**Exhibit 10.1**

 

**PROTECTIVEADVANCE AGREEMENT**

 

ThisPROTECTIVE ADVANCE AGREEMENT (“**Agreement**”)is made as of September 11, 2009 by and among WELLS FARGO BANK, N.A., ASTRUSTEE FOR THE CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. COMMERCIALMORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-TFL2 (“**Lender**”),PH FEE OWNER LLC, a Delaware limited liability company (“**Fee Owner**”),OPBIZ, L.L.C., a Nevada limited liability company (“**OPBIZ**”)(OPBIZ and Fee Owner are sometimes individually and collectively and jointlyand severally referred to herein as “**Borrower**”),PLANET HOLLYWOOD INTERNATIONAL, INC., a Delaware corporation (“**PHI**”), PLANET HOLLYWOOD (REGIONIV), INC., a Minnesota corporation (“**PHIV**”),PLANET HOLLYWOOD MEMORABILIA, INC., a Florida corporation (“**PHM**”)( PHI, PHIV, and PHM aresometimes individually and collectively and jointly and severally referred toas “**PH Entity**”), TROPHY HUNTERINVESTMENTS, LTD., a Florida limited partnership (“**THI**”),BAY HARBOUR 90-1, LTD., a Florida limited partnership (“**BH90-1**”),BAY HARBOUR MASTER LTD., a Cayman Islands exempted company (“**BHML**”), DOUGLAS TEITELBAUM, anindividual (“**Teitelbaum**”), ROBERT EARL, anindividual (“**Earl**”) (THI, BH90-1, BHML,Teitelbaum, and Earl are sometimes individually and collectively and jointlyand severally referred to as “**Guarantor**”)MezzCo, L.L.C., a Nevada limited liability Company, (“**MezzCo**”)and TSP Owner LLC, a Delaware limited liability company (“**TSP Owner**”).Borrower, PH Entity, Guarantor, MezzCo and TSP Owner are sometimes individuallyand collectively and jointly and severally referred to as “**Obligors**”.

 

**RECITALS**

 

The following recitals are amaterial part of this Agreement:

 

A.                                   Pursuant tothat certain Loan Agreement dated as of November 30, 2006 (together withall amendments, modifications, or supplements thereto, including the OmnibusAmendment (as defined below), the 2008 Modification Agreement (defined below)and the Third Modification Agreement (defined below), collectively, the “**Loan Agreement**”), Column Financial, Inc.,a Delaware corporation (“**Original Lender**”),made a senior secured loan in the original principal amount of up to$820,000,000.00 (as such loan was subsequently increased to $860,000,000, the “**Loan**”) to Borrower.

 

B.                                    The Loan isfurther evidenced and secured by various documents including:

 

(i)                                     Amended andRestated Promissory Note, dated July 17, 2007, in the principal amount of$860,000,000.00 executed by Borrower in favor of Original Lender (together withall amendments, modifications, or supplements thereto, collectively, the “**Note**”);

 

(ii)                                  Deed of Trust,Security Agreement, Assignment of Leases and Rents, Financing Statement andFixture Filing, dated November 30, 2006 (together with all amendments,modifications, or supplements thereto, including the Modification of Deed ofTrust, Security Agreement, Assignment of Leases and Rents, Financing Statementand Fixture Filing, dated July 17, 2007 made by

 

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Borrower and OriginalLender, collectively, the “**Security Instrument**”),pursuant to which Borrower granted to Original Lender a first-priority lien oncertain real property described therein; improvements thereon (the “**Premises**”), and on certain personalproperty described therein (collectively, together with the Premises, the “**Property**”);

 

(iii)                               Assignment ofLeases and Rents, dated November 30, 2006 (together with all amendments,modifications, or supplements thereto, including the Modification of Assignmentof Leases and Rents dated July 17, 2007 made by Borrower and Lender,collectively, the “**Assignment**”),executed by Borrower in favor of Original Lender and relating to the Premises;

 

(iv)                              SecurityAgreement dated November 30, 2006 (together with all amendments,modifications or supplements thereto, collectively, the “**PHSecurity Agreement**”) executed by PH Entities in favor ofOriginal Lender;

 

(v)                                 SecurityAgreement (Trademarks) dated November 30,2006 (together with allamendments, modifications or supplements thereto, collectively, the “**PHIV Security Agreement**”) executedby PHIV in favor of Original Lender;

 

(vi)                              SecurityAgreement (Copyrights) dated November 30, 2006 (together with allamendments, modifications or supplements thereto, collectively, the “**PHI Security Agreement**”) executedby PHI in favor of Original Lender;

 

(vii)                           Pledge andSecurity Agreement dated November 30, 2006 (together with all amendments,modifications or supplements thereto, collectively, the “**MezzCoPledge Agreement**”) executed by MezzCo in favor of Original Lender;

 

(viii)                        Pledge andSecurity Agreement dated November 30, 2006 (together with all amendments,modifications or supplements thereto, collectively, the “**Fee OwnerPledge Agreement**”) executed by Fee Owner in favor of OriginalLender; and

 

(ix)                                CollateralAssignment of Timeshare Project Proceeds dated November 30, 2006 (togetherwith all amendments, modifications or supplements thereto, collectively, the “**Timeshare Collateral Assignment**”)executed by Borrower and TSP Owner in favor of Original Lender.

 

C.                                     The Loan isalso evidenced by a Guaranty Agreement dated November 30, 2006 executed byTHI, BH90-1 and BHML in favor of Original Lender, a Guaranty Agreement dated November 30,2006 executed by Teitelbaum in favor of Original Lender, a Guaranty Agreementdated November 30, 2006 executed by Earl in favor of Original Lender, aCompletion Guaranty dated November 30, 2006, executed by THI, BH90-1, BHMLand Earl in favor of Original Lender, a Limited Guaranty dated May 7, 2009executed by THI in favor of Lender, a Limited Guaranty dated May 7, 2009executed by BH90-1 in favor of Lender, a Limited Guaranty dated May 7, 2009executed by BHMC in favor of Lender, a Limited Guaranty dated May 7, 2009executed by Earl in favor of Lender, a Limited Guaranty dated May 7, 2009executed by Teitelbaum in favor of Lender

 

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(togetherwith all amendments, modifications or supplements thereto, including theAmendment to Completion Guaranty dated August 11, 2008 amount THI, BH90-1,BHML, Earl and Lender, collectively the “**Guaranties**”).

 

D.                                    Lender,Borrower, PH Entity, Guarantor and TSP Owner are parties to a certain letteragreement dated August 25, 2008 (“**LetterAgreement**”)among the parties, and the terms and provisions of the Letter Agreementcontinue in full force and effect, except to the extent they conflict with anyof the terms and provisions of this Agreement, in which case the provisions ofthis Agreement shall control.

 

E.                                      The Note, theLoan Agreement, the Security Instrument, the Assignment, the PH SecurityAgreement, the PHIV**Security Agreement, the PHISecurity Agreement, the MezzCo Pledge Agreement, the Fee Owner PledgeAgreement, the Timeshare Collateral Assignment, the Guaranties, the LetterAgreement, this Agreement, all other existing or future documents evidencing,securing, or executed in connection with the Loan, as such documents have beenamended, restated, replaced, supplemented or otherwise modified from time totime, including pursuant to (i) an Omnibus Amendment of Loan Documentsdated as of July 17, 2007 (the “**Omnibus Amendment**”),(ii) a Modification Agreement dated as of August 11, 2008 (the “**2008 Modification Agreement**”), and (iii) aThird Modification Agreement dated as of May 7, 2009 (“**Third Modification Agreement**”) andall documents that hereafter modify, amend, extend, restate, replace, orotherwise affect the Loan or any of the foregoing documents are hereinsometimes collectively referred to as the “**Loan Documents**.”

 

F.                                      Unless thecontext clearly requires otherwise, all capitalized terms used in thisAgreement that are not otherwise defined herein shall have the meaningsascribed to them in the Loan Documents as in effect on the date of thisAgreement, and in the event of any conflict between the provisions of thisAgreement and the provisions of any other Loan Document, the provisions of thisAgreement shall control.

 

G.                                     Original Lender’srights and obligations under the Loan Documents have been assigned to Lenderand Lender is the owner and holder of the Loan, the Note and all of the otherLoan Documents.

 

H.                                    On the September 9,2009 Payment Date, the sum of $10,368,357 was on deposit in the Cash ManagementAccount and such sum was insufficient to pay in full all of the items requiredto be paid on such date pursuant to Section 2.6.4 of the Loan Agreement.On September 11, 2009, at Borrower’s request, the sum of $9,678,590 waspaid by Lender to the Borrower Disbursement Account to be used by Borrower topay that portion of the monthly Cash Expenses set forth in the written requestsubmitted by Borrower to Lender and itemized in **Exhibit A**.Thereafter, with Borrower’s consent: (i) the remaining $689,767 on depositin the Cash Management Account was applied to pay a portion of the amountrequired to be deposited in the Tax and Insurance Escrow Fund on such PaymentDate; and (ii) $799,563 of the funds then on deposit in the InterestReserve Account were applied as follows:  (a) $35,374 was deposited in the Tax andInsurance Escrow Fund, (b) $714,189 was applied to partial payment of themonthly Debt Service payment of $2,755,366 that was due on such Payment Date,and (c) $50,000 was applied

 

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topayment to Lender of other amounts then due and payable under the LoanDocuments. Events of Default have occurred under the Loan Documents due toBorrower’s failure to timely pay in full the following payments required to bepaid on such Payment Date: (x) the full amount of monthly Debt Service, (y) thefull amount of monthly Cash Expenses to be paid by Borrower in accordance withthe related Approved Annual Budget, and (z) deposits to the FF&EReserve Account.

 

I.                                         The outstandingprincipal balance of the Loan as of the date of this Agreement is $860,000,000such principal amount being exclusive of accruing interest, late charges,expenses incurred by Lender (including attorneys fees, appraisal costs andcosts incurred in connection with third party and property reports conductedfor the benefit of Lender) and other sums that have or may hereafter becomepayable by Borrower under this Agreement or under the other Loan Documents.From and after September 9, 2009 interest shall accrue on all Debt,including any and all advances of funds made pursuant to Section 1 of thisAgreement (collectively, the “**Protective Advances**”),at the Default Rate.

 

J.                                        Borroweracknowledges and agrees that (i) Borrower may not have sufficientavailable sources of working capital and financing to operate its business inthe ordinary course, (ii) there is an immediate and continuing need forthe Protective Advances as Borrower may, absent the Protective Advances, beunable to continue its business operations at the Property, and (iii) theProtective Advances are necessary for the protection of the security of theSecurity Instrument as contemplated by Section 7.4 of the SecurityInstrument and NRS §106.345 and would not need to have been made by Lender ifBorrower had complied with the terms of all of its obligations under theSecurity Instrument as contemplated by NRS §106.345.

 

NOW,THEREFORE, in consideration of the mutual agreements set forth herein and forother good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the parties agree as follows:

 

I.                                       ProtectiveAdvances by Lender.

 

(a)                                  Attached tothis Agreement as **Exhibit B**is an operating budget (the “**Initial Two-Week Budget**”)for the period from September 9, 2009 through and including September 23,2009 (the “**Initial Budget Period**”). TheInitial Two-Week Budget reflects, on a line-item basis, anticipated cashreceipts from any source (“**Cash Receipts**”)]and Operating Expenses during such time period and includes all necessary andrequired Operating Expenses Borrower will be required to pay during suchperiod. On or before the fifth (5th) Business Day of the Initial Budget Period andthe fifth (5th) Business Day ofeach two (2) week budget period thereafter (each a “**BudgetPeriod**”), Borrower shall submit to Lender additional operatingbudgets (each a ‘‘**Two-Week Budget**”)for the next projected two (2) week period of operating the Property. EachTwo-Week Budget shall be subject to Lender’s review and approval (each suchTwo-Week Budget, an “**Approved Two-Week Budget**”)in each instance.

 

(b)                                 Lender may, inits sole and absolute discretion, make Protective Advances to Borrower as andwhen it deems appropriate to pay amounts equal to the difference between the

 

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CashReceipts available to Borrower to pay budgeted items included in the ApprovedBudget and the amount budgeted for such items in the Approved Budget.  Protective Advances shall be made by Lenderonly after Borrower’s expenditure of all Cash Receipts available to it to payitems included in the Approved Budget at the time such budgeted item is to bepaid.  Borrower shall use all ProtectiveAdvances in accordance with this Agreement and only as provided and limited inthe applicable Approved Two-Week Budget for protection, preservation andoperation of the Property pursuant to this Agreement.  Lender shall have no obligation to fund anyProtective Advances and funding of Protective Advances by Lender pursuant tothis Agreement may be terminated at any time in Lender’s sole and absolutediscretion.

 

(c)                                 Borrower shallsubmit requests for payment of budgeted expenses to Lender **(“Request(s) For Payment”).  **Each Request For Payment shallidentify, in detail acceptable to Lender in its sole and absolute discretion,the amount being requested, the payee, the Budget line item detailing theexpenditure, invoices for all proposed payments, and confirmation that thepayment for which the Request For Payment is submitted conforms to the Budget.The Request For Payment shall be on a form prescribed by Lender from time totime and shall be certified to Lender as true, accurate, and complete andcorrect by Borrower. The Request For Payment form shall constitute arepresentation, warranty and covenant as to the matters contained therein.Requests For Payment may be made daily by Borrower’s submission to Lender of afully executed Request For Payment form at or noon. (Kansas City, Missourilocal time) on the business day prior to which Borrower desires the payment tobe made. If****Lender deniesthe payment, it will notify Borrower no later than 4:00 p.m. (Kansas City,Missouri local time) on the following business day. Following disbursement,Borrower shall promptly furnish to Lender proof of payment satisfactory toLender of the items included in the Request for Payment.

 

(d)                                The ProtectiveAdvances shall constitute and be a part of the Debt under the Loan Documentsfor all purposes. Interest shall accrue on the Protective Advances at theDefault Rate, and shall be payable from the date of each Protective Advanceuntil the applicable Protective Advance has been paid in full. Interest shallbe calculated as provided in the Loan Agreement. All Protective Advanceshereunder, together with all accrued interest thereon, are due and payableimmediately on demand.

 

(e)                                 To secure therepayment of the Protective Advances and all interest, fees, and other amountsowed by Borrower in connection therewith, Lender shall have and is granted(effective upon the date of this Agreement and without the necessity of therecordation of mortgages, security or pledge agreements, financing statements,or otherwise) valid and perfected senior, first-priority Liens on allcollateral and security for the Loan as provided in the Loan Documents. Lendershall not be required to file a new mortgage or any modification thereto,financing statements, or similar instruments with respect to the Property, andthe failure by Borrower to execute any documents relating to the Lien shall inno way affect the validity, perfection, or priority of the Liens. If,****however, Lenderdecides to file any such documents, agreements, or instruments, Borrower shallcooperate with and assist in that process, including by signing, delivering,and filing any agreement, document, or instrument or taking any actionrequested by Lender or Servicer to effectuate such filing.

 

(f)                                   In addition tothe reporting and related requirements and the other duties and obligations ofObligors under the Loan Agreement and other Loan Documents, Obligors shall

 

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(i) deliverto Lender such other financial and other information concerning the Propertyand the business operations of the Property and the Obligors as Lender requestsfrom time to time during the term of this Agreement, and (ii) cooperatewith and permit Lender to conduct other inspections of the Property at anyreasonable times requested by Lender. Borrower shall also provide Lender with (A) adaily report, with information reasonably satisfactory to Lender, identifyingand differentiating Cash Receipts (including reports of sales) and accountsreceivable, and (B) a weekly variance report of actual expenditures versusApproved Two-Week Budget expenditures.

 

2.                                       Recitals;Status and Effect of Loan Documents. Each Obligor acknowledges,confirms and agrees that the matters stated in the Recitals set forth above aretrue and accurate in all respects, are a material part of this Agreement, arehereby incorporated by reference, and may be relied upon for all purposes bythe parties and that:

 

(a)                                 The LoanDocuments (including this Agreement) have been duly authorized, executed, anddelivered to Lender, remain in full force and effect as originally written oras modified herein or as previously modified by mutual written agreement of theparties, and are valid, binding and enforceable against Obligors in accordancewith their respective terms. Each Obligor ratifies and reaffirms the terms andprovisions of the Loan Documents, including Sections 6 and 7 of the ThirdModification Agreement and Section 5.1.26 of the Loan Agreement, and allof such Obligor’s payment and performance obligations and obligations toindemnify under each Loan Document to which it is a party, and each Obligorratifies and reaffirms its grant of liens on or security interests in itsproperties pursuant to such Loan Documents to which it is a party as securityfor the obligations under or with respect to the Loan Documents.

 

(b)                                 All liens andsecurity interests created in favor of Lender under the Loan Documents havebeen validly created and duly perfected upon all property and collateral ofObligors in first priority as represented by Obligors or other persons in theLoan Documents.

 

(c)                                  Allindebtedness created under the Loan Documents is validly and unconditionallydue and owing in full to Lender, in accordance with the terms thereof, asmodified hereby, without any defense or offset whatsoever, and Obligors have nodefenses, claims, counterclaims, or other rights that could be asserted toimpair, delay, or adversely affect Lender’s receipt of full payment andperformance of all obligations owed to Lender by Obligors with respect to theLoan, or the same are waived.

 

(d)                                 Lender hasgiven and Obligors have received all notices to which they are respectivelyentitled under the Loan Documents with respect to the Events of Default, andObligors unconditionally waive any and all such notices that Lender might haveneglected to give. All notice, grace, or cure periods provided for in the LoanDocuments that applied to the Events of Default were duly provided to theObligors and have now expired by their terms.

 

(e)                                  Lender has theunconditional right, subject to compliance with applicable Gaming Laws, atLender’s election in Lender’s sole and absolute discretion and without furthernotice to Obligors or any other person, to commence and pursue any or all ofthe remedies for collection

 

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of the Loan and enforcementof the Loan Documents that are available to Lender under the Loan Documents orapplicable law, in such order and manner as Lender may elect from time to time.

 

3.                                      Warranties andRepresentations. Each of the Obligors confirms that all warrantiesand representations previously made by it in the respective Loan Documents towhich it is a party were true as of the time made or deemed made or continuedthrough the date of the Third Modification Agreement (except to the extent, ifany, that the provisions of this Agreement reflect variances from such existingwarranties and representations with respect to facts and circumstances existingon the date hereof) and the respective Obligors, each as to itself, furtherwarrant and represent to Lender that:

 

(a)                                 Each Obligor,other than Earl and Teitelbuam, is duly organized, validly existing, and ingood standing under the laws of its state of organization and is duly qualifiedas a foreign entity and is currently in good standing in each state in whichsuch qualification is required for the conduct of such Obligor’s business as itis currently being conducted (including, as applicable, the state where theProperty is located).

 

(b)                                Each Obligorhas full authority and due capacity to execute, deliver, and perform thisAgreement and all documents, instruments and agreements executed in connectionherewith. Such execution, delivery, and performance has been duly authorized asrequired under the organizational documents of such Obligor or under applicablelaw, and the individuals and entities executing this Agreement on behalf ofsuch Obligor have been duly authorized and empowered to bind such Obligor bysuch execution. The organizational documents of such Obligor have not beenmodified since the date of the original Loan closing.

 

(c)                                 This Agreementhas been duly executed and delivered to Lender by each Obligor and is valid,binding, and enforceable against each of them in accordance with its terms.

 

(d)                                Neither theexecution and delivery of this Agreement nor the performance of its terms andcompliance with its conditions will conflict with or result in a breach of anyof the terms, conditions or provisions of or constitute a violation or defaultunder any organizational document of any Obligor or any contract, agreement,applicable law, regulation, judgment, writ, order or decree to which anyObligor or any property of any Obligor is subject.

 

(e)                                 To such Obligor’sknowledge, except as previously disclosed to Lender in writing, no actions,litigation, disputes, suits, or proceedings against or that relate in anyadverse manner to any Obligor relating to the Property are now pending beforeany court, arbitrator or governmental or administrative body or agency, and tothe knowledge of Obligors, none is threatened.

 

(f)                                   All documentsand information furnished by any Obligor to Lender with respect to the Loan orthis Agreement are complete and accurate in all material respects, nonecontains any misrepresentation or misstatement of a material fact or omits tostate a material fact.

 

(g)                                To theirknowledge, except as previously to disclosed to Lender in writing, each Obligoris in compliance in all material respects with all federal, state and locallaws, rules, and regulations applicable to their respective properties,operations, businesses, and finances.

 

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4.                                       Ratification ofGuaranty Obligations. (a) Each Guarantor (i) ratifies theGuaranties previously executed by him or it and confirms that such Guarantiesand all waivers, covenants and agreements therein remain in full force andeffect for the benefit of Lender, (ii) reaffirms his or its respectivecontinuing liability for payment and/or performance of all obligations owed toLender under the respective Guaranties, without any defense or offsetwhatsoever, to the same extent as if such Guarantor had executed and deliveredeach such Guaranty to Lender again on the date of this Agreement, and (iii) confirmsthat such Guaranties have not been modified or amended and that Guarantor’sliabilities under such Guaranties have not been limited, impaired or affectedin any manner by any existing or previous event, fact or circumstance.

 

(b)                                 Each Guarantorfurther acknowledges and agrees that (i) such Guarantor’s execution ofthis Agreement is not required under the Guaranties or under any other LoanDocument, (ii) such Guarantor would remain fully liable to Lender for allobligations owed under the Guaranties executed by him or it withrespect to the Loan as modified by this Agreement whether or not such Guarantorexecuted this Agreement or entered into any of the agreements herein, (iii) Lenderhas and shall continue to have the right, but shall not be obligated, tofurther modify any or all of the terms of the Loan or the Loan Documents,extend the maturity of the Loan, obtain or release collateral or security forthe Loan, pursue or forbear in the pursuit of remedies, and take any or allother actions Lender is authorized to take under the respective Guaranties,this Agreement or any other Loan Document without giving notice to, obtainingany consent, approval or agreement from, or obtaining execution of any documentby any Guarantor, (iv) the fact that Lender requested Guarantor’sexecution of this Agreement does not constitute or establish any course ofconduct or course of dealing that modifies any provision of any Guaranty oraffect any Guarantor’s liability thereunder in any manner, and (v) Lendershall have the full benefit of this Agreement and the Guaranties without anyobligation to obtain any future ratification, reaffirmation, consent, waiver orother agreement from such Guarantor.

 

5.                                       Ratification byPH Entities, MezzCo and TSP Owner.

 

(a)                                  Each PH Entity,MezzCo and TSP Owner (i) ratifies the Loan Documents previously executedby it and confirms that such Loan Documents and all waivers, covenants andagreements therein remain in full force and effect for the benefit of Lender, (ii) reaffirmsits continuing liability for payment and/or performance of all obligations owedto Lender under such Loan Documents, without any defense or offset whatsoever,to the same extent as if such party had executed and delivered each such LoanDocument to Lender again on the date of this Agreement, and (iii) confirmsthat such Loan Documents have not been modified or amended and that suchparties liabilities under such Loan Documents have not been limited, impairedor affected in any manner by any existing or previous event, fact orcircumstance.

 

(b)                                 Each PH Entity,MezzCo and TSP Owner further acknowledges and agrees that (i) such party’sexecution of this Agreement is not required under any Loan Document, (ii) itwould remain fully liable to Lender for all obligations owed under the LoanDocuments previously executed by it with respect to the Loan as modified bythis Agreement whether or not it executed this Agreement or entered into any ofthe agreements herein, (iii) Lender has and shall continue to have theright, but shall not be obligated, to further modify any or all of the terms ofthe Loan or the Loan Documents, extend the maturity of the Loan, obtain orrelease

 

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collateralor security for the Loan, pursue or forbear in the pursuit of remedies, andtake any or all other actions Lender is authorized to take under any LoanDocument without giving notice to, obtaining any consent, approval or agreementfrom, or obtaining execution of any document by such party, (iv) the factthat Lender requested such party’s execution of this Agreement does notconstitute or establish any course of conduct or course of dealing thatmodifies any provision of any Loan Document or affect such party’s liabilitythereunder in any manner, and (v) Lender shall have the full benefit ofthis Agreement and the other Loan Documents previously executed by it withoutany obligation to obtain any future ratification, reaffirmation, consent,waiver or other agreement from it.

 

6.                                       Joint andSeveral Liability of Borrower; Waiver of Suretyship Defenses.

 

(a)                                 Each Borroweris accepting joint and several liability hereunder and under the other LoanDocuments in consideration of the financial accommodations to be provided byLender under this Agreement, for the mutual benefit, directly and indirectly,of each Borrower and in consideration of the undertakings of each otherBorrower to accept joint and several liability hereunder.

 

(b)                                Each Borroweragrees that the joint and several liability of Borrower provided for in thisAgreement shall not be impaired or affected by any modification, supplement,extension or amendment of any contract or agreement to which the other Borrowermay hereafter agree (other than an agreement signed by Lender specificallyreleasing or limiting such liability), nor by any delay, extension of time,renewal, compromise or other indulgence granted by Lender with respect to anyof the obligations, nor by any other agreements or arrangements whatever withany other Borrower or with anyone else, each Borrower waiving all notice ofsuch delay, extension, release, substitution, renewal, compromise or otherindulgence, consenting to be bound thereby as fully and effectually as if ithad expressly agreed thereto in advance. The liability of each Borrower isdirect and unconditional as to all of the obligations, and may be enforcedwithout requiring Lender first to resort to any other right, remedy orsecurity. Each Borrower expressly waives promptness, diligence, notice ofacceptance and any other notice (except to the extent expressly provided forherein or in another Loan Document) with respect to any of the obligationsunder this Agreement or any other Loan Document and any requirement that Lenderprotect, secure, perfect or insure any Lien or any property subject thereto orexhaust any right or take any action against any Borrower or any other personor any collateral or security for the Loan. Further, each Borrower waives alldefenses which may be available by virtue of any valuation, stay, moratoriumlaw or other similar law now or hereafter in effect, any right to require themarshaling of assets of Borrower and any other person primarily or secondarilyliable with respect to any of the obligations, and all suretyship defensesgenerally.

 

(c)                                  The Loan andall other obligations of Borrower shall constitute general obligations ofBorrower and shall be secured by Lender’s security interest in and lien uponall of the collateral or security for the Loan, and by all other securityinterests and liens now or at any time or times hereafter granted by anyObligors or any affiliate of any Obligors to Lender.

 

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7.                                       No Waiver ofEvents of Default.

 

(a)                                 Obligorsacknowledge that one or more Events of Default now exist under the LoanDocuments and remain uncured as of the date of this Agreement. The descriptionof Events of Default in this Agreement shall not be deemed to be exclusive orexhaustive, and if any other Event of Default now exists that is not specifiedas an Event of Default in this Agreement, its omission from this Agreementshall not imply that Lender consents to the continued existence thereof orwaives any of Lender’s rights or remedies relating thereto.

 

(b)                                Lender’sfailure to immediately pursue any of its rights and remedies does not in anyevent constitute a waiver of any such rights or remedies. Nothing herein shallbe deemed to (i) waive any condition or requirement contained in any ofthe Loan Documents, as modified by this Agreement, or (ii) constitute orestablish a course of conduct or course of dealing with respect to Obligors’compliance with any such condition or requirement or that varies any provisionof any Loan Document relating to any waiver, approval or consent by Lender(other than the modifications specified in Section 8 below or otherprovisions of this Agreement). Obligors acknowledge and agree that Lender shallcontinue to have the right to require strict compliance, and that Obligorsshall comply, with all obligations and covenants contained in the LoanDocuments as modified by this Agreement, including the obligation to pay allsums when due under the Loan Documents, as modified hereby. No acceptance byLender of any partial payment of amounts due in respect of the Loan shall constitutea waiver of the Events of Default or a waiver, reduction or modification ofamounts due in respect of the Loan except to the extent of such paymentaccepted by Lender.

 

(c)                                  Neither theexecution of this Agreement, the execution of any document or instrumentrequired hereunder, nor the consummation of the transactions and agreements setforth in this Agreement shall in any manner rescind or cure any Events ofDefault under the Loan Documents, reinstate the Loan to a current status,constitute a novation or an accord and satisfaction, or extend the maturity ofthe Loan.

 

8.                                      Modificationsto Loan Documents. The Loan Documents are modified in all respectsnecessary to give effect to this Agreement, and only in such respects, and theprovisions of this Agreement shall control over any contrary or inconsistentprovisions of any of the other Loan Documents. In all other respects, all LoanDocuments shall remain in full force and effect as originally written orpreviously modified by mutual written agreement of the parties. All of Lender’sliens, security interests, priorities, rights, and remedies under the LoanDocuments shall continue in full force and effect as security for the Loanfollowing the modification thereof by this Agreement. All references in anyLoan Document to any other Loan Document shall hereafter be construed to referto such other Loan Document as modified by this Agreement.

 

9.                                       Releases andIndemnifications. Each Obligor for itself and its respective past,present and future partners, shareholders, members, managers, officers,directors, employees, agents, attorneys, representatives, successors, assigns,subsidiaries, affiliates, parents, direct and indirect equity holders, owners,and predecessors in interest and all persons claiming by, through, or under anyof them (and their respective successors and assigns the **“Releasing Parties”**) hereby:

 

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(a)           acknowledges, agreesand affirms that as of the date hereof he or it does not possess (i) anyclaims, defenses, offsets, rights of recoupment or counterclaims of any kind ornature against or with respect to the enforcement or administration of the Loanor the Loan Documents (including any aspect of the origination, administrationor enforcement thereof) or (ii) any knowledge of any facts orcircumstances that might give rise to or be the basis of any such claims,defenses, offsets, rights of recoupment or counterclaims;

 

(b)           releases and forever dischargesLender and any other holder of participation interests in the Loan, and each oftheir respective predecessors in interest, affiliates, subsidiaries, orassigns, and all of their respective past, present, and future shareholders,members, directors, managers, officers, employees, attorneys, advisers,consultants, servicers, representatives or agents (collectively, the **“Released Parties”**)****fromany and all existing, future, or potential liabilities, obligations, actions,claims, causes of action, suits, proceedings, demands, damages, costs andexpenses of every kind whatsoever, whether known or unknown, arising from orrelating to any alleged or actual act, omission, occurrence, or transactionprior to the date of this Agreement, including any of the foregoing relating tomaking, administration, servicing, enforcement, or collection of the Loan, orany of the foregoing arising from or relating to any discussions ornegotiations between representatives or affiliates of the Released Parties onthe one hand, and any Obligors on the other hand, in respect of the Loan orunder any theory of “lender liability” arising therefrom (all of the foregoingreleased claims are sometimes referred to as the **“Released Claims”**).

 

(c)           releases and forever discharges eachof the Released Parties from any and all existing, future, or potentialliabilities, obligations, actions, claims, causes of action, suits,proceedings, demands, damages, costs and expenses of every kind whatsoever,whether known or unknown, in connection with or in any way arising out of thisAgreement, the Property, the other Loan Documents or the exercise by any of theReleased Parties of any of their rights and remedies under this Agreement orthe other Loan Documents.

 

(d)           agrees that none of theReleased Parties shall be liable, responsible or accountable in damages toObligors or any affiliate thereof for any act taken or the failure to take anysuch action, in connection with this Agreement, the Property, the other LoanDocuments or the exercise by any of the Released Parties of any of their rightsand remedies under this Agreement or the other Loan Documents.

 

(e)           agrees that it isthe intention of such Releasing Party that the foregoing releases shall beeffective with respect to all matters, past and present, known and unknown,suspected and unsuspected. Each Releasing Party realizes and acknowledges thatfactual matters now unknown to it may have given or may hereafter give rise tolosses, damages, liabilities, costs and expenses which are presently unknown,unanticipated and unsuspected, and each Releasing Party further agrees that thewaivers and releases in this Agreement have been negotiated and agreed upon inlight of that realization and that such Releasing Party nevertheless herebyintends to release, discharge and acquit the Released Parties from any suchunknown losses, damages, liabilities, costs and expenses.

 

(f)            agrees toindemnify, defend and hold harmless each of the Released Parties from andagainst any and all other liabilities, obligations, losses, damages, penalties,actions,

 

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judgments, suits, claims,costs, expenses and disbursements of any kind or nature whatsoever (includingthe reasonable fees and disbursements of counsel for each for the ReleasedParties in connection with any investigative, administrative or judicialproceeding commenced or threatened, whether or not such Released Parties shallbe designated a party thereto), that may be imposed upon, incurred by, orasserted against any of the Released Parties in any manner in connection withor in any way directly or indirectly arising out of this Agreement, theProperty, the other Loan Documents and the exercise by any of the ReleasedParties of any of their rights and remedies under this Agreement or the otherLoan Documents (the **“IndemnifiedLiabilities”**).****To the extent that the undertakingto indemnify, defend and hold harmless set forth in the previous sentence maybe unenforceable because such undertaking violates any law or public policy,each Obligor shall pay the maximum portion that is permitted to be paid tosatisfy the Indemnified Liabilities incurred by the Released Parties.

 

(g)           acknowledges thatLender is specifically relying upon such Releasing Party’s acknowledgements andagreements in this Section in executing this Agreement, and that in theabsence of such agreements Lender would be unwilling to agree to theconsideration provided for in this Agreement.

 

(h)           agrees that allreleases and discharges by such Releasing Party in this Agreement shall havethe same effect as if each released or discharged matter had been the subjectof a legal proceeding, adjudicated to final judgment from which no appeal couldbe taken and therein dismissed with prejudice.

 

10.           Non-Interference.No Obligor or any person acting or claiming by, through, under, or in concertwith or for the benefit of any Obligor shall (i) take any action of anykind or nature whatsoever, directly or indirectly, to delay, oppose, avoid,contest, impede, obstruct, hinder, enjoin or otherwise interfere in any mannerwith Lender’s exercise of its rights and remedies under the Loan Documents orunder applicable law, or (ii) allege, assert or otherwise pursue anyclaim, defense, affirmative defense, counterclaim, cause of action, setoff orother right it may have against Lender relating to Lender’s exercise of itsrights and remedies under the Loan Documents or applicable law, nor shall suchparty cause, conspire, collude with, act in concert with, solicit, encourage orsupport any other Person in doing or attempting to do any of the foregoing.

 

11.          AdditionalDocuments / Further Assurances. Obligors shall at any time, and from timeto time, upon the written request of Lender, sign and deliver such furtherdocuments and do such further acts and things as Lender may reasonably requestto effect the purposes of this Agreement.

 

12.           Time is of theEssence. Time is of the essence with respect to all agreements and obligationsof Obligors contained herein.

 

13.           Entire Agreement;Written Modifications Only. This Agreement, the exhibits attached hereto,and the documents referred to, contemplated, or required herein, constitute thesole and entire agreement between the parties with respect to the subjectmatter hereof, and there are no other covenants, promises, agreements orunderstandings regarding the same. This Agreement, including the provisionsof this Section, may not be modified except by written

 

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amendment to this Agreement signed by the parties affected by the same,and the parties: a) expressly agree that it shall not be reasonable for any ofthem to rely on any alleged, non-written amendment to this Agreement; b) waiveany and all right to enforce any alleged, non-written amendment to thisAgreement; and c) expressly agree that it shall be beyond the scope ofauthority (apparent or otherwise) for any of their respective agents to agreeto any non-written modification of this Agreement.

 

14.           No Third-PartyBeneficiaries. This Agreement is solely for the benefit of the partieshereto and no persons other than the undersigned and the Released Parties shallbe entitled to claim or receive any benefit by reason of this Agreement.

 

15.           Due Diligence Performed; PartiesFully Informed; No Right to Rely. Each Obligor warrants, represents andagrees that it has, by itself and with the assistance of counsel (or, ifwithout the assistance of counsel, such party having of its own volition chosennot to seek such assistance), performed any and all due diligence andinvestigation it deems necessary or desirable in connection with making a fullyinformed decision to enter into and sign this Agreement. Obligors are relyingon their own investigations and their own decision-making processes indetermining to sign this Agreement, are not relying on the representations oromissions of each other or of Lender in so doing, and fully understand theterms and provisions of this Agreement and of the documents contemplatedhereby.

 

16.           Severability.If any one or more of the provisions of this Agreement are deemedunenforceable, the remainder of this Agreement shall, at the option of Lender,remain enforceable in accordance with its original terms to the fullest extentpossible.

 

17.           Delay Not a Waiver. Neitherthe failure nor any delay on the part of Lender to exercise any right, power orprivilege under this Agreement or under any document executed in connectionherewith shall operate as a waiver of such right, power or privilege and anysingle or partial exercise of any such right, power or privilege shall notpreclude any other or further exercise thereof.

 

18.           Successors andAssigns. This Agreement shall be binding on and shall inure to the benefitof each party’s successors and permitted assigns.

 

19.           Construction ofProvisions. The following rules of construction are applicable for thepurposes of this Agreement and all documents and instruments supplementalhereto unless the context clearly requires otherwise:

 

(a)           All referencesherein to numbered sections or to lettered exhibits are references to thesections hereof and the exhibits annexed hereto.

 

(b)           The terms “include,”“including,” and similar terms shall be construed as if followed by the phrase “withoutbeing limited to” or the phrase “without limitation,” as the context mayrequire.

 

(c)           Words of masculine,feminine or neutral gender shall mean and include the correlative words of theother genders, and words importing the singular number shall mean and includethe plural, and vice versa.

 

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(d)           No inference infavor of or against any party hereto shall be drawn from the fact that suchparty has drafted any portion of this Agreement or any other Loan Document.

 

(e)           All references tothe Loan Documents shall be deemed to include all existing or futuremodifications, amendments, extensions, restatements, or replacements of theLoan Documents made by mutual written agreement of the parties.

 

(f)            The terms “person”and “party” shall mean any individual, sole proprietorship, partnership,limited liability company, joint venture, trust, unincorporated organization,association, corporation, institution, entity or government (whether federal,state, county, city, municipal or otherwise, including an instrumentality,division, agency, body or department thereof).

 

(g)           Section headingsare included in this Agreement for convenience of reference only and shall notconstitute part of this Agreement for any other purpose.

 

(h)           The term “or” has,except where otherwise indicated, the inclusive meaning represented by thephrase “and/or.”

 

20.           Counterparts.This Agreement may be executed in more than one counterpart, each of whichshall be deemed an original and all of which together shall constitute one andthe same document, binding upon all the parties hereto notwithstanding that allsuch parties are not signatories to the same counterpart. This Agreement shallbecome effective when all parties hereto have executed a counterpart hereof. Asignature of a party by facsimile or other electronic transmission shall bedeemed to constitute an original and fully effective signature of such party.

 

21.           Costs and Expenses. Withoutlimiting any other provision of this Agreement or any other Loan Documentrelating to payment of expenses, Borrower shall pay or reimburse Lender and anyparticipants in the Loan and servicers or similar parties with respect thereto,promptly after demand, for all reasonable out-of-pocket costs and expenses,including attorneys fees, incurred by Lender in connection with thenegotiation, drafting, implementation, or enforcement of this Agreement. Anypayment or reimbursement made by Borrower contemporaneously with the executionand delivery of this Agreement shall not be deemed to limit Borrower’sobligations to pay or reimburse all such expenses reasonably incurred byLender, any participants in the Loan and servicers or similar parties after thedate hereof.

 

22.           Governing Law.This Agreement shall be governed by and construed and enforced in accordancewith the laws of the State of New York applicable to contracts made andperformed in such state without regard to principles of conflicts of laws,except that at all times the Gaming Laws shall govern where applicable and theprovisions for the creation, perfection an enforcement of the Liens andsecurity interests created pursuant to this Agreement and pursuant to the otherLoan Documents shall be governed by and construed according to the law of thestate in which the Property is located.

 

23.           Conflict. In the event ofany conflict between the provisions of this Agreement and the provisions of anyLoan Document, the provisions of this Agreement shall control.

 

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24.           No Joint Venture,Partnership or Mortgagee-in-Possession.  Nothing in this Agreement, the transactions tobe carried out pursuant to this Agreement or the Loan Documents is intended tocreate a joint venture, partnership, tenancy-in-common, or joint tenancyrelationship between or among Borrower and Lender. Borrower agrees andacknowledges that it is in sole possession and control of the Property. Nothingin this Agreement or the transactions to be carried out pursuant to thisAgreement is intended to, nor shall be deemed to, make or cause Lender tobecome a mortgagee-in-possession of the Property, in whole or in part.

 

25.           Waiver of Jury Trial. THEPARTIES HERETO EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANYRIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY CONTROVERSY ORCLAIM, WHETHER ARISING IN TORT OR CONTRACT, BASED HEREON, OR ARISING OUT OF,UNDER OR IN CONJUNCTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS(INCLUDING THE VALIDITY, INTERPRETATION, COLLECTION OR ENFORCEMENT HEREOF ORTHEREOF), OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHERVERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY IN CONNECTION HEREWITH OR THEREWITH.EACH PARTY ACKNOWLEDGES AND AGREES THAT NO REPRESENTATIONS OF FACT OR OPINIONHAVE BEEN MADE BY AN PERSON TO INDUCE THIS WAIVEROF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THIS PROVISIONIS A MATERIAL INDUCEMENT FOR LENDER’S ENTERING INTO THIS AGREEMENT AND LENDERWOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THIS WAIVER. LENDER ISHEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING ASCONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL.

 

26.           Notices. Allnotices, consents, approvals and requests required or permitted under the LoanDocuments shall be given in accordance with Section 10.6 of the LoanAgreement addressed as follows (or at such other address as shall be designatedfrom time to time by any party hereto, as the case may be, in a notice to theother parties hereto in the manner provided in said Section 10.6):

 
| If to Lender:   | Wells Fargo Bank, N.A., as  trustee                        |
|-----------------|------------------------------------------------------------|
|            | for the Credit Suisse  First Boston                        |
|            | Mortgage Securities Corp.  Commercial                      |
|            | Mortgage Pass-Through  Certificates, Series 2007-TFL2 |
|            | c/o KeyBank Real Estate  Capital                           |
|            | 8115 Preston Road,  Suite 800                         |
|            | Dallas, Texas 75225                                        |
|            | Fax: 800-393-0181                                          |
|            | Attn: Meade Hubby                                          |
|            |                                                       |
| With a copy to: | Daniel Flanigan                                            |
|            | Polsinelli Shughart PC                                     |
|            | 700 W. 47th Street,  Suite 1000                       |
|            | Kansas City, Missouri  64112                               |
|            | Fax: 816-753-1536                                          |

 

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| If to Borrower:    | c/o OpBiz, L.L.C.               |
|--------------------|---------------------------------|
|               | 3667 Las Vegas Boulevard  South |
|               | Las Vegas, Nevada 89109         |
|               | Attn: Mark Helm                 |
|               | Fax: (702) 785-5936             |
|               |                            |
| If to PH Entities: | c/o OpBiz, L.L.C.               |
|               | 3667 Las Vegas Boulevard  South |
|               | Las Vegas, Nevada 89109         |
|               | Attn: Mark Helm                 |
|               | Fax: (702) 785-5936             |
|               |                            |
| If to Guarantors:  | c/o OpBiz, L.L.C.               |
|               | 3667 Las Vegas Boulevard  South |
|               | Las Vegas, Nevada 89109         |
|               | Attn: Mark Helm                 |
|               | Fax: (702) 785-5936             |
|               |                            |
| If to MezzCo:      | c/o OpBiz, L.L.C.               |
|               | 3667 Las Vegas Boulevard  South |
|               | Las Vegas, Nevada 89109         |
|               | Attn: Mark Helm                 |
|               | Fax: (702) 785-5936             |
|               |                            |
| If to TSP Owner:   | c/o OpBiz, L.L.C.               |
|               | 3667 Las Vegas Boulevard  South |
|               | Las Vegas, Nevada 89109         |
|               | Attn: Mark Helm                 |
|               | Fax: (702) 785-5936             |

 

27.           Guarantor Liability. Notwithstandinganything to the contrary herein, including, without limitation, Section 9(f)and Section 10, the liability of each Guarantor hereunder shall not exceedsuch Guarantor’s liability as provided in the related Guarantee.

 

[The remainder of this page intentionally left blank]

 

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INWITNESS WHEREOF, the parties hereto have executed this Agreement as of the datefirst above written.

 
| **BORROWER:** | PH FEE OWNER LLC,                     |
|---------------|---------------------------------------|
|          | a Delaware limited  liability company |
|          |                                  |
|          |                                  |
|          | By:                                   | /s/ Mark Helm |
|          | Name:                                 | Mark Helm |
|          | Title:                                | SVP & General Counsel |
|          |                                  |
|          |                                  |
|          | OPBIZ L.L.C.,                         |
|          | a Nevada limited liability  company   |
|          |                                  |
|          |                                  |
|          | By:                                   | /s/ Donna Lehmann |
|          | Name:                                 | Donna Lehmann |
|          | Title:                                | CFO/EVP |

 

[Signatures continued on following pages]

 

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INWITNESS WHEREOF, the parties hereto have executed this Agreement as of the datefirst above written.

 
| **PH  ENTITIES:** | PLANET HOLLYWOOD (REGION  IV), INC., a |
|-------------------|----------------------------------------|
| ** **        | Minnesota corporation                  |
| ** **        | ** **                             |
| ** **        | ** **                             |
|              | By:                                    | /s/ Thomas Avallone |
|              | Name:                                  | Thomas Avallone |
|              | Title:                                 | GVP/CFO |
|              |                                   |
|              |                                   |
|              | PLANET HOLLYWOOD  MEMORABILIA, INC.,   |
|              | a Florida corporation                  |
|              |                                   |
|              |                                   |
|              | By:                                    | /s/ Thomas Avallone |
|              | Name:                                  | Thomas Avallone |
|              | Title:                                 | GVP/CFO |
|              |                                   |
|              |                                   |
|              | PLANET HOLLYWOOD  INTERNATIONAL,       |
|              | INC., a Delaware  corporation          |
|              |                                   |
|              |                                   |
|              | By:                                    | /s/ Thomas Avallone |
|              | Name:                                  | Thomas Avallone |
|              | Title:                                 | GVP/CFO |

 

[Signatures continued on following pages]

 

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| **GUARANTORS:** | TROPHY HUNTER INVESTMENTS,  LTD, a        |
|-----------------|-------------------------------------------|
|            | Florida limited  partnership              |
|            |                                      |
|            | By:                                       | Bay Harbour Holding LLC, a  Delaware |
|            |                                      | limited liability company,  general partner |
|            |                                      |   |
|            |                                      |   |
|            |                                      | By: | /s/ Douglas Teitelbaum |
|            |                                      | Name: |   |
|            |                                      | Title: |   |
|            |                                      |   |   |
|            |                                      |   |   |
|            | BAY HARBOUR 90-1, LTD, a  Florida limited |
|            | partnership                               |
|            |                                      |   |   |
|            | By:                                       | Bay Harbour Holdings LLC,  a Delaware |
|            |                                      | limited liability company,  general partner |
|            |                                      |   |   |
|            |                                      |   |   |
|            |                                      | By: | /s/ Douglas Teitelbaum |
|            |                                      | Name: |   |
|            |                                      | Title: |   |
|            |                                      |   |   |
|            |                                      |   |   |
|            | BAY HARBOUR  MASTER, LTD., a Cayman       |
|            | exempted company                          |
|            |                                      |   |   |
|            |                                      |   |   |
|            | By:                                       | /s/ Douglas Teitelbaum |
|            | Name:                                     |   |
|            | Title:                                    |   |
|            |                                      |
|            |                                      |
|            | /s/ Douglas Teitelbaum                    |
|            | DOUGLAS TEITELBAUM, an  individual        |
|            |                                      |
|            |                                      |
|            | /s/ Robert Earl                           |
|            | ROBERT EARL, an individual                |
|                 |                                           |  |  |  |

 

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|  **MEZZCO:** | MEZZCO, L.L.C., a Nevada  limited liability  |
|-------------------|----------------------------------------------|
|              | company                                      |
|              |                                         |
|              |                                         |
|              | By:                                          | /s/ Mark Helm |
|              | Name:                                        | Mark Helm |
|              | Title:                                       | SVP & General Counsel |
|              |                                         |
|              |                                         |
| **TSP OWNER:**    | TSP OWNER LLC, a Delaware  limited liability |
|              | company                                      |
|              |                                         |
|              |                                         |
|              | By:                                          | /s/ Donna Lehmann |
|              | Name:                                        | Donna Lehmann |
|              | Title:                                       | CFO/EVP |

 

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**Exhibit A**

(See Attached)

 

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**Exhibit B**

(See Attached)

 

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