EXHIBIT 10.67
WAIVER AND CONSENT AGREEMENT
Parties
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ "▇▇▇▇▇▇▇"
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ "▇▇▇▇▇▇"
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ "▇▇▇▇▇▇▇"
HOB ENTERTAINMENT, INC. "HOB"
Recitals
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▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ are parties to a Licensing Agreement
dated February 18, 1992 (the "Licensing Agreement").
▇. ▇▇▇▇▇▇▇ and HOB wish ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ to waive certain rights they
each have under the Licensing Agreement and consent to certain actions.
▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ wish to grant such waiver and consent in
consideration of the terms and conditions contained in this Waiver and Consent.
Agreement
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In consideration of the mutual promises contained herein, the parties
agree as follows:
1. Waiver. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ each waive his or her respective rights
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under Section 9 of the Licensing Agreement in connection with HOB and any
current or future subsidiary (whether or not wholly-owned) of HOB.
2. ▇▇▇▇▇▇▇ Option. HOB hereby grants ▇▇▇▇▇▇▇ the right to purchase up
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to $1,000,000 of its Class A Convertible Preferred Stock at the same price
offered to other investors in accordance with the terms of the private placement
of HOB securities as described in the Private Placement Memorandum dated
December 4, 1992, as thereafter supplemented (the "Private Placement"), provided
that ▇▇▇▇▇▇▇ makes his purchase at the Initial Closing (as such term is defined
in that certain Class A Preferred Stock Purchase Agreement, dated June ___,
1993, by and between the Company and the Investors (as defined therein, the
"Stock Purchase Agreement").
3. ▇▇▇▇▇▇ Option. HOB hereby grants ▇▇▇▇▇▇ the right to purchase up to
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212,963 shares of its Class A Convertible Preferred Stock, at the same purchase
price offered to other investors in the Private Placement. Such right may be
exercised by Pisano at any time, in whole or in part, before the earlier of
the date that is three years after the Initial Closing of the Private Placement
or the date of HOB's initial public offering of securities pursuant to a firm
commitment underwriting agreement.
4. Preemptive Rights. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ shall have the right
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of first refusal to purchase securities of HOB as set forth in that certain
Stockholders Agreement, dated June , 1993, by and among HOB, the Investors
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(as defined therein) and the Stockholders (as defined therein). HOB has not
granted preemptive rights to acquire the securities of any subsidiary
corporation of HOB and will not grant to any Investor as defined in the Stock
Purchase Agreement (other than in connection with a new investment by such
Investor) any such preemptive rights without concurrently granting to each of
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ the preemptive right to acquire up to 5% of such subsidiary
on the same terms offered to the Investors.
5. Consent to Assignment. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ hereby consent to the
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assignment by ▇▇▇▇▇▇▇ of all his rights under the Licensing Agreement to House
of Blues Brands Corp. (formerly known as House of Blues Trademark Company), a
Delaware corporation and a wholly owned subsidiary of HOB. ▇▇▇▇▇▇▇ shall
provide ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ with a copy of the written assignment to House of
Blues Brands Corp. This consent shall not be deemed a consent to any further
assignment, and any further assignment shall remain subject to the consent and
other requirements of the Licensing Agreement. However, House of Blues Brands
Corp., as a result of said assignment, has the same rights to sublicense as
were granted to ▇▇▇▇▇▇▇ in the Licensing Agreement. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ also
hereby consent to the sale of the Class A Convertible Preferred Stock pursuant
to the Stock Purchase Agreement.
6. Guaranty. HOB hereby guarantees payment of all royalties
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due to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ under the Licensing Agreement, and also agrees to
cause all HOB majority-owned subsidiaries who become sublicensees under the
Licensing Agreement to guarantee payment of all sublicense fees and royalties
due from House of Blues Brands Corp. with respect to the operations of such
subsidiary. HOB agrees to, and to cause each majority-owned subsidiary who
becomes a sublicensee under the Licensing Agreement to, deliver to ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ a signed guarantee, in form and substance reasonably acceptable to
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇.
7. Financial Information. HOB shall deliver to ▇▇▇▇▇▇ the
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financial information to which she would be entitled under Section 7.1 of the
Stock Purchase Agreement if she were an "Investor" thereunder owning less than
375,000 shares of the Class A Preferred Stock of HOB.
8. Additional Sublicense Provisions. ▇▇▇▇▇▇▇ and HOB agree,
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that in addition to the existing requirements in the
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Licensing Agreement regarding sublicenses, all sublicense agreements (whether
with HOB majority-owned subsidiaries or otherwise) shall also contain provisions
acknowledging that ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ are third party beneficiaries of the
sublicense agreement, that the sublicensee guarantees to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ all
sublicense fees and royalties due to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ under the Licensing
Agreement with respect to the operations of said sublicensee and that should the
sublicensee reasonably believe that the liability under its guarantee may arise,
it may, at its option, pay its sublicense fees or royalties directly to ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ to the extent due to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇.
9. Deemed Amendment. To the extent Section 8 of this Waiver and Consent
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amends, changes or modifies Section 6 of the Licensing Agreement, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ all consent to such amendment, change or modification and
each of them hereby affirms the Licensing Agreement, as amended by that certain
Amendment No. 1 to the Licensing Agreement, effective as of the effective date
hereof, in all other respects.
10. Subsidiaries. HOB represents that it has six subsidiaries, each of
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which is wholly-owned by HOB, directly or indirectly. HOB directly owns House of
Blues Cambridge Restaurant Corp., House of Blues New Orleans Restaurant Corp.,
House of Blues Los Angeles Restaurant Corp., House of Blues Chicago Restaurant
Corp. and House of Blues Brands Corp. House of Blues Brands Corp. owns House of
Blues Records, Inc.
11. Certificate of Insurance. HOB represents that it maintains insurance
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coverage in accordance with the requirements of Sections 19, 20 and 21 of the
Licensing Agreement, except that the certificate of insurance provides for
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thirty days' advance written notice to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ of cancellation for
other than non-payment of premiums, and ten days' advance written notice of
cancellation for non-payment of premiums. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ accept such
certificate of insurance as issued.
12. Counterparts. This Waiver and Consent may be signed in counterparts,
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by original or facsimile signature, with each counterpart constituting an
original and all counterparts together shall constitute one and the same
instrument.
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13. Effective Date. This Waiver and Consent is executed as of the date
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hereof, but shall become effective only upon the Initial Closing.
IN WITNESS WHEREOF, the parties have executed this Waiver and Consent on
this ___ day of June, 1993.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
HOB ENTERTAINMENT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President