CONDUCTED ON,
ITS PROPERTY, (6) THE PROPOSED THIRD PARTY IP LICENSE DOES NOT AND WILL NOT
MATERIALLY DIMINISH ANY BORROWER'S RIGHTS TO USE ANY OF THE OWNED IP OR LICENSED
IP THAT IS REASONABLY NECESSARY OR DESIRABLE TO OPERATE ITS PROPERTY AS THEN
BEING OPERATED AND AS THEN CONTEMPLATED TO BE OPERATED IN THE FUTURE, AND (7)
THE PROPOSED THIRD PARTY IP LICENSE DOES NOT, AND IS NOT REASONABLY ANTICIPATED
IN THE FUTURE TO, MATERIALLY DIMINISH THE VALUE OF ANY OWNED IP OR LICENSED IP;
(II)
SUCH PROPOSED THIRD PARTY IP LICENSE
SHALL, WITHOUT LIMITATION, (A) BE ON ARM'S-LENGTH, MARKET TERMS, (B) REQUIRE
CASH CONSIDERATION ONLY, (C) PROHIBIT ANY MATERIAL AMENDMENT THEREOF WITHOUT
LENDER'S PRIOR REASONABLE APPROVAL, OTHER THAN ANY AMENDMENT THAT DOES NOT
VIOLATE ANY OF THE REQUIREMENTS OF THIS SECTION 5.1.26(C)(II), (D) PROHIBIT THE
ASSIGNMENT OR SUB-LICENSING THEREOF WITHOUT LENDER'S PRIOR REASONABLE APPROVAL,
OTHER THAN AN ASSIGNMENT TO A BONAFIDE THIRD PARTY WHO IS NOT AN AFFILIATE OF
ANY BORROWER OR ANY OTHER RESTRICTED PARTY, AND (E) REQUIRE THE PROPOSED
LICENSEE OR SUBLICENSEE, AS APPLICABLE, TO DEPOSIT ALL CONSIDERATION PAYABLE
THEREUNDER OR OTHERWISE IN CONNECTION THEREWITH FROM TIME TO TIME DIRECTLY INTO
THE LOCKBOX ACCOUNT;
(III)
ALL CONSIDERATION AND/OR ROYALTIES THAT
IS/ARE PAID UNDER OR OTHERWISE IN CONNECTION WITH SUCH THIRD PARTY IP LICENSE
SHALL CONSTITUTE GROSS INCOME FROM OPERATIONS FOR ALL PURPOSES UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND, IF NOTWITHSTANDING THE PROVISIONS OF
THE FOREGOING SECTION 5.1.26(C)(II)(E) HEREOF, ANY BORROWER SHALL RECEIVE ANY
SUCH CONSIDERATION AND/OR ROYALTIES, THE SAME SHALL BE DEPOSITED DIRECTLY IN THE
LOCKBOX ACCOUNT WITHIN ONE (1) BUSINESS DAY FOLLOWING RECEIPT BY ANY BORROWER
FROM TIME TO TIME;
(IV)
SUCH THIRD PARTY IP LICENSE SHALL NOT VIOLATE
OR RESULT IN A VIOLATION OF SECTION 5.1.25(B) HEREOF;
(V)
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, SUCH THIRD PARTY IP LICENSE SHALL IN NO EVENT PROHIBIT OR LIMIT IN
ANY MANNER THE USE OF THE "HARD ROCK" NAME IN CONNECTION WITH THE OPERATION OF
THE HOTEL/CASINO PROPERTY OR ANY OTHER PROPERTY;
(VI)
SUCH THIRD PARTY IP LICENSE SHALL NOT
ADVERSELY EFFECT LENDER'S LIENS AND SECURITY INTERESTS IN THE OWNED IP AND
LICENSED IP, ALL OF WHICH SHALL REMAIN IN FULL FORCE AND EFFECT AND, AT LENDER'S
REQUEST IN ITS SOLE DISCRETION, IP BORROWER SHALL COLLATERALLY ASSIGN TO LENDER
SUCH THIRD PARTY IP LICENSE PURSUANT TO A SECURITY AGREEMENT REASONABLY
SATISFACTORY TO LENDER AND IP BORROWER IN FORM AND SUBSTANCE; AND
(VII)
ON THE DATE OF THE FULL EXECUTION AND DELIVERY
OF SUCH THIRD PARTY IP LICENSE, NO MONETARY DEFAULT NOR ANY EVENT OF DEFAULT
SHALL HAVE OCCURRED AND BE CONTINUING.
175
(D)
NOTWITHSTANDING THE FOREGOING OR ANYTHING
ELSE TO THE CONTRARY SET FORTH IN THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, IP
BORROWER SHALL HAVE THE RIGHT TO LICENSE OR SUBLICENSE, AS APPLICABLE, THE IP
(OR ANY PORTION THEREOF) TO AN AFFILIATE OF ANY BORROWER OR ANY OTHER RESTRICTED
PARTY (AN "AFFILIATE IP LICENSE"); PROVIDED THAT (I) ALL OF THE CONDITIONS SET