EXHIBIT 10.52
LICENSE AGREEMENT
by and between
HARD ROCK CAFE INTERNATIONAL (USA), INC.
and
FULL HOUSE MISSISSIPPI, LLC
Dated: as of November 18, 1998
TABLE OF CONTENTS
SECTION PAGE
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RECITALS..........................................................................................................1
TERMS AND CONDITIONS..............................................................................................1
SECTION 1. DEFINITIONS AND INTERPRETATION................................................................1
(A) Definitions............................................................................1
(B) Scope of Terms.........................................................................9
(C) Reference Terms........................................................................9
(D) Other Agreements.......................................................................9
SECTION 2. GRANT; SCOPE.................................................................................10
(A) Grant.................................................................................10
(B) Scope.................................................................................10
(C) Reserved Rights.......................................................................10
(D) Restrictions..........................................................................10
SECTION 3. TERM; EXTENSION OF TERM......................................................................11
(A) Initial Term..........................................................................11
(B) Renewal Term..........................................................................11
(C) Early Termination.....................................................................11
SECTION 4. COMPENSATION TO LICENSOR.....................................................................12
(A) Territory Fee.........................................................................12
(B) Continuing Fees.......................................................................12
(C) Payment of Fees.......................................................................12
(D) Licensor Payment......................................................................12
(E) Late Payments.........................................................................13
(F) All Fees Are Nonrefundable............................................................13
SECTION 5. DEVELOPMENT/OPERATION OF HOTEL/CASINO........................................................13
(A) Licensee Responsible for Development..................................................13
(B) Site Review and Approval Rights.......................................................15
(C) Financing.............................................................................16
(D) Approval Rights.......................................................................16
(E) Additional Approvals..................................................................17
(F) Design Consultants....................................................................17
(G) Disputes..............................................................................18
(H) Advisory Services.....................................................................18
(I) Licensor May Delegate Duties..........................................................19
(J) Hard Rock Representative..............................................................19
(K) Licensor Only an Advisor..............................................................19
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(L) Pre-Opening Program...................................................................19
(M) Opening Date..........................................................................19
(N) Limitations of Prior Approvals........................................................20
(O) Ancillary Agreements..................................................................20
(P) Hotel Manager.........................................................................20
(Q) Sale of Securities....................................................................20
SECTION 6. LEASE........................................................................................21
(A) Lease of Licensed Location............................................................21
(B) Lease Terms and Conditions............................................................21
SECTION 7. PERSONNEL....................................................................................21
(A) Appointment of General Manager........................................................21
(B) Training of Management Personnel......................................................21
(C) Training Completed....................................................................21
(D) Training of Replacement Managing Personnel............................................21
(E) Full Staffing; Additional Training....................................................21
SECTION 8. ADVERTISING..................................................................................22
(A) Advertising Prior to Opening Date.....................................................22
(B) Advertising After Opening Date........................................................22
(C) Annual Marketing Plans................................................................22
(D) Cooperation with Licensor's Advertising Campaigns.....................................22
(E) Cooperation with Licensor.............................................................22
(F) Global Advertising Fund...............................................................23
(G) No Donations or Contributions.........................................................23
(H) Prior Approval of Advertising Materials...............................................23
(I) Approval of Other Advertising.........................................................23
(J) Licensee's Cross Promotions...........................................................24
(K) Internet..............................................................................24
SECTION 9. STANDARDS OF QUALITY AND OPERATION...........................................................25
(A) Operation of Hotel/Casino Must Meet Quality Standards.................................25
(B) Licensee's Obligations................................................................25
(C) Operating Coordinator.................................................................27
(D) Reserve Fund..........................................................................27
(E) Gaming................................................................................27
(F) Quality Notices.......................................................................28
SECTION 10. ADDITIONAL COVENANTS OF LICENSEE.............................................................28
(A) Keep Hotel/Casino Open; Obtain and Maintain Necessary Permits.........................28
(B) Attend Conferences....................................................................29
(C) Reasonable Efforts Required...........................................................29
(D) Maintenance of Hotel/Casino...........................................................29
(E) Participation in Charitable Causes....................................................29
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(F) Payment of Taxes and Other Indebtedness...............................................29
(G) Use of Approved Signage...............................................................29
(H) Appearance and Demeanor of Personnel..................................................29
(I) Atmosphere............................................................................30
(J) Permits to Effect Payments............................................................30
(K) Compensation to Personnel of Licensor.................................................30
(L) Software Systems......................................................................30
(M) Franchise Laws and Regulations........................................................30
SECTION 11. PROTECTION AND ACKNOWLEDGMENT OF THE LICENSED RIGHTS.........................................30
(A) Licensed Rights Exclusive Property of Licensor........................................30
(B) Licensee Has No Right of Ownership in Licensed Rights.................................31
(C) Licensee Will Not Challenge Licensor's Ownership of the Licensed Rights...............31
(D) Licensee to Cooperate Where Requested.................................................31
(E) Licensee's Duties.....................................................................31
(F) Hotel/Casino Name.....................................................................31
(G) Licensee's Duties.....................................................................31
(H) Licensee's Duties Regarding Infringement..............................................32
(I) Licensor's Exclusive Rights...........................................................33
SECTION 12. ACCOUNTING RECORD; RIGHT TO INSPECT..........................................................33
(A) Reporting Requirements................................................................33
(B) Licensee's Books and Records Available to Licensor....................................34
(C) Licensor's Right to Audit.............................................................34
(D) Record Retention; Delivery to Licensor................................................34
(E) Operating Equipment...................................................................35
SECTION 13. REQUIRED INSURANCE...........................................................................35
(A) Coverage..............................................................................35
(B) Insurance Carriers; Evidence of Coverage..............................................36
(C) Defense of Claims.....................................................................36
(D) Licensor's Rights.....................................................................37
SECTION 14. TERMINATION..................................................................................37
(A) Termination by Licensor...............................................................37
(B) Termination by Licensee...............................................................39
SECTION 15. LICENSEE'S OBLIGATIONS UPON TERMINATION OR EXPIRATION........................................40
(A) Termination of Use of Licensed Rights; Other Obligations..............................40
(B) Alteration of the Licensed Location...................................................40
(C) Transfer of Telephone Directory Listings..............................................40
(D) Rights Assignable.....................................................................41
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SECTION 16. TRANSFER.....................................................................................41
(A) Assignment By Licensor................................................................41
(B) Sale or Assignment By Licensee........................................................41
(C) Consent Procedures....................................................................41
(D) Effect of Sale or Lease...............................................................43
(E) Transfer of Controlling Interest in Licensee..........................................43
(F) Transfer Fees.........................................................................44
(G) Breach................................................................................44
SECTION 17. NON-COMPETITION..............................................................................44
(A) By Licensee...........................................................................44
(B) By Licensor...........................................................................45
(C) Necessity of Noncompetition Restriction; Injunctive Relief............................46
SECTION 18. DISPUTE RESOLUTION...........................................................................46
(A) Accounting/ Fee Disputes..............................................................46
(B) Other Disputes........................................................................47
SECTION 19. INDEMNIFICATION..............................................................................48
(A) Indemnification by Licensor...........................................................48
(B) Indemnification by Licensee...........................................................48
(C) Method of Asserting Claims............................................................49
(D) Survival..............................................................................49
SECTION 20. CONFIDENTIAL INFORMATION.....................................................................49
SECTION 21. OPTION TO ACQUIRE HOTEL/CASINO...............................................................50
(A) Option to Acquire Hotel/Casino........................................................50
(B) Purchase Price........................................................................50
(C) Closing...............................................................................50
SECTION 22. GENERAL PROVISIONS...........................................................................51
(A) Entire Agreement......................................................................51
(B) Notices...............................................................................51
(C) Independent Contractor Status.........................................................52
(D) Survival..............................................................................52
(E) Severability..........................................................................52
(F) Waivers...............................................................................52
(G) No Warranties or Guarantees...........................................................53
(H) Consents and Approvals................................................................53
(I) Informational Materials...............................................................53
(J) Expenses..............................................................................53
(K) Force Majeure.........................................................................54
(L) Absence of Third Party Beneficiary Rights.............................................54
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(M) Inflation Adjustment..................................................................54
(N) Assignment............................................................................54
(O) Headings..............................................................................55
(P) Counterparts..........................................................................55
(Q) Public Announcements..................................................................55
(R) No Solicitation.......................................................................55
(S) Franchise Laws Not Applicable.........................................................55
(U) Applicable Law........................................................................55
EXHIBITS
Exhibit A Licensed Marks
Exhibit B Form of Lease Agreement
Exhibit C Form of Memorabilia Lease
Exhibit D Examples of the Calculations of Required EBITDA,
Target EBITDA and the Section 4(D) Payment
Exhibit E Project Concept Plan
Exhibit F Description of Pre-Approved Site
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LICENSE AGREEMENT
This LICENSE AGREEMENT (the "AGREEMENT") is made and executed as of
November 18, 1998, by and between HARD ROCK CAFE INTERNATIONAL (USA), INC., a
Florida corporation ("Licensor"), and Full House Mississippi, LLC, a Mississippi
limited liability company ("Licensee").
RECITALS
A. Licensor owns or is the licensee of the rights to develop and
operate in the Competitive Territory music themed hotels and casinos under the
Hard Rock Hotel name (the "Hotel ▇▇▇▇").
B. Licensee is desirous of developing and operating a Hotel/Casino (as
hereafter defined) using the Hotel ▇▇▇▇ and certain other trademarks and has
requested that Licensor grant to the Licensee the Licensed Rights defined
hereunder and the other rights contained in this Agreement for use at the
Licensed Location within the Territory.
C. Licensee and Licensor desire to enter into this Agreement to have a
hotel and casino developed and operated at the Licensed Location within the
Territory upon the terms and conditions set forth herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and obligations contained herein, the grant by Licensor to Licensee of
the rights to utilize the Licensed Rights as contained herein, and for other
good and valuable consideration, the receipt and sufficiency of all of which is
hereby acknowledged by each party hereto, Licensor and Licensee hereby agree as
follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
(A) Definitions. For purposes of this Agreement, the following
definitions shall apply:
"AAA" shall have the meaning set forth in Section 18(B)(i) hereof.
"AAA RULES" shall have the meaning set forth in Section 18(B)(i)
hereof.
"ACCOUNTING REFEREE" shall have the meaning set forth in Section
18(A)(i) hereof.
"ACHIEVEMENT DATE" shall mean the earlier of (i) the last day of a
twenty-four (24) calendar month period beginning at any time after the end of
the first Operating Year in which the Licensee's aggregate EBITDA during such
period equals or exceeds the aggregate Target EBITDA for such period, or (ii)
the date Full House no longer holds a Controlling Interest.
"ADJUSTED EBITDA" shall mean, during the relevant period, Licensee's
EBITDA for such period increased by the amount of any Management Fees (as
defined in the Management Agreement) deferred with respect to such period
pursuant to Section 9.3(a) and (c) of the Management Agreement.
"ADJUSTED FOR INFLATION" shall have the meaning set forth in Section
22(M) hereof.
"ADVISORY SERVICES" shall have the meaning set forth in Section 5(H)
hereof.
"AFFILIATE" shall mean, with respect to any Person, any other Person
which, directly or indirectly, controls, is controlled by, or is under common
control with, such Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
"AGREEMENT" shall have the meaning set forth in the first paragraph
hereof.
"BOOKS AND RECORDS" shall have the meaning specified in Section 12(B)
hereof.
"BRANDED MERCHANDISE" shall mean those items of personal property,
products and merchandise bearing the Licensed Marks which Licensor sells in the
Hotel/Casino Retail Store leased to Licensor pursuant to the Lease Agreement.
"BUSINESS DAY" shall mean any day other than a day on which banking
institutions are required or authorized to be closed in Orlando, Florida or
Biloxi, Mississippi.
"CLAIMS" shall have the meaning set forth in Section 19(A) hereof.
"COMPETITIVE TERRITORY" shall mean the area within a 340 mile radius of
the Licensed Location, but in any event the Competitive Territory shall include
all of the State of Mississippi, and shall not include any portion of the State
of Tennessee or any portion of the Atlanta, Georgia Metropolitan Statistical
Area.
"CONFIDENTIAL INFORMATION" shall mean any information or material that
is proprietary to one of the parties hereto, or imparted or made available by
one of the parties hereto to the other party hereto, that, in either case, is
normally deemed confidential, including, but not limited to, certain legally
protectible portions of the Hotel/Casino System and related Manuals and all
information, components and elements set forth in such portions, and all
information, knowledge or data relating to new products and entertainment
concepts, and either party's strategic plans, pricing policies, recipes (other
than generic recipes) and the testing thereof, ideas, trade secrets, training
programs and techniques, proprietary ideas and concepts, marketing and
advertising techniques and plans, design, sourcing and providing goods and
services, customer research, and financial information concerning the
Hotel/Casino and its businesses; provided, however, that Confidential
Information shall not include information or material that: (i) is or becomes
generally available to the public other than as a result of a disclosure by the
party receiving it hereunder, (ii) is or becomes available to the
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party receiving it hereunder on a non-confidential basis form a source which, to
the knowledge of the party receiving it hereunder, is entitled to disclose it
without restriction, (iii) was known to the party receiving it hereunder prior
to its disclosure hereunder, or (iv) is verifiably developed by the party
receiving it hereunder without the benefit of the information or materials
disclosed hereunder. "Continuing Fee(s)" means the fee(s) Licensee will pay for
the duration of this Agreement to Licensor as consideration for the use of the
Licensed Rights under the terms and conditions of this Agreement, and as more
specifically provided for in Section 4 hereof.
"CONTRIBUTION" shall have the meaning set forth in Section 8(F) hereof.
"CONTROLLING INTEREST" shall mean both (i) the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of Licensee, whether through the ownership of voting securities, by
contract, or otherwise, and (ii) the direct or indirect ownership of twenty
percent (20%) or more of the equity interests of Licensee. For purposes of
determining whether Full House has a Controlling Interest in Licensee, clause
(ii) above shall be deemed satisfied as long as Full House, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and ▇▇▇▇ ▇▇▇▇▇▇▇▇ collectively own, directly or indirectly, twenty percent (20%)
or more of the equity interests of Licensee.
"DISPUTE" shall have the meaning set forth in Section 18(B)(i) hereof.
"DISPUTE NOTICE" shall have the meaning set forth in Section 18(A)(i)
hereof.
"EBITDA" shall mean, during the relevant period, net income, before (i)
interest charges (net of interest income), federal, state and local income
taxes, and depreciation and amortization, calculated in accordance with GAAP,
and (ii) any rent or similar expense relating to the lease of any portion of the
real property (other than tidelands) at the Licensed Location by Licensee as a
tenant.
"FEES" shall the meaning set forth in Section 4(C) hereof.
"FF&E" shall mean all furniture, fixtures and equipment (other than
Operating Equipment and Operating Supplies) located at or used in connection
with the Project, including without limitation: (i) all gaming equipment,
including without limitation, all slot machines and video gaming devices; (ii)
all furniture, furnishings, built-in furniture, carpeting, draperies, decorative
millwork, decorative lighting, doors, cabinets, hardware, partitions (but not
permanent walls), televisions and other electronic equipment, interior
plantings, interior water features, artifacts and artwork, and interior and
exterior graphics; (iii) communications equipment; (iv) all fixtures and
specialized hotel equipment used in the operation of kitchens, laundries, dry
cleaning facilities, bars and restaurants; (v) telephone and call accounting
systems; (vi) rooms management systems, point-of-sale accounting equipment,
front and back office accounting, computer, duplicating systems and office
equipment; (vii) cleaning and engineering equipment and tools; (viii) vehicles;
(ix) recreational equipment; and (x) all other similar items which are used in
the operation of the Project, excluding, however, any personal property which is
owned by subtenants, licensees, concessionaires or contractors.
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"FINANCING RATE" shall mean the annual interest rate attributable to
the Primary Debt. For purposes of calculating the amount of the Required EBITDA
and the Target EBITDA, the Financing Rate shall not exceed twelve percent (12%)
per annum.
"FISCAL YEAR" shall mean the twelve (12) month period commencing
January 1 and ending December 31, except that the first Fiscal Year shall be
that period commencing on the Opening Date and ending on the next December 31,
which is at least one (1) year thereafter.
"FORCE MAJEURE" shall have the meaning set forth in Section 22(K)
hereof.
"FULL HOUSE" shall mean Full House Resorts, Inc., a Delaware
corporation.
"GAAP" shall mean United States generally accepted accounting
principles as in effect from time to time.
"GOVERNMENTAL AUTHORITY" means any foreign, federal, state or local
governmental entity or authority, or any department, commission, board, bureau,
agency, court or instrumentality thereof having control over the Licensed
Location, the Hotel/Casino or the Project.
"HARD ROCK ELEMENTS" shall have the meaning set forth in Section
5(A)(iii)(a) hereof.
"HARD ROCK MARKS" shall mean the name "Hard Rock Cafe" and all
associated or related trademarks, trade names, service marks, logos, slogans,
trade dress, commercial symbols, and other intellectual property rights of
Licensor and its Affiliates related thereto.
"HARD ROCK STP" shall mean Hard Rock Cafe International (STP), Inc., a
New York corporation.
"HOTEL/CASINO" shall mean the hotel and casino and live music venue to
be developed and operated at the Licensed Location and all related improvements,
including FF&E, as approved in accordance with the provisions of this Agreement.
"HOTEL/CASINO SYSTEM" shall mean the method of operation of the
Hotel/Casino to be jointly developed by Licensor and Licensee pursuant to this
Agreement. The Hotel/Casino System, and all amendments or modifications thereto,
will be subject to the joint approval of Licensor and Licensee. Licensor and
Licensee shall jointly own the Hotel/Casino System, except for the Licensed
Rights incorporated into the Hotel/Casino System, which Licensed Rights will be
owned exclusively by Licensor.
"HOTEL/CASINO RETAIL STORE" shall mean that area within the Project to
be leased to Hard Rock STP pursuant to the Lease Agreement where Hard Rock STP
shall sell Branded Merchandise. Licensee shall build the Hotel/Casino Retail
Store in accordance with criteria specified by Licensor in the Lease Agreement.
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"HRC COMPETITOR" shall mean (a) a Planet Hollywood, Motown Cafe, House
of Blues, Rainforest Cafe, Country Star, or Harley Davidson Cafe, or (b) a
restaurant chain (i) operating under the same name in six or more Metropolitan
Statistical Areas, (ii) with theme-related icons or memorabilia displayed
throughout the premises in a museum or collection type manner (but excluding
self promotional items of a single individual), and (iii) which derives greater
than twenty percent (20%) of its gross revenues from the sales of merchandise.
"INDEMNIFY" means to defend, indemnify against, hold harmless from, and
reimburse for.
"INTEREST RATE" means the prime rate listed in the "Money Rates"
section of the WALL STREET JOURNAL from time to time plus four percent (4.0%)
per annum, provided that in no event shall the Interest Rate exceed the maximum
rate permitted by applicable Law(s).
"INVESTMENT AGREEMENT" shall mean that certain Investment Agreement, of
even date herewith, by and among Licensee, AEP & FHR LLC, Full House, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and Licensor.
"LAW(S)" means any and all laws, judgments, decrees, orders, rules,
regulations or official legal interpretations of any Governmental Authority.
"LEASE" shall have the meaning set forth in Section 6 hereof.
"LEASE AGREEMENT" shall mean that certain Lease Agreement by and
between Licensee, as landlord, and Hard Rock STP, as tenant, whereby Licensee
shall lease space within the Project to Hard Rock STP to operate a Hard Rock
Cafe and the Hotel/Casino Retail Store, in the form attached hereto as Exhibit
B.
"LICENSED MARKS" shall mean those Hard Rock Marks, as depicted (and
subject to the restrictions) set forth in Exhibit A hereto, as such exhibit may
from time to time be amended by written agreement of the parties to this
Agreement.
"LICENSED LOCATION" means the real property upon which the Hotel/Casino
is to be located as approved by Licensor pursuant to Section 5(B) hereof, and
includes such real property, all structures located or constructed thereon, all
FF&E, and all appurtenances to any of the foregoing, together with all
easements, entrances, exits, rights of ingress and egress thereto, and all
improvements thereon or thereto.
"LICENSED RIGHTS" means the right to use (i) the Licensed Marks, and
(ii) the trade dress elements representing the total image and overall
appearance of a Hard Rock Hotel and casino, including but not limited to,
distinctive exterior and interior designs, layouts, concepts, decor, color
schemes, music-related memorabilia and icons, furnishings, and staff uniforms;
all in accordance with this Agreement. Licensor will own all of the Licensed
Rights incorporated into the Hotel/Casino System, the Manuals, the Hotel/Casino
and/or the Project, in each case, whether developed by Licensor or Licensee.
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"LICENSING FEE REVENUES" shall mean, during the relevant period, the
aggregate of: (a) the Net Win from all gaming activities conducted at the
Hotel/Casino or within the Project, less any taxes imposed upon such Net Win
(other than income taxes, franchise taxes, or other taxes imposed generally on
Persons involved in non-gaming activities), (b) all revenues, income and
proceeds of any kind from the rental of guest rooms, conference rooms and
meeting rooms at the Hotel/Casino, excluding any Federal, state and municipal
excise, sales, resort, use, and other taxes collected from patrons or guests as
a part of or based upon the sales price of any goods or services, including,
without limitation, gross receipts, room, bed, admission, cabaret, or similar
taxes, and (c) the proceeds (after deduction from said proceeds of all necessary
expenses incurred in the adjustment or collection thereof) of business
interruption insurance actually received by Licensee with respect to the revenue
items described in subsections (a) and (b) of this definition with respect to
the Project.
For the avoidance of doubt, the parties agree that Licensing Fee
Revenues shall not include: (i) revenues from the Project's food and beverage
operations; (ii) revenues generated by Licensor at the Hard Rock Cafe and the
Hard Rock Retail Store located at the Project; (iii) revenues from the parking
facility; (iv) the value of complimentary hotel rooms; and complimentary gaming
(E.G., promotional "free pulls", slot tournaments, etc.); and (v) revenues from
any other ancillary Project facilities.
"MANAGEMENT AGREEMENT" shall mean that certain Management and
Development Agreement, of even date herewith, by and between Licensee and
Operator.
"MANAGEMENT STANDARD" shall mean the standard of a first-class resort
hotel as defined by the current standard as of the date hereof of the Hard Rock
Hotel located in Las Vegas, Nevada.
"MANUALS" shall mean, collectively, all operating manuals, training
manuals and all accompanying workbooks to be jointly developed by Licensor and
Licensee to implement the Hotel/Casino System pursuant to this Agreement. The
Manuals, and all amendments or modifications thereto, will be subject to the
joint approval of Licensor and Licensee. Licensor and Licensee shall jointly own
the Manuals, except for the Licensed Rights incorporated into the Manuals, which
will be owned exclusively by Licensor.
"MEMORABILIA LEASE" shall mean that certain Memorabilia Lease by and
between Hard Rock STP, as lessor, and Licensee, as lessee, whereby Hard Rock STP
shall lease "rock and roll" memorabilia to Licensee for display in the
Hotel/Casino, in the form attached hereto as Exhibit C.
"METROPOLITAN STATISTICAL AREA" shall mean the designation by the U.S.
Census Bureau for metropolitan areas with a central city or an urbanized area
having a minimum population of 50,000 with a total metropolitan population of at
least 100,000 and including all counties that have strong economic and social
ties to the central city.
"NET WIN" shall mean the amount remaining after payment of and accrual
for prizes to players, as defined by the Mississippi Gaming Commission on the
date hereof.
"NOTICE(S)" shall the meaning set forth in Section 22(B) hereof.
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"OPENING DATE" shall mean the date the Hotel/Casino is opened for
business to the public, the deadline of which is set forth in Section 5(M)
hereof.
"OPERATING AGREEMENT" shall mean that certain Operating Agreement, of
even date herewith, by and among Full House, Hard Rock STP and Operator.
"OPERATING COORDINATOR" shall have the meaning set forth in Section
9(C) hereof.
"OPERATING ELEMENTS" shall the meaning set forth in Section
5(A)(iii)(b) hereof.
"OPERATING PERIOD" means the period beginning with the Opening Date and
continuing for the term of this Agreement.
"OPERATING YEAR" shall mean the twelve consecutive (12) month periods
commencing on the first day of the first calendar month after the Opening Date
and ending on the last day of the twelfth full calendar month after the Opening
Date, except that the first Operating Year shall be that period commencing with
the Opening Date and ending on the last day of the twelfth full calendar month
after the Opening Date.
"OPERATOR" shall mean FH/HR Management, LLC, a Mississippi limited
liability company, and operator of the Project pursuant to the Management
Agreement.
"PERMITS" means any and all licenses, permits, approvals, variances,
waivers or consents from any Governmental Authority.
"PERSON" shall mean (i) an individual, corporation, partnership, joint
venture, limited liability company, limited liability partnership, estate,
trust, unincorporated, associated or other entity, (ii) any Federal, state,
county or municipal government or any bureau, department, political subdivision
or agency thereof, and (iii) a fiduciary acting in such capacity on behalf of
any of the foregoing.
"PREFERRED INVESTMENT" shall mean an amount equal to fifty percent
(50%) of the difference between (i) the Total Project Costs, and (ii) the
Primary Debt. For purposes of calculating the amount of the Required EBITDA, the
amount of the Preferred Investment shall not exceed $35,000,000.
"PRE-OPENING PERIOD" means the period from the date hereof until the
Opening Date.
"PRIMARY DEBT" shall mean, during any relevant period, the average
daily outstanding principal amount of all secured indebtedness incurred by
Licensee to finance the Total Project Costs. For purposes of calculating the
amount of Required EBITDA and the Target EBITDA, the amount of the Primary Debt
shall not exceed $200,000,000.
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"PROJECT" shall mean (i) the Hotel/Casino and its related amenities,
(ii) a barge to be moored at the site with approximately 42,000 square feet of
gaming space, (iii) a Hard Rock Live! music venue, (iv) all real property
interests at the Licensed Location, and (v) such other developments as the
parties may mutually agree to include in the Project, in each case, together
with all buildings, structures, FF&E, and improvements related thereto.
"PROTECTED PERSONS" shall the meaning set forth in Section 17(C)
hereof.
"REQUIRED EBITDA" shall mean, during any relevant period, an amount
equal to the sum of: (i) the Primary Debt, multiplied by the Financing Rate, and
(ii) the Preferred Investment, multiplied by ten percent (10%) per annum.
Examples of the calculation of Required EBITDA are set forth on Exhibit D to
this Agreement.
"RESERVE FUND" shall the meaning specified in Section 9(D) hereof.
"TARGET EBITDA" shall mean, during any relevant period, an amount equal
to the sum of: (i) the Primary Debt, multiplied by the Financing Rate, and (ii)
the amount of the Total Project Costs less the Primary Debt, multiplied by ten
percent (10%) per annum. Examples of the calculation of Target EBITDA are set
forth on Exhibit D to this Agreement.
"TERRITORY" shall mean the area within a twenty-five (25) mile radius
of the center of Biloxi, Mississippi.
"TOTAL PROJECT COSTS" shall mean the sum of: (i) the total aggregate
capitalized costs incurred by Licensee for the Project, as determined in
accordance with GAAP, (ii) $6.2 million, if the "▇'▇▇▇▇▇ parcel" is included as
part of the Licensed Location and is leased rather than purchased by Licensee,
and (iii) $5.25 million, if the "Suntan Motel parcel" is included as part of the
Licensed Location and is leased rather than purchased by Licensee. For purposes
of calculating the amount of Required EBITDA and the Target EBITDA, the amount
of the Total Project Costs shall not exceed $270 million. If any parcel of the
real property comprising the Licensed Location the cost of which was included as
part of the Total Project Costs is sold or otherwise transferred by Licensee,
then the $270 million limit on the amount of the Total Project Costs set forth
above shall be reduced by the acquisition cost of the parcel which is sold or
otherwise transferred at the time of such sale or transfer.
8
"TOTAL REVENUES" shall mean, during the relevant period, total revenue
as determined under GAAP, and in any event shall include, without limitation,
all income of every kind and all proceeds of sales of every kind (whether in
cash or on credit) resulting from the operation of the Project and any of the
facilities therein and goods and services provided thereby, including, without
limitation, (a) the Net Win from all gaming activities conducted at the Site or
within the Project, (b) all income and proceeds from the rental of rooms, food
and beverage sales, sales of other goods and services, (c) vending machine
income, telephone revenues, parking revenues, revenues from any recreational
facilities, and entertainment charges, (d) all income and proceeds received from
tenants, transient guests, customers, lessees, licensees and concessionaires,
including rental payments from the Hard Rock Cafe and the Hotel/Casino Retail
Store pursuant to the Lease Agreement (but not including the gross receipts of
such lessees, licenses or concessionaires) and other Persons occupying space at
the Project and/or rendering services to Project guests (but exclusive of all
consideration received at the Project for hotel accommodations, goods and
services to be provided elsewhere, although arranged by, for or on behalf of
Licensee), (e) the fair market values of any barter and other non-cash property
and services received by Licensee as an alternative to cash payments pursuant to
recurring practices that reduce or offset or substitute for revenues, (f) the
value (as reflected in the audited financial statements of Licensee) of any
Hotel rooms, facilities or services offered to guests, customers or clients
without charge or for a reduced charge, whether as part of a "frequent traveler"
program offered by Licensee or the Hotel manager or for any other reason, (g)
revenues arising from corporate sponsorships (where permitted herein), (h)
awards (other than condemnation awards for the value of the Project), any other
form of incentive payments or awards from any source whatsoever which are
attributable to the operation of the Project, (i) the proceeds from any
temporary taking (after deduction from said proceeds of all necessary expenses
incurred in the restoration of the improvements as may have been necessitated by
such taking), and (j) the proceeds (after deduction from said proceeds of all
necessary expenses incurred in the adjustment or collection thereof) of business
interruption insurance actually received by Licensee with respect to the
operation of the Project.
Notwithstanding the above, the following shall, however, be excluded
from Total Revenues: (i) all revenues, receipts and income of every kind
received by Licensor or any Affiliate of Licensor in respect of, or attributable
to, the Hard Rock Cafe and the Hotel/Casino Retail Store at the Licensed
Location; (ii) Federal, state and municipal excise, sales, resort, use, and
other taxes collected from patrons or guests as a part of or based upon the
sales price of any goods or services, including, without limitation, gross
receipts, room, bed, admission, cabaret, or similar taxes; (iii) any gratuities
collected and paid over to employees; (iv) the proceeds of any financing or
refinancing of the Project or capital contributions or advances to Licensee; (v)
interest on funds in the Reserve Fund; (vi) proceeds from the sale of any FF&E;
(vii) proceeds from the sale of the Hotel/Casino or other facilities included in
the Project; and (viii) proceeds of hazard insurance, other than business
interruption insurance.
(B) SCOPE OF TERMS. The use of the words defined herein shall include
the plural or singular forms of such terms, and the male, female, or neutral
gender thereof, as appropriate.
(C) REFERENCE TERMS. The use of the words "herein", "thereof",
"hereinafter", "hereinabove", and other words of similar import shall be deemed
to refer to this Agreement as a whole, and not to a specific section,
subsection, or paragraph thereof.
(D) OTHER AGREEMENTS. Any term that is defined herein by reference to
the Management Agreement shall mean the definition of such term in effect on the
date hereof under the Management Agreement.
9
SECTION 2. GRANT; SCOPE
(A) GRANT. Licensor hereby grants to Licensee, upon and subject to the
terms and conditions contained in this Agreement, the exclusive right and
license to develop, operate, own, and manage a hotel and casino and a Hard Rock
Live! facility using the Licensed Rights at the Licensed Location and to promote
such facilities anywhere in the world. Licensor's right to license, develop, own
or operate a Hard Rock Hotel with a casino or a Hard Rock casino within the
Competitive Territory during the term of this Agreement shall be subject to the
restrictions set forth in Section 17(B) hereof.
(B) SCOPE. All rights granted to Licensee hereunder are limited to the
establishment, operation and promotion of one hotel and casino and Hard Rock
Live! facility at and from the Licensed Location to the extent specifically
provided for in this Agreement. Licensee may not otherwise commercialize or
utilize, whether or not for profit, any of the Licensed Rights. Licensee may not
use the Hard Rock Marks unless they are Licensed Marks. The rights granted to
Licensee hereunder shall not entitle Licensee to sell Branded Merchandise from
the Licensed Location or any other location, and Licensee acknowledges that
Branded Merchandise may be sold at the Licensed Location only by Licensor or its
Affiliates or by a Person duly licensed by Licensor to sell Branded Merchandise.
The rights granted to Licensee do not include any rights to brand and operate
other facilities at the Hotel/Casino on or from the Licensed Location utilizing
the Hard Rock Marks, except as expressly approved in advance by Licensor, in its
sole discretion.
(C) RESERVED RIGHTS. Licensor reserves all rights respecting the Hard
Rock Marks not specifically granted to Licensee pursuant to this Agreement.
Nothing in this Agreement shall prevent Licensor or its Affiliates from (i)
developing or licensing others to develop: (a) Hard Rock Hotels with casinos or
Hard Rock casinos anywhere outside the Competitive Territory, (b) Hard Rock
Hotels (without casinos) anywhere outside the Territory, except as provided in
Section 17(B)(i) of this Agreement, (c) Hard Rock Cafes anywhere within the
Competitive Territory, except as provided in Section 17(B)(i) of this Agreement,
or anywhere outside the Competitive Territory, (d) Hard Rock Live! facilities
anywhere outside the Territory, except for a period of five (5) years after the
date of this Agreement, within the city limits of New Orleans, Louisiana, (e)
facilities utilizing the Hard Rock Marks (other than Hard Rock Hotels, Hard Rock
casinos, Hard Rock Cafes and Hard Rock Live! facilities) anywhere in the world,
and (f) resorts, hotels and/or casinos, and other facilities using any names or
marks other than the Licensed Marks, anywhere in the world, and (ii) promoting
and protecting all such facilities anywhere in the world. Licensee acknowledges
and agrees that no rights are or will be granted in this Agreement for the
development, construction, operation or maintenance or other interest in any
"Hard Rock Cafe".
(D) RESTRICTIONS.
10
(i) The rights granted to Licensee do not include any rights
to use or otherwise identify the Hard Rock name or the Licensed Marks with any
businesses or facilities other than for one hotel and casino and Hard Rock Live!
facility at and from the Licensed Location, except as expressly approved in
advance in writing by Licensor, in its sole discretion, and except that Licensee
may utilize the Licensed Marks on designation and directional signage and
consumables within the confines of the Hotel/Casino. Licensee shall not use or
register any trademark which is confusingly similar to the Licensed Marks or use
the Licensed Marks in any manner which creates a unitary or composite trademark
with the trademark of any third party. Licensee shall use the representations of
the Licensed Marks, with respect to the location of the words in the design
logo, only in the manner set forth in this Agreement with the words "Hard Rock
Hotel" or "Hard Rock Live!", as the case may be, within the circle logo and the
geographic or other designation described therein below the circle logo. Without
Licensor's express written consent, in its sole discretion, Licensee shall not
replace the words "Hotel" or "Live!" within the circle logo with any other
designation.
(ii) Neither Licensee nor its Affiliates shall, or shall
permit any third party to, at any time, construct, operate or maintain at the
Hotel/Casino (a) any other business that is confusingly similar to a Hard Rock
Cafe, or (b) any other business that utilizes the Hard Rock Marks, except as
expressly permitted herein, or take any actions that would infringe or otherwise
violate the Hard Rock Marks.
SECTION 3. TERM; EXTENSION OF TERM
(A) INITIAL TERM. This Agreement shall be effective and binding from
the date of its execution, as set forth on the first page hereof, and shall
continue for an initial term of twenty (20) Fiscal Years after the Opening Date,
unless sooner terminated as provided herein.
(B) RENEWAL TERM. Except as otherwise provided for in this Agreement,
Licensee shall have the option of renewing the term hereof for two (2)
successive ten (10) year renewal terms upon the same term and conditions as are
contained herein, by providing Licensor with written notice of its exercise of
its option not more than nine (9) months and not less than six (6) months prior
to the expiration of the then current term of this Agreement, provided that at
the time of the exercise of such option: (i) Licensee is not in default under
the terms of this Agreement or any other agreement between Licensee and Licensor
or any of its Affiliates, and (ii) the Continuing Fees received by Licensor with
respect to the two (2) most recent Fiscal Years prior to such date, less the
amount of any Section 4(D) Payments by Licensor with respect to such period,
equaled or exceeded Eight Million Dollars ($8,000,000), in the aggregate,
Adjusted for Inflation.
(C) EARLY TERMINATION. This Agreement shall immediately terminate in
the event that: (i) prior to the Opening Date, Licensor is notified by the
Mississippi Gaming Commission that it has been found unsuitable for a gaming
license in Mississippi and Licensor withdraws its application therefor, (ii)
prior to the Opening Date, Licensor has been formally notified by the
Mississippi Gaming Commission that it has been found unsuitable for a gaming
license in Mississippi, or (iii) at any time during the term hereof, Licensor's
gaming license is revoked or is not renewed by the Mississippi Gaming
Commission.
11
SECTION 4. COMPENSATION TO LICENSOR
(A) TERRITORY FEE. As consideration for the grant of the right to use
the Licensed Rights as provided herein, Licensee shall pay to Licensor a
territory fee of Two Million Dollars ($2,000,000) (the "TERRITORY FEE") as
follows: (i) One Million Dollars ($1,000,000) shall be payable on or before
November 30, 1998, and (ii) the balance of the Territory Fee shall be payable on
or before March 31, 1999. In the event this Agreement is terminated pursuant to
Section 3(C) above, the Territory Fee shall be refunded to Licensee as follows:
(i) if such termination occurs prior to the Opening Date, the entire amount of
the Territory Fee shall be refunded to Licensee (without interest), and (ii) if
such termination occurs during the period commencing on the Opening Date and
ending three (3) years after the Opening Date, the Territory Fee shall be
amortized over such three (3) year period and the unamortized portion of the
Territory Fee as of the date of such early termination shall be refunded to
Licensee (without interest). Except as provided in the preceding sentence, the
Territory Fee is non-refundable.
(B) CONTINUING FEES. As further consideration for the grant of the
right to use the Licensed Rights as provided herein, Licensee hereby agrees to
pay to Licensor a fee equal to five percent (5%) of the Licensing Fee Revenues
during the term of this Agreement (the "CONTINUING FEES").
(C) PAYMENT OF FEES. The Continuing Fees will be payable to Licensor
monthly, within ten (10) days after the end of each calendar month, based on
Licensing Fee Revenues generated during the preceding calendar month. The
Territory Fee and Continuing Fees and all other fees, contributions, expenses
and reimbursements due from Licensee hereunder (collectively, "FEES"), shall be
paid by wire transfer of immediately available funds to an account designated in
writing from time to time by Licensor.
(D) LICENSOR PAYMENT.
(i) For any Operating Year ending prior to the Achievement
Date, if Licensee's EBITDA during such Operating Year is less than its Required
EBITDA for such Operating Year, then Licensor shall pay to Licensee the
following amount:
(a) the lower of: (x) Licensee's Required EBITDA for
such Operating Year, less Licensee's Adjusted EBITDA for such
Operating Year; (y) the amount of Continuing Fees paid or
payable to Licensor pursuant to Section 4(B) above with
respect to such Operating Year; and (z) $2 million; less
(b) the amount by which the total rent paid to
Licensee as landlord (or its successors as landlord) under the
Lease Agreement with respect to such Operating Year exceeds
$2,020,000.
12
The amount payable by Licensor pursuant to this Section
4(D)(i) is referred to herein as the "SECTION 4(D) PAYMENT". Examples of the
calculation of the Section 4(D) Payment are set forth on Exhibit E to this
Agreement.
(ii) Within 120 days after the end of each Operating Year,
Licensee shall deliver to Licensor its calculation of the amount, if any, of the
Section 4(D) Payment. Within (30) days after its receipt of such notice, (a)
Licensor shall pay to Licensee the amount of the Section 4(D) Payment or (b)
Licensee shall have the right to deduct the amount of the Section 4(D) Payment
from the amount of the Continuing Fees payable by Licensee to Licensor pursuant
to Section 4(B) above. Licensor will not be required to pay the Section 4(D)
Payment within the thirty (30) day period provided for in the preceding sentence
and Licensee shall not have the right to deduct the amount of the Section 4(D)
Payment from the amount of the Continuing Fees payable hereunder if Licensor has
objected to Licensee's calculation of the Section 4(D) Payment within said
period as provided in Section 4(D)(iii) below.
(iii) Notwithstanding the payment of the Section 4(D) Payment
as provided in Section 4(D)(ii) above, Licensor shall have the right to object
to Licensee's calculation of the Section 4(D) Payment at any time by written
notice to Licensee, subject to the limitations set forth in Section 18(A)(iii)
hereof. Any such dispute shall be resolved by Licensor and Licensee in the
manner provided in Section 18(A) of this Agreement.
(E) LATE PAYMENTS. Unpaid amounts due and owing from Licensee or
Licensor, shall bear interest, pro rata per day, on the past due balance at the
Interest Rate; provided, however, that if the last day on which any such amounts
due and owing from Licensee or Licensor can be paid without being considered
past due falls on a non-Business Day, then the last day for paying such sums
without being considered past due shall be the next Business Day thereafter.
(F) ALL FEES ARE NONREFUNDABLE. No Fees or other sums payable hereunder
shall be refundable to Licensee, except as specifically provided herein.
Notwithstanding the foregoing, Licensor shall refund any overpayments made by
Licensee.
SECTION 5. DEVELOPMENT/OPERATION OF HOTEL/CASINO
(A) LICENSEE RESPONSIBLE FOR DEVELOPMENT.
(i) Licensee shall acquire and develop the Licensed Location
and the Hotel/Casino as provided in the Management Agreement, and shall, with
all reasonable diligence, construct, complete, furnish and equip the
Hotel/Casino, which in no event shall be of a lesser quality than the plans,
designs and specifications set forth in the Project Concept Plan (as defined
below), and in accordance with all of the requirements of this Agreement.
Licensee shall be solely responsible and solely at risk to make certain the
Licensed Location and the Hotel/Casino, as constructed and operated, comply in
all respect with all applicable Laws and all other requirements of all
Governmental Authorities.
13
(ii) The Project shall be designed and developed subject to an
aggregate maximum cost of $270,000,000 in accordance with in the project concept
plan and preliminary budget attached hereto as Exhibit E (the "PROJECT CONCEPT
PLAN"). The Project Concept Plan generally depicts the plans, designs and
specifications for the Hotel/Casino, which plans are subject to Licensor's
approval with respect to the Hard Rock Elements (as determined in its sole
discretion in accordance with subparagraph (D) below). The number of keys or
rooms within the Hotel shall not be less than 350 nor more than 500, without
Licensor's prior written consent, in its sole discretion. The Project Concept
Plan for the Hotel/Casino, and the Hotel/Casino as finally constructed, shall
include a retail establishment conforming to standards prescribed by Licensor
and set forth in the Lease Agreement, which retail establishment shall be leased
to Licensor pursuant to the Lease Agreement.
(iii) The Hotel/Casino shall be developed, constructed and
operated in accordance with the Hotel/Casino System, except as otherwise
mutually agreed by the parties hereto. The Hotel/Casino System shall involve
criteria consistent with the Project Concept Plan for the design, development
and operation of a hotel and casino that conforms to the image and overall
energy, ambience and theme of the Hard Rock Cafes and the Hard Rock Hotel
located in Las Vegas, Nevada. The Hotel/Casino System and Manuals shall be
jointly developed by Licensor and Licensee and shall include the following
elements:
(a)the "HARD ROCK ELEMENTS" relating to the overall
"look and feel" of a Hard Rock Hotel and Casino, and including but not
limited to (1) the use of distinctive exterior and interior designs,
layouts, concepts, decor, color schemes, music-related memorabilia and
icons, furnishings and staff uniforms; (2) the process for selecting
and training employees in all customer service and interface positions,
except for gaming employees; (3) the electronic visual and audio
aspects of the Hotel/Casino, including but not limited to music
selection and the use of videos; (4) the nature and quality of
entertainment and other media events and activities on the Hotel/Casino
premises; (5) advertising and marketing standards for the uses and
presentation of the Licensed Marks, including such usage in connection
with media events, television, radio and print, and coordination of
public relations activities; (6) any other use or display of the Hard
Rock trademarks; and (7) restaurant concepts and food and beverage
menus on the Hotel/Casino premises.
(b)the "OPERATING ELEMENTS" relating to the operation
of a hotel and casino generally, and including but not limited to (1)
quality and service criteria for food, beverage and bar services; (2)
the establishment and maintenance of operational standards regarding
quality assurance and quality control, cleanliness and image, customer
relations and customer service, including food and beverage operations,
and (3) any other aspect of the operation and management of the
Hotel/Casino which is outside the scope of the Hard Rock Elements.
The Hard Rock Elements and Operating Elements of the
Hotel/Casino System applicable to the Hotel/Casino shall be comparable to and on
a par with corresponding elements of the existing systems for the Hard Rock Cafe
restaurants and the Hard Rock Hotel in Las Vegas, Nevada (although it is
anticipated that the actual design and appearance of the Hotel/Casino and staff
uniforms may vary).
14
(iv) Licensor and Licensee shall jointly own the Hotel/Casino
System and the Manuals, except for the Licensed Rights incorporated into the
Hotel/Casino System and/or the Manuals, which will be owned exclusively by
Licensor. At all times during and after the term of this Agreement, each of
Licensor and Licensee and their respective Affiliates shall be entitled to use
for any other purpose: (i) the Hotel/Casino System and the Manuals, and (ii)
restaurant concepts and menus used at the Hotel/Casino at any time and from time
to time if such concepts and menus are not sufficiently significant to be
uniquely associated with the Hotel/Casino; provided, however, that Licensee and
its Affiliates shall not be permitted to use, or authorize any other Person to
use, any of the Licensed Rights incorporated into the Hotel/Casino System and/or
the Manuals, except as otherwise permitted in this Agreement. The provisions of
this clause (iv) shall survive the termination of this Agreement.
(B) SITE REVIEW AND APPROVAL RIGHTS. (i) Licensor has reviewed and
preapproved the site described on Exhibit F attached hereto (the "PREAPPROVED
SITE"). Prior to any commitment by Licensee to a location other than the
Preapproved Site, Licensee shall have submitted to Licensor a written request
for written approval by Licensor of such proposed site, and the specific
location of the Hotel/Casino thereon. The written request for approval of a
proposed site shall be accompanied by a feasibility study for the proposed site
comparable to the feasibility study prepared for the Preapproved Site and all
other locational, demographic, and operating information as Licensor shall
reasonably request, including, without limitation, area maps, initial site
plans, initial floor plans and layouts, initial business and operating plan
(including Total Revenues and expense projections), basic demographic and
traffic pattern information, local transportation and parking facilities, and
location of competing establishments. Licensee shall also provide Licensor with
a site report for the Hotel/Casino (the "REPORT"). The Report shall include
salient features of the proposed site, building type and placement information
(and anticipated development expenditures, preliminary plans, specifications or
sketches of the Hotel/Casino) and other information reasonably requested by
Licensor in order to understand the Hotel/Casino and surrounding development.
Licensee shall bear all costs it incurs in connection with the preparation and
delivery of any feasibility studies and Reports pursuant hereto. Licensor shall
be permitted to visit and inspect the proposed site prior to date by which it
would be required to submit any objections to such proposed site, and
thereafter. Licensor's approval of the proposed site will not be unreasonably
withheld provided that the projected revenues set forth in the feasibility study
for the proposed site are not less than eighty percent (80%) of the projected
revenues set forth in the feasibility study prepared by Urban Systems Inc.
(dated November 1997) for the Preapproved Site. Otherwise, Licensor's approval
may be withheld in its sole discretion. In the event Licensor does not approve
any proposed site, Licensor shall provide to Licensee in reasonable detail the
reasons therefor. Licensor will approve or disapprove of the location proposed
by Licensee within sixty (60) days following the submission of all information
requested by Licensor. The failure by Licensor to approve or disapprove a
proposed site within such sixty (60) day period shall be deemed to be an
approval of such proposed site by Licensor. A site for the Hotel/Casino shall be
selected by Licensee and approved by Licensor as provided above and acquired by
Licensee no later than three (3) years after the date of this Agreement.
15
(ii) Licensee hereby acknowledges and agrees that the
selection of a site as provided above, or the failure of Licensor to object to a
site, does not constitute an assurance, representation or warranty by Licensor
of any kind, express or implied, as to the suitability (commercially or
otherwise) of the site for the Hotel/Casino or for any other purpose. Both
Licensor and Licensee acknowledge that application of criteria that may have
been effective with respect to any other site and premises may not be predictive
of commercial or other potential for all sites and that, subsequent to the
selection of a site, demographic and/or economic factors, such as competition
from other similar businesses, could change, thereby altering the potential of
the site. Such factors are unpredictable and are beyond Licensor's control, and
Licensor shall not be responsible for the failure of a site approved by Licensor
to meet expectations as to revenue, income or operational criteria. Licensee
further acknowledges and agrees that acceptance of a site of a Hard Rock Hotel
is based on its own independent investigation of the suitability of the site.
(C) FINANCING. (i) Prior to Licensee or its Affiliates entering into
any direct or indirect financing arrangement with respect the Project, Licensee
shall submitted to Licensor a written request for written approval by Licensor
of its proposed financing for the Project. Such approval may be withheld in
Licensor's reasonable discretion, but, in the event of any such disapproval,
Licensor shall provide to Licensee in reasonable detail the reasons therefor.
The written request for approval of the financing for the Project shall include
a general description of all of the material terms of the proposed financing and
detailed budgets for the Project. Licensee shall provide Licensor with such
additional information and documentation regarding the proposed financing for
the Project as Licensor may reasonably request. Licensor will approve or
disapprove of the proposed financing for the Project within thirty (30) days
following the submission of all information requested by Licensor. The failure
by Licensor to approve or disapprove the proposed financing within such thirty
(30) day period shall be deemed to be an approval of such financing by Licensor.
Licensee shall have obtained Licensor's approval and secured all necessary
financing and/or equity contributions to complete the Project not later than
three (3) years following the execution of the Agreement.
(ii) Licensee hereby acknowledges and agrees that: (a)
Licensor has not made any agreements or commitments of any kind, whether express
or implied, to Licensee that Licensor or any of its Affiliates will provide a
completion guaranty or any other financial assistance to Licensee in connection
with its financing of the Project, and (b) if Licensor or any of its Affiliates
do agree to provide financial assistance to Licensee, then the terms of such
financial assistance will be subject to Licensor's or such Affiliates' approval,
in its sole and absolute discretion.
(D) APPROVAL RIGHTS. Notwithstanding any provision of this Agreement to
the contrary, Licensor shall have full discretionary approval, in its sole
discretion, over all aspects of the Project involving Hard Rock Elements.
Licensor's approval rights shall not include approval over the design and layout
of the gaming area (E.G., the placement within the gaming area of table games,
slot
16
machines, cashier's cages and other elements associated with gaming activity)
but shall include approval, in its sole discretion, over the display and use of
the Licensed Marks within the gaming area. Licensor shall not have the right to
require Licensee to alter, change or remove any item which was previously
approved by Licensor in accordance with this Agreement. Licensor agrees to
reasonably consult with Licensee with respect to its approval over the aspects
of the Project involving Hard Rock Elements.
(E) ADDITIONAL APPROVALS. Licensee shall also timely submit to Licensor
for Licensor's approval prior to construction, purchase or hire, as applicable,
the following:
(1) all preliminary and final plans and specifications for the
Hotel/Casino and all FF&E, including, without limitation, all
preliminary and final designs, site plans, floor plans and layouts, and
artist renderings relating to the initial construction of the
Hotel/Casino, which approval shall not be unreasonably withheld;
(2) the identity and qualifications of the Project Manager for
the Project, which approval may be given or withheld in Licensor's sole
discretion;
(3) the identity and qualifications of all contractors,
architects and other consultants proposed to be utilized by Licensee
for preparation of the preliminary and final plans and specifications
for the Hotel/Casino and the construction of the Hotel/Casino, which
approval shall not be unreasonably withheld; and
(4) all such other information regarding the Project as
Licensor shall reasonably request.
Licensor shall have the right to disapprove any of the foregoing items
within five (5) Business Days of written submission by Licensee. If Licensor
fails to approve or disapprove of any item within such period, Licensee shall
notify Licensor of such failure, and Licensor shall have an additional five (5)
Business Days after such notice to approve or disapprove such item. The failure
by Licensor to approve or disapprove of any item prior to the end of the second
five (5) Business Day period shall be deemed to be an approval of such item by
Licensor. If Licensor disapproves any item, Licensor shall provide to Licensee
in reasonable detail the reasons therefor, together with general suggestions for
revisions.
(F) DESIGN CONSULTANTS. Licensor shall have the right to hire up to two
(2) design consultants to review the designs of the Hotel/Casino and consult
with the Project's architects and designers with respect to the Hard Rock
Elements and other aspects of the design of the Hotel/Casino. Licensee shall
reimburse Licensor for the fees and other expenses of such consultants, up to a
maximum aggregate amount of $75,000. Such amounts shall be payable by Licensee
within ten (10) days following Licensor's invoice therefor.
17
(G) DISPUTES. The parties agree to use their reasonable efforts to
promptly resolve any disputes regarding any approvals relating to the
development or operation of the Hotel/Casino. If the parties are unable to
resolve any dispute within five (5) Business Days, then either party shall have
the right to submit such dispute to arbitration as provided in Section 18 of
this Agreement (other than matters which are not subject to arbitration as
provided herein).
(H) ADVISORY SERVICES. Licensor will, upon Licensee's written request,
render the following advisory services to Licensee during the Pre-Opening Period
(the "ADVISORY SERVICES"):
(i) advice in formulating or refining the preliminary plans
and specifications for the construction of the Hotel/Casino and all
related Hotel/Casino facilities, including landscaping, and in
formulating or refining preliminary layouts, drawings, and designs for
the interior of the Hotel/Casino and the furnishing and equipping
thereof, and, in connection therewith, may recommend to Licensee
layouts and other criteria and specifications for the facilities to be
included in the Hotel/Casino;
(ii) advice as to architects, contractors, engineers,
designers, decorators, landscape architects, and such other specialists
and consultants as shall be necessary for completing the Hotel/Casino,
provided, however, that Licensee shall not be obligated to utilize any
such Person recommended by Licensor, and Licensor shall have no
liability or responsibility for any act or omission of any such Person
utilized by Licensee; and
(iii) advice in preparing budgets for the initial purchase of
FF&E for the Hotel/Casino.
It is the intention of the parties hereto that responsibility for
implementation of each of the foregoing items is upon Licensee, but that
Licensor shall remain available to assist Licensee in such implementation. All
reasonable costs incurred by Licensor after the date hereof for up to three (3)
representatives of Licensor to attend up to seven (7) meetings, including,
without limitation, travel, accommodations, and other reasonable expenses
incurred by Licensor in providing Advisory Services, shall be reimbursed by
Licensee commencing after Licensee obtains its financing for the Project within
ten (10) days following invoice therefor.
Licensor, where practical and in its sole discretion, shall make
available to Licensee Licensor's facilities for the purchase of required FF&E,
and other necessary items, and may recommend to Licensee a firm or firms from
which such items may be purchased. Any such purchase through Licensor's
facilities shall be subject to such ▇▇▇▇▇ ▇▇▇▇-ups or other charges as to which
Licensor and Licensee may mutually agree in each instance. Any such purchase
through sources recommended by Licensor shall include an acknowledgment, in form
acceptable to Licensor, specifying that the seller is not contracting with
Licensor, and that Licensor is not responsible for any payment or performance by
Licensee. Licensee shall not be obligated to purchase such items from the firms
or sources recommended by Licensor; provided, however, that, prior to purchasing
from nonrecommended sources, Licensee shall submit to Licensor such samples
and/or other information with respect to the proposed purchases as shall be
necessary to assure Licensor that the
18
quality, design, and safety of such items, together with their compliance with
applicable Law, is at least equal to that available from sources recommended by
Licensor, and that the design, appearance, and all other aspects thereof conform
to the requirements of this Agreement.
(I) LICENSOR MAY DELEGATE DUTIES. In rendering the Advisory Services,
Licensor shall have the right, at its sole discretion, to be assisted by third
Persons, and, accordingly, some or all of such Advisory Services which Licensor
undertakes to provide under this Agreement may be provided by such third
Persons. Licensor may, upon Notice to Licensee, require Licensee to pay directly
to any such third Person any portion or all of any payment due to Licensor
hereunder.
(J) HARD ROCK REPRESENTATIVE. Licensor shall have the right, but not
the obligation, to assign a full time or part time, representative at the
Project to act as Licensor's on-site representative during the Pre-Opening
Period (the "HARD ROCK REPRESENTATIVE"). The responsibilities of the Hard Rock
Representative shall include acting as a liaison between Licensor and Licensee
with respect to Licensor's approval rights under Sections 5(D) and 5(E) hereof
and the Advisory Services to be rendered by Licensor pursuant to Section 5(G)
hereof and to generally assist in the coordination of activities between
Licensor and Licensee, provided that the Hard Rock Representative shall not have
the authority to approve any matters requiring Licensor's approval under this
Agreement.
(K) LICENSOR ONLY AN ADVISOR. Licensee hereby acknowledges that
Licensor acts only an advisory capacity for purposes of this Section 5, and
Licensor shall not be responsible for the adequacy or coordination of any plans
or specifications, the structural integrity of any structures or the systems
thereof, compliance with applicable Laws, including, without limitation, any
building code of any Governmental Authority, or any insurance requirement, or
for the obtaining of any necessary Permits, all of which shall be the sole
responsibility, and at the sole risk, of Licensee. Upon request by Licensor,
Licensee shall supply Licensor with copies of all certificates of architects,
contractors, engineers and designers, and such other similar verifications and
information as Licensor shall reasonably request.
(L) PRE-OPENING PROGRAM. Licensor and Licensee shall cooperate with
each other to develop a written pre-opening program for the Project (the
"PRE-OPENING PROGRAM") specifying, in reasonable detail: (i) any services to be
provided by Licensor in connection with the Pre-Opening Program, as mutually
agreed by the parties hereto; (ii) any sales and promotion efforts by Licensor
in connection with the Pre-Opening Program, as mutually agreed by the parties
hereto; (iii) appropriate inaugural ceremonies for the Hotel/Casino, all as
mutually agreed by the parties hereto; and (iv) an estimate of other pre-opening
costs and expenses relating to the foregoing. Licensee shall reimburse Licensor
for the costs incurred by it to provide the services described in items (i) and
(ii) above, within ten (10) days after Licensor's invoice therefor, and shall
otherwise be solely responsible for payment of all such pre-opening costs and
expenses which are approved by Licensee with respect to the Project.
(M) OPENING DATE. Subject to Force Majeure, the Hotel/Casino shall be
in operation and open to the public not later than five (5) years following the
execution of the Agreement (the "OPENING DATE"), and shall thereafter remain
continuously open (during normal business hours) during the term of this
Agreement.
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(N) LIMITATIONS OF PRIOR APPROVALS. Notwithstanding any other term or
provision of this Agreement, the approval of any item by Licensor in accordance
with this Agreement shall not constitute a waiver by Licensor of its right to
insist upon strict compliance by Licensee with any of the other terms of this
Agreement, or prevent Licensor from requiring Licensee to alter, remove, replace
or repair any other item which was not previously approved by Licensor and which
does not comply with the requirements of this Agreement or any applicable Law.
(O) ANCILLARY AGREEMENTS. After the acquisition by Licensee of the site
for the Hotel/Casino and prior to the commencement of the construction of the
Hotel/Casino, Licensee and Hard Rock STP shall enter into the Lease Agreement
and the Memorabilia Lease.
(P) HOTEL MANAGER. Licensor shall have the right to approve the Person
engaged as the management company for the Hotel/Casino, which Person shall have
seven (7) years or more of experience in the management of two (2) or more
hotel/gaming properties. Licensor's approval of the management company for the
Hotel/Casino shall not be unreasonably withheld. In addition, if Full House,
directly or indirectly, manages or possesses an ownership or other interest in
the Person engaged as the management company for the Hotel/Casino, Licensor
shall have the right to participate in the management of the Hotel/Casino on an
equal basis with Full House, provided Licensor obtains (or possesses) any
required gaming licenses in connection therewith.
(Q) SALE OF SECURITIES.
(i) If Licensee or any of its Affiliates shall, at any time or
from time to time, "sell" or "offer to sell" any "securities" issued by it
through the medium of any "prospectus" or otherwise, it shall do so only in
compliance with all applicable federal or state securities laws, and Licensee
shall clearly disclose to all purchasers and offerees that (a) neither Licensor,
nor any of its Affiliates, nor any of their respective officers, directors,
agents or employees, shall in any way be deemed an "issuer" or "underwriter" of
said "securities," and that (b) Licensor, its Affiliates and said officers,
directors, agents and employees have not assumed and shall not have any
liability or responsibility for any financial statements, prospectuses or other
financial information contained in any "prospectus" or similar written or oral
communication.
(ii) Licensee shall deliver to Licensor three (3) draft copies
of any "prospectus" or similar communication delivered in connection with the
sale or offer by Licensee of any "securities" not less than (30) days prior to
the filing thereof with any Government Authority or the delivery thereof to any
prospective purchaser and three (3) copies of such materials in substantially
final form at least five (5) days prior to the filing thereof with any
Government Authority or the delivery thereof to any prospective purchaser.
Notwithstanding the above, Licensor shall have the right to approve the final
description of this Agreement and Licensee's relationship with Licensor
hereunder, and any use of the Licensed Marks contained in such materials.
Licensor's approval of the description of this Agreement and Licensee's
relationship with Licensor hereunder, and any use of the Licensed Marks
contained in such materials shall not constitute any judgment or determination
by Licensor that such description is in compliance with applicable disclosure
requirements.
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(iii) Licensee agrees to indemnify, defend and hold Licensor
and its Affiliates and their respective officers, directors, agents and
employees harmless of and from any and all liabilities, costs, damages, claims
or expenses arising out of or related to the "sale" or "offer" of any
"securities" of Licensee. All terms used in this Section 5(Q) shall have the
same meaning as in the Securities Act of 1933, as amended.
SECTION 6. LEASE
(A) LEASE OF LICENSED LOCATION. If Licensee is leasing any portion of
the Licensed Location as a tenant, Licensee shall provide Licensor with a copy
of all leases, use agreements or similar agreements for or relating to any real
property constituting any portion of the Licensed Location or the Hotel/Casino
(each, a "LEASE").
(B) LEASE TERMS AND CONDITIONS. Licensee shall use its commercially
reasonable efforts to include provisions in each Lease which permit, without
lessor's consent, the assignment of all of the right, title and interest of
Licensee under the Lease to Licensor or its designee.
SECTION 7. PERSONNEL
(A) APPOINTMENT OF GENERAL MANAGER. Prior to the Opening Date, Licensee
shall appoint a General Manager for the Hotel/Casino. Licensee shall provide
Licensor with all information available to Licensee as Licensor shall reasonably
request regarding the experience, qualifications and character of the individual
that Licensee proposes to appoint as General Manager of the Hotel/Casino. Such
appointment shall be subject to Licensor's reasonable approval.
(B) TRAINING OF MANAGEMENT PERSONNEL. Licensee shall require the
individual appointed as General Manager of the Hotel/Casino and the individuals
holding the top seven (7) management positions at the Hotel/Casino to attend not
more than one (1) week of initial training with respect to Licensor's methods,
procedures and protocols, at Licensee's expense, and such additional training as
Licensor requires from time to time for its own personnel, at a location to be
designated by Licensor.
(C) TRAINING COMPLETED. Licensee will not open the Hotel/Casino to the
public until the individuals described in Section 7(B) hereof have
satisfactorily completed all training required pursuant to Section 7(B).
(D) TRAINING OF REPLACEMENT MANAGING PERSONNEL. In the event any of the
individuals described in Section 7(B) ceases to be employed in such capacity by
Licensee, all approval and training requirements specified in Section 7(B) shall
be equally applicable to each employee replacing each such individual in such
position. Licensee shall use its reasonable efforts to promptly fill any vacant
Hotel/Casino management position described in Section 7(B).
(E) FULL STAFFING; ADDITIONAL TRAINING. Licensee will retain as
Hotel/Casino employees all such staff as may be required from time to time by
Licensor for the proper operation of the Hotel/Casino in accordance with the
terms of this Agreement and the Manuals, and will ensure that
21
such staff (and all replacements of each member thereof) are fully trained in
accordance with this Agreement and the Manuals. If and whenever required by
Licensor, each Hotel/Casino employee (including gaming employees) shall attend,
at Licensee's facilities, such initial and additional training with respect to
Licensor's methods, procedures and protocols as may be required by Licensor from
time to time. Licensor shall be responsible for its own costs and expenses in
providing such training.
SECTION 8. ADVERTISING
(A) ADVERTISING PRIOR TO OPENING DATE. Licensee will, prior to the
Opening Date and at Licensee's expense, carry out or cause to be carried out
advertising for the opening of the Hotel/Casino. Licensee shall utilize all
reasonable commercial efforts to diligently promote the Hotel/Casino by
advertisements on television and radio and in newspapers, magazines, telephone
or trade directories, distributions to customers and potential customers in the
most effective manner, point-of-service advertising material, and other forms of
publication.
(B) ADVERTISING AFTER OPENING DATE. Licensee will, subject to the
provisions of this section, during each Fiscal Year, expend at least three and
one-half percent (3.5%) of Total Revenues on advertising and publicity for the
Hotel/Casino. Advertising, marketing and publicity expenses qualifying under
this provision will include, but not be limited to, costs incurred for (i) media
(television, radio and print) advertising, (ii) Casino bus and air programs,
(iii) direct mail programs, including the value of goods and services provided,
(iv) Casino slot and table club programs, (v) promotions and giveaways including
tournaments, special events, drawings, and slot jackpot prizes, (vi) coupon
promotions, (vii) customer transportation reimbursement, (viii) customer gifts,
and (ix) complimentary goods and services provided to customers. All non-cash
expenses will be valued at normal retail transfer prices as reflected in
Licensee's financial statements, or at fair market value, where appropriate.
Licensee shall provide to Licensor, from time to time, promptly upon request,
such evidence of compliance with the requirements of this section as Licensor
shall reasonably request.
(C) ANNUAL MARKETING PLANS. Licensee shall prepare and submit to
Licensor a marketing plan for the Hotel/Casino for each Fiscal Year, including,
without limitation, Licensee's itemized (by category) projections of Total
Revenues and other operating results. Such plan shall be submitted to Licensor
no later than thirty (30) days before the beginning of each Fiscal Year.
(D) COOPERATION WITH LICENSOR'S ADVERTISING CAMPAIGNS. Licensee will,
at Licensor's request, cooperate reasonably with Licensor and Licensor's
Affiliates, and other licensees of Licensor and Licensor's Affiliates, in any
advertising campaign, sales promotion program or other special advertising
activity in which Licensor may engage or specify from time to time.
(E) COOPERATION WITH LICENSOR. Licensee shall publicize such
information and details of Licensor' s business operations and that of Licensor'
s Affiliates and other licensees of Licensor and Licensor's Affiliates in such
places in the Hotel/Casino as Licensor shall from time to time reasonably
require.
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(F) GLOBAL ADVERTISING FUND. Licensee shall contribute to Licensor's
Global Advertising Fund, an amount equal to one-half percent (0.5%) of its Total
Revenues, provided that such amount shall not exceed $500,000 per year (the
"CONTRIBUTION"), provided that such obligation shall not commence until such
time as Full House no longer owns a Controlling Interest in Licensee. The
Contribution will be payable to Licensor quarterly, within thirty (30) days
after the end of each calendar quarter, based on Total Revenues generated during
the immediately preceding calendar quarter. Such Contribution shall be used to
meet any and all of Licensor's costs in maintaining, administering, directing,
preparing and reviewing advertising materials and programs, and to provide for
worldwide advertising programs, as Licensor shall, in its sole discretion, deem
appropriate for the Hard Rock Marks. Licensee recognizes that Licensor is under
no obligation, in administering the Global Advertising Fund, to ensure that
expenditures are proportionate to Contributions of Licensee, or that Licensee
benefits directly or proportionately from the development or placement of
advertising supplied by or through the Global Advertising Fund. Licensor shall
not be obligated to expend all or any certain part of the Global Advertising
Fund during any specific period of time or to refund any of the same to
Licensee.
(G) NO DONATIONS OR CONTRIBUTIONS. Licensee will not, except with the
Licensor's prior written consent in each instance, make political or religious
donations or contributions or subscriptions of any variety, and will not, except
with the Licensor's prior written consent in each instance, permit any portion
of the Hotel/Casino or the Licensed Location to be used by any political party
or religious organization or for any political or religious purpose that is
endorsed or promoted by the Hotel/Casino.
(H) PRIOR APPROVAL OF ADVERTISING MATERIALS. No later than six (6)
months prior to the Opening Date, Licensor shall provide Licensee with a
branding manual which shall set forth the approved color, form and style of the
Licensed Marks in advertising and marketing materials and other specified uses
at the Project. All advertising carried out by Licensee utilizing the Licensed
Marks shall be in accordance with Licensor's standards and guidelines therefor
set forth in the branding manual. A copy of all advertisements and other
promotional materials utilizing the Licensed Marks in a manner other than in
accordance with the branding manual shall be submitted to Licensor prior to
publication of such advertisements or use of such promotional materials.
Licensee shall be legally responsible for the content of any advertising
material, other than with respect to the Licensed Marks or any content directly
reproduced from the branding manual, each of which shall be the legal
responsibility of Licensor.
(I) APPROVAL OF OTHER ADVERTISING. Licensee will not, in connection
with any advertising of the business or operations of the Hotel/Casino, utilize
any tradename, trademark, service ▇▇▇▇ or other intellectual property right
other than the Licensed Rights and other rights reasonably approved by Licensor.
Licensee will not advertise any product or service, or display any promotional
material in the Hotel/Casino, other than with respect to the business and/or
operations of the Project, provided that the foregoing shall not (i) apply to
Persons leasing commercial space at the Licensed Location from Licensee, or (ii)
restrict Licensee from operating and promoting "participation gaming" activities
(such as "Megabucks" and "Cool Million") in the Hotel/Casino.
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(J) LICENSEE'S CROSS PROMOTIONS. Licensee agrees not to enter into any
sponsorship or other similar arrangements providing for the marketing or
promotion of the Hotel/Casino or the Hotel Marks or the Licensed Marks jointly
with the name or trademark of another person or entity or otherwise associate
any other Person's name or trademarks with the Hotel Marks or the Hard Rock
Marks without the Licensor's written consent in its sole and absolute
discretion, and Licensee may engage in cross promotions at the Hotel/Casino or
utilizing the Licensed Marks only as approved in writing by Licensor.
(K) INTERNET. Licensee shall not in any manner utilize the Licensed
Marks on or in connection with any Internet Site, including but not limited to
any utilization or display of the Licensed Marks or any derivation thereof or
any trademarks, trade names, service marks, logos or designs confusingly similar
thereto, or in any buried computer code, meta-tags or otherwise, except as
specifically permitted herein. For purposes of this Agreement, the term
"INTERNET SITE" shall include any world wide web site, USENET, newsgroup,
bulletin board or other online service or any successor thereto at any
electronic domain name, address or location, or any other form of online service
or electronic domain name, address or location, or any other form of online
service or electronic commerce whatsoever, that is accessible by persons other
than Licensee's employees.
Licensor and its Affiliates may develop and maintain, or license the
development and maintenance, of an Internet Site for Branded Merchandise and
other products and other Hard Rock businesses as Licensor, in its sole
discretion, shall determine (a "HARD ROCK INTERNET SITE"). Licensor and its
Affiliates shall have the right to utilize any Licensed Marks on and in
connection with a Hard Rock Internet Site (and in any other manner whatsoever)
without payment or obligation of any kind to Licensee. Licensee shall not
participate in any manner in any revenues (and shall not be liable for any costs
and expenses) resulting from the offer and sale of Branded Merchandise on the
Hard Rock Internet Site, or by reason of any link from any Licensee Internet
Site (as defined in the following paragraph) to a Hard Rock Internet Site. At
Licensor's request, each advertisement of the Project shall prominently display
the Internet Uniform Resource Locator (URL) of a Hard Rock Internet Site
designated by Licensor to Licensee.
In the event that Licensee develops an Internet Site for the
Hotel/Casino (a "LICENSEE INTERNET SITE"), Licensee may include a simple link
from that site to a Hard Rock Internet Site designated by Licensor to Licensee,
provided that (i) the Hard Rock Internet Site shall not be framed or otherwise
made to appear as a part of the Licensee Internet Site or any other Internet
Site; (ii) such link shall not be designed so as to imply any association with
or endorsement by Licensor or the Hard Rock Internet Site with the Licensee
Internet Site or any other Internet Site; (iii) any use of the Licensed Marks on
the Licensee Internet Site shall be subject to Licensor's approval, in its sole
discretion; (iv) there are no other links on the Licensee Internet Site to any
other Internet Sites that (a) are offering any merchandise utilizing any Hard
Rock Marks or otherwise utilizing in any manner any Hard Rock Marks for the sale
of any merchandise (other than the Hard Rock Internet Site), or are otherwise
utilizing any Hard Rock Marks unless Licensee shall have obtained Licensor's
prior written approval to any links to such Internet Sites; or (b) are operated
by or on behalf of or otherwise promote any products or services of any person
or entity that would in Licensor's judgment be prejudicial to Licensor or the
Hard Rock Marks.
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SECTION 9. STANDARDS OF QUALITY AND OPERATION
(A) OPERATION OF HOTEL/CASINO MUST MEET QUALITY STANDARDS. Licensee
will, at all times, operate the Hotel/Casino as provided for herein consistent
with the high quality standards required of Licensee hereunder and in accordance
with the Hotel/Casino System and Manuals.
(B) LICENSEE'S OBLIGATIONS. Licensee shall:
(1) Refrain from using the Hotel/Casino, the Licensed Location
or any portion thereof for any purpose other than operating a
Hotel/Casino pursuant to provisions herein;
(2) Operate the Hotel/Casino and use the Licensed Rights in
the manner prescribed in this Agreement, the Hotel/Casino System and
the Manuals;
(3) Feature in the Hotel/Casino and on the various articles
therein as approved by Licensor, and in advertising and promotional
material, the names, logos, colors and other aspects of the Licensed
Marks in the size, color, combinations, arrangements and manner as
reasonably determined periodically by Licensor;
(4) Advertise or cause to be advertised the Hotel/Casino and
related facilities and services and, upon the written request of
Licensor, cease and desist from using or continuing to use any
advertising or publicity which Licensor reasonably believes is not in
the best interests of the preservation of the Licensed Rights or other
related intellectual property rights of Licensor;
(5) Upon reasonable notice, permit Licensor or its authorized
agents to enter the Hotel/Casino and the Licensed Location during
regular business hours to inspect the same with respect to the
Licensee's use of the Licensed Rights;
(6) Upon reasonable notice, permit Licensor, its authorized
agents and/or its invited guests to enter the Hotel/Casino and the
Licensed Location during regular business hours to tour the
Hotel/Casino facilities;
(7) Operate the Hotel/Casino in accordance with the
Hotel/Casino System, the Manuals and all applicable Laws and Permits;
(8) Provide to Licensor for its approval samples of staff
uniforms to be used in connection with operation of the Hotel/Casino;
(9) Comply with the terms of the Lease Agreement and the
Memorabilia Lease. Licensee shall not locate on the Licensed Location
or in the Hotel/Casino any "rock and roll" memorabilia other than as
permitted by the Memorabilia Lease;
25
(10) Provide Hard Rock Hotel promotional materials and other
Hard Rock literature in guest rooms and other locations at the
Hotel/Casino, as reasonably requested by Licensor;
(11) Participate in any Hard Rock approved reservation system
which may be in existence from time to time, to the extent Licensee
determines such participation is commercially reasonable;
(12) Provide Licensor with up to fifty (50) hotel room nights
on a rooms-available basis at the Hotel/Casino during each calendar
year, on a complimentary basis, for invited guests of Licensor in
return for Licensor's reasonable efforts to provide Licensee with a
comparable number of room nights on a rooms-available basis at other
Hard Rock Hotels;
(13) Cause the Hotel/Casino staff and employees to attend such
training as may be required from time to time by Licensor, as provided
in Section 7 hereof;
(14) Cooperate with Licensor by making available to Licensor
and its Affiliates, at Licensor's request, subject to availability, the
facilities at the Hotel/Casino for use by Licensor as a facility for
the training of Licensor's and its licensees' employees and staff in
the operation and management of the Hotel/Casino System, provided that
any costs arising out of such cooperation shall be borne by Licensor
and such cooperation does not unreasonably interfere with the operation
of the Hotel/Casino;
(15) Not permit third parties to use the Licensed Location in
the manner prohibited by Section 2(D)(ii) of this Agreement;
(16) Refrain from making any alterations, changes or
modifications to any Hard Rock Elements (other than repairs or
replacements which are consistent with Licensor's prior approval of
such Hard Rock Elements) without obtaining Licensor's prior approval,
which approval may be given or withheld in Licensor's sole discretion;
(17) Play only the type of music (at the decibel level)
prescribed by Licensor in the Manuals. Live music which is in
accordance with the standards established at other Hard Rock Hotels or
Hard Rock Cafe restaurants may be played within the Hotel/Casino or
upon or from the Licensed Location only upon the prior consent of
Licensor, which consent shall not be unreasonably withheld;
(18) Provide on television in guest rooms at the Hotel/Casino
(i) at least one video music channel, and (ii) one channel provided by
Licensor or its designee to provide music entertainment and information
about Licensor and its affiliated and related entities; and
(19) Provide to Licensor a copy of the lease agreement for
each lessee of commercial space at the Licensed Location prior to its
execution for the purpose of verifying the compliance of such lease
with the terms of this Agreement.
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(C) OPERATING COORDINATOR. At any time and from time to time during the
Operating Period, Licensor may, in its sole discretion, designate an employee or
representative of Licensor to act as Licensor's on-site representative at the
Licensed Location (the "OPERATING COORDINATOR"). The functions and duties of the
Operating Coordinator shall be as assigned by Licensor from time to time, but it
is the intention of the parties that the primary duties of the Operating
Coordinator shall be to: (i) review the operations of the Hotel/Casino and the
use by the Licensee of the Licensed Rights, and (ii) to serve as a liaison
between Licensor and Licensee in connection with Hotel/Casino System and
Licensed Marks issues. Licensee shall provide to the Operating Coordinator its
full cooperation to enable the Operating Coordinator to fulfill his duties as
contemplated herein, including, without limitation, providing full access to the
Hotel/Casino and all information relating to its operation. After the earlier to
occur of (x) the date Operator ceases to manage the operations of the Hotel, and
(y) the date Licensor or one of its Affiliates ceases to own at least fifty
percent of the equity interests of Operator, Licensee shall thereafter reimburse
Licensor within ten (10) days following invoice therefor, for all costs and
expenses incurred by Licensor in connection with the retention, training, and
services provided by the Operating Coordinator pursuant to this Agreement,
including, without limitation, salary, travel expenses, office space, office
assistance, and supplies, and similar items, up to a maximum amount of $150,000
per year. For all purposes of this Section 9(C), travel expenses and
accommodations shall include all trips to the Hotel/Casino, and, if the
Operating Coordinator does not permanently reside in the city where Licensor
conducts management training, two (2) trips per Fiscal Year to such city for
training purposes. At its option, Licensor may replace any Operating Coordinator
with a Regional Coordinator of Licensor's designation upon the same terms and
conditions, including, without limitation, expense reimbursement, as are
provided for in this Section 9(C).
(D) RESERVE FUND. Licensee will establish a reserve fund of two percent
(2%) of Total Revenues in the first Fiscal Year and each subsequent Fiscal Year
of the term (the "RESERVE FUND"). Such Reserve Fund shall be used to refurbish
and renovate the Hotel/Casino from time to time in order to maintain at least
the Management Standard. Licensee shall use the Reserve Fund for (1)
replacements and renewals of FF&E; (2) renovations of public areas and guest
rooms; and (3) repairs to and maintenance of the Hotel/Casino's physical
facilities (which costs are normally capitalized under generally accepted
accounting principles), such as exterior and interior repainting, resurfacing
building walls, floors, roofs, and parking lots, and replacing folding walls.
Subject to the foregoing provisions, Licensee must spend the Reserve Funds for
these purposes and shall not accumulate monies in the Reserve Fund when
replacements, renovations or repairs are reasonably needed in order to maintain
the Hotel/Casino at its highest level of operation and standard.
(E) GAMING. Except with the Licensor's written consent, in its sole
discretion, this Agreement shall prohibit Licensee from (i) accepting wagering
on any aspect of professional basketball, and (ii) promoting within the
Hotel/Casino or at the Licensed Location gaming by any other Person other than
"participation gaming" activities (such as "Megabucks" and "Cool Million").
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(F) QUALITY NOTICES.
(i) Licensor shall have the right to engage in regular
surveillance of the quality of the services rendered and the products sold by
Licensee under or in connection with Licensee's use of the Licensed Marks by
inspecting the Hotel/Casino, and Licensee shall upon reasonable notice being
given by Licensor permit duly authorized representatives of Licensor to have
access to all areas of Hotel/Casino for such inspection purposes.
(ii) In the event that Licensor should note any failure by
Licensee to maintain in any respect quality standards set forth herein, Licensor
shall notify Licensee in writing as provided herein of the particular failure or
deficiency noted, and Licensee shall promptly and in all events within thirty
(30) days after such notice correct the same, provided that if the nature of
such failure is such that more than thirty (30) days is required to correct such
failure or deficiency, then Licensee shall be in compliance with this paragraph
if within such thirty (30) day period it promptly takes appropriate steps to
correct such failure or deficiency and thereafter diligently pursues those steps
to completion.
(iii) All uses of the Licensed Marks, including all signs,
advertisements and promotional and packaging material, shall at all times bear
appropriate trademark notices as approved in advance by Licensor in the branding
manual referred to in Section 8(H) hereof.
(iv) The parties acknowledge that all rights of Licensor to
monitor Licensee's operations, and all standards of operation set forth herein,
are established solely to ensure the quality of the goods and services
associated with the Licensed Marks and to protect the goodwill accrued in the
Licensed Marks.
(v) Licensee shall not include the Hard Rock name or any
Licensed ▇▇▇▇ within its legal name or the name of any Affiliate, without
Licensor's approval, which may be given or withheld in its sole discretion.
SECTION 10. ADDITIONAL COVENANTS OF LICENSEE
(A) KEEP HOTEL/CASINO OPEN; OBTAIN AND MAINTAIN NECESSARY PERMITS.
Subject to Force Majeure, Licensee will continuously during the term hereof keep
the Hotel/Casino open (during normal business hours) for providing gaming to the
public and lodging to guests in accordance with the terms of this Agreement.
Licensee will obtain and maintain such gaming, liquor and other licenses and
other Permits as shall be necessary to operate the Hotel/Casino in accordance
with the terms hereof, including, without limitation, all required Permits in
respect of music played in the Hotel/Casino. The risk of obtaining and
maintaining any Permits required to develop and/or to operate the Hotel/Casino
and/or the Licensed Location as contemplated herein shall be upon Licensee, and
Licensor assumes no responsibility therefor.
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(B) ATTEND CONFERENCES. Licensee will, at Licensor's reasonable request
from time to time, send a suitable representative at Licensee's expense to any
conference arranged by Licensor which is relevant to the operation of the
Hotel/Casino.
(C) REASONABLE EFFORTS REQUIRED. Licensee will use its reasonable
efforts to procure the greatest volume and value of turnover for the
Hotel/Casino consistent with good service to the public and compliance with the
terms of this Agreement.
(D) MAINTENANCE OF HOTEL/CASINO. Licensee will, at all times, maintain
the interior and exterior of the Licensed Location and the Hotel/Casino, and all
contents thereof, in a high standard of decoration, repair, cleanliness and
orderliness consistent with the Management Standard and the standards of the
Hotel/Casino System and Manuals. Licensee shall make such replacements and
renewals to FF&E and repairs to the Hotel/Casino's physical facilities as are
necessary to maintain the Hotel/Casino at such standards. Licensee acknowledges
that Licensor bears no responsibility for any renovations at the Hotel/Casino
and that Licensee in all respects bears the responsibility for the conduct and
adequacy of each renovation.
(E) PARTICIPATION IN CHARITABLE CAUSES. Licensee will adopt and
maintain a positive attitude towards charitable causes supported by Licensor
with a view to providing facilities and assistance comparable to that provided
by other Hard Rock establishments of Licensor and its Affiliates.
(F) PAYMENT OF TAXES AND OTHER INDEBTEDNESS. Licensee shall promptly
pay when due all taxes levied or assessed, including, without limitation,
individual and corporate income taxes, gaming taxes, sales and use taxes, gross
receipts taxes, unemployment taxes, liquor taxes, value added taxes, personal
property taxes and real estate taxes, and all accounts and other indebtedness of
every kind incurred by Licensee in the operation of the Hotel/Casino and the
occupation of the Licensed Location under this Agreement. This includes the
prompt filing of all required tax returns and the prompt payment of all taxes
and indebtedness related to, or resulting from, the operation of the
Hotel/Casino and/or the occupation of the Licensed Location covered by this
Agreement.
(G) USE OF APPROVED SIGNAGE. Licensee shall not (i) erect or alter any
sign or other medium of display or advertisement upon Hotel/Casino or Licensed
Location utilizing the Licensed Marks, in each case, without Licensor's prior
written approval, in its sole discretion, or (ii) erect or alter any other sign
or other medium of display or advertisement upon Hotel/Casino or Licensed
Location, in each case, without Licensor's prior written approval, which will
not be unreasonably withheld; provided that the foregoing shall not apply to
designation and directional signage which does not bear the Licensed Marks. Each
such alteration, erection, or installation shall be made only in accordance with
plans, drawings, and specifications previously submitted to and approved by
Licensor.
(H) APPEARANCE AND DEMEANOR OF PERSONNEL. Licensee shall ensure that
all personnel employed or otherwise retained by Licensee or utilized by Licensee
in connection with the operation of the Hotel/Casino shall, at all times, be
clean, cleanly and tidily clothed and polite.
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(I) ATMOSPHERE. Licensee shall maintain an appropriate atmosphere for
the Licensed Location and the Hotel/Casino and will not permit any illegal,
immoral or other inappropriate activity to be conducted thereon.
(J) PERMITS TO EFFECT PAYMENTS. Licensee will obtain all Permits
necessary to effect payment of any sum due hereunder in accordance with the
provisions hereof.
(K) COMPENSATION TO PERSONNEL OF LICENSOR. Except for complimentary
hotel rooms and meals and expense reimbursements payable to Licensor as provided
for in this Agreement, Licensee shall not, at any time, directly or indirectly,
compensate or otherwise provide remuneration, whether in cash, property,
services or otherwise, to personnel, agents or employees of Licensor or any
Affiliates thereof, without Licensor's prior written approval.
(L) SOFTWARE SYSTEMS. Licensee shall use its reasonable efforts to
select software systems for use at the Hotel/Casino which will interface and are
otherwise compatible with the software systems used by Licensor and its
Affiliates.
(M) FRANCHISE LAWS AND REGULATIONS. Licensee and its Affiliates are
sophisticated entities engaged in the business of operating hotels and/or
casinos throughout the United States in accordance with applicable laws and have
significant experience in the business of developing and operating hotels and/or
casinos. Licensee and its Affiliates shall not initiate any claim or proceeding
or take any action under, or with respect to, the franchise laws or regulations
of any jurisdiction, with respect to the negotiation, execution, delivery and
performance of this Agreement and the other agreements, instruments and
documents to be executed and delivered in connection herewith, and the
consummation of the transactions contemplated hereby and thereby.
SECTION 11. PROTECTION AND ACKNOWLEDGMENT OF THE LICENSED RIGHTS
(A) LICENSED RIGHTS EXCLUSIVE PROPERTY OF LICENSOR. Subject to this
Agreement, Licensee recognizes and acknowledges the exclusive rights of Licensor
to the Licensed Rights and all other intellectual property rights related
thereto or derived therefrom and acknowledges that all such rights are subject
to the total control in their exercise by Licensor and its Affiliates. For all
purposes of the relationship between Licensor and Licensee created hereunder,
Licensor shall be deemed to be the sole and exclusive owner of all right, title
and interest in and to the Licensed Rights in all forms and embodiments thereof,
subject only to the specific rights granted to Licensee hereunder. Licensee
agrees that its use of the Licensed Rights, and all associated goodwill
generated by the Licensed Rights, inures to the sole benefit of Licensor in
accordance with its rights in the Licensed Rights. Licensee specifically
acknowledges that the exclusive rights granted to it pursuant to this Agreement
shall not prevent or prohibit Licensor or any licensee thereof to commercialize
or otherwise utilize (and retain all profits from) the Licensed Rights or any
other intellectual property right of Licensor in any endeavor, except as
otherwise provided in Section 17(B) hereof. Licensor represents and warrants to
Licensee that it owns or otherwise has the right to license the registered
trademarks included in the Licensed Marks but otherwise makes no representation
and gives no
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warranty of whatsoever nature or kind with respect to the validity of, or its
rights, title and interest in or to, the Licensed Rights.
(B) LICENSEE HAS NO RIGHT OF OWNERSHIP IN LICENSED RIGHTS. Nothing
contained in this Agreement shall be construed to confer upon Licensee any right
to the Licensed Rights registered in the name of Licensee as proprietor or to
vest in Licensee any right of ownership to the Licensed Rights, and Licensee
shall not, directly or indirectly, register or cause to be registered, in any
country or with any Governmental Authority or use any trademark, tradename,
service ▇▇▇▇ or other intellectual property right consisting of, related to,
similar to and/or deceptively similar to, any of the Licensed Rights or any
other intellectual property right of Licensor or any Affiliate of Licensor.
(C) LICENSEE WILL NOT CHALLENGE LICENSOR'S OWNERSHIP OF THE LICENSED
RIGHTS. During the term of this Agreement and thereafter, Licensee will not, and
will not assist any Person to: (i) challenge the validity of Licensor's
ownership of, or right to license, the Licensed Rights or any registration or
application for registration therefor; (ii) contest the fact that Licensee's
rights under this Agreement are solely those of a Licensee and terminate upon
termination or expiration of this Agreement; and (iii) represent in any manner
that it has any title or right to the ownership, registration or use of the
Licensed Rights in any manner except as set forth in this Agreement.
(D) LICENSEE TO COOPERATE WHERE REQUESTED. In the event, at any time
during the term of this Agreement, Licensor applies or decides to apply for
registration of a trademark, tradename, service ▇▇▇▇ or other intellectual
property right that is or may become a part of the Licensed Rights, Licensee
will render to Licensor all reasonable assistance, at Licensor's expense, in
obtaining and thereafter maintaining registration thereof (including, without
limitation, the execution of all necessary registered user or similar
agreements) with applicable Government Authorities.
(E) LICENSEE'S DUTIES. With respect to use of the Licensed Rights at
the Licensed Location, Licensee shall use the Licensed Rights only as permitted
by this Agreement. Licensee shall not use or exploit the Licensed Marks or the
Licensed Rights outside the Licensed Location, except the Licensee may engage in
the promotion, advertising or marketing of the Hotel/Casino anywhere in the
world. Licensee shall not have any right to assign, sublicense or franchise any
of the Licensed Marks to any other persons; or develop, use, or exploit any Hard
Rock Marks not expressly identified as Licensed Marks in this Agreement without
the express written consent of Licensor, which may withheld in Licensor's sole
discretion.
(F) HOTEL/CASINO NAME. In the absence of Licensor's prior written
consent, in each instance which may be withheld in Licensor's sole discretion,
Licensee will operate the Hotel/Casino only under the Licensed Marks.
(G) LICENSEE'S DUTIES. Licensee shall:
(i) Hold all goodwill generated by the Licensed Rights as
trustee for Licensor.
(ii) Not cause or permit anything within Licensee's control to
occur which may damage, endanger, or reduce the value of the Licensed
Rights or any other trademark,
31
tradename, service ▇▇▇▇, or other intellectual property right of
Licensor or any Affiliate of Licensor, or Licensor's or such
Affiliate's title thereto, or the rights of any other Licensee of
Licensor or any Affiliate of Licensor thereto, or assist or suffer any
other Person to do so.
(iii) Not interfere in any manner with, nor attempt to
prohibit, the use or registration by Licensor, with applicable
Governmental Authorities of the Licensed Rights or any other trademark,
tradename, service ▇▇▇▇ or other intellectual property right of
Licensor or any Affiliate thereof.
(iv) Not use any name or ▇▇▇▇ similar to or capable of being
confused with the trademarks, tradenames, service marks, or other
intellectual property rights included in the Licensed Rights or any
other trademark, tradename, service ▇▇▇▇, or other intellectual
property right of Licensor or any Affiliate thereof.
(v) Take such action in relation to the Licensed Rights as
Licensor may, from time to time, reasonably require, in order to
protect or promote the same, including, without limitation, the marking
of any advertising material, signs, or other items bearing the Licensed
Rights, in such manner as Licensor may reasonably require.
(vi) Give notice on all business stationery, merchandise
cards, purchase order forms, guest checks, maintenance requests,
invitations, employment applications and on such other items, and in
such other places, as Licensor may, from time to time, reasonably
require, that the Hotel/Casino is operated under license from Licensor
pursuant to this Agreement and such other notices as Licensor may deem
reasonably necessary to inform third parties that Licensor does not
accept liability for the acts, omissions, debts, or defaults of
Licensee, and promotional material and advertisements will, if Licensor
reasonably requires, include a statement that the Hotel/Casino is
operated under license from Licensor and such other information as
Licensor may deem reasonably necessary to inform third parties that it
does not accept liability for the acts, omissions, debts, or defaults
of Licensee. Licensor's approval of the form and style of such notices
shall not be unreasonably withheld.
(H) LICENSEE'S DUTIES REGARDING INFRINGEMENT. Licensee will immediately
notify Licensor in writing of any infringement or suspected infringement of or
claim of infringement of any of the Licensed Rights or any other trademark,
tradename, service ▇▇▇▇, or other intellectual property right of Licensor or any
Affiliate thereof, or any action constituting passing off or any claim for
passing off against the Licensed Rights or any other trademark, tradename,
service ▇▇▇▇, or other intellectual property right of Licensor or any Affiliate
thereof, of which Licensee becomes aware. Licensee shall not institute any legal
action with respect to any infringement or suspected infringement of or claim of
infringement of any of the Licensed Rights, but will, if requested by Licensor
and at Licensor's expense, lend all reasonably necessary assistance in any legal
action Licensor or any Affiliate thereof may institute, against any Person
infringing or passing off as described herein, or suspected of doing so, or any
legal action Licensor or any Affiliate thereof may defend as described herein.
Licensor shall, at all times, have full control of any such proceedings.
32
(I) LICENSOR'S EXCLUSIVE RIGHTS. Licensee hereby acknowledges the
exclusive rights of Licensor and its Affiliates:
(i) to the Licensed Rights and all parts thereof, including,
without limitation, all amendments and modifications thereto and all
advertising matter, slogans, and similar items and ideas which may,
from time to time, be used to promote the same;
(ii) to make such additions or modifications to the Licensed
Marks, including, without limitation, the addition, renewal, or
substitution of other intellectual property rights as may from time to
time, in Licensor's sole judgment, be necessary to promote, improve, or
protect the Licensed Marks; provided that such additions or
modifications do not significantly impair the value of the Licensed
Marks and Licensor shall provide Licensee with reasonable advance
notice of any such additions or modifications; and
(iii) to take all actions Licensor deems reasonably necessary
to protect and promote the Licensed Rights.
SECTION 12. ACCOUNTING RECORD; RIGHT TO INSPECT
(A) REPORTING REQUIREMENTS. Licensee shall deliver, or cause to be
delivered, to Licensor, the following statements:
(i) by Wednesday of each week, and in a form as may be
prescribed by Licensor, a detailed statement of Total Revenues and
Licensing Fee Revenues of the Hotel/Casino for the previous week, and
such other information as may be reasonably requested by Licensor; and
(ii) within thirty (30) days after the end of each calendar
month of operation of the Hotel/Casino, a monthly income statement for
the Hotel/Casino showing the results of operation of the Hotel/Casino
for the preceding month and for the year to date (including, without
limitation, Total Revenues, Licensing Fee Revenues and EBITDA of the
Hotel/Casino for such period), in such reasonable detail as Licensor
shall require, and showing the previous month's Continuing Fees and all
expenditures of Licensee pursuant to Sections 8(B) and (F) of this
Agreement, for such preceding month and year to date; and
(iii) within one hundred twenty (120) days after the end of
each Fiscal Year, audited separate and/or consolidated statements of
the Hotel/Casino for such Fiscal Year certified by a firm of
independent certified public accountants, showing the results of
operation for the immediately preceding Fiscal Year (including, without
limitation, Total Revenues, Licensing Fee Revenues and EBITDA of the
Hotel/Casino for such Fiscal Year).
(iv) within fifteen (15) days prior to the end of each
calendar quarter, a written narrative report describing the current
status of the Hotel/Casino, material issues in connection with its
business and operations, and Licensee's projections of Total Revenues,
Licensing Fee Revenues and expenses for the ensuing calendar quarter.
33
In addition, at the Licensor's request, acting reasonably, Licensee
shall make available to Licensor marketing information and analyses of the
Hotel/Casino and Licensed Location that Licensee prepares or utilizes, such as,
but not limited to, occupancy rates and demographic information regarding
customers, and shall provide to Licensor reasonable access to database
information regarding customers and potential customers developed by Licensee by
means of its reservation system, surveys or otherwise.
All financial statements and reports provided for in this Section 12(A)
to be submitted to Licensor shall contain a written and signed certification
from the chief executive officer or the chief financial officer of Licensee,
that, to the best knowledge and belief of such officer, the information
contained in all such statements and reports is true, correct, and complete.
(B) LICENSEE'S BOOKS AND RECORDS AVAILABLE TO LICENSOR. Licensee shall
retain and make available to Licensor, or to the designated representatives of
Licensor, upon reasonable advance Notice to Licensee, all books and records,
including, without limitation, all contracts, documents, invoices, construction
records, financial statements and reports, tax returns, accounting or
accountants' work papers, insurance reports, computer retained information, and
other items of financial and business information of or relating to the Licensed
Location, the Hotel/Casino and all operations and activities thereof, as
Licensor shall reasonably request (collectively, "BOOKS AND RECORDS"). Licensee
shall keep all such Books and Records in all material respects in accordance
with the determination of the accountants, on an accrual basis, and in
accordance with GAAP, consistently applied.
(C) LICENSOR'S RIGHT TO AUDIT. Upon reasonable advance notice to
Licensee, Licensee shall permit Licensor, its accountants, attorneys and agents,
to enter upon any part of the Licensed Location and the Hotel/Casino at all
reasonable times during, and for a period of three (3) years following, the term
of this Agreement, for the purpose of examining, inspecting, auditing and making
extracts of all financial and other Books and Records of Licensee which
Licensor, in its discretion, shall deem necessary or advisable. If an audit of
such Books and Records discloses that Licensee has been paid less than
ninety-eight percent (98%) of all Continuing Fees and other fees and payments
due under this Agreement during any Fiscal Year, Licensee shall immediately pay
the deficiencies, together with interest thereon at the Interest Rate, and shall
also pay to Licensor immediately upon demand therefor all of Licensor's
reasonable costs of such audit. If the audit discloses that ninety-eight percent
(98%) or more of all Continuing Fees and other fees and payments due have been
made, Licensee shall pay any deficiency immediately, together with interest
thereon at the Interest Rate, and Licensor shall bear the costs of the audit.
(D) RECORD RETENTION; DELIVERY TO LICENSOR. Licensee shall keep and
preserve, at its expense, full and complete records of Total Revenues and all
other Books and Records, including without limitation, tax returns, check
registers, bank account records and all corporate records within such time frame
as may be stipulated by applicable laws or prescribed by Licensor and shall also
deliver at the Licensor's expense such additional financial, operating and other
information and reports to Licensor or Licensor's designee as the parties may
agree.
34
(E) OPERATING EQUIPMENT. Licensee shall employ in the operation of the
business of the Hotel/Casino such cash registers, computers, and other technical
equipment as Licensor and Licensee mutually agree.
SECTION 13. REQUIRED INSURANCE
(A) COVERAGE. At all times during the term of this Agreement, Licensee
, at its sole cost and expense, shall procure and maintain in full force and
effect each of the following insurance coverages with respect to the Project:
(i) DURING CONSTRUCTION. At all times during the period of
construction, furnishing and equipping of the Hotel/Casino and the
Project and at all times during any other period of construction
(including renovations, alterations and improvements), until final
completion thereof, Builder's Risk Insurance ("All Risk" or equivalent
coverage) for the Project in an amount not less than the estimated cost
of such construction (including "hard" and "soft" costs), written on a
completed value basis or a reporting basis, for property damage,
protecting Licensee and Licensor, as their interests may appear, with a
deductible not to exceed $100,000 and to include rental payment
coverage from the date of projected completion and extending for at
least twelve (12) months thereafter.
(ii) PROPERTY DAMAGE INSURANCE. At all times during the term
of this Agreement, "All Risk" (or its equivalent) property damage
insurance for the Project protecting Licensee and Licensor, as their
interests may appear, with replacement cost valuation and a stipulated
value endorsement (to be provided not later than promptly following
substantial completion of the Project) in an amount not less than the
full replacement value thereof and including, among other things, (a)
coverage for all physical loss or damage to the Project (including
contents); (b) coverage for hurricane, flood and windstorm to the
extent available at commercially reasonably rates, limits and
deductibles; (c) no exclusions other than industry standard exclusions
for property of similar size and location; and (d) provision for
deductible not to exceed $100,000 (other than for hurricane, flood or
windstorm, as provided above).
(iii) BUSINESS INTERRUPTION INSURANCE. Business Interruption
Insurance for the Project on an "All Risk" basis. Such insurance shall
include, among other things (a) coverage against all insurable risks of
physical loss or damage, (b) coverage for hurricane, flood and
windstorm to the extent available at commercially reasonable rates,
limits and deductibles, (c) a deductible (for other than hurricane,
flood or windstorm) of not more than $100,000 per occurrence, (d) no
exclusions other than industry standard exclusions for property of
similar size and location, and (e) coverage for the Continuing Fees
hereunder in an amount equal to at least the Continuing Fees payable
for one (1) Fiscal Year in connection with Project (as reasonably
projected by Licensee for the first full Fiscal Year and thereafter
based on the amounts actually paid during the most recently ended
Fiscal Year).
(iv) LIABILITY INSURANCE. General public liability insurance
protecting Licensee and Licensor against claims brought in connection
with the Project for personal injury, death and damage to and theft of
property of third persons, in an amount not less than $10,000,000
35
per occurrence, combined single limit, and designating Licensee as a
named insured and Licensor as an additional insured. Such liability
insurance shall include such coverage as Licensor shall reasonably
require and as shall be commercially available, which shall include
coverage against liability arising out of (a) the sale of liquor, wine
and beer on the Project premises, (b) the ownership or operation of
motor vehicles, (c) assault or battery, (d) false arrest, detention or
imprisonment or malicious prosecution, (e) libel, slander, defamation
or violation of the right of privacy, (f) wrongful entry or eviction,
(g) contractual liability, and (h) completed operations. Such insurance
shall contain no exclusion other than industry standard exclusions for
property of similar size and location and provide for a deductible of
not more than $100,000 per occurrence.
(v) WORKERS' COMPENSATION INSURANCE. Statutory Workers'
Compensation and Disability Benefits Insurance and any other insurance
required by applicable Law(s), covering all Project employees and all
persons employed by Licensee, Licensor, contractors. subcontractors, or
any entity performing work on or for the Project (unless and to the
extent provided by such parties), including Employer's Liability
coverage, all in amounts not less than the statutory minimum, except
that Employers Liability coverage shall be in an amount not less than
$1,000,000.
(vi) FIDELITY. Fidelity and dishonesty insurance, and money
and securities insurance in such amounts as Licensee shall deem
advisable but not less than $100,000.
(vii) OTHER. Such additional insurance as may be required with
respect to the Project or any part thereof, together with insurance
against such other risks as its now, or hereafter may be, customary to
insure against in the operation of similar property, considering the
nature of the business and the geographic and climatic nature of the
Project's location.
All such policies of insurance described above shall be with companies
which have a Best rating of A or better and in the form of "occurrence
insurance" to the extent available on a commercially reasonable basis.
(B) INSURANCE CARRIERS; EVIDENCE OF COVERAGE. All insurance shall be in
form and amounts and shall be with such companies as shall be reasonably
satisfactory to Licensor. Licensee shall promptly provide Licensor with
certificates of insurance evidencing all insurance coverages required of
Licensee pursuant to this Section 13, and Licensee shall immediately provide,
upon renewal, expiration, change, or cancellation of any insurance coverage, a
new certificate of insurance to Licensor. Upon request, Licensee shall furnish
to Licensor a copy of each and every such policy of insurance issued to
Licensee.
(C) DEFENSE OF CLAIMS. All liability insurance policies procured and
maintained by Licensee pursuant to this Section 13 will require the insurance
carrier to provide and pay for attorneys to defend any legal actions, lawsuits,
or claims brought against Licensee, Licensor, or any of their respective
officers, directors, agents, or employees.
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(D) LICENSOR'S RIGHTS. Licensee shall have insurance policies procured
and maintained by Licensee pursuant to this Section 13 name Licensor as an
additional insured, to not preclude coverage if a claim is made by one insured
against other insured, to contain endorsements by the insurance carriers waiving
all rights of subrogation against Licensor, and to stipulate that Licensor will
receive copies of all notices of cancellation, nonrenewal or coverage reduction
or elimination at least thirty (30) days prior to the effective date of such
cancellation, nonrenewal or coverage change.
SECTION 14. TERMINATION
(A) TERMINATION BY LICENSOR. Licensor may not terminate this Agreement
prior to the expiration of its term except for "good cause", which shall mean
the occurrence of any Event of Default described below. Upon the occurrence of
any Event of Default, Licensor may, at its option, and without waiving its
rights hereunder or any other rights available at law or in equity, including
its rights to damages, terminate this Agreement and all of Licensee's rights
hereunder effective immediately upon the date Licensor gives written notice of
termination, upon such other date as may be set forth in such notice of
termination, upon the occurrence of, or the lapse of the specified period
following any one of the following Events of Default:
(1) If Licensee applies for or consents to the appointment of
a receiver, judicial manager, trustee or liquidator of all or a
substantial part of its assets, files a voluntary petition in
bankruptcy, or admits in writing its inability to pay its debts as they
come due, makes a general assignment for the benefit of creditors,
files a petition or an answer seeking reorganization or arrangement
with creditors or to take advantage of any insolvency law, or files an
answer admitting the material allegations of a petition filed against
Licensee in any bankruptcy, reorganization or insolvency proceeding, or
if any order, judgment or decree shall be entered by any court of
competent jurisdiction on the application of a creditor, adjudicating
Licensee a bankrupt or insolvent or approving a petition seeking
reorganization of Licensee or appointing a receiver, trustee or
liquidator of Licensee or of all or a substantial part of the assets of
Licensee, and any such order, judgment, or decree shall continue
unstayed and in effect for any period of sixty (60) consecutive days;
(2) If Licensee fails to pay the Territory Fee when due as
provided in Section 4(A) hereof;
(3) If Licensee fails to make any payment (other than the
Territory Fee) due hereunder within sixty (60) days after such payment
is past due, provided that if this subclause (A)(3) is triggered 3 or
more times during the term of this Agreement, such sixty (60) day
period shall be reduced to thirty (30) days;
(4) If Licensee fails to perform or commits a breach of any
non-monetary covenant, obligation, term, condition, warranty or
certification herein and fails to cure such noncompliance or deficiency
within sixty (60) days after Licensor's written notice thereof, or in
the event cure within such sixty (60) day period is not possible, no
termination shall
37
be permitted by Licensor if Licensee commences cure within such sixty
(60) day period and diligently pursues the same;
(5) If Licensee fails (a) to maintain all gaming licenses and
permits necessary for the operation of the Hotel/Casino (other than
those required of Licensor), or (b) fails to maintain any other Permits
or to comply with any Laws applicable to the operation of the
Hotel/Casino and/or the Licensed Location which would materially
adversely affect the Licensed Rights or the ability of Licensee to
comply with the provisions of this Agreement;
(6) If Licensee is convicted of or pleads guilty (or the
equivalent) to a felony, or any other crime or offense (even if not a
crime), that is reasonably likely, in Licensor's reasonable opinion, to
materially and adversely affect, the Licensed Rights, or the goodwill
associated therewith; or if any employee or officer of Licensee who is
not thereafter discharged by Licensee, or any other Person owning an
interest in Licensee, in each case, who is required to be licensed
under applicable Mississippi gaming Law(s), is convicted of or pleads
guilty (or the equivalent) to a felony, or any other crime or offence
(even if not a crime), that is reasonably likely, in Licensor's
reasonable opinion, to materially and adversely affect the Licensed
Rights, or the goodwill associated therewith;
(7) If Licensee defaults on its obligations under the
Management Agreement, the Lease Agreement or the Memorabilia Lease, and
such default is not cured in accordance with the terms of such other
agreement;
(8) If Licensee's right of possession of the Licensed Location
shall be terminated at any time for any cause whatsoever, or if a Lease
is terminated or expires or if the right of possession of the Licensed
Location is terminated due to the Law or other action of a Governmental
Authority, other than for a temporary loss of Licensee's possession as
a result of Force Majeure;
(9) If Licensee fails to: (a) obtain approval of the site for
the Licensed Location within the time period specified in Section 5(B),
(b) obtain financing for the Project within the time period specified
in Section 5(C), or (c) commence operation of the Hotel/Casino as
required by Section 5(M) of this Agreement;
(10) If there is any violation of any transfer provision
contained in Section 16 of this Agreement; or
(11) If Licensee, in any material respect, violates: (i) the
noncompetition covenants contained in Section 17(A) of this Agreement;
or (ii) the confidential information covenants contained in Section 20
of this Agreement, and, in each case, if such violation is capable of
being cured, fails to cure such violation within sixty (60) days after
Licensor's written notice thereof.
38
(B) TERMINATION BY LICENSEE. Licensee may, at its option, and without
waiving its rights hereunder or any other rights available at law or in equity,
including its rights to damages, terminate this Agreement upon written notice of
termination to Licensor, upon the occurrence of, or the lapse of the specified
period following any one of the following Events of Default:
(1) If Licensor applies for or consents to the appointment of
a receiver, judicial manager, trustee or liquidator of all or a
substantial part of its assets, files a voluntary petition in
bankruptcy, or admits in writing its inability to pay its debts as they
come due, makes a general assignment for the benefit of creditors,
files a petition or an answer seeking reorganization or arrangement
with creditors or to take advantage of any insolvency law, or files an
answer admitting the material allegations of a petition filed against
Licensor in any bankruptcy, reorganization or insolvency proceeding, or
if any order, judgment or decree shall be entered by any court of
competent jurisdiction on the application of a creditor, adjudicating
Licensor a bankrupt or insolvent or approving a petition seeking
reorganization of Licensor or appointing a receiver, trustee or
liquidator of Licensor or of all or a substantial part of the assets of
Licensor, and any such order, judgment, or decree shall continue
unstayed and in effect for any period of sixty (60) consecutive days;
(2) If Licensor fails to perform or commits a breach of any
non-monetary covenant, obligation, term, condition, warranty or
certification herein and fails to cure such noncompliance or deficiency
within sixty (60) days after Licensee's written notice thereof, or in
the event cure within such sixty (60) day period is not possible, no
termination shall be permitted by Licensee if Licensor commences cure
within such sixty (60) day period and diligently pursues the same;
(3) If Licensor is unable for whatever reason to license the
registered trademarks included in the Licensed Marks to Licensee as
provided herein;
(4) If Licensor fails (a) to maintain all of its gaming
licenses and permits necessary for the operation of the Hotel/Casino,
or (b) fails to maintain any other of its Permits or to comply with any
Laws applicable to it which would materially adversely affect the
Licensed Rights or the ability of Licensor to comply with the
provisions of this Agreement;
(5) If Licensor is convicted of or pleads guilty (or the
equivalent) to a felony, or any other crime or offense (even if not a
crime), that is reasonably likely, in Licensee's reasonable opinion, to
materially and adversely affect, the Licensed Rights, or the goodwill
associated therewith; or if any employee or officer of Licensor who is
not thereafter discharged by Licensor, or any other Person owning an
interest in Licensor, in each case, who is required to be licensed
under applicable Mississippi gaming Law(s), is convicted of or pleads
guilty (or the equivalent) to a felony, or any other crime or offence
(even if not a crime), that is reasonably likely, in Licensee's
reasonable opinion, to materially and adversely affect the Licensed
Rights, or the goodwill associated therewith;
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(6) If Licensor (or Hard Rock STP, with respect to the Lease
Agreement) defaults on its obligations under the Lease Agreement or the
Memorabilia Lease, and such default is not cured in accordance with the
terms of such other agreement; or
(7) If Licensor, in any material respect, violates: (i) the
noncompetition covenants contained in Section 17(B) of this Agreement;
or (ii) the confidential information covenants contained in Section 20
of this Agreement, and, in each case, if such violation is capable of
being cured, fails to cure such violation within sixty (60) days after
Licensee's written notice thereof.
SECTION 15. LICENSEE'S OBLIGATIONS UPON TERMINATION OR EXPIRATION
(A) TERMINATION OF USE OF LICENSED RIGHTS; OTHER OBLIGATIONS. Upon
expiration or termination of this Agreement for any reason, Licensee's right to
use the Licensed Rights will terminate immediately, and this Agreement shall
cease and neither party shall have any further claim against the other
whatsoever in respect of any matter or thing under this Agreement, except that
all obligations of the parties under this Agreement which accrue or are due with
respect to periods prior to, or as of, such termination or expiration, and all
obligations which expressly survive the expiration or termination of this
Agreement, including the provisions of Sections 19 and 20 of this Agreement,
shall continue in full force and effect subsequent to and notwithstanding the
expiration or termination of this Agreement. In addition, Licensee will: (i)
promptly upon demand therefor by Licensor and, in any event, not later than the
scheduled due date thereof after any such event, pay any and all other Fees and
amounts due and owing to Licensor or any Affiliate of Licensor under this
Agreement; (ii) comply with all of Licensor's reasonable instructions, at
Licensor's expense, with respect to the transmittal or storage of all written
guidelines, advertising materials and all other printed materials pertaining to
the operation of the Hotel/Casino received at any time from Licensor; and (iii)
comply with other applicable provisions of this Agreement.
(B) ALTERATION OF THE LICENSED LOCATION. Upon expiration or termination
of this Agreement for any reason, or if the Licensed Location ever ceases to be
used for the operation as a Hard Rock Hotel, Licensee shall, within thirty (30)
days thereof at its expense, comply with all of Licensor's instructions to
alter, modify and change both the exterior and interior appearance of the
Hotel/Casino and the Licensed Location to remove all elements comprising the
Licensed Rights from the Hotel/Casino and the Project. At a minimum, such
alterations, modifications and changes to the Hotel/Casino will include: (i)
removing all exterior and interior Hard Rock Hotel signage; (ii) repainting and,
where applicable, recovering both the exterior and interior of the Hotel/Casino
to remove distinctive colors and designs from the walls; (iii) removing all
distinctive decor items, music-related memorabilia and icons and distinctive
furnishings, (iv) changing the staff uniforms; and (v) immediately discontinuing
the use or display of the Licensed Marks, including all usage of the Licensed
Marks in connection with the advertisement and promotion of the Hotel/Casino and
the Project.
(C) TRANSFER OF TELEPHONE DIRECTORY LISTINGS. Upon expiration or
termination of this Agreement for any reason, Licensor will have the absolute
right to notify the telephone company and
40
all listing agencies of the termination or expiration of Licensee's right to use
all telephone numbers and all classified and other directory listings for the
Hotel/Casino and to authorize the telephone company and all listing agencies to
transfer to Licensor or its designee all telephone numbers and directory
listings of the Hotel/Casino to the extent such phone numbers incorporate the
Licensed Rights. Licensee acknowledges that Licensor has the absolute right and
interest in and to all telephone numbers and directory listings associated with
the Licensed Rights. The telephone company and all listing agencies may accept
this Agreement as conclusive evidence of the exclusive rights of Licensor to
such telephone numbers and directory listings to the extent provided herein, and
this Agreement will constitute the authority from Licensee for the telephone
company and each such listing agency to transfer all such telephone numbers and
directory listings to Licensor. This Agreement will constitute a release of the
telephone company and each such listing agency by Licensee from any and all
claims, actions, and damages of Licensee for any actions taken pursuant to this
subsection.
(D) RIGHTS ASSIGNABLE. All rights of Licensor contained within Section
15(C) hereof shall be freely assignable by Licensor to any designee of Licensor.
SECTION 16. TRANSFER
(A) ASSIGNMENT BY LICENSOR. This Agreement is fully assignable by
Licensor, and shall inure to the benefit of any assignee or other legal
successor to the interests of Licensor herein.
(B) SALE OR ASSIGNMENT BY LICENSEE. The rights of Licensee pursuant to
this Agreement are personal to Licensee. Licensor has granted a license to
Licensee in reliance upon Licensee's and its principals' individual or
collective character, skill, aptitude, attitude, business ability and financial
capacity. Accordingly, Licensee shall not, directly or indirectly, sell, assign
or otherwise transfer its ownership interest in the Hotel/Casino or the Project,
or its rights under this Agreement, in whole or in part (except for the lease of
commercial space at the Project customarily subject to lease or concession
arrangements), in each instance, without Licensor's prior written approval,
which may be exercised in its sole discretion, except: (i) as to any collateral
assignment or transfer in connection with the financing of the Project, subject
to Licensor's reasonable approval as provided for in Section 5(C) hereof, and
(ii) as provided in Section 16(C) hereof.
(C) CONSENT PROCEDURES. If Licensee shall have received a bona fide
written offer to sell or assign its interest in the Hotel/Casino and the
Project, together with its rights under this Agreement, in whole and not in part
(hereinafter referred to as "LICENSEE'S PROJECT INTEREST"), and Licensee,
pursuant to the terms of such offer, desires to accept such offer, Licensee
shall give written notice thereof to Licensor, stating the name and full
identity of the prospective purchaser of Licensee's Project Interest, including
the names and addresses of the owners of the equity interests of such
prospective purchaser, the purchase price for Licensee's Project Interest, and
all of the material terms and conditions of such proposed assignment or sale,
together with all other information with respect thereto requested by Licensor
and reasonably available to Licensee. Within thirty (30) days after Licensor's
receipt of such written notice from Licensee, Licensor shall elect, by written
notice to Licensee, one of the following alternatives:
41
(i) To acquire Licensee's Project Interest, or to have its
designee or designees (which, in Licensor's sole discretion, may be an
unrelated third party), acquire Licensee's Project Interest at the same
price and upon the same terms and conditions as those set forth in the
written notice from Licensee to Licensor, provided that Licensor may
substitute cash for the fair market value of any non-cash consideration
offered. In the event that Licensor has elected to so acquire or have
its designee(s) so acquire Licensee's Project Interest in accordance
with the provisions of the preceding sentence, Licensee and Licensor,
or its designee(s), as the case may be, shall promptly thereafter enter
into an agreement for sale of Licensee's Project Interest at the price
and on the same terms aforesaid and shall consummate such transaction
subject to and in accordance with the terms and conditions thereof. The
closing for such transaction shall take place on the later to occur of
(A) ninety (90) days after the date of Licensor's written notice
electing to exercise its rights under this Section 16(C)(i), or (B) the
fifth (5th) Business Day following Licensor's receipt of all consents,
orders and approvals of any Governmental Authority applicable to such
transaction; or
(ii) To consent or withhold consent to the sale or assignment
of Licensee's Project Interest to such prospective purchaser, subject
to the provisions of Section 16(D) below. Licensor's consent to a sale
or assignment of Licensee's Project Interest may be given or withheld
in its sole discretion, provided that if all of the following
conditions are satisfied, Licensor's consent shall not be unreasonably
withheld:
(a) At the time of Licensee's notice pursuant to
Section 16(C)(i) and at all times through the date of such
sale or assignment, Licensee has paid all Continuing Fees and
other payments due to Licensor hereunder;
(b) At the time of Licensee's notice pursuant to
Section 16(C)(i) and at all times through the date of such
sale or assignment, there is no: (i) Event of Default by
Licensee under this Agreement, (ii) existing defaults or
events which would become an Event of Default by Licensee
under this Agreement with the giving of notice and passage of
time, or (iii) defaults or events which would become an Event
of Default by Licensee immediately after the consummation of
such sale or assignment;
(c) The prospective purchaser possesses management
ability and experience and a well-established reputation for
quality management in the hotel/gaming industry or has
provided by contract for the management of the Project by a
Person who possesses such ability, experience and reputation,
in accordance with the standards set forth in Section 5(P)
hereof;
(d) The prospective purchaser has adequate financial
resources to discharge all of the obligations on its part to
be performed under this Agreement as and when the same fall
due (taking into account the income generated, and reasonably
anticipated to be generated, by the Project);
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(e) The identity of the prospective purchaser (and
its constituent partners, major shareholders, senior executive
officers and other controlling Persons, if appropriate) has
been disclosed to Licensor, all such Persons enjoy a
reputation for integrity, honesty and veracity, and no such
Person has been refused a gaming license or had a gaming
licensed revoked in any jurisdiction of the United States; and
(f) Neither the prospective purchaser nor any of its
Affiliates is a HRC Competitor.
If Licensor shall fail, neglect or refuse to elect one of the alternatives set
forth in Section 16(C)(i) or (ii) within the thirty (30) day period provided for
above, the same shall be conclusively deemed to constitute an election and
consent to the proposed sale or assignment of Licensee's Project Interest under
Section 16(C)(ii) above and the provisions thereof shall prevail as if Licensor
had in writing consented pursuant thereto.
(D) EFFECT OF SALE OR LEASE.
(i) It is the intent of the parties hereto that the
Hotel/Casino and the Project shall at all times during the term of this
Agreement be operated in accordance with the Hotel/Casino System and the terms
of this Agreement. Accordingly, in the event that Licensor consents (or is
deemed to have consented) to a sale or lease and assignment of this Agreement
pursuant to Section 16(C) above, the prospective purchaser shall deliver to
Licensor as a condition to such sale or assignment an executed written
instrument, reasonably satisfactory in form and substance to Licensor and its
counsel, expressly assuming and agreeing to perform all of the terms and
provisions of this Agreement.
(ii) Licensor's consent (or deemed consent) to any sale or
assignment of this Agreement shall not constitute a waiver of any claims
Licensor or any Affiliate of Licensor may have against Licensee, nor shall it be
deemed a waiver of Licensor's right to demand exact compliance with any of the
terms or conditions of this Agreement by Licensee.
(E) TRANSFER OF CONTROLLING INTEREST IN LICENSEE. Any transaction that
results in either (i) Full House no longer holding a Controlling Interest in
Licensee, or (ii) the sale, assignment, transfer (by operation of law or
otherwise) or other disposition, directly or indirectly, of a Controlling
Interest in Licensee, shall be deemed a sale or assignment of Licensee's Project
Interest within the foregoing provisions of Section 16(B) and (C), and shall be
subject to the same rights of Licensor as set forth in said Section 16(C) with
respect to such sale or assignment. Licensee from time to time, upon Licensor's
written request, shall furnish Licensor with a list of the names and addresses
of the owners of the equity interests in Licensee; and in the event of a
contemplated sale or other disposition of a Controlling Interest in Licensee,
Licensee shall forthwith notify Licensor in writing of such sale or other
disposition and of the names and addresses of the transferee or transferees of
such Controlling Interest.
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(F) TRANSFER FEES. As a condition to any consent by Licensor to the
sale or assignment of Licensee's Project Interest, Licensee shall and does
hereby agree to pay the sum of $50,000 to Licensor at the time of such sale or
assignment of Licensee's Project Interest as a transfer fee for the granting and
processing of Licensor's consent to such transfer.
(G) BREACH. In the event of any failure by Licensee to satisfy any
terms and conditions of this Section 16, consent to any sale, assignment or
other transfer by Licensee of its interest in the Hotel/Casino or the Project,
and/or its rights under this Agreement may be withheld by Licensor and any such
sale, assignment, and/or transfer for which Licensor has not given its consent
shall constitute an Event of Default hereunder.
SECTION 17. NON-COMPETITION
(A) BY LICENSEE.
(i) During the term of this Agreement, Licensee and its
Affiliates shall not, directly or indirectly, own, operate, or have any other
interest in: (A) a restaurant, hotel, hotel/casino or casino within the
Competitive Territory which is owned, operated or licensed by a HRC Competitor,
(B) a Planet Hollywood restaurant, hotel, hotel/casino or casino within the
United States, (C) a Music-Themed restaurant, hotel, hotel/casino or casino
within the United States, or (D) any Hard Rock Cafe, Hard Rock Hotel and Casino
or Hard Rock casino, except for the Project. For purposes hereof, "Music-Themed"
shall mean a facility (including a hotel) that includes in its name, is licensed
or endorsed by, or has a substantial portion of its design based on, or is
otherwise identified with, music, any genre of music (E.G., blues, jazz or rock
`n roll, any musician, musical personality or musical group).
Notwithstanding the foregoing, Licensee may, at its option, develop,
own and operate a Music-themed hotel, hotel/casino or a casino with a "Rat Pack"
theme (I.E., a concept incorporating as its primary theme the personalities of
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, ▇▇.) within the United States (a
"COMPETING FH PROJECT"), provided that Licensee offers Licensor a reasonable
opportunity to purchase up to fifty percent (50%) of the equity interests in the
Person owning such Competing FH Project upon terms and conditions no less
favorable to those provided to any other equity investor in the Person owning
such Competing FH Project.
(ii) Licensee shall not operate or permit any other Person to
operate at the Licensed Location: (a) a restaurant owned, operated or licensed
by a HRC Competitor, or (b) a gift shop or other clothing or merchandise store
which sells clothing depicting the geographic location of the Project or
merchandise bearing the trademarks of a HRC Competitor. Licensee agrees that it
shall include in its leases for the Project a clause prohibiting or preventing
the use of operation thereof in a manner which would violate the provisions of
this section and that Licensor shall be deemed to be a third party beneficiary
of such lease clause.
(iii) If Licensee desires to sell or otherwise transfer any
portion of the real property of the Licensed Location, then prior to such sale
or transfer Licensee shall cause a restrictive covenant to be filed against such
parcel prohibiting the use of such property for (A) a Planet
44
Hollywood, Motown Cafe, House of Blues, Rainforest Cafe, Country Star, or Harley
Davidson Cafe restaurant, hotel, hotel/casino or casino, or (B) a Music-Themed
restaurant, hotel, hotel/casino or casino.
(B) BY LICENSOR.
(i) During the term of this Agreement, Licensor shall not
license, develop, own or operate, directly or indirectly, through its Affiliates
or otherwise: (a) any Hard Rock Hotel with a casino or a Hard Rock casino within
the Competitive Territory or otherwise permit the Hard Rock name to be used by
casino/gaming properties within the Competitive Territory, provided that the
foregoing shall not restrict Licensor and its Affiliates and licensees from
advertising or distributing coupons or other promotional materials at a
casino/gaming property within the Competitive Territory, (b) any Hard Rock Hotel
(without a casino) within the Territory, within Desoto County or Tunica County,
Mississippi, or in connection with or within 1,000 feet of a casino/gaming
property within the Competitive Territory, (c) any Hard Rock Cafe in connection
with or within 1,000 feet of a casino/gaming property within the Competitive
Territory, or (d) any Hard Rock Live! facility within the Territory or for a
period of five (5) years after the date of this Agreement within the city limits
of New Orleans, Louisiana, except, in each case, for the Project; provided,
however, that the development, ownership and/or operation of a Hard Rock Hotel
or Hard Rock Cafe on a site within 1,000 feet of a casino/gaming property shall
not constitute a violation of the noncompetition restrictions applicable to
Licensor set forth herein so long as Licensor or one of its Affiliates has
purchased or leased such site or executed a license for the development and
operation of a Hard Rock Hotel or Hard Rock Cafe on such site prior to the
public announcement that a casino/gaming property will be developed within 1,000
feet of such site.
Notwithstanding the provisions of Section 17(B)(i)(a) above,
Licensor may, at its option, develop, own and operate or otherwise have an
interest in a Hard Rock Hotel/Casino or a Hard Rock casino within the
Competitive Territory (a "COMPETING HR PROJECT"), provided that Licensor either
(i) obtains the written consent of Licensee, or (ii) offers Licensee a
reasonable opportunity to purchase up to fifty percent (50%) of the equity
interests in the Person owning such Competing HR Project and otherwise
participate in such project on comparable terms and conditions as the Project,
with Licensor receiving fees comparable to those in the Project, and provided
further that if the Competing HR Project involves gaming aboard a cruise liner
sailing out of New Orleans, Louisiana (the "New Orleans Project"), Licensor
shall only be required to offer Licensee a reasonable opportunity to purchase up
to twenty percent (20%) of the equity interests of the Person owning the New
Orleans Project, upon terms and conditions no less favorable than those provided
to any other equity investor in the New Orleans Project.
(iii) Licensor has advised Licensee that ▇▇▇▇▇ ▇▇▇▇▇▇ has the
right to build Hard Rock Hotel and/or Casinos in the State of Louisiana and
other locations west of the Mississippi River. Licensee acknowledges and agrees
that the exercise of such rights shall not constitute a violation of the
non-competition restrictions applicable to Licensor set forth herein.
45
(C) NECESSITY OF NONCOMPETITION RESTRICTION; INJUNCTIVE RELIEF. Each
party agrees the provisions of this Section 17 are necessary to protect the
legitimate business interests of the other party, its Affiliates and other
licensees of Licensor and its Affiliates (collectively, the "PROTECTED
PERSONS"), including, without limitation, and as applicable, preventing the
unauthorized dissemination of marketing, promotional and Confidential
Information to competitors thereof and preventing damage to and/or loss of
goodwill associated with the Licensed Rights and other intellectual property
rights of Licensor. Each party specifically acknowledges that damages alone
cannot adequately compensate for a violation by such party of the requirements
of this Section 17, and that injunctive relief is essential for the protection
of the Protected Persons. Each party agrees that if the other party alleges any
violation of any covenant contained within this Section 17, the non-breaching
party will have the right (notwithstanding Section 18 hereof) to petition a
court of competent jurisdiction for injunctive relief, in addition to all other
remedies that may be available. The party seeking such injunctive relief will
not be required to post a bond or other security for any injunctive proceedings.
SECTION 18. DISPUTE RESOLUTION
(A) ACCOUNTING/ FEE DISPUTES.
(i) Any dispute regarding any accounting issues hereunder,
including, without limitation, the calculation of: (a) Licensing Fee Revenues
and the Continuing Fees paid or payable by Licensee hereunder, (b) Total
Revenues, (c) the Required EBITDA, the Target EBITDA, or the Section 4(D)
Payment, or (d) the purchase price set forth in Section 21(B) hereof, shall be
resolved in the following manner: Licensor and Licensee shall use their
reasonable efforts with the assistance of their respective independent public
accountants to resolve such dispute. If such persons are unable to resolve the
dispute within thirty (30) calendar days after receipt by either party of a
notice identifying the nature of such dispute (the "DISPUTE NOTICE"), then the
issues raised by the Dispute Notice shall be resolved by any nationally
recognized firm of certified public accountants mutually acceptable to Licensor
and Licensee (the "ACCOUNTING REFEREE"). Such person shall act as an expert and
not as an arbitrator. If within forty-five (45) days after receipt by either
party of the Dispute Notice, the parties are unable to agree on an Accounting
Referee, then each party shall pick an internationally recognized firm of
certified public accountants and such firms shall select the Accounting Referee.
The parties shall use reasonable efforts to cause the Accounting Referee to
promptly resolve such issues. Such determination shall be made within thirty
(30) calendar days after the date on which the Accounting Referee receives
notice of the dispute, or as soon thereafter as possible. Such determination
shall be final and binding upon the parties and shall not be subject to appeal.
The fees, costs and expenses of the Accounting Referee in conducting such review
(if any) shall be shared fifty percent (50%) by Licensor and fifty percent (50%)
by Licensee.
(ii) If the final resolution of any Dispute as provided above
results in an additional payment by one party hereto to the other party hereto ,
then the party owing such additional payment shall pay such amount to the other
party hereto, together with Interest thereon from the relevant due date, within
fifteen (15) days of the date on which the final determination is agreed or
determined.
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(iii) The right of Licensor to dispute Licensee's calculation
of the amount of: (a) Licensing Fee Revenues and the Continuing Fees paid or
payable by Licensee hereunder, (b) the Required EBITDA, the Target EBITDA, and
the Section 4(D) Payment paid or payable by Licensor hereunder, or (c) any other
payment due hereunder, shall, in each case, terminate three and one-half (3.5)
years after the date each such payment was due.
(B) OTHER DISPUTES.
(i) All other disputes, disagreements, controversies or claims
(a "DISPUTE") between Licensor and Licensee arising out of or relating to this
Agreement, except for matters involving the Hard Rock Elements or matters that
are stated to be in a party's "sole discretion" or as otherwise expressly
provided herein to the contrary, shall be resolved by arbitration administered
by the American Arbitration Association ("AAA") as provided in this Section
18(A)(2) and the Commercial Arbitration Rules of the AAA (the "AAA RULES") in
effect as of the commencement of the applicable arbitration proceeding, except
to the extent the then current AAA Rules are inconsistent with the provisions of
this Section 18(B), in which event the terms hereof shall control. The
arbitration shall be governed by the United States Arbitration Act and this
Section 18(B), and judgment upon the award entered by the arbitrators may be
entered in any court having jurisdiction.
(ii) If either party hereto asserts that a Dispute has arisen,
such asserting party shall give prompt written notice (or notice as otherwise
provided herein) thereof to the other party and to the AAA. Any arbitration
pursuant to this Section 18(B) shall be conducted in Atlanta, Georgia or such
other place as the parties agree.
(iii) The arbitration shall be conducted by three (3)
arbitrators, which arbitrators shall be selected in accordance with the AAA
Rules, and at least one (1) of whom (but no more than two (2) of whom) shall
have had experience in the management and/or operation of hotel/casinos, or as a
consultant in connection with the management and/or operation of hotel/casinos.
Notwithstanding the above, if the Dispute at issue is for a liquidated amount
not in excess of $500,000, adjusted for inflation, then the arbitration shall be
conducted by one (1) arbitrator in accordance with the AAA Rules for Expedited
Procedures, and which arbitrator shall be selected in accordance with AAA Rules
for Expedited Procedures, and which arbitrator shall have experience in the
management and/or operation of hotel/casinos.
In connection with any arbitration proceeding pursuant to this
Section 18(B), (a) no arbitrator shall have been employed or engaged by a party
hereto within the previous five (5) year period, (b) each arbitrator shall be
neutral and independent of the parties to this Agreement, (c) no arbitrator
shall be affiliated with any party's auditors, (d) no arbitrator shall be
employed by any hotel or casino operator or an Affiliate of any hotel or casino
operator, and (e) no arbitrator shall have a conflict of interest with
(including, without limitation, any bias towards or against) a party hereto. As
used in this Agreement, the term "arbitrator" or "arbitrators" shall mean the
one (1) member arbitration panel or the three (3) member arbitration panel, as
applicable, described herein.
47
(iv) The award of the arbitrators shall be accompanied by a
statement of the reasons upon which the award is based. The arbitrators shall
not have the power to modify this Agreement. The award may not include, and the
parties hereto specifically waive, any right to an award of (a) special,
incidental or consequential damages arising out of claims based upon any breach
occurring prior to the Opening Date, (b) punitive damages, or (c) attorneys'
fees and costs. Accordingly, each party hereto shall bear its own attorneys'
fees and costs incurred in connection with any arbitration proceeding. Unless
otherwise specifically provided in this Agreement, the fees and costs of the
arbitrators shall be borne equally by the parties hereto.
(v) The arbitrators may consolidate proceedings with respect
to any Dispute under this Agreement with proceedings with respect to any related
controversy, provided that any parties to such controversy who are not parties
to this Agreement consent to such consolidation.
(vi) The parties hereto will cooperate in the exchange of
documents relevant to any Dispute. Deposition or interrogatory discovery may be
conducted only by agreement of such parties or if ordered by the arbitrators. In
considering a request for such deposition or interrogatory discovery, the
arbitrators shall take into account that the parties hereto are seeking to avoid
protracted discovery in connection with any arbitration proceeding hereunder.
(vii) The obligation herein to arbitrate shall not be binding
upon either party with respect to (a) claims relating to either party's rights
to ownership of such party's trademarks, trade names, service marks, logos,
commercial symbols, slogans, trade dress, or other intellectual property rights,
or other matters materially affecting such intellectual property rights, which
claims may be adjudicated in a court of competent jurisdiction, or (b) requests
for temporary restraining orders, preliminary (and final) injunctions, or other
procedures in a court of competent jurisdiction to obtain interim relief when
deemed necessary to prevent a default that would result in irreparable injury
pending resolution by arbitration of the actual dispute between the parties.
SECTION 19. INDEMNIFICATION
(A) INDEMNIFICATION BY LICENSOR. Licensor shall Indemnify Licensee
from, against and in respect of any and all actions, suits, claims, proceedings,
investigations, audits, demands, assessments, fines, judgments, costs and
expenses (including, without limitation, reasonable attorneys' fees) ("CLAIMS")
incurred by Licensee by reason of: (i) any breach by Licensor of any covenant or
agreement made by it in this Agreement, (ii) any trademark infringement claim as
a result of its use of the Licensed Marks, or (iii) any act or omission of
Licensor or its Affiliates or any of their respective employees which
constitutes gross negligence or willful misconduct.
(B) INDEMNIFICATION BY LICENSEE. Licensee shall Indemnify Licensor and
its Affiliates and all of their respective directors, officers, employees,
agents and representatives from and against all Claims incurred by any of them
by reason of: (i) any breach by Licensee of any covenant or agreement made by it
in this Agreement, (ii) any act or omission of Licensee or any officer, employee
or agent of Licensee, whether or not incurred or committed in the operation of
the Hotel/Casino or the Project, (iii) any failure by Licensee to provide all of
the services contracted for in connection with the operations of the
Hotel/Casino and the Project, to honor and fulfill all
48
obligations of Licensee under any contract, commitment or obligation of
Licensee, or (iv) the operation of the Hotel/Casino and the Project, including
any death or personal injury or property damage occurring at the Hotel/Casino or
the Project, unless such death, injury or damage was caused by the gross
negligence or willful misconduct of Licensor or its Affiliates or any of their
respective employees.
(C) METHOD OF ASSERTING CLAIMS. Whenever any Claim shall arise for
indemnification under this Section 19, the indemnified party will give prompt
written notice to the indemnifying party of such Claim, stating the nature,
basis and (to the extent known) amount thereof, and shall cooperate fully in the
defense, settlement or compromise of such Claim; provided that failure to give
prompt notice shall not jeopardize the right of the indemnified party to
indemnification unless such failure shall have materially prejudiced the ability
of the indemnified party to defend such Claim. The indemnifying party shall have
the sole right to select counsel for the defense of such Claim, subject to the
approval of the indemnified party (which approval shall not be unreasonably
withheld) and to control the defense, settlement or compromise of such Claim.
The indemnified party shall have the right to participate in (but not control)
the defense of any such Claim, with its counsel and at its own expense. The
indemnified party shall not settle or compromise any Claim by a third party for
which it is entitled to indemnification hereunder without the prior written
consent of the indemnifying party. The indemnifying party shall obtain the prior
written approval of the indemnified party (which approval may not be
unreasonably withheld) before ceasing to defend against such third party claim
or entering into any settlement or compromise of such third party claim
involving injunctive or similar equitable relief being asserted against any
indemnified party and no indemnifying party will, without prior written consent
of each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened Claim, action or cause of action, suit or
proceeding in respect of which indemnification may be sought thereunder (whether
or not any such indemnified party is a party to such Claim, action or cause of
action, suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of all such indemnified parties from all
liability arising out of such Claim, action, suit or proceeding.
(D) SURVIVAL. The provisions of this Section 19 shall survive the
termination of this Agreement for any reason.
SECTION 20. CONFIDENTIAL INFORMATION
Except as provided in this Agreement, each party shall disclose
Confidential Information to the other party solely on the condition that the
recipient and its Affiliates agree, and the recipient, individually and on
behalf of its Affiliates hereby agrees, that at all times during and after the
term of this Agreement, the recipient and its Affiliates (i) shall not use the
Confidential Information in any other business or capacity, (ii) shall maintain
the absolute confidentiality of the Confidential Information, (iii) shall not
distribute to third parties copies of any portion of the Confidential
Information which is disclosed in written or tangible form, and (iv) shall adopt
and implement reasonable procedures to prevent the unauthorized use or
disclosure of the Confidential Information, including, without limitation,
restrictions on disclosure thereof by the recipient's employees and
49
Affiliates who may have access to the Confidential Information. In the event
that either party is required through legal process to disclose any Confidential
Information, such party may do so, provided that the disclosing party gives the
other party written notice of the Confidential Information to be disclosed as
far in advance of its disclosure as is reasonably practicable.
Each party acknowledges that the restrictions contained in this Section
are reasonable and necessary to protect the legitimate interests of the
disclosing party, do not cause the recipient of the Confidential Information
undue hardship, and that any violation of the provisions of this Section will
result in irreparable injury to the disclosing party and its Affiliates and
that, therefore, the disclosing party shall be entitled to preliminary and
permanent injunction relief in any court of competent jurisdiction, which rights
shall be cumulative and in addition to any other rights or remedies to which the
disclosing party may be entitled.
SECTION 21. OPTION TO ACQUIRE HOTEL/CASINO
(A) OPTION TO ACQUIRE HOTEL/CASINO. At any time during the third
Operating Year (the "OPTION PERIOD"), Licensor will have the option, in its sole
discretion, to purchase Licensee's Project Interest, which shall include: (i)
the Hotel/Casino, including all related improvements, (ii) all real property
constituting the Licensed Location , and (iii) all other assets of Licensee
related to the Hotel/Casino. Licensor shall exercise such right by written
notice to Licensee at any time during the Option Period. Licensor and Licensee
shall each, at their own expense, use their best efforts to secure all necessary
third party consents, including, without limitation, all Permits necessary to
effect any such transfer; provided, however, that Licensor may, at its option,
extend closing for a period necessary to secure all such consents and Permits.
(B) PURCHASE PRICE. The purchase price for Licensee's Project Interest
will be an amount equal to (i) seven, multiplied by (ii) the sum of (a)
Licensee's EBITDA (after deducting any rent or similar expense relating to the
lease of any portion of the real property (other than tidelands) of the Licensed
Location by Licensee as a tenant) for the second Operating Year, (b) the
Continuing Fees paid by Licensee to Licensor for the second Operating Year, and
(c) the Management Fees paid pursuant to the Management Agreement for the second
Operating Year, in each case, based on the financial reports prepared and
delivered to Licensor pursuant to Section 12 of this Agreement; provided that
the purchase price shall in no event be less than $330 million. Within ninety
(90) days after the end of the second Operating Year, Licensee shall deliver to
Licensor its calculation of Licensee's EBITDA for the second Operating Year and
the purchase price as provided herein. Any disputes between Licensor and
Licensee regarding the calculation of the purchase price for Licensee's rights
in the Project shall be resolved as provided in Section 18(A) hereof.
(C) CLOSING. The closing under this Section 21 shall take place on the
later to occur of (i) ninety (90) days after the date of Licensor's written
notice exercising its option pursuant to Section 21(A) hereof, or (ii) the fifth
(5th) Business Day following Licensor's receipt of all consents, orders and
approvals of any Governmental Authority applicable to such transaction. At the
closing, (a) Licensee shall provide to Licensor (or its designee) good,
marketable and indefeasible title to all of the assets comprising its interest
in the Project, free and clear of any mortgages, claims, liens or encumbrances,
and local custom shall be followed as to the formalities of any transfer,
50
documentation, closing costs and closing logistics, and (b) Licensor (or its
designee) shall pay the purchase price to Licensee.
SECTION 22. GENERAL PROVISIONS
(A) ENTIRE AGREEMENT. This Agreement, the Management Agreement, the
Operating Agreement, the Investment Agreement, the other documents referred to
herein, and the attachments hereto, if any, constitute the entire, full and
complete agreement between Licensor and Licensee concerning the subject matter
hereof, and supersede all prior agreements, no other representations having
induced Licensee to execute this Agreement. No representations, inducements,
promises, or agreements, oral or otherwise, not embodied in this Agreement (as
defined in the preceding sentence) or attached hereto (unless of subsequent
date) were made by either party, and none shall be of any force or effect with
reference to this Agreement or otherwise. Except as otherwise provided in this
Agreement, no amendment, change or variance from this Agreement shall be binding
on either party unless mutually agreed to by the parties and executed by their
authorized officers or agents in writing.
(B) NOTICES. Except as otherwise provided in this Agreement, all
notices, demands, requests, consents, approvals and other communications
(collectively "NOTICES"), required or permitted to be given hereunder, or which
are to be given with respect to this Agreement, shall be in writing and
personally delivered, or sent by facsimile (with a confirming copy mailed by
international air mail), or by a recognized overnight courier service, or by
registered international air mail, postage prepaid, return receipt requested,
addressed to the party to be so notified as follows:
If to Licensee, to: Full House Mississippi, LLC
▇/▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Licensor, to: Hard Rock Cafe International (USA), Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, Business Affairs
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with copy to: The Rank Group Plc
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Telecopier: 011-44-171-262-0354
with copy to: Lord, Bissell & Brook
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: 312-443-0336
Notices shall be deemed received on the date of delivery if personally
delivered, two (2) business days after sending if sent by facsimile or overnight
courier service, or seven (7) business days after sending if sent by registered
international air mail.
(C) INDEPENDENT CONTRACTOR STATUS. This Agreement does not create a
fiduciary relationship between the parties hereto, and Licensee is and shall, at
all times, remain an independent contractor. Nothing in this Agreement is
intended to constitute either party an agent, legal representative, subsidiary,
joint venturer, partner, employee or servant of the other party for any purpose.
During the term of this Agreement, Licensee shall hold itself out to the public
only as an independent contractor operating the business pursuant to a license
from Licensor.
(D) SURVIVAL. Any covenant, representation, warranty, term or provision
of this Agreement which, in order to be effective, must survive the termination
of this Agreement, shall survive any such termination.
(E) SEVERABILITY. Except as expressly provided to the contrary
elsewhere herein, each section, part, term and/or provision of this Agreement
shall be considered severable and shall be construed as independent of any other
section, part, term and/or provision of this Agreement. If, for any reason, all
or any part of any section, part, term and/or provision herein is held to be
invalid, unenforceable, or in conflict with any applicable law by a court or
properly convened arbitrators having valid jurisdiction in an unappealed final
decision to which Licensor is a party or by which Licensor may be bound, such
shall not impair the operation of, or have any other effect upon, any other
section, part, term and/or provision of this Agreement as may remain otherwise
valid and enforceable, and the latter shall continue to be given full force and
effect and bind the parties hereto, and said invalid sections, part, terms
and/or provisions shall be deemed limited by construction in scope and effect to
the minimum extent possible to render the same valid and enforceable.
(F) WAIVERS. No failure by any party hereto to insist upon the strict
performance of any covenant, agreement, term or condition of this Agreement, or
to exercise any right or remedy consequent upon the breach thereof, shall
constitute a waiver of any such breach or any subsequent breach of such
covenant, agreement, term or condition. No covenant, agreement, term or
condition
52
of this Agreement, and no breach thereof, shall be waived, altered or modified
except by written instrument signed by the party to be charged therewith. No
waiver of any breach of any covenant, agreement, term or provision of this
Agreement shall affect or alter this Agreement, but each and every covenant,
agreement, term and condition of this Agreement shall continue in full force and
effect.
(G) NO WARRANTIES OR GUARANTEES. Licensor makes no warranties or
guarantees upon which Licensee may rely, and assumes no liability or obligation
to Licensee, by providing any waiver, approval, consent or suggestion to
Licensee in connection with this Agreement, or by reason of any delay, or denial
of any request therefor. Licensee, in executing this Agreement, has not relied
upon any representation or warranty of Licensor that the business operations to
be conducted at the Hotel/Casino will be successful, or that any specific level
of profit will be achieved.
(H) CONSENTS AND APPROVALS.
(i) All consents and approvals which may be given under this
Agreement shall be in writing. Unless a different standard is specified in a
particular term or provision of this Agreement, any provision of this Agreement
which specifies that a consent or approval by Licensor shall not be
"unreasonably withheld or delayed", must be "reasonably" given, or words of
similar effect, shall entitle Licensor, in granting or withholding any such
consent or approval, to consider the economic considerations of Licensor, the
application of Licensor policies and procedures, public relations and publicity
concerns of Licensor and Licensee, and Laws applicable to Licensor and Licensee.
(ii) If, pursuant to this Agreement, any consent or approval
by either party which may not be unreasonably withheld is alleged to have been
unreasonably withheld, conditioned or delayed, then any dispute as to whether
such consent or approval has been unreasonably withheld, conditioned or delayed
shall be settled by arbitration in accordance with Section 18 hereof. In the
event there shall be a final determination that such consent or approval was
unreasonably withheld, conditioned or delayed so that such consent or approval
should have been granted, the consent or approval shall be deemed granted and
the party requesting such consent or approval shall not be entitled to damages
or any other relief resulting therefrom.
(I) INFORMATIONAL MATERIALS. In furtherance of the respective rights of
the parties contained within this Agreement, including, without limitation, any
right of approval or consent, or, in the case of Licensee, to exploit the
Licensed Rights granted hereunder to Licensee, each party shall be entitled to
receive from the other all materials and information in the possession or
control of the other party reasonably requested to enable the requesting party
to exercise the rights granted to such requesting party hereunder.
(J) EXPENSES. Except to the extent otherwise provided herein, each
party hereto will bear its own costs, expenses and fees, including, without
limitation, the fees and expenses of their respective legal counsel, in
connection with the negotiation, preparation and execution of this Agreement,
and in connection with all due diligence reviews and investigations conducted by
such party prior to the execution of this Agreement.
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(K) FORCE MAJEURE. If by reason of war, riots, civil commotion, labor
disputes, strikes, lockouts, inability to obtain labor or materials, fire,
hurricane, windstorm, flooding, or other acts or elements, accidents, government
restrictions or appropriation or other causes, whether like or unlike the
foregoing, beyond the control of a party hereto, such party is unable to perform
in whole or in part its obligations under this Agreement, then in such event
such inability to perform, so caused, shall not make such party liable to the
other. Upon the occurrence of such an event, Licensor shall seek to determine
the impact, if any, that such occurrence shall have upon the rights and
obligations of the parties under this Agreement. Any disagreement regarding such
rights and obligations shall be referred to the Chief Executive Officer of
Licensee and the President and Chief Executive Officer of Licensor for final
resolution in writing signed by each of them. In the event that such persons are
unable to so resolve the disagreement, then they shall seek alternative means to
resolve the dispute, provided that if the parties cannot otherwise resolve that
dispute within a reasonable period under the circumstances, then the parties
shall not be precluded from pursuing the procedures set forth in Section 18 of
this Agreement.
(L) ABSENCE OF THIRD PARTY BENEFICIARY RIGHTS. Except as otherwise
specified in this Agreement, no provision of this Agreement is intended or shall
be construed to provide or create any third party beneficiary right or any other
right of any kind in any client, customer, affiliate, insurer, lender,
shareholder, partner, officer, director, employee or agent of any party hereto,
or in any other Person, and all terms and provisions hereof shall be personal
solely among the parties to this Agreement and their proper successors and
assigns.
(M) INFLATION ADJUSTMENT. Whenever any provision of this Agreement or
the Exhibits hereto requires that an amount be adjusted for inflation, such
adjustment shall be based upon the "Inflation Index" (as defined below). The
amount of the adjustment shall be determined by multiplying the amount which is
the subject of the escalation by a fraction the denominator of which is the
"Inflation Index" for the month from which such adjustment shall be made (the
"BASE MONTH"), and the numerator of which is the "Inflation Index" for the month
immediately prior to the month in which the adjustment for inflation shall be
made (the "ADJUSTMENT MONTH"), provided that if the percentage change from the
Base Month to the Adjustment Month is negative, it shall be deemed to be zero
for purposes of making calculations hereunder.
For purposes of this paragraph, the Inflation Index shall mean the U.S.
City Average Price Index for All Urban Consumers for All Items (Base Year 1982
-1984) as published by the United States Department of Labor, Bureau of Labor
Statistics; provided that if such index is discontinued or is unavailable, then
the parties will substitute therefor a comparable index for use in calculating
changes in the cost of living or purchasing power of consumers published by any
other governmental agency, major bank, financial institution or university or by
another recognized financial publication, with such adjustments as shall be
reasonably necessary to produce substantially the same results as would have
been obtained under the unavailable index.
(N) ASSIGNMENT. Subject to the provisions of Section 16 hereof, this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective heirs, legal representatives, successors and permitted assigns
of the parties hereto.
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(O) HEADINGS. The section and other headings contained herein are for
convenience of reference only, and are not intended to define, limit or describe
the scope or intent of any provision of this Agreement.
(P) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(Q) PUBLIC ANNOUNCEMENTS. No notices to third parties or other
publicity, including press releases, concerning the existence of this Agreement
or any of the transactions contemplated hereby shall be made by either party
hereto or their respective Affiliates unless agreed to by each of the parties
hereto, except to the extent required by law. Notwithstanding the above, no
notices or other public announcements regarding this Agreement shall be made by
either party until after Licensee's acquisition of the site for the
Hotel/Casino.
(R) NO SOLICITATION. Licensor and Licensee, on behalf of itself and its
Affiliates, each agree not to, directly or indirectly, solicit the employment of
any individual who has an active management position with the other party hereto
or any of its Affiliates, without the written consent of the other party hereto,
which consent may be granted or withheld in the other party's sole discretion.
(S) FRANCHISE LAWS NOT APPLICABLE. It is the intention of the parties
that the negotiation, execution, delivery and performance of this Agreement and
the other agreements, instruments and documents to be executed and delivered in
connection herewith, and the consummation of the transactions contemplated
hereby and thereby not trigger or be subject to the franchise laws and
regulations of any jurisdiction.
(T) CUMULATIVE REMEDIES. All rights and remedies of the parties hereto
are cumulative of each other and of every other right or remedy such parties may
otherwise have at law or in equity, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
(U) APPLICABLE LAW. This Agreement shall be governed and construed in
accordance with the internal laws of Florida, without reference to the
principles of comity or conflicts of law thereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed, effective as of the date first set forth above.
LICENSOR:
HARD ROCK CAFE INTERNATIONAL (USA), INC.
By:_______________________________
Name:____________________________
Its:_______________________________
LICENSEE:
Full House Mississippi, LLC
By: AEP & FHR LLC, its sole member
By: Full House Resorts, Inc., a member
By:_______________________________
Name:____________________________
Its:_______________________________
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a member
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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EXHIBIT A
LICENSED MARKS
Set forth below are the Licensed Marks within the defined term
"Licensed Rights" that may be used at Hotel/Casino.
1. HARD ROCK HOTEL, Registration No. 1,909,483 for hotel services.
2. HARD ROCK HOTEL and Design, Registration No. 2,029,859 for hotel
services, as attached hereto.
3. HARD ROCK LIVE
2. HARD ROCK LIVE and Design, as depicted on the following page.
The following word marks may also be used in association with the
Licensed Marks described above:
Love All, Serve All
Save the Planet
Take Time to Be Kind
All is One
No Nuclear Weapons or Drugs
i