Exhibit 2.33
AMENDED AND RESTATED MARK
LICENSE AGREEMENT
THIS AMENDED AND RESTATED MARK LICENSE
AGREEMENT (the “ Agreement ”) is entered into on
March 9, 2005 (the “ Effective Date ”) by
Lags Ventures, Inc., a Florida corporation
(“LICENSOR”), and Florida Hooters LLC a Nevada limited
liability company (“ LICENSEE ”).
RECITALS
(a)
On
July 30, 2004, Licensor and Licensee entered into that certain
Mark License Agreement (“ Original Agreement ”)
regarding the use by 155 East Tropicana LLC, a Nevada limited
liability company (“ Company ”) of certain
intellectual property rights.
(b)
In
connection with the acquisition of financing to complete certain
“renovation improvements” to open the hotel casino
owned by Company as a “Hooters Casino Hotel,” the
lenders thereof have requested certain amendments and changes to
this instrument.
(c)
LICENSOR owns or has established
rights to use the marks “DAN MARINO’S FINE
FOOD & SPIRITS” and “MARTINI BAR”
(operated in conjunction with Dan Marino’s Fine
Food & Spirits) along with certain logos for restaurant
services, restaurant merchandise and gift merchandise related
thereto (the “ Marks ”); and
(d)
LICENSEE desires the right to use or let others
use the Marks for restaurant and bar services and sale of related
merchandise at a hotel casino resort in Las Vegas located at 115
and 155 East Tropicana Avenue, Las Vegas, Nevada 89109 (the “
Hotel Casino ”); and
(e)
LICENSEE desires to open new
restaurants at the Hotel Casino and LICENSOR desires to expand its
brand identity into the Hotel Casino; and
(f)
LICENSEE desires to license
certain intellectual property from LICENSOR for LICENSEE to assign
such rights to a casino operator to operate and promote
restaurants, taverns, lounges and bars using the marks “DAN
MARINO’S FINE FOOD & SPIRITS” and/or
“MARTINI BAR”.
NOW THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
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1.
Definitions
and
Interpretations
A.
Definitions . The following
words shall have the following meanings for the purpose of this
Agreement:
(1)
“ Affiliate
” shall mean (i) any Person that
controls or ultimately controls, is controlled by or ultimately
controlled by, or is under common control with such Party,
(ii) any Person resulting from the merger or consolidation
with such Party, or (iii) any Person that acquires all or
substantially all of a Party’s assets as a going
concern.
(2)
“ Authorities
” shall mean the governmental gaming
authorities that have the authority to issue governmental
gaming-related licenses.
(3)
“ G
a
ming
Machine
” means: (a) any gaming machine,
gaming device, slot machine and other device (such as a video
lottery terminal that functions like a slot machine) and the like,
including, without limitation, single station and multi-station
devices, and as set forth in NRS 463.0155, .0191 and all other
relevant provisions of the Nevada Gaming Control Act (NRS Chapter
463), as amended; (b) comparable provisions of other
jurisdictions where such devices are legal.
(4)
“
Gross
Sales
” shall mean the Gross
Sales from the restaurants bearing the marks “DAN
MARINO’S” or “MARTINI BAR” which such term
is more fully defined on Exhibit ”D”
attached hereto and incorporated by reference herein.
(5)
“ Hotel Casino ”
shall mean that certain hotel
casino and all improvements on the real property associated
therewith located at 115 East Tropicana Avenue, Las Vegas, Nevada,
89109.
(6)
“ Indenture
” means the indenture or other agreement
governing the Notes.
(7)
“ Intellectual
Property
” shall mean all domestic, foreign,
federal, state and common law trademarks, service marks, domain
names, Internet path names and addresses of whatsoever nature,
trade dress, copyrights, know-how, show-how, patents, inventions
(whether or not patentable), mask works, software, proprietary
data, customer lists, strategic plans, financial data, and trade
secrets, and all applications for registration and/or issuance with
respect to all the foregoing and whether or not any of the
foregoing is registerable or patentable, including, without
limitation, with respect to all of the foregoing:
(i) all goodwill; (ii) all related licenses;
(iii) all parents, continuations, continuations in part,
divisionals, reissues and extensions; and (iv) all moral
rights.
(8)
“ LICENSOR Intellectual Property
” shall mean the Mark(s),
Works, derivatives of the Marks and Works, or any theme, design,
menu, food or drink style or trade dress and other Intellectual
Property that would reasonably indicate an association or
affiliation with the “DAN MARINO’S FINE FOOD &
SPIRITS” and/or “MARTINI BAR” brands and
related products and services, regardless of any registration or
ability to register such Marks.
(9)
“ Marks
” shall mean those trademarks and service
marks associated with the “DAN
MARINO’S FINE FOOD & SPIRITS” and
“MARTINI BAR” brands, whether
registered or not, as set forth in
Exhibit ”A” , including, without
limitation, and any and all derivatives thereof .
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(10)
“ Notes ” means the senior
secured notes due 2012 issued by Company and 155 East Tropicana
Finance Corp., a Nevada corporation, as they may be amended,
restated, restructured or otherwise modified, and any other
indebtedness, securities or facilities issued or entered into in
repayment of, in exchange for, or the net proceeds of which are
used to extend, refinance, renew, replace, defease, discharge,
redeem, tender for, repay, refund or otherwise retire or acquire
for value, in whole or in part, the Notes.
(11)
“ Notes Trustee ” means the
trustee for the Notes or other collateral agent for the Notes under
the Indenture.
(12)
“ Operating Agreement ”
shall mean the Amended and Restated Operating Agreement of Company
dated March 9, 2005.
(13)
“ Party ” shall
mean either LICENSOR or LICENSEE and “
Parties ” shall mean both LICENSOR and
LICENSEE.
(14)
“ Person ”
means any individual, company
(whether general or limited), limited liability company,
corporation, trust, estate, association, nominee or other
entity.
(15)
“ Works ” shall
mean those creative works associated with the
“DAN MARINO’S FINE FOOD & SPIRITS” and
“MARTINI BAR” brands and which are owned by LICENSOR,
including, but not limited to, the works as set forth in
Exhibit ”B” .
B.
Section /
Subsection References. References to a
“Section” or “Subsection” shall be deemed
references to an enumerated Section or Subsection of this
Agreement. Section headings and Subsection labels
are used for convenience and referential notation only and shall
have no interpretative effect or impact whatsoever.
C.
Exhibit References.
References to an “Exhibit”
shall be deemed references to alphabetized Exhibits attached to
this Agreement and which are hereby incorporated by this reference
in the Agreement.
2.
LICENSE &
MATERIALS
A.
Subject to the terms and conditions of this
Agreement, LICENSOR grants to LICENSEE, and LICENSEE accepts, for
the Term of this Agreement, an exclusive license to use, sublicense
and assign the rights to use the LICENSOR Intellectual Property on
or in association with the design, development, use and operations
of restaurants, bars, taverns, lounges and other similar
hospitality service businesses at the Hotel Casino.
LICENSEE shall not assign or sublease its rights under this
Agreement without the prior written consent of LICENSOR.
B.
LICENSOR shall provide all necessary materials
and specifications for restaurants, bars, taverns, lounges and
other similar hospitality service businesses using the LICENSOR
Intellectual Property as set forth in Exhibit C, as may exist
now or in the future.
3.
TERM
A.
Initial Term.
The initial term of this Agreement shall
be effective upon the Effective Date and shall remain effective
until twenty (20) years after the Effective Date (the “
Initial Term ”) unless sooner
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terminated in
accordance with the terms and conditions hereof.
B.
Extended Term.
LICENSEE may extend the term of this
Agreement upon at least thirty (30) days written notice prior to
the expiration of the Initial Term, for an additional Ten
(10) years (the “ Extension Term ”),
provided that such an extension is in writing.
4.
MARK LICENSE
FEES
A.
In
consideration for the licenses granted hereunder, and commencing
upon use of any of the Marks for restaurant services at the Hotel
Casino, LICENSEE agrees to pay to LICENSOR during the Term of this
Agreement, a royalty equal to six percent (6%) of Gross Sales (the
“ Mark Fee ”).
B.
The
Mark Fee owed LICENSOR shall be calculated on a monthly calendar
basis (the “ Mark Fee Period ”) subject to any
subordination or deferral as agreed upon by LICENSOR or its
Affiliate, and shall be payable no later than thirty (30)
days after the termination of the preceding full calendar
month.
C.
The
LICENSOR agrees to subordinate the payment of the Mark Fee in favor
of (i) the prior payment in full in cash of all obligations of
the Company and its subsidiaries under the Indenture and the Notes
and (ii) the EW Preferred Return (as defined in the Operating
Agreement) as further set forth in the Operating
Agreement.
D.
In
addition to the Mark Fee, Licensee shall pay Licensor for all
training fees, set-up fees and other start-up items customarily
incurred by LICENSOR and its Affiliates in similar
licensor/licensee situations, which such fees and amounts shall not
be subordinated or deferred to any other amount for any
reason.
5.
DEVELOPMENT AND QUALITY
CONTROL
A.
No Use of Confusingly Similar
Marks. LICENSEE shall not use, in any manner
whatsoever, during or after the Term, any Intellectual Property
that is confusingly similar to the Marks and Works, which
unlawfully competes with the Marks or Works or that otherwise
infringes upon the Intellectual Property rights of LICENSOR.
Further, LICENSEE will not use, and will not authorize others at
any time whether during or after the Term to use, the Marks or
Works as part of any corporate, business or trading name or
style.
B.
Registration
Rights. LICENSOR will retain the sole right to
apply for the registration or renewal of trademarks, service marks
and other proprietary rights for the LICENSOR Intellectual Property
and any marks incorporating any of the foregoing anywhere in the
World. LICENSEE will not, and will not authorize others to,
at any time, whether during the Term or after termination of this
Agreement, apply anywhere in the world to register any trademarks
or copyright works identical to or confusingly similar to the
LICENSOR Intellectual Property.
C.
Reservation of
Rights. All rights in the LICENSOR Intellectual
Property other than those specifically granted herein are reserved
to LICENSOR for its own use and benefit. LICENSEE
acknowledges, except as expressly provided herein, that it will not
acquire any rights of whatsoever nature in the LICENSOR
Intellectual Property as a result of LICENSEE’s use thereof,
and that all uses of the LICENSOR Intellectual Property by LICENSEE
will be deemed licensed uses that inure to the benefit of LICENSOR
for the purposes of delimiting the subject matter and geographic
scope of LICENSOR’s use of any trademarks, service marks,
trade names or trade dress included in such LICENSOR Intellectual
Property. Without limiting the foregoing, LICENSEE
acknowledges that it will have no right to use the
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LICENSOR Intellectual
Property in any manner that is not in accordance with all
applicable commercial laws, gaming laws, weights and measure laws,
city ordinances, and county ordinances.
D.
Initial
Quality. The restaurant and bar design, décor
and services shall be of a high quality which is objectively
comparable to the current establishment and operations at the Dan
Marino’s Fine Food & Spirits and Martini Bar
operated in St Petersburg, FL at the retail center commonly known
as Baywalk, as well as the Dan Marino’s Fine Food &
Spirits located in South Miami, FL in the retail center commonly
known as The Shops at Sunset..
E.
Ongoing
Quality. If the quality of the restaurants, bars,
lounges, taverns or other hospitality businesses bearing the Marks
falls below the quality as set forth in Section 5.D of this
Agreement, then LICENSEE shall use its best efforts to restore such
quality. In the event that LICENSEE has not taken appropriate
steps to restore such quality within thirty (30) days after
receiving written notification from LICENSOR, LICENSOR shall have
the right to terminate this Agreement and require that the LICENSEE
cease using the LICENSOR Intellectual Property.
F.
Inspection.
The LICENSEE agrees to permit LICENSOR
or its representative to inspect the facilities where the
restaurants, bars, lounges, taverns or other hospitality businesses
bearing the Marks are located, provided such inspection
is during regular business hours, and does not unreasonably disrupt
LICENSEE’s business.
6.
INDEMNITY
A.
LICENSEE shall indemnify, defend, and hold
harmless LICENSOR, its affiliates, and managers, directors,
officers, agents and employees, at its sole expense, against any
and all proceedings, suits, claims, demands, causes of action,
debts or liabilities, including reasonable attorneys’ fees
and amounts paid in settlement arising out of or in connection
with: (1) LICENSEE’s breach of any representation,
warranty, covenant, restriction or other agreement contained in
this Agreement; and (2) any claim or allegation of a third
party of personal injury or property damage attributable to the
acts, omissions or negligence of LICENSEE or LICENSEE’s
employees or agents in connection with LICENSEE’s use of the
LICENSOR Intellectual Property or, including any other use of any
goods or services bearing the Marks.
B.
LICENSOR shall indemnify, defend and hold
harmless LICENSEE, its affiliates, and managers, directors,
officers, agents and employees, at its sole expense, against any
and all proceedings, suits, claims, demands, causes of action,
debts or liabilities, including attorneys’ fees and amounts
paid in settlement arising out of or in connection with:
(1) LICENSOR’s breach of any representation, warranty,
covenant, restriction or other agreement contained in this
Agreement; and (2) any claim or allegation of a third party
related to LICENSEE’S use of the LICENSOR Intellectual
Property or rights licensed by LICENSOR or obtained by LICENSEE
pursuant to this Agreement, which does not arise from any
negligence or misconduct on the part of LICENSEE.
C.
Claims
Procedures . With
respect to any claims falling within the scope of the foregoing
indemnifications: (a) each Party agrees promptly to
notify the other of and keep the other fully advised with respect
to such claims and the progress of any suits in which the other
Party is not participating; (b) each Party shall have the
right to assume, at its sole expense, the defense
of
a claim or suit made or filed against the other Party;
(c) each Party shall have the right to participate, at its
sole expense, in any suit instituted against it and to approve any
attorneys selected by the other Party to defend it, which approval
shall not be unreasonably withheld or delayed; and (d) a Party
assuming the defense of a claim or suit
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against the other Party
shall not settle such claim or suit without the prior written
approval of the other Party, which approval shall not be
unreasonably withheld or delayed.
7.
INTELLECTUAL
PROPERTY
A.
LICENSOR hereby warrants, represents and
covenants that it has the right to use the marks “DAN
MARINO’S FINE FOOD & SPIRITS” and
“MARTINI BAR” and other LICENSOR Intellectual Property
for use with and on restaurants, bars, taverns, lounges and other
similar hospitality service businesses.and that LICENSOR has
secured all rights conveyed hereunder, including, but not limited
to, the rights of publicity to license the use of Dan
Marino’s name for the uses contemplated in this
Agreement.
B.
LICENSOR hereby warrants, represents and
covenants that it is duly organized, validly existing and in good
standing under the laws of the state of its incorporation and
has
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