing to discharge all of
Licensee's obligations under this Agreement as hereinafter provided;
69
(iv) in connection with its foreclosure of the Pledge, the
Secured Party shall simultaneously conclude its foreclosure of all or
substantially all (subject to Section 24(H)(ii) hereof) other
collateral securing the loan, including, but not limited to, its
interest under all mortgages of the Project, and any collateral
assignment of the Hard Rock Leases and the Memorabilia Lease;
(v) the Purchaser shall expressly assume the landlord's
obligations under the Hard Rock Leases and the lessee's obligations
under the Memorabilia Lease; and
(vi) the Secured Party shall reimburse Licensor for all of
its costs and expenses incurred in connection with the Pledge and the
foreclosure of the Pledge.
(G) RIGHT TO TERMINATE. In the event of a foreclosure and
subsequent sale or deed-in-lieu of foreclosure to the Secured Party or
another Person (the Person (including the Secured Party) so acquiring the
Licensee's interest in this Agreement being referred to herein as the
"Purchaser"), Licensor shall have the right to terminate this Agreement,
after providing written notice to the Purchaser, but not an opportunity to
cure, unless all of the following conditions are met:
(i) the Purchaser meets all of the following criteria (any
Purchaser meeting all of the following criteria shall be referred to
herein as an "Approved Purchaser"):
(a) the Purchaser has a net worth of at least ten
million dollars ($10,000,000.00);
(b) the Purchaser (and its constituent partners,
major shareholders (defined as holding at least ten percent
(10%) of the voting securities of the Purchaser), senior
executive officers and other controlling Persons, if
appropriate) has not been convicted of a felony, and no such
Person has been refused a gaming license (and not subsequently
revoked) or had a gaming license revoked (and not subsequently
restored) in any jurisdiction of the United States; and
(c) Neither the Purchaser nor any of its Affiliates
or any of their respective constituent partners, major
shareholders, senior executive officers and other controlling
Persons, if appropriate is an HRC Competitor; and
(ii) the Purchaser possesses management ability and
experience and a well-established reputation for quality management in
the hotel/gaming industry as determined by Licensor in its reasonable
discretion, or, within ninety (90) days after foreclosure of the
Pledge, has entered into a contract for the management of the Project
by a Person who possesses such ability, experience and reputation, in
accordance with the standards set forth in Section 5(Q) hereof, which
is reasonably acceptable to Licensor.
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(H) ADDITIONAL RIGHTS AND OBLIGATIONS.
(i) In the event that a Secured Party obtains title to the
Project, such Secured Party may transfer title to the Project and the
Licensee's interest in this Agreement solely in strict compliance with
the requirements of Section 16 hereof.
(ii) Notwithstanding any provision herein to the contrary,
at all times during the term of this Agreement, the Licensee, the
lessee under the Memorabilia Lease, the landlord under the Hard Rock
Leases and the owner of the Project shall at all times be the same
Person or an entity controlled by such Person.
(iii) Within five (5) business days after receipt of a
written request from the Secured Party, which request shall be
accompanied by documentation reasonably necessary to prove
qualification, Licensor shall provide written confirmation as to
whether a proposed Purchaser qualifies as an Approved Purchaser in
accordance with Section 24(G)(i).
(iv) For the avoidance of doubt, in the event a Secured
Party exercises its rights under Section 24(F) to foreclose any
Pledge:
(a) upon commencement of foreclosure proceedings by a
Secured Party, Licensee hereby releases Licensor of and from
any and all claims against Licensor and its officers,
directors, shareholder, and employees, in their corporate and
individual capacities, including, without limitation, claims
arising under federal, state, and local laws, rules, and
ordinances, arising from or related to this Agreement;
(b) Licensee shall remain liable for all of the
obligations to Licensor in connection with the Hotel/Casino
prior to the effective date of the transfer of its interest in
this Agreement; and
(c) Licensee shall remain obligated under the
covenants against competition of this Agreement.
(v) At all times following foreclosure of the Pledge,
Licensor shall have the approved, which approval shall not be
unreasonably withheld, any Management Company or management personnel
employed by the Approved Purchaser as provided in Section 7 of this
Agreement.
(vi) The Indenture shall contain a provision permitting the
appointment of a receiver in the event of a default under the
Indenture and such receiver shall be authorized to cure all defaults
of Licensee under this Agreement. The receiver shall be subject to the
approval of Licensor, which approval shall not be unreasonably
withheld, conditioned or delayed.
(vii) If Licensee requests that Licensor execute an
instrument consenting to a Pledge that is permitted under this Section
24, then Licensor shall execute and deliver such an instrument if it
is consistent with the terms of this
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Section 24, does not adversely affect Licensor's rights or obligations
under this Section 24 and is reasonably acceptable to Licensor.
(I) NEW AGREEMENT.
(i) In the event of an election by Licensee under Title 11
U.S.C. Section 365 (as amended or replaced) to reject or terminate
this Agreement (each such rejection or termination in bankruptcy being
referred to herein a "Rejection"), Licensor shall provide each Secured
Party that has been identified by written notice to Licensor by
Licensee with a statement of all sums which would at that time be due
under this Agreement but for such Rejection, and of all other
defaults, if any, then known to Licensor. Licensor agrees to enter
into a New Agreement ("NEW AGREEMENT") with such Secured Party or an
Approved Purchaser for the remainder of the term of this Agreement,
effective as of the date of Rejection and upon the terms, covenants
and conditions (including all options to extend the Term of this
Agreement, but excluding requirements which have already been
completely fulfilled) of this Agreement, provided:
(a) Such Secured Party or Approved Purchaser shall
make written request upon Licensor for such New Agreement
within thirty (30) days after later of (A) the date this
Agreement is Rejected, and (B) the date such Secured Party or
Approved Purchaser acquires the Project and Licensee's
interest in this Agreement, if any, by foreclosure, assignment
in lieu of foreclosure or other appropriate means; PROVIDED,
HOWEVER, THAT in any event such written request must be given
within 365 days after the earlier of (x) the Licensor's
Notice, and (y) the date upon which Licensee filed (either
voluntarily or involuntarily) bankruptcy.
(b) Such Secured Party or the Approved Purchaser, as
applicable, shall pay or cause to be paid to Licensor at the
time of the execution and delivery of such New Agreement (A)
any and all sums which would at the time of execution and
delivery thereof be due pursuant to this Agreement but for
such Rejection, (B) all reasonable expenses, including
reasonable attorney's fees, which Licensor shall have incurred
by reason of such Rejection and the execution and delivery of
the New Agreement and which have not otherwise been received
by Licensor from Licensee or other party in interest under
Licensee, and (C) a new territory fee in an amount equal to
$500,000.00, Adjusted for Inflation. In the event of a
controversy as to the amount to be paid to Licensor pursuant
to this subsection 24(I)(i)(b), the payment obligation shall
be satisfied if Licensor shall be paid the amount not in
controversy, and the Secured Party or the Approved Purchaser,
as the case may be, shall agree to pay any additional sum
ultimately determined to be due, plus interest at a rate per
annum equal to the Interest Rate and such obligation shall be
adequately secured.
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(c) Such Secured Party or the Approved Purchaser, as
the case may be, shall agree to remedy any of Licensee's
defaults of which said Secured Party was notified by
Licensor's Notice of Termination and which are reasonably
susceptible of being so cured (it being agreed upon by the
parties that all monetary defaults shall be deemed reasonably
susceptible of being so cured) by Secured Party or the
Approved Purchaser, as the case may be.
(d) The New Agreement is executed by the Secured
Party or the Approved Purchaser, as the case may be, within
ten (10) days after provision by such Person of the written
request for the New Agreement.
(e) Such Secured Party or Approved Purchaser
possesses management ability and experience and a
well-established reputation for quality management in the
hotel/gaming industry as determined by Licensor in its
reasonable discretion, or, not more than thirty (30) days
after execution of the New Agreement, has entered into a
contract for the management of the Project by a Person who
possesses such ability, experience and reputation, in
accordance with the standards set forth in Section 5(Q)
hereof, which is reasonably acceptable to Licensor
(ii) Subject to Section 24(D) hereof, at all times after an
Event of Default and prior to entry of such New Agreement with the
Secured Party or the Approved Purchaser, as the case may be, Licensor
shall have the right to exercise any rights or remedies that it may
have in connection with such default, including, but not limited to,
any right it may have to cause the use of Licensed Rights and Hard
Rock Marks at the Project to be discontinued.
SECTION 25. INITIAL SECURED PARTY RIGHTS
Licensor acknowledges that the initial financing of the project will be
provided by AA Capital Direct Investments Fund, L. P. ("AA CAPITAL") and that,
in order to secure such loan, AA Capital will obtain, INTER ALIA, a (i) mortgage
on the real property underlying the Project, (ii) a collateral assignment of the
Hard Rock Leases and (iii) a collateral pledge of the
License Agreement.
Notwithstanding any provision contained herein to the contrary, provided (x) the
License Agreement is pledged in accordance with the Collateral Assignment of
License Agreement attached hereto as EXHIBIT G and (y) Hard Rock STP and AA
Capital execute a Subordination, Non-Disturbance and Attornment Agreement with
respect to each of the Hard Rock Leases in the form attached to the respective
Hard Rock Lease, Hard Rock agrees to execute the Consent to Collateral
Assignment attached hereto as EXHIBIT H.
SECTION 26. LETTER OF CREDIT
(A) Licensee shall, not later than six (6) months prior to the
Hotel Opening Date, obtain an unconditional and irrevocable letter of
credit in favor of Licensor, in a form reasonably acceptable to Licensor,
issued by a bank or other financial lending institution having assets in
excess of Five Hundred Million Dollars ($500,000,000.00)
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and approved by Licensor, which approval shall not be unreasonably
withheld, for the benefit of Licensor (the "LETTER OF CREDIT"), and in an
amount equal to Three Million Dollars ($3,000,000.00), subject to increase
as provided herein (the "LETTER OF CREDIT AMOUNT"). The Letter of Credit
must provide that in the event of a default in any of Licensee's
obligations to Licensor under this Agreement or the Memorabilia Lease,
Licensor shall be entitled, in addition to all other remedies of Licensor
under this Agreement, to make immediate demand under the Letter of Credit
for payment in the amount of all sums then due and owing from Licensee to
Licensor, without having to give any additional notice to Licensee. The
Letter of Credit must further provide that in the event the Letter of
Credit is drawn upon or reduced during the remainder of the Term and, as a
result, the amount of the Letter of Credit is less than the Letter of
Credit Amount, Licensee shall immediately cause the amount of the Letter of
Credit to be restored to the Letter of Credit Amount.
(B) On or before thirty (30) days before the expiration date of
the Letter of Credit, Licensor must receive a replacement Letter of Credit
meeting all of the requirements described above (the "REPLACEMENT LETTER OF
CREDIT") from Licensee. If a Replacement Letter of Credit is not received
in the time period described above, Licensee shall automatically be in
default under this Agreement and Licensor shall be entitled to make
immediate demand under the Letter of Credit for the entire Letter of Credit
Amount, without having to give any additional notice to Licensee, which
amount shall be then be treated as a security deposit to secure the
payment, by Licensee, of its obligations under this Agreement and the
Memorabilia Lease (the "SECURITY DEPOSIT"). Licensee shall remain obligated
to obtain a Replacement Letter of Credit and Licensee shall remain in
default under this Agreement until such time as Licensee provides a
Replacement Letter of Credit to Licensor. In the event of a default in any
of Licensee's obligations to Licensor under this Agreement or the
Memorabilia Lease, Licensor shall be entitled, in addition to all other
remedies of Licensor under this Agreement or the Memorabilia Lease, as
applicable, to immediately deduct from the Security Deposit the amount of
all sums then due and owing from Licensee to Licensor, without having to
give any additional notice to Licensee. In the event the Security Deposit
is drawn upon or reduced during the remainder of this Agreement and, as a
result, the amount of the Security Deposit is less than the Letter of
Credit Amount, Licensee shall immediately cause the amount of the Security
Deposit to be restored to the Letter of Credit Amount. When Licensor
receives a Replacement Letter of Credit from Licensee, Licensor shall then
return the remaining amount of the Security Deposit to Licensee.
(C) At the expiration of the date which is two (2) years after the
Opening Date, if Licensee is not then in default under this Agreement or
the Memorabilia Lease and has paid all Fees then owed under this Agreement
and all amounts owed under the Memorabilia Lease, Licensor will release the
Letter of Credit.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, effective as of the date first set forth above.
[SIGNATURES ON FOLLOWING PAGE]
74
LICENSEE:
PREMIER ENTERTAINMENT, LLC
By: GAR, LLC, Managing Member
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Xxxxx X. Xxxxxxxx
By: /s/ Xxx Xxxxxxxx, III
--------------------------------
Xxx Xxxxxxxx, III
By: /s/ Xxxxx Xxxxx Xxxx
--------------------------------
Xxxxx Xxxxx Xxxx
75
LICENSOR:
HARD ROCK HOTEL LICENSING, INC.
By: /s/ Xxx X. Xxxxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxxxx
Its: Vice President & General
ACKNOWLEDGEMENT OF HARD ROCK STP
Hard Rock STP hereby acknowledges its obligation to execute the Ancillary
Agreements referenced in, and in accordance with, Section 4(P) hereof.
By: /s/ Xxx X. Xxxxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxxxx
Its: Vice President & General
76
EXHIBIT A
LICENSED MARKS
Set forth below are the Licensed Marks within the defined term "Licensed
Rights" that may be used in accordance with this Agreement.
1. HARD ROCK HOTEL, Registration No. 1,909,483 for hotel services.
2. HARD ROCK HOTEL and Design, Registration No. 2,029,859 for hotel
services, as attached hereto.
3. HARD ROCK LIVE
4. HARD ROCK LIVE and Design, as depicted on the following page.
5. HARD ROCK CASINO __________________________.
6. HARD ROCK HOTEL & CASINO BILOXI.*
The following word marks may also be used in association with the Licensed
Marks described above:
Love All, Serve All
Save the Planet
Take Time to Be Kind
All is One
No Nuclear Weapons or Drugs
* It is acknowledged and agreed by the parties hereto that the word xxxx
"HARD ROCK HOTEL & CASINO BILOXI" (the "Biloxi Word Xxxx") is not a registered
trademark or service xxxx of Licensor and, without limiting any other
representation or warranty of Licensor contained in this Agreement, that
Licensor makes no representations or warranties whatsoever with respect to the
Biloxi Word Xxxx. Licensee acknowledges and agrees that it is expressly
prohibited from using the Biloxi Word Xxxx superimposed over or encroaching in
any manner into any design feature consisting of the stylized words "HARD ROCK"
superimposed over a circle as depicted in, among other registrations, U.S. Reg.
No. 2,029,859, U.S. Reg. No. (the "Hard Rock Logo"). Licensee is further
prohibited from using the Biloxi Word Xxxx in conjunction with, combined with or
in association with any design/logo feature that is confusingly similar to or
reasonably likely to dilute the distinctiveness of the Hard Rock Logo.
A-1
EXHIBIT B
FORM OF CAFE LEASE AGREEMENT
B-1
EXHIBIT B-1
BUSINESS TERMS OF RETAIL STORE LEASE AGREEMENT
X-0
XXXXXXX X
X-0
XXXXXXX X
PROJECT CONCEPT PLAN
D-1
EXHIBIT E
DESCRIPTION OF PRE-APPROVED SITE
X-0
XXXXXXX X
XXX XX XXXXXXXXXXX XXXXXXXXX
F-1
EXHIBIT G
FORM OF COLLATERAL ASSIGNMENT OF LICENSE AGREEMENT
COLLATERAL ASSIGNMENT OF
HARD ROCK LICENSE AGREEMENTS
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which is
hereby acknowledged, PREMIER ENTERTAINMENT, LLC, a Mississippi limited liability
company ("BORROWER"), hereby collaterally assigns, transfers and conveys to AA
CAPITAL DIRECT INVESTMENTS FUND, L.P., a Delaware limited partnership
("LENDER"), all of Borrower's right, title and interest in and to each of the
agreements identified on SCHEDULE A attached hereto and made a part hereof (as
the same may be amended, modified or supplemented, as permitted, from time to
time, the "Contracts"), as security for the prompt and complete payment and
performance of the Liabilities (as defined in that certain Loan and Security
Agreement dated of even date herewith by and between Borrower and Lender, as
amended or modified from time to time (the "LOAN AGREEMENT")).
The Borrower hereby irrevocably constitutes and appoints Lender as its
attorney-in-fact to exercise solely during the continuance of an Event of
Default under the Loan Agreement (after the expiration of any applicable cure
periods, if any), the Borrower's rights and remedies under the Contracts, and to
perform any and all acts in the name of Borrower or in the name of Lender with
respect to the Contracts with the same force and effect as Borrower could
perform if this Collateral Assignment (this "Agreement") had not been made.
Borrower agrees to and shall indemnify Lender (and each of its officers,
managers, members, employees, assignees, participants, affiliates, attorneys,
and agents) upon demand against, and hold Lender (and each of its officers,
managers, members, employees, assignees, participants, affiliates, attorneys,
and agents) harmless from, any and all loss, cost, liability or expense
(including, without limitation, reasonable attorneys' fees) incurred in
connection with any such action, unless directly caused by the willful
misconduct or gross negligence of Lender or its officers or managers.
Borrower agrees that (i) Lender does not assume any of Borrower's
obligations, liabilities or duties under the Contracts, including, but not
limited to, any indemnification or other payment obligations (and Lender shall
not be liable or responsible for any of the foregoing) merely by the execution
and delivery of this Agreement, and (ii) no amendment, supplement or
modification to any of the Contracts shall be effective without Lender's prior
written consent, if such change would have a materially adverse effect on
Lender's or Borrower's rights thereunder.
Borrower hereby represents and warrants to Lender, which representations
and warranties shall survive the execution and delivery of this Agreement, that
(i) Borrower has provided Lender with true, correct and complete, fully-executed
copies of each of the Contracts on or prior to the date hereof, and (ii) no
assignment of the Contracts or any interest therein (collaterally or otherwise)
has been made, other than to Lender.
Notwithstanding anything to the contrary contained in this Agreement,
Lender shall not exercise its rights under this Agreement until the occurrence
and only during the continuance of
G-1
an Event of Default under and pursuant to the Loan Agreement (after the
expiration of any applicable cure period, if any). Upon the occurrence of any
such Event of Default, Lender may, at its option, exercise any or all of its
rights granted under this Agreement.
This Agreement shall terminate (other than for Borrower's indemnification
obligations set forth herein) upon the earlier of: (i) the indefeasible payment
in full of the Liabilities (as defined in the Loan Agreement); (ii) the
termination of the License Agreement (identified on SCHEDULE A attached hereto)
in accordance with its terms; and (iii) the opening of the Hotel/Casino
contemplated pursuant to such License Agreement.
The signatories hereto shall duly execute and deliver, and take all such
further acts, as are reasonably required by the Lender to more fully carry out
the intent of this Agreement. The parties agree that time is of the essence
regarding the subject matter of this Agreement.
This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which together
constitute one and the same instrument. Fax signatures hereto shall be deemed as
legally effective as a signed original.
This Agreement shall be binding upon and inure to the benefit of the
permitted assigns or successors in interest of Borrower and Lender. The parties
acknowledge and agree that the Lender contemplates assigning a portion of the
Liabilities (as defined in the Loan Agreement) and a portion of its rights,
benefits and powers under the Loan Agreement and the Financing Agreements (as
defined in the Loan Agreement) to a limited partnership or other entity to be
created after the date hereof that will be an affiliate of the Lender.
Accordingly, the term "Lender" as used in this Agreement shall automatically be
deemed to refer to the Lender and such assignee on and after the such
assignment.
This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Illinois, without regard to
conflicts of law or choice of law principles.
[Signature Pages Follow]
G-2
IN WITNESS WHEREOF, the parties hereto have caused this Collateral
Assignment of Hard Rock License Agreements to be duly executed this ___ day of
May, 2003.
BORROWER:
PREMIER ENTERTAINMENT, LLC
By: GAR, LLC, Managing Member
By:
--------------------------------
Xxxxx X. Xxxxxxxx
By:
--------------------------------
Xxx Xxxxxxxx, III
By:
--------------------------------
Xxxxx Xxxxx Xxxx
LENDER:
AA CAPITAL DIRECT INVESTMENTS FUND, L.P.
By: AA Capital Direct Investments Management, LLC
Its: General Partner
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
G-3
SCHEDULE A
TO
COLLATERAL ASSIGNMENT OF
HARD ROCK LICENSE AGREEMENTS
1. License Agreement dated as of May __, 2003 between the Borrower and Hard
Rock Hotel Licensing, Inc., a Florida corporation, as the same may be
amended or modified from time to time.
2. Memorabilia Lease dated as of _____________ between the Borrower and Hard
Rock Cafe International (STP), Inc., a New York corporation, as the same
may be amended or modified from time to time.
G-4
EXHIBIT H
FORM OF CONSENT TO COLLATERAL ASSIGNMENT
OF LICENSE AGREEMENT
CONSENT TO
COLLATERAL ASSIGNMENT OF
HARD ROCK LICENSE AGREEMENTS
FOR VALUABLE CONSIDERATION, the receipt and adequacy of which is hereby
acknowledged, Hard Rock Hotel Licensing, Inc. and Hard Rock Cafe International
(STP), Inc. (collectively, the "LICENSORS") hereby consent to the collateral
assignment and transfer made by Premier Entertainment, LLC, a Mississippi
limited liability company ("BORROWER"), to AA Capital Direct Investments Fund,
L.P., a Delaware limited partnership ("LENDER"), of all of Borrower's right,
title and interest in and to each of the agreements identified on SCHEDULE A
attached hereto and made a part hereof (as the same may be amended, modified or
supplemented, as permitted, from time to time, the "CONTRACTS"), as security for
the prompt and complete payment and performance of the Liabilities (as defined
in that certain Loan and Security Agreement dated of even date herewith by and
between Borrower and Lender, as amended or modified from time to time (the "LOAN
AGREEMENT")), pursuant to that certain Collateral Assignment of Hard Rock
License Agreements dated as of May __, 2003 between Borrower and Lender (the
"COLLATERAL ASSIGNMENT").
The Licensors agree that Lender does not assume any of Borrower's
obligations, liabilities or duties under the Contracts, including, but not
limited to, any indemnification or other payment obligations (and Lender shall
not be liable or responsible for any of the foregoing) merely by the execution
and delivery of this Consent to Collateral Assignment of Hard Rock License
Agreements (this "Agreement").
The Licensors acknowledge that no assignment of the Contracts or any
interest therein (collaterally or otherwise) has been made, other than to
Lender.
Nothing contained herein or in the Collateral Assignment shall be construed
so as to affect the rights of the Licensors, or either of them, to pursue any
claims or to assert any rights or defense which they may have involving any of
the Contracts.
Notwithstanding anything to the contrary contained in the Collateral
Assignment or this Agreement, Lender shall not exercise its rights under this
Agreement or the Collateral Assignment until the occurrence and only during the
continuance of an Event of Default under and pursuant to the Loan Agreement
(after the expiration of any applicable cure period, if any). Upon the
occurrence of any such Event of Default, Lender may, at its option upon prior
written notice to the Licensors, and subject to the Licensors' rights under the
Contracts, exercise any or all of Lender's rights granted under the Collateral
Assignment and this Agreement, provided the Lender (i) cures any default of
Borrower then existing and identified in writing by the Licensors under the
Contracts; (ii) assumes all of the Borrower's obligations under the Contracts
and forecloses on all applicable collateral within a substantially similar time
period; and (iii) exercises its rights under both Contracts. The Licensors shall
provide the Lender with prompt
H-1
written notice describing in reasonable detail any and all amendments or
modifications to the Contracts.
Neither the Collateral Assignment nor this Agreement shall cause, result in
or in any way be deemed a subordination of Licensors' rights under the Contracts
to the rights of the Lender. Without limiting the foregoing, the fees and
rentals payable to Licensor under the Contracts shall not be subordinate to any
amounts payable by Borrower to Lender, nor shall this Agreement or the
Collateral Assignment determine the priority of any payments by Borrower.
The terms and conditions of Section 24(G) of the License Agreement, titled,
"Right to Terminate", are incorporated herein by this reference as if set forth
in the text of this document; provided, however, the term "Secured Party" as
used in the License Agreement shall be replaced with the term "Lender" and the
term "Licensor" as used in the License Agreement shall be replace with
"Licensors".
Lender shall not amend or modify the Collateral Assignment without the
prior written consent of Licensors, which consent may be withheld in Licensors'
sole discretion.
Notwithstanding any provision herein to the contrary, at all times during
the term of this Agreement, the licensee under the License Agreement, the lessee
under the Memorabilia Lease, the landlord under the Hard Rock Leases and the
owner of the Project shall at all times be the same Person or an entity
controlled by such Person (such capitalized terms being defined in the License
Agreement).
This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which together
constitute one and the same instrument. Fax signatures hereto shall be deemed as
legally effective as a signed original. The parties agree that time is of the
essence regarding the subject matter of this Agreement. Any notice(s) to be
provided herein shall be sent pursuant to the terms of the Notice Section in the
License Agreement identified on SCHEDULE A attached hereto.
This Agreement shall be binding upon and inure to the benefit of the
permitted assigns or successors in interest of Lender and each Licensor. The
parties acknowledge and agree that the Lender contemplates assigning a portion
of the Liabilities (as defined in the Loan Agreement) and a portion of its
rights, benefits and powers under the Loan Agreement and the Financing
Agreements (as defined in the Loan Agreement) to a limited partnership to be
created after the date hereof, the general partner of which will be the same
person as the general partner of AA Capital Direct Investments Fund, LLC.
Accordingly, the term "Lender" as used in this Agreement shall automatically be
deemed to refer to the Lender and such assignee on and after the such
assignment; provided, however, the Lender shall not be permitted to assign its
rights hereunder or under the Collateral Assignment to any other person or
entity without the prior written consent of the Licensors, which consent may be
withheld in Licensor's sole discretion.
This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of
Nevada, without regard to
conflicts of law or choice of law principles.
[signatures on following page]
H-2
IN WITNESS WHEREOF, the parties hereto have caused this Consent to
Collateral Assignment of Hard Rock License Agreements to be duly executed this
___ day of May, 2003.
LENDER:
AA CAPITAL DIRECT INVESTMENTS FUND, L.P.
By: AA Capital Direct Investments Management, LLC
Its: General Partner
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
LICENSORS:
HARD ROCK HOTEL LICENSING, INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
HARD ROCK CAFE INTERNATIONAL (STP), INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
H-3
SCHEDULE A
TO
COLLATERAL ASSIGNMENT OF
HARD ROCK LICENSE AGREEMENTS
1. License Agreement dated as of May __, 2003 between the Borrower and Hard
Rock Hotel Licensing, Inc., a Florida corporation, as the same may be
amended or modified from time to time.
2. Memorabilia Lease to be entered by and between the Borrower and Hard Rock
Cafe International (STP), Inc., a New York corporation, as the same may be
amended or modified from time to time.
H-4
