Exhibit 10.9
SECOND AMENDED AND RESTATED
SOFTWARE LICENSE AGREEMENT
This Second Amended and Restated
Software License Agreement (this “ Agreement
”) is made and entered into as of February 13, 2007
(“ Effective Date ”) by and among
American Multi-Cinema, Inc., a Missouri corporation (“
AMC ”), Regal CineMedia Corporation, a Virginia
corporation (“ Regal ”), Cinemark USA,
Inc., a Texas corporation (“ Cinemark ”),
Digital Cinema Implementation Partners, LLC (“
DCIP ”) and National CineMedia, LLC (the
“ Company ”), and amends and restates in
its entirety the Amended and Restated Software License Agreement by
and among AMC, Regal, Cinemark, and the Company dated as of
July 15, 2005 (the “ First Amended and Restated
Agreement ”), which in turn amended and restated in
its entirety the Software License Agreement by and among AMC,
Regal, and the Company dated as of March 29, 2005 (the “
Original Agreement ”). AMC, Regal and Cinemark
are at times collectively referred to herein as the “
Exhibitors ,” and together with DCIP and the
Company, are at times together referred to herein as the “
Parties ,” or individually (and without
distinction) as a “ Party .”
RECITALS
WHEREAS, Regal and AMC (as successor-in-interest to
National Cinema Network, Inc.), entered into that certain
Contribution and Unit Holders Agreement dated as of March 29,
2005 (the “ Contribution and Unit Holders
Agreement ”), pursuant to which they or their
Affiliates formed the Company and contributed to the Company
certain assets;
WHEREAS, in connection with the contribution of such
assets to the Company, and pursuant to the Original Agreement and
the First Amended and Restated Agreement, Regal and AMC licensed to
the Company certain computer software and related rights ancillary
to the use of such computer software;
WHEREAS, Cinemark Media, Inc., a Delaware corporation
(“ Cinemark Media ”), and the Company
have entered into that certain Contribution Agreement, dated
July 15, 2005 (the “ Contribution
Agreement ”), pursuant to which Cinemark Media has
agreed to contribute cash to the Company and the Company has agreed
to issue certain Units to Cinemark Media;
WHEREAS, AMC, Regal CineMedia Holdings, LLC, an Affiliate
of Regal, and Cinemark Media have formed DCIP as a joint venture in
order to develop and implement the delivery of Digital Cinema
Services;
WHEREAS , prior to the formation of DCIP, NCM had begun
to develop, pursuant to the Original Agreement, certain computer
software for the purposes of delivery of Digital Cinema Services on
behalf of AMC, Regal, Cinemark, and/or their respective Affiliates;
and
WHEREAS, Regal, AMC, Cinemark and the Company desire to
amend the First Amended and Restated Agreement to accommodate and
address certain amendments made to the Operating Agreement and
Exhibitor Services Agreements.
AGREEMENT
NOW, THEREFORE,
in consideration of the mutual
covenants and promises contained herein and for other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, the Parties hereto agree as follows:
1. Definitions
. Capitalized terms not
otherwise defined herein will have the meaning given those terms in
the Contribution and Unit Holders Agreement. In addition, the
following terms, as used in this Agreement, will have the following
meanings:
1.1 “ Administrative Agent
” means Lehman Commercial Paper Inc., as administrative agent
under the Company Credit Agreement and any successors and assignees
in accordance with the terms of the Company Credit
Agreement.
1.2 “ AMC Original Technology
” means the AMC original technology identified in Exhibit
1.1 hereto, including all Object Code thereto and, with the
exception of the DTDS Software, all Source Code thereto, and
further including all patent rights, copyrights and trade secrets
of AMC or any AMC Affiliate applicable to the foregoing (including
for the avoidance of doubt, all patent and other registrations
issuing on the Technology listed in Exhibit 1.1).
1.3 “ Bankruptcy Code ”
means Title 11 of the United States Code (11 U.S.C. §101 et
seq.), as amended from time to time.
1.4 “ Company Credit Agreement
” means the Credit Agreement dated as of February 13,
2007 among Company, the several lenders from time to time parties
thereto, JPMorgan Chase Bank, N.A., as syndication agent, Credit
Suisse (USA) LLC and Morgan Stanley Senior Funding, Inc., as
co-documentation agents and the Administrative Agent, as amended,
modified or supplemented from time to time and any extension,
refunding, refinancing or replacement (in whole or in part)
thereof.
1.5 “ Company Technology ”
means all Original Technology and Developments licensed to the
Company by the Exhibitors pursuant to the terms hereof and any
Developments of the Company.
1.6 “ Developments ” means
any derivative works, improvements and other modifications to the
Original Technology, including all Object Code thereto and, with
the exception of the DTDS Software, all Source Code thereto, and
further including all patent rights, copyrights and trade secrets
applicable to the foregoing. The term “Developments”
shall also include (i) derivative works, improvements and
other modifications to Developments to the Original Technology,
(ii) any other Technology (whether or not derived from or
otherwise related to the Original Technology), including computer
software, owned or licensed (except to the extent such license
prohibits Company’s sublicense in accordance with the terms
and conditions of this Agreement) by the Company on or before the
Effective Date, and (iii) any Original Technology, to the
extent necessary to use Developments and to the extent Company is
authorized to distribute such Original Technology pursuant to the
terms and conditions of this Agreement.
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1.7 “ Digital Cinema Services
” means services related to the digital playback and display
of feature films at a level of quality commensurate with that of 35
mm film release prints that includes high-resolution film scanners,
digital image compression, high-speed data networking and storage,
and advanced digital projection.
1.8 “ DTDS Software ”
means the AMC Digital Theatre Distribution System software for
in-theatre content management.
1.9 “ Exhibitor Services
Agreement ” means, with respect to any Exhibitor,
that certain Exhibitor Services Agreement between the Company and
such Exhibitor or such Exhibitor’s Affiliate pursuant to
which the Company provides services (including without limitation
the Advertising Services, the Digital Programming Services, and the
Meeting Services, each as defined therein).
1.10 “ In-Theatre DCS Software
” means the in-theatre portion of the Regal proprietary
Digital Content Software (DCS).
1.11 “ Object Code ” means
computer programs in machine readable, object code
format.
1.12 “ Operating Agreement
” means that certain Third Amended and Restated Limited
Liability Company Operating Agreement of National CineMedia, LLC of
even date herewith.
1.13 “ Original Technology
” shall mean the AMC Original Technology and the Regal
Original Technology.
1.14 “ Permitted Transfer ”
means:
(a) by operation of law or
otherwise, the direct or indirect change in control, merger,
consolidation or acquisition of all or substantially all of the
assets of a Party, or the assignment of this Agreement by an
Exhibitor or DCIP to an Affiliate (for purposes of this
Section 1.14, as defined in the Exhibitor Services
Agreement),
(b) with respect to the rights and
obligations of Company under this Agreement, (i) the grant of
a security interest by Company in this Agreement and all rights and
obligations of Company hereunder to the Administrative Agent, on
behalf of the Secured Parties, pursuant to the Security Documents,
(ii) the assignment or other transfer of such rights and
obligations to the Administrative Agent (on behalf of the Secured
Parties) or other third party upon the exercise of remedies in
accordance with the Company Credit Agreement and the Security
Documents and (iii) in the event that the Administrative Agent
is the initial assignee or transferee under the preceding clause
(ii), the subsequent assignment or other transfer of such rights
and obligations by the Administrative Agent on behalf of the
Secured Parties to a third party, or
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(c) in the event that Company
becomes a debtor in a case under the Bankruptcy Code, the
assumption and/or assignment by Company of this Agreement under
section 365 of the Bankruptcy Code, notwithstanding the provisions
of section 365(c) thereof.
1.15 “ Regal Original Technology
” means the Regal original technology identified in Exhibit
1.15 hereto, including all Object Code and all Source Code thereto,
and further including all patent rights, copyrights and trade
secrets of Regal or any Regal Affiliate applicable to the foregoing
(including for the avoidance of doubt, all patents and other
registrations issuing on the Technology listed in Exhibit
1.15).
1.16 “ Secured Parties ”
means the “Secured Parties” (or any analogous concept)
as defined in the Company Credit Agreement.
1.17 “ Security Documents ”
means the “Security Documents” as defined in the
Company Credit Agreement and any amendment, modification,
supplement or replacement of such Security Documents.
1.18 “ Source Code ” shall
mean the representation of software in a form amenable to human
understanding in a higher level computer programming language,
together with all developer comments and other programmer
documentation.
1.19 “ Technology ” means
copyrights, patents, patent applications and trade
secrets.
1.20 “ Territory ” means
the 50 states of the United States of America and the District of
Columbia.
2. License.
2.1 Original Technology
. Except for the Source
Code to the Original Technology, which is covered in
Section 2.2 herein, Regal and AMC each hereby grants to the
Company a perpetual, royalty free license in the Territory to use,
make, have made, copy, perform, display, and create derivative
works of such Exhibitor’s Original Technology, but only in
connection with providing the services that are included within the
Service, as that term is defined in the Exhibitor Services
Agreement, in the Territory (the “Field of Use”).
Except as may be provided in Section 2.4, below, the license
shall be exclusive, even as to the Exhibitors, in the Field of Use.
Regal and AMC each remains free to fully exploit its Original
Technology and Developments outside of the Field of Use. The Object
Code of the Original Technology may be sublicensed by the Company
in the Territory solely as required to permit receipt by the
Exhibitors or other movie exhibitors and their affiliates, as
applicable, of services included within the Service, as defined.
The Parties agree that ownership of the Original Technology, and,
subject to Section 9, Regal and AMC’s Developments
thereto, is retained by Regal and AMC, respectively.
2.2 Source Code to Original
Technology and Developments. Regal and AMC each hereby grants to the Company
a perpetual, royalty free license in the Territory and solely in
the Field of Use to use, make, have made, copy and create
derivative works of the Source Code to its Original Technology and
Developments that are licensed hereby, provided ,
however , that
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except as provided in Section 8, below, the
Source Code of each of Regal’s and AMC’s Original
Technology and its Developments thereto will be treated as
Confidential Information and will not be disclosed to the other
Exhibitors or to any third party. Except as provided in Sections
2.4 and 9, below, this license shall be exclusive, even as to Regal
and AMC, in the Field of Use. Regal and AMC each remains free to
fully exploit the Source Code to its Original Technology and
Developments outside of the Field of Use. If appropriate, Source
Code can be put into escrow for the benefit of an Exhibitor or
other authorized licensee or sublicensee of the Company subject to
the approval of the escrow agreement by the Party which owns the
Source Code in question.
2.3 Patents .
Patents and patent applications of
Regal and AMC which are covered by the definition of Original
Technology will be treated for purposes of this Agreement like the
rest of the Original Technology.
2.4 Company Technology
. Subject to
Section 8, each Exhibitor has the right to use the Company
Technology within the Field of Use solely as provided by
Section 7.01 of the respective Exhibitor’s Exhibitor
Services Agreement. Each Exhibitor agrees that in connection with
its use of the Company Technology as permitted under its Exhibitor
Services Agreement, it will not, nor will it permit, cause, or
authorize any other person or entity to re-engineer, reverse
engineer, decompile, or disassemble the Original Technology or
Developments to the in-theatre portion of the software of any other
Exhibitor or create or recreate the Source Code for the in-theatre
portion of any other Exhibitor’s Original Software or
Developments.
3. Developments
. Notwithstanding any
provision in this Agreement to the contrary, each Party hereto
shall have the right and shall be free to develop, modify and make
improvements to any of the Technology: (a) licensed to such
Party pursuant to Sections 2 and 3 of this Agreement or
(b) owned by such Party as set forth in Section 9 of this
Agreement. The ownership of all such Developments will be as set
forth in Section 9 hereof.
3.1 License by the Company
.
3.1.1 License to Exhibitors .
As soon as practicable following the Effective Date, the Company
will notify the Exhibitors in writing of all Company Developments
in existence as of the Effective Date. The Company hereby grants to
each Exhibitor a perpetual, exclusive, worldwide, royalty free
license to use, make, have made, copy, perform, and create
derivative works of all Developments of the Company in existence as
of the Effective Date only outside of the Field of Use (but
excluding Digital Cinema Services) solely for the Exhibitor’s
internal business purposes. The foregoing license includes the
right to have independent contractors, including without limitation
DCIP, prepare derivative works and modifications to the
Developments. This license shall be exclusive, even as to Company,
outside the Field of Use (but excluding Digital Cinema Services).
Notwithstanding the preceding sentence, the Company has no
obligation to provide AMC or Cinemark, and the license set forth in
the preceding sentence expressly excludes, any Developments
consisting of Source Code for improvements to the In-Theatre DCS
Software. The Company shall deliver to each Exhibitor any
Development licensed under this Section 3.1.1, in both object
code and Source Code format, as soon as
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practicable after the Effective Date. Within a
reasonable period of time not to exceed thirty (30) days
following the Effective Date, representatives designated by the
Company and each of the Exhibitors shall meet to agree in good
faith upon a plan and schedule for the transfer and delivery of the
Developments licensed under this Section 3.1.1. Any Source
Code licensed by the Company pursuant to this Section 3.1.1
will be treated by the Exhibitor as Confidential Information, but
may be disclosed to persons who have a need for such Source Code
for purposes of advancing the business of the Exhibitors outside of
the Field of Use (but excluding Digital Cinema Services) and who
are legally bound in advance to treat such Source Code as
Confidential Information. Upon request of an Exhibitor, Source Code
can be put into escrow for the benefit and at the expense of the
Exhibitor subject to the reasonable approval of the escrow
agreement by Company.
3.1.2 License to DCIP
. The Company will reasonably
promptly notify DCIP in writing of any Company Development if the
Development may have application to the delivery of Digital Cinema
Services. The Company hereby grants to DCIP a perpetual, exclusive,
worldwide, royalty free license to use, make, have made, copy,
perform, and create derivative works of and sub-license any such
Developments of the Company, in both object code and Source Code
format, only for Digital Cinema Services. This license shall be
exclusive, even as to Company, for Digital Cinema Services. Company
shall deliver to DCIP any Development licensed under this
Section 3.1.2, in both object code and Source Code format,
(a) no later than thirty (30) days after Company’s
good faith determination that such Development may have application
to Digital Cinema Services, and (b) at any time upon
DCIP’s request. Any Source Code licensed by the Company
pursuant to this Section 3.1.2, will (i) not be disclosed
in any manner by or on behalf of DCIP to any Exhibitor under any
circumstances, and (ii) in all other circumstances be treated
by DCIP as Confidential Information. For purposes of clarification,
the foregoing does not restrict DCIP from disclosing the following
to the Exhibitors as Confid
