EXHIBIT 10.15
BODIES EXHIBITION
TERM SHEET
April 13th, 2005
The intent of this document (the "`Term Sheet") is to set out the terms
of an agreement between Premier Exhibitions, Inc., a Florida corporation, having
its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("PB") and ▇▇▇ Tour (USA), Inc., a Delaware corporation having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("CPI") made
with effect as of this 13th day of April, 2005. This document is intended to be
a binding agreement between PE and CPI with respect to the subject matter hereof
until terminated or replaced by the definitive agreement(s).
Confidentiality
The terms and conditions described in this Term Sheet, including its
existence, shall he confidential information and shall not be disclosed to any
third party. If either party determines that it is required by law to disclose
information regarding this Term Sheet or to file this Term Sheet with any
governmental agency or authority, it shall, within a reasonable time before
making any such disclosure or filing, consult with the party regarding such
disclosure or filing and seek confidential treatment for such portions of the
disclosure or filing as may be requested by the other party.
Proposed Terms and Conditions
Overview
PE owns, controls and operates an exhibition known as "Bodies
Revealed", an anatomy exhibition that is intended to tour the world, the first
such exhibition being currently exhibited in Seoul, Korea. CPI and PE wish to
enter into an agreement to produce and promote "Bodies Revealed" exhibitions in
six (6) select markets throughout North America and the rest of the world.
Representations
PE hereby represents and warrants, and recognizes that CPI has relied
on such representations and warranties in committing to complete the
transactions herein contemplated, as follows:
the historical information as to the dates, places and attendance of exhibits
presented by PE's competitor during the period 1996 through October 2004, a copy
of which is attached to this Term Sheet for identification, was obtained from
information released by the competitor which PE believes to be accurate and
complete in terms of the activity of the competitor over the period reported;
the "Breakeven Case" spreadsheet prepared by PE, a copy of which is attached to
this Term Sheet for identification, represents PE's best estimation and forecast
based on all available to it, the conclusion drawn from which it believes to be
accurate;
▇▇ knows of no other actual or potential competitor for the "Bodies Revealed"
exhibition other than: ▇▇▇ ▇▇▇▇▇▇ who presently have exhibitions in Cleveland
and Chicago having just completed an exhibition in Los Angeles; and, the "rogue"
exhibitor in San Francisco;
To the best of PE's knowledge and belief, there is no other acceptable
technology for the preservation and exhibition of human bodies other than: the
process used by the competitor, ▇▇▇ ▇▇▇▇▇▇ (plastination); and, the "polymer
preservation" process patented by Dow Corning and licensed (the chemical patent
and the use patent) exclusively to ▇▇▇▇▇▇▇▇ Laboratories for the preservation of
human bodies, ▇▇▇▇▇▇▇▇ Laboratories being the party with whom PE has contracted
for its exclusive use in the presentation of "Bodies Revealed" exhibits. As a
consequence of its contractual arrangement with ▇▇▇▇▇▇▇▇ Laboratories PE is
satisfied that no third party is entitled to use the "polymer preservation"
process to compete with the "Bodies Revealed" exhibition; and
PE is informed and believes that the "rogue" competitor was formerly
involved/associated with the ▇▇▇ ▇▇▇▇▇▇ and obtained the exhibit from someone in
China who did not have the legal right to use the Dow Corning process and as a
consequence PE expects ▇▇▇▇▇▇▇▇ Laboratories Inc. will be able to enjoin the
continuing exploitation by the "rogue" exhibitor.
Term
This agreement between PE and CPI will be for four (4) exhibitions, one
in each of four (4) markets (individually an "Exhibition"). The Term shall be
from this date until the last day of the last Exhibition exhibited by CPI
pursuant to this agreement. Each Exhibition shall last at least six (6) months
with CPI having an option to extend these Exhibitions with terms continuing if
business so warrants. CPI may close Exhibitions earlier so long as it consults
with PE in advance.
With the exception of PE's prior obligation to deliver an exhibition of
"Bodies Revealed" for exhibit in Earlscourt, England within the next 18 months
for a "one run" exhibit, during the Term, CPI shall have the right, to the
exclusion of third parties, to exclusively exploit the first four (4) [six (6)
in the case of extension, if applicable] exhibitions of "Bodies Revealed" and
this agreement shall be exclusive in the sense that PE shall refer all enquiries
from potential third party exhibitors to CPI and PE shall not be entitled to
contract for the delivery of a "Bodies Revealed" exhibition to a third party or
present the exhibit itself until such time as CPI shall have selected and booked
the four (4) Exhibitions [six (6) in the case of extension]. In the event of a
delay in the selection of markets on the part of CPI, CPI agrees to consider
allowing PE to book with third parties newly created exhibitions that are ready
for presentation on a basis which would allow PE to reduce storage costs so long
as CPI is not adversely affected economically, CPI shall disclose all offers it
receives from potential third party exhibitors.
During the Term, CPI shall be entitled to renew, modify, amend and/or
extend the Term of the agreement arising out of this Term Sheet, as follows:
provided that CPI shall have given notice prior to a date which is sixty (60)
days following the opening to the public of the third (3rd) Exhibition, for two
(2) additional exhibitions on the same terms and conditions [with the exception
of the guaranty amount which shall be $500,000, per Exhibition] recognizing that
in the case where the $1,000,000 loan hereafter described is outstanding, the
guaranty amount of $500,000 per Exhibition would be a set off against principal
and accrued interest repayment by PE of the loan. For greater certainty and
notwithstanding any other provision herein to the contrary, should CPI extend
for the 2 additional Exhibitions, the effect of setting off the guaranty amount
of $1,000,000 against the Loan would be that CPI would return to PE the
principal and interest payments made on the Loan by PE; and
provided that CPI shall have given notice prior to a date which is sixty (60)
days following the opening to the public of the fifth (5th) Exhibition, for six
(6) additional Exhibitions on the same terms and conditions with the exception
of the modifications set out in paragraph 0 and
provided that CPI shall have given notice prior to a date which is sixty (60)
days following the opening of the twelfth (12th) Exhibition, and only in the
case where there is a twelfth (12th) Exhibition, and only in the case where
there is a twelfth (12th) Exhibition, for a period of ninety (90) days, CPI
shall have the right to negotiate to the exclusion of all third parties a
further renewal, extension, modification of this agreement and PE agrees to
negotiate in good faith.
PE Contributions/Commitments
PE shall be responsible for, and shall contribute, the following:
- each Exhibition, containing human specimens of top quality, free
and clear of any adverse claims that might prevent or otherwise
interfere with exhibition by CPI as herein contemplated
- proprietary protection in that PE shall, to the best of their
abilities, cause ▇▇▇▇▇▇▇▇ Laboratories to prosecute and actively
pursue to enjoin any and all uses of its proprietary
"plastination" process anywhere in the world whereby third
parties attempt to compete with "Bodies Revealed" type exhibits
- pipe and drape and all casing exhibition materials et al
- care and custody of each Exhibition until the point in time that
CPI takes possession and control for purposes of physical
delivery to the venue at which CPI will next produce and promote
the Exhibition and from and after completion of each Exhibition
(the intervening period being referred to as the "Exhibition's
Run"). Note: PE has represented that it is standard practice for
the presenter to be responsible for transporting the exhibit from
its place of rest to the venue at which it is to be exhibited
next, whereas, in the case of the live entertainment business,
the standard practice is for the owner of the show to be
responsible for transporting the show to the next venue.
- insurance to cover each Exhibition and liability insurance, to be
treated as a reimbursable expense during the Exhibition's Run
- gift shop and items (all costs shared equally between PE and
CPI), with third-party merchandiser a possibility
- existing marketing designs and concepts with new ones to be
developed jointly
- designers employed and/or retained by PE have designed the
"Bodies Revealed" exhibit and the design has been copyrighted
- the services of ▇▇. ▇▇▇ ▇▇▇▇▇▇, Professor Emeritus of Anatomy,
University of Michigan, to participate in marketing and public
relation projects to promote each Exhibition
- its know how and expertise rendered from time to time and as
needed by those of its senior staff experienced not only in the
exploitation of exhibitions generally but also exhibitions
similar in nature to "Bodies Revealed", all with a view to
guiding and assisting CPI to maximize revenues and net profits.
CPI Contributions/Commitments
CPI will contribute the following:
- marketing and publicity expertise
- identifying and procuring appropriate venues
- funding for all direct and indirect costs of producing and
promoting the Exhibition in each locale, which without limiting
the generality of the foregoing shall include; transportation of
the Exhibition from its then current locale within the USA to the
venue at which it is to be exhibited, rent, staffing,
maintenance, extra lighting (if none or minimal in house),
security, insurance coverage for the Exhibition's Run, the cost
of marketing and publicity (the "Local Costs")
Mutual Contributions
Both parties will mutually agree to the following:
- selection of markets
- dates of Exhibitions
it being understood and agreed that the parties will be commercially reasonable
in the selection of markets and schedules [minimize storage (downtime) and
transportation costs (proximity)] for the Exhibitions and CPI will act in good
faith when asked to consider proposals made by PE for the use of exhibits when
CPI has not as yet selected and booked markets so that PE can minimize its costs
in making exhibits available to CPI.
Consideration
As consideration for the PE contributions/commitments and the
entitlement to produce and promote the four (4) Exhibitions, CPI agrees to: (i)
advance to PE a credit facility of $1,425,000; (ii) pay PE a non-refundable
recoupable guaranty of $425,000 for the first Exhibition and $500,000 for the
second, third and fourth Exhibitions payable on the opening date of each
Exhibition with the exception of the guaranty payment for the last Exhibition
which CPI may pay by delivering a promissory note in the principal amount of
$500,000 and repayable without interest on September 30, 2006 (the "Initial
Guaranty Amount"); (iii) loan PE the sum of $1,000,000 repayable quarterly on
account of principal in the amount of $100,000 in 2005 commencing September 30th
and $150,000 in 2006 and thereafter together with interest at the rate of ten
percent per annum calculated monthly not in advance and repayable in full in any
event of the last date of the Term (the "Loan"); and (iv) pay to PE a share of
the net profits earned from the Exhibitions on a cross collateralized basis (the
"PE Profit Share").
Credit Facility
The Credit Facility shall bear interest at the rate of 10% per annum
calculated monthly from and after the earlier of the due date or the date of
demand, shall be repaid by crediting principal with the guaranty amounts to be
paid by CPI to PE; each and every time an Exhibition opens to the public
(including the payment made by delivery of the promissory note), and, any
remaining unpaid balance of principal and interest accrued thereon shall become
immediately due and payable on September 30, 2006. In the event that either: the
parties are unable to agree upon the selection of cities and dates for
Exhibitions, acting reasonably; and/or, PE refuses or is unable to provide the
Exhibitions as herein contemplated, CPI shall be entitled to demand payment on
the Note. Forthwith following acceptance of this Term Sheet, PE agrees to
provide CPI with formal evidence of indebtedness together with a general
security interest over the assets and undertaking of PE.
PE Profit Share
"Net Profit" shall mean all revenues generated by all the Exhibitions
and received by CPI and/or PE [and in those cases where received by PE. PE shall
immediately pay over to CPI which may include, without limiting the generality
of the foregoing; admission ticket sales, sponsorship, merchandise sales, ticket
master rebates, parking and other concessions, guarantees and advances from any
source; less, the Local Costs and the Guaranty Amount (being the Initial
Guaranty Amount plus the Further Guaranty hereafter described) for the
Exhibitions taken as a whole.
Net Profit shall be calculated bimonthly on or about the 15th and last
days of each and every month (practical cut off dates) and within a reasonable
period thereafter CPI shall provide PE with an up-to-date accounting for each
Exhibition then being exhibited together with a cumulative consolidated
accounting for the Exhibitions taken as a whole accompanied by payment of the
amount then owing to PE on account of its share of Net Profit which amount shall
be paid as an advance against eventual payment of the amount due to PE
calculated on the basis of the methodology outlined on the attached worksheet.
Net Profit from all Exhibitions taken as a whole shall be shared by CPI
and PE on the following basis:
first, Net Profit up to and including an amount equal to the aggregate of all
Local Costs plus the Guaranty Amount (the "50:50 Split Point") shall be shared
equally;
the next $1,500,000. of the Net Profit after the 50:50 Split Point shall be
shared 60:40 favoring PE of which CPI shall be entitled to first deduct and
retain the sum of $175,000.; and
thereafter, the Net Profit shall be shared 70:30 favoring PE.
Further Guaranty
From and after the point in time that the gross revenues from the sale
of admission tickets to all Exhibitions exceeds $10,000,000., in the case of the
base four (4) Exhibitions [$15,000,000. in the case of the six (6) Exhibitions],
from its share of Net Profit in excess of the 50:50 Split Point, and only from
its share of Net Profit in excess of the 50:50 Split Point, CPI agrees to
advance, from time to time, an amount equal to 50% of its share of Net Profit in
excess of the 50:50 Split Point to a maximum of $3,000,000., as illustrated on
the attached worksheet (the "Further Guaranty"). After Exhibition Six (6) the
concept of a Further Guaranty shall not be applicable.
In the event that CPI elects to extend this agreement for a further six
(6) Exhibitions affix the sixth (6th) Exhibition, the financial terms of this
agreement shall be modified as follows:
Extension
In the event that CPI elects to extend this agreement for a further six
(6) Exhibitions after the sixth (6th) Exhibition, the financial terms of this
agreement shall be modified as follows:
the guaranty amount for the additional six (6) Exhibitions shall be $6,000,000
payable $1,000,000 in cash on the date that each of Exhibitions seven (7)
through eleven (11) open to the public;
with the exception any "Bodies Revealed" exhibitions being presented by third
parties approved by CPI during the Term as extended, CPI shall continue to have
the right, to the exclusion of third parties, to exclusively exploit the
additional six (6) exhibitions of "Bodies Revealed" and this agreement shall
continue to be exclusive in the sense that PE shall refer all enquiries from
potential third party exhibitors to CPI. However, should CPI decline a third
party offer, one that PE is willing to accept, PE, shall be at liberty to book
the exhibition so long as, and only so long as, PE is able to make another
"Bodies Revealed" exhibition available to CPI on no less than ninety (90) days
prior notice. In the event that CPI requires an exhibit that would otherwise be
available and deliverable by PE within the ninety (90) notice period, CPI may
require that PE keep such exhibit available to CPI so long as CPI agrees to pay
PE's costs (storage and license fees for the specimens), in which event such
costs shall be treated as Local Costs;
Net Profit from Exhibitions seven (7) through twelve (12), taken as a whole,
shall be shared by CPI end PE on the following basis:
first, Net Profit up to and including an amount equal to one hundred and
twenty-five percent (125%) of the aggregate of all Local Costs and the Guaranty
Amount [for all Exhibitions covered by the extension taken as a whole] (the
"60:40 Split Point") shall be shared 60:40 favoring PE; and
thereafter the Net Profit shall be shared 70:30 favoring PE; and
CPI shall make advances against PE's share of the Net Profit in the same manner
as was the case for Exhibitions one (1) through six (6).
Binding Agreement
As soon as possible following acceptance of this Term Sheet the parties
agree to instruct legal counsel and do all manner of things necessary or
advisable to incorporate all of the terms of this term sheet into a binding
definitive formal agreement(s) by no later than May 13th, 2005 failing which
either party shall be at liberty to declare any agreement arising out of this
Term Sheet at an end and require that the transaction be unwound.
Notwithstanding the foregoing, it is understood and agreed that the right to
terminate and unwind shall only arise in the circumstance where the party
exercising the right has acted in good faith and has been commercially
reasonable in their attempts to negotiate the definitive agreement(s).
Interim Financing
PE represents that its wholly owned subsidiary corporation, RMS
Titanic, Inc., a Florida corporation ("RMST'), currently has 3 exhibitions
running that it owns and operates free and clear of all encumbrances, namely:
Titanic exhibits in Las Vegas; Columbus; and, Baltimore. The Las Vegas
presentation opened only 1 week ago and already PE/RMC is forecasting a net
profit of more than $3.0M. Similarly the exhibits in both Baltimore and Columbus
have been open only 2 to 3 weeks and early indications support forecasted net
profits for each of over $2.0M.
▇▇ has immediate need for the proceeds of the Credit Facility and the
Loan and CPI is willing to accommodate an early advance of the Credit Facility
and the Loan on and Subject to the following terms and conditions:
PE and RMST would provide a joint and several debt instrument that becomes due
and payable on May 13th, 2005;
the Note would he secured by the net admission ticket receipts [which RMST is
now entitled to and is receiving on an ongoing basis] of the 3 Titanic
exhibitions currently running;
the debt instrument and the security in support thereof shall be in form and
content satisfactory to CPI's legal counsel;
the enforceability, validity, due execution and priority of the debt instrument
and the security shall be opined upon by attorneys acceptable to CPI; and
the costs of the Interim Financing transaction shall he paid by PE.
The definitive agreements shall replace the documentation contemplated
in this paragraph 12 with the exception that the Loan shall continue to be
secured as contemplated in this paragraph 12 on the understanding that so long
as PE is not in default, CPI would not take any action to enforce its security
and would postpone and subordinate to subsequent financing so long as any such
subsequent financing does not impair its security, such determination to be made
by CPI acting reasonably.
For greater certainty and just to be sure that there are no
misunderstandings in this regard, from the initial closing funds it is
understood and agreed that a portion of the funds shall be directed to CCE to
pay off a prior existing lien filed with the UCC [approximately $50,000.] and
that CPI will cooperate in the closing of the transaction whereby PE acquires
the "Bodies Revealed" exhibition now being exhibited in Seoul by providing a
substantial portion of the purchase price and subordinating its security
interest to a vendor take back interest in favor of CCE.
Premier Exhibits, Inc. RMS Titanic, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: President & CEO Title: President & CEO
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▇▇▇ Tours (USA), Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title:
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To: ▇▇▇▇▇ ▇▇▇▇▇▇- Premier Exhibitions, Inc. ("PE")
▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, JAM Exhibitions, L.L.C. ("JAM")
▇▇▇▇▇▇▇ ▇▇▇▇, Concert Productions International Inc. ("CPI")
And to: ▇▇▇▇▇ ▇▇▇▇▇▇▇, counsel to PE
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel to CPI
From: ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ Tour (USA), Inc. ("▇▇▇")
Date: Thursday August 19, 2005 .
Whereas, PE, on the one hand, and ▇▇▇, CPI and JAM on the other, will
each say that they have acted in good faith and been commercially reasonable in
their attempt to negotiate the definitive agreement(s) (the "Definitive
Agreement") contemplated by the Term Sheet between PE and ▇▇▇ dated April 13,
2005 (the "Term Sheet") and the other has not;
And whereas the negotiation has therefore been frustrated and rather
than pursue a litigious solution the parties have agreed to proceed in the
manner described below in the hope that working together they can resolve issues
which may have been the source of the frustration in the negotiation process
with a view to then being able to complete the Definitive Agreement and move
forward in the manner all as more particularly set out in the Term Sheet.
1. The parties are in agreement as to the following statements/facts:
(i) ▇▇▇ has delivered notice demanding repayment of the
$2,425,000. plus interest, where applicable, owing by PE to
▇▇▇ on account of the "Interim Financing"- paragraph 13 of the
Term Sheet (the `Bridge Loan"), evidenced by a promissory note
(the "Note") and a security agreement by and between PE and
▇▇▇, dated as of March 31, 2005 (the "PE Security Agreement")
and a security agreement by and between RMS Titanic Inc. and
▇▇▇, dated as of March 31, 2005 (the "RMS Security Agreement"
and together with the PE Security Agreement, the "Security
Agreements");
(ii) ▇▇▇▇ ▇▇▇▇▇▇▇, as nominee for ▇▇▇, is party to a subscription
agreement dated March 31, 2005, pursuant to which he purchased
300,000 shares of PE (the "Subscription Agreement");
(iii) ▇▇▇▇ ▇▇▇▇▇▇▇, as nominee for ▇▇▇ ("JHP"), has delivered notice
demanding payment of the $500,000 owing by PE pursuant to a
certain put agreement (the "Put");
(iv) As additional security for the "Bridge Loan" PE has delivered
an assignment of ticket proceeds to ▇▇▇ dated March 31, 2005
(the "Assignment");
(v) the CPI development and start up costs incurred to date are
$_________ ("CPI Costs")
(vi) the current schedule for the opening of prospective exhibits
is:
a. August 2005 Tampa
b. December 2005 ----------------------
c. December 2005 ----------------------
d. March 2006 ---------------------- and
e. May 2006 ----------------------;
2. In the interest of avoiding litigation and with a view to completing
the good faith negotiation of the Definitive Agreement the parties
agree as follows:
▇. ▇▇▇ forebears in: (i) the commencement of legal proceedings for a
breach of contract; and, (ii) the timely collection of amounts
due on the Bridge Loan and the Put;
B. the Tampa Exhibit proceeds as is contemplated under the Term
Sheet: CPI funds all operating costs; net profit is to be
calculated and distributed bi-monthly etc. with the exception
that charges or expenses incurred in respect of any other
exhibits are not to be included in the calculation of net
profits; and, the guaranty of $425,000 to be paid by CPI to PE
shall be directed to ▇▇▇ to repay $425,000 on account of sums due
under the Bridge Loan. For greater certainty, in furtherance of
CPI's obligation to pay the operating costs for the Tampa
Exhibit, CPI agrees to forthwith reimburse PE for all expense
incurred by it for the Tampa Exhibit.
C. CPI shall have the exclusive third party right to promote and
produce Bodies exhibitions as was contemplated under the Term
Sheet (a "CPI Exhibit") with the exception that PE can solicit
offers from potential exhibitors includes museums and third party
promoters and shall be entitled to contract such exhibits only if
CPI shall have first been offered the right to have such exhibit
included as one of their exhibits and declined. ▇▇ agrees to
provide sufficient supporting information to permit CPI to make
an informed decision and CPI agrees to make its decisions within
5 business days of receipt of PE's notice of the third party
offer. If CPI so elects, such an exhibit (a "CPI/PE Exhibit")
becomes one of the 4 exclusive exhibits contemplated by the Term
Sheet. Financial matters for CPI Exhibits and CPI/PE Exhibits
shall be dealt with in the same manner as the Tampa Exhibit (one
of the 4 exclusive exhibits contemplated by the Term Sheet) with
the exception that any and all losses from prior completed
exhibitions (the Tampa Exhibit, CPI Exhibits and CPI/PE Exhibits)
shall be treated as a cost of the next CPI Exhibit or the CPI/PE
Exhibit, as the case may be, for purposes of calculating net
profits.
For greater certainty:
i. PE shall have the right, acting commercially reasonably, to
deny permission for a CPI Exhibit; and
ii. the parties shall establish a protocol and methodology for:
(a) holding, blocking and booking dates for upcoming
exhibitions; (b) the maintenance of a leads list that
identifies prospective venues to ensure that the other party
does not interfere with or duplicate the efforts of the other;
(c) keeping one another fully informed as to ongoing
negotiations with prospective venues; and, (d) other matters
that will avoid conflict, confusion etc. in efforts to book
venues and operate exhibitions;
D. In the event that CPI has produced; or has contracted to produce,
at least two (2) CPI Exhibits (exclusive of the Tampa Exhibit) by
no later than February 14th, 2006 (the "Threshold" or
"Forbearance Period"), PE and CPI agree to forthwith meet to
negotiate and complete the Definitive Agreement as specifically
detailed in the Term Sheet and subject only to changes
necessitated by facts arising from the contracting for and
operation of the CPI Exhibits and CPI/PE Exhibits then in
existence. In the event that the Threshold is not attained by
CPI, PE shall be at liberty terminate CPI's future rights in
respect of the promotion and production of Bodies exhibitions;
E. CPI shall have the right to call this arrangement at an end at
any time during the period commencing the 14th day of October,
2005 and ending 12:00 p.m. in Atlanta, Georgia December 15th,
2005 by written notice delivered by telefax and/or email to the
offices of PE;
▇. ▇▇ specifically agrees to defend, indemnify, and hold harmless
▇▇▇, CPI, JAM and all of their respective officers, directors,
shareholders, agents and affiliates (the "Indemnitees") from any
loss, claim, damage, liability, cost or expense (including but
not limited to all reasonable attorney's fees and other costs of
litigation or arbitration) resulting from any claim asserted by
Plastination Company, Inc. (or its officers, directors, parents,
successors, joint venturers, joint authors, partners,
shareholders or any of their respective heirs or assigns) against
PE or any Indemnitee without regard to the nature of the claim
asserted;
G. In the event that this arrangement terminates as a result of
either party's right to terminate (paragraph D and E) PE shall
pay: (i) the then unpaid balance of the Bridge Loan; (ii) the CPI
Costs; (iii) the Put (subject to delivery of the PE shares); and,
(iv) the return of all prior bi-monthly distributions paid by CPI
and/or JAM to PE to the extent of 50% of the aggregate net losses
arising from the Tampa Exhibit, the CPI Exhibits and the CPI/PE
Exhibits (together the "Amount Due"), as follows:
the lesser of the Amount Due or $1.0M shall be paid
30 days after the date of termination (the "First
payment") and thereafter the remaining unpaid
balance, of the Amount Due shall be repaid in monthly
installments of $125,000. The unpaid balance of the
Amount Due shall become due and payable on the date
which is 6 months after the date of termination. In
the event that PE repays the Amount Due in full prior
to the due date, which PE shall have the right to do
without penalty, then PE shall be entitled to an
effective interest rate of 9% if repaid in the 4th
month after the First Payment, 8% in the 3rd month,
7% in the 2nd month and 6% in the first month.
STATEMENT OF PRINCIPLE:
This conciliatory plan of resolution has been reached by the parties
acting in good faith and each represents and warrants to the other of them that
the negotiation of this arrangement has been a bona fide attempt on each of
their parts to come to the Definitive Agreement subject only to CPI attaining
the Threshold with the view to avoiding a lawsuit and making amicable provisions
for the repayment of monies due by PE to ▇▇▇, CPI and JAM in the event that the
Threshold is not attained.
H. NO FUTURE OBLIGATION: PE acknowledges that ▇▇▇, CPI and JAM
are under no obligation to extend the Forbearance Period
beyond October 14, 2005 as set forth in section E above.
I. NO WAIVER. The obligations of ▇▇▇, CPI and JAM hereunder shall
not prejudice, diminish nor act as a waiver of ▇▇▇, CPI and
JAM's rights to enforce any such right or remedy in the event
of a default by PE hereunder or after the expiration of the
Forbearance Period. The obligations of PE hereunder shall not
prejudice, diminish nor act as a waiver of PE's rights to
enforce any such right or remedy in the event of a default by
▇▇▇, CPI and JAM hereunder or after the expiration of the
Forbearance Period.
J. REPRESENTATIONS AND OBLIGATIONS. PE represents and warrants to
▇▇▇, CPI and JAM and agree that:
i. PE has requested CPI, ▇▇▇ and JAM to forbear from exercising
its rights and remedies under the Bridge Loan, Put and
Assignment to the extent provided herein and that such request
is in the best interests of PE.
ii. PE will execute from time to time such agreements, instruments
or other documents as reasonably requested by CPI, ▇▇▇ or JAM
to effectuate the terms of this Agreement.
iii. PE hereby reaffirms, ratifies and acknowledges that all the
terms and conditions of the Bridge Loan, Put and Assignment
are in full force and effect, and that the monetary
obligations thereunder are and will continue to be due and
payable subject to the terms of this Agreement as well as the
terms of the Bridge Loan, Put and Assignment PE further
reaffirms that they are indebted to CPI, ▇▇▇ and JAM as set
forth in the Term Sheet, Note, Security Agreements and Put.
iv. PE, CPI, ▇▇▇, and JAM each represents and warrants that it has
not been coerced or in any way unduly influenced into signing
this agreement or any other document required herein, and
their execution hereof is their voluntary act, following
consultation with counsel of their respective choice. The
parties represent and warrant that the consideration given by
the other party to it hereunder has resulted in a material
benefit to it and represents good and valuable consideration.
v. Except as set forth in paragraph 2(B) relating to the Tampa
Exhibit, there are no claims to reduce or dispute the amount
due, nor does PE have any claims of any other nature against
CPI, ▇▇▇ or JAM or any defenses, set offs, or counterclaims
(i) in connection with any of their obligations under the
Note, Security Agreements, Put or Assignment and (ii) to the
exercise by CPI, ▇▇▇ or JAM of any of its rights under the
Note, Security Agreements, Put, Assignment and this agreement.
vi. This agreement executed by or on behalf of CPI, ▇▇▇, JAM and
PE have been duly executed and delivered by the parties
thereto, and each constitutes a legal, valid, and binding
obligation of each of them, enforceable in accordance with its
respective terms (subject to any applicable bankruptcy,
insolvency, moratorium or other similar laws affecting
generally the enforcement of creditors' rights).
K. This Agreement is made and shall be governed in all respects,
including validity, interpretation and effect, by the laws of
the State of New York.
L. This agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together
shall constitute but one and the same document.
IN WITNESS WHEREOF, each of the respective parties has caused this
Agreement to be duly executed by its respective officers as of the day and year
first above written.
JAM EXHIBITIONS LLC
JAM THEATRICALS, ITS SOLE MEMBER
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
CONCERT PRODUCTIONS INTERNATIONAL INC.
By:
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Name:
Title:
PREMIER EXHIBITIONS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President & CEO
▇▇▇ TOUR (USA) INC.
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: