IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
IN RE: )
) CHAPTER 11
PLANET HOLLYWOOD )
INTERNATIONAL, INC., ET AL. ) CASE NO. 99-3612 (JJF)
) (JOINTLY ADMINISTERED)
)
DEBTORS. )
DEBTORS' FIRST AMENDED JOINT PLAN OF REORGANIZATION
Dated: December 13, 1999
Planet Hollywood International, Inc., Cool Planet, Inc., Cool Planet
II, Inc., Planet Hollywood (Aspen), Inc., Planet Hollywood (Atlantic City),
Inc., Planet Hollywood (Chicago), Inc., Planet Hollywood (Honolulu), Inc.,
Planet Hollywood (LP), Inc., Planet Hollywood (New York City), Inc., Planet
Hollywood (New York), Ltd., Planet Hollywood (Orlando), Inc., Planet Hollywood
(Phoenix), Inc., Planet Hollywood (Region I), Inc., Planet Hollywood (Region
II), Inc., Planet Hollywood (Region III), Inc., Planet Hollywood (Region IV),
Inc., Planet Hollywood (Region V), Inc., Planet Hollywood (Region VI), Inc.,
Planet Hollywood (Region VII), Inc., Planet Hollywood (Texas), Ltd., Planet
Hollywood (Warehouse), Inc., Sound Republic, Inc., Sound Republic 1, Inc., All
Star Cafe International, Inc., All Star Cafe (New York), Inc., and EBCO
Management, Inc., Debtors and Debtors-in-Possession (collectively, the
"Debtors") in the above- captioned Chapter 11 cases, propose the following Joint
Plan of Reorganization (the "Plan") pursuant to Section 1121(a) of Title 11 of
the United States Code, as amended.
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TABLE OF CONTENTS
ARTICLE I......................................................................1
DEFINITIONS AND RULES OF CONSTRUCTION..........................................1
ARTICLE II....................................................................14
CLASSIFICATION OF CLAIMS AND INTERESTS........................................14
2.1 Pre-Petition Claims and Equity Interests Classified............14
2.2 Administrative Claims and Priority Tax Claims..................14
2.3 Claims Against and Interests in the Debtors....................14
ARTICLE III...................................................................15
IDENTIFICATION OF IMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS.............15
3.1 Impaired Classes of Claims and Interests.......................15
3.2 Unimpaired Classes of Claims and Interests.....................15
3.3 Impairment Controversies.......................................15
ARTICLE IV....................................................................16
TREATMENT OF ADMINISTRATIVE AND PRIORITY TAX CLAIMS...........................16
4.1 Fees of Professionals and Claims for Substantial Contribution..16
4.2 Ordinary Course Liabilities....................................16
4.3 Administrative Reclamation Claims..............................16
4.4 Cure Cost Claims...............................................16
4.5 Priority Tax Claims............................................16
ARTICLE V.....................................................................17
TREATMENT OF CLAIMS AND INTERESTS.............................................17
5.1 CLASS 1. Priority Claims......................................17
5.2 CLASS 2. The SunTrust Claims..................................17
5.3 CLASS 3. Miscellaneous Secured Claims.........................17
5.4 CLASS 4. Convenience Claims...................................17
5.5 CLASS 5. Old Senior Subordinated Notes Claims.................18
5.6 CLASS 6. General Unsecured Claims.............................18
5.7 CLASS 7. Landlord Settlement Agreement Claim..................18
5.8 CLASS 8. Old Common Stock.....................................19
5.9 CLASS 9. Claims for Issuance of Old Common Stock..............19
5.10 CLASS 10. Intercompany Claims.................................19
5.11 CLASS 11. Intercompany Interests..............................19
5.12 Post-Petition Interest.........................................19
5.13 Allocation Between Principal and Accrued Interest..............19
ARTICLE VI....................................................................20
MEANS FOR EXECUTION OF THE PLAN...............................................20
6.1 Implementation of Plan.........................................20
6.2 General Corporate Matters......................................20
6.2.1 Cancellation of Old Securities, Instruments and
Agreements Relating to Impaired Claims and Interests....20
6.2.2 Effectiveness of Securities, Instruments and Agreements.20
6.2.3 Corporate Action........................................21
6.2.4 Management and Board of Directors.......................21
6.2.5 New Stock Options.......................................22
6.2.6 Substantive Consolidation...............................22
6.2.7 Extinguishment of Guarantee.............................22
6.2.8 Continued Corporate Existence and Vesting of Assets
in Reorganized PHI and the Other Reorganized Debtors....22
6.3 Distribution...................................................23
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6.3.1 Generally...............................................23
6.3.2 Distributions to the Holder of SunTrust Claims..........23
6.3.3 Distributions to Holders of Old Senior Subordinated
Notes Claims............................................23
6.3.4 Distributions to Holders of Other Claims and Interests..24
6.3.5 Compensation for Services Related to Distribution.......24
6.3.6 Delivery of Distributions and Undeliverable or
Unclaimed Distributions.................................24
6.3.7 Distribution Record Date................................25
6.3.8 Means of Cash Payments..................................25
6.3.9 Fractional Plan Securities..............................26
6.3.10 Surrender of Canceled Instruments or Securities.........26
6.3.11 Setoff..................................................27
6.4 Indenture Trustee Charging Liens...............................27
6.5 Retiree Benefits...............................................28
6.6 Exemptions from Securities Laws and Registration Rights........28
ARTICLE VII...................................................................29
ACCEPTANCE OR REJECTION OF THE PLAN...........................................29
7.1 Classes Entitled to Vote.......................................29
7.2 Class Acceptance Requirement...................................29
7.3 Confirmation Notwithstanding Rejection of Plan by an Impaired
Class..........................................................29
ARTICLE VIII..................................................................30
PROCEDURE FOR RESOLVING DISPUTED CLAIMS.......................................30
8.1 Unimpaired Claims Generally....................................30
8.1.1 Debtor Actions; Reservation of Rights...................30
8.1.2 Creditor Actions........................................30
8.2 Rejection Claims...............................................30
8.3 Disputed Claims................................................31
8.4 Authority to Oppose Claims.....................................31
8.5 Treatment of Disputed Claims and Disputed Interests............31
ARTICLE IX....................................................................31
EXECUTORY CONTRACTS...........................................................31
9.1 General Treatment..............................................31
9.2 Bar to Rejection Damages.......................................31
9.3 Cure of Defaults for Executory Contracts and Unexpired Leases..32
ARTICLE X.....................................................................32
CONDITIONS TO CONFIRMATION AND THE OCCURRENCE OF THE EFFECTIVE DATE...........32
10.1 Conditions to Confirmation.....................................32
10.2 Conditions to the Occurrence of the Effective Date.............33
ARTICLE XI....................................................................33
EFFECTS OF CONFIRMATION AND EFFECTIVENESS OF PLAN.............................33
11.1 Discharge of Claims............................................33
11.2 Discharge of Debtors...........................................34
11.3 Survival of Indemnification Claims and Obligations.............34
11.4 Termination of Claims of Contractual Subordination Against
Holders of Old Senior Subordinated Notes Claims................34
ARTICLE XII...................................................................35
RELEASES AND INJUNCTIONS......................................................35
12.1 Releases.......................................................35
12.2 No Liability for Solicitation or Participation.................36
12.3 Limitation of Liability........................................36
12.4 General Injunction.............................................36
12.5 Section 346 Injunction.........................................37
ARTICLE XIII..................................................................37
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RETENTION OF JURISDICTION.....................................................37
13.1 Scope of Jurisdiction..........................................37
13.2 Failure of the Bankruptcy Court to Exercise Jurisdiction.......38
ARTICLE XIV...................................................................38
MISCELLANEOUS PROVISIONS......................................................38
14.1 Compliance With Tax Requirements...............................38
14.2 Discharge of Old Indenture Trustee.............................38
14.3 Post-Effective Date Fees and Expenses of Professionals.........39
14.4 Vesting of Property of the Debtors.............................39
14.5 Causes of Action...............................................39
14.5 Assumption of Liabilities......................................39
14.7 Other Documents and Actions....................................40
14.8 Section 1146 Exemption.........................................40
14.9 Binding Effect.................................................40
14.10 Governing Law..................................................40
14.11 Filing of Additional Documents.................................41
14.12 Dissolution of Creditors' Committee............................41
14.13 Amendments and Modifications...................................41
14.14 Revocation.....................................................41
14.15 Severability...................................................41
14.16 Notices........................................................42
14.17 De Minimis Distributions.......................................42
14.18 Plan and Plan Documents Control................................42
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EXHIBITS
1 Form of Amended and Restated PHI Certificate of Incorporation
2 Form of Amended and Restated PHI By-Laws
3 Form of New Senior Secured Notes Indenture
4 Form of New Senior Secured Notes Security and Pledge Agreement
5 Form of New Working Capital Facility
6 Form of Working Capital Facility Security and Pledge Agreement
7 Form of New Secured PIK Notes Indenture
8 Form of New Secured PIK Notes Security and Pledge Agreement
9 Intercreditor and Collateral Agency Agreement
10 Form of New Warrant Agreement
11 Form of New Warrants
12 Form of Registration Rights Agreement
ANNEXES
A Summary of Terms of New Senior Secured Notes
B Summary of Terms of New Secured PIK Notes
C Summary of Terms of New Warrants
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ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
The following terms used in the Plan shall, unless the context
otherwise clearly requires, have the meanings specified below, and such meanings
shall be equally applicable to both the singular and plural forms of such terms.
1.1 "ADMINISTRATIVE CLAIM" means a Claim or expense allowed under
Section 503(b) of the Bankruptcy Code that is entitled to priority under Section
507(a)(1) of the Bankruptcy Code, including, without limitation, amounts
required to be paid in connection with any assumption of executory contracts and
unexpired leases, Administrative Reclamation Claims and all Post-Petition Trade
Claims.
1.2 "ADMINISTRATIVE RECLAMATION CLAIM" means that portion of a
reclamation Claim entitled to Administrative Claim status pursuant to an order
of the Bankruptcy Court entered under 11 U.S.C. ss.546(c).
1.3 "ALLOWED" means with respect to any Claim or Interest, a Claim or
Interest as to which (i) no objection to the allowance thereof, or motion to
estimate for purposes of allowance, shall have been Filed on or before any
applicable period of limitation that may be fixed by the Bankruptcy Code, the
Bankruptcy Rules and/or the Bankruptcy Court, or (ii) as to which any objection,
or motion to estimate for purposes of allowance shall have been so Filed, to the
extent allowed by a Final Order.
1.4 "ALLOWED CLAIM" means a Claim, or a portion thereof, including any
guarantee by any Debtor of such debt, if any, (i) that is deemed Allowed under
the Plan, (ii) that has been scheduled by a Debtor other than as contingent,
disputed or unliquidated, (iii) proof of which has been timely filed with the
Bankruptcy Court and as to which the period of time in which to file objections
as fixed by the Bankruptcy Code, the Bankruptcy Rules, the Plan or an order of
the Bankruptcy Court, has expired with no such objection having been filed, or
(iv) that has been Allowed by a Final Order of the Bankruptcy Court.
1.5 "ALLOWED INTEREST" means an Interest (i) that is deemed Allowed
under the Plan, (ii) that has been scheduled by a Debtor, (iii) proof of which
has been timely filed with the Bankruptcy Court and as to which the period of
time in which to file objections as fixed by the Bankruptcy Code, the Bankruptcy
Rules, the Plan or an order of the Bankruptcy Court, has expired with no such
objection having been filed, or (iv) that has been Allowed by a Final Order of
the Bankruptcy Court.
1.6 "AMENDED PHI ARTICLES" means the amended and restated certificate
of incorporation of Reorganized PHI that shall become effective on the Effective
Date, substantially in the form Filed as EXHIBIT 1 to this Plan at or prior to
the Confirmation Hearing.
1.7 "AMENDED PHI BY-LAWS" means the fourth amended and restated by-laws
of Reorganized PHI that shall become effective on the Effective Date,
substantially in the form Filed
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as EXHIBIT 2 to this Plan at or prior to the Confirmation Hearing.
1.8 "AVOIDANCE ACTION" means an action pursuant to Sections 544, 545,
547, 548, 549, 550 or 553 of the Bankruptcy Code brought by the Debtors or their
assigns, if any.
1.9 "BANKRUPTCY CODE" means Title 11 of the United States Code, as now
in effect and as hereafter amended.
1.10 "BANKRUPTCY COURT" means the United States Bankruptcy Court for
the District of Delaware, or any other court of competent jurisdiction
exercising jurisdiction over the Chapter 11 Cases, including the United States
District Court for the District of Delaware.
1.11 "BANKRUPTCY RULES" means the Federal Rules of Bankruptcy
Procedure, as amended and promulgated under Section 2075, Title 28, United
States Code.
1.12 "BAR DATE" means the date established by the Bankruptcy Court as
the Bar Date pursuant to the Bar Date Order
1.13 "BAY HARBOUR AGREEMENT" means an agreement between PHI and Bay
Harbour Management, L.C. to be executed prior to the Confirmation Date if PHI
determines to accept Bay Harbour's proposed terms whereby Bay Harbour shall
acquire the balance, if any, of the New Senior Secured Notes and a Pro Rata
portion of the Cash and New Class A Common Stock fee related to those Notes that
are not subscribed to by Electing Class 5 Holders. The terms of the New Senior
Secured Notes as currently set forth in Annex A to the Plan may be modified in
the Bay Harbour Agreement, but not in a manner materially adverse to PHI or
other classes of Creditors or Interests under the Plan.
1.14 "BAR DATE ORDER" means the Order (1) Establishing Procedures and
Deadlines for Filing Proofs of Claims and (2) Approving Form and Manner of
Notice, signed by the Bankruptcy Court on or after the Petition Date, as amended
or supplemented from time to time.
1.15 "BUSINESS DAY" means any day except a Saturday, Sunday, or any
other day on which commercial banks are authorized by law to close in the State
of New York.
1.16 "CASH" means cash or cash equivalents.
1.17 "CASH COLLATERAL ORDER" means one or more Order(s) authorizing use
of cash collateral as defined in Section 363(a) of the Bankruptcy Code of
SunTrust and Pro Player, Inc. entered by the Bankruptcy Court on or after the
Petition Date.
1.18 "CELEBRITIES" means actors or actresses in motion picture or
television programs and sports figures who, in the opinion of management of the
Reorganized Debtors, have achieved celebrity status and whose affiliation with
the Debtors or the Reorganized Debtors is beneficial to the Debtors' or the
Reorganized Debtors' business.
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1.19 "CELEBRITY OPTIONS" means options to purchase Class A common stock
issued to Celebrities prior to the Petition Date.
1.20 "CHAPTER 11" means Chapter 11 of the Bankruptcy Code.
1.21 "CHAPTER 11 CASES" means the cases under Chapter 11 with respect
to the Debtors, pending in the District of Delaware and administered as IN RE
PLANET HOLLYWOOD INTERNATIONAL, INC., ET AL., Chapter 11 Case Nos. 99-3612
(JJF) through 99-3637 (JJF).
1.22 "CHAPTER 11 SCHEDULES" means the Schedules of Assets and
Liabilities and the Statements of Financial Affairs Filed by the Debtors with
the Bankruptcy Court, in the form Filed or as thereafter amended, modified or
supplemented in accordance with the Bankruptcy Code, the Bankruptcy Rules, and
the Bankruptcy Court's local bankruptcy rules.
1.23 "CLAIM" means (i) any right to payment from any Debtor arising
before the Confirmation Date, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (ii) any right to an
equitable remedy against any Debtor arising before the Confirmation Date for
breach of performance if such breach gives rise to a right of payment from such
Debtor, whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured, unmatured, disputed, undisputed, secured or
unsecured, and shall include any guarantee by any Debtor of such right, if any.
1.24 "CLASS" means a class of Claims or Interests as defined in Article
II of the Plan.
1.25 "CLASS 6 ADJUSTMENT AMOUNT" means the face amount of New Secured
PIK Notes which, together with all other consideration provided for in Section
5.6 of the Plan, is necessary to ensure the recovery by Holders of Allowed Class
6 Claims of an aggregate value as a percentage of their Allowed Claims equal to
the aggregate value of the consideration to be received by Holders of Allowed
Class 5 Claims as a result of their receipt of the Supplemental Class 5
Distribution and all other consideration provided to them in Section 5.5 of the
Plan.
1.26 "COLLATERAL AGENT" means the entity designated to serve as
collateral agent under the Intercreditor and Collateral Agency Agreement with
respect to the Working Capital Facility, the New Senior Secured Notes Indenture
and the New Secured PIK Notes Indenture.
1.27 "CONFIRMATION" means the entry of the Confirmation Order by the
Bankruptcy Court pursuant to Section 1129 of the Bankruptcy Code.
1.28 "CONFIRMATION DATE" means the date on which the Confirmation Order
is entered in the Chapter 11 Cases by the Bankruptcy Court.
1.29 "CONFIRMATION HEARING" means the hearing or hearings pursuant to
which the Bankruptcy Court enters the Confirmation Order.
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1.30 "CONFIRMATION ORDER" means an order of the Bankruptcy Court
confirming the Plan pursuant to Section 1129 of the Bankruptcy Code.
1.31 "CONSOLIDATED CLAIM" means any Claim of any Consolidated Debtor
against any other Consolidated Debtor.
1.32 "CONSOLIDATED DEBTORS" means PHI and all Filed Subsidiaries.
1.33 "CONSOLIDATED ESTATES" means the substantively consolidated
estates of PHI and all Filed Subsidiaries.
1.34 "CONVENIENCE CLAIM" means Unsecured Claims in Allowed amounts not
to exceed $2,000, or that are voluntarily reduced to $2,000.
1.35 "CREDITOR" means any entity that is the holder of any Claim
against the Debtors that arose on or before the Petition Date or any Claim
against the Debtors' Estates of a kind specified in Sections 502(g), 502(h), or
502(i) of the Bankruptcy Code.
1.36 "CREDITORS' COMMITTEE" means the official committee of unsecured
creditors appointed in the Chapter 11 Cases by the United States Trustee
pursuant to Section 1102 of the Bankruptcy Code, as reconstituted by the
addition or removal of members from time to time.
1.37 "CURE COST CLAIM" means the amount required to cure pre-petition
defaults on leases or contracts that are assumed by any of the Debtors pursuant
to 11 U.S.C.ss.365.
1.38 "DEBTOR" or "DEBTORS" means PHI or any other Filed Subsidiary,
individually or collectively, as the context may require.
1.39 "DISCLOSURE STATEMENT" means the First Amended Joint Disclosure
Statement dated December 13, 1999, that was Filed by the Debtors in connection
with the Plan, as further amended, modified, restated, or supplemented from time
to time.
1.40 "DISPUTED CLAIM" means any Claim, to the extent it has not since
become an Allowed Claim, including those (i) listed on the Chapter 11 Schedules
as unliquidated, disputed or contingent, or (ii) as to which the Debtors or any
other party in interest has interposed a timely objection or request for
estimation in accordance with the Bankruptcy Code and the Bankruptcy Rules,
which objection or request for estimation has not been withdrawn or determined
by a Final Order.
1.41 "DISPUTED INTEREST" means an Interest in the Debtors to the extent
it has not become an Allowed Interest including those (i) listed on the Chapter
11 Schedules as contingent, unliquidated or disputed, or (ii) as to which the
Debtors or any other party in interest has interposed a timely objection in
accordance with the Bankruptcy Code and the Bankruptcy Rules, which objection
has not been withdrawn or determined by a Final Order.
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1.42 "DISTRIBUTION RECORD DATE" means the date specified in the
Confirmation Order as the Distribution Record Date with respect to each Class,
or, if no such date is specified, the fifth Business Day prior to the Effective
Date.
1.43 "DOMESTIC SUBSIDIARY" means any entity incorporated or formed
under the laws of the United States of America or any state, province or
territory thereof, that is wholly-owned or otherwise controlled by PHI or by PHI
and/or one or more of its subsidiaries.
1.44 "EFFECTIVE DATE" means a Business Day selected by the Debtors that
is the later of (i) a day that is not less than ten (10) nor more than thirty
(30) days after the Confirmation Date, and (ii) the first Business Day on which
all conditions to the occurrence of the Effective Date have been satisfied or
duly waived, or such other date as agreed to by the Debtors and the Creditors'
Committee.
1.45 "ELECTING HOLDERS OF CLASS 5 CLAIMS" means those Holders of Class
5 Claims that have elected to receive their Pro Rata share of New Senior Secured
Notes, a fee of $625,000 Cash and New Class A Common Stock, which election shall
be evidenced by checking a box on the Class 5 Ballot sent to Holders of Class 5
Claims providing for an affirmative participation in the New Senior Secured
Notes.
1.46 "ENCUMBRANCE" means any Lien, imperfection of title, option, or
restriction of any kind affecting any property of any Debtor.
1.47 "ENTITY" means a person, a corporation, a partnership, an
association, a joint stock company, a joint venture, a limited liability
company, an estate, a trust, an unincorporated organization, a government or any
subdivision thereof or any other entity.
1.48 "ESTATES" means the estates of the Debtors created under Section
541 of the Bankruptcy Code upon the commencement of the Chapter 11 Cases.
1.49 "FILE," "FILED" or "FILING" means file, filed or filing with the
Bankruptcy Court in the Chapter 11 Cases or any other Court with jurisdiction
over the cases of the Debtors or a Filed Foreign Subsidiary.
1.50 "FILED FOREIGN SUBSIDIARY" means a Foreign Subsidiary that has
filed an insolvency proceeding under the laws of its jurisdiction of
incorporation or formation.
1.51 "FILED SUBSIDIARIES" means all subsidiaries of PHI and/or one or
more of its subsidiaries that Files a Chapter 11 petition in the Bankruptcy
Court.
1.52 "FINAL ORDER" means an order of the Bankruptcy Court or any other
court of competent jurisdiction (i) which is not subject to a stay of
effectiveness; (ii) as to which the time to appeal, petition for certiorari or
move for reargument or rehearing has expired and as to which no timely appeal,
petition for certiorari or other proceedings for reargument or rehearing shall
then be pending; or (iii) if a timely appeal, writ of certiorari, reargument or
rehearing thereof has been
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sought, which shall have been affirmed by the highest court to which such order
was appealed, or certiorari shall have been denied or reargument or rehearing
shall have been denied or resulted in no modification of such order, and the
time to take any further appeal, petition for certiorari, or move for
modification of such order, or move for reargument or rehearing shall have
expired; PROVIDED, HOWEVER, that the possibility that a motion under Rule 59 or
Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the
Bankruptcy Rules or other rules governing procedure in cases before the
Bankruptcy Court may be Filed with respect to such order shall not cause such
order not to be a Final Order.
1.53 "FOREIGN SUBSIDIARY" means any entity incorporated or formed under
the laws of a country other than the United States of America which is
wholly-owned or otherwise controlled by PHI or by PHI and/or one or more of its
subsidiaries.
1.54 "FRANCHISE AGREEMENTS" means agreements between PHI and various
third parties for the license and use of PLANET HOLLYWOOD or OFFICIAL ALL STAR
CAFE trademarks, tradenames and related intellectual property.
1.55 "GENERAL UNSECURED CLAIM" means any claim (including any Trade
Claim, Rejection Claim or Litigation Claim) that is not a Consolidated Claim,
Old Senior Subordinated Notes Claim, Intercompany Claim, Administrative Claim,
Priority Claim, SunTrust Claim, Miscellaneous Secured Claim, Indenture Trustee
Claim or a Landlord Settlement Agreement Claim.
1.56 "HOLDER" means an Entity which is the owner, legal and/or
beneficial, of a Claim against or Interest in one or more Debtor, as the case
may be.
1.57 "IMPAIRED CLAIM" means a Claim identified in Section 3.1 of the
Plan as impaired under the Plan.
1.58 "INDENTURE TRUSTEE CHARGING LIEN" means any Lien or other priority
in payment available to the Old Indenture Trustee pursuant to the Old Indenture
for payment of any fees, costs or disbursements incurred by such Old Indenture
Trustee, to the extent not otherwise paid under the Plan.
1.59 "INDENTURE TRUSTEE CLAIM" means a contractual Claim held by the
Old Indenture Trustee for compensation, reimbursement of costs or disbursements
(including without limitation the costs and expenses of its attorneys,
accountants and financial advisors), or indemnity arising from the Old Indenture
regardless of whether such fees and expenses are incurred prior or subsequent to
the Petition Date.
1.60 "INTERCOMPANY CLAIM" means any Claim against any of the Debtors
held by any Subsidiary or Foreign Subsidiary other than any of the Consolidated
Debtors, that continues to operate its business subsequent to the Effective
Date.
1.61 "INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT" means the
agreement governing the respective rights in property of the Debtors securing
parties to the Working Capital Facility, the
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New Senior Secured Notes Indenture, and the New Secured PIK Notes Indenture
substantially in the form Filed as Exhibit "9" to the Plan at or prior to the
Confirmation Hearing.
1.62 "INTEREST" means an equity security in PHI within the meaning of
Section 101(16) of the Bankruptcy Code.
1.63 "JOINT VENTURES" means strategic venture agreements PHI and one or
more of its Subsidiaries has executed with third parties.
1.64 "LANDLORD SETTLEMENT AGREEMENT" means an agreement between PHI or
any of its Filed Subsidiaries and a landlord regarding the restructuring,
termination or sale of a Debtor's leasehold rights and obligations, which
requires approval or ratification of such agreement by the Bankruptcy Court.
1.65 "LEASEHOLD GUARANTEES" means a guaranty by PHI of any lease
between PHI or any of its Subsidiaries or Joint Ventures as lessee and any
lessor.
1.66 "LIEN" means any conveyance in trust, assignment or pledge of,
mortgage or lien on, security interest in, or charge or encumbrance of any kind
against, any property of any Debtor.
1.67 "LITIGATION CLAIM" means a claim arising from a pre-Petition Date
dispute between PHI or a Filed Subsidiary and any third party which was not
settled, liquidated or resolved as of the Petition Date.
1.68 "MISCELLANEOUS SECURED CLAIM" means any Allowed Claim that is a
Secured Claim other than the SunTrust Claim.
1.69 "NEW CLASS A COMMON STOCK" means the approximately 3.0 million
shares of authorized common stock of Reorganized PHI, par value $.01 per share,
to be issued under the Plan.
1.70 "NEW CLASS B COMMON STOCK" means the 7.0 million shares of
authorized common stock of Reorganized PHI, par value $.01 per share, to be
issued to the New Money Investors under the Plan.
1.71 "NEW COMMON STOCK" means, collectively, the New Class A Common
Stock, the New Class B Common Stock, and any other common stock of Reorganized
PHI authorized to be issued pursuant to the Plan.
1.72 "NEW INDENTURE TRUSTEE" shall be as designated at the Confirmation
Hearing and have the meaning set forth in the Confirmation Order.
1.73 "NEW MONEY INVESTORS" means certain entities that have agreed to
acquire 7.0 million shares of New Class B Common Stock for $30 million ($4.2857
per share).
1.74 "NEW OPTIONS" means 1.0 million options each for the purchase of
one share of New
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Class A Common Stock.
1.75 "NEW SECURED PIK NOTES" means the secured PIK notes to be issued
by Reorganized PHI pursuant to the Plan under the New Secured PIK Notes
Indenture and guaranteed by all operating Subsidiaries. The principal economic
terms of the New Secured PIK Notes are set forth on ANNEX B hereto.
1.76 "NEW SECURED PIK NOTES INDENTURE" means the Indenture between
Reorganized PHI, as issuer, and the New Secured PIK Notes Indenture Trustee, as
trustee, which indenture relates to the New Secured PIK Notes, substantially in
the form to be Filed as EXHIBIT 7 to the Plan at or prior to the Confirmation
Hearing.
1.77 "NEW SECURED PIK NOTES INDENTURE TRUSTEE" shall be as designated
at the Confirmation Hearing and have the meaning set forth in the Confirmation
Order.
1.78 "NEW SECURED PIK NOTES SECURITY AND PLEDGE AGREEMENT" means the
Security and Pledge Agreement pursuant to which certain collateral is pledged to
secure Reorganized PHI's obligations under the New Secured PIK Notes,
substantially in the form to be Filed as EXHIBIT 8 to the Plan at or prior to
the Confirmation Hearing.
1.79 "NEW SENIOR SECURED NOTES" means the senior secured notes to be
issued by Reorganized PHI pursuant to the Plan under the New Senior Secured
Notes Indenture. The principal economic terms of the New Senior Secured Notes
are set forth on ANNEX A hereto.
1.80 "NEW SENIOR SECURED NOTES INDENTURE" means the Indenture between
Reorganized PHI, as issuer, and the New Senior Secured Notes Indenture Trustee,
as trustee, which indenture relates to the New Senior Secured Notes,
substantially in the form to be Filed as EXHIBIT 3 to the Plan at or prior to
the Confirmation Hearing.
1.81 "NEW SENIOR SECURED NOTES INDENTURE TRUSTEE" shall be as
designated at the Confirmation Hearing and have the meaning set forth in the
Confirmation Order.
1.82 "NEW SENIOR SECURED NOTES SECURITY AND PLEDGE AGREEMENT" means the
Security and Pledge Agreement pursuant to which certain collateral is pledged to
secure Reorganized PHI's obligations under the New Senior Secured Notes,
substantially in the form Filed as EXHIBIT 4 to the Plan at or prior to the
Confirmation Hearing.
1.83 "NEW STOCK OPTION PLAN" means one or more stock option plans to be
implemented by Reorganized PHI providing for the issuance to management and
Celebrities of options to purchase up to 1.0 million shares of New Class A
Common Stock on a fully diluted basis.
1.84 "NEW WARRANT AGENT" shall be as designated at the Confirmation
Hearing and shall have the meaning set forth in the Confirmation Order.
1.85 "NEW WARRANT AGREEMENT" means the Warrant Agreement between
Reorganized PHI,
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as issuer, and the New Warrant Agent, as agent, which agreement relates to the
New Warrants, substantially in the form to be Filed as EXHIBIT 10 to the Plan at
or prior to the Confirmation Hearing. The terms of the New Warrants are set
forth in the Summary of New Warrants attached hereto as ANNEX C.
1.86 "NEW WARRANTS" means the freely transferable warrants issued
pursuant to the New Warrant Agreement evidencing the right to purchase up to
200,000 shares of New Class A Common Stock, which shall expire three (3) years
from the Effective Date, and which shall have an exercise price of $65.50 per
share, substantially in the form to be Filed as EXHIBIT 11 to the Plan at or
prior to the Confirmation Hearing.
1.87 "OLD CELEBRITY OPTIONS" means any outstanding options for the
purchase of Class A Old Common Stock issued to Celebrities prior to the Petition
Date.
1.88 "OLD COMMON STOCK" means, collectively, the Class A and Class B
common shares, par value $.01 per share, of PHI, issued and outstanding, or held
in treasury, immediately prior to the Effective Date.
1.89 "OLD EMPLOYEE OPTIONS" means any outstanding options for the
purchase of Class A Old Common Stock, issued to officers, employees and
independent contractors prior to the Petition Date.
1.90 "OLD INDENTURE" means the Old Senior Subordinated Notes Indenture.
1.91 "OLD INDENTURE TRUSTEE" means United States Trust Company of New
York, or its successor, as trustee under the Old Senior Subordinated Notes
Indenture.
1.92 "OLD SECURITY" or "OLD SECURITIES" means the Old Senior
Subordinated Notes, the Old Common Stock, the Old Warrants, the Old Celebrity
Options and the Old Employee Options, individually or collectively, as the
context may require.
1.93 "OLD SENIOR SUBORDINATED NOTES" means the 12% Senior Subordinated
Notes due 2005, issued by PHI pursuant to the Old Senior Subordinated Notes
Indenture.
1.94 "OLD SENIOR SUBORDINATED NOTES CLAIM" means any Claim of a Holder
of Old Senior Subordinated Notes which, for purposes of the Plan, shall be
deemed to be an amount equal to the sum of (i) the outstanding principal amount,
as of the Petition Date, of Old Senior Subordinated Notes held by such Holder,
and (ii) an amount equal to 100% of the accrued and unpaid interest at the rate
of 12% per annum plus interest on defaulted interest at the rate of 13% per
annum and other amounts that specifically arise under the Old Senior
Subordinated Notes Indenture, exclusive of amounts covered by the Indenture
Trustee Claim, and the Old Senior Subordinated Notes Indenture through but not
including the Petition Date.
1.95 "OLD SENIOR SUBORDINATED NOTES INDENTURE" means the Indenture
between PHI, as issuer, and the Old Senior Subordinated Notes Indenture Trustee,
as trustee, dated as of March 25,
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1998, as amended, which Indenture relates to the Old Senior Subordinated Notes.
1.96 "OLD TRANSFER AGENT" means as registrar and transfer agent with
respect to the Old Common Stock.
1.97 "OLD WARRANTS" means any warrants outstanding as of the Petition
Date to purchase shares of Old Common Stock.
1.98 "ORDINARY COURSE PROFESSIONALS ORDER" means the Order Authorizing
Debtors to Employ and Compensate Professionals for Specific Services Rendered in
the Ordinary Course of Business, which was signed by the Bankruptcy Court on
October 13, 1999, as amended from time to time.
1.99 "PETITION DATE" means October 12, 1999, the date on which the
Debtors filed their voluntary petitions for relief under Chapter 11 of the
Bankruptcy Code.
1.100 "PHI" means Planet Hollywood International, Inc., a Delaware
corporation.
1.101 "PLAN" means this Joint Plan of Reorganization proposed by the
Debtors, as it may hereafter be amended or modified from time to time.
1.102 "PLAN DOCUMENTS" means those documents identified in Exhibits 1
through 12 which will be Filed at or prior to the Confirmation Hearing.
1.103 "PLAN SECURITIES" means the New Common Stock issuable pursuant to
the Plan, the New Senior Secured Notes, the New Secured PIK Notes, the New
Warrants and the shares of New Class A Common Stock issuable upon exercise of
the New Warrants, the New Options and the shares of New Class A Common Stock
issuable upon exercise of the New Options.
1.104 "POST-PETITION TRADE CLAIM" means an expense or obligation
incurred by any of the Debtors arising from or with respect to the sale and
delivery of goods or the rendition of services (except for fees and
disbursements of Professionals) to any of the Debtors after the Petition Date.
1.105 "PRIORITY CLAIM" means any Allowed Claim, to the extent entitled
to priority under Section 507 (a) of the Bankruptcy Code, other than an
Administrative Claim or a Priority Tax Claim, against any Debtor.
1.106 "PRIORITY TAX CLAIM" means the tax Claims of governmental units
to the extent such Claims are entitled to priority under Section 507(a)(8) of
the Bankruptcy Code.
1.107 "PROFESSIONAL" means (i) any professional retained in the Chapter
11 Cases pursuant to an order of the Bankruptcy Court in accordance with
Sections 327 or 1103 of the Bankruptcy Code (other than the Ordinary Course
Professionals Order), (ii) any attorney or accountant seeking compensation or
reimbursement of expenses pursuant to Section 503(b) of the Bankruptcy Code,
(iii) any Entity whose fees and expenses are subject to approval by the
Bankruptcy Court as
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reasonable pursuant to Section 1129(a)(4) of the Bankruptcy Code, and (iv) any
attorney, accountant or financial advisor for the Old Indenture Trustee.
1.108 "PRO RATA" means, with respect to any amount of consideration to
be distributed to a Creditor holding an Allowed Claim or Holder of an Allowed
Interest of a particular Class on a particular date, a proportionate share, so
that the ratio of the consideration distributed on account of an Allowed Claim
or Allowed Interest in a Class to the amount of such Allowed Claim or Allowed
Interest is the same as the ratio of the aggregate amount of the consideration
distributed on account of all Allowed Claims or Allowed Interests in such Class
to the aggregate amount of all Allowed Claims or Allowed Interests in such
Class.
1.109 "REGISTRATION RIGHTS AGREEMENT" shall have the meaning set forth
in Section 6.6(b) of this Plan.
1.110 "REJECTION CLAIM" means the Claim, if any, of parties other than
any of the Debtors to executory contracts or unexpired leases with any of the
Debtors which are rejected or deemed rejected pursuant to a Final Order.
1.111 "RELEASES" shall have the meaning set forth in Section 12.1 of
this Plan.
1.112 "REORGANIZED PHI" means PHI from and after the Effective Date.
1.113 "REORGANIZED DEBTORS" means any or all of the Debtors from and
after the Effective Date.
1.114 "SECURED CLAIM" means any Claim which is wholly or partially
secured by a valid Lien, which has been properly perfected as required by
applicable law on property of the Debtors to the extent of the value of the
interest of the Holder of such Claim in such property of the Debtors, or that is
subject to set-off under Section 553 of the Bankruptcy Code as determined by the
Bankruptcy Court pursuant to Section 506(a) of the Bankruptcy Code.
1.115 "SECURITIES ACT" means the Securities Act of 1933, as amended.
1.116 "SHELF REGISTRATION STATEMENT" shall have the meaning set forth
in Section 6.6(b) of this Plan.
1.117 "SUBSIDIARIES" means the Domestic Subsidiaries and the Foreign
Subsidiaries, collectively.
1.118 "SUNTRUST" means SunTrust Bank, Central Florida, National
Association.
1.119 "SUNTRUST AGREEMENTS" means, collectively, (i) the Amended and
Restated Revolving Credit Agreement dated March 25, 1998, as amended, which was
executed by SunTrust, individually and as Administrative Agent and Agent, and
PHI, including the Synthetic Lease, Interest Rate Swap and Letter of Credit
agreements executed in connection therewith
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(respectively, the "Revolving Credit Agreement," the "Synthetic Lease," the
"Interest Rate Swap" and the "Letter of Credit Facility"); (ii) the Security
Agreement dated March 25, 1998, as amended, which was executed by SunTrust as
Agent, PHI and Planet Hollywood (Region IV), Inc.; and (iii) the Guaranty
Agreement dated March 25, 1998 as subsequently ratified, which was executed by
PHI and its material subsidiaries.
1.120 "SUNTRUST CLAIM" means the outstanding balance due on the Letter
of Credit Facility of the Sun Trust Agreements (in the amount of approximately
$2.5 million as of the Petition Date).
1.121 "SUPPLEMENTAL CLASS 5 DISTRIBUTION" shall have the meaning set
forth in Section 5.5 of the Plan.
1.122 "TRADE CLAIM" means any unsecured Claim arising from or with
respect to (i) the sale and delivery of goods, or the rendition of services, to
the Debtors prior to the Petition Date; and (ii) all other obligations incurred
in the ordinary course, conduct and operation of the Debtors' businesses prior
to the Petition Date.
1.123 "TREASURY RATE" means the "underpayment rate" (as defined in
Section 6612(a)(2) of the Internal Revenue Code of 1986, as amended) on the
Business Day immediately preceding the Confirmation Date which rate is the rate
of interest charged by the Internal Revenue Service on delinquent federal income
taxes.
1.124 "UNCONSOLIDATED AFFILIATES" means affiliated companies which are
not majority owned by PHI or its Subsidiaries, consisting of PH Asia, ECE, and
Planet Hollywood Hospitality, Inc.
1.125 "UNIMPAIRED CLAIM" means a Claim in a Class identified in Section
3.2 of the Plan as unimpaired thereunder.
1.126 "UNOFFICIAL NOTEHOLDERS' COMMITTEE" means the committee of
holders of Old Senior Subordinated Notes formed prior to the Petition Date,
representing holders of in excess of $160 million principal amount of the Old
Senior Subordinated Notes.
1.127 "UNOFFICIAL NOTEHOLDERS' COMMITTEE SUBSTANTIAL CONTRIBUTION
CLAIM" means the Claim, if any, of the Unofficial Noteholders' Committee for
reimbursement of the reasonable unpaid post-Petition Date fees and expenses of
its legal and financial advisors, which amount PHI has agreed to pay pursuant to
the Plan.
1.128 "WORKING CAPITAL FACILITY" means a post-Effective Date working
capital facility in an amount not to exceed $15 million substantially in the
form Filed as Exhibit "5" to the Plan at or prior to the Confirmation Hearing.
1.129 "WORKING CAPITAL FACILITY SECURITY AND PLEDGE AGREEMENT" means
the Security and Pledge Agreement pursuant to which certain collateral may be
pledged to secure Reorganized PHI's obligations under the Working Capital
Facility, substantially in the form Filed as EXHIBIT 6 to the
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Plan at or prior to the Confirmation Hearing.
1.130 "WORKING CAPITAL LENDER" means the provider(s) of the Working
Capital Facility.
RULES OF CONSTRUCTION
1.131 INTERPRETATION AND RULES OF CONSTRUCTION . Unless otherwise
specified, all section, article, schedule, annex and exhibit references in the
Plan are to the respective section in, article of, annex to or schedule or
exhibit to, the Plan, as the same may be amended, waived, or modified from time
to time in accordance with the provisions hereof. The rules of construction
contained in Section 102 of the Bankruptcy Code shall apply to the construction
of the Plan (excluding the Plan Documents, unless made applicable thereto
pursuant to an express provision thereof).
1.132 OTHER TERMS. The words "herein" "hereof," "hereto," "hereunder,"
and others of similar import refer to the Plan as a whole and not to any
particular section, subsection, or clause contained in the Plan. Each
capitalized term used herein that is not defined herein shall have the meaning
ascribed to that term, if any, in the Bankruptcy Code or the Bankruptcy Rules.
1.133 HEADINGS. Headings are used in the Plan for convenience of
reference only and shall not constitute a part of the Plan for any other
purpose. Headings shall not limit or otherwise affect the provisions of the
Plan.
1.134 INCORPORATION OF EXHIBITS. All exhibits referred to in this Plan
are deemed incorporated into, and made a part of this Plan, whether Filed
contemporaneously herewith or hereafter.
ARTICLE II
CLASSIFICATION OF CLAIMS AND INTERESTS
2.1 PRE-PETITION CLAIMS AND EQUITY INTERESTS CLASSIFIED. All Claims and
all Interests are classified as set forth in Section 2.3 hereof. A Claim or
Interest is classified in a particular Class only to the extent that the Claim
or Interest qualifies within the description of that Class, and is classified in
another Class or Classes to the extent that any remainder of the Claim or
Interest qualifies within the description of such other Class or Classes. A
Claim or Interest is classified in a particular Class only to the extent that
the Claim or Interest is an Allowed Claim or Allowed Interest in that Class and
has not been paid, released or otherwise satisfied before the Effective Date. A
Claim or Interest which is not an Allowed Claim or Allowed Interest is not in
any Class and, notwithstanding anything to the contrary contained in the Plan,
no distribution shall be made on account of any Claim or Interest which is not
an Allowed Claim or Allowed Interest. Holders of Claims or Interests shall be
entitled to vote in, and receive distributions from, a particular Class only to
the extent the Allowed Claim or Allowed Interest is within such Class.
2.2 ADMINISTRATIVE CLAIMS AND PRIORITY TAX CLAIMS. As provided in
Section 1123(a)(1)
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of the Bankruptcy Code, Administrative Claims and Priority Tax Claims against
the Debtors shall not be classified for purposes of voting on or receiving
distributions under the Plan. All such Claims shall be treated separately as
unclassified Claims on the terms set forth in Article IV of the Plan.
2.3 CLAIMS AGAINST AND INTERESTS IN THE DEBTORS. All Claims against,
and Interests in, any of the Debtors are classified as follows:
(a) CLASS 1 CLAIMS Class 1 consists of all Priority Claims.
(b) CLASS 2 CLAIMS Class 2 consists of the SunTrust Claims.
(c) CLASS 3 CLAIMS Class 3 consists of all Miscellaneous Secured
Claims.
(d) CLASS 4 CLAIMS Class 4 consists of all Convenience Claims.
(e) CLASS 5 CLAIMS Class 5 consists of all Old Senior Subordinated
Notes Claims.
(f) CLASS 6 CLAIMS Class 6 consists of all General Unsecured
Claims.
(g) CLASS 7 CLAIMS Class 7 consists of Claims arising from Landlord
Settlement Agreements.
(h) CLASS 8 INTERESTS Class 8 consists of all Interests of Holders of
Old Common Stock.
(i) CLASS 9 CLAIMS FOR ISSUANCE OF OLD COMMON STOCK
Class 9 consists of all Old Warrants, Old
Celebrity Options and Old Employee Options
and all other options or rights to acquire
Old Common Stock, including, without limitation,
all Claims arising out of the rejection of Old
Warrants, Old Celebrity Options and Old Employee
Options and other options to acquire Old Common
Stock, to the extent they constitute executory
contracts, and any Claim that has the same
priority as the Old Common Stock pursuant
to Section 510(b) of the Bankruptcy Code.
(j) CLASS 10 CLAIMS Class 10 consists of all Intercompany Claims.
(k) CLASS 11 INTERESTS Class 11 consists of all Interests of PHI and
any Filed Subsidiary in any other Filed
Subsidiary.
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ARTICLE III
IDENTIFICATION OF IMPAIRED CLASSES
OF CLAIMS AND EQUITY INTERESTS
3.1 IMPAIRED CLASSES OF CLAIMS AND INTERESTS. Class 5 Claims, Class 6
Claims, Class 8 Interests and Class 9 Claims are impaired under the Plan.
3.2 UNIMPAIRED CLASSES OF CLAIMS AND INTERESTS. Class 1 Claims, Class 2
Claims, Class 3 Claims, Class 4 Claims, Class 7 Claims and Class 10 Claims are
not impaired under the Plan. Class 11 Interests are not impaired.
3.3 IMPAIRMENT CONTROVERSIES. If a controversy arises as to whether any
Claims or Interests, or any Class of Claims or Class of Interests, is impaired
under the Plan, the Bankruptcy Court shall, after notice and a hearing, resolve
such controversy.
ARTICLE IV
TREATMENT OF ADMINISTRATIVE AND PRIORITY TAX CLAIMS
4.1 FEES OF PROFESSIONALS AND CLAIMS FOR SUBSTANTIAL CONTRIBUTION. All
Professionals retained by any Debtor and any other Entities (other than any
Professionals retained by the Old Indenture Trustee, which Professionals shall
be paid in accordance with Section 6.4 of the Plan) requesting compensation or
reimbursement of expenses pursuant to Sections 327, 328, 330, 331, or 503(b) of
the Bankruptcy Code for services rendered before the Confirmation Date
(including, without limitation, any compensation requested by any Professional
or any other Entity for making a substantial contribution in the Chapter 11
Cases shall File and serve on Reorganized PHI, the Creditors' Committee and the
United States Trustee an application for final allowance of compensation and
reimbursement of expenses no later than thirty (30) days after the Effective
Date. Objections to applications of Professionals for compensation or
reimbursement of expenses must be Filed and served on Reorganized PHI, the
United States Trustee, the Creditors' Committee and the Professionals to whose
application the objections are addressed, no later than fifteen (15) days after
service of the related application. Reorganized PHI shall pay the amounts
Allowed by Final Order of the Bankruptcy Court within ten (10) days after the
date of such Order.
4.2 ORDINARY COURSE LIABILITIES. Holders of Administrative Claims based
on liabilities incurred in the ordinary course of the Debtors' business shall
not be required to File any request for payment of such Claims. Such
Administrative Claims shall be assumed and paid by Reorganized PHI pursuant to
the terms and conditions of the particular transactions giving rise to such
Administrative Claims without any further action by the Holders of such Claims
or the need for Bankruptcy Court approval.
4.3 ADMINISTRATIVE RECLAMATION CLAIMS. Allowed Administrative
Reclamation Claims
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shall be paid in full in Cash on the later of the Effective Date, the date of
allowance of the Reclamation Claim, or such other date as shall be approved by
an order of the Bankruptcy Court.
4.4 CURE COST CLAIMS. Allowed Cure Cost Claims shall be paid in full in
Cash on the later of the Effective Date, the date of allowance of the Cure Cost
Claim, or at such other date as shall be approved by an order of the Bankruptcy
Court.
4.5 PRIORITY TAX CLAIMS. Unless otherwise agreed between the Holder of
a Priority Tax Claim and any Debtor or Reorganized PHI, in accordance with
Section 1129(a)(9)(C) of the Bankruptcy Code, each Holder of an Allowed Priority
Tax Claim shall receive, at such Debtor's or Reorganized PHI's option, as the
case may be, either (i) Cash, in the full amount of such Allowed Priority Tax
Claim on the Effective Date or (ii) deferred payments of Cash in the full amount
of such Allowed Priority Tax Claim, payable in equal annual principal
installments beginning the first anniversary of the Effective Date and ending on
the earlier of the sixth anniversary of the Effective Date or the sixth
anniversary of the date of the assessment of such Claim, together with interest
(payable quarterly in arrears) on the unpaid balance of such Allowed Priority
Tax Claim at an annual rate equal to the Treasury Rate or such other rate as may
be set by the Bankruptcy Court at the Confirmation Hearing. The amount of any
Allowed Priority Tax Claim for which the time for filing a return, if required,
under applicable law or under any authorized extension thereof, has not expired
on or prior to the Effective Date, and the rights of the Holder of such Claim,
if any, to payment in respect thereof shall (i) be determined in the manner in
which the amount of such Claim and the rights of the Holder of such Claim would
have been resolved or adjudicated if the Chapter 11 Cases had not been
commenced, PROVIDED, HOWEVER, that the Debtors reserve the right to seek a
determination by the Bankruptcy Court of the validity, amount and priority of
any Priority Tax Claim under 11 U.S.C. ss.505, (ii) survive the Effective Date
and consummation of the Plan as if the Chapter 11 Cases had not been commenced,
and (iii) not be discharged pursuant to Section 1141 of the Bankruptcy Code.
ARTICLE V
TREATMENT OF CLAIMS AND INTERESTS
5.1 CLASS 1. PRIORITY CLAIMS. Class 1 Claims are unimpaired. At
Reorganized PHI's option, each Holder of an Allowed Priority Claim shall be
entitled to receive, in full satisfaction of such Claim, the Allowed amount of
such Claim in full in Cash on the later of (i) the Effective Date, (ii) the date
that such Claim becomes an Allowed Priority Claim and (iii) the date that such
Claim would be paid in accordance with any terms and conditions of any
agreements or understandings relating thereto between any Debtor and the Holder
of such Claim.
5.2 CLASS 2. THE SUNTRUST CLAIMS. Allowed Class 2 Claims are
unimpaired. On the Effective Date, each Holder of an Allowed Class 2 Claim shall
receive in full satisfaction of its Allowed Class 2 Claim in Cash, the
outstanding unpaid amount due, if any, under the SunTrust Agreements plus
accrued and unpaid interest, if any, at the non-default contractual rate set
forth in the SunTrust Agreements through the Effective Date, plus Allowed fees,
costs and expenses, if any.
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5.3 CLASS 3. MISCELLANEOUS SECURED CLAIMS. Claims 3 Claims are
unimpaired. At Reorganized PHI's option, on the Effective Date each Holder of an
Allowed Miscellaneous Secured Claim shall either be treated in accordance with
Section 1124(2) of the Bankruptcy Code, or in accordance with the terms of any
agreements between the Secured Creditor and any Debtor, as approved by the
Bankruptcy Court.
5.4 CLASS 4. CONVENIENCE CLAIMS. Class 4 Claims are unimpaired. On the
later of the Effective Date, the date of allowance of its Convenience Claim or
such other date as shall be approved by an order of the Bankruptcy Court, each
Holder of an Allowed Claim that is $2,000 or less or reduced to $2,000 or less
shall receive a Cash payment equal to the lesser of $2,000 or the Allowed amount
of the Claim.
5.5 CLASS 5. OLD SENIOR SUBORDINATED NOTES CLAIMS. Class 5 Claims are
impaired. On the Effective Date, each Holder of a Class 5 Claim as of the
Distribution Record Date shall have an Allowed Claim equal to the face amount of
its Old Senior Subordinated Notes plus unpaid accrued interest and interest on
defaulted payments of interest at the default rate provided in the Old Senior
Subordinated Notes Indenture and related documents through the Petition Date,
and shall receive on the Effective Date, in full satisfaction of its Allowed
Class 5 Claim, its Pro Rata share of $47.5 million in Cash, $60 million
principal amount of New Secured PIK Notes, and 2.65 million shares of New Class
A Common Stock. If, prior to the Confirmation Date, PHI has entered into the Bay
Harbour Agreement, then PHI shall deliver to Electing Holders of Class 5 Claims
in lieu of payment of up to $25 million Cash and, if applicable, to Bay Harbor
under the Bay Harbor Agreement, their respective Pro Rata shares of (i) up to
$25 million of New Senior Secured Notes having the principal economic terms set
forth in ANNEX A hereto, and (ii) a fee consisting of $625,000 Cash and 350,000
shares of New Class A Common Stock. The principal economic terms of the New
Secured PIK Notes are set forth on ANNEX B hereto. If the amount of any New
Class A Common Stock paid to a third-party lender as partial consideration for
the purchase of the New Senior Secured Notes is less than 350,000 shares of New
Class A Common Stock, then the Holders of Class 5 Claims shall receive, on the
Effective Date, their Pro Rata share of that undistributed New Class A Common
Stock up to a total of 350,000 shares (the "Supplemental Class 5 Distribution"),
and the amount of New Secured PIK Notes distributed to Class 5 shall be reduced
by the Class 6 Adjustment Amount.
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5.6 CLASS 6. GENERAL UNSECURED CLAIMS.
Each Holder of an Allowed Class 6 Claim will receive in full
satisfaction of its Allowed Claim, Cash and New Secured PIK Notes having an
aggregate value as a percentage of its Allowed Claim equal to the aggregate
value of the consideration to be received by each Holder of an Allowed Class 5
Claim as a percentage of its Allowed Claim. The Cash component of the
distribution to Class 6 shall be the same percentage of a Class 6 Holder's
Allowed Claim as the Cash component of the distribution to Class 5 is as a
percentage of the Allowed Claims of Holders in Class 5, counting a distribution
of New Senior Secured Notes to Holders of Class 5 Claims, if any, as a Cash
payment. For the purpose of calculating the Class 6 distribution, New Secured
PIK Notes and New Senior Secured Notes, if any, distributed to Holders of Class
5 Claims, shall be valued at their face amounts and New Class A Common Stock
shall be valued at $4.2857 per share. In the event Class 5 receives the
Supplemental Class 5 Distribution, then the Holders of Class 6 Claims shall
receive, on the Effective Date, their Pro Rata share of the Class 6 Adjustment
Amount determined as provided in this Section 5.6.
5.7 CLASS 7. LANDLORD SETTLEMENT AGREEMENT CLAIM. Class 7 Claims are
unimpaired. Holders of Claims arising under Landlord Settlement Agreements,
whether executed prior to or subsequent to the Petition Date, shall receive the
treatment provided in the Landlord Settlement Agreement, whether payment of
Cash, performance by a Debtor, surrender of leasehold or other property rights,
or as otherwise required, in the manner and at the time provided in a Landlord
Settlement Agreement. All such Claims for payment, performance or otherwise
shall be deemed Allowed unless a Final Order of the Bankruptcy Court is entered
prior to the Effective Date disallowing, disapproving or unwinding a Landlord
Settlement Agreement.
5.8 CLASS 8. OLD COMMON STOCK. Class 8 Interests are impaired.
(a) If both Class 5 and Class 6 accept the Plan, each Holder of an
Allowed Class 8 Interest as of the Distribution Record Date shall receive on the
Effective Date, in full satisfaction of its Allowed Interest, its Pro Rata share
of New Warrants, PROVIDED, HOWEVER, that Holders of less than 5,450 shares of
Old Common Stock will receive no distribution.
(b) If either Class 5 or Class 6 rejects the Plan, Holders of
Class 8 Interests shall not receive or retain any property on account of their
Class 8 Interests, and no New Warrants shall be issued.
5.9 CLASS 9. CLAIMS FOR ISSUANCE OF OLD COMMON STOCK. Class 9 Claims
are impaired. The Holders of Class 9 Claims shall not receive or retain any
property under the Plan. All Old Employee Options and all other options or
rights to acquire the Old Common Stock shall be canceled, annulled and
extinguished on the Effective Date.
5.10 CLASS 10. INTERCOMPANY CLAIMS. Class 10 Claims are unimpaired.
Except as provided in Section 6.1.5 hereof, at Reorganized PHI's option, each
Holder of an Allowed Class 10 Claim shall be treated in accordance with Section
1124(2) of the Bankruptcy Code.
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5.11 CLASS 11. INTERCOMPANY INTERESTS. Class 11 Interests are
unimpaired. Holders of Class 11 Interests shall be treated in accordance with
Section 1124(2) of the Bankruptcy Code.
5.12 POST-PETITION INTEREST. To the extent required by a Final Order of
the Bankruptcy Court or applicable law, the aggregate distribution paid to
Holders of Allowed Claims deemed to be unimpaired under the Plan shall include
interest accrued thereon from the Petition Date through the Effective Date at
the lower of (i) the Treasury Rate; (ii) the rate earned on the Debtors' cash
investments; or (iii) the rate determined by the Bankruptcy Court.
5.13 ALLOCATION BETWEEN PRINCIPAL AND ACCRUED INTEREST. The aggregate
consideration paid to Holders in respect of their Allowed Claims shall be
treated under this Plan as allocated first to the principal amount of such
Allowed Claim to the extent thereof and, thereafter, to the interest, if any,
accrued thereon through the Effective Date.
ARTICLE VI
MEANS FOR EXECUTION OF THE PLAN
6.1 IMPLEMENTATION OF PLAN. On the Effective Date, PHI shall (i)
receive $30 million in cash from the New Money Investors, the purchase price for
7.0 million shares of New Class B Common Stock; (ii) issue up to $25 million
face amount of the New Senior Secured Notes to one or more third-party lenders
and/or to Bay Harbor and the Electing Holders of Class 5 Claims, and (iii)
obtain such other financing on terms reasonably acceptable to the Debtors and
the Creditors' Committee as necessary to effectuate the Plan, including, on or
after the Effective Date, the proceeds from the Working Capital Facility to the
extent necessary to fund the Debtors' obligations under this Plan and to operate
the Reorganized Debtors. Reorganized PHI shall issue the New Senior Secured
Notes, the New Secured PIK Notes, the New Warrants, New Options and New Common
Stock, and shall deliver Cash to the entities entitled to receive distributions
under this Plan.
6.2 GENERAL CORPORATE MATTERS. Reorganized PHI and the other
Reorganized Debtors shall take such action as is necessary under the laws of the
State of Delaware, federal law and other applicable law to implement the terms
and provisions of the Plan.
6.2.1 CANCELLATION OF OLD SECURITIES, INSTRUMENTS AND AGREEMENTS
RELATING TO IMPAIRED CLAIMS AND INTERESTS. On the Effective Date, except as
otherwise provided in the Plan, all securities, instruments and agreements
governing any Claims and Interests impaired hereby shall be deemed canceled and
terminated, and the obligations of the Debtors relating to, arising under, in
respect of or in connection with such securities, instruments and agreements
shall be discharged; PROVIDED, HOWEVER, that except as otherwise provided
herein, notes, securities and other evidences of Claims and Interests shall,
effective upon the Effective Date, represent the right to participate, to the
extent such Claims and Interests are Allowed, in the distributions contemplated
by the Plan.
6.2.2 EFFECTIVENESS OF SECURITIES, INSTRUMENTS AND AGREEMENTS. On the
Effective Date, all securities, instruments and agreements entered into or
issued pursuant to the Plan, including, without
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limitation, the Plan Documents and any security, instruments or agreements
entered into in connection with any of the foregoing, shall become effective and
binding in accordance with their respective terms and conditions upon the
parties thereto and shall be deemed to become effective simultaneously.
6.2.3 CORPORATE ACTION. As of the Effective Date, Reorganized PHI shall
be deemed to have adopted the Amended PHI Articles and the Amended PHI By-Laws
which shall thereupon become effective. Reorganized PHI shall file the Amended
PHI Articles which shall, among other things, contain appropriate provisions
consistent with the Plan and other Plan Documents (i) governing the
authorization of the New Common Stock, (ii) prohibiting the issuance of
nonvoting equity securities as required by Section 1123(a)(6) of the Bankruptcy
Code, and (iii) implementing such other matters as Reorganized PHI believes are
necessary and appropriate to effectuate the terms and conditions of the Plan,
including, without limitation, provisions implementing the Board member election
rights of the Holders of New Class A Common Stock and New Class B Common Stock.
Except as otherwise specifically provided in the Plan, the adoption of the
Amended PHI Articles and the Amended PHI By-Laws, the selection of directors and
officers of Reorganized PHI, the distribution of Cash, the issuance and
distribution of the New Senior Secured Notes, the New Secured PIK Notes, the New
Common Stock, the New Warrants, and the New Stock Options, and the adoption,
execution and delivery of all contracts, instruments, indentures, modifications
and other agreements related to any of the foregoing, and other matters provided
for under the Plan involving corporate action to be taken by or required of
Reorganized PHI shall be deemed to have occurred and be effective on the
Effective Date as provided herein, and shall be authorized and approved in all
respects without any requirements of further action by stockholders, officers or
directors of Reorganized PHI. To the extent required by law, the Board of
Directors of Reorganized PHI shall take such action as may be necessary from
time to time to approve the issuance of the Plan Securities and such other
action, if any, as may be required to meet the requirements of the Plan, the
Plan Securities or the Plan Documents.
6.2.4 MANAGEMENT AND BOARD OF DIRECTORS. On the Effective Date, the
Board of Directors of Reorganized PHI shall consist of five (5) members
appointed by the New Money Investors (the "Class B Directors") and two (2)
members appointed by the Creditors' Committee (the "Class A Directors"). After
the Effective Date, Holders of New Class B Common Stock shall have the right to
elect the five Class B Directors, and the Holders of New Class A Common Stock
shall have the right to elect the two Class A Directors until repayment in full
of the New Secured PIK Notes, at which time the number of Class A Directors
shall be reduced to one, and thereafter the Class A Director shall be elected by
the Holders of New Class A Common Stock in accordance with the terms of the
Amended PHI Articles and the Amended PHI By-Laws. Robert Earl shall be the Chief
Executive Officer of PHI on and after the Effective Date. Selection of a Chief
Financial Officer and a Chief Operating Officer for PHI prior to or as of the
Effective Date shall be subject to the consent, not to be unreasonably withheld,
of the Creditors' Committee, and after the Effective Date shall be subject to
the super-majority approval of a majority of the members (including at least one
Class A Director) of Reorganized PHI's Board of Directors. Officers and
directors for all of the Reorganized Debtors other than PHI shall be designated
by the Board of Directors of Reorganized PHI. Except as otherwise provided
herein or in any Plan Document, the members of the existing Board of Directors
of PHI shall have no continuing obligations to any of the Debtors or Reorganized
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PHI on and after the Effective Date. At such time as there shall be no issued
and outstanding shares of Class B Common Stock, all members of the Board of
Directors of Reorganized PHI shall be elected by the holders of Class A Common
Stock.
6.2.5 NEW STOCK OPTIONS. On the Effective Date, PHI shall implement the
New Stock Option Plans for the benefit of Post-Effective Date management and
Celebrities who continue to sponsor PHI. The Stock Options issued under the New
Stock Option Plans shall be exercisable into shares of New Class A Common Stock.
A Committee appointed by PHI's Board of Directors shall determine the exercise
price and exercise term of the Stock Options.
6.2.6 SUBSTANTIVE CONSOLIDATION. The Plan contemplates the substantive
consolidation of the Chapter 11 Cases of the Debtors into a single Case solely
for purposes of confirmation, consummation and implementation of the Plan.
Pursuant to the Confirmation Order, on the Confirmation Date: (i) all assets,
and all proceeds thereof, and all liabilities of the Consolidated Debtors will
be merged or treated as though they were merged with and into the assets and
liabilities of Reorganized PHI; (ii) all Consolidated Claims and Claims among
the Consolidated Debtors will receive no distribution under the Plan; (iii) any
obligation of any Consolidated Debtor, and all guarantees thereof executed by
one or more of the Consolidated Debtors, and any Claims filed or to be filed in
connection with any such obligation and guarantee will be deemed one Claim
against Reorganized PHI; (iv) each and every Claim filed in the individual
Chapter 11 Case of any of the Consolidated Debtors will be deemed filed against
Reorganized PHI; and (v) for purposes of determining the availability of the
right of set-off under Section 553 of the Bankruptcy Code, the Consolidated
Debtors shall be treated for purposes of the Plan as one entity so that, subject
to the other provisions of Section 553 of the Bankruptcy Code, debts due to any
of the Consolidated Debtors may be setoff against the debts of any of the
Consolidated Debtors.
6.2.7 EXTINGUISHMENT OF GUARANTEE. Except as otherwise provided in the
Plan or in any Plan Documents, or in executory contracts or leases assumed by
the Debtors, on the Effective Date, all Claims based upon guarantees of
collection, payment or performance made by any of the Debtors as to the
obligations of each other, including, without limitation, the Leasehold
Guarantees, shall be discharged, released and of no further force and effect.
Guarantees by the Debtors, any non-Debtor affiliates, officers, directors, other
third parties or their affiliates of leases or contracts that are assumed by the
Debtors on or prior to the Effective Date shall remain in existence and shall
not be discharged or extinguished.
6.2.8 CONTINUED CORPORATE EXISTENCE AND VESTING OF ASSETS IN
REORGANIZED PHI AND THE OTHER REORGANIZED DEBTORS. PHI shall continue to exist
on and after the Effective Date as Reorganized PHI, a corporation duly organized
under the laws of Delaware, with all the rights and powers of a corporation
under applicable law and without prejudice to any right to alter or terminate
such existence (whether by merger or otherwise) under Delaware law, subject to
the terms and provisions of this Plan and the Confirmation Order. The other
Reorganized Debtors shall continue to exist on and after the Effective Date as
entities duly organized under the laws of their respective states of
incorporation or organization, unless otherwise determined by PHI or Reorganized
PHI. Except as otherwise provided in the Plan, on or after the Effective Date,
all property of the Consolidated Estates, and any property and assets acquired
by the Debtor or the Reorganized
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Debtors under any provisions of the Plan, shall vest in the Reorganized Debtors,
free and clear of any and all Claims, Liens, charges and other Encumbrances. On
and after the Effective Date, the Reorganized Debtors may operate their
businesses and may use, acquire and dispose of property or assets and compromise
or settle any Claims against them without supervision or approval by the
Bankruptcy Court and free of any restrictions of the Bankruptcy Code or
Bankruptcy Rules, other than those restrictions expressly imposed by the Plan or
the Confirmation Order. Without limiting the foregoing, the Reorganized Debtors
may pay the charges that they incur on or after the Effective Date for
Professional fees, disbursements, expenses or related support services without
application to the Bankruptcy Court, except as otherwise provided in Section
14.3 of the Plan.
6.3 DISTRIBUTION.
6.3.1 GENERALLY. Except as otherwise provided in the Plan, any
distribution required by the Plan to be made on the Effective Date in respect of
a Claim or Interest that is Allowed as of the Effective Date will be deemed made
on the Effective Date if made on the Effective Date or as promptly thereafter as
practicable, but in any event no later than the later to occur of: (i) 45 days
after the Effective Date or (ii) the date on which such Claim or Interest
becomes Allowed and any other conditions to distribution with respect to such
Claim or Interest shall have been satisfied.
6.3.2 DISTRIBUTIONS TO THE HOLDER OF SUNTRUST CLAIMS. Any cash payment
required to be made on the Sun Trust Claims shall be delivered by PHI to Sun
Trust on the Effective Date conditioned on the delivery by Sun Trust of executed
releases of Liens, guarantees and cash collateral including any necessary
mortgage satisfactions, UCC Terminations Statements or other documents
reasonably requested by PHI.
6.3.3 DISTRIBUTIONS TO HOLDERS OF OLD SENIOR SUBORDINATED NOTES CLAIMS.
All distributions provided for in the Plan on account of Old Senior Subordinated
Notes Claims will be made to the Old Indenture Trustee for further distribution
to individual Holders of Old Senior Subordinated Notes Claims. Any such
distribution made by the Old Indenture Trustee will be made pursuant to the Old
Senior Subordinated Notes Indenture; provided, however, that any distributions
of New Senior Secured Notes to Holders of Class 5 Claims shall be made only to
Bay Harbor and the Electing Holders of Class 5 Claims. Notwithstanding any
provision in the Plan to the contrary, the Old Senior Subordinated Notes
Indenture will continue in effect to the extent necessary to allow the Old
Indenture Trustee to receive and make distributions pursuant to the Plan on
account of Old Senior Subordinated Notes Claims. Any actions taken by the Old
Indenture Trustee on or after the Effective Date that are not for this purpose
will be null and void as against the Debtors and Reorganized PHI, and
Reorganized PHI will have no obligations to the Old Indenture Trustee for any
fees, costs or expenses incurred in connection with any such actions.
6.3.4 DISTRIBUTIONS TO HOLDERS OF OTHER CLAIMS AND INTERESTS.
Reorganized PHI will make all distributions required under the Plan, except for
distributions made by the Old Indenture Trustee. Reorganized PHI may employ or
contract with other Entities including but not limited to the Old Stock Transfer
Agent to assist it in making the distributions required by the Plan.
6.3.5 COMPENSATION FOR SERVICES RELATED TO DISTRIBUTION. In
consideration for providing
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services related to distributions pursuant to the Plan, the Old Indenture
Trustee and any other Entity employed by Reorganized PHI, as the case may be,
will receive from Reorganized PHI without further Bankruptcy Court approval,
reasonable compensation for such services and reimbursement of reasonable
out-of-pocket expenses incurred in connection with such services. These payments
will be made on terms agreed to with Reorganized PHI and will not be deducted
from distributions to be made pursuant to the Plan to Holders of Allowed Claims
and Allowed Interests.
6.3.6 DELIVERY OF DISTRIBUTIONS AND UNDELIVERABLE OR UNCLAIMED
DISTRIBUTIONS.
(a) Distributions to Holders of Allowed Claims and Holders of
Allowed Interests will be made as follows: (a) with respect to Old Senior
Subordinated Notes Claims by the Old Indenture Trustee, in accordance with the
applicable Old Senior Subordinated Notes Indenture, (b) with respect to all
other Allowed Claims, by Reorganized PHI (i) at the addresses set forth on the
respective proofs of Claim Filed by Holders of such Claims; (ii) at the
addresses set forth in any written notices of address change delivered to
Reorganized PHI after the Bar Date; (iii) at the addresses reflected in the
applicable Debtor's records if no proof of Claim has been Filed and Reorganized
PHI has not received a written notice of a change of address, and (c) with
respect to Allowed Class 8 Interests by Reorganized PHI at the addresses for
record holders supplied by the Old Stock Transfer Agent or by PHI as of the
Distribution Record Date.
(b) If any distribution to a Holder of a Class 5 Claim is
returned to the Old Indenture Trustee as undeliverable (an "Undeliverable Class
5 Distribution"), no further distributions will be made to that Holder until the
Old Indenture Trustee is notified in writing of such Holder's then current
address. If a Holder of Old Senior Subordinated Notes is not entitled to a
distribution under the Old Senior Subordinated Notes Indenture, the Plan, or any
order of the Bankruptcy Court, such distribution shall be treated as an
Undeliverable Class 5 Distribution. Any such Undeliverable Class 5 Distributions
will be held by the Old Indenture Trustee until they become deliverable, or one
year from the Effective Date, whichever is earlier. After one year from the
Effective Date, the Old Indenture Trustee may redistribute the Undeliverable
Class 5 Distributions to other claimants receiving Class 5 distributions, on a
pro rata basis. Any such distribution shall not alter the calculation of the
aggregate value distributable to Class 5 for purposes of calculating the
distribution to Class 6. If the Undeliverable Class 5 Distributions are so small
as to make it unduly burdensome to distribute them to other claimants, the Old
Indenture Trustee will return the Undeliverable Class 5 Distributions to
Reorganized PHI.
(c) If any distribution to any other Holders of Allowed Claims or
Allowed Interests is returned as undeliverable, no further distributions will be
made to such Holders until Reorganized PHI or its distribution agents are
notified in writing of such Holder's then current address.
(d) Undeliverable Cash (including dividends or other
distributions on account of undeliverable New Common Stock) will be held in
segregated bank accounts in the name of Reorganized PHI for the benefit of the
potential claimants of such funds. Undeliverable Cash will be invested by
Reorganized PHI in a manner consistent with Reorganized PHI's investment and
deposit guidelines. Subject to paragraph 6.3.6(b) above, undeliverable Plan
Securities will be held
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by Reorganized PHI for the benefit of the potential claimants of such
securities. Any Holder of an Allowed Claim or an Allowed Interest that does not
assert a claim pursuant to the Plan for an undeliverable distribution to be made
by Reorganized PHI or the Old Indenture Trustee, as the case may be, within one
year after the Effective Date will have its claim for such undeliverable
distribution discharged and will be forever barred from asserting any such claim
against the Debtors, Reorganized PHI, the other Reorganized Debtors or their
respective property. In such case, subject to paragraph 6.3.6(b) above, (i) any
Cash held for distribution on account of such claims for undeliverable
distributions (including Cash interest, maturities, dividends and other
distributions on undelivered Plan Securities, as the case may be) shall be
property of Reorganized PHI, free of any restrictions thereon (except as
otherwise provided in any Plan Document); (ii) any New Secured PIK Notes held
for distribution on account of such claims for distribution shall be canceled
and of no further force or effect; and (iii) any New Common Stock held for
distribution on account of such claims for distribution shall either be canceled
or held as treasury shares as Reorganized PHI may determine is appropriate.
(e) Pending the distribution of the New Common Stock, Reorganized
PHI will cause all of the New Common Stock held by it for distribution under the
Plan to be: (i) represented in person or by proxy at each meeting of the
stockholders of Reorganized PHI; and (ii) voted proportionately with the votes
cast with respect to New Class A Common Stock, by the other holders of New Class
A Common Stock taken as a whole, and with respect to New Class B Common Stock,
by the other holders of New Class B Common Stock taken as a whole.
6.3.7 DISTRIBUTION RECORD DATE.
As of the close of business on the Distribution Record Date, the
respective transfer registers for the Old Securities (as applicable) will be
closed, and Reorganized PHI, the Old Indenture Trustee, the Old Stock Transfer
Agent and their respective agents will have no obligation to recognize the
transfer of any Old Securities occurring after the close of business on the
Distribution Record Date and will be entitled for all purposes herein to
recognize and deal only with those Holders of record as of the close of business
on the Distribution Record Date.
6.3.8 MEANS OF CASH PAYMENTS. Except as otherwise specified herein,
Cash payments made pursuant to the Plan will be in U.S. dollars by checks drawn
on a domestic bank selected by Reorganized PHI, or by wire transfer from a
domestic bank, at the option of Reorganized PHI.
6.3.9 FRACTIONAL PLAN SECURITIES
(a) Notwithstanding any other provisions of the Plan, principal
amounts of the New Secured PIK Notes or the New Senior Secured Notes will be
issued only in denominations of $1,000 and integral multiples thereof. When any
distribution on account of an Allowed Claim would otherwise result in the
issuance of New Secured PIK Notes or the New Senior Secured Notes with an
aggregate principal amount that is not an integral multiple of $1,000, the
actual distribution of such notes will be rounded to the next higher or lower
integral multiple of $1,000, as follows: (a) aggregate principal amounts that
exceed an integral multiple of $1,000 by $500 or more will be rounded to the
next higher integral multiple of $1,000 and (b) aggregate principal amounts that
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exceed an integral multiple of $1,000 by less than $500 will be rounded to the
next lower integral multiple of $1,000. If, as a result of such rounding, the
sum of such principal amounts differs from the aggregate principal amount of
such New Secured PIK Notes or the New Senior Secured Notes specified to be
distributed pursuant to the Plan, as applicable, the aggregate principal amount
of the New Secured PIK Notes or the New Senior Secured Notes so specified to be
distributed pursuant to the Plan will be adjusted upward or downward to provide
for the distribution of the applicable New Secured PIK Notes or the New Senior
Secured Notes in an aggregate principal amount equal to such sum. No
consideration will be provided in lieu of principal amounts that are rounded
down.
(b) Notwithstanding any other provision of the Plan, only whole
numbers of shares of New Common Stock, and whole numbers of New Warrants and New
Options will be issued. When any distribution on account of an Allowed Claim or
an Allowed Interest would otherwise result in the issuance of a number of shares
of New Common Stock or a number of New Warrants or New Options that is not a
whole number, the actual distribution of shares of such stock, warrants or
options will be rounded to the next higher or lower whole number as follows: (i)
fractions equal to or greater than 2 will be rounded to the next higher whole
number and (ii) fractions less than 2 will be rounded to the next lower number.
The total number of shares of New Common Stock, New Warrants or New Options
specified to be distributed to a Class of Claims or Interests will be adjusted
as necessary to account for the rounding provided for herein. If, as a result of
such rounding, the amount of shares of New Common Stock or the amount of New
Warrants to be distributed to a particular Class differs from the aggregate
number of shares of New Common Stock, New Warrants or New Options specified to
be distributed pursuant to the Plan to that Class, the aggregate number of
shares of New Common Stock or the amount of New Warrants or New Options
specified with respect to such Class will be adjusted upward or downward to
provide for the appropriate distribution of New Common Stock, New Warrants or
New Options, as the case may be. No consideration will be provided in lieu of
fractional shares, warrants or options that are rounded down. In addition,
notwithstanding the foregoing, no de minimis distribution shall be made as
provided in Section 14.17 of this Plan.
6.3.10 SURRENDER OF CANCELED INSTRUMENTS OR SECURITIES.
(a) As a condition precedent to receiving any distribution
pursuant to the Plan on account of an Allowed Claim or an Allowed Interest
evidenced by the notes, instruments, securities or other documentation canceled
pursuant to the Plan, the Holder of such Claim or Interest must tender the
applicable notes, instruments, securities or other documentation evidencing such
Claim or Interest to Reorganized PHI or its designated agent, or the Old
Indenture Trustee, as applicable. Any Cash or Plan Securities to be distributed
pursuant to the Plan on account of any such Claim or Interest will, pending such
surrender, be treated as an undeliverable distribution pursuant to Section 6.3.6
hereof.
(b) Except as provided in Section 6.3.10(c) hereof, each Holder
of an Allowed Claim or an Allowed Interest will tender its Old Security to
Reorganized PHI or its designated agent or the Old Indenture Trustee, as
applicable, together with a letter of transmittal to be provided to such Holder
by Reorganized PHI or its designated agent, or the Old Indenture Trustee as
promptly
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as practicable following the Effective Date. The letter of transmittal will
include, among other provisions, customary provisions with respect to the
authority of the Holder of the applicable Old Security to act and the
authenticity of any signatures required thereon. All surrendered Old Securities
will be marked as canceled by Reorganized PHI or its designated agent, or the
Old Indenture Trustee, as applicable, and delivered to Reorganized PHI.
(c) In addition to any requirements under the applicable Old
Indenture, any Holder of a Claim or Interest evidenced by an Old Security that
has been lost, stolen, mutilated or destroyed will, in lieu of surrendering such
Old Security, deliver to Reorganized PHI or its designated agent or the Old
Indenture Trustee, as applicable: (i) evidence satisfactory to such Entity of
such loss, theft, mutilation or destruction and (ii) such security or indemnity
as may be required by such Entity to hold such Entity harmless from any damages,
liabilities or costs incurred in treating such individual as a Holder of an Old
Security. Upon compliance with this Section 6.3.10(c) by a Holder of a Claim or
an Interest evidenced by an Old Security, such Holder will, for all purposes
under the Plan, be deemed to have surrendered an Old Security.
(d) Any Holder of an Old Security that fails to surrender or be
deemed to have surrendered such Old Security within one year after the Effective
Date will have its claim for a distribution pursuant to the Plan on account of
such Old Security discharged and will be forever barred from asserting any such
claim against the Debtors, Reorganized PHI, the other Reorganized Debtors or
their respective property.
6.3.11 SETOFF. Reorganized PHI may, but shall not be required to, set
off against any Allowed Claim and the distributions to be made pursuant to the
Plan on account of such Claim, claims of any nature that the Debtors or
Reorganized PHI may have against the Holder of such Allowed Claim; PROVIDED,
HOWEVER, that neither the failure to effect such a setoff nor the allowance of
any Claim against the Debtors or Reorganized PHI shall constitute a waiver or
release by the Debtors or Reorganized PHI of any claim that the Debtors or
Reorganized PHI may possess against such Holder.
6.4 INDENTURE TRUSTEE CHARGING LIENS. In full satisfaction of Allowed
Claims secured by Indenture Trustee Charging Liens, the Old Indenture Trustee
will receive from Reorganized PHI Cash equal to the amount of such Claims, and
any Indenture Trustee Charging Liens will be released. Distributions received by
Holders of Allowed Claims pursuant to the Plan will not be reduced on account of
payment of Allowed Claims secured by Indenture Trustee Charging Liens.
Notwithstanding any other provisions of the Plan, upon: (a) submission of
appropriate documentation to Reorganized PHI regarding fees and expenses
incurred by the Old Indenture Trustee in connection with the Chapter 11 Cases
through the Effective Date that are secured by an Old Indenture Trustee Charging
Lien and (b) the failure of Reorganized PHI to object on the grounds of
reasonableness, as determined under the terms of the applicable Old Senior
Subordinated Notes Indenture, to the payment of such fees and expenses within 20
Business days after receipt of such documentation, the Old Indenture Trustee
will be deemed to hold an Allowed Claim for such fees and expenses, which
Reorganized PHI will pay in Cash within 30 Business Days after the receipt of
the documentation regarding the fees and expenses of such Old Indenture Trustee,
without further Bankruptcy Court approval.
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6.5 RETIREE BENEFITS. On and after the Effective Date, to the extent
required by Section 1129(a)(13) of the Bankruptcy Code, Reorganized PHI shall
continue to pay all retiree benefits (if any), as the term "retiree benefits" is
defined in Section 1114(a) of the Bankruptcy Code, maintained or established by
the Debtors prior to the Confirmation Date.
6.6 EXEMPTIONS FROM SECURITIES LAWS AND REGISTRATION RIGHTS.
(a) The Confirmation Order will provide that the offer and sale of
those Plan Securities that are issued in exchange for a Claim against, an
interest in, or an Administrative Claim against the Debtors, or principally in
such exchange and partly for cash or property, are exempt from registration
pursuant to Section 1145(a) of the Bankruptcy Code and that those Plan
Securities may be resold by the holders thereof without restriction, except to
the extent that any such holder is deemed to be an "underwriter," as defined in
Section 1145(b)(1) of the Bankruptcy Code with respect to those Plan Securities.
(b) Plan Securities issued to the New Money Investors, or to a
purchaser of the New Senior Secured Notes, or to any other Entity that is not
exchanging Claims or Interests for such securities, shall be issued pursuant to
the exemption provided by Section 4(2) of the Securities Act.
(c) Reorganized PHI, the New Money Investors and certain other
holders of Plan Securities, if any, who may be deemed to be "underwriters" as
defined in Section 1145(b)(1) of the Bankruptcy Code or under the Securities Act
with respect to the Plan Securities shall enter into a Registration Rights
Agreement, substantially in the form filed as Exhibit "12" to this Plan at or
prior to the Confirmation Hearing. The Registration Rights Agreement requires
Reorganized PHI to use its reasonable best efforts to file within 90 days after
the Effective Date, or such longer time as may be required to prepare the
necessary financial statements, at its expense, a "shelf" registration statement
(the "Shelf Registration Statement"), and to have the Shelf Registration
Statement declared effective as soon as practicable after such filing and to
keep the Shelf Registration Statement continuously effective until the second
anniversary date of the effective date thereof. No securities other than the
New Common Stock, the New Senior Secured Notes, the New Secured PIK Notes and
the New Warrants, in each instance held by the New Money Investors or an Entity
deemed to be an "underwriter", shall be included in the Shelf Registration
Statement. Reorganized PHI shall also, if necessary, supplement or make
amendments to the Shelf Registration Statement to the extent necessary to keep
the Shelf Registration Statement effective as aforesaid.
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ARTICLE VII
ACCEPTANCE OR REJECTION OF THE PLAN
7.1 CLASSES ENTITLED TO VOTE. Only Holders of an Allowed Claim in Class
5 or Class 6 under the Plan shall be entitled to vote separately to accept or
reject the Plan. Each Holder of a Claim or Interest in a Class of Claims or
Interests which is unimpaired under the Plan, including Class 1, Class 2, Class
3, Class 4, Class 7, Class 10 and Class 11 shall be presumed to have accepted
the Plan pursuant to Section 1126(f) of the Bankruptcy Code. Classes 8 and 9
shall be presumed to have rejected the Plan pursuant to Section 1126(g) of the
Bankruptcy Code.
7.2 CLASS ACCEPTANCE REQUIREMENT. An impaired Class of Claims shall
have accepted the Plan if (i) the Holders (other than any Holder designated
under Section 1126(e) of the Bankruptcy Code) of at least two-thirds in dollar
amount of the Allowed Claims actually voting in such Class have voted to accept
the Plan and (ii) the Holders (other than any Holder designated under Section
1126(e) of the Bankruptcy Code) of more than one-half in number of the Allowed
Claims actually voting in such Class have voted to accept the Plan.
7.3 CONFIRMATION NOTWITHSTANDING REJECTION OF PLAN BY AN IMPAIRED
CLASS. If any impaired Class or Classes of Claims or Interests shall not accept
the Plan, the Debtors request that the Bankruptcy Court confirm the Plan in
accordance with Section 1129(b) of the Bankruptcy Code. In addition, the Debtors
reserve the right to modify the Plan pursuant to the provisions of Section 14.13
of the Plan to provide treatment sufficient to assure that the Plan does not
discriminate unfairly, and is fair and equitable, with respect to the Class or
Classes not accepting the Plan and, in particular, the treatment necessary to
meet the minimum requirements of Sections 1129(a) and (b) of the Bankruptcy Code
with respect to the rejecting Classes and any other Classes affected by such
modifications; PROVIDED, HOWEVER, that the Debtors shall not modify the Plan to
(i) reduce the distributions to be made to any of Classes 1, 2, 3, 4, 5, 6, 7,
10 or 11; or (ii) increase the distributions to be made to any Class, without
first having obtained the consent of the Creditors' Committee.
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ARTICLE VIII
PROCEDURE FOR RESOLVING DISPUTED CLAIMS
8.1 UNIMPAIRED CLAIMS GENERALLY. The amount of any Allowed Unimpaired
Claim including the rights, if any, of the Holder of any such Claim that has
properly Filed a proof of Claim on or prior to the Bar Date, or any other date
determined by the Bankruptcy Court with respect to such Claim, to payment in
respect thereof shall (a) be determined, (i) in the event that no objection to,
or request for estimation with respect to, such Claim is Filed in accordance
with Section 8.3 hereof, by any court of competent jurisdiction other than the
Bankruptcy Court in the manner in which the amount of such Claim and the rights
of the Holder of such Claim would have been resolved and adjudicated if these
Chapter 11 Cases had not been commenced or (ii) in the event that an objection
to, or request for estimation with respect to, such Claim is Filed in accordance
with Section 8.3 hereof, by the Bankruptcy Court, (b) except as otherwise
provided in Section 8.1(a)(ii) hereof, survive the Effective Date and
consummation of the Plan as if the Chapter 11 Cases had not been commenced, and
(c) not be discharged pursuant to Section 1141 of the Bankruptcy Code. In order
to carry out the foregoing provisions of the Plan, the Debtors, Reorganized PHI
and the Holders of Unimpaired Claims that have properly Filed a proof of Claim
on or prior to the Bar Date, shall have, among other rights and obligations, the
following rights and obligations:
8.1.1 DEBTOR ACTIONS; RESERVATION OF RIGHTS. Except to the extent that
an objection to, or a request for estimation with respect to an Unimpaired Claim
has been filed in accordance with Section 8.3 hereof, the Holder of such Claim
shall be entitled, after the Effective Date, to commence any action or
proceeding against Reorganized PHI, or to continue any action or proceeding
against any of the Debtors, to determine the amount of its Claim in any court of
competent jurisdiction.
8.1.2 CREDITOR ACTIONS. The Debtors or Reorganized PHI, as the case may
be, may at any time before or after the Confirmation Date and before or after
the Effective Date, dispute, defend against or otherwise oppose, in accordance
with bankruptcy or nonbankruptcy law, any such Unimpaired Claim (other than any
such Claim to the extent allowed by Final Order of the Bankruptcy Court or the
Confirmation Order) without taking any formal action either in or out of court
(except as otherwise required by bankruptcy or nonbankruptcy law). Reorganized
PHI shall retain, in addition to all claims, rights and causes of action
retained by Reorganized PHI pursuant to Section 14.5 of the Plan, all defenses,
at law or in equity, to any and all Unimpaired Claims (other than any such Claim
to the extent allowed by Final Order of the Bankruptcy Court or the Confirmation
Order).
8.2 REJECTION CLAIMS. Any Rejection Claim not barred pursuant to the
provisions of Section 9.2 of the Plan shall be an Allowed Claim in the amount
set forth in the Filed proof of Claim evidencing such Claim unless an objection
is Filed to such Claim not later than sixty (60) days after the Effective Date
or such later time ordered by the Bankruptcy Court without need for notice and
hearing. Upon the Filing of any such objection, the amount of the Allowed
Rejection Claim, if any, shall be determined by the Bankruptcy Court unless it
shall have sooner become an Allowed Claim.
8.3 DISPUTED CLAIMS. The amount of any Claim which is a Disputed Claim
and the rights
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of the Holder of such Claim, if any, to payment in respect thereof shall be
determined by the Bankruptcy Court, unless it shall have sooner become an
Allowed Claim. Unless otherwise ordered by the Bankruptcy Court, all objections
to Claims (other than as provided in Section 4.1 hereof) and Interests shall be
Filed and served upon the Holder of such Claim or Interest no later than sixty
(60) days after the Effective Date; PROVIDED, HOWEVER, that, unless otherwise
ordered by the Bankruptcy Court, any of the Debtors, or Reorganized PHI shall be
entitled to File an objection to any Claim Filed after the Bar Date, including,
without limitation, any Claim Filed by a governmental unit pursuant to Section
502(b)(9) of the Bankruptcy Code, on or prior to the later of (i) sixty (60)
days after the Effective Date and (ii) sixty (60) days after the service of such
Claim on any of the Debtors or Reorganized PHI.
8.4 AUTHORITY TO OPPOSE CLAIMS. On and after the Effective Date, except
as the Bankruptcy Court may otherwise order, Reorganized PHI shall have the
exclusive right to make, prosecute and settle any objections to Claims or
Interests.
8.5 TREATMENT OF DISPUTED CLAIMS AND DISPUTED INTERESTS.
Notwithstanding any other provisions of the Plan, no payments or distributions
shall be made on account of a Disputed Claim until such Claim or Interest
becomes an Allowed Claim or an Allowed Interest, as the case may be.
ARTICLE IX
EXECUTORY CONTRACTS
9.1 GENERAL TREATMENT. If the Effective Date occurs, all executory
contracts and unexpired leases of the Debtors designated for assumption under
the Plan, or at or prior to the Confirmation Hearing, shall be assumed by
Reorganized PHI or the applicable other Reorganized Debtor as of the
Confirmation Date. All other executory contracts or unexpired leases shall be
deemed rejected as of the Confirmation Date.
9.2 BAR TO REJECTION DAMAGES. If the rejection of an executory contract
or unexpired lease by the Debtors results in damages to the other party or
parties to such contract or lease, a Claim for such damages, if not previously
evidenced by a Filed proof of Claim or barred by a Final Order, shall be forever
barred and shall not be enforceable against the Debtors, Reorganized PHI, the
other Reorganized Debtors or their properties or agents, successors, or assigns,
unless a proof of Claim relating thereto is Filed with the Bankruptcy Court
within thirty (30) days after the later of (i) the entry of a Final Order
authorizing such rejection and (ii) the Effective Date, or within such shorter
period as may be ordered by the Bankruptcy Court.
9.3 CURE OF DEFAULTS FOR EXECUTORY CONTRACTS AND UNEXPIRED LEASES. Each
executory contract and unexpired lease to be assumed pursuant to the Plan shall
be reinstated and rendered unimpaired in accordance with Sections 1124(2) and
365(b)(1) of the Bankruptcy Code, or in accordance with the applicable Landlord
Settlement Agreement or any other agreement that is approved by the Bankruptcy
Court. In connection therewith, the Debtors shall cure or provide adequate
assurance that they will cure any monetary default (other than of the kind
specified in
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Section 365(b)(2) of the Bankruptcy Code), by payment of the default amount in
Cash on the Effective Date (or on such other terms as the parties to such
executory contract or unexpired lease may otherwise agree), compensate, or
provide adequate assurance that the Debtors will promptly compensate parties
other than the Debtors to such contract or lease for any actual pecuniary loss
to such parties resulting from such default, and provide adequate assurance of
future performance under such contract or lease. In the event of a dispute
regarding: (i) the amount of any cure payments, (ii) the ability of Reorganized
PHI, the other Reorganized Debtors or any of their assignees to provide
"adequate assurance of future performance" (within the meaning of Section 365 of
the Bankruptcy Code) under the contract or lease to be assumed, or (iii) any
other matter pertaining to assumption, the cure payments or performance required
by Section 365(b)(1) of the Bankruptcy Code shall be made following the entry of
a Final Order resolving the dispute and approving the assumption.
ARTICLE X
CONDITIONS TO CONFIRMATION AND THE
OCCURRENCE OF THE EFFECTIVE DATE
10.1 CONDITIONS TO CONFIRMATION. Confirmation of this Plan is
conditioned upon the occurrence of the following, or waiver of the following,
conditions jointly by the Debtors and the Creditors' Committee:
(a) PHI shall have Filed with the Bankruptcy Court a
fully-executed agreement with the New Money Investors for the acquisition of
New Class B Common Stock on terms consistent with this Plan;
(b) PHI shall have Filed with the Bankruptcy Court a
fully-executed agreement for the acquisition by Bay Harbour Management, L.C. or
one or more other parties of the New Senior Secured Notes for up to $25 million
on terms consistent with this Plan or evidence of other financing as necessary
to implement the Plan on terms acceptable to the Debtors and the Creditors'
Committee;
(c) The Plan shall have been accepted by not less than two-thirds
in amount and a majority in number of the Holders of the Claims in Class 5 (Old
Senior Subordinated Notes) entitled to vote and that do vote on the Plan;
(d) A Confirmation Order in form and substance acceptable to the
Debtors and the Creditors' Committee shall have been Filed with and signed by
the Bankruptcy Court; and
(e) No material alterations to the Plan as Filed shall be required
by the Bankruptcy Court, unless consented to by the Debtors.
10.2 CONDITIONS TO THE OCCURRENCE OF THE EFFECTIVE DATE. This Plan
shall not be consummated and the Effective Date shall not occur unless and until
each of the following
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conditions have been satisfied or, if waivable, waived jointly by the Debtors
and the Creditors' Committee:
(a) All fees payable pursuant to Section 1930 of Title 28 of the
United States Code, as determined by the Bankruptcy Court at the Confirmation
Hearing, shall have been paid;
(b) The provisions of the Plan and all exhibits thereto shall be
reasonably satisfactory to the Debtors and the Creditors' Committee;
(c) The Confirmation Order shall have become a Final Order;
(d) The Effective Date shall have occurred no later than
February 29, 2000; and
(e) All actions and documents necessary to implement the
provisions of this Plan shall have been effected, executed or duly provided for
in a manner reasonably satisfactory to the Debtors and the Creditors' Committee.
ARTICLE XI
EFFECTS OF CONFIRMATION AND EFFECTIVENESS OF PLAN
11.1 DISCHARGE OF CLAIMS. Except as otherwise provided herein or in the
Confirmation Order, on the Effective Date: (i) the rights afforded in the Plan
and the payments and distributions to be made hereunder shall discharge all
existing debts and Claims of any kind, nature, or description whatsoever against
the Debtors, any of their assets or properties or any property dealt with under
the Plan to the extent permitted by Section 1141 of the Bankruptcy Code; (ii)
all existing Claims against the Debtors shall be and shall be deemed to be
discharged; (iii) all obligations of the Debtors, directly or as guarantors,
under the SunTrust Agreements and the Old Senior Subordinated Notes Indenture,
shall be deemed released, discharged and satisfied; and (iv) all Holders of
Claims and Interests shall be precluded from asserting against the Debtors, any
of their assets or properties, or any property dealt with under the Plan, any
other or further Claim based upon any act or omission, transaction, or other
activity of any kind or nature that occurred prior to the Confirmation Date,
whether or not such Holder Filed a proof of Claim.
11.2 DISCHARGE OF DEBTORS. Except as otherwise provided herein, any
consideration distributed to Creditors under the Plan shall be in exchange for
and in complete satisfaction, discharge, and release of all Claims of any nature
whatsoever against the Debtors or any of their assets or properties; and, except
as otherwise provided herein, upon the Effective Date, the Debtors shall be
deemed discharged and released to the extent permitted by Section 1141 of the
Bankruptcy Code from any and all Claims, including but not limited to demands
and liabilities that arose before the Confirmation Date, and all debts of the
kinds specified in Sections 502(g), 502(h) or 502(i) of the Bankruptcy Code,
whether or not (i) a proof of Claim based upon such debt is Filed or deemed
Filed under Section 501 of the Bankruptcy Code; or (ii) the Holder of a Claim
based upon such debt has accepted the Plan. Except as provided herein and
therein, the Confirmation Order shall be a
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judicial determination of discharge of all liabilities of the Debtors. As
provided in Section 524 of the Bankruptcy Code, such discharge shall void any
judgment against the Debtors at any time obtained to the extent it relates to a
Claim discharged, and operates as an injunction against the commencement or
continued prosecution of any action against the Debtors, Reorganized PHI, the
other Reorganized Debtors, or any of their respective properties, to the extent
it relates to a Claim discharged.
11.3 SURVIVAL OF INDEMNIFICATION CLAIMS AND OBLIGATIONS.
Notwithstanding any other provision of this Plan, all existing provisions of the
By-Laws, the Old Senior Subordinated Notes Indenture or other applicable laws,
corporate documents or agreements of the Debtors or any Foreign Subsidiary or
Domestic Subsidiary providing for the indemnification of current or former
officers or directors of any of the Debtors, or the Old Indenture Trustee, and
all Claims of such officers, directors or the Old Indenture Trustee, under the
by-laws of such Debtor, the Old Senior Subordinated Notes Indenture or other
applicable law, corporate documents or agreements shall expressly survive
Confirmation of the Plan and be binding on and enforceable against Reorganized
PHI irrespective of whether indemnification is owed in connection with an event
occurring before, on or after the Petition Date.
11.4 TERMINATION OF CLAIMS OF CONTRACTUAL SUBORDINATION AGAINST HOLDERS
OF OLD SENIOR SUBORDINATED NOTES CLAIMS. Provided that (i) the Bankruptcy Court
shall have entered the Confirmation Order and (ii) the Effective Date shall have
occurred, all rights, actions or causes of action between or among Holders of
"senior indebtedness" (as defined in the Old Senior Subordinated Notes
Indenture) and Holders of Old Senior Subordinated Notes Claims based upon any
claimed right to contractual subordination shall be satisfied, terminated, void
and of no further force or effect as of the Effective Date so that,
notwithstanding any such rights, actions or causes of action, each Holder of Old
Senior Subordinated Notes Claims shall have the rights and benefits of the
distributions provided in this Plan.
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ARTICLE XII
RELEASES AND INJUNCTIONS
12.1 RELEASES. On the Effective Date, Reorganized PHI and the other
Reorganized Debtors shall be deemed to release unconditionally, and hereby are
deemed to release unconditionally on such date (i) each present or former
officer, director, shareholder, employee, consultant, attorney, accountant and
other representatives of the Debtors, the Domestic Subsidiaries and the Foreign
Subsidiaries, PROVIDED, HOWEVER, that in no event shall the Reorganized Debtors
be deemed to have released any Releasee that asserts a Disputed Claim against
the Debtors or the Reorganized Debtors from any claim, counter claim, defense or
offset that may be asserted in connection with such claim; (ii) the Creditors'
Committee and, solely in their capacity as members or representatives of the
Creditors' Committee each consultant, attorney, accountant or other
representative or member (and each of such member's respective officers,
directors, shareholders, employees, consultants, attorneys, accountants and
other representatives) of the Creditors' Committee, and (iii) the Holders of Old
Senior Subordinated Notes Claims that are or were at any time members of the
Unofficial Noteholders' Committee and, solely in their capacity as
representatives of such Holders, each of such Holder's respective officers,
directors, shareholders, employees, consultants, attorneys, accountants and
other representatives as well as attorneys and financial advisors to the
Unofficial Noteholders' Committee, and their officers, directors, shareholders
and employees (the Entities specified in clauses (i), (ii) and (iii) are
referred to collectively as the "Releasees"), from any and all claims,
obligations, suits, judgments, damages, rights, causes of action and liabilities
whatsoever, whether known or unknown, foreseen or unforeseen, existing or
hereafter arising, in law, equity or otherwise, based in whole or in part upon
any act or omission, transaction, event or other occurrence taking place on or
prior to the Effective Date in any way relating to the Chapter 11 Cases or the
Plan, except that no Releasees shall be released from acts or omissions which
are the result of gross negligence or willful misconduct.
On the Effective Date, each Holder of a Claim or Interest shall be
deemed to have released unconditionally, and hereby is deemed to release
unconditionally on such date, the Releasees, from any and all rights, claims,
causes of action, obligations, suits, judgments, damages and liabilities
whatsoever which any such Holder may be entitled to assert, whether known or
unknown, foreseen or unforeseen, existing or hereafter arising, in law, equity
or otherwise, based in whole or in part upon any act or omission, transaction,
event or other occurrence taking place on or before the Effective Date in any
way relating to Reorganized PHI, the other Reorganized Debtors, the Chapter 11
Cases or the Plan, except that no Releasees shall be released from acts or
omissions which are the result of gross negligence or willful misconduct.
If and to the extent that the Bankruptcy Court concludes that the Plan
cannot be confirmed with any portion of the foregoing releases, then the Debtors
reserve the right to amend the Plan so as to give effect as much as possible to
the foregoing releases, or to delete them.
12.2 NO LIABILITY FOR SOLICITATION OR PARTICIPATION. As specified in
Section 1125(e) of the Bankruptcy Code, Entities that solicit acceptances or
rejections of the Plan and/or that participate in the offer, issuance, sale or
purchase of securities offered or sold under the Plan, in good faith and
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in compliance with the applicable provisions of the Bankruptcy Code, are not
liable, on account of such solicitation or participation, for violation of any
applicable law, rule or regulation governing the solicitation of acceptances or
rejections of the Plan or the offer, issuance, sale or purchase of securities in
connection therewith.
12.3 LIMITATION OF LIABILITY. Neither the Debtors, Reorganized PHI, the
other Reorganized Debtors, nor any of their respective employees, officers,
directors, agents, or representatives, nor any Professionals employed by any of
them, nor the Creditors' Committee or any of its members, agents,
representatives, or professional advisors, shall have or incur any liability to
any Entity for any act taken or omission made in good faith in connection with
or related to formulating, implementing, confirming or consummating the Plan, or
any contract, instrument, release, or other agreement or document created in
connection with the Plan.
12.4 GENERAL INJUNCTION. Except as provided herein or in the
Confirmation Order, from and after the Effective Date, all Entities who received
or are Holders of Plan Securities and all Holders of Claims against or Interests
in the Estates are permanently restrained and enjoined after the Confirmation
Date (i) from commencing, continuing, or taking any act, to enforce against any
of the Debtors or any Foreign Subsidiary or Domestic Subsidiary or any officer,
director or employee of any of the Debtors any right, claim or cause of action
arising under or related to any Old Security or any claim from enforcing,
attaching, collecting or recovering by any manner or means, any judgment, award,
decree or order against any Debtor or any Foreign Subsidiary or Domestic
Subsidiary or any right, claim or cause of action arising under or related to
any Old Security or any claim, (ii) from creating, perfecting or enforcing any
encumbrance of any kind against any Debtor or any Foreign Subsidiary or Domestic
Subsidiary or any right, claim or cause of action arising under or related to
any Old Security or any claim, (iii) from asserting any setoff, right of
subrogation, indemnification, contribution or recoupment of any kind against any
obligation due any Debtor or any Foreign Subsidiary or Domestic Subsidiary, or
any right, claim or cause of action arising under or related to any Old Security
or any claim, and (iv) from performing any act, in any manner, in any place
whatsoever, that does not conform to or comply with the provisions of the Plan
and orders of the Bankruptcy Court; PROVIDED, HOWEVER, that each Holder of a
Claim or Interest may, to the extent permitted by and in accordance with the
provisions of the Plan, commence or continue any action or proceeding to
determine the amount of its Claim or Interest in the Bankruptcy Court or any
other court of competent jurisdiction, and all Holders of Claims or Interests
shall be entitled to enforce their rights under the Plan and the Plan Documents,
provided further, however, that nothing in the Plan shall restrain and enjoin
all Entities who received or are Holders of Plan Securities and all Holders of
Claims against and Interests in the Estates from taking any action to enforce
liability arising from acts or omissions which are the result of gross
negligence or willful misconduct.
12.5 SECTION 346 INJUNCTION. In accordance with Section 346 of the
Bankruptcy Code, for purposes of any state or local law imposing a tax, income
will not be realized by the Estates, the Debtors or Reorganized PHI by reason of
the forgiveness or discharge of indebtedness resulting from the Chapter 11
Cases. As a result each state or local taxing authority is permanently enjoined
and restrained, after the Confirmation Date, from commencing, continuing or
taking any act to impose, collect or recover in any manner any tax against any
Debtor, Reorganized PHI or the other
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Reorganized Debtor, arising by reason of the forgiveness or discharge of
indebtedness of any such Entity under the Plan.
ARTICLE XIII
RETENTION OF JURISDICTION
13.1 SCOPE OF JURISDICTION. Pursuant to Sections 1334 and 157 of Title
28 of the United States Code, notwithstanding occurrence of the Effective Date
or substantial consummation of the Plan, the Bankruptcy Court shall retain and
have jurisdiction from and after the Confirmation Date of all matters arising
in, arising under, and related to the Chapter 11 Cases and the Plan pursuant to,
and for the purposes of, Sections 105(a) and 1142 of the Bankruptcy Code and
for, among other things, the following purposes:
13.1.1 To hear and determine any and all adversary proceedings,
applications or contested matters pending on the Effective Date or brought after
the Effective Date including, but not limited to, Avoidance Actions, if any;
13.1.2 To hear and determine any and all applications for substantial
contribution and for compensation and reimbursement of expenses Filed in
accordance with the Plan;
13.1.3 To hear and determine Rejection Claims, disputes arising from
the assumption and assignment of executory contracts and unexpired leases, and
Disputed Claims which are Impaired Claims or which are held by Holders of
Unimpaired Claims;
13.1.4 To hear and determine, pursuant to the provisions of Section 505
of the Bankruptcy Code, all issues related to the liability of a Debtor for any
tax incurred prior to the Effective Date;
13.1.5 To enforce the provisions of the Plan and to determine any and
all disputes under the Plan;
13.1.6 To enter and implement such orders as may be appropriate in the
event Confirmation is for any reason stayed, reversed, revoked, modified or
vacated;
13.1.7 To modify any provision of the Plan to the extent permitted by
the Bankruptcy Code and to correct any defect, cure any omission or reconcile
any inconsistency in the Plan or the Confirmation Order as may be necessary to
carry out the purposes and intent of the Plan;
13.1.8 To enter such orders as may be necessary or appropriate in
furtherance of consummation and implementation of the Plan;
13.1.9 To determine the allowance of Claims and Interests as provided
in the Plan; and
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13.1.10 To enter an order closing the Chapter 11 Cases.
13.2 FAILURE OF THE BANKRUPTCY COURT TO EXERCISE JURISDICTION. If the
Bankruptcy Court abstains from exercising, or declines to exercise, jurisdiction
or is otherwise without jurisdiction over any matter arising in, arising under,
or related to the Chapter 11 Cases, this Article XIII shall have no effect upon
and shall not control, prohibit, or limit the exercise of jurisdiction by any
other court having jurisdiction with respect to such matter.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 COMPLIANCE WITH TAX REQUIREMENTS. In connection with the Plan, the
Debtors, Reorganized PHI, the other Reorganized Debtor, the Collateral Agent,
and the Old Indenture Trustee shall comply with all applicable withholding and
reporting requirements imposed by federal, state, local and foreign taxing
authorities, and all distributions hereunder shall be subject to such
withholding and reporting requirements. Creditors may be required to provide
certain tax information as a condition to receipt of distributions pursuant to
the Plan. Notwithstanding any other provision of the Plan, each Entity receiving
a distribution pursuant to the Plan will have sole and exclusive responsibility
for the satisfaction and payment of any tax obligations imposed by any
governmental unit, including income, withholding and other tax obligations, on
account of such distribution.
14.2 DISCHARGE OF OLD INDENTURE TRUSTEE. Subsequent to the performance
of the Old Indenture Trustee, or its agents, of their duties and obligations
under the provisions of the Plan and the Confirmation Order, if any, and under
the terms of the Old Senior Subordinated Notes Indenture, such Old Indenture
Trustee and its agents shall be relieved, discharged and released from all
obligations, claims, rights, demands and causes of action associated with or
arising from such Old Senior Subordinated Notes Indenture. The Confirmation
Order shall enjoin from and after the Effective Date the prosecution, whether
directly, derivatively or otherwise, of any claim, debt, right, cause of action
or liability released or to be released pursuant to this Section 14.2.
14.3 POST-EFFECTIVE DATE FEES AND EXPENSES OF PROFESSIONALS.
Reorganized PHI shall, in the ordinary course of business and without the
necessity for any approval by the Bankruptcy Court (except as may be required by
Section 1129(a)(4) of the Bankruptcy Code), pay the reasonable fees and
reasonable expenses of the Professionals related to implementation and
consummation of the Plan that are incurred after the Effective Date; PROVIDED,
HOWEVER, that no such fees and expenses shall be paid except upon receipt by
Reorganized PHI of a detailed written invoice from the Professional seeking
compensation and expense reimbursement and PROVIDED, FURTHER, HOWEVER, that
Reorganized PHI may, within ten (10) business days after receipt of an invoice
for fees and expenses, object to some or all of any such invoice, and if the
dispute cannot be resolved with the Professional seeking compensation, then
either party may request that the Bankruptcy Court determine the reasonableness
of such fees and expenses.
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14.4 VESTING OF PROPERTY OF THE DEBTORS. Except as otherwise provided
in the Plan (including any Plan Document) or any other indentures, instruments
or agreements to be executed and delivered pursuant to the Plan or the
Confirmation Order, upon the Effective Date, all property of the Consolidated
Estates, wherever situated, shall vest in Reorganized PHI or the other
Reorganized Debtors, as applicable, and shall be retained by Reorganized PHI or
the other Reorganized Debtors, as applicable, or distributed to Creditors or
Interest Holders as provided in the Plan. On the Effective Date, all property of
the Consolidated Estates, whether retained by Reorganized PHI or the other
Reorganized Debtors, as applicable, or distributed to Creditors or Interest
Holders, shall be free and clear of all Claims, Liens, Encumbrances and
Interests, except the Claims, Liens, Encumbrances and Interests of Creditors and
Holders of Interests expressly provided for in the Plan (including in any Plan
Document).
14.5 CAUSES OF ACTION. Except as otherwise provided in the Plan, or in
any contract, instrument, release, or other agreement entered into in connection
with the Plan, in accordance with Section 1123(b) of the Bankruptcy Code,
Reorganized PHI shall retain and may enforce any claims, rights and causes of
action that any of the Consolidated Debtors or the Consolidated Estates may hold
against any entity including, without limitation, any Avoidance Actions or any
claims, rights or causes of action arising under any similar provisions of state
law, or any other statute or legal theory. Reorganized PHI or any successor may
pursue those rights of action, as appropriate, in accordance with what is in the
best interests of Reorganized PHI or any successor holding such rights of
action.
14.6 ASSUMPTION OF LIABILITIES. The liability for and obligation to
make the distributions required under the Plan shall be assumed by Reorganized
PHI, which shall have the liability for, and obligation to make, all
distributions of Cash, Plan Securities or other instruments to be issued by the
Debtors or Reorganized PHI.
14.7 OTHER DOCUMENTS AND ACTIONS. Without a further order of the
Bankruptcy Court, the Debtors and Reorganized PHI may execute such documents and
take such other action as is necessary to effectuate the transactions provided
for in the Plan. Each of the President, any Vice President, the Chief Financial
Officer, the Secretary, the Treasurer or other duly authorized representative of
each of the Debtors and of Reorganized PHI, is authorized to execute, deliver,
file, or record such contracts, instruments, releases, indentures and other
agreements or documents and take such actions as may be necessary or appropriate
to effectuate and further evidence the terms and conditions of the Plan and any
notes or securities issued pursuant to the Plan.
14.8 SECTION 1146 EXEMPTION. Pursuant to Section 1146(c) of the
Bankruptcy Code, (i) the issuance, transfer or exchange of any security under
the Plan or the making or delivery of any instrument of transfer pursuant to, in
implementation of, or as contemplated by the Plan, including any merger
agreements or agreements of consolidation, deeds, bills of sale or assignments
executed in connection with any of the transactions contemplated under the Plan
or the revesting, transfer or sale of any real or personal property of the
Debtors pursuant to, in implementation of, or as contemplated by the Plan, (ii)
the making, delivery, creation, assignment, amendment or recording of any note
or other obligation for the payment of money or any mortgage, deed of trust or
other security interest under, in furtherance of, or in connection with the
Plan, the issuance, renewal,
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modification or securing of indebtedness by such means, and (iii) the making,
delivery or recording of any deed or other instrument of transfer under, in
furtherance of, or in connection with, the Plan, including, without limitation,
the Confirmation Order, shall not be subject to any document recording tax,
stamp tax, conveyance fee or other similar tax, mortgage tax, real estate
transfer tax, mortgage recording tax or other similar tax or governmental
assessment. Consistent with the foregoing, each recorder of deeds or similar
official for any county, city or governmental unit in which any instrument
hereunder is to be recorded shall, pursuant to the Confirmation Order, be
ordered and directed to accept such instrument, without requiring the payment of
any documentary stamp tax, deed stamps, stamp tax, transfer tax, intangible tax
or similar tax.
14.9 BINDING EFFECT.
(a) From and after the Confirmation Date, the Plan shall be
binding upon and inure to the benefit of the Reorganized Debtors, Holders of
Claims, Holders of Interests, and their respective successors and assigns.
(b) If the Plan is not confirmed, the Plan shall be deemed null
and void and notwithstanding anything herein or in the Disclosure Statement to
the contrary nothing contained herein or in the Disclosure Statement shall be
deemed (i) to constitute a waiver or release of any Claims by the Debtors or any
other Entity, (ii) to prejudice in any manner the rights of the Debtors or any
other Entity, (iii) to constitute any admission by any of the Debtors, or any
other Entity, or (iv) to constitute any admission or concession regarding any
Claim or Interest.
14.10 GOVERNING LAW. Unless an applicable rule of law or procedure is
supplied by federal law (including the Bankruptcy Code and the Bankruptcy Rules)
or the Delaware Corporation Law, the internal laws of the State of Delaware
(without reference to conflict of laws principles) shall govern the construction
and implementation of the Plan and any agreements, documents, and instruments
executed in connection with the Plan or the Chapter 11 Cases, except as may
otherwise be provided in such agreements, documents, and instruments.
14.11 FILING OF ADDITIONAL DOCUMENTS. On or before the conclusion of
the Confirmation Hearing, the Debtors shall File such agreements and other
documents as may be necessary or appropriate to effectuate and further evidence
the terms and conditions of the Plan.
14.12 DISSOLUTION OF CREDITORS' COMMITTEE. On the Effective Date, the
Creditors' Committee shall dissolve and the members of the Creditors' Committee
shall be released and discharged from all further rights and duties arising from
or related to the Chapter 11 Cases. The Professionals retained by the Creditors'
Committee and the members thereof shall not be entitled to compensation or
reimbursement of expenses for any services rendered after the Effective Date,
except as specifically provided in the Plan, and for services rendered and
expenses incurred in connection with any applications for allowance of
compensation and reimbursement of expenses pending on the Effective Date or
Filed after the Effective Date pursuant to the Plan.
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14.13 AMENDMENTS AND MODIFICATIONS.
(a) The Debtors may, with the consent of the Creditors' Committee
and in accordance with Section 1127(a) of the Bankruptcy Code and Bankruptcy
Rule 3019, after hearing on notice to such Entities as are entitled to such
notice pursuant to Bankruptcy Rule 3019, amend or modify the Plan prior to the
entry of the Confirmation Order. No amendment or modification of Section 12.1 of
the Plan shall require any resolicitation of acceptances.
(b) After the entry of the Confirmation Order, PHI may, with the
consent of the Creditors' Committee and in accordance with Section 1127(b) of
the Bankruptcy Code, amend or modify this Plan, or remedy any defect or omission
or reconcile any inconsistency in the Plan in such manner as may be necessary to
carry out the purpose and intent of the Plan, and after the Effective Date the
parties to any Plan Document may amend or modify any such Plan Document pursuant
to the terms thereof without notice to any Entity not entitled to receive notice
under such Plan Document and without an order from the Bankruptcy Court.
14.14 REVOCATION. The Debtors reserve the right to revoke and withdraw
the Plan prior to Confirmation. If the Debtors revoke or withdraw the Plan
pursuant to this Section 14.14, then the Plan shall be deemed null and void and,
in such event, the provisions of Section 14.9(b) shall apply.
14.15 SEVERABILITY. Should any provision in the Plan be determined to
be unenforceable, with the consent of the Debtors or Reorganized PHI, as
applicable, such provisions shall be deemed to be severed, and such
determination shall in no way limit or affect the enforceability and operative
effect of any other provisions of the Plan.
14.16 NOTICES. Any pleading, notice or other document required by the
Plan or the Confirmation Order to be served or delivered to the Debtors,
Reorganized PHI or the Creditors' Committee will be sent by overnight delivery
service, courier service or facsimile transmission to:
(a) Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, FL 32819
Attn: General Counsel
with copies to:
Lewis Kruger
Robin Keller
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038
(212) 806-5400 (phone)
(212) 806-6006 (fax)
40
<PAGE>
(COUNSEL TO THE DEBTORS)
(b) Myron Trepper
Steven Wilamowsky
Willkie Farr & Gallagher
153 East 53rd Street
New York, NY 10022
(212) 728-8000
(212) 728-8111
(COUNSEL TO THE OFFICIAL UNSECURED CREDITORS' COMMITTEE)
14.17 DE MINIMIS DISTRIBUTIONS. Notwithstanding any provision to the
contrary contained herein, no distribution of less than twenty-five dollars
($25) in Cash or less than 100 shares of New Common Stock or 10 New Warrants or
New Options shall be made to any Holder of an Allowed Claim or an Allowed
Interest. Such undistributed amount will be retained by Reorganized PHI, and in
the case of undistributed New Common Stock, held as treasury shares.
14.18 PLAN AND PLAN DOCUMENTS CONTROL. In the event and to the extent
that any provision of the Disclosure Statement is inconsistent with any
provision of the Plan or any Plan Document, the applicable provision of the Plan
or the applicable Plan Document shall control and take precedence. In the event
and to the extent that any provision of the Plan is inconsistent with any
provision of any Plan Document, the applicable provision of the applicable Plan
Document shall control and take precedence.
41
<PAGE>
CONFIRMATION REQUEST
Debtors hereby request Confirmation of the Plan pursuant to Section
1129(a) or, in the event the Plan is not accepted by each of those Classes of
Claims and Interests entitled to vote, Section 1129(b) of the Bankruptcy Code.
Dated: December 13, 1999
Orlando, Florida
Respectfully submitted,
PLANET HOLLYWOOD INTERNATIONAL, INC. COOL PLANET, INC.
By: By:
-------------------------------- ------------------------------
Name: Name:
Title: Title:
COOL PLANET II, INC. PLANET HOLLYWOOD (ASPEN), INC.
By: By:
-------------------------------- ------------------------------
Name: Name:
Title: Title:
PLANET HOLLYWOOD (ATLANTIC PLANET HOLLYWOOD (CHICAGO), INC.
CITY), INC.
By: By:
-------------------------------- -------------------------------
Name: Name:
Title: Title:
PLANET HOLLYWOOD (HONOLULU), INC. PLANET HOLLYWOOD (LP), INC.
By: By:
-------------------------------- -------------------------------
Name: Name:
Title: Title:
42
<PAGE>
PLANET HOLLYWOOD (NEW YORK PLANET HOLLYWOOD (NEW YORK), LTD.
CITY), INC.
By: By:
------------------------------- --------------------------------
Name: Name:
Title: Title:
PLANET HOLLYWOOD (ORLANDO), INC. PLANET HOLLYWOOD (PHOENIX), INC.
By: By:
------------------------------- --------------------------------
Name: Name:
Title: Title:
PLANET HOLLYWOOD (REGION I), INC. PLANET HOLLYWOOD (REGION II), INC.
By: By:
------------------------------ ---------------------------------
Name: Name:
Title: Title:
PLANET HOLLYWOOD (REGION III), INC. PLANET HOLLYWOOD (REGION IV),INC.
By: By:
------------------------------ ---------------------------------
Name: Name:
Title: Title:
PLANET HOLLYWOOD (REGION V), INC. PLANET HOLLYWOOD (REGION VI), INC.
By: By:
------------------------------ ---------------------------------
Name: Name:
Title: Title:
43
<PAGE>
PLANET HOLLYWOOD (REGION VII), INC. PLANET HOLLYWOOD (TEXAS), LTD.
By: By:
------------------------------ ---------------------------------
Name: Name:
Title: Title:
PLANET HOLLYWOOD (WAREHOUSE), INC. SOUND REPUBLIC, INC.
INC.
By: By:
------------------------------ ----------------------------------
Name: Name:
Title: Title:
SOUND REPUBLIC I, INC. ALL STAR CAFE INTERNATIONAL, INC.
By: By:
----------------------------- ----------------------------------
Name: Name:
Title: Title:
ALL STAR CAFE (NEW YORK), INC. EBCO MANAGEMENT, INC.
By: By:
---------------------------- ----------------------------------
Name: Name:
Title: Title:
44
<PAGE>
ANNEX A
SUMMARY TERMS OF NEW SENIOR SECURED NOTES
Issuer: Reorganized Planet Hollywood International, Inc. ("PHI")
Guarantors: All Operating Subsidiaries of PHI (together with PHI, the
"Company")
Principal Amount: Up to $25 million
Maturity: First or Second Anniversary of the Effective Date [subject
to the approval of the Senior Secured Notes purchaser].
Interest: Payable quarterly or semi-annually in arrears in cash at a
rate of 8% per annum, plus an applicable default interest
rate as may be negotiated.
Security: The New Senior Secured Notes shall be secured by liens on
substantially all of the Reorganized Company's assets except
that their liens on inventory, receivables, Memorabilia and
other collateral reasonably determined by PHI to be
necessary in accordance with prudent business practices to
secure the Working Capital Facility, shall be junior to the
liens of the Working Capital Facility. The Company will
negotiate in good faith with the Committee regarding terms
for the release by the Working Capital Facility lender of
Memorabilia and other collateral securing the Working
Capital Facility based on liquidity levels of the Company to
be determined, provided that after giving effect to such
releases, the Company maintains adequate liquidity and
working capital.
Covenants: Normal and customary for secured indebtedness of this nature
to be determined to the reasonable satisfaction of the
Creditors' Committee.
Asset Sales: Any net proceeds from the sale of any collateral must be
used to repay the Senior Secured Notes, subject to the terms
of the Working Capital Facility.
Commitment Fee: To Be Determined
Equity: To Be Determined
<PAGE>
ANNEX B
SUMMARY TERMS OF NEW SECURED PIK NOTES
Issuer: Reorganized Planet Hollywood International, Inc. ("PHI")
Guarantors: All Operating Subsidiaries of PHI (together with PHI, the
"Company")
Principal Amount: $65.7 million (estimated)
Maturity: Fifth Anniversary of the Effective Date
Interest: Payable semi-annually in cash, at 10% per annum, or at the
sole election of the issuer, payable in kind in additional
New Secured PIK Notes at 12.75% per annum; PROVIDED,
HOWEVER, that commencing two and one-half years after the
Effective Date, interest on the New Secured PIK Notes
shall be payable only in cash at 10% per annum; AND
FURTHER PROVIDED, HOWEVER, that after one year from the
date of issuance, interest on the New Secured PIK Notes
shall be paid in cash at 10% per annum if the ratio of the
Reorganized Company's consolidated EBITDA to Interest
Expense is greater than 1.75 for the last twelve month
period.
Security: The New Secured PIK Notes shall be secured by liens on
substantially all of the Reorganized Company's assets
junior solely to the New Senior Secured Notes and the
Working Capital Facility.
Optional Redemption: New Secured PIK Notes may be redeemed, in whole or in
part, at any time, at the option of the Issuer, at par
plus accrued and unpaid interest to the date of
redemption.
Mandatory
Redemption: At an annual measuring point to be agreed upon by PHI and
the Creditors' Committee: (a) if the ratio of the
Company's consolidated EBITDA to Interest Expense is
greater than 2.0 for the last twelve month period; and
(b) the sum of the Company's cash plus availability under
its post-Effective Date Working Capital Facility exceeds
$25 million, then 50% of such excess shall be used to
redeem the New Secured PIK Notes.
Covenants: Normal and customary for secured indebtedness of this
nature, to be determined to the reasonable satisfaction of
the Creditors' Committee.
2
<PAGE>
ANNEX C
SUMMARY TERMS OF NEW WARRANTS
Issuer: Reorganized Planet Hollywood International, Inc. ("PHI")
Strike Price: $65.50 per share
Term: Expire three years after the Effective Date
3
<PAGE>
EXHIBIT 1
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF AMENDED AND RESTATED PHI CERTIFICATE OF INCORPORATION
[TO BE INCLUDED]
<PAGE>
EXHIBIT 2
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF AMENDED AND RESTATED PHI BY-LAWS
[TO BE INCLUDED]
<PAGE>
EXHIBIT 3
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF NEW SENIOR SECURED NOTES INDENTURE
[TO BE INCLUDED]
<PAGE>
EXHIBIT 4
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF NEW SENIOR SECURED NOTES SECURITY
AND PLEDGE AGREEMENT
[TO BE INCLUDED]
<PAGE>
EXHIBIT 5
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF NEW WORKING CAPITAL FACILITY
[TO BE INCLUDED]
<PAGE>
EXHIBIT 6
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF WORKING CAPITAL FACILITY SECURITY AND PLEDGE AGREEMENT
[TO BE INCLUDED]
<PAGE>
EXHIBIT 7
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF NEW SECURED PIK NOTES INDENTURE
[TO BE INCLUDED]
<PAGE>
EXHIBIT 8
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF NEW SECURED PIK NOTES SECURITY AND PLEDGE AGREEMENT
[TO BE INCLUDED]
<PAGE>
EXHIBIT 9
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
[TO BE INCLUDED]
<PAGE>
EXHIBIT 10
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF NEW WARRANT AGREEMENT
[TO BE INCLUDED]
<PAGE>
EXHIBIT 11
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF NEW WARRANTS
[TO BE INCLUDED]
<PAGE>
EXHIBIT 12
TO
FIRST AMENDED JOINT PLAN OF REORGANIZATION
PLANET HOLLYWOOD INTERNATIONAL INC.
AND CERTAIN OF ITS SUBSIDIARIES
FORM OF REGISTRATION RIGHTS AGREEMENT
[TO BE INCLUDED]
