EXHIBIT 10.2
[CONFORMED AS EXECUTED]
PLANET HOLLYWOOD HOTEL & CASINO
LICENSING AGREEMENT
THIS HOTEL & CASINO LICENSING AGREEMENT ("Agreement") dated as of May 3, 2003
(hereinafter referred to as the "Effective Date") by and among Planet Hollywood
International, Inc., a corporation duly organized and existing under the laws of
the State of Delaware, having its principal office and place of business at 8663
Commodity Circle, Orlando, Florida 32819, and Planet Hollywood (Region IV),
Inc., a corporation duly organized and existing under the laws of the State of
Minnesota, having its principal office and place of business at 8663 Commodity
Circle, Orlando, Florida 32819 (hereinafter collectively referred to as "PHII"),
Planet Hollywood Memorabilia, Inc. (hereinafter referred to as "PHMemo"), a
wholly owned subsidiary of PHII duly organized and existing under the laws of
the State of Florida, having its principal office and place of business at 8663
Commodity Circle, Orlando, Florida 32819 and OpBiz, L.L.C., a Nevada limited
liability company (hereinafter referred to as "HOTEL JV") having its principal
office and place of business at 885 Third Avenue, 34th Floor, New York, New York
10022.
PREAMBLE
A. PHII owns the "Planet Hollywood" trademarks, design marks, trade
name, Trade Dress (defined below) and service marks (hereinafter collectively
referred to as "THE MARKS" and the domain names that incorporate part or all of
any of THE MARKS (hereinafter referred to as the "DOMAIN NAMES"), as set forth
on EXHIBIT A attached hereto and incorporated herein and which may be updated
and revised from time to time subject to the provisions of this Agreement;
B. PHMemo owns or otherwise has a valid possessory right in an
extensive collection of sports, motion picture and Hollywood memorabilia;
C. HOTEL JV has entered into a Purchase and Sale Agreement, dated as of
April 23, 2003 with Aladdin Gaming, LLC ("Gaming"), debtor and debtor-in
posession under Title 11 of the Bankruptcy Reform Act of 1978, as amended, 11
U.S.C. Section 101 et seq. (the "Bankruptcy Code"), in proceedings (the
"Bankruptcy Proceedings") before the United States Bankruptcy Court for the
District of Nevada, Southern Division (the "Bankruptcy Court") pursuant to which
HOTEL JV has agreed to purchase from Gaming a complex (the "Complex") consisting
of a 2,567 room hotel, a casino, conference and banquette facilities, food and
beverage operations and retail space (hereinafter referred to as the "Planet
Hollywood Hotel") and a 6,700 seat theater (hereinafter referred to as the
"Theatre for the Performing Arts") all located at 3667 Las Vegas Boulevard
South, Las Vegas, Nevada and currently known as the "Aladdin Hotel & Casino";
D. HOTEL JV and BNY Asset Solutions, LLC (the "Agent") and various
lenders party thereto (collectively, the "Lenders"), have negotiated and intend
to enter into an Amended and
Restated Loan and Facilities Agreement (the "Loan Agreement") (it being
understood and agreed that references to a section or provision of the Loan
Agreement shall be references to whatever section or provision of the Loan
Agreement that corresponds to the referenced section or provision in the last
draft of the Loan Agreement that was provided to HOTEL JV , PHII and PHMemo and
their respective counsel by the Lenders and their counsel prior to the execution
and delivery of this Agreement by HOTEL JV, PHII and PHMemo), pursuant to which
HOTEL JV has agreed to borrow (on the terms and conditions set forth in the Loan
Agreement) $510 million (the "Loan") in connection with HOTEL JV's acquisition
of the Complex;
E. In the event that the transactions contemplated by the Purchase
Agreement , the Loan Agreement and certain related documents and agreements are
completed, HOTEL JV intends to renovate and re-theme the Aladdin Hotel & Casino
as the "Planet Hollywood Hotel and Casino" which will include a Planet Hollywood
Restaurant and may included one or more Planet Hollywood Retail Shops (as both
of those terms are defined in Section 1.6 below) and to rename the Theatre for
the Performing Arts as HOTEL JV shall determine.
F. HOTEL JV is an indirect, wholly-owned subsidiary of EquityCo,
L.L.C., a Nevada limited liability company formed by affiliates of Robert Earl,
Bay Harbour Management, L.C. and Starwood Hotels & Resorts Worldwide, Inc.
("Starwood") established pursuant to an Amended and Restated Operating
Agreement, dated as of April 22,2003 (the "Operating Agreement") setting forth
the rules and regulations for the operations of HOTEL JV;
G. HOTEL JV desires to use THE MARKS and the DOMAIN NAMES to identify,
promote, manage and operate the Complex and certain services to be rendered and
the products to be sold thereat including, without limitation, the Planet
Hollywood Restaurant;
H. PHII desires to grant a license to HOTEL JV to use THE MARKS and the
DOMAIN NAMES and to provide certain marketing and promotional services to HOTEL
JV to identify and promote the Complex and, in connection therewith, to provide
certain services to be rendered and certain products to be sold thereat, all
such grants being subject to the terms and conditions contained in this
Agreement; and
I. HOTEL JV desires to license a portion of PHMemo's collection of
memorabilia which shall be established by mutual agreement of the parties hereto
and attached to and incorporated in this Agreement as EXHIBIT B and which shall
be updated and revised from time to time subject to the provisions of this
Agreement (hereinafter referred to as "THE MEMO") to display and exhibit THE
MEMO in the Complex and PHII and PHMemo desire to grant a license to HOTEL JV to
use THE MEMO in order to display and exhibit THE MEMO in the Complex subject to
the terms and conditions contained in this Agreement.
NOW, THEREFORE, for good and valuable consideration, and for and in
consideration of the mutual promises, covenants and undertakings herein set
forth, PHII, PHMemo and
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HOTEL JV agree as follows:
1. LICENSE
1.1. Subject to the provisions of this Agreement, PHII hereby
grants to HOTEL JV a non-exclusive, irrevocable license to use and sub-license
the use of THE MARKS and the DOMAIN NAMES in connection with the identification,
management, operation, advertising and promotion of the Complex, including
sub-licensing rights described in Sections 1.2 and 1.3 below, the services
rendered thereat and the products provided, offered and distributed and/or sold
to guests and other customers of the Complex, and for no other business or
non-business purposes whatsoever and no other goods or services whatsoever and
solely in accordance with the Limitations of Use as set forth in Section 4, the
Standard of Quality as set forth in Section 6 and including only the following
licensed rights (hereinafter referred to as (the "Licensed Rights")"):
(a) Use of THE MARKS as a trade name for the Complex and for
business related to the Complex and the identification, management, operation,
advertising and promotion thereof;
(b) Use of THE MARKS in connection with the identification,
management, operation, advertising and promotion of the Complex including,
without limitation, the casino and/or all gaming and betting, the rental of
guest, conference and banquet rooms at the Complex, the sale of food and
beverages provided by the Complex (including the Planet Hollywood Restaurant and
Planet Hollywood Retail Shop(s) as outlined in detail in Section 1.6 below), and
any and all other services provided by the Complex (hereinafter referred to as
"Licensed Services");
(c) Use of THE MARKS on those goods distributed and/or provided by
HOTEL JV on a complimentary basis or otherwise provided in the ordinary course
without charge in the operation of the Complex, such as articles of clothing
and/or goods including but not limited to stationery, toiletries such as
shampoo, soap, shaving creme, and towels as typically provided for and used by
guests, employees and management of the Complex, including but not limited to
goods located or used in guest rooms, conference rooms, banquet rooms, casinos
and public areas whether such products are provided to guests on a complimentary
basis or otherwise (hereinafter collectively referred to as "Licensed
Complimentary Products") and the advertising and promotion thereof. The Licensed
Complimentary Products bearing THE MARKS distributed and/or provided by HOTEL JV
throughout the Complex may, at the election of Hotel JV, be (i) procured from
and provided by PHII and its respective affiliates to HOTEL JV for distribution
in accordance with the Standard of Quality set forth in Section 6 herein; or
(ii) be produced and procured from any third party, provided such production and
procurement is in accordance with the Standard of Quality set forth in Section 6
herein and the other applicable terms and conditions of this Agreement.
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(d) Use of THE MARKS in connection with the advertising and
promotion of the offering for sale of goods and the sale of goods within or in
connection with the Complex, including but not limited to souvenir casino chips,
casino paraphernalia and souvenirs; articles of clothing, such as T-shirts,
sweatshirts, jackets, caps and robes; any and all merchandise of personal
adornment, such as jewelry, pins and sunglasses, as well as any and all
souvenirs, novelties and toys, as provided to HOTEL JV by PHII and/or PHII and
their respective affiliates (hereinafter referred to as "Provided Goods"). HOTEL
JV agrees and acknowledges that, to the extent such Provided Goods bearing THE
MARKS constitute either (i) articles of clothing, or (ii) items as are typically
sold at other Planet Hollywood restaurant and/or retail outlets, said Provided
Goods bearing THE MARKS offered for sale and/or sold throughout the Complex
shall in each instance be procured from PHII for PHII or its respective
affiliates to fulfill HOTEL JV's requirements for Provided Goods; provided, that
PHII or its affiliates shall (i) promptly provide such Provided Goods to HOTEL
JV in accordance with the Standard of Quality set forth in Section 6 below, and
(ii) offer such Provided Goods at terms and conditions equal to or better than
any bona fide offer from a third party provider of similar products. In the
event that PHII or its affiliates shall be unable to promptly provide such
Provided Goods in accordance with the terms and conditions of this Section
1.1(d), HOTEL JV shall have the right to procure such particular Provided Goods
from third party providers; it being the express intent of the parties hereto
that, to the extent that such Provided Goods bearing THE MARKS constitute either
(i) articles of clothing, or (ii) items as are typically sold at other Planet
Hollywood restaurant and/or retail outlets and PHII or its affiliates shall be
able to promptly provide any Provided Goods to HOTEL JV on a commercially
competitive basis, HOTEL JV shall purchase such Provided Goods from PHII or its
affiliates. To the extent (x) any particular Provided Good does not constitute
either (i) articles of clothing, or (ii) items as are typically sold at other
Planet Hollywood restaurant and/or retail outlets or (y) PHII cannot or does not
promptly supply the Provided Goods as and when required by HOTEL JV on a
commercially competitive basis, HOTEL JV may procure such Provided Goods from
third parties, provided such production and procurement is in accordance with
the Standard of Quality set forth in Section 6 herein and the other applicable
terms and conditions of this Agreement.
(e) Use of any and all copyrights in and to the Planet Hollywood
design marks as set forth in EXHIBIT A as well as the use of any and all
copyrights in and to the artwork, printed matter, menus, signage, videos, music
jingles and other copyrightable materials owned by PHII and/or PHMemo for HOTEL
JV's use in the advertising, promotion, management and operation of the Complex.
PHII hereby consents to any reproduction of the Planet Hollywood design marks by
HOTEL JV for the purposes of advertising and promoting the Complex and the
business related thereto and for any other purpose contemplated in this
Agreement subject to the terms and conditions of this Agreement.
1.2. Subject to the provisions of this Agreement, HOTEL JV shall
have the right to grant to Starwood or one or more of Starwood's affiliates or
subsidiaries as appropriate or necessary (or any other entity selected by HOTEL
JV and approved by Lender under the Loan
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Agreement) (hereinafter referred to as "STARWOOD") a nontransferable, revocable
sub-license to use THE MARKS and the DOMAIN NAMES in connection with the
identification, joint management, operation, advertising and promotion of the
Complex and the Time Share Premises (as defined in the Loan Agreement) and for
no other business or non-business purposes whatsoever and in accordance with
Section 7, which sublicense shall be in a form and content reasonably acceptable
to PHII, HOTEL JV, STARWOOOD and Lenders.
1.3. Subject to the provisions of this Agreement, HOTEL JV shall
have the right to grant to the "Manager" (as such term is defined in the Loan
Agreement) (and any successor Manager approved by the Lenders under the Loan
Agreement) a nontransferable, revocable sub-license to use THE MARKS and the
DOMAIN NAMES in connection with the identification, management, operation,
advertising and promotion of the Planet Hollywood Hotel and for no other
business or non-business purposes whatsoever and in accordance with Section 7,
which sublicense shall be in a form and content reasonably acceptable to PHII,
HOTEL JV, such Manager and Lenders.
1.4. (a) Subject to Sections 1.1 and 3.8 of this
Agreement PHII grants to HOTEL JV the right, but not the obligation, to use the
THE MARKS and the DOMAIN NAMES in connection with the development, operation and
maintenance of a "Planet Hollywood Hotel and Casino" website on the Internet,
including but not limited to the World Wide Web, as developed and maintained by
HOTEL JV in its sole discretion; provided, however, the rights conferred
pursuant to this Section 1.4(a) specifically exclude any and all rights to
conduct "online gaming" or other games of lottery or chance on the Internet,
including but not limited to the World Wide Web, whether for a fee or free of
charge, but specifically excepting promotional sweepstakes or contests where no
purchase or payment of any kind is required to participate (collectively,
"Online Gaming"), with any and all such Online Gaming rights being specifically
retained by PHII.
(b) Notwithstanding the foregoing, the rights granted
pursuant to Section 1. 4(a) are conditioned upon HOTEL JV developing the "Planet
Hollywood Hotel and Casino" website so that it has reciprocal cross links and
has, from an end-user perspective, a "seamless reciprocal integration" with
PHII's and HOTEL JV's existing or future website(s) to the extent that such
reciprocal cross links are permitted by applicable law and regulation including,
without limitation, any rules and regulations imposed by Nevada Gaming
regulatory agencies. For purposes of this Section 1.4(b), the phrase "seamless
integration" shall mean that any end user shall have the ability to access
PHII's or HOTEL JV's, as applicable, existing or future website(s) by performing
no greater than two "clicks" on the Hotel JV or PHII, as applicable website and
such other integrations as are mutually agreed by the parties hereto.
1.5 Subject to the terms and conditions of this Agreement, PHMemo
hereby grants to HOTEL JV an irrevocable license and the right to use THE MEMO
for displaying and exhibiting THE MEMO for the full term of this Agreement in
the Complex and for no other purposes and subject to the Limitations of Use as
set forth in Section 5.
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1.6 Subject to the express provisions of Section 2.3 herein and
the other terms and conditions of this Agreement, HOTEL JV shall have the rights
to operate the Planet Hollywood Restaurant and/or one or more Planet Hollywood
Retail Shop(s) within the Planet Hollywood Hotel to sell Planet Hollywood food,
beverage and retail products in connection with THE MARKS, either within the
Planet Hollywood Hotel or on a catered basis.
2. LICENSE FEE
2.1. Commencing upon the occurrence of each of the completion of
the rebranding and the grand reopening of the Complex as a Planet Hollywood
using THE MARKS (the "Grand Reopening"), as consideration for the use of THE
MARKS, the DOMAIN NAMES, THE MEMO and the other contributions of PHII and PHMemo
hereunder, HOTEL JV shall pay PHII an amount (the "Continuing Fee") equal to one
and 75/100 percent (1.75%) of HOTEL JV's Non-Casino Gross Receipts (as such term
is defined in Section 2.2 below) without set-off or deduction therefrom at
PHII's principal place of business in Orlando, Florida (unless otherwise agreed
by PHII). The Continuing Fee shall be paid quarterly in arrears and shall be due
and payable quarterly to PHII on the first day of each such quarter.
Notwithstanding the foregoing, if prior to the Grand Reopening, HOTEL JV opens
an attraction with paid admission using THE MEMO or THE MARKS, HOTEL JV shall
pay to PHII a Continuing Fee (payable quarterly as set forth above) based solely
on the Gross Receipts of such attraction (and excluding all other "Non-Casino
Gross Receipts"(defined below)) until the Grand Reopening.
2.2. For purposes of this Agreement "Non-Casino Gross Receipts"
shall mean the gross proceeds from sales of any and all items sold on or from
the Complex in the ordinary course of business and shall include and not be
limited to the following:
(a) All cash and cash equivalents and credit
transactions, and the full value of any and all "complimentaries" extended to
customers (excluding the value of complimentary alcoholic and non-alcoholic
beverages), of whatever nature carried out during a calendar quarter in question
in connection with the Complex, and wherever a credit or service card is used by
a customer, the amount for purposes of calculating Gross Receipts shall be the
price charged to the customer and no deduction therefrom shall be permitted;
(b) The price of all goods sold and delivered and any
services performed during such calendar quarter in connection with the Complex
(including the value of any goods or services delivered to affiliates or
employees of HOTEL JV, Manager or any other parties for prices less than those
charged to third parties(subject to Section 2.2(d));
(c) For the avoidance of doubt, it is agreed by the
parties hereto that, except as otherwise expressly excluded below, any and all
revenues of any kind or nature arising, directly or indirectly, out of the
operation of the Complex, including, without limitation, the rental of
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guest rooms, conference rooms and banquet rooms, the sale of any and all retail
products, the sale of food, beverage and alcohol from the premises and catering,
receipts from entertainment events held in connection with the Complex, royalty
and licensing revenue, subleasing and sublicensing revenue (subject to Section
2.2(c)(ii) below) and any other sources of revenue, of whatever kind or nature,
generated by the Complex by HOTEL JV, whether physically generated at the
Complex or otherwise shall be included in the definition of Non-Casino Gross
Receipts and shall be included in calculating the Continuing Fee payable to
PHII.
(d) Non-Casino Gross Receipts shall expressly exclude:
(i) Those revenues arising directly and solely
from conducting casino gambling operations
in the Complex; provided, however, other
sources of revenue generated in connection
with casino gambling operations shall be
included. By way of example and not of
limitation, a $1.00 chip placed in a slot
machine by a customer on the Planet
Hollywood Hotel casino floor shall not be
included in Non-Casino Gross Receipts;
however, any sale by the HOTEL JV in the
casino of food, beverage (including
alcoholic beverages), retail products or
other expenditures made by said customer
other than gambling shall be included in
calculating Non-Casino Gross Receipts. For
purposes of this Section 2.2(d)(i), the
purchase by the customer of any branded
gaming product, by way of example and not of
limitation, branded casino chips which are
not utilized in gambling activities (as
evidenced by the "breakage" in such branded
items) shall be considered a sale of retail
products and shall not be excluded from the
definition of Non-Casino Gross Receipts;
(ii) Those revenues arising directly from third
party operator retail and restaurant
operators, tenants, licensees or concessions
in the Complex where such operations are not
branded with or otherwise utilize THE MARKS
or otherwise incorporate or utilize the PHII
Intellectual Property ("Third Party
Operations") shall not be included in
Non-Casino Gross Receipts; provided,
however, any and all revenues received by
HOTEL JV arising from such Third Party
Operations shall not be excluded from the
definition of Non-Casino Gross Receipts.
(iii) Applicable excise, sales, occupancy and use
taxes, or similar government taxes, duties,
levies or charges collected directly from
patrons or guests, or taxes as a part of the
sales price of any goods, services, or
displays, including gross receipts,
admissions, cabaret or similar or equivalent
taxes;
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(iv) Tips or their equivalent;
(v) Discounts of contracts and early payment
discounts to the extent that such discounts
are actually provided;
(vi) Employee meals to the extent that such meals
are provided at HOTEL JV's actual cost;
(vii) Any customer refunds, returns or allowances
arising from credits, rebates and discounts
of any nature, including returned product or
defective products or services or the like,
provided, however, that such refunds or
allowances shall not exceed the original
price charged by HOTEL JV therefor and shall
only be deducted from Non-Casino Gross
Receipts in the week in which they are paid
or allowed to the customer;
(viii) Those revenues arising directly and solely
from the operation of a Planet Hollywood
Restaurant (defined below) as such revenues
are to be utilized in calculating the
royalty revenue set forth in Section 2.3
below;
(ix) any duplicate counting of income in any
event;
(x) any time share profits or proceeds;
(xi) credit card processing or service fees
actually paid;
(xii) receipts from he financing, sale or other
disposition of capital assets, furniture,
fixtures and equipment and other items not
in the ordinary course of HOTEL JV's
operations and income derived from
securities and other property acquired and
held for investments;
(xiii) receipts from awards or sales in connection
with any Taking (as such term is defined in
the Loan Agreement), from other transfers in
lieu of and under the threat of any Taking,
and other receipts in connection with any
Taking, but only to the extent that such
amounts are specifically identified as
compensation for alterations or physical
damage to the Complex;
(xiv) proceeds of any insurance (excluding
business interruption; provided that such
insurance shall be included in Non-Casino
Gross Receipts proportionally to the period
covered by such insurance);
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(xv) revenues generated by parking;
(xvi) security deposits;
(xvii) any contributions by HOTEL JV of any
additional working capital, and any
contributions to any reserve fund (and any
interest earned thereon);
(xviii) any refund of taxes that were overpaid in a
prior year;
(xix) any reversal of any contingency or tax
reserve;
(xx) any proceeds form the settlement or
successful prosecution of any legal claim
(other than for payment of insurance claims
included as Non-Casino Gross Receipts
pursuant to clause (xiv) above);
(xxi) any cash on hand, accounts receivable or
closing adjustments received by HOTEL JV in
connection with HOTEL JV's acquisition of
the Complex and any sums received from any
source by HOTEL JV after HOTEL JV's
acquisition of the Complex that are either
payable to the prior owner of the Complex or
received or retained by HOTEL JV to
reimburse itself for claims, payable to
creditors of the prior owner of the Complex
in accordance with the Purchase Agreement or
closing adjustments incurred in connection
with such acquisition; and
(xxii) payments of principal and interest received
pursuant to that certain Subordinated
Non-Negotiable Promissory Note dated as of
November 20, 2000 by Aladdin Bazaar, LLC in
favor of Aladdin Gaming, LLC and
subsequently endorsed by the payee to HOTEL
JV, as such promissory note may have been or
may hereafter be amended, restated,
extended, replaced or refinanced.
2.3. HOTEL JV shall have the right to construct and operate a
"Planet Hollywood" branded restaurant within the Planet Hollywood Hotel to sell
Planet Hollywood food, beverage and retail products, either within the Planet
Hollywood Hotel or on a catered basis (the "Planet Hollywood Restaurant") and
shall have the right, but not the obligation, to operate one or more branded
Planet Hollywood retail outlets (a "Planet Hollywood Retail Shop"); provided,
however, the rights to the Planet Hollywood Restaurant and any Planet Hollywood
Retail Shops shall be granted pursuant to and subject to the parties hereto
entering into a franchise agreement substantially similar to the Restaurant
License Agreement in a form and substance mutually agreed by the parties hereto,
such Restaurant License Agreement to be attached hereto as EXHIBIT
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C and incorporated herein; provided further, that the royalty payable by HOTEL
JV to PHII on Gross Sales (as such term is defined in the Restaurant License
Agreement) arising from the Planet Hollywood Restaurant and any Planet Hollywood
Retail Shops shall be five percent (5%) on Gross Sales (as such term is defined
in the Restaurant License Franchise Agreement) of food and beverage and ten
percent (10%) on Gross Sales of merchandise (collectively "Retail Royalties").
The Retail Royalties shall be paid quarterly in arrears and shall be due and
payable quarterly to PHII simultaneously with the payment of the Continuing Fee.
Notwithstanding the foregoing, during the first year of operation of the Planet
Hollywood Restaurant, the payment of Retail Royalties attributable to the Planet
Hollywood Restaurant shall be payable to PHII solely to the extent that, after
such payment, the Planet Hollywood Restaurant shall have positive cash flow.
There shall be no Initial Fee (as such term is defined in the Site Franchise
Agreement) for the granting of the franchise as set forth in this Section 2.3.
The parties agree that, to the extent any ancillary items conflict with the
rights of any Third Party Operations, such ancillary items will not be available
in the Planet Hollywood Restaurant or Planet Hollywood Retail Shops (by way of
example and not of limitation, if a Third Party Operation has the exclusive
right to sell leather coats and jackets within the Complex, the Planet Hollywood
Restaurant shall not sell branded leather coats and jackets).
PHII covenants that PHII shall close or otherwise rebrand to eliminate all use
of THE MARKS in connection with its existing Planet Hollywood restaurant located
at 3500 South Las Vegas Blvd, No G-25 89109 in Las Vegas, Nevada by the sooner
to occur of (a) the date by which HOTEL JV is required to complete the
renovations capital expenditures under the Loan or (b) the Grand Reopening.
3. RESERVATION OF RIGHTS
3.1. During the term hereof, PHII shall not license or
otherwise allow the use or operation of THE MARKS in connection with the
operation of a hotel, casino restaurant or retail shops at any location within
Clark County, Nevada; provided, however, this restriction shall not apply to
restaurants if (a) HOTEL JV advises PHII in writing (and obtains the advance
written consent of the Lenders to such writing in Lender's sole discretion) that
HOTEL JV will not open a Planet Hollywood Restaurant in the Complex or (b) if
Lenders terminate the Restaurant License in accordance with the License
Subordination and Cooperation Agreement of even date herewith (the
"Subordination Agreement"); provided further, this restriction shall not apply
to Planet Hollywood retail shops if (u) HOTEL JV advises PHII in writing (and
obtains the advance written consent of the Lenders to such writing in Lender's
sole discretion) that HOTEL JV will not open a retail shop in the Complex or (v)
if Lenders, in accordance with the terms and conditions of the Subordination
Agreement terminate the Restaurant License and all Planet Hollywood retail
shop(s) within the Complex. In addition, from the Effective Date until the
sooner to occur of (y) one (1) year following the Grand Reopening or (z) a
termination of this Agreement pursuant to Sections 12.1(iii) or by Lenders under
the Subordination Agreement, other than the Complex PHII shall
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not license or otherwise allow the use or operation of THE MARKS in connection
with a hotel with a gaming casino within the State of Nevada or within the
southern portion of the State of California as identified by that portion of
California that lies south of a line of latitude drawn horizontally from the
northernmost point in the County of Ventura other than the Complex.
Notwithstanding the foregoing, so long as the Loan is outstanding and this
Agreement has not been terminated by the Lenders under the Subordination
Agreement, none of Robert Earl, PHII, PHMemo or Hotel JV (or the holder of any
equity interest in HOTEL JV) (except Sheraton in the ordinary course of its
business and subject to the provisions of Section 2.16.2 of the Management
Agreement, in each case other than in connection with THE MARKS) shall be
directly or indirectly involved in the ownership, operation or management of any
Planet Hollywood branded hotel with a gaming casino other than the Complex;
provided, however, nothing contained herein shall prevent the above parties from
licensing the rights to THE MARKS for purposes not prohibited by this Agreement.
Except as otherwise set forth herein, nothing in this Agreement shall be
construed as limiting or preventing PHII from granting licenses to any third
party for the use of the Licensed Rights or from utilizing the PHII Intellectual
Property Rights, in both such instances including THE MARKS, in any other manner
whatsoever.
3.2. Nothing contained in this Agreement shall be
construed as an assignment or grant to HOTEL JV, including any and all of its
sub-licensees, of any ownership right, title, or interest in or to THE MARKS,
THE MEMO or the Licensed Rights.
3.3. Any and all rights granted to HOTEL JV for the use of
THE MARKS under this Agreement shall extinguish and be rendered null and void
upon the expiration or sooner termination of this Agreement in accordance with
the terms hereof.
3.4. At the sole election of HOTEL JV, PHII or its
affiliates may provide to HOTEL JV the Licensed Complimentary Products;
provided, however, that (i) HOTEL JV shall have no obligation to purchase any
particular Licensed Complimentary Products from PHII or its respective
affiliates; (ii) the cost of such Licensed Complimentary Products as provided by
PHII or its respective affiliates will not exceed a commercially competitive
price in an arm's length market transaction; and (iii) such Licensed
Complimentary Products provided by PHII shall in any event be produced in
accordance with the Standard of Quality set forth in Section 6 hereinbelow.
3.5. In accordance with the terms and conditions of
Section 1.1(d) above, PHII or its affiliates may provide to HOTEL JV the
Provided Goods; provided, however, that (i) HOTEL JV shall have no obligation to
purchase any particular Provided Goods from PHII or its affiliates as long as
HOTEL JV complies with Section 1.1(d) with respect to procuring its Provided
Goods; (ii) the cost of Provided Goods provided by PHII will not exceed a
commercially competitive price in an arm's length market transaction; and (iii)
the Provided Goods provided by PHII shall in any event be produced in accordance
with the Standard of Quality set forth in Section 6.
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3.6. For facilitating the selection of the Licensed
Complimentary Products and Provided Goods provided by PHII, HOTEL JV and PHII
acknowledge and agree that PHII or its affiliates shall submit to HOTEL JV
without charge specimens of such Licensed Complimentary Products and Provided
Goods for HOTEL JV's approval. After such approval, PHII agrees and acknowledges
that the Licensed Complimentary Products and Provided Goods shall be procured
(to the extent required under this Agreement) from and provided by PHII or its
respective affiliates of a quality consistent with the approved sample and
otherwise in accordance with the Standard of Quality set forth in Section 6 and
the other applicable terms hereof.
3.7. PHII shall have the sole and exclusive right to, and
shall timely, register or otherwise renew each of THE MARKS with any federal,
state, territorial, or provincial governmental agency and shall have the
obligation and responsibility for same at its sole expense, including without
limitation any application for trademark registration, statement of use,
declaration of use and incontestability, registered user registrations,
application for registration of copyright claim, renewal, including all
requisite documentation and affidavits, or other governmental filing of or for
any of THE MARKS. HOTEL JV shall execute, and shall provide for the execution by
any sub-licensee of THE MARKS, all appropriate documents prepared by or for the
benefit of PHII reasonably necessary for such purposes in a reasonably timely
manner at PHII' sole expense. PHII warrants and represents that it has
registered THE MARKS and, to the extent required the DOMAIN NAMES, with all
required governmental agencies, has good and marketable title to THE
MARKS,DOMAIN NAMES and THE MEMO, free and clear of all liens except as shown on
Schedule 1,and each of PHII and PHMemo warrant and represent that they have full
power to enter into this Agreement.
3.8. PHII shall have the sole and exclusive right to, and
shall timely, at its sole expense register or otherwise renew each of the DOMAIN
NAMES with Network Solutions, Inc. (hereinafter referred to as "NSI") and/or any
successor entity(ies) which is (are) responsible for the registration of
Internet domain names throughout the world, including, but not limited to,
domain name registrations in the generic top level domains of ".com", ".org",
".net" and ".biz". HOTEL JV shall have the non-exclusive right to use THE MARKS
for up to two (2) domain names for creating Internet websites for the Complex
("Hotel Websites") for the term of this Agreement; provided, however, the
registration, renewal and maintenance fees for the Hotel Websites shall be borne
solely by HOTEL JV.
3.9. PHII acknowledges that it shall maintain and protect
THE MARKS and the DOMAIN NAMES and PHII shall take all necessary actions to meet
such requirements with respect to those goods and services offered in
conjunction with THE MARKS and the DOMAIN NAMES at PHII's sole expense.
3.10. It is expressly understood that the rights and powers
retained by PHII to approve the products, advertising and promotions of HOTEL
JV, as expressly provided herein, are retained because of the necessity of
protecting the PHII Intellectual Property (as defined in
12
Section 3.12) generally, and specifically to conserve the goodwill and good name
of PHII and THE MARKS.
3.11. PHII and HOTEL JV acknowledge and agree that the
services and sale of goods in connection with THE MARKS shall be appropriate for
a first class themed hotel with a casino, restaurant, bar and related uses and
equal to or better than the level of service and quality prevailing from time to
time at Sheraton-managed hotels (or such other Manager approved by the Lenders
under the Loan Agreement), operated in compliance with applicable laws and
governmental regulations.
3.12 All designs, materials, copyrights, artwork, trade
names, Trade Dress, trademarks, service marks, domain names, derivative works
thereof and works made-for-hire, and all goodwill associated therewith, and all
other intellectual property rights of any kind (collectively referred to
hereafter as the "PHII Intellectual Property") created by or for PHII or any of
its affiliated companies, with respect to the Planet Hollywood Hotel shall
remain proprietary with and owned by PHII or any of its affiliated companies, as
the case may be . The PHII Intellectual Property shall also include any and all
derivatives in and to the copyrights, trade names, Trade Dress, trademarks,
service marks of PHII existing at the time of this Agreement or thereafter,
whether created, designed or developed by PHII, HOTEL JV, Manager or any other
third party and PHII specifically reserves any and all rights in such
derivatives. By way of example and not of limitation, in the event that HOTEL JV
develops a new logo that is a derivative work of, or otherwise incorporates any
of the PHII Intellectual Property, for use in connection with the Planet
Hollywood Hotel, although HOTEL JV shall automatically retain a license to such
logo pursuant to and subject to this Agreement as if such logo were included on
EXHIBIT A as one of THE MARKS. PHII shall retain any and all rights in and to
such derivative work and HOTEL JV shall acquire no proprietary rights therein.
Except as set forth herein, all designs, materials, copyrights, artwork, trade
names, trade dress, trademarks, service marks, domain names, derivative works
thereof and works made-for-hire, and all goodwill associated therewith, and all
other intellectual property rights of any kind owned and/or used by HOTEL JV in
connection with the Complex (except for THE MARKS, the DOMAIN NAMES and the PHII
Intellectual Property or any derivatives thereto) shall remain proprietary with
and owned by HOTEL JV or such sub-licensee, as the case may be (the "HOTEL JV
Intellectual Property"). For purposes of this Agreement, "Trade Dress" is
defined as those elements in which the Planet Hollywood Hotel is packaged which
create the visual image presented to customers and which are capable of
acquiring exclusive legal rights as a type of trademark or identifying symbol of
origin.
3.13 PHMemo shall at all times retain sole ownership and
title of the THE MEMO, and HOTEL JV shall not have or at any time acquire any
right, title, equity or other interest in THE MEMO, except the license to
possession and use THE MEMO as provided for in this Agreement. THE MEMO is, and
shall at all times remain, the personal property of PHMemo, notwithstanding that
any part of it may now be, or may become, in any manner
13
attached to, or embedded in, real property or any building with respect to the
Planet Hollywood Hotel. HOTEL JV agrees to indemnify PHMemo and PHII for any
loss or expense due to a lien or claim on THE MEMO by any other lienor or
claimant to the extent such lien or claim is caused by the action or inaction of
HOTEL JV.
4. LIMITATIONS OF USE - THE MARKS
4.1. Except as otherwise permitted hereunder:
(a) HOTEL JV shall not use or authorize others
to use the PHII Intellectual Property Rights, the Licensed Rights, the Licensed
Complimentary Products, or the Provided Goods for any other purpose, except as
provided below;
(b) HOTEL JV shall only use THE MARKS as shown
on EXHIBIT A and shall use no variations of or make any material changes,
additions or deletions to THE MARKS without PHII's prior written approval which
approval may be withheld in PHII's reasonable discretion; and
(c) Except as otherwise permitted under this
Agreement, HOTEL JV shall not use or authorize others to use the THE MARKS, the
DOMAIN NAMES or the PHII Intellectual Property Rights as a trademark and/or
service mark and/or logo incorporating any other word, term, mark, graphics or
designs without PHII's prior written approval, which approval may be withheld at
PHII's reasonable discretion.
4.2. Notwithstanding the limitations set forth in this
Section 4, PHII acknowledges that in addition to the sublicenses addressed in
Sections 1.2 and 1.3 above, HOTEL JV may use or authorize third parties to use
the PHII Intellectual Property, including without limitation THE MARKS, in joint
advertising and promotion of the Planet Hollywood Hotel and the services and
products offered by such third parties provided PHII has given its prior written
approval, which approval shall not be unreasonably withheld, delayed or
conditioned.
4.3. HOTEL JV shall not, either during or after the term
of this Agreement, do anything itself, or aid or assist any other party to do
anything which would infringe, violate, tarnish, dilute, cause a loss of
distinctiveness, harm, or contest the rights of PHII in and to THE MARKS, and/or
do anything which would damage the goodwill or brand image associated with THE
MARKS. PHII shall not, either during or after the term of this Agreement, do
anything itself, or aid or assist any other party to do anything which would
infringe, violate, tarnish, dilute, cause a loss of distinctiveness, harm or
contest the rights of HOTEL JV in and to HOTEL JV's Intellectual Property,
and/or do anything which would damage the goodwill or brand image associated
with the THE MARKS, the DOMAIN NAMES or the PHII Intellectual Property which
HOTEL JV may use in conjunction with the services rendered and the goods offered
14
within the Complex.
4.4. PHII shall designate in writing a representative to
which HOTEL JV shall direct any and all requests for written approval as
required by this Agreement; and for all matters submitted for the written
approval of PHII as required by this Agreement, if PHII does not approve thereof
in writing within a fifteen (15) day period following such submission, such
matters shall be deemed approved by PHII.
5. LIMITATIONS OF USE - THE MEMO
5.1. THE MEMO licensed hereunder shall initially consist
of those items of memorabilia requested by HOTEL JV for its use in connection
with this Agreement not to exceed an aggregate fair market value of Twenty
Million and No/100 Dollars ($20,000,000), such amount representing the maximum
amount of THE MEMO that may be licensed to HOTEL JV at any given time, such
memorabilia to be identified on EXHIBIT B attached hereto. PHMemo agrees to make
available to HOTEL JV, at all times, memorabilia having a value of not less than
Twenty Million and No/100 Dollars ($20,000,000) in the aggregate for HOTEL JV's
use at the Complex in Hotel JV's discretion. Within one hundred twenty (120)
days following the reasonable request of HOTEL JV, and at HOTEL JV's sole cost
and expenses, PHMemo shall add and/or subtract memorabilia from the items
provided pursuant to this Agreement in order to rotate a portion of PHMemo's
collection into and out of the Complex (a "Swap Out"); provided, however in no
event shall PHMemo have an obligation to license any PHMemo in excess of an
aggregate fair market value of Twenty Million and No/100 Dollars ($20,000,000),
such amount representing the maximum amount of THE MEMO that may be licensed to
HOTEL JV at any given time. PHMemo shall, at all times during the term of this
Agreement, maintain a reasonable level of memorabilia (which, including THE
MEMO, shall have an aggregate value of not less than Twenty Million and No/100
Dollars ($20,000,000) in its total collection in order to satisfy its Swap Out
and other obligations hereunder and THE MEMO shall be of a type and quality
consistent with memorabilia supplied by PHII and/or PHMemo to its other
licensees, lessees or franchisees. Following a Swap Out or any change, addition
or deletion to THE MEMO pursuant to the terms and conditions of this Agreement,
EXHIBIT B shall automatically be deemed to be revised to reflect such Swap Out,
change, addition or deletion. Notwithstanding the foregoing; (i) HOTEL JV agrees
that the obligations of PHII and PHMemo do not extend to the provision of any
casing, framing or displays for THE MEMO and (ii) PHII and PHMemo agree that,
except as otherwise expressly set forth in this Agreement, the obligations of
HOTEL JV with respect to THE MEMO as set forth herein do not extend to any
memorabilia located at another PHII location other than the Complex. To the
extent HOTEL JV requires casing, framing and displays with respect to all or a
portion of THE MEMO, HOTEL JV may, but shall not be obligated to, purchase such
casing, framing and displays from PHMemo. PHMemo agrees to provide such casing,
framing or displays at a commercially competitive arm's length market price. The
cost of any such casing, framing, displays, installation, supervision and other
services provided by PHII or PHMemo under this Section 5 shall be paid by the
HOTEL JV solely from the $90 Million of
15
"Renovation Capital Expenditures" required to be made by HOTEL JV under the Loan
Agreement. For purposes of this Agreement, it is agreed by the parties hereto
that the "fair market value" of THE MEMO shall be reasonably determined by
PHMemo by (a) appraisals of all or part of items comprising THE MEMO by
independent appraisers, and/or (b) the historical results of actual sales of
items comprising THE MEMO to independent third parties by PHMemo, and any such
determination of value shall be subject to the prior written approval of HOTEL
JV and Lenders, such approval not to be unreasonably withheld.
5.2 HOTEL JV agrees that the installation of THE MEMO
requires specialized skill in the form of riggers and professional installers.
HOTEL JV shall use the services of (i) PHMemo, or (ii) a supervisor designated
by HOTEL JV and reasonably approved by PHMemo in connection with the
installation, removal or movement of any of THE MEMO, whether the initial
installation, during a Swap Out or upon expiration or sooner termination of this
Agreement unless otherwise approved by PHMemo, such approval not to be
unreasonably withheld, delayed or conditioned. PHMemo agrees to provide such
services at its actual out of pocket cost.
5.3 HOTEL JV, without prior written consent of PHMemo,
shall not permit the Property to be removed from the Complex, which consent
shall not be unreasonably withheld, delayed or conditioned; provided, however,
that it shall not be considered an unreasonable condition if PHMemo, acting
reasonably, conditions such removal on PHMemo supervising any movement of THE
MEMO at HOTEL JV's cost (in an amount not to exceed PHMemo's actual out of
pocket costs of providing such service) unless such removal is supervised by an
approved third party supervisor as set forth in Section 5.2 above.
5.4 HOTEL JV shall have absolute supervision and
responsibility over the users of THE MEMO, subject to the restrictions set forth
in this Agreement. THE MEMO shall be used only for the purpose of protected and
supervised display within the Complex absent the prior written approval of
PHMemo, such approval not to be unreasonably withheld, delayed or conditioned.
5.5 HOTEL JV shall use THE MEMO in a careful and proper
manner, and agrees not to permit any of THE MEMO to be used in violation of any
applicable statute, law, ordinance, rule or regulation relating to the
possession, use or maintenance of THE MEMO. HOTEL JV will indemnify and hold
PHII and PHMemo harmless from any liabilities, fines, forfeitures or penalties
incurred by PHII or PHMemo in connection with a violation of any statute, law,
ordinance, rule or regulation of any duly constituted public authority by HOTEL
JV related to the use of THE MEMO. HOTEL JV shall maintain at HOTEL JV's expense
all necessary permits and licenses for the transportation use and display of THE
MEMO.
5.6 HOTEL JV shall not use THE MEMO in any manner that
will result in a cancellation of any insurance policy maintained by HOTEL JV on
THE MEMO, even if such use
16
may be in furtherance of HOTEL JV's business purpose.
5.7 HOTEL JV shall assume all obligations and liabilities
concerning possession of THE MEMO (except arising from the negligence or willful
misconduct of PHII or PHMemo or as otherwise set forth in Section 14.2) and for
its use, condition and storage during the term of this Agreement, any
continuation or extension thereof, and during its transport of THE MEMO from
PHMemo to HOTEL JV and return. HOTEL JV shall, at HOTEL JV's expense, maintain
THE MEMO in the same condition as it was received.
5.8 Without the prior written consent of PHMemo, which
consent shall not be unreasonably withheld, conditioned or delayed, HOTEL JV
shall not make any alterations, repairs, additions or improvements to THE MEMO.
All additions to and improvements of THE MEMO of any kind shall immediately
become PHMemo's property and subject to the terms of this Agreement. HOTEL JV
shall not remove, alter, disfigure or cover up any numbering, lettering or
insignia displayed on THE MEMO. HOTEL JV shall give PH Memo prompt notice of any
need for alteration, repair, maintenance, conservation work, addition or
improvement to THE MEMO. PHMemo shall have the right to conduct any work done on
THE MEMO; provided that the costs for such work shall not exceed a commercially
competitive arm's length market price.
5.9 It is agreed that PHMemo, at its discretion during
HOTEL JV's regular business hours and following not less than twenty-four hours
prior written notice, has the right to enter the premises where THE MEMO may be
located, for the purpose of inspecting THE MEMO in order to make a determination
of its condition and manner of use. If any of THE MEMO covered is not being
properly maintained or utilized according to the provisions of this Agreement as
reasonably determined by PHMemo, PHMemo has the right, but not the obligation,
if such failure is not cured within thirty (30) days following written notice,
to have it repaired or maintained at a service facility at the expense of HOTEL
JV (not to exceed the actual out of pocket costs of PHII or PHMemo for such
work).
5.10 It is agreed by HOTEL JV that HOTEL JV shall use
commercially reasonable efforts to cause THE MEMO to be equitably and
proportionately distributed and located between the Planet Hollywood Restaurant
(to the extent the Planet Hollywood Restaurant is constructed and operated
pursuant to Section 2.3 above) and the remainder of the Complex, and PHII and
PHMemo hereby consent thereto.
17
5.11. HOTEL JV assumes all risk of loss of and damage to
THE MEMO during the term of this Agreement and during any period of transport or
storage while THE MEMO is in route from PHMemo to HOTEL JV or from HOTEL JV to
PHMemo, from any cause whatsoever. No loss or damage to THE MEMO will impair any
obligation of HOTEL JV, PHII or PHMemo with respect to THE MEMO under this
Agreement, which will continue in full force and effect. If any of THE MEMO is
damaged, lost, stolen or destroyed, HOTEL JV shall promptly notify PHMemo of the
occurrence and shall file all necessary reports, including those required by
applicable law and those required by interested insurance companies.
5.12 HOTEL JV shall maintain in full force and effect at
all times during the term of this Agreement and any extensions or renewals
thereof, comprehensive insurance against loss, theft, damage or destruction of
THE MEMO in an aggregate amount of not less than the replacement value, together
with liability coverage and such other coverage as may be reasonably required by
PHMemo. Such insurance providers and policies shall be subject to the prior
written approval of PHMemo and shall name PHMemo and PHII as loss payees. PHII
and PHMemo agree that such insurance may be included as part of HOTEL J.V.'s
overall insurance program.
5.13 HOTEL JV shall pay all actual out of pocket shipping
costs, freight permit fees, bonding fees, storage costs and insurance costs
incurred directly in connection with the shipment of THE MEMO from PHMemo to
HOTEL JV and its return.
5.14 On expiration or earlier termination of this
Agreement, HOTEL JV shall, at HOTEL JV's expense, return THE MEMO to PHMemo in
the same conditions as when received, by loading THE MEMO on board such carrier
as PHMemo shall reasonably specify or approve in writing, and shipping the
property by freight to a domestic destination designated by PHMemo. HOTELJV, at
HOTEL JV's expense, shall fully insure THE MEMO against loss or damage during
transport, with PHMemo and PHII as loss payees.
5.15 PHMemo reserves the absolute right to recover, from
time to time with the prior written reasonable approval of HOTEL JV (and during
the occurrence and continuance of an Event of Default under the Loan Agreement,
the prior written reasonable approval of the Lenders), at PHMemo's expense, any
item of THE MEMO; provided that PHMemo provides HOTEL JV with reasonable prior
written notice and a reasonable substitute item of equal or higher value at the
same time. Such a substitution shall not be considered an amendment of this
Agreement and shall not affect the terms of this Agreement
5.16 In the event that any item(s) of THE MEMO shall (a)
be conclusively determined to not be authentic items of memorabilia as described
on EXHIBIT B as updated and revised from time to time subject to the provisions
of this Agreement, or (b) HOTEL JV, in its reasonable discretion, determines
that a change in public perception with respect to any particular item(s) of THE
MEMO and the continued display of such particular item(s) of THE MEMO shall
cause material and continuing damage to the brand image or goodwill of HOTEL JV,
PHMemo,
18
at PHMemo's expense, shall remove such item(s) of THE MEMO and provide HOTEL JV
with a reasonable substitute item of equal or higher value at the same time of
the removal with the prior written reasonable approval of HOTEL JV (and
following an Event under the Loan Agreement, the prior written reasonable
approval of the Lenders).
6. STANDARD OF QUALITY
6.1. HOTEL JV agrees that all uses of THE MARKS by HOTEL
JV and its sub-licensees and in connection with the operation and promotion of
the Planet Hollywood Hotel, the Licensed Services and the Licensed Complimentary
Products and the Provided Goods shall be of a quality at least as good as and
according to the Standard of Quality established in this Section 6.
6.2. The Licensed Services, Licensed Complimentary
Products and Provided Goods shall comply with, at the minimum, the following
Standard of Quality (hereinafter referred to as "Standard of Quality"):
(a) for facilitating the establishment of the
Standard of Quality with respect to the Licensed Services, HOTEL JV and PHII
acknowledge and agree that such Standard is evidenced, represented, exemplified,
and met by the operation of a first-class hotel with a casino, bar, incidental
sundries, amenities, gift-shops and ancillary and related uses customarily found
in a first class hotel and equal to or better than the level of service and
quality prevailing from time to time at Sheraton-managed hotels (or hotels of a
similar quality operated by another Manager approved by Lenders under the Loan
Agreement); and
(b) for facilitating the establishment of the
pertinent Standard of Quality with respect to Licensed Complimentary Products
and Provided Goods which HOTEL JV may produce and/or procure other than through
PHII, HOTEL JV and PHII acknowledge and agree that such Standard of Quality is
evidenced, represented, exemplified, and met by representative samples of such
Licensed Complimentary Products and Provided Goods which HOTEL JV shall submit
to PHII without charge for PHII's written approval, which shall not be
unreasonably withheld, conditioned or delayed; after approval by PHII of such,
any and all such Licensed Complimentary Products distributed, offered and/or
provided by HOTEL JV on a complimentary basis and any and all such Provided
Goods sold within the Complex shall be of a quality at least as good as the
approved samples;
6.3. The Licensed Complimentary Products and Provided
Goods which PHII to provides to HOTEL JV for the sale or distribution or offer
for sale or distribution shall be of a quality at least as good as the
comparable samples sold by PHII or its affiliated entities and/or franchisees at
its respective themed restaurants as of the date the products are purchased. For
any and all Licensed Complimentary Products and/or Provided Goods for which
there is not a comparable sample sold by PHII or its affiliate entities and/or
franchisees, PHII acknowledges
19
and agrees that such goods will be of a "first rate" quality as determined by
first class hotel industry standards and equal to or better than the level of
service and quality prevailing from time to time at Sheraton-managed hotels (or
other hotels of a similar quality operated by another Manager approved by
Lenders under the Loan Agreement).
6.4. The license granted pursuant to this Agreement shall
only extend to the Licensed Services and Licensed Complimentary Products and
Provided Goods which are either (a) submitted to PHII for the examination,
observation, screening, sampling and/or testing, as provided herein, for
compliance with the Standard of Quality; or (b) provided by PHII or its
affiliates to Hotel JV. Notwithstanding the foregoing, once PHII has approved of
a particular Licensed Service, Licensed Complimentary Product or Provided Good,
further approvals of such particular Licensed Service, Licensed Complimentary
Product or Provided Good shall not be required.
6.5. To ensure that the Standard of Quality is being met,
PHII or its representatives shall have the right to conduct inspections of any
portion of the Complex or any location where Licensed Services are being
rendered and/or Licensed Complimentary Products or Provided Goods are being
distributed upon reasonable written notice to Hotel JV (but not less than
twenty-four hours written notice). Such inspections shall be conducted no more
than four (4) times during any given calendar year at no expense to HOTEL JV and
during the normal business hours of HOTEL JV's executive management with no
disturbance to the guests and to the operations of the Complex. Prior to the
initial sale, rendering or offering by HOTEL JV of any Licensed Services or
Licensed Complimentary Products or Provided Goods under or in connection with
THE MARKS or any of the other Licensed Rights, HOTEL JV shall make same
available to PHII for PHII's written approval, which approval shall not be
unreasonably withheld, conditioned or delayed.
7. TRADEMARK NOTICE DESIGNATION AND PROTECTION
7.1. HOTEL JV shall use the expression "the trademark
Planet Hollywood used under License" or any reasonable equivalent thereof as
required by any applicable law and/or whenever such may be used with reasonable
convenience in conjunction with any and all advertising and promotional
materials used in connection with the Complex and the Licensed Services and such
other expressions as may be reasonably requested by PHII or PHMemo in writing in
connection with the display and exhibition of THE MEMO.
7.2. HOTEL JV shall, as noted in EXHIBIT A or when advised
by PHII in writing: (a) use a notice of trademark and/or service mark
registration conforming to law directly after THE MARKS (e.g., (R)); (b) use the
designation "SM" or "TM" directly after THE MARKS in connection with any
unregistered use of THE MARKS in conjunction with the Licensed Services,
Licensed Complimentary Products and Provided Goods, as reasonably appropriate;
and (c) use the copyright notice as reasonably appropriate (e.g., (C)). Upon
PHII's addition of any new
20
marks or designs to EXHIBIT A, such marks or designs shall also bear the
appropriate notice.
7.3. HOTEL JV shall give written notice to PHII of any
infringements, dilution or counterfeits of, or any unfair competition affecting
THE MARKS or Intellectual Property Rights in connection with the Complex, the
Licensed Services, the Licensed Complimentary Products and the Provided Goods
known to Hotel JV promptly upon becoming aware of such occurrences and to
cooperate at PHII's sole expense in any action regarding these matters which
PHII may, in its reasonable discretion, deem appropriate. PHII shall take or
institute any action PHII deems advisable regarding such matters at its own
expense and for its own account. In the event PHII prosecutes an action through
to completion either by settlement or adjudication, PHII shall be entitled to
the entirety of any amounts received as compensation for damages. If PHII
determines to take no action with respect to said infringements, dilution,
counterfeits or unfair competition, PHII shall provide reasonable written notice
within a reasonable time period to HOTEL JV of such determination, in which
event HOTEL JV may, at its own expense and for its own account, and with PHII's
cooperation (including joining as a party), prosecute said action, in which case
HOTEL JV shall be entitled to the entirety of any amounts received as
compensation for damages thereof.
8. PROMOTIONS AND MARKETING
8.1. At PHII's sole cost, PHII shall provide or cause
other affiliates of PHII to provide for, in good faith and a highly professional
manner, the following marketing and promotional services ("Promotional
Services") to HOTEL JV:
(a) Reasonable assistance regarding the creative
aspects, conceptual planning, design and operation of the Planet Hollywood theme
of the Complex; and
(b) Reasonable assistance regarding public
relations strategies and campaigns to advertise the Complex.
9. AGREEMENT TERM
9.1. Unless sooner terminated pursuant to the terms and
provisions of this Agreement, this Agreement shall be in full force and effect
for a term expiring at midnight on that date which is twenty-five (25) years
following the Effective Date hereof and three (3) automatic ten (10) year
renewals provided that HOTEL JV is not in default of its obligations under this
Agreement beyond any applicable cure period at the expiration of the initial
term or any renewal term.
9.2. Upon the termination or expiration of this Agreement
pursuant to the terms and provisions of this Agreement for any cause, HOTEL JV
and its sub-licensees shall, in a commercially reasonable manner, but in no
event to exceed nine (9) months following such
21
termination or expiration, discontinue all use of the PHII Intellectual
Property, THE MARKS, the DOMAIN NAMES, and THE MEMO, including without
limitation, such indicia on exterior or interior signs, stationary, operating
equipment and furniture, fixtures and equipment (collectively, the "Proprietary
Materials") and discontinue the use of the Hotel Website; provided, however,
that HOTEL JV shall discontinue the use of consumable supplies (including,
without limitation, brochures, promotional materials and Licensed Complimentary
Products) containing Proprietary Materials within ninety (90) days following
such termination or expiration. HOTEL JV shall have a further obligation to
cause all sub-licensees to, in a commercially reasonable manner, but in no event
to exceed nine (9) months following such termination or expiration, discontinue
all use of Proprietary Materials. Until such time as HOTEL JV and its
sub-licensees have discontinued all use of the Proprietary Materials of the
Planet Hollywood Hotel, the Continuing Fee shall continue to be payable to PHII.
In addition, if HOTEL JV or any of its sub-licensees fails to comply with the
foregoing requirements, HOTEL JV shall pay to PHII, in addition to the
Continuing Fee and as liquidated damages, the sum of Two Thousand Five Hundred
Dollars ($2,500) per day for each day that HOTEL JV fails to comply with the
foregoing; and, in addition, PHII shall also be entitled to damages or relief by
injunction, or to any other right or remedy at law or in equity, and may seek
such relief in a court of competent jurisdiction for HOTEL JV's failure to
comply with this Section 9.2.
9.3. If, upon the expiration or earlier termination of
this Agreement, HOTEL JV fails or refuses to return THE MEMO to PHMemo, PHMemo
shall have the right, subject to the provisions of Section 14.2 and due process
limitations under appropriate law, to take possession of the THE MEMO and for
that purpose to enter into the premises where THE MEMO is located, without being
liable to HOTEL JV for such removal or any damages occasioned thereby in any
suit, action or other proceedings, unless such damages are caused by PHMemo's
negligence.
10. BOOKS AND ACCOUNTING
10.1. HOTEL JV shall provide to PHII that information as
and when required to be provided Lenders pursuant to Sections 7.2(a); 7.2(b);
7.2(d); 7.2(j); 7.2(k); 7.2(l) and such other financial information as is
reasonably requested by PHII in order for PHII to confirm the payment of the
Continuing Fee and the Retail Royalties.
10.2. HOTEL JV shall keep accurate books of account and
records covering all transactions relating to the license hereby granted, and
PHII and its duly authorized representatives shall have the right, no more
frequently than four (4) times in any calendar year, to an examination of said
books of account and records and of all other relevant documents and materials
in the possession or under the control of HOTEL JV with respect only to the
subject matter and terms of this Agreement upon five (5) business days' written
notice. Any such examination shall be conducted on reasonable notice and during
normal business hours of HOTEL J.V.'s executive management with no disturbance
to guests or to the operations of the Complex. All books of account and records
with respect to each calendar year shall be kept
22
available for at least three (3) years after such calendar year. In the event
that PHII's duly authorized representative shall discover an underpayment of
fees of two percent 2% or more pursuant to any such examination, HOTEL JV shall
pay to PHII the reasonable cost of such examination. Fees found to be due as a
result of PHII's examination of HOTEL JV's books of account shall be paid within
thirty (30) days of the completion of the audit with interest calculated in the
manner described above with interest at ten percent (10%) per annum from the
date the amount should have been paid to PHII, up to and including the month of
payment. Any overpayment by HOTEL JV to PHII shall promptly be reported and paid
by PHII to HOTEL JV after PHII's discovery of such discrepancy.
10.4. PHII shall at its own expense provide to HOTEL JV
within ninety (90) days after the completion of each fiscal year a statement
certified by PHII's Chief Financial Officer of all Licensed Complimentary
Products and Provided Goods provided to Hotel JV.
11. COMPLIANCE WITH LAWS
11.1. HOTEL JV shall be responsible for compliance with
applicable federal, state, local and municipal rules, laws and regulations
regarding any and all operations of the Complex, the Licensed Services and the
manufacture, distribution and sale of any and all Licensed Complimentary
Products and Provided Goods to the extent not provided to HOTEL J.V. by PHII or
its affiliates.
11.2. Neither HOTEL JV nor any of its sub-licensees shall
violate any applicable law, regulation, or court order in conjunction with its
use of THE MARKS or THE MEMO.
11.3. PHII shall be responsible for compliance with
applicable federal state, local and municipal rules, laws and regulations
regarding the manufacture, distribution, delivery and sale of any and all
Provided Goods or Licensed Complimentary Products sold or distributed by PHII or
its affiliates pursuant to this Agreement and the promotions and marketing
services provided pursuant to Section 8 of this Agreement.
11.4. PHII shall not, nor shall PHII permit any of its
sub-licensees to violate any law, regulation, or court order in conjunction with
its use of THE MARKS or THE MEMO.
12. TERMINATION
12.1. This Agreement shall terminate immediately and
automatically by its own force without notice (other than a required notice
expressly set forth below) in the event that PHII, PHMemo or HOTEL JV, as
applicable, shall have given written notice to the other parties stating that a
material breach or default has occurred and is continuing under this Agreement
(a "Default Notice"), then following receipt of such Default Notice:
(i) With respect the payment of any Continuing Fees, or
other amounts owed
23
to PHII, or with respect to any payment owed to HOTEL JV by PHII or PHMemo, a
failure to pay such amount within five (5) business days following receipt of
such written Default Notice;
(ii) With respect to any other default other than a
default pursuant to Section 12.1(i) above, PHII, PHMemo or HOTEL JV, as
applicable, shall fail to cure such default within thirty (30) days of receipt
of such Default Notice; provided that if such default is not reasonably capable
of being cured within such thirty (30) day period, the party in default
commences such cure within such thirty (30) day period and thereafter diligently
cures such default as soon as possible, but not greater than one hundred twenty
(120) days following the occurrence of such default; or
(iii) If HOTEL JV causes the direct or indirect transfer of
all or part of (i) HOTEL JV's ownership interests in the Complex, or (ii) the
ownership interests in HOTEL JV of the Complex to a third party or (iii)
otherwise assigns this Agreement to any party (other than the Lender or other
Purchaser as defined in the Subordination Agreement in accordance therewith) (in
each instance a "Sale" and in each instance in accordance with the terms and
conditions of the Loan Agreements), HOTEL JV shall have the right to terminate
this Contract as set forth below.
(a) If a Sale of the Complex by HOTEL JV occurs
before the third (3rd) anniversary of the Grand Opening, then this Agreement may
not be terminated incident to or as a result of any such sale of the Complex
except as is otherwise set forth in the Licensor Subordination and Cooperation
Agreement attached hereto as Exhibit D.
(b) If a Sale of the Complex by HOTEL JV occurs
at any time after December 31 of the third (3rd) anniversary of the Grand
Opening and on or before the sixth (6th) anniversary of the Opening Date, then
HOTEL JV or, if the Sale of the Complex is to a Competitor, PHII may terminate
this Agreement by giving written notice to the other party on or prior to the
Sale of the Complex. Termination shall be effective upon the Sale of the Complex
unless HOTEL JV and PHII agree otherwise. In the event of such a termination,
HOTEL JV shall pay PHII a termination fee equal to: (i) the number of months
(prorating partial months on the actual number of days elapsed) between the Sale
of the Complex and the sixth (6th) anniversary of the Opening Date; (ii)
multiplied by two (2) times the Continuing Fee and Retail Royalties earned by
PHII during the most recent twelve (12) full calendar months preceding the Sale
of the Complex; (iii) divided by twelve (12).
(c) If a Sale of the Complex by HOTEL JV occurs
at any time after the sixth (6th) anniversary of the Opening Date, then this
Agreement may be terminated (i) by HOTEL JV if the Sale of the Complex is not to
a Competitor or (ii) by either HOTEL JV or PHII if the Sale of the Complex is to
a Competitor. Termination under this subsection shall be effected by giving
written notice to the other party on or prior to the Sale of the Complex unless
Owner and Manager agree otherwise. No termination fee or other similar fee or
compensation is payable for a termination implemented under this subsection.
24
For purposes of this Section 12.1(iii) , the term "Competitor" shall mean an
entity directly or indirectly engaged, interested or concerned, whether by
direct or indirect ownership, oversight, management or otherwise, of themed
restaurants. Nothing contained in this Section 12.1(iii) shall impair any rights
of the Lender under Section 17.5 and the Subordination Agreement, including,
without limitation the right, but not the obligation, to terminate this
Agreement without the payment of any fees following the occurrence and
continuation of an Event of Default (as set forth the Loan Agreement) as is
outlined in Section 17.5 and the Subordination Agreement attached hereto as
Exhibit D.
Notwithstanding the foregoing, the provisions of this Section 12.1(iii) shall
not be effective, and shall be of no force and effect (and shall not give rise
to any claim in any bankruptcy or other proceeding by or against Borrower (as
such term in defined in the Loan Agreement) or HOTEL JV unless and until the
Obligations (as such term is defined in the Loan Agreement), including all
extensions, modifications, restatements or amendments thereof, and any
refinancing of the Obligations by the Lenders, are fully-paid in cash and
performed, it being expressly understood and agreed that the provisions of this
Section 12.1(iii) shall automatically be deleted (and shall be of no force or
effect) upon the occurrence of any foreclosure or transfer in lieu of
foreclosure under the Loan Agreement.
12.2. The rights with respect to THE MARKS and THE MEMO granted to
HOTEL JV under this Agreement are, and shall otherwise be deemed to be, for the
purposes of Section 365(n) of the Bankruptcy Code, a license of "intellectual
property" rights as defined in Section 101(35A) of the Bankruptcy Code.
Notwithstanding anything to the contrary in this Agreement, HOTEL JV as licensee
of rights under this Agreement, may fully exercise all of its rights for itself
under the Bankruptcy Code, including, but not limited to, its rights to continue
to exercise its rights licensed hereunder.
12.3. It is the express intention of the parties hereto that a
default under this Agreement shall not constitute a default under the Restaurant
License Agreement and that a default under the Restaurant License Agreement
shall not constitute a default under this Agreement .
12.4 If HOTEL JV abandons the acquisition of the Complex for any
reason (including, without limitation, termination of the Purchase Agreement,
non-approval of HOTEL JV's purchase of the Complex by the Bankruptcy Court,
failure to enter into the Loan Agreement or the failure of the Loan Agreement to
close, construction nonfeasibility, environmental conditions, general economic
conditions, or a force majeure event), HOTEL JV (with the prior written consent
of the Lenders to the extent such consent is required by the Purchase and Sale
Agreement or the Loan Agreement) shall have the right to terminate this
Agreement and the Restaurant License Agreement by written notice to PHII, PHIV
and PH Memo in connection with such abandonment, without payment of any damages,
termination fees or other compensation to PHII, PHIV and PH Memo under this
Agreement. If HOTEL JV recommences the acquisition of the Premises, at the
option of PHII, PHIV and PH Memo to be exercised by giving written notice to
HOTEL JV within thirty (30) days after PHII and PHIV and PH Memo
25
obtains actual knowledge of such recommencement, this Agreement shall be
reinstated.
13. CONFIDENTIALITY
13.1. The parties acknowledge and agree that all
information they obtain from the other party during the term of this Agreement
which, by its nature, is confidential, or which is marked as "confidential" by
the other party will be treated as confidential information. No party shall: (a)
acquire any interest in any other party's confidential information; (b) use any
other party's confidential information in any other business or capacity; or (c)
fail to exert its reasonable efforts to maintain the confidentiality of any
other party's confidential information during and after the term hereof.
13.2. Notwithstanding anything to the contrary contained in
this Agreement, the restrictions on disclosure and use of the aforementioned
confidential information shall not apply to: (a) information, processes or
techniques which are or become generally known to the general public or became
available to a party on a non-confidential basis from a source which is not
known by the other party to be bound by a confidentiality agreement with respect
to such information; (b) disclosure of the confidential information in judicial,
arbitration or administrative proceedings, to the extent that the disclosing
party is legally compelled to disclose such information, provided disclosing
party shall have afforded the applicable other party the opportunity to obtain
an appropriate protective order or other assurance of confidential treatment for
the information required to be so disclosed; or (c) information that a party is
required to disclose in reports filed with the Securities Exchange Commission or
other regulatory bodies (including the Nevada Gaming Authorities) or in their
respective annual reports or financial statements or as otherwise required by
law or regulation, provided that the disclosing party to the extent possible
provides written notice to and consults with the owning party prior to the
making of any such disclosure; (d) disclosure as required pursuant to the terms
of financing agreements between Hotel JV and third parties; (e) disclosure to
any Manager as required to implement the Management Agreement; or (f) disclosure
required to implement development of the Time Share Premises (as such term is
defined in the Loan Agreement).
14. INDEMNIFICATION AND INSURANCE
14.1. HOTEL JV shall indemnify and save harmless PHII and
its shareholders, members, affiliates, officers, employees and agents from all
liability, loss, damage, claim, fines, penalties, cost or expense (including,
without limitation, reasonable attorneys' fees and disbursements, judgments,
fines and amounts paid in settlement) (collectively, "Claims") arising from or
relating to any breach of this Agreement by HOTEL JV or otherwise arising from
or relating to the Complex and its operations, including, without limitation,
the Licensed Services, Licensed Complimentary Products and Provided Goods prior
to termination of this Agreement, except for those liabilities set forth in
Section 14.2 herein or as otherwise directly or indirectly caused solely by
PHII's negligence, willful misconduct or fraud in connection with the
26
performance of its obligations hereunder. In no event, however, shall this
provision be deemed to create a third-party beneficiary relationship between
HOTEL JV and any third party or give rise to any claim for consequential damages
on the part of PHII. In case of any action, suit or proceeding brought against
PHII, its shareholders, members, affiliates, officers, employees and agents
arising from or relating to the Licensed Services and Licensed Complimentary
Products and Provided Goods, PHII will notify HOTEL JV of such action, suit or
proceeding and HOTEL JV may and, upon PHII's request, shall, at HOTEL JV's sole
cost and expense, defend such action, suit or proceeding, or cause the same to
be defended by counsel designated by HOTEL JV, except for Claims involving
PHII's negligence, willful misconduct or fraud.
14.2. PHII represents and warrants (i) that it or PHMemo,
as applicable, is the rightful owner of the PHII Intellectual Property and other
tangible property that is the subject of this Agreement, including, without
limitation, THE MARKS, the DOMAIN NAMES and THE MEMO; (ii) that THE MARKS and
the DOMAIN NAMES constitute all of the trademarks owned or controlled and used
in connection with the operation of domestic Planet Hollywood restaurants and
retail outlets; (iii) Planet Hollywood International, Inc. is the
successor-in-interest by merger with Planet Hollywood, Inc., a Florida
corporation and Planet Hollywood, Inc., a Delaware corporation and as such is
the owner of all trademarks, design marks, trade names and other intellectual
property registered to or owned by such merged corporations, and (iv) that it
has the right to grant the license granted herein. Further, PHMemo represents
and warrants that PHMemo has the right to provide THE MEMO to HOTEL JV for the
purposes set forth in this Agreement and that THE MEMO constitutes those
authentic pieces of memorabilia as described on EXHIBIT B and that THE MEMO, THE
MARKS and the DOMAIN NAMES are free and clear of all liens except as provided in
Schedule 1. PHII hereby indemnifies and saves harmless HOTEL JV and the Lenders
and undertakes to indemnify HOTEL JV and the Lenders and their respective
shareholders, members, affiliates, officers, employees and agents against,
successors and assigns and to hold HOTEL JV and the Lenders harmless from any
Claims, irrespective of whether such Claims are asserted by private or public
parties, arising in whole or in part out of or relating to (a) any breach of
this Agreement by PHII or PHMemo, including, without limitation, the
representations and warranties and covenants set forth herein, or (b) any actual
or alleged trademark infringement and/or dilution, service mark infringement
and/or dilution, trade dress infringement and/or dilution, copyright
infringement , unfair competition, deceit or other unfair business practices or
other actual or alleged infringement of the intellectual property rights of any
third party to the extent arising out of (i) the use of THE MARKS, THE MEMO and
the DOMAIN NAMES; (ii) the use of the PHII Intellectual Property in compliance
with the provisions of this Agreement; and/or (iii) a breach by PHII and/or
PHMemo of their respective obligations under this Agreement and (c) the
violation of statute, law, ordinance rule or regulation in connection with THE
MARKS, THE MEMO or the DOMAIN NAMES (not caused by HOTEL JV's use, in which case
the previsions of Section 5.4 shall apply) excepting such Claims arising from
HOTEL JV or the Lenders negligence, willful misconduct or fraud. However, in no
event shall HOTEL JV's right to indemnification as set forth in this subsection
extend to circumstances involving actual or alleged acts of unfair competition
not involving
27
HOTEL JV's use of THE MARKS or PHII's Intellectual Property in compliance with
the provisions of this Agreement committed by HOTEL JV, its assigns, licensees,
and/or sub-licensees.
14.3. In addition to the insurance requirements for THE
MEMO as set out in Section 5.11 of this Agreement, to the extent not equal to or
provided for in the Operating Agreement, the Management Agreement or the Loan
Agreement, HOTEL JV agrees that it shall obtain and maintain, or cause to be
maintained, at its own expense, product liability insurance providing adequate
general liability insurance protection to include without limitation product
liability insurance in the minimum amount of $5,000,000 combined single limit of
bodily injury liability and property damage liability for each occurrence and
annual aggregate, naming PHII as an additional insured, and to provide to PHII
as proof of such insurance certificates of insurance no later than thirty (30)
days after the date this Agreement is executed by HOTEL JV. HOTEL JV shall
continuously keep PHII current as to any modification to each insurance policy.
PHII shall be entitled to a copy of the then prevailing certificate of insurance
for each such insurance, which shall be promptly furnished to PHII by HOTEL JV.
Upon written request, HOTEL JV shall provide PHII with a copy of each such
policy of insurance then in effect. PHII shall be notified by each insurance
carrier a minimum of thirty (30) days before any cancellation or modification to
the particular policy.
15. REMEDIES
15.1. (a) Each of HOTEL JV and its sub-licensees
recognizes the great value of the goodwill that is associated with Proprietary
Materials, PHII Intellectual Property Rights, THE MARKS, THE MEMO and the Trade
Dress and acknowledges that such all rights therein and goodwill pertaining
thereto, belong exclusively to PHII, and that the PHII Intellectual Property is
expected to have an established meaning in the mind of the public. Each of HOTEL
JV and its sub-licensees further recognizes and acknowledges that a breach by it
of any of its covenants, agreements, obligations, and/or undertakings hereunder
will cause PHII irreparable damage, which may not be remedied in damages in an
action at law, and may, in addition thereto, constitute an infringement of
PHII's rights in and to the PHII Intellectual Property.
(b) In accordance with the acknowledgements set
forth in Section 15.1(a), PHII shall be entitled to seek from a court of
competent jurisdiction an injunction or restraining order or obtain a decree for
specific performance for the terms of this Agreement; all such remedies sought
shall be in addition to all other rights and remedies of PHII or such rights and
remedies determined by a court of competent jurisdiction to be appropriate under
the circumstances;
28
15.2. PHII recognizes the great value of the goodwill that
is expected to become associated with the HOTEL JV Intellectual Property and
acknowledge that such HOTEL JV Intellectual Property and all rights therein and
goodwill pertaining thereto, belong exclusively to HOTEL JV. PHII further
recognizes and acknowledges that a breach by it of any of its covenants,
agreements, obligations, and /or undertakings hereunder may cause HOTEL JV
irreparable damage, which may not be remedied in damages in an action at law,
and may, in addition thereto, constitute an infringement of HOTEL JV's rights in
and to the HOTEL JV Intellectual Property whereby HOTEL JV may be entitled to
seek an injunction or restraining order or obtain a decree for specific
performance for the term of this Agreement, as applicable and appropriate. All
such remedies sought shall be in addition to all other rights and remedies of
HOTEL JV or such rights and remedies determined pursuant to this Agreement.
16. NOTICES
16.1. All notices or other communications required or
permitted under this Agreement shall be made in writing and shall be deemed
given (a) upon delivery, if sent by (1) personal delivery, (2) courier (e.g.,
overnight delivery) or (3) certified mail, return receipt requested, postage and
registration fees prepaid and correctly addressed to the parties at the
following addresses (b) upon sending, if sent by telecopier to a party at the
number listed below for such party (with a telecopier machine or computer
generated confirmation sheet retained by the sender):
If to PHII: Mr. Robert Earl
or PHMemo Chairman and Chief Executive Officer
Planet Hollywood International, Inc.
8663 Commodity Circle
Orlando, Florida 32819
Telecopier: (407) 351-4511
with copies to:
Mark S. Helm, Esq.
Vice President & General Counsel
Planet Hollywood International, Inc.
8663 Commodity Circle
Orlando, Florida 32819
Telecopier: (407) 345-1115
29
If to HOTEL JV: Mr. Robert Earl
Chairman and Chief Executive Officer
Planet Hollywood International, Inc.
8663 Commodity Circle
Orlando, Florida 32819
Telecopier: (407) 351-4511
With a copy to: Mr. Doug Teitelbaum
Bay Harbour Management, LC
885 Third Avenue, 34th Floor
New York, NY 10022
Telecopier:(212) 371-7497
With a copy to: Jones Day
2727 North Harwood
Dallas, TX 75201
Attn: Michael Weinberg, Esq.
Telecopier: (214) 969-5100
If to LENDERS: BNY Asset Solutions L.L.C. as Agent
600 East Las Colinas Blvd.
Suite 1300
Irving, Texas 75039
Attn: Mr. Jeff Scott
Telecopier:(972) 401-8555
With a copy to Kaye Scholer, L.L.P.
3 First National Plaza, Suite 4100
70 West Madison Street
Chicago, IL 60602
Attn: Michael Solow, Esq.
Telecopier:(312) 583-2361
Attn: Michael Santoro, Esq.
Telecopier: (310) 788-1200
With further copy to: General Electric Capital Corporation
Capital Funding, Inc.
Portfolio Group
401 Merritt Seven, 2nd Floor
Norwalk, Connecticut 06856
30
Attention: Carl Peterson, Aladdin Risk Manager
Telephone: (203) 229-1831
Facsimile: (203) 229-1992
And: Shea & Carlyon. Ltd.
233 S. Fourth Street, Second Floor
Las Vegas, Nevada 89101
Attention: Candace Carlyon, Esq.
Telephone: (702) 471-7432
Facsimile: (702) 471-7435
or to such other address or telecopier number as either party hereto may
designate by written notice. The parties shall acknowledge in writing any notice
given by personal delivery.
17. MISCELLANEOUS
17.1. This Agreement and the Restaurant License Agreement
set forth the entire agreement and understanding between the parties and
supersede and terminate all prior agreements, if any, relating in any way to the
use of THE MARKS, the DOMAIN NAMES and the MEMO by the parties, or to any other
subject matter contained herein, and merges all prior discussions between them.
Neither party has made or is making any representation or warranty (express or
implied) to the other with respect to the subject matter hereof, or to any of
their respective affiliates, agents, employees or consultants, except for those
expressly set forth in this Agreement. This Agreement shall not be construed
more strictly against one party than against the other merely by virtue of the
fact that this Agreement may have been physically prepared by one of the
parties, or such party's counsel, it being agreed that all parties and their
respective counsel have mutually participated in the negotiation and preparation
of this Agreement. Neither of the parties shall be bound by any definition,
condition, warranty or representation other than as expressly stated in this
Agreement. This Agreement may not be amended or modified except by a written
instrument signed by all of the parties and executed on behalf of PHII by their
chief executive officer, executive vice president, corporate secretary or
general counsel. In the event of any inconsistency between this Agreement and
the Restaurant License Agreement, the provisions of this Agreement shall
prevail.
17.2. Except as expressly provided herein, neither party
shall use the name or credit of the other in any manner whatsoever, nor incur
any obligation in the other's name, nor be held liable or accountable for any
obligations incurred by the other party. Nothing herein contained shall be
construed to constitute the parties as joint venturers or partners, nor shall
any similar relationship be deemed to exist between them. Nothing contained in
this Agreement shall be construed as constituting either party as the other's
agent without the first party's special authorization in writing; it is
specifically understood and agreed that under no circumstance shall
31
any power granted, or which may be deemed to be granted to either party, be
deemed to be coupled with an interest; and it is further specifically understood
and agreed that the respective businesses of each of the parties shall be
operated separate and apart from the other party.
17.3. No covenant or condition of this Agreement can be
waived except by the written agreement of the parties, executed on behalf of
PHII by their chief executive officer, executive vice president, corporate
secretary or general counsel. Forbearance or indulgence by a party in any regard
whatsoever shall not constitute a waiver of the covenant or condition to be
performed by the other party to which the same may apply, and, until complete
performance by the obligated party of such covenant or condition, the benefiting
party shall be entitled to invoke any remedy available to it under this
Agreement or at law or in equity, despite such forbearance or indulgence.
17.4. The terms and provisions of this Agreement shall bind
any permitted assigns and successors of a party; provided, however, that any
such assignee shall assume all of the duties, obligations, rights, liabilities,
agreements, covenants and responsibilities of the assigning party hereunder. An
assigning party shall not be released from any such duty, obligation, liability,
agreement, covenant or responsibility to the other party as a result of any
assignment permitted by this Section, unless and to the extent the same shall
have been fulfilled by such permitted assignee, and the assigning party shall
continue to remain primarily liable to the other party under this Agreement.
17.5. Each party hereby agrees that this Agreement and the
licenses granted hereby are not assignable or transferable, except as otherwise
set forth herein without the prior written consent of PHII, which consent shall
not be unreasonably withheld, delayed or conditioned. PHII may assign this
Agreement in whole to any Person which is controlled by PHII. HOTEL JV may
assign its interest in and rights under this Agreement and the licenses granted
hereunder to the Lenders. PHII and PHMemo agree to execute an "Assignment of
Contract" substantially in the form of Exhibit P to the Loan Agreement and
Licensor Subordination and Cooperation in the form of the attached Exhibit D,
which provides, among other things, that following the occurrence and
continuance of an Event of Default under the Loan Agreement, the Lenders may (a)
terminate this Agreement without payment of any penalty or termination fees or
(b) succeed to the interests of HOTEL JV and either retain or sell such interest
to a third party assignee in connection with the Complex without the payment of
any fees (other than the continuation of Continuing Fees, Retail Royalties and
other fees and charges set forth in this Agreement payable during the period of
time Lenders had title to the Complex); provided, however, that any third party
shall assume all of the duties, obligations, rights, liabilities, agreements,
covenants and responsibilities of HOTEL JV hereunder; provided further, however,
that if the Lenders succeed to HOTEL JV's interest in the Complex and License
and this Agreement is not terminated, the Lenders shall recognize this Agreement
and perform the obligations of the License during such period that Lenders own
the Complex (but shall have no obligation to assume this Agreement).
32
17.6. The parties hereto, when requested by another party,
shall give all reasonable and necessary cooperation with respect to any
reasonable matters relating to the transactions contemplated by this Agreement.
17.7. This Agreement is for the benefit of, and may be
enforced only by, the parties signing this Agreement and their respective
successors and permitted assignees, and is not for the benefit of, and may not
be enforced by, any third party.
17.8. The parties agree that this Agreement, all questions
with respect to the construction of this Agreement shall be governed by and
determined in accordance with the laws of the State of New York applicable to
agreements entered into and performed entirely within the State of New York
without giving effect to the choice or conflicts of laws provisions thereof.
Each of the parties hereto (i) irrevocably submits itself to the jurisdiction of
either the United States District Court for New York or the New York State
Courts, for the purposes of any suit, action or other proceeding brought by the
other, or its respective successors or assigns, with respect to this Agreement,
and (ii) to the extent permitted by applicable law, hereby waives, and agrees
not to assert, by way of motion, as a defense or otherwise in any such suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of the above-named courts, that the suit, action or proceeding is
brought in an inconvenient forum, or that the venue of the suit, action or
proceeding is improper in such courts.
17.9. If any section (or part thereof) of this Agreement is
found by a court of competent jurisdiction to be contrary to, prohibited by,
unenforceable or invalid under any applicable law, such court may modify such
section (or part thereof) to achieve the parties' apparent objective in
connection therewith to the fullest extent possible, so, as modified, such
section (or part thereof) will be valid, legal and enforceable in such
jurisdiction. The validity, legality and enforceability of such provision shall
not in any way be affected or impaired thereby in any other jurisdiction. If
such provision cannot be amended by said court without materially altering the
intention of the parties, the parties shall negotiate an amendment to such
provision within ninety (90) days, failing which such provision shall be
stricken and the remainder of this Agreement shall continue in full force and
effect.
17.10. Unless the context of this Agreement clearly requires
otherwise: (i) references to the plural include the singular and vice versa;
(ii) references to any person include such person's successors and assigns but,
if applicable, only if such successors and assigns are permitted by this
Agreement; (iii) references to one gender include all genders; (iv) "including"
is not limiting; (v) "or" has the inclusive meaning represented by the phrase
"and/or"; (vi) the words "hereof", "herein", "hereby", "hereunder" and similar
terms in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement; (vii) section, subsection, clause,
schedule and exhibit references are to this Agreement unless otherwise
specified; (viii) reference to any agreement (including this Agreement),
document or instrument
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means such agreement, document or instrument as amended or modified and in
effect from time to time in accordance with the terms thereof and, if
applicable, the terms hereof; and (ix) general or specific references to any law
means such law as amended, modified, codified or re-enacted, in whole or in
part, and in effect from time to time.
17.11. All monetary amounts expressed in this Agreement and
all payments required by this Agreement are and shall be in United States
dollars.
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.
THIS SPACE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have hereunto signed this Agreement the
day and year first written herein.
PLANET HOLLYWOOD
INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ Robert Earl
-------------------------------
Name: Robert Earl
Title CEO & President
PLANET HOLLYWOOD
MEMORABILIA, INC.,
a Florida corporation
By: /s/ Robert Earl
-------------------------------
Name: Robert Earl
Title CEO & President
PLANET HOLLYWOOD
(REGION IV), INC.,
a Minnesota corporation
By: /s/ Robert Earl
-------------------------------
Name: Robert Earl
Title CEO & President
OPBIZ, L.L.C.
a Nevada Limited Liability company
By: /s/ Douglas P. Teitelbaum
-------------------------------
Name: Douglas P. Teitelbaum
Title Attorney-in-Fact
By: /s/ Robert Earl
-------------------------------
Name: Robert Earl
Title Attorney-in-Fact
35