SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM T-3/A-2
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
- -------------------------------------------------------------------------------
Planet Hollywood International, Inc.
(Name of applicant)
8669 Commodity Circle, Orlando, Florida 32819
- -------------------------------------------------------------------------------
(Address of principal executive offices)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
10% Secured Deferrable Interest Notes $95,000,000
Due 2005
Approximate date of issuance: March 20, 2000
Name and address of agent for service: Robert Earl
Planet Hollywood International,
Inc.
8669 Commodity Circle
Orlando, Florida 32819
(407) 903-5500
With a copy to:
David L. Finkelman, Esq.
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York
10038-4982
(212) 806-5400
The applicant hereby amends this application for qualification on such
date or dates as may be necessary to delay its effectiveness until (i) the 20th
day after the filing of a further amendment which specifically states that it
shall supersede this amendment, or (ii) such date as the Commission, acting
pursuant to Section 307(c) of the Trust Indenture Act of 1939, as amended (the
"Act"), may determine upon the written request of the applicant.
<PAGE>
GENERAL
1. GENERAL INFORMATION. Furnish the following as to the applicant:
(a) Form of organization:
A corporation.
(b) State or other sovereign power under the laws of which
organized:
Delaware
2. SECURITIES ACT EXEMPTION APPLICABLE. State briefly the facts relied
upon by the applicant as a basis for the claim that registration of the
indenture securities under the Securities Act of 1933 is not required.
Planet Hollywood International, Inc., a Delaware corporation (the
"Company"), proposes to issue, as part of the First Amended Joint Plan of
Reorganization of Planet Hollywood International, Inc. and certain of its
subsidiaries that are named as debtors therein dated December 13, 1999 (the
"Plan of Reorganization"), its 10% Secured Deferrable Interest Notes Due 2005
(the "Notes"). Pursuant to the Plan of Reorganization, (a) each holder of an
allowed Class 5 Claim (as defined in the Plan of Reorganization) is entitled to
receive its pro rata share of (i) a cash payment of $47.5 million, (ii) $60
million principal amount of Notes and (iii) 2.65 million shares of New Class A
Common Stock (as defined in the Plan of Reorganization) and (b) each holder of
an allowed Class 6 Claim (as defined in the Plan of Reorganization) is entitled
to receive cash and Notes having an aggregate value as a percentage of its
Allowed Claim (as defined in the Plan of Reorganization), equal to the aggregate
value of the consideration to be received by each holder of a Class 5 Claim as a
percentage of its Allowed Claim. The cash component of the distribution to
holders of Class 6 Claims shall be the same percentage of such holders' Allowed
Claims as the cash component of the distribution to holders of Class 5 Claims is
as a percentage of the Allowed Claims of holders in Class 5, counting a
distribution of Notes to Class 5 as a cash component.
The Company has filed with the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court") a First Amended Disclosure
Statement (the "Disclosure Statement") that was distributed to holders of Class
5 and Class 6 Claims under the Plan of Reorganization for the purpose of
soliciting their votes for the acceptance or rejection of the Plan of
Reorganization. At a hearing held on December 9, 1999, the Bankruptcy Court
approved the Disclosure Statement as containing adequate information in
accordance with Section 1125 of the Bankruptcy Code. Following a hearing held
on January 20, 2000, the Bankruptcy Court entered an order dated January 21,
2000 confirming the Plan of Reorganization. A copy of the Disclosure Statement,
with the Plan of Reorganization annexed thereto as an exhibit, is attached
hereto as Exhibit T3E. The Notes are to be issued under an indenture (the
"Indenture") among the Company, as Issuer, the Subsidiary Guarantors named
therein and United States Trust Company of New York, as trustee, a form of which
is attached hereto as Exhibit T3C.
The Company believes that the issuance of the Notes is exempt from the
registration requirements of the Securities Act of 1933 (the "Securities Act")
pursuant to Section 3(a)(7) of the Securities Act and Section 1145(a)(1) of the
United States Bankruptcy Code (the "Bankruptcy Code"). Generally, Section
3(a)(7) of the Securities Act exempts from the registration requirements of the
Securities Act securities issued by a debtor in possession in a case under Title
11 of the Bankruptcy Code with the approval of the bankruptcy court. Section
1145(a)(1) of the Bankruptcy Code exempts the issuance of securities from the
registration requirements of the Securities Act and equivalent state securities
and "blue sky" laws if the following conditions are satisfied: (i) the
securities are issued by a debtor, an affiliate participating in a joint plan of
reorganization with the debtor, or a successor of the debtor under a plan of
reorganization, (ii) the recipients of the securities hold a claim against, an
interest in, or a claim for an administrative expense against, the debtor, and
(iii) the securities are issued entirely in exchange for the recipient's claim
against or interest in the debtor, or are issued "principally" in such exchange
and "partly" for cash or property. The Company believes that the issuance of
Notes contemplated by the Plan of Reorganization will satisfy the aforementioned
requirements.
AFFILIATIONS
3. AFFILIATES. Furnish a list or diagram of all "affiliates" of the
applicant and indicate the respective percentages of "voting securities" or
other bases of control.
Section 5 of this Application sets forth the names and addresses of
(i) those shareholders of the Company holding 10% or more of the Company's
voting securities as of March 13, 2000 and (ii) those shareholders expected to
hold 10% or more of the Company's voting securities as of the consummation of
the Plan of Reorganization.
The following is a list of direct and indirect subsidiaries of the
Company, indicating the percentage of voting securities owned by the Company in
each such subsidiary. Indirect subsidiaries are indented and listed under their
direct parent corporations and the share of ownership indicated thereof refers
to the share ownership of the direct parent corporation.
PERCENTAGE OF VOTING
SECURITIES HELD BY
AFFILIATES THE COMPANY
Planet Hollywood New York City, Inc. 100%
Planet Hollywood New York, Ltd. 90%
Planet Hollywood London, Inc. 100%
Planet Hollywood Trocadero, LC 97.8%
Planet Hollywood Paris, Inc. 100%
Planet Hollywood France, LC 99%
Planet Hollywood Tel Aviv, Inc. 100%
Planet Hollywood Israel LC 75%
Planet Hollywood LP, Inc. 100%
Planet Hollywood Region V, Inc. 100%
Planet Hollywood Texas, Ltd. 99%
RM 46 Restaurant Vermogensverwaltungs GmbH 100%
Movie Restaurant Verwaltungs GmbH 100%
Movie Restaurant GmbH & Co. KG 99%
308 Aviation, Inc. 100%
308-III Aviation, Inc. 100%
Planet Hollywood Aspen, Inc. 100%
Planet Hollywood Atlantic City, Inc. 100%
Planet Hollywood Chicago, Inc. 100%
Planet Hollywood Costa Mesa, Inc. 100%
Planet Hollywood Gaming, Inc. 100%
Planet Hollywood Honolulu, Inc. 100%
Planet Hollywood Mail Order, Inc. 100%
Planet Hollywood Orlando, Inc. 100%
Planet Hollywood Orlando Distribution, Inc. 100%
Planet Hollywood Phoenix, Inc. 100%
Planet Hollywood (Region I), Inc. 100%
Planet Hollywood Region II, Inc. 100%
Planet Hollywood Region III 100%
Planet Hollywood Region IV, Inc. 100%
Planet Hollywood Region VI, Inc. 100%
Planet Hollywood Region VII, Inc. 100%
Planet Hollywood Transportation, Inc. 100%
Planet Hollywood Warehouse, Inc. 100%
Planet Hollywood Amsterdam, BV 100%
Planet Hollywood Canada, Inc. 100%
Planet Hollywood Czech, a.s. 100%
Planet Hollywood Europe, Ltd. 100%
Planet Hollywood (Puerto Rico), Inc. 100%
Planet Hollywood Restaurantbetriebsgesellschaft GmbH 100%
Planet Hollywood Restaurant OY 100%
Rivermist Limited 100%
Planet Hollywood Asia Pte Ltd. Singapore 50%
Planet Hollywood Australia Pty Ltd. 100%
Planet Hollywood (Sydney) Pty Ltd. 100%
Planet Hollywood (Gold Coast) Pty Ltd. 100%
Planet Hollywood (Melbourne) Pty Ltd. 100%
Planet Hollywood (NZ) Holdings Limited 100%
Planet Hollywood (Auckland) Limited 100%
Planet Hollywood Singapore Pte Ltd. 100%
Planet Hollywood (Hong Kong) Ltd. 64%
Tetra Asia Limited 20%
PT Planet Dwimas 20%
Planet Hollywood (Taiwan) 50%
All Star Cafe International, Inc. 100%
All Star Cafe (Region VII), Inc. 100%
All Star Cafe (New York), Inc. 100%
Official All Star Cafe (U.K.), Ltd. 50%
Official All Star Cafe, Inc. 100%
Coast Licensing, Inc. 100%
All Star Cafe LP, Inc. 100%
All Star Cafe (Region V), Inc. 100%
ECE, S.A. de C.V. 20%
Controladora PH, S.A. de C.V. 100%
Controladora PH Sudamerica, S.A. de C.V. 100%
First World Entertainment, S.A. 100%
Planet Hollywood Entretenimento LTDA 100%
Planet Hollywood Entretenciones, LTDA 100%
OASC, S.A. de C.V. 100%
Planet Hollywood (Chefs), Inc. 100%
Ten Alps, Inc. 100%
Cool Planet, Inc. 95%
Cool Planet I, Inc. 100%
Cool Planet II, Inc. 100%
Planet Hospitality Holdings, Inc. 100%
401 Hotel, LP 19.8%
401 General Partner LLC 20%
401 Commercial, LP 19.8%
Times Square Partners LLC 20%
Sound Republic, Inc. 100%
Sound Republic I Inc. 100%
Karmalanne, Inc. 100%
Rocky Pit, Inc. 100%
Planet Hollywood (Swiss Centre London), Ltd. 100%
Meant 2 Be, Inc. 100%
Silver Bracelets, Inc. 100%
Planet Hollywood Switzerland Ltd. 50%
Planet Hollywood (Japan) K.K. 50%
PHON, L.L.C. 54.765%
Planet Hollywood Theatres, Inc. 100%
PMC Management, Inc. 50%
Planet Movies Company, L.P. 49.5%
PMBA Unit (AMC), L.P. 99%
PMBA Unit (Planet Hollywood), L.P. 99%
EBCO Management, Inc. 100%
M Restaurant Venture 50%
U/MRV Co. 30%
Except as set forth in Section 5 of this Application, the relationship
among the Company and all of its affiliates, including their respective
percentages of voting securities, will be unchanged upon the effectiveness of
the Plan of Reorganization (the "Effective Date").
MANAGEMENT AND CONTROL
4. DIRECTORS AND EXECUTIVE OFFICERS. List the names and complete
mailing addresses of all directors and executive officers of the applicant and
all persons chosen to become directors or executive officers. Indicate all
offices which the applicant held or to be held by each person named.
The names of current Directors and executive officers of the Company
and their respective mailing addresses are set forth below:
NAME POSITION/PRINCIPAL OCCUPATION
- ---- ------------------------------
Robert Earl Chairman of the Board, President
c/o Planet Hollywood International, Inc. and Chief Executive Officer;
8669 Commodity Circle Director
Orlando, FL 32819
Michael Tarnopol Director
c/o Bear, Stearns & Co., Inc.
245 Park Avenue
New York, NY 10167
Thomas Avallone Executive Vice President and
c/o Planet Hollywood International, Inc. Chief Financial Officer;
8669 Commodity Circle Director
Orlando, FL 32819
Mark McCormack Director
c/o International Management Group
IMG Center
1360 East 9th Street, Suite 100
Cleveland, OH 44114
Claudio Gonzalez Director
c/o Kimberly Clark de Mexico,
Jose Luis Lagrange, No. 103
3rd Floor
Colonia, Los Morales
11510 Mexico, D.F.
Ong Beng Seng Director
Leisure Ventures Pte., Ltd.
Kuo Investments Company
767 Third Avenue
33rd Floor
New York, NY 10017
Mark S. Helm
c/o Planet Hollywood International, Inc. Vice President and
8669 Commodity Circle General Counsel
Orlando, FL 32819
As of the Effective Date, the following persons will serve as
Directors and executive officers of the Company:
NAME POSITION/PRINCIPAL OCCUPATION
- ---- ------------------------------
Robert Earl Chairman of the Board,
c/o Planet Hollywood International, Inc. President and Chief Executive
8669 Commodity Circle Officer; Director.
Orlando, FL 32819
Thomas Avallone Director
c/o Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, FL 32819
Claudio Gonzalez Director
c/o Kimberly Clark de Mexico,
Jose Luis Lagrange, No. 103
3rd Floor
Colonia, Los Morales
11510 Mexico, D.F.
Steven Grapstein Director
c/o Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, FL 32819
Mustafa Al Hejailan Director
c/o Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, FL 32819
Mark S. Helm
c/o Planet Hollywood International, Inc. Vice President and
8669 Commodity Circle General Counsel
Orlando, FL 32819
It is contemplated that as of the Effective Date there will be two
additional Directors who, under the terms of the Plan of Reorganization, are to
be designated by the holders of the Notes.
5. Principal owners of voting securities. Furnish the following
information as to each person owning 10 percent or more of the voting securities
of the applicant.
A. As of March 13, 2000 with regard to the old Common Stock of the
Company (which will be canceled as of the Effective Date):
<TABLE>
<CAPTION>
NAME AND PERCENTAGE OF
COMPLETE MAILING TITLE OF VOTING SECURITIES
ADDRESS CLASS OWNED AMOUNT OWNED OWNED
- ---------------- ------------ ------------ ------------------
<S> <C> <C> <C>
Ong Beng Seng/Leisure Ventures Pte, Ltd. Class A Common Stock 12,050,335 12.0%
Leisure Ventures Pte., Ltd.
Kuo Investments Company
767 Third Avenue
33rd Floor
New York, NY 10017
</TABLE>
B. As of the Effective Date with regard to the new Common Stock of the
Company:
<TABLE>
<CAPTION>
NAME AND PERCENTAGE OF
COMPLETE MAILING TITLE OF VOTING SECURITIES
ADDRESS CLASS OWNED AMOUNT OWNED OWNED
- ---------------- ------------ ------------ ------------------
<S> <C> <C> <C>
Leisure Ventures Pte Ltd. Class B Common Stock 1,166,671 11.67%
50 Cuscaden Road
#08-01 HPL House
Singapore 249724
Kingdom Planet Hollywood Class B Common Stock 2,333,341 23.33%
c/o Kingdom Holding Company
Post Office Box 8653
Riyadh 11492
Kingdom of Saudi Arabia
Holst Trust Class B Common Stock 2,333,341 23.33%
c/o Lauren Investments Holdings
Limited, as trustee
International Trust Building
Wickhams Cay
Road Town Tortola
British Virgin Islands
Bay Harbour Management L.C. Class A Common Stock 1,310,000 13.1%
885 Third Ave.
34th Floor
NY, NY 1022
</TABLE>
UNDERWRITERS
6. UNDERWRITERS. Give the name and complete mailing address of (a)
each person who, within three years prior to the date of filing the application,
acted as an underwriter of any securities of the obligor which were outstanding
on the date of filing the application, and (b) each proposed principal
underwriter of the securities proposed to be offered. As to each person
specified in (a), give the title of each class of securities underwritten.
(a) In connection with the issuance and sale of the Company's 12%
Senior Subordinated Notes due 2005, the following entities acted as
underwriters:
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, NY 10167
Salomon Brothers Inc.
7 World Trade Center
New York, NY 10048
NationsBanc Montgomery Securities LLC
600 Montgomery Street
San Francisco, CA 94111
SG Cowen Securities Corporation
1221 Avenue of the Americas
New York, NY 10020
SunTrust Equitable Securities Corporation
200 South Orange Avenue
Orlando, FL 32801
Scotia Capital USA, Inc.
165 Broadway
One Liberty Plaza
New York, NY 10006
(b) None.
CAPITAL SECURITIES
7. CAPITALIZATION. (a) Furnish the following information as to each
authorized class of securities of the applicant.
As of March 13, 2000:
<TABLE>
<CAPTION>
APPROXIMATE
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
- -------------------------------------- --------------------- ------------------
<S> <C> <C>
Class A Common Stock, par value $.01 250,000,000 shares 100,770,096 shares
per share
Class B Common Stock, par value $.01 25,000,000 shares 8,314,848 shares
per share
Preferred Stock, $.01 par value 25,000,000 shares none
12% Senior Subordinated Notes due 2005 $250,000,000 $250,000,000*
principal amount principal amount
*does not include unpaid accrued interest in the amount of $32,000,000.
</TABLE>
<TABLE>
<CAPTION>
As of the Effective Date:
APPROXIMATE
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
- ------------------------------------ ----------------- -------------------
<S> <C> <C>
Class A Common Stock, par value $.01 100,000,000 shares 2,950,000 shares
per share
Class B Common Stock, par value $.01 25,000,000 shares 7,000,000 shares
per share
Preferred Stock, $.01 par value. 100,000,000 shares none
Senior Secured Notes due 2002 $ 22,000,000 $ 22,000,000
principal amount principal amount
10% Secured Deferrable Interest Notes $ 95,000,000 $ 72,000,000
due 2005 principal amount principal amount
</TABLE>
(b) Give a brief outline of the voting rights of each class of
voting securities referred to in paragraph (a) above.
Set forth below is an analysis of certain provisions of the Company's
Amended and Restated Certificate of Incorporation to be filed with the Office of
the Secretary of State of the State of Delaware in connection with the
consummation of the Plan of Reorganization. The following analysis makes use of
certain capitalized terms defined in the Amended and Restated Certificate of
Incorporation; such terms shall have the meanings given to them therein and
shall be incorporated by reference herein. The following analysis does not
purport to be a complete description of the Amended and Restated Certificate of
Incorporation and is qualified in its entirety by reference thereto.
Upon the filing of the Amended and Restated Certificate of
Incorporation, the shares of Class A Common Stock, par value $.01 per share, and
the shares of Class B Common Stock, par value $.01 per share, of the Company
issued and outstanding immediately prior to the time when the Amended and
Restated Certificate of Incorporation becomes effective will be automatically
canceled and extinguished.
Upon such filing, the Company's authorized capital stock will consist
of the following: (i) One Hundred Million (100,000,000) shares of Class A Common
Stock, $.01 par value, (ii) Twenty Five Million (25,000,000) shares of Class B
Common Stock, $.01 par value, and (iii) One Hundred Million (100,000,000) shares
of Preferred Stock, $.01 par value.
Except as described below or as otherwise required by applicable law,
holders of Class A Common Stock and Class B Common Stock shall vote together as
a single class on all matters submitted to the stockholders for a vote. With
respect to all matters upon which stockholders are entitled to vote, the holders
of outstanding shares of Common Stock shall be entitled to one vote in person or
by proxy for each share of Common Stock standing in the name of such
stockholders on the record of stockholders.
Except as described in the immediately following paragraph, the
holders of Class B Common Stock shall be entitled, voting separately as a single
class by a plurality of the votes cast, to the exclusion of all other classes of
the Corporation's capital stock, to elect all members of the Corporation's Board
of Directors (the "Class B Directors"). Any one or more of the Class B Directors
may be removed with or without cause only by a vote of the holders of Class B
Common Stock, voting separately as a single class and holding not less than a
majority of the issued and outstanding shares of Class B Common Stock.
Pursuant to Section 4.15 of the Indenture, for so long as the Notes
remain outstanding the holders of the Notes shall have the right to designate
two Class B Directors.
After the payment in full of all of the Corporation's obligations
under the Notes the holders of Class A Common Stock shall be entitled,
voting separately as a single class by a plurality of the votes cast, to the
exclusion of all other classes of the Corporation's capital stock, to elect two
(2) directors to serve on the Corporation's Board of Directors (the "Class A
Directors"). Any one or more of the Class A Directors may be removed with or
without cause only by a vote of the holders of Class A Common Stock, voting
separately as a single class and holding not less than a majority of the issued
and outstanding shares of Class A Common Stock.
At such time when there shall be no shares of Class B Common Stock
issued and outstanding, the holders of Class A Common Stock shall be entitled to
elect all members of the Corporation's Board of Directors. Directors so elected
by the holders of Class A Common Stock may be removed only with cause by a vote
of the holders of not less than a majority of the issued and outstanding shares
of Class A Common Stock.
In addition to any other vote that may be required by the Delaware
General Corporation Law or the Amended and Restated Certificate of
Incorporation, the vote or consent of the holders of any class of Common Stock
voting separately as a single class shall be required to amend or restate the
Amended and Restated Certificate of Incorporation in a manner that would alter
or change the powers, preferences or special rights of such class of Common
Stock, so as to affect them adversely.
The Company's Board of Directors is authorized to cause to be issued
from time to time one or more series of Preferred Stock. The Board of Director
may determine whether a series of Preferred Stock has voting rights in addition
to the voting rights provided by law and the terms and conditions of such voting
rights. At the time of the consummation of the Plan of Reorganization, there
will be no shares of Preferred Stock issued and outstanding.
Holders of the Senior Secured Notes due 2002 and the Notes will not
have any voting rights by reason of ownership of those securities, except that
holders of the Notes will have the right to designate the Noteholders Designees.
INDENTURE SECURITIES
8. ANALYSIS OF INDENTURE PROVISIONS. Insert at this point the analysis
of indenture provisions required under section 305(a)(2) of the Act.
The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended. The following analysis of certain provisions of the Indenture makes use
of certain capitalized terms defined in the Indenture and not herein, and such
terms shall have the meanings given to them in the Indenture and shall be
incorporated by reference herein. The following analysis does not purport to be
a complete description of the Indenture provisions discussed and is qualified in
its entirety by reference to the Indenture, which provisions are incorporated
herein by reference as part of such analysis. (Section references are to the
relevant provisions of the Indenture.)
A. DEFAULT PROVISIONS.
An "Event of Default" occurs under the Indenture if:
(1) the Company defaults in any payment of interest on any Note
when the same becomes due and payable, and such default continues for
a period of 30 days;
(2) the Company (i) defaults in the payment of the principal of
any Note when the same becomes due and payable at its Stated Maturity,
upon optional redemption, upon required repurchase, upon declaration
or otherwise, or (ii) fails to redeem or purchase Notes when required
pursuant to the Indenture or the Notes;
(3) the Company fails to comply with Section 5.1 of the Indenture
(When the Company May Merge or Transfer Assets);
(4) the Company fails to comply with Section 4.2 (SEC Reports),
4.3 (Limitation on Consolidated Debt), 4.4 (Future Guarantors), 4.5
(Limitations on Restricted Payments), 4.6 (Dividends and other Payment
Restrictions Affecting Subsidiaries), 4.7 (Asset Dispositions), 4.8
(Transaction with Affiliates), 4.9 (Limitation on Issuances and Sale
of Capital Stock of Restricted Subsidiaries), 4.10 (Change of
Control), 4.11 (Limitation on Liens), 4.12 (Business Activities), 4.13
(Maintenance of Insurance), 4.15 (Nomination of Class A Directors)
4.16 (Voting Agreements Among Stockholders), 4.17 (Foreign
Subsidiaries) or 4.19 (Calculation of Original Issuer Discount) of the
Indenture (other than a failure to purchase Notes when required under
Section 4.7 or 4.10 of the Indenture) and such failure continues for
30 days after the notice specified below;
(5) the Company fails to comply with any of its agreements in the
Notes or the Indenture (other than those referred to in clause (1),
(2), (3) or (4) above) and such failure continues for 60 days after
the notice specified below;
(6) Debt of the Company or any Significant Subsidiary is not paid
within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
amount of such Debt unpaid or accelerated exceeds $1 million;
(7) any Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or
any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(9) any judgment or decree for the payment of money in excess of
$1 million, or its foreign currency equivalent at the time is
entered against the Company or any Significant Subsidiary, remains
outstanding for a period of 60 days following the entry of such
judgment or decree and is not discharged, waived or the execution
thereof stayed within 10 days after the notice specified below; or
(10) a Subsidiary Guarantee ceases to be in full force and effect
(other than in accordance with the terms of such Subsidiary Guarantee)
or a Subsidiary Guarantor denies or disaffirms its obligations under
its Subsidiary Guarantee.
The foregoing will constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
The term "Bankruptcy Law" means Title 11 of the United States Code, or
any similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clauses (4), (5), or (9) is not an Event of Default
until the Trustee or the Holders of at least 25% in principal amount of the
outstanding Notes notify the Company of the Default and the Company does not
cure such Default within the time specified after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (6) or (10) and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (4), (5) or (9), its status and what action the Company is taking or
propose to take with respect thereto.
If an Event of Default (other than an Event of Default specified in
clause 7 or 8 above with respect to the Company) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the Notes by notice to the Company and the Trustee, may declare the
principal of and accrued but unpaid interest on all the Notes to be due and
payable. Upon such a declaration, such principal and interest shall be due and
payable immediately. If an Event of Default specified in clauses 7 or 8 above
with respect to the Company occurs, the principal of and interest on all the
Notes shall IPSO FACTO become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. The Holders
of a majority in principal amount of the Notes by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
B. AUTHENTICATION AND DELIVERY OF NOTES; APPLICATION OF PROCEEDS.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under the
Indenture.
The Trustee shall authenticate and deliver Notes for original issue
upon a written order of the Company signed by two Officers or by an Officer and
either an Assistant Treasurer or an Assistant Secretary of the Company. Such
order shall specify the amount of the Notes to be authenticated and the date on
which the original issue of Notes is to be authenticated. The aggregate
principal amount of Notes outstanding at any time may not exceed that amount
except as provided in Section 2.7 of the Indenture (Replacement Notes).
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in the Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, Paying Agent or agent for service of notices and
demands.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
The Notes outstanding at any time are all Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation
and those described in Section 2.8 (Outstanding Notes) as not outstanding. A
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
There will be no proceeds from the issuance of the Notes.
C. RELEASE OF COLLATERAL.
The Notes and the Indenture will be subject to the terms and
conditions of that certain Intercreditor Agreement (attached to this Application
as Exhibit T3C-4) to be entered into by and among The CIT Group/Business Credit,
Inc., as the senior agent on behalf of the CR Senior Lenders (as defined in the
Intercreditor Agreement), Wilmington Trust Company, as agent for the BH Senior
Lenders (as defined in the Intercreditor Agreement), United States Trust Company
of New York as the Junior Subordinated Trustee (together with its successors and
assigns in such capacity) consented to by the Noteholders.
Subject to the three succeeding paragraphs below, (i) in the event
that any Collateral is sold, transferred or otherwise disposed of in an Asset
Disposition including the application of Insurance Proceeds or any other
transaction permitted by the Indenture, such Collateral shall, concurrently with
the disposition of such Collateral be released from the Lien of the relevant
Security Documents (attached to this Application as Exhibits T3C-3, T3C-5, T3C-6
and T3C-7) in accordance with the terms of the Security Documents and (ii) the
Company and its Subsidiaries may (but are not required to) from time to time
substitute property or securities released from the Lien of the Security
Documents in connection with the sale, transfer or other disposition thereof for
other property or securities to be subjected to the Lien of the Security
Documents, in each case in accordance with the provisions of the Security
Documents and as provided by the Indenture.
Except as otherwise provided for in the Intercreditor Agreement, any
time when an Event of Default shall have occurred and be continuing and the
maturity of the Notes shall have been accelerated (whether by declaration or
otherwise) and such acceleration shall not have been rescinded or annulled, no
release of Collateral pursuant to the provisions of the Indenture or of the
Security Documents shall be effective as against the Holders of the securities
without the consent of the Collateral Agent. The Trustee shall promptly notify
the Collateral Agent of any rescission or annulment, pursuant to Section 6.4 of
the Indenture, of an acceleration of the Notes.
The release of any Collateral from the terms of the Security Documents
will not be deemed to impair the security under the Indenture in contravention
of the provisions thereof if and to the extent the Collateral is released
pursuant to the Security Documents. At all times after qualification of the
Indenture under the TIA, to the extent applicable, the Company shall cause TIA
Section 314(d) relating to the release of property or securities from the Lien
of the Security Documents and relating to the substitution therefor of any
property or securities to be subjected to the Lien of the Security Documents to
be complied with. Any certificate or opinion required by TIA Section 314(d) may
be made by Officers of the Company, except in cases where TIA Section 314(d)
requires that such certificate or opinion be made by an independent Person,
which Person shall be an independent engineer, appraiser or other expert
selected or approved by the Trustee in the exercise of reasonable care. With
respect to the release of the Lien of the Mortgage on the Retail Unit in
connection with a closing of the sale of all or a portion of the Retail Unit
under the Retail Unit Contract of Sale, the Trustee acknowledges and agrees that
(i) to the extent applicable, any requirement under the TIA for a certificate or
an opinion with respect to the fair value of the Retail Unit (or such Lien
thereon) has already been satisfied, and (ii) upon the receipt of an Officer's
Certificate from the Company substantially in the form of Exhibit G hereto and
an Opinion to the Company substantially in the form of Exhibit H
hereto, all other applicable requirements under the TIA with respect to the
release of such Lien shall have been satisfied, and the Trustee shall release
such Lien in accordance with the terms of the Mortgage.
It is acknowledged and agreed that the Bankruptcy Court has found that
the proceeds of sale of the Retail Unit (or portion thereof) pursuant to the
Retail Unit Contract of Sale represents the fair value of the Retail Unit, and
that the release of the Lien of the Mortgage on Retail Unit from the terms of
the Security Documents does not impair the security under this Indenture in
contravention of the provisions hereof. It is acknowledged and agreed that the
Bankruptcy Court's finding shall serve as of the opinion or certificate of an
independent engineer, appraiser or other expert, to the extent such opinion or
certificate is required by TIA Section 314(d).
D. SATISFACTION AND DISCHARGE OF THE INDENTURE.
(a) When (i) the Company delivers to the Trustee all outstanding Notes
(other than Notes replaced pursuant to Section 2.7 of the Indenture) for
cancellation or (ii) all outstanding Notes have become due and payable, whether
at maturity or as a result of the mailing of a notice of redemption pursuant to
Article 3 of the Indenture and the Company irrevocably deposits with the Trustee
funds sufficient to pay at maturity or upon redemption all outstanding Notes,
including interest thereon to maturity or such redemption date (other than Notes
replaced pursuant to Section 2.7 of the Indenture), and if in either case the
Company pays all other sums payable hereunder by the Company, then the Indenture
shall, subject to Section 8.1(c) thereof, cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of the Indenture on demand
of the Company accompanied by an Officers, Certificate and an opinion of Counsel
and at the cost and expense of the Company.
(b) Subject to Sections 8.1(c) and 8.2 of the Indenture, the Company
at any time may terminate (i) all its obligations under the Notes and the
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17
and 4.19 and the operation of Sections 6.1(4), 6.1(6), 6.1(7), 6.1(8), 6.1(9)
and 6.1(10) under the Indenture (but, in the case of Sections 6.1(7) and (8)
thereof, with respect only to Significant Subsidiaries) and the limitations
contained in Sections 5.1(a)(iii) and (iv) thereof ("covenant defeasance
option"). The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its covenant defeasance option, payment of the
Notes may not be accelerated because of an Event of Default specified in
Sections 6.1(4), 6.1(6), 6.1(7), 6.1(8), 6.1(9) and 6.1(10) of the Indenture
(but, in the case of Sections 6.1(7) and (8) thereof, with respect only to
Significant Subsidiaries) or because of the failure of the Company to comply
with Section 5.1(a)(iii) or (iv) thereof. If the Company exercises its legal
defeasance option or its covenant defeasance option, (i) each Subsidiary
Guarantor, if any, shall be released from all its obligations with respect to
its Subsidiary Guarantee, (ii) all rights of the Trustee or the Holders under
any of the Security Documents shall terminate and (iii) the Company's
obligations under Section 3.8 shall terminate.
Upon satisfaction of the conditions set forth herein the Trustee shall
acknowledge in writing the discharge of those obligations that the Company
terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 7.7 and 7.8 and in this
Article 8 of the Indenture shall survive until the Notes have been paid in full.
Thereafter, the Company's obligations in Sections 7.7, 8.4 and 8.5 shall
survive.
The Company may exercise its legal defeasance option or its covenant
defeasance option only if:
1. the Company irrevocably deposits in trust with the Trustee
money or Defeasance Obligations for the payment of principal of and
interest on the Notes to maturity or redemption, as the case may be;
2. the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited Defeasance Obligations plus any
deposited money without investment will provide cash at such times and
in such amounts as will be sufficient to pay principal and interest
when due on all the Notes to maturity or redemption, as the case may
be;
3. 123 days pass after the deposit is made and during the 123-day
period no Default specified in Sections 6.1(7) or (8) with respect to
the Company occurs which is continuing at the end of the period;
4. the deposit does not constitute a default under any other
agreement binding on the Company;
5. the Company delivers to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
6. in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the Issue Date there
has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance had not occurred;
7. in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and
8. the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
to the defeasance and discharge of the Notes as contemplated by this
Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article 3 of the Indenture.
The Trustee shall hold in trust money or Defeasance Obligations
deposited with it pursuant to Article 8 of the Indenture. It shall apply the
deposited money and the money from Defeasance Obligations through the Paying
Agent and in accordance with the Indenture to the payment of principal of and
interest on the Notes.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon written request any excess money or securities held by them at any
time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years, and,
thereafter, Holders entitled to the money must look to the Company for payment
as general creditors.
If the Trustee or Paying Agent is unable to apply any money or
Defeasance Obligations in accordance with Article 8 of the Indenture by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under the Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Article
8 of the Indenture until such time as the Trustee or Paying Agent is permitted
to apply all such money or Defeasance Obligations in accordance with Article 8
of the Indenture; PROVIDED, HOWEVER, that, if the Company has made any payment
of interest on or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or Defeasance Obligations held
by the Trustee or Paying Agent.
E. EVIDENCE OF COMPLIANCE WITH CONDITIONS AND COVENANTS.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate, one of the signers
of which shall be the principal executive, principal financial or principal
accounting officer of the Company, stating that in the course of the performance
by the signers of their duties as officers of the Company they would normally
have knowledge of any Default and whether or not the signers know of any Default
that occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or propose to take
with respect thereto. The Company also shall comply with TIA ss.314(a)(4).
9. Other Obligors. Give the name and complete mailing address of any
person, other than the applicant, who is an obligor upon the indenture
securities.
All Star Cafe (New York), Inc.
All Star Cafe International, Inc.
Coast Licensing, Inc.
Cool Planet I, Inc.
Cool Planet II, Inc.
Cool Planet, Inc.
EBCO Management, Inc.
Meant 2 Be, Inc.
Official All Star Cafe, Inc.
Planet Hollywood (Atlantic City), Inc.
Planet Hollywood (Chefs), Inc.
Planet Hollywood (Honolulu), Inc.
Planet Hollywood (New York City), Inc.
Planet Hollywood (New York), Ltd.
Planet Hollywood (Orlando), 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.
Planet Hollywood France, LC
Planet Hollywood London, Inc.
Planet Hollywood LP, Inc.
Planet Hollywood Paris, Inc.
Planet Hollywood Tel Aviv, Inc.
Planet Hollywood Theaters, Inc.
Planet Hollywood Trocadero, LC
Planet Hospitality Holdings, Inc.
Silver Bracelets, Inc.
Sound Republic I, Inc.
Sound Republic, Inc.
Ten Alps, Inc.
The complete mailing address of each obligor is c/o Planet Hollywood
International, Inc., 8669 Commodity Circle, Orlando, FL 32819.
Contents of application for qualification. This application for
qualification comprises:
(a) Pages numbered 1 to 20, consecutively.
(b) The statement of eligibility and qualification of the trustee
under the indenture to be qualified, which statement shall be filed by
amendment.
(c) The following exhibits in addition to those filed as a part
of the statement of eligibility and qualification of the trustee:
Exhibit T3A-1 Certificate of Incorporation of the Company. The
Certificate of Incorporation will be amended and restated
in connection with the Plan of Reorganization.*
Exhibit T3A-2 The form of Amended and Restated Certificate of
Incorporation of the Company.*
Exhibit T3B-1 By-Laws of the Company. The By-Laws will be amended and
restated in connection with the Plan of Reorganization.*
Exhibit T3B-2 The form of Amended and Restated By-Laws of the Company.*
Exhibit T3C-1 Form of the 10% Secured Deferrable Interest Notes
Indenture dated as of March __, 2000, among the
Company, as Issuer, the Subsidiary Guarantors named
therein and United States Trust Company of New York, as
trustee.*
Exhibit T3C-2 Form of Note (Exhibit A to the Indenture).*
Exhibit T3C-3 Form of Security Agreement (Exhibit B to the Indenture).
Exhibit T3C-4 Form of Intercreditor Agreement (Exhibit C to the
Indenture).*
Exhibit T3C-5 Form of Mortgage (Exhibit D to the Indenture).
Exhibit T3C-6 Form of Pledge Agreement (Exhibit E to the Indenture).
Exhibit T3C-7 Form of TSP Pledge Agreement (Exhibit F to the Indenture).
Exhibit T3D Order confirming the First Amended Joint Plan of
Reorganization, dated January 21, 2000.*
Exhibit T3E-1 A copy of the First Amended Disclosure Statement regarding
the First Amended Joint Plan of Reorganization, with
certain exhibits thereto sent or given to security holders
in connection with the issuance or distribution of the
Notes.*
Exhibit T3E-2 Dolin Recano & Company, Inc. letter to Brokers, Dealers,
Commercial Banks, Trust Companies and other Nominees.*
Exhibit T3E-3 Master Ballot for Accepting or Rejecting the First
Amended Joint Plan of Reorganization. For use by
Record Holder Nominees of Owners of Class 5 (Old Senior
Subordinated Notes) Claims.*
Exhibit T3E-4 Letter to Clients.*
Exhibit T3E-5 Ballot for Accepting or Rejecting the First Amended Joint
Plan of Reorganization. Ballot for Class 5 Claim (Old
Senior Subordinated Notes Claims) Beneficial Owners.*
Exhibit T3E-6 Ballot for Accepting or Rejecting the First Amended
Joint Plan of Reorganization. Ballot for Class 6 Claims
(General Unsecured Claims).*
Exhibit T3E-7 Notice of Order (A) approving the Debtors' Disclosure
Statement, Forms of Ballots and related solicitation
material, (B) establishing procedures for solicitation of
votes on the Debtors' First Amended Joint Plan of
Reorganization, (C) establishing Record Date, Voting
Deadline and procedures for tabulation of votes on
Debtors' Plan, (D) establishing Administrative Claims
Date and (E) fixing date and time for the filing of
objections to, and scheduling hearing on, confirmation of
the Debtors' Plan.*
Exhibit T3F A cross reference sheet showing the location in the
Indenture of the provisions inserted therein pursuant to
Sections 310 through 318(a), inclusive, of the Trust
Indenture Act of 1939, included in Exhibit T3C-1.*
Exhibit 99 Statement of Eligibility on Form T-1.*
- --------------------
* Previously filed
[END OF TEXT]
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Planet Hollywood International, Inc., a corporation organized and
existing under the laws of Delaware, has duly caused this amended application to
be signed on its behalf by the undersigned, thereunto duly authorized, and its
seal to be hereunto affixed and attested, all in the City of Orlando, and State
of Florida, on the 17th day of March, 2000.
PLANET HOLLYWOOD INTERNATIONAL, INC.
[Seal] By /s/ Thomas Avallone
--------------------------------
Thomas Avallone
Executive Vice President
and Chief Financial Officer
Attest /s/ Mark S. Helm
--------------------------------
Mark S. Helm
Vice President and
General Counsel
EXHIBIT B
TO INDENTURE
THIS AGREEMENT IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION
AGREEMENT DATED OF EVEN DATE HEREWITH BY AND AMONG THE CIT GROUP/BUSINESS
CREDIT, INC., AS AGENT FOR THE LENDERS UNDER THE REVOLVING CREDIT AGREEMENT,
WILMINGTON TRUST COMPANY, AS AGENT UNDER THE SENIOR NOTE PURCHASE AGREEMENT,
UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE UNDER THE INDENTURE, AND
CONSENTED TO BY THE PIK HOLDERS SIGNATORY THERETO, WHICH MATERIALLY AFFECTS
CERTAIN PAYMENT RIGHTS, SUBORDINATES CERTAIN OBLIGATIONS AND CERTAIN SECURITY
INTERESTS, AND LIMITS RIGHTS TO ENFORCEMENT. ALL PERSONS OR OTHER ENTITIES WHICH
AT ANY TIME HOLD INDEBTEDNESS UNDER THIS AGREEMENT ARE BOUND BY THE TERMS OF
SUCH INTERCREDITOR AGREEMENT WHICH WILL BE MADE AVAILABLE UPON REQUEST.
FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of March __, 2000, made by
PLANET HOLLYWOOD INTERNATIONAL, INC., ALL STAR CAFE INTERNATIONAL,
INC., a Florida corporation, ALL STAR CAFE (NEW YORK), INC., a Florida
corporation, COOL PLANET, INC., a Florida corporation, COOL PLANET II, INC., a
Florida corporation, PLANET HOLLYWOOD (ATLANTIC CITY), INC., a Florida
corporation, PLANET HOLLYWOOD (HONOLULU), INC., a Florida corporation, PLANET
HOLLYWOOD INTERNATIONAL, INC., a Delaware corporation, PLANET HOLLYWOOD (LP),
INC., a Nevada corporation, PLANET HOLLYWOOD MEMORABILIA INC., a Florida
corporation, PLANET HOLLYWOOD NEW YORK, LTD., a Florida corporation, PLANET
HOLLYWOOD (NEW YORK CITY), INC., a Florida corporation, PLANET HOLLYWOOD
(ORLANDO), INC., a Florida corporation, PLANET HOLLYWOOD (REGION II), INC., a
Florida corporation, Planet Hollywood (Region III), Inc., a Florida corporation,
PLANET HOLLYWOOD (REGION IV), INC., a Minnesota corporation, PLANET HOLLYWOOD
(REGION V), INC., a Texas corporation, PLANET HOLLYWOOD (REGION VI), INC., a
Nevada corporation, PLANET HOLLYWOOD (REGION VII), INC., a Florida corporation,
PLANET HOLLYWOOD (TEXAS), LTD., a Texas limited partnership, and PLANET
HOLLYWOOD (WAREHOUSE), INC., a Florida corporation, MEANT 2 BE, INC., a Nevada
corporation, OFFICIAL ALL STAR CAFE, INC., a Nevada corporation, PLANET
HOLLYWOOD (LONDON), INC., a Florida corporation, PLANET HOLLYWOOD (PARIS), INC.,
a Florida corporation, PLANET HOLLYWOOD (TEL AVIV), INC., a Florida corporation,
PLANET HOLLYWOOD (THEATRES), INC., a Florida corporation, SILVER BRACELETS,
INC., a Florida corporation, SOUND REPUBLIC, INC., a Florida corporation, 308
AVIATION, INC., a Florida corporation, 308-III AVIATION, INC., a Florida
corporation, ALL STAR CAFE (LP), INC., a Nevada corporation, ALL STAR CAFE
(REGION V), INC., a Texas corporation, ALL STAR CAFE (REGION VII), INC., a
Florida corporation, COOL PLANET I, INC., a Florida corporation, EBCO
MANAGEMENT, INC., a Florida corporation, KARMALANNE, INC., a Nevada corporation,
PLANET HOLLYWOOD (ASPEN), INC., a Florida corporation, PLANET HOLLYWOOD (CHEFS),
INC., a Florida corporation, PLANET HOLLYWOOD (COSTA MESA), INC., a Florida
corporation, PLANET HOLLYWOOD (CHICAGO), INC., a Florida corporation, PLANET
HOLLYWOOD (GAMING), INC., a Florida corporation, Planet Hospitality Holdings,
Inc., a Florida corporation, PLANET HOLLYWOOD (MAIL ORDER), INC., a Florida
corporation, PLANET HOLLYWOOD (ORLANDO DISTRIBUTION), INC., a Florida
corporation, PLANET HOLLYWOOD (PHOENIX), INC., a Florida corporation, PLANET
HOLLYWOOD (REGION I), INC., a Florida corporation, PLANET HOLLYWOOD
TRANSPORTATION, INC., a Florida corporation, ROCKY PIT, INC., a Nevada
corporation, SOUND REPUBLIC I, INC., a Florida corporation, TEN ALPS, INC., a
Nevada corporation, Coast Licensing, Inc., a Nevada corporation, PLANET
HOLLYWOOD (FRANCE), L.C., a Florida corporation, PLANET HOLLYWOOD (ISRAEL),
L.C., a Florida corporation, and PLANET HOLLYWOOD (TROCADERO), L.C., a Florida
corporation, (each a "GRANTOR", collectively, the "GRANTORS"), in favor of
UNITED STATES TRUST COMPANY OF NEW YORK, as trustee and collateral agent (the
"AGENT") under that certain Indenture (such Indenture, as amended or otherwise
modified from time to time, the "INDENTURE"), dated as of the date hereof, among
Planet Hollywood International, Inc., the parties whose names and signatures
appear on the signature pages thereto under the heading "Subsidiary Guarantors"
and the Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, each Grantor will receive substantial direct and indirect
benefits from the Company and the Agent entering into the Indenture and the
Holders accepting the Notes as contemplated thereby;
WHEREAS, it is a condition precedent to the effectiveness of the
Indenture that the Grantors shall have executed and delivered to the Agent a
security agreement providing for the grant to the Agent of a lien on and
security interest in all personal property of each Grantor, including, without
limitation, the Memorabilia (as defined in Section 2(b)(ii) hereof);
NOW, THEREFORE, in consideration of the premises and the agreements
herein and of other good and valuable consideration, each Grantor hereby agrees
with the Agent as follows:
SECTION 1. DEFINED TERMS. As used in this Agreement, capitalized terms
used herein without definition have the meanings specified in the Indenture or
if not defined in the Indenture, then in Article 9 of the Uniform Commercial
Code (the "CODE") currently in effect in the State of New York, and the
following terms have the following meanings:
"COLLATERAL" is defined in Section 2 hereof.
"ENVIRONMENTAL LAW" shall mean all federal, state and local laws,
statutes, ordinances and regulations, now or hereafter in effect relating to the
regulation and protection of human health, safety, the environment and natural
resources. Environmental Laws include but are not limited to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C.ss.9601 ET SEQ.) ("CERCLA"); the Hazardous Material Transportation Act, as
amended (49 U.S.C.ss.180 ET SEQ.); the Resource Conservation and Recovery Act,
as amended (42 U.S.C.ss.6901 ET SEQ.) ("RCRA"); the Toxic Substance Control Act,
as amended (15 U.S.C.ss.2601 ET SEQ.); the Clean Air Act, as amended (42
U.S.C.ss.7401 ET SEQ.); the Federal Water Pollution Control Act, as amended (33
U.S.C.ss.1251 ET SEQ.); and their state and local counterparts or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import. References to
sections of ERISA shall be construed also to refer to any successor sections.
"ERISA AFFILIATE" shall mean any (i) corporation which is a member of
the same controlled group of corporations (within the meaning of Section 414(b)
of the Code) as Planet Hollywood International, Inc., (ii) partnership or other
trade or business (whether or not incorporated) under common control (within the
meaning of Section 414(c) of the Code) with Planet Hollywood International,
Inc., or (iii) member of the same affiliated service group (within the meaning
of Section 414(m) of the Code) as Planet Hollywood International, Inc., any
corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"INTERCREDITOR AGREEMENT" shall mean that certain Intercreditor and
Subordination Agreement dated of even date herewith by and among The CIT
Group/Business Credit, Inc., as agent for the Lenders under the Revolving Credit
Agreement, Wilmington Trust Company, as agent under the Senior Note Purchase
Agreement, United States Trust Company of New York, as Trustee under the
Indenture, and consented to by the Holders signatory thereto.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect upon
(i) the business, operations, condition (financial or otherwise), properties of
the Company or Planet Hollywood Memorabilia, Inc. individually or the Company
and the Subsidiary Guarantors as a whole, (ii) the ability of the Company or
Planet Hollywood Memorabilia, Inc. individually or the Company and the
Subsidiary Guarantors as a whole to perform their obligations hereunder or under
the Indenture, (iii) the legality, validity or enforceability of this Agreement,
the Notes or the Indenture, or (iv) saleability or the value of the Memorabilia
taken as a whole, as determined by a third party appraiser acceptable to the
Agent in its sole discretion.
"PERSON" means and includes an individual, a partnership, a
corporation, a limited liability company, a business trust, a joint stock
company, a trust, an unincorporated association, a joint venture, a governmental
subdivision, agency or authority or any other entity of any nature.
"PROCEEDS" has the meaning assigned to it under the Code and, in any
event, shall include, but not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to Grantor from time to time
with respect to any of the Collateral, (ii) any and all payments (in any form
whatsoever) made or due and payable to any Grantor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental body,
authority, bureau or agency or any other Person (whether or not acting under
color of governmental authority) and (iii) any and all other monies or other
property from time to time paid or payable or distributed or distributable under
or in connection with any of the Collateral.
SECTION 2. GRANT OF SECURITY INTEREST. As collateral security for the
payment and performance of all of the Obligations (as defined in Section 3
hereof), each Grantor hereby pledges and assigns to the Agent, and grants to the
Agent a continuing security interest in, all of its personal property and
fixtures, wherever located and whether now or hereafter existing and whether now
owned or hereafter acquired, of every kind and description, tangible or
intangible (collectively, the "COLLATERAL"), including, without limitation, all
right, title and interest in and to the following:
(a) all equipment of any kind including, without limitation, all
furniture, fixtures and machinery, wherever located (including, without
limitation, at those locations set forth on Schedule IV hereto) and whether now
or hereafter existing and whether now owned or hereafter acquired, together with
all substitutes, replacements, accessions and additions thereto, and all tools,
parts, accessories and attachments used in connection therewith (hereinafter
collectively referred to as the "EQUIPMENT");
(b) (i) all inventory of any kind, wherever located (including,
without limitation, at those locations set forth on Schedule IV hereto) and
whether now or hereafter existing and whether now owned or hereafter acquired
(including, without limitation, all types of goods, property and other assets,
raw, in process and finished, and all other inventory, merchandise, goods and
other tangible personal property that its holds for sale or lease), all
materials used or consumed in its business, goods returned to or repossessed by
it, and goods in which it has an interest in mass or a joint or other interest
or right of any kind (including consigned goods or goods being processed), all
accessions thereto and products thereof and all packing and shipping materials
(hereinafter collectively referred to as the "INVENTORY");
(ii) (A) all memorabilia, collectibles, souvenirs, keepsakes or any
other tangible personal property wherever located (including, without
limitation, at those locations set forth on Schedule IV hereto) the market value
of which is to any extent derived from any association with (1) a celebrity,
entertainer, athlete or any other person reasonably understood to be a
celebrity, entertainer or athlete, or (2) any motion picture, television
program, series of television programs or sports or entertainment event, (B) all
memorabilia, collectibles, souvenirs or keepsakes recognized as such by the
Agent, to or in which it has a right of ownership (including, without
limitation, all items at any time appearing on the Memorabilia Report and any
Memorabilia Change Report), and (C) all trademarks (and Authenticity Documents
related thereto), copyrights and other intellectual property with respect
thereto, and all reproduction, display and other exploitative merchandising
rights in any and all media (hereinafter collectively referred to as the
"MEMORABILIA");
(c) (i) all accounts, contract rights, chattel paper, instruments,
documents, general intangibles and other obligations of any kind, whether now or
hereafter existing and whether now owned or hereafter acquired, arising out of
or in connection with the sale or lease of goods or any of the foregoing
Collateral (including, without limitation, the Inventory and the Memorabilia) or
the rendering of services or otherwise; and (ii) all rights now or hereafter
existing in and to all credit insurance, guaranties, letters of credit, security
agreements, leases and other contracts now or hereafter existing and securing or
otherwise relating to any such accounts, contract rights, chattel paper,
instruments, general intangibles or obligations (any and all such accounts,
contract rights, chattel paper, instruments, general intangibles and obligations
being hereinafter referred to collectively as the "RECEIVABLES", and any and all
such credit insurance, guaranties, letters of credit, security agreements,
leases and other contracts being hereinafter referred to collectively as the
"RELATED CONTRACTS");
(d) (i) all trademarks, service marks, trade names, business names,
trade dress, trade styles, designs, logos and other source or business
identifiers and all general intangibles of like nature, now or hereafter owned,
adopted, acquired or used in connection with any Collateral, including, without
limitation, Inventory or Memorabilia, all applications, registrations and
recordings thereof (including, without limitation, applications, registrations
and recordings in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any of state thereof or of any
other country or of any political subdivision thereof (including, without
limitation, all registered trademarks and pending trademark applications
identified in the tables set forth in Schedule II hereto, which are being
granted hereby by such Grantor identified in the leftmost entry of the row
corresponding to such registered trademark or pending application identified
therein)), and all reissues, extensions or renewals thereof, together with all
goodwill of the business symbolized by such marks and all customer lists,
formulae and other records relating to the distribution of products and services
in connection with which any of such marks are used, and all income, royalties,
damages and payments now or hereafter due and/or payable under and with respect
thereto, including, without limitation, payments under all licenses entered into
in connection therewith and damages and payments for past and future
infringements or dilutions thereof and the right to sue for past, present and
future infringements and dilutions thereof (hereinafter referred to collectively
as the "TRADEMARKS"), and (ii) all licenses, contracts or other agreements,
whether written or oral, naming it as licensor or licensee and providing for the
grant of any right to use any Trademark, including, without limitation, all
Trademark licenses identified in the table set forth in Schedule II hereto, such
license, contract or other agreement being granted hereby by such Grantor
identified in the column corresponding to such Trademark license, contract or
other contract, together with any goodwill connected with and symbolized by any
such Trademark licenses or agreements and the right to prepare for sale and sell
any and all Inventory or Memorabilia now or hereafter owned and now or hereafter
covered by such licenses (hereinafter referred to collectively as the "TRADEMARK
LICENSES");
(e) (i) all letters patent, design patents and utility patents, and
all copyrights, inventions, trade secrets, proprietary information and
technology, know-how, formulae and other general intangibles of like nature, now
existing or hereafter acquired, all applications, registrations and recordings
thereof (including, without limitation, applications, registrations and
recordings in the United States Patent and Trademark Office or in any similar
office or agency of the United States or of any other country or of any
political subdivision thereof (including, without limitation, all issued
patents, pending patent applications and patent applications in preparation
identified in the tables set forth in Schedule III hereto, which are being
granted hereby by such Grantor identified in the leftmost entry of the row
corresponding to such issued patents, pending patent applications and patent
applications in preparation identified therein)), and all reissues, divisions,
continuations, continuations in part and extensions or renewals thereof
(hereinafter referred to collectively as the "PATENTS"), and (ii) all licenses,
contracts or other agreements, whether written or oral, naming it as licensee or
licensor and providing for the grant of any right to manufacture, use or sell
any invention covered by any Patent, including, without limitation, all Patents
identified in the table set forth in Schedule III hereto, such license, contract
or other agreement being granted hereby by such Grantor identified in the row
corresponding to such Patent license (hereinafter referred to collectively as
the "PATENT LICENSES");
(f) (i) all domestic and foreign copyrights, including, without
limitation, all copyright rights throughout the world (whether now or hereafter
arising) in any and all media (whether now or hereafter developed), in and to
all original works of authorship fixed in any tangible medium of expression,
acquired or used, all applications, registrations and recordings thereof
(including, without limitation, applications, registrations and recordings in
the United States Copyright Office or in any similar office or agency of the
United States or any other country or any political subdivision thereof
(including, without limitation, all registered copyrights identified in the
tables set forth in Schedule IV hereto, which are being granted hereby by such
Grantor identified in the leftmost entry of the row corresponding to such
registered copyrights identified therein)), and all reissues, divisions,
continuations, continuations in part and extensions or renewals thereof
(hereinafter referred to collectively as the "COPYRIGHTS"), and (ii) all
licenses, contracts or other agreements, whether written or oral, naming it as
licensee or licensor and providing for the grant of any right to use or sell any
works covered by any Copyright, including, without limitation, all Copyrights
identified in the table set forth in Schedule IV hereto, such license, contract
or other agreement being granted hereby by such Grantor identified in the row
corresponding to such Copyright license (hereinafter referred to collectively as
the "COPYRIGHT LICENSES" and together with the Trademark Licenses and the Patent
Licenses, the "LICENSES");
(g) (i) all moneys, securities and other property, and the Proceeds
thereof, now or hereafter held or received by, or in transit to, the Agent from
or for it, whether for safekeeping, pledge, custody, transmission, collection or
otherwise, and all of its claims against the Agent at any time existing; (ii)
all rights relating to the sale or other transfer of property to, or the
construction, renovation or other improvement of property by or for, such
Grantor (other than the Retail Unit); (iii) all rights, interests, choses in
action, causes of actions, claims and all other intangible property of every
kind and nature, in each instance whether now owned or hereafter acquired,
including, without limitation, all corporate and other business records, all
loans, royalties, and all other forms of obligations receivable whatsoever
(other than Receivables); (iv) all computer programs, software, printouts and
other computer materials, customer lists, credit files, correspondence and
advertising materials; (v) all customer and supplier contracts, sale orders,
rights under license and franchise agreements, and other contracts and contract
rights; (vi) all interests in partnerships, joint ventures and other entities
including all moneys due from time to time in respect thereof; (vii) all
federal, state and local tax refunds and federal, state and local tax refund
claims; (viii) all right, title and interest under leases, subleases, licenses
and concessions and other agreements relating to personal property, including
all moneys due from time to time in respect thereof; (ix) all payments due or
made to such Grantor in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of any property by any Person, Governmental
Authority or regulatory body; (x) the Cash Concentration Account, the Letter of
Credit Cash Collateral Account, all Depository Accounts (each as defined in the
Revolving Credit Agreement) and all other deposit accounts (general or special)
with any bank or other financial institution, including, without limitation, all
depository or other accounts maintained by such Grantor at the Revolving Credit
Agent or any Lender and all funds on deposit therein and the balance from time
to time in all accounts described in Schedule VI hereto; (xi) all credits with
and other claims against third parties (including carriers and shippers); (xii)
all rights to indemnification; (xiii) all reversionary interests in pension and
profit sharing plans and reversionary, beneficial and residual interests in
trusts; (xiv) all letters of credit, guaranties, liens, security interests and
other security held by or granted to such Grantor; (xv) all instruments, files,
records, ledger sheets and documents covering or relating to any of the
Collateral; and (xvi) all general intangibles, whether or not similar to the
foregoing, in each instance, however and wherever arising;
(h) all books and records relating to any of the foregoing Collateral,
including, without limitation, (i) all customer contracts, sale orders, minute
books, ledgers, records, computer programs, software, printouts, Authenticity
Documents and other computer materials, customer lists, credit files,
correspondence and advertising materials, in each case indicating, summarizing
or evidencing any of the Collateral, and (ii) all right, title and interest in
and under any purchase agreements, bills of sale, invoices or similar documents
in respect of any of the Memorabilia, as such documents may be amended or
otherwise modified from time to time (hereinafter collectively referred to as
the "PURCHASE AGREEMENTS"); and
(i) all Proceeds of any and all of the foregoing Collateral
(including, without limitation, (i) damages and payments for past or future
infringements of the Trademarks, the Patents or the Copyrights, (ii) the right
to sue for past, present and future infringements of the Trademarks, the Patents
or the Copyrights, (iii) all right, title and interest in and to all policies of
insurance covering any Collateral, including, without limitation, the Inventory
and the Memorabilia, and (iv) to the extent not otherwise included, all payments
under insurance (whether or not the Agent is the loss payee thereof) and any
indemnity, warranty or guaranty payable by reason of loss or damage to or
otherwise with respect to any of the foregoing Collateral, including, without
limitation, the Inventory and the Memorabilia, in each case howsoever such
interest therein may arise or appear (whether by ownership, security interest,
claim or otherwise)).
Notwithstanding anything herein to the contrary, in no event shall the
Collateral include, and no Grantor shall not be deemed to have granted a
security interest in, any rights or interests in any license, contract or
agreement to which it is a party or any of its rights or interests thereunder to
the extent that such a grant would, under the express terms of such license,
contract or agreement or otherwise, result in a breach of the terms of, or
constitute a default under such license, contract or agreement (other than to
the extent that any such term would be rendered ineffective pursuant to Section
9-318(4) of the Code of any relevant jurisdiction or any other applicable law
(including the Bankruptcy Code) or principles of equity); PROVIDED, HOWEVER,
that the Collateral shall include (x) any and all proceeds of Collateral to the
extent that the assignment or encumbering of such proceeds is not so restricted,
and (y) upon any such licensor or other applicable party's consent with respect
to any such otherwise excluded item of Collateral being obtained, thereafter
such item of Collateral as well as any Proceeds thereof that might theretofore
have been excluded from such grant, assignment, transfer, and conveyance of a
security interest and the term Collateral.
SECTION 3. SECURITY FOR OBLIGATIONS. The security interests created
hereby in the Collateral constitute continuing collateral security for all of
the following obligations, whether now existing or hereafter incurred (the
"OBLIGATIONS"):
(a) the due and punctual payment of the principal and premium, if any,
of, and interest on, the Notes when and as the same shall be due and payable, by
acceleration, repurchase, redemption or otherwise, interest on the overdue
principal of and interest (to the extent permitted by law), if any, on the Notes
and under the Indenture (including, without limitation, all interest that
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency or reorganization of any Grantor); and
(b) the due performance and observance by each Grantor of all of its
other obligations from time to time existing in respect of the Notes and the
Indenture.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each Grantor represents and
warrants as follows:
(a) Except as set forth in the financial statements referred to in
Section 7.08 of the Revolving Credit Agreement and on Schedule 7.07 thereto,
there is not, to its best knowledge, any pending or threatened (i) action, suit,
proceeding or claim before any court, Governmental Authority, arbitrator or
grand jury against or affecting any Grantor or any ERISA Affiliate with respect
to any Environmental Law or ERISA, that, if adversely decided, could reasonably
be expected to have a Material Adverse Effect, or (ii) any order, judgment or
award by any court, Governmental Authority or arbitrator, that may adversely
affect the grant, or the perfection, of the security interest purported to be
created hereby, or the exercise by the Agent of any of its rights or remedies
hereunder.
(b) All taxes, assessments and other governmental charges imposed upon
it or any of its property (including, without limitation, all federal income and
social security taxes on employees' wages) and which have become due and payable
on or prior to the date hereof have been paid, except to the extent contested in
good faith by proper proceedings which stay the imposition of any penalty, fine
and Lien resulting from the non-payment thereof and with respect to which
adequate reserves in accordance with GAAP have been established for the payment
thereof.
(c) All Equipment, Inventory and Memorabilia now existing is, and all
Equipment, Inventory and Memorabilia hereafter existing will be, located at the
addresses specified therefor in Schedule V hereto. Its chief place of business
and chief executive office, the place where it keeps its records concerning
Receivables and all originals of all chattel paper which constitute Receivables
are located at the addresses specified therefor in Schedule V hereto. None of
the Receivables is evidenced by a promissory note or other instrument. Set forth
in Schedule VII hereto is a complete and correct list of each trade name used by
each Grantor identified therein. Set forth in Schedule VI hereto is a complete
and correct list of each Depository Account and other bank and securities
account held and granted hereby by such Grantor identified in the leftmost entry
of the row corresponding to such Depository Account, the account number and the
type of account.
(d) It has delivered to the Agent complete and correct copies of each
Trademark License identified in Schedule II hereto and each Copyright License
identified in Schedule IV hereto, including all schedules and exhibits thereto.
Each such License sets forth the entire agreement and understanding of the
parties thereto relating to the subject matter thereof, and there are no other
agreements, arrangements or understandings, written or oral, relating to the
matters covered thereby or the rights in respect thereof. Each Related Contract
now existing is, and each other Related Contract will be, the legal, valid and
binding obligation of the parties thereto, enforceable against such parties in
accordance with its terms. No default thereunder by any such party has occurred,
nor does any defense, offset, deduction or counterclaim exist thereunder in
favor of any such party.
(e) It owns and controls, or otherwise possesses adequate rights to
use, all Trademarks, Patents and Copyrights, which are the only trademarks,
patents and copyrights necessary to conduct its business in substantially the
same manner as conducted as of the date hereof; PROVIDED, HOWEVER, that any
failure to own, control or possess such rights shall not make this subsection
(e) a Material Adverse Effect unless such failure could reasonably be expected
to result in a Material Adverse Effect. Schedule II hereto sets forth a true and
complete list of all Trademarks and Trademark Licenses owned or used by it as of
the date hereof. Schedule III hereto sets forth a true and complete list of all
Patents and Patent Licenses owned or used by it as of the date hereof. Schedule
IV hereto sets forth a true and complete list of all Copyrights and Copyright
Licenses owned or used by it as of the date hereof. All of such Trademarks,
Patents and Copyrights are subsisting and in full force and effect, have not
been adjudged invalid or unenforceable, are valid and enforceable and have not
been abandoned in whole or in part. Except as set forth in Schedule II, III or
IV hereto, none of such Trademarks, Patents or Copyrights is the subject of any
licensing or franchising agreement. It has no knowledge of any conflict with the
rights of others to any Trademark, Patent or Copyright and, to the best of its
knowledge, it is not now infringing or in conflict with any such rights of
others in any material respect, and to the best its knowledge, no other Person
is now infringing or in conflict in any material respect with any such
properties, assets and rights owned or used by it.
(f) Each item of Memorabilia is an original and authentic piece of
Memorabilia.
(g) Subject to the terms and conditions of the Intercreditor
Agreement, it is and will be at all times the sole and exclusive owner of the
Collateral free and clear of any Lien, except for Permitted Liens. No effective
financing statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any recording or filing office except such
as may have been filed in favor of the Agent relating to this Agreement.
(h) The exercise by the Agent of any of its rights and remedies
hereunder will not contravene law or any contractual restriction binding on or
otherwise affecting it or any of its properties and will not result in or
require the creation of any Lien upon or with respect to any of its properties.
(i) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority or other regulatory body, or any
other Person, is required for (i) the grant by it, or the perfection, of the
security interest purported to be created hereby in the Collateral or (ii) the
exercise by the Agent of any of its rights and remedies hereunder, except (A)
with respect to the perfection of the security interest created hereby in the
United States Trademarks or the United States Copyrights for the recording of
the Assignment for Security (Trademarks) in the United States Patent and
Trademark Office, the Assignment for Security (Copyrights) in the United States
Copyright Office and the filing under the Uniform Commercial Code as in effect
in the applicable jurisdiction of the financing statements described in Schedule
VIII hereto, all of which financing statements have been duly filed and are in
full force and effect, or (B) with respect to the perfection of the security
interest created hereby in foreign Trademarks, Patents and Copyrights, for
registrations and filings in jurisdictions located outside of the United States
and covering rights in such jurisdictions relating to Patents, Trademarks,
Copyrights, Patent Licenses, Trademark Licenses and Copyright Licenses.
(j) This Agreement creates valid security interests in favor of the
Agent in the Collateral, as security for the Obligations. The Revolving Credit
Agent's having possession of all instruments and cash constituting Collateral
from time to time, the recording of the Assignment for Security (Trademarks),
the Assignment for Security (Patents) and the Assignment for Security
(Copyrights), as applicable, executed pursuant hereto in the United States
Patent and Trademark Office, and the United States Copyright Office, as
applicable, and the filing of the financing statements described in Schedule
VIII hereto and, with respect to Patents, Trademarks and Copyrights hereafter
existing and not covered by such an Assignment for Security (Trademarks), an
Assignment for Security (Patents) or an Assignment for Security (Copyrights), as
applicable, the recording in the United States Patent and Trademark Office or
the United States Copyright Office, as applicable, of appropriate instruments of
assignment, result in the perfection of such security interests. Upon such
recordings and filings, such security interests are, or in the case of
Collateral in which it obtains rights after the date hereof, will be perfected
security interests having the priorities set forth in the Intercreditor
Agreement. Such recordings and filings and all other action necessary or
desirable to perfect and protect such security interest have been duly taken,
except for the Revolving Credit Agent's having possession of instruments and
cash constituting Collateral after the date hereof and the other filings and
recordations described in Section 4(i) hereof.
(k) No Memorabilia is subject to any restriction on pledge, transfer
or sale.
SECTION 5. COVENANTS AS TO THE COLLATERAL. So long as any of the
Obligations shall remain outstanding, unless the Agent shall otherwise consent
in writing:
(a) FURTHER ASSURANCES. Each Grantor will at its expense, at any time
and from time to time, promptly execute and deliver all further instruments and
documents and take all further action that may be reasonably necessary or
reasonably desirable or that the Agent may reasonably request in order (i) to
perfect and protect the security interest purported to be created hereby, (ii)
to enable the Agent to exercise and enforce its rights and remedies hereunder in
respect of the Collateral, or (iii) otherwise to effect the purposes of this
Agreement, including, without limitation (A) marking conspicuously each chattel
paper included in the Receivables and each License and Related Contract and, at
the request of the Agent, each of its records pertaining to the Collateral with
a legend, in form and substance satisfactory to the Agent, indicating that such
chattel paper, License, Related Contract or Collateral is subject to the
security interest created hereby, (B) if any Receivable shall be evidenced by a
promissory note or other instrument or chattel paper, delivering and pledging to
the Agent hereunder any such note, instrument or chattel paper duly endorsed and
accompanied by executed instruments of transfer or assignment, all in form and
substance satisfactory to the Agent, (C) executing and filing such financing or
continuation statements, or amendments thereto, as may be necessary or desirable
or that the Agent may request in order to perfect and preserve the security
interest purported to be created hereby, and (D) furnishing to the Agent from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the Agent
may reasonably request, all in reasonable detail.
(b) CONDITION OF EQUIPMENT. Each Grantor will maintain or cause to be
maintained in good repair, working order and condition, excepting ordinary wear
and tear and damage due to casualty, all of the Equipment and make or cause to
be made all of the appropriate repairs, renewals and replacements thereof which
are necessary or desirable and consistent with its past practice, as quickly as
practicable after the occurrence of any loss or damage thereto. Each Grantor
shall promptly furnish to the Agent a statement describing in reasonable detail
any loss or damage in excess of $500,000 to any Equipment, Inventory or
Memorabilia due to casualty.
(c) TAXES, ETC. Each Grantor will pay promptly when due all property
and other taxes, assessments and governmental charges or levies imposed upon,
and all claims (including claims for labor, materials and supplies) against, the
Equipment, the Inventory or the Memorabilia, except to the extent the validity
thereof is being contested in good faith by proper proceedings which stay the
imposition of any penalty, fine or lien resulting from the non-payment thereof
and with respect to which adequate reserves in accordance with GAAP have been
set aside for the payment thereof.
(d) INSURANCE.
(i) Each Grantor shall, at its own expense, maintain
insurance (including, without limitation, comprehensive general
liability and property insurance) with respect to the Equipment and
Inventory in such amounts, against such risks, in such form and with
such insurers as shall be satisfactory to the Agent from time to time
keep its properties adequately insured and maintain (i) insurance to
such extent and against such risks, including fire, as is customary
with companies in the same or similar businesses, (ii) workmen's
compensation insurance in the amount required by applicable law, (iii)
public liability insurance in the amount customary with companies in
the same or similar business against claims for personal injury or
death on properties owned, occupied or controlled by it, and (iv) such
other insurance as may be required by law or by the Indenture. With
respect to each Grantor, each policy for liability insurance shall
provide for all losses to be paid on behalf of the Agent and such
Grantor as their respective interests may appear. With respect to each
Grantor, each policy for property damage insurance shall (1) provide
for all losses to be paid directly to the Agent, (2) name such Grantor
and the Agent as insured parties thereunder (without any
representation or warranty by or obligation upon the Agent) as their
interests may appear, (3) contain the agreement by the insurer that
any loss thereunder shall be payable as provided above notwithstanding
any action, inaction or breach of representation or warranty by such
Grantor, (4) provide that there shall be no recourse against the Agent
for payment of premiums or other amounts with respect thereto, and (5)
provide that at least thirty (30) days' prior written notice of
cancellation or of lapse shall be given to the Agent by the insurer.
Each Grantor will, if so requested by the Agent, deliver to the Agent
original or duplicate policies of such insurance and will deliver on
the date hereof, and thereafter as often as the Agent may reasonably
request, a report of a reputable insurance broker with respect to
certifying such insurance to be adequate and customary. Each Grantor
will also, at the request of the Agent, execute and deliver
instruments of assignment of such insurance policies and cause the
respective insurers to acknowledge notice of such assignment.
(ii) Payment under any liability insurance maintained by any
Grantor pursuant to this Section 5(d) may be paid directly to the
Person who shall have incurred liability covered by such insurance. In
the case of any loss involving damage to Equipment, Inventory or
Memorabilia as to which paragraph (iii) of this Section 5(d) is not
applicable, the applicable Grantor will make or cause to be made the
necessary repairs to or replacements of such Equipment, Inventory or
Memorabilia, and, subject to Section 5(d)(i), any proceeds of
insurance maintained by such Grantor pursuant to this Section 5(d)
shall be paid by the Agent to such Grantor as reimbursement for the
costs of such repairs or replacements.
(iii) Without limiting the foregoing, upon the occurrence
and during the continuance of an Event of Default or upon the actual
or constructive total loss (in excess of $250,000 per occurrence) of
any Equipment, Inventory or Memorabilia, all insurance payments in
respect of such Equipment, Inventory or Memorabilia shall be paid and
applied as specified in Section 5(d)(i) hereof.
(e) PROVISIONS CONCERNING THE RECEIVABLES, THE RELATED CONTRACTS AND
THE LICENSES.
(i) Each Grantor will (A) give the Agent at least thirty
(30) days' prior written notice of any change in its name, identity or
organizational structure and, in the event of any such change, shall
take all actions necessary to preserve the Agent's rights in the
Collateral, including, without limitation, the existence, perfection
and priority of the security interest created hereby in such
Collateral, (B) keep its chief place of business and chief executive
office and all originals of all chattel paper that constitute
Receivables at the location(s) specified therefor in Schedule V hereof
or at such other locations of which it has given the Agent thirty (30)
days' prior written notice; PROVIDED, HOWEVER, in the event of any
such change, shall take all actions necessary to preserve the Agent's
rights in the Collateral, including, without limitation, the
existence, perfection and priority of the security interest created
hereby in such Collateral and (C) keep adequate records concerning the
Receivables and such chattel paper and permit representatives of the
Agent at any time during normal business hours to inspect and make
abstracts from such records and chattel paper.
(ii) Each Grantor will duly perform and observe all of its
obligations under each Related Contract and, except as otherwise
provided in this subsection (e), continue to collect, at its own
expense, all amounts due or to become due under the Receivables. In
connection with such collections, each Grantor may (and, at the
Agent's direction, will) take such action as it or the Agent may deem
necessary or advisable to enforce collection or performance of the
Receivables; PROVIDED, HOWEVER, that the Agent shall have the right at
any time, upon the occurrence and during the continuance of an Event
of Default, to notify the account debtors or obligors under any
Receivables of the assignment of such Receivables to the Agent and to
direct such account debtors or obligors to make payment of all amounts
due or to become due to it thereunder directly to the Agent or its
designated agent and, upon such notification and at the expense of
such Grantor and to the extent permitted by law, to enforce collection
of any such Receivables and to adjust, settle or compromise the amount
or payment thereof, in the same manner and to the same extent as such
Grantor might have done. After receipt of a notice from the Agent that
the Agent has notified or intends to notify the account debtors or
Obligors under any Receivables as referred to in the proviso to the
immediately preceding sentence, (A) all amounts and Proceeds
(including instruments) received by such Grantor in respect of the
Receivables shall be received in trust for the benefit of the Agent
hereunder, shall be segregated from other funds of such Grantor and
shall be forthwith paid over to the Agent in the same form as so
received (with any necessary endorsement) to be held as cash
collateral and either (1) released to such Grantor so long as no Event
of Default shall have occurred and be continuing or (2) if any
Potential Default or Event of Default shall have occurred and be
continuing, applied as specified in Section 7(b) hereof, and (B) such
Grantor will not adjust, settle or compromise the amount or payment of
any Receivable or release wholly or partly any account debtor or
obligor thereof or allow any credit or discount thereon. In addition,
upon the occurrence and during the continuance of an Event of Default,
the Agent shall have the right to notify the United States Postal
Service authorities to change the address for delivery of mail
addressed to any Grantor at such address as the Agent may designate
and to do all other acts and things necessary to carry out this
Agreement.
(iii) Upon the occurrence and during the continuance of any
breach or default under any Related Contract or any License referred
to in Schedule II, III or IV hereto by any party thereto other than a
Grantor, the Grantor party to such Related Contract or License (A)
will promptly after obtaining knowledge thereof, give the Agent
written notice of the nature and duration thereof, specifying what
action, if any, it has taken and proposes to take with respect
thereto, (B) will not, without the prior written consent of the Agent,
declare or waive any such breach or default or affirmatively consent
to the cure thereof or exercise any of its remedies in respect
thereof, and (C) will, upon written instructions from the Agent and at
such Grantor's expense, take such action as the Agent may deem
necessary or advisable in respect thereof.
(iv) Each Grantor will, at its expense, promptly deliver to
the Agent a copy of each notice or other communication received by it
by which any other party to any Related Contract or any License
referred to in Schedule II, III or IV hereto purports to exercise any
of its rights or affect any of its obligations thereunder, together
with a copy of any reply by it thereto.
(v) Except as set forth in Section 5.02 of the Revolving
Credit Agreement, each Grantor will exercise promptly and diligently
each and every right which it may have under each License (other than
any right of termination) and will duly perform and observe in all
respects all of its obligations under each License and will take all
action necessary to maintain all Licenses necessary for the operation
of its business in full force and effect. No Grantor will, without the
prior written consent of the Agent, cancel, terminate, amend or
otherwise modify in any respect, or waive any provision of, any
Related Contract or any License referred to in Schedule II, III or IV
hereto.
(f) TRANSFERS AND OTHER LIENS.
(i) No Grantor will sell, assign (by operation of law or
otherwise), lease, exchange or otherwise transfer or dispose of any of
the Collateral except to the extent expressly permitted under Section
10.3 of the Indenture.
(ii) No Grantor will create or suffer to exist any Lien upon
or with respect to any Collateral except for Permitted Liens under the
Indenture.
(g) TRADEMARKS, PATENTS AND COPYRIGHTS.
(i) Except as set forth in Section 5.02 of the Revolving
Credit Agreement, each Grantor (either itself or through licensees)
will, and will cause each licensee thereof to, take all action
necessary to maintain all of the Trademarks, Patents and Copyrights in
full force and effect, including, without limitation, using all proper
statutory notices and markings and using the Trademarks on each
applicable trademark class of goods or services in order to so
maintain the Trademarks in full force free from any claim of
abandonment for non-use, and will not (and will not permit any
licensee thereof to) do any act or knowingly omit to do any act
whereby any Trademark, Copyright or Patent may become invalidated;
PROVIDED, HOWEVER, that so long as no Event of Default has occurred
and is continuing, no Grantor shall have an obligation to use or to
maintain any Trademark or Copyright (A) that relates solely to any
product that has been, or is in the process of being, discontinued,
abandoned or terminated, (B) that is being replaced with a trademark
or copyright substantially similar to the Trademark or Copyright, as
the case may be, that may be abandoned or otherwise become invalid, so
long as such replacement Trademark or Copyright, as the case may be,
is subject to the security interest purported to be created by this
Agreement, or (C) that is substantially the same as another Trademark
or Copyright, as the case may be, that is in full force, so long as
such other Trademark or Copyright, as the case may be, is subject to
the lien and security interest created by this Agreement. Each Grantor
will cause to be, taken all necessary steps in any proceeding before
the United States Patent and Trademark Office and the United States
Copyright Office to maintain each registration of the Trademarks, the
Patents and the Copyrights (other than those Trademarks, Patents or
Copyrights described in the proviso to the immediately preceding
sentence), including, without limitation, filing of renewals,
affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings and payment of all requisite
fees and taxes. Each Grantor shall, if any Trademark, Patent or
Copyright is infringed, misappropriated or diluted in any material
respect by a third party, (x) upon learning of such infringement,
misappropriation or dilution, promptly notify the Agent and (y) to the
extent it shall deem appropriate under the circumstances, promptly sue
for infringement, misappropriation or dilution, seek injunctive relief
where appropriate and recover any and all damages for such
infringement, misappropriation or dilution, or take such other actions
as it deems appropriate under the circumstances to protect such
Trademark, Patent or Copyright. Each Grantor shall furnish to the
Agent from time to time (but, unless an Event of Default has occurred
and is continuing, no more frequently than annually) statements and
schedules further identifying and describing the Patents, the
Trademarks and the Copyrights and such other reports in connection
with the Patents, the Trademarks and the Copyrights as the Agent may
reasonably request, all in reasonable detail and promptly upon request
of the Agent; following receipt by the Agent of any such statements,
schedules or reports, the Grantors shall modify this Agreement by
amending Schedules II or, III or IV hereto, as the case may be, to
include any Patent, Trademark or Copyright which becomes part of the
Collateral under this Agreement. Notwithstanding anything herein to
the contrary, upon the occurrence and during the continuance of an
Event of Default, no Grantor may abandon or otherwise permit a
Trademark, Patent or Copyright to become invalid without the prior
written consent of the Agent, and if any Trademark, Patent or
Copyright is infringed, misappropriated or diluted in any material
respect by a third party, each Grantor will take such action as the
Agent shall deem appropriate under the circumstances to protect such
Trademark, Patent or Copyright.
(ii) In no event shall any Grantor, either itself or through
any agent, employee, licensee or designee, file an application for the
registration of any Trademark or Copyright or the issuance of any
Patent with the United States Patent and Trademark Office or the
United States Copyright Office, as applicable, unless it gives the
Agent prior written notice thereof. Upon request of the Agent, any
such Grantor shall execute and deliver any and all assignments,
agreements, instruments, documents and papers as the Agent may
reasonably request to evidence the Agent's security interest hereunder
in such Trademark, Copyright or Patent and the general intangibles
relating thereto or represented thereby, and each Grantor hereby
constitutes the Agent its attorney-in-fact to execute and file all
such writings for the foregoing purposes, all acts of such attorney
being hereby ratified and confirmed, and such power (being coupled
with an interest) shall be irrevocable until the termination of all of
the Obligations in full.
(h) [Intentionally left blank]
(i) MEMORABILIA. Each Grantor shall (i) cause the Memorabilia to be
maintained and preserved in the same condition as when acquired; (ii) at its own
expense, defend its right, title and interest in and to the Memorabilia against
the claims of any Person; (iii) not cancel or terminate, or make or consent to
any cancellation, termination, amendment or other modification or waiver with
respect to, any Purchase Agreement; or (iv) not take or fail to take any action
that would in any manner impair the enforceability of any of the Purchase
Agreements against the seller that is a party thereto.
SECTION 6. ADDITIONAL PROVISIONS CONCERNING THE COLLATERAL.
(a) Each Grantor hereby authorizes the Agent to file, without its
signature where permitted by law, one or more financing or continuation
statements, and amendments thereto, relating to the Collateral.
(b) Each Grantor hereby irrevocably appoints the Agent its
attorney-in-fact and proxy, with full authority in its place and stead and in
its name or otherwise, from time to time in the Agent's discretion, to take any
action and to execute any instrument which the Agent may deem reasonably
necessary or reasonably advisable to accomplish the purposes of this Agreement
(subject to its rights under Section 5(e) hereof), including, without
limitation, (i) upon the occurrence and during the continuance of an Event of
Default, to obtain and adjust insurance required to be paid to the Agent
pursuant to Section 5(d) hereof, (ii) upon the occurrence and during the
continuance of an Event of Default, to ask, demand, collect, sue for, recover,
compound, receive and give acquitance and receipts for moneys due and to become
due under or in respect of any Collateral, (iii) upon the occurrence and during
the continuance of an Event of Default, to receive, endorse, and collect any
drafts or other instruments, documents and chattel paper in connection with
clause (i) or (ii) above, and (iv) upon the occurrence of an Event of Default,
to file any claims or take any action or institute any proceedings which the
Agent may deem reasonably necessary or reasonably desirable for the collection
of any Collateral or otherwise to enforce the rights of the Agent with respect
to any Collateral.
(c) For the purpose of enabling the Agent to exercise rights and
remedies hereunder at such time as the Agent shall be lawfully entitled to
exercise such rights and remedies, and for no other purpose, each Grantor hereby
grants to the Agent, to the extent assignable, an irrevocable, non-exclusive
license (exercisable without payment of royalty or other compensation to any
Grantor) to use, assign, license or sublicense any of the Patents, Trademarks or
Copyrights now owned or hereafter acquired by such Grantor, wherever the same
may be located, including in such license reasonable access to all media in
which any of the licensed items may be recorded or stored and to all computer
programs used for the compilation or printout thereof. Notwithstanding anything
contained herein to the contrary, but subject to the provisions of the Indenture
that limits the right of the Grantors to dispose of property and Section 5(g)
hereof, so long as no Event of Default shall have occurred and be continuing,
each Grantor may exploit, use, enjoy, protect, license, sublicense, assign,
sell, dispose of or take other actions with respect to the Patents, Trademarks
or Copyrights in the ordinary course of its business. In furtherance of the
foregoing, unless an Event of Default shall have occurred and be continuing, the
Agent shall from time to time, upon the request of a Grantor, execute and
deliver any instruments, certificates or other documents, in the form so
requested, which such Grantor shall have certified are appropriate (in its
judgment) to allow it to take any action permitted above (including
relinquishment of the license provided pursuant to this clause (c) as to any
Patents, Trademarks or Copyrights). Further, upon the payment in full of all of
the Obligations, the Agent (subject to Section 10(e) hereof) shall transfer to
each Grantor all of the Agent's right, title and interest in and to the Patents,
Trademarks and Copyrights, and the Licenses, all without recourse,
representation or warranty whatsoever. The exercise of rights and remedies
hereunder by the Agent shall not terminate the rights of the holders of any
licenses or sublicenses material to the business of the Grantors taken as a
whole theretofore granted by the Grantors in accordance with the second sentence
of this clause (c). Each Grantor hereby releases the Agent from any claims,
causes of action and demands at any time arising out of or with respect to any
actions taken or omitted to be taken by the Agent under the powers of attorney
granted herein other than actions taken or omitted to be taken through the
Agent's gross negligence or willful misconduct.
(d) If any Grantor fails to perform any agreement contained herein,
the Agent may itself perform, or cause performance of, such agreement or
obligation, in the name of such Grantor or the Agent, and the expenses of the
Agent incurred in connection therewith shall be payable by any Grantor pursuant
to Section 8 hereof.
(e) The powers conferred on the Agent hereunder are solely to protect
its interest in the Collateral and shall not impose any duty upon it to exercise
any such powers. Except for the safe custody of any Collateral in its possession
and the accounting for moneys actually received by it hereunder, the Agent shall
have no duty as to any Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any
Collateral.
(f) Anything herein to the contrary notwithstanding, (i) each Grantor
shall remain liable under the Related Contracts and Licenses and otherwise with
respect to any of the Collateral to the extent set forth therein to perform all
of its obligations thereunder to the same extent as if this Agreement had not
been executed, (ii) the exercise by the Agent of any of its rights hereunder
shall not release any Grantor from any of its obligations under the Related
Contracts and Licenses or otherwise in respect of the Collateral, and (iii)
except as expressly provided herein or as required by applicable law, the Agent
shall not have any obligation or liability by reason of this Agreement under the
Related Contracts and Licenses or with respect to any of the other Collateral,
nor shall the Agent be obligated to perform any of the obligations or duties of
any Grantor thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
SECTION 7. REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
shall have occurred and be continuing:
(a) The Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to it,
all of the rights and remedies of a secured party upon default under the Code
(whether or not the Code applies to the affected Collateral), and also may (i)
require any Grantor to, and each Grantor hereby agrees that it will at its
expense and upon request of the Agent forthwith, assemble all or part of the
Collateral as directed by the Agent and make it available to the Agent at a
place or places to be designated by the Agent which is reasonably convenient to
both parties, and (ii) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any of the Agent's offices or elsewhere, for cash, on credit or for future
delivery, and at such price or prices and upon such other terms as the Agent may
deem commercially reasonable. Each Grantor agrees that, to the extent notice of
sale shall be required by law, at least ten (10) days' notice to it of the time
and place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.
The Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned. Each
Grantor hereby waives any claims against the Agent and the Lenders arising by
reason of the fact that the price at which the Collateral may have been sold at
a private sale was less than the price which might have been obtained at a
public sale or was less than the aggregate amount of the Obligations, even if
the Agent accepts the first offer received and does not offer the Collateral to
more than one offeree and waives all rights which it may have to require that
all or any part of the Collateral be marshalled upon any sale (public or
private) thereof. In addition to the foregoing, (i) upon written notice from the
Agent, each Grantor shall cease any use of the Copyrights or the Trademarks or
any mark similar thereto for any purpose described in such notice; (ii) the
Agent may, at any time and from time to time, upon ten (10) days' prior notice
to any Grantor, license, whether general, special or otherwise, and whether on
an exclusive or non-exclusive basis, any of its Copyrights, Trademarks and
Patents, throughout the world for such term or terms, on such conditions, and in
such manner, as the Agent shall in its sole discretion determine; and (iii) the
Agent may, at any time, pursuant to the authority granted in Section 6 hereof
(such authority being effective upon the occurrence of an Event of Default),
execute and deliver on behalf of any Grantor, one or more instruments of
assignment of the Copyrights, Trademarks and Patents (or any application or
registration thereof), in form suitable for filing, recording or registration in
any country.
(b) Any cash held by the Agent as Collateral and all Proceeds received
by the Agent in respect of any sale or collection from, or other realization
upon, all or any part the Collateral, shall be promptly applied by the Agent
against all or any part of the Obligations as follows:
(i) first, to the payment of the costs and expenses of such
sale, collection or other realization, including the out-of-pocket
costs and expenses of the Agent and the reasonable fees, costs,
expenses and other client charges of counsel employed in connection
therewith, to the payment of all advances made by the Agent for the
account of any Grantor hereunder and to the payment of all costs and
expenses incurred by the Agent in connection with the administration
and enforcement of this Agreement;
(ii) second, at the option of the Agent, to the payment or
other satisfaction of any Liens and other encumbrances upon any of the
Collateral;
(iii) third, to the payment of all other Obligations then
due and payable under the Notes and the Indenture;
(iv) fourth, to the payment of any other amounts required by
applicable law (including, without limitation, Section 9-504(1)(c) of
the Code or any successor or similar, applicable statutory provision);
and
(v) fifth, to the Grantors or to whomsoever shall be
lawfully entitled to receive the same or as a court of competent
jurisdiction shall direct.
(c) In the event that the Proceeds of any such sale, collection or
realization are insufficient to pay all amounts to which the Agent is legally
entitled, the Grantors shall be jointly and severally liable for the deficiency,
together with interest thereon at the highest rate specified in the Notes for
interest on overdue principal thereof or such other rate as shall be fixed by
applicable law, together with the costs of collection and the reasonable fees,
costs, expenses and other client charges of any attorneys employed by the Agent
to collect such deficiency.
(d) Notwithstanding anything else in this Agreement, payment of all
Proceeds from Collateral is subject to the provisions of the Intercreditor
Agreement.
SECTION 8. INDEMNITY AND EXPENSES.
(a) Each Grantor agrees to indemnify and hold the Agent and each
Holder harmless from and against any and all claims, damages, losses,
liabilities, obligations, penalties, costs or expenses (including, without
limitation, legal fees, costs, expenses and other client charges) to the extent
that they arise out of or otherwise result from this Agreement (including,
without limitation, enforcement of this Agreement), except claims, losses or
liabilities resulting solely and directly from the Agent's gross negligence or
willful misconduct.
(b) Each Grantor will promptly pay to the Agent and each Holder (i)
the amount of any and all reasonable costs and expenses, including the
reasonable fees, costs, expenses and other client charges of counsel for the
Agent and each Holder and of any experts and agents (including, without
limitation, any Person which may act as agent of the Agent or any Holder), which
the Agent or any Holder may incur in connection with (A) the preparation,
negotiation, execution, delivery, recordation, administration, amendment, waiver
or other modification or termination of this Agreement, or (B) the custody,
preservation, use or operation of, the Collateral, and (ii) the amount of any
and all costs and expenses, including the fees, costs, expenses and other client
charges of counsel for the Agent and each Holder and of any experts and agents
(including, without limitation, any Person which may act as agent of the Agent
or any Holder), which the Agent or any Holder may incur in connection with (A)
the sale of, collection from, or other realization upon, any Collateral, (B) the
exercise or enforcement of any of the rights of the Agent and each Holder
hereunder, or (C) the failure by any Grantor to perform or observe any of the
provisions hereof. In connection with any demand for payment under this Section
8(b), the Agent shall deliver to any Grantor a certificate setting forth in
reasonable detail any amount or amounts that the Agent or any Holder is entitled
to receive pursuant to this Section 8(b) and shall be conclusive and binding
absent manifest error.
SECTION 9. NOTICES, ETC. Any notices hereunder shall be given and
shall be effective in the manner set forth in the Indenture.
SECTION 10. MISCELLANEOUS.
(a) No amendment of any provision of this Agreement shall be effective
unless it is in writing and signed by each Grantor and the Agent, and no waiver
of any provision of this Agreement, and no consent to any departure by any
Grantor therefrom, shall be effective unless it is in writing and signed by the
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
(b) No failure on the part of the Agent to exercise, and no delay in
exercising, any right hereunder or under the Indenture shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The rights
and remedies of the Agent provided herein and in the Indenture are cumulative
and are in addition to, and not exclusive of, any rights or remedies provided by
law. The rights of the Agent under the Indenture against any party thereto are
not conditional or contingent on any attempt by the Agent to exercise any of its
rights under the Indenture against such party or against any other Person.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or thereof or affecting the validity or enforceability
of such provision in any other jurisdiction.
(d) This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until the payment in
full or release of the Obligations and (ii) be binding on each Grantor and each
of its successors and assigns and shall inure, together with all rights and
remedies of the Agent hereunder, to the benefit of the Agent and its respective
permitted successors, transferees and assigns. Without limiting the generality
of clause (ii) of the immediately preceding sentence and subject to Sections 7.8
and 7.9 of the Indenture, the Agent may assign or otherwise transfer its rights
under this Agreement to any other Person and such other Person shall thereupon
become vested with all of the benefits in respect thereof granted to the Agent
herein or otherwise. None of the rights or obligations of any Grantor hereunder
may be assigned or otherwise transferred without the prior written consent of
the Agent, and any such assignment or transfer shall be null and void.
(e) Upon the satisfaction in full of the Obligations, (i) this
Agreement and the security interests created hereby shall terminate and all
rights to the Collateral shall revert to the Grantors, and (ii) the Agent will,
upon any Grantor's request and at such Grantor's expense, (A) return to such
Grantor such of the Collateral as shall not have been sold or otherwise disposed
of or applied pursuant to the terms hereof and (B) execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to evidence such
termination, all without any representation, warranty or recourse whatsoever.
(f) This Agreement shall be governed by and construed in accordance
with the law of the State of New York, except as required by mandatory
provisions of law and except to the extent that the validity and perfection or
the perfection and the effect of perfection or non-perfection of the security
interest created hereby, or remedies hereunder, in respect of any particular
Collateral are governed by the law of a jurisdiction other than the State of New
York.
(g) Each Grantor hereby expressly and irrevocably submits to the
jurisdiction of the courts of the State of New York located in the borough of
Manhattan and of the United States District Court for the Southern District of
New York for the purpose of any litigation arising out of, under or in
connection with, this Agreement, or any course of conduct, course of dealing,
statement (whether verbal or written) or action of it or of the Agent, and each
Grantor irrevocably agrees to be bound by any judgment rendered thereby in
connection with such litigation; PROVIDED, HOWEVER, any suit seeking enforcement
against any Collateral may be brought, at the Agent's option, in the courts of
any jurisdiction where such Collateral or other property may be found. To the
extent that any Grantor has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution or
otherwise) with respect to itself or its property, each Grantor hereby
irrevocably waives such immunity in respect of its obligations under this
Agreement.
(h) Each Grantor hereby expressly and irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such litigation brought in any such court
referred to above and any claim that any such litigation has been brought in an
inconvenient forum.
(i) Each Grantor further irrevocably consents to the service of
process (i) by registered or certified mail, postage prepaid, to its address for
notices contained in the Indenture, such service to become effective five (5)
days after such mailing, or (ii) by personal service within or without the State
of New York. Nothing contained herein shall affect the right of the Agent to
serve process in any other manner permitted by law.
(j) BY ITS EXECUTION AND DELIVERY OF THIS AGREEMENT EACH GRANTOR AND
THE AGENT KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS EACH MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT, ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF IT OR THE AGENT IN CONNECTION HEREWITH
OR THEREWITH. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE
GRANTOR TO ENTER INTO THIS AGREEMENT.
(k) This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, each of the signatories hereto have caused this
Agreement to be executed and delivered by its officer thereunto duly authorized
as of the date first above written.
ALL STAR CAFE INTERNATIONAL, INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
ALL STAR CAFE (NEW YORK), INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
COOL PLANET, INC.
By:__________________________
Name: Thomas Avallone
Title:
COOL PLANET II, INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (ATLANTIC CITY), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (HONOLULU), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD INTERNATIONAL, INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (LP), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD MEMORABILIA INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD NEW YORK, LTD.
By: PLANET HOLLYWOOD INTERNATIONAL, INC.,
its General Partner
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (NEW YORK CITY), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (ORLANDO), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (REGION II), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (REGION III), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (REGION IV), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (REGION V), INC.
By:__________________________
Name: Brian Hood
Title: President and Secretary
PLANET HOLLYWOOD (REGION VI), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (REGION VII), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (TEXAS), LTD.
By: PLANET HOLLYWOOD (REGION V), INC.,
its General Partner
By:__________________________
Name: Brian Hood
Title: President and Secretary
PLANET HOLLYWOOD (WAREHOUSE), INC.
By:__________________________
Name: Thomas Avallone
Title:
<PAGE>
IN WITNESS WHEREOF, each of the signatories hereto have caused this
Agreement to be executed and delivered by its officer thereunto duly authorized
as of the date first above written.
MEANT 2 BE, INC.
By:__________________________
Name: Thomas Avallone
Title:
OFFICIAL ALL STAR CAFE, INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (LONDON), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (PARIS), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (TEL AVIV), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (THEATERS), INC.
By:__________________________
Name: Thomas Avallone
Title:
SILVER BRACELETS, INC.
By:__________________________
Name: Thomas Avallone
Title:
SOUND REPUBLIC, INC.
By:__________________________
Name: Thomas Avallone
Title:
308 AVIATION, INC.
By:__________________________
Name: Thomas Avallone
Title:
308-III AVIATION, INC.
By:__________________________
Name: Thomas Avallone
Title:
ALL STAR CAFE (LP), INC.
By:__________________________
Name: Thomas Avallone
Title:
ALL STAR CAFE (REGION V), INC.
By:__________________________
Name: Thomas Avallone
Title:
ALL STAR CAFE (REGION VII), INC.
By:__________________________
Name: Thomas Avallone
Title:
COOL PLANET I, INC.
By:__________________________
Name: Thomas Avallone
Title:
EBCO MANAGEMENT, INC.
By:__________________________
Name: Thomas Avallone
Title:
KARMALANNE, INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (ASPEN), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (CHEFS), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (COSTA MESA), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (CHICAGO), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (GAMING), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOSPITALITY HOLDINGS, INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (MAIL ORDER), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (ORLANDO DISTRIBUTION), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (PHOENIX), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (REGION I), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD TRANSPORTATION, INC.
By:__________________________
Name: Thomas Avallone
Title:
ROCKY PIT, INC.
By:__________________________
Name: Thomas Avallone
Title:
SOUND REPUBLIC I, INC.
By:__________________________
Name: Thomas Avallone
Title:
TEN ALPS, INC.
By:__________________________
Name: Thomas Avallone
Title:
COAST LICENSING, INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (FRANCE), L.C.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (ISRAEL), L.C.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (TROCADERO), L.C.
By:__________________________
Name: Thomas Avallone
Title:
<PAGE>
SCHEDULE I
RELATED CONTRACTS
<PAGE>
SCHEDULE II
TRADEMARKS
AND
TRADEMARK LICENSES
<PAGE>
SCHEDULE III
PATENTS AND PATENT LICENSES
<PAGE>
SCHEDULE IV
COPYRIGHTS AND COPYRIGHT LICENSES
<PAGE>
SCHEDULE V
I. Locations of Equipment, Inventory, Memorabilia and Other Assets
II. Addresses of Chief Executive Offices and Other Locations
<PAGE>
SCHEDULE VI
BANK ACCOUNTS
<PAGE>
SCHEDULE VII
TRADE NAMES
<PAGE>
SCHEDULE VIII
UCC-1 FINANCING STATEMENTS
<PAGE>
EXHIBIT A
ASSIGNMENT FOR SECURITY
(TRADEMARKS)
WHEREAS, [NAME OF ASSIGNOR] (the "ASSIGNOR") has adopted, used and is
using the trademarks and service marks listed on the annexed Schedule 1A, which
trademarks and service marks are registered or applied for in the United States
Patent and Trademark Office (the "TRADEMARKS");
WHEREAS, the Assignor has entered into a Security Agreement dated
March __, 2000 (the "SECURITY AGREEMENT") in favor of UNITED STATES TRUST
COMPANY OF NEW YORK, as trustee and collateral agent (the "ASSIGNEE") under that
certain Indenture (such Indenture, as amended or otherwise modified from time to
time, the "Indenture"), dated as of the same date as the Security Agreement,
among Planet Hollywood International, Inc., the parties whose names and
signatures appear on the signature pages thereto under the heading "Subsidiary
Guarantors" and the Assignee; and
WHEREAS, pursuant to the Security Agreement, the Assignor has assigned
to the Assignee and granted to the Assignee a security interest in all right,
title and interest of the Assignor in, to and under the Trademarks together with
the goodwill of the business symbolized by the Trademarks and the applications
and registrations thereof, and all proceeds thereof, including, without
limitation, any and all causes of action which may exist by reason of
infringement thereof (the "COLLATERAL"), to secure the payment, performance and
observance of the Obligations (as defined in the Security Agreement).
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the Assignor does hereby convey, sell, assign, transfer
and set over unto the Assignee and grants to the Assignee a security interest in
the Collateral to secure the prompt payment, performance and observance of the
Obligations.
The Assignor does hereby further acknowledge and affirm that the
rights and remedies of the Assignee with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.
IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed by its officer thereunto duly authorized as of _____, ___, 200__.
[NAME OF ASSIGNOR]
By: __________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this ____ day of _______________, 2000, before me personally came
________________, to me known to be the person who executed the foregoing
instrument, and who, being duly sworn by me, did depose and say that he is the
________________ of [NAME OF ASSIGNOR], and that he executed the foregoing
instrument and that he had authority to sign the same, and he acknowledged to me
that he executed the same as the act and deed of said firm for the uses and
purposes therein mentioned.
<PAGE>
SCHEDULE 1A TO ASSIGNMENT FOR SECURITY
(TRADEMARKS AND TRADEMARK APPLICATIONS)
<PAGE>
EXHIBIT B
ASSIGNMENT FOR SECURITY
(COPYRIGHTS)
WHEREAS, [NAME OF ASSIGNOR] (the "ASSIGNOR") holds all right, title
and interest in the copyrights listed on the annexed Schedule 1A, which
copyrights are registered in the United States Copyright Office (the
"COPYRIGHTS");
WHEREAS, the Assignor, has entered into a Security Agreement dated
March ___, 2000 (the "SECURITY AGREEMENT") in favor of UNITED STATES TRUST
COMPANY OF NEW YORK, as trustee and collateral agent (the "ASSIGNEE") under that
certain Indenture (such Indenture, as amended or otherwise modified from time to
time, the "INDENTURE"), dated as of the same date as the Security Agreement,
among Planet Hollywood International, Inc., the parties whose names and
signatures appear on the signature pages thereto under the heading "Subsidiary
Guarantors" and the Assignee;
WHEREAS, pursuant to the Security Agreement, the Assignor has assigned
to the Assignee and granted to the Assignee a security interest in all right,
title and interest of the Assignor in, to and under the Copyrights and the
registrations thereof, and all proceeds thereof, including, without limitation,
any and all causes of action which may exist by reason of infringement thereof
(the "COLLATERAL"), to secure the payment, performance and observance of the
Obligations (as defined in the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the Assignor does hereby assign unto the Assignee and
grants to the Assignee a security interest in the Collateral to secure the
prompt payment, performance and observance of the Obligations.
The Assignor does hereby further acknowledge and affirm that the
rights and remedies of the Assignee with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.
IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed by its officer thereunto duly authorized as of __________ __, 200__.
[NAME OF ASSIGNOR]
By: __________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this ____ day of _______________, 2000, before me personally came
________________, to me known to be the person who executed the foregoing
instrument, and who, being duly sworn by me, did depose and say that he is the
________________ of [NAME OF ASSIGNOR], and that he executed the foregoing
instrument and that he had authority to sign the same, and he acknowledged to me
that he executed the same as the act and deed of said firm for the uses and
purposes therein mentioned.
<PAGE>
SCHEDULE 1A TO ASSIGNMENT FOR SECURITY
(COPYRIGHTS AND COPYRIGHT APPLICATIONS)
<PAGE>
EXHIBIT C
ASSIGNMENT FOR SECURITY
(PATENTS)
WHEREAS, [NAME OF ASSIGNOR] (the "ASSIGNOR") holds all right, title
and interest in the letter patents, design patents and utility patents listed on
the annexed Schedule 1A, which patents are issued or applied for in the United
States Patent and Trademark Office (the "PATENTS");
WHEREAS, the Assignor has entered into a Security Agreement dated
March ___, 2000 (the "SECURITY AGREEMENT") in favor of UNITED STATES TRUST
COMPANY OF NEW YORK, as trustee and collateral agent (the "ASSIGNEE") under that
certain Indenture (such Indenture, as amended or otherwise modified from time to
time, the "INDENTURE"), dated as of the same date as the Security Agreement,
among Planet Hollywood International, Inc., the parties whose names and
signatures appear on the signature pages thereto under the heading "Subsidiary
Guarantors" and the Assignee;
WHEREAS, pursuant to the Security Agreement, the Assignor has assigned
to the Assignee and granted to the Assignee a security interest in all right,
title and interest of the Assignor in, to and under the Patents and the
applications and registrations thereof, and all proceeds thereof, including,
without limitation, any and all causes of action which may exist by reason of
infringement thereof (the "COLLATERAL"), to secure the payment, performance and
observance of the Obligations (as defined in the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the Assignor does hereby assign unto the Assignee and
grants to the Assignee a security interest in the Collateral to secure the
prompt payment, performance and observance of the Obligations.
The Assignor does hereby further acknowledge and affirm that the
rights and remedies of the Assignee with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.
IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed by its officer thereunto duly authorized as of __________ __, 200__.
[NAME OF ASSIGNOR]
By: __________________________
Name:
Title:
<PAGE>
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this ____ day of _______________, 2000, before me personally came
________________, to me known to be the person who executed the foregoing
instrument, and who, being duly sworn by me, did depose and say that he is the
________________ of [NAME OF ASSIGNOR], and that he executed the foregoing
instrument and that he had authority to sign the same, and he acknowledged to me
that he executed the same as the act and deed of said firm for the uses and
purposes therein mentioned.
SCHEDULE 1A TO ASSIGNMENT FOR SECURITY
(PATENTS AND PATENT APPLICATIONS)
-------------------------------
DRAFT
Exhibit D
to Indenture
===============================================================================
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT
OF RENTS AND LEASES AND FIXTURE FILING
BY
PLANET HOLLYWOOD (REGION III), INC.,
AS MORTGAGOR
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS COLLATERAL AGENT AND TRUSTEE,
AS MORTGAGEE
THIS MORTGAGE AFFECTS THE FOLLOWING PREMISES:
1567 BROADWAY
NEW YORK, NEW YORK
SECTION: 5
BLOCK: 1018
LOTS: PART OF LOT 39
PART OF LOT 20 (AIR RIGHTS ONLY)
When recorded return to:
Carter, Ledyard & Milburn
2 Wall Street
New York, New York 10005
Attention: James Gadsden, Esq.
<PAGE>
===============================================================================
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ......................................................7
SECTION 1.1. Terms Defined in Indenture............................7
SECTION 1.2. Additional Terms Defined in this Mortgage.............7
SECTION 1.3. Terms Defined in Uniform Commercial Code.............14
SECTION 1.4. Rules of Interpretation..............................14
ARTICLE II COVENANTS AND AGREEMENTS OF MORTGAGOR ..........................14
SECTION 2.1. Payment and Performance of Obligations ..............14
SECTION 2.2. Further Assurances ..................................14
SECTION 2.3. Repair and Replacement...............................15
SECTION 2.4. Compliance With Requirements and Payment
of Impositions and Retail Unit Charges............16
SECTION 2.5. Insurance and Casualty ...............................16
SECTION 2.6. Condemnation..........................................16
SECTION 2.7. Application of Insurance Proceeds and
Condemnation Proceeds ...............................17
SECTION 2.8. Transfer Restrictions.................................17
SECTION 2.9. Mortgagee's Right to Perform .........................17
SECTION 2.10. Subrogation .........................................18
SECTION 2.11. Certain Tax Law Changes .............................18
SECTION 2.12. Future Advances .....................................18
SECTION 2.13. Bridge Loan Mortgage ................................19
ARTICLE III SECURITY AGREEMENT AND FIXTURE FILING .........................19
SECTION 3.1. Security Agreement ...................................19
SECTION 3.2. Fixture Filing .......................................19
SECTION 3.3. Security Deposit Collateral...........................20
SECTION 3.4. Representations, Warranties and Covenants.............20
ARTICLE IV ASSIGNMENT OF RENTS AND LEASES .................................22
SECTION 4.1. Assignment of Rents and Leases ..........................22
ARTICLE V ASSIGNMENT OF MATERIAL AGREEMENTS ...............................24
SECTION 5.1. Assignment of Material Agreements .......................24
ARTICLE VI DEFAULTS AND REMEDIES ..........................................26
SECTION 6.1. Events of Default .......................................26
SECTION 6.2. Remedies ................................................26
SECTION 6.3. Possession of Property ..................................28
SECTION 6.4. Appointment of Receiver .................................29
SECTION 6.5. Waiver of Stay, Extension, Moratorium
and Marshalling Laws and Equity of Redemption ..........29
SECTION 6.6. Mortgagee Authorized to Execute Documents ...............29
SECTION 6.7. Collateral Situated in More than One County .............30
SECTION 6.8. Collateral in Other States ..............................30
SECTION 6.9. Application of Proceeds .................................30
SECTION 6.10. Setoff .................................................31
SECTION 6.11. Receipt a Sufficient Discharge to Purchaser ............31
SECTION 6.12. Sale a Bar Against Mortgagor ...........................31
SECTION 6.13. Remedies Cumulative; Waiver ............................31
SECTION 6.14. No Liability of Mortgagee ..............................32
ARTICLE VII MISCELLANEOUS .................................................32
SECTION 7.1. Termination; Defeasance .................................32
SECTION 7.2. Rights Cumulative; Waivers ..............................33
SECTION 7.3. Fees and Expenses .......................................33
SECTION 7.4. Indemnification .........................................34
SECTION 7.5. Notices .................................................34
SECTION 7.6. Amendment and Waiver ....................................35
SECTION 7.7. Expenses of Mortgagor's Agreements and Duties ...........35
SECTION 7.8. Mortgagee's Right to Perform on Mortgagor's Behalf ......35
SECTION 7.9. Mortgagee's Right to Use Agents and to
Act in Name of Mortgagor ...............................35
SECTION 7.10. No Compensation or Expense .............................35
SECTION 7.11. Limitation of Obligations with
Respect to Mortgaged Property .........................35
SECTION 7.12. Time of the Essence ....................................36
SECTION 7.13. Disclosures ............................................36
SECTION 7.14. Inconsistency with Indenture ...........................36
SECTION 7.15. Severability ...........................................36
SECTION 7.16. Headings ...............................................37
SECTION 7.17. Assignment; Benefit ....................................37
SECTION 7.18. Governing Law ..........................................37
SECTION 7.19. Waiver Of Jury Trial ...................................37
SECTION 7.20. Consent To Jurisdiction ................................37
SECTION 7.21. Limitation on Interest Payable .........................38
SECTION 7.22. Covenants To Run With the Land .........................39
SECTION 7.23. No Merger ..............................................39
SECTION 7.24. Relationship ...........................................39
SECTION 7.25. Reserved ...............................................39
SECTION 7.26. Subordination to Bridge Loan Mortgage...................39
SECTION 7.27. Subject to Retail Unit Contract of Sale ................39
ARTICLE VIII NEW YORK LAW PROVISIONS ......................................40
SECTION 8.1. Execution of Financing Statements .......................40
SECTION 8.2. Lien Law ................................................40
SECTION 8.3. Provision Regarding Residential Dwelling Units ..........40
SECTION 8.4. Insurance................................................36
SECTION 8.5. Leases...................................................37
SECTION 8.6. Statutory Construction...................................37
SECTION 8.7. Transfer Taxes...........................................37
EXHIBITS
Exhibit A - Description of Land
Exhibit B - Permitted Exceptions
Exhibit C - Information for Financing Statements
<PAGE>
THIS MORTGAGE IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED
OF EVEN DATE HEREWITH BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT
FOR THE LENDERS UNDER THE REVOLVING CREDIT AGREEMENT, WILMINGTON TRUST COMPANY,
AS AGENT UNDER THE SENIOR NOTE PURCHASE AGREEMENT, AND UNITED STATES TRUST
COMPANY OF NEW YORK, AS TRUSTEE UNDER THE PIK INDENTURE, AND CONSENTED TO BY THE
PIK HOLDERS SIGNATORY THERETO, WHICH MATERIALLY AFFECTS CERTAIN PAYMENT RIGHTS,
SUBORDINATES CERTAIN OBLIGATIONS AND CERTAIN SECURITY INTERESTS, AND LIMITS
RIGHTS TO ENFORCEMENT. ALL PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD
INDEBTEDNESS UNDER THIS MORTGAGE ARE BOUND BY THE TERMS OF SUCH INTERCREDITOR
AGREEMENT WHICH WILL BE MADE AVAILABLE UPON REQUEST.
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT
OF RENTS AND LEASES AND FIXTURE FILING
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES AND
FIXTURE FILING (this "MORTGAGE"), dated as of March __, 2000, is given by PLANET
HOLLYWOOD (REGION III), INC., a Florida corporation, having an address at c/o
Planet Hollywood International, Inc., Corporate Office, 8669 Commodity Circle,
Orlando, Florida 32819, Attention: Chief Financial Officer (together with its
successors and permitted assigns, "Mortgagor"), to United States Trust Company
of New York, as trustee and collateral agent under that certain Indenture (such
Indenture, as amended or otherwise modified from time to time, the "INDENTURE"),
dated as of the date hereof, among Planet Hollywood International, Inc., a
Delaware corporation (the "COMPANY") and the parties whose names and signatures
appear on the signature pages thereto under the heading "Subsidiary Guarantors"
(collectively, the "SUBSIDIARY GUARANTORS"), having an address at Corporate
Trust & Agency Administration, 114 West 47th Street, 25th Floor, New York, New
York 10036-1532, Attention: Corporate Trust Administration (in such capacity,
together with its successors and permitted assigns, "MORTGAGEE").
BACKGROUND:
A. Mortgagor is the owner of a fee simple interest in portions of
certain improved real property known by the street address 1567 Broadway, New
York, New York, as more particularly described herein.
<PAGE>
B. Pursuant to the Indenture, the Company may issue 10% Secured
Deferrable Interest Notes due 2005 in an aggregate principal amount of
___________ Dollars ($____________) (collectively with all notes issued in
connection with the substitution, replacement or transfer thereof, and as the
same may hereafter be amended or modified, the "NOTES") to certain entities (the
"HOLDERS"). C. Mortgagor is a Subsidiary Guarantor and is a party to the
Indenture. D. It is a condition precedent to the Holders accepting the Notes
pursuant to the Indenture that, among other things, Mortgagor execute and
deliver to Mortgagee this Mortgage granting to Mortgagee, liens and security
interests in all of Mortgagor's right, title and interest in and to the
Mortgaged Property (as hereinafter defined). E. To induce Mortgagee to enter
into the Indenture and to induce the Holders to accept the Notes in accordance
with the terms of the Indenture, Mortgagor desires to execute and deliver this
Mortgage to Mortgagee on the terms set forth therein and herein.
GRANT OF LIEN:
NOW THEREFORE, to secure the full and timely payment and performance
of all of the Secured Obligations (as hereinafter defined), including, without
limitation, the obligation to pay all principal, interest, fees and other
amounts payable in respect of the Notes in the original principal amount of
$_____________ or otherwise payable under the terms of the Indenture and the
other Security Documents (as defined in the Indenture), Mortgagor hereby
irrevocably grants, bargains, sells, mortgages, warrants, aliens, devises,
releases, hypothecates, pledges, assigns, transfers and conveys to Mortgagee and
to the extent the same constitutes Personal Property (as hereinafter defined)
grants to Mortgagee a security interest in, forever, all right, title, interest,
claim and estate that Mortgagor may now have or may hereafter acquire in, to or
under, or as holder of, any and all the following (collectively, the "MORTGAGED
PROPERTY"):
A. LAND. The land and volume of space described on EXHIBIT A, together
with all and singular the tenements, rights, easements, hereditaments, rights of
way, privileges, liberties, appendages and appurtenances now or hereafter
belonging or in any way appertaining to such land and volume of space; all
streets, roads, highways and alleys (vacated or otherwise) adjoining such land
and volume of space or any part thereof; and all strips and gores belonging,
adjacent or pertaining to such land (collectively, the "LAND").
B. IMPROVEMENTS AND FIXTURES. All buildings, structures, replacements,
fixtures and fittings and other improvements and property of every kind and
description now or hereafter located on or within the Land, including water,
sanitary and storm sewer, drainage, electricity, steam, gas, telephone and other
utility facilities, parking areas, roads, driveways, walks and other site
improvements, together with all equipment, appliances, machinery, tools,
accessories, apparatus, building or construction materials, and other articles
of any kind or nature whatsoever affixed or attached to or within the Land,
including all motors, boilers, engines, pumps, compressors, tanks and similar
devices, all heating, electrical, lighting, power, plumbing, air conditioning,
refrigeration, ventilation and mechanical equipment, all pipes, ducts, conduits,
cables and other transmission devices and equipment, and all elevators,
escalators, lifts, walls, partitions, doors, windows and other equipment and
property affixed to the Land that is real estate or real property or fixtures
under applicable law of the State (as hereinafter defined) (collectively, the
"IMPROVEMENTS," and together with the Land, the "PROPERTY"); it being understood
and agreed that the term "Property" as used herein shall include the Retail Unit
(as defined in the Declaration, hereinafter defined). Without limiting the
foregoing, from and after the date on which a declaration of condominium is
filed with respect to the Land and portions of the Improvements owned by
Mortgagor and certain adjacent real property pursuant to Section 8.4 of the
Declaration (as hereinafter defined), the term "PROPERTY" shall mean the Retail
Unit (as defined in the Declaration) and the Improvements thereon, to the extent
not included within the definition of Retail Unit under the Declaration as of
the date hereof.
C. MINERALS AND RELATED RIGHTS. All rights, royalties and profits with
respect to all minerals, coal, oil and gas and other substances of any kind or
character on or underlying the Land, together with all water and water rights
(whether riparian, appropriative or otherwise and whether or not appurtenant).
D. EASEMENT, AIR AND DEVELOPMENT RIGHTS. All easements, air rights,
development rights or credits, zoning rights or other similar rights or
interests which benefit or are appurtenant to the Property, including, without
limitation, the easements, benefits and covenants set forth in (i) the Zoning
Lot, Development and Easement Agreement, dated December 3, 1997, made by and
among Lunt Theatre Company ("LUNT"), Times Square Partners LLC ("TSP") and
Atlantic Financial Group Ltd. ("ATLANTIC") and recorded in the Office of the
Register of the City of New York, County of New York (the "REGISTER'S OFFICE")
on December 18, 1997, in Reel 2523, Page 2094 (as the same may hereafter be
amended or modified, the "ZONING LOT AGREEMENT"), (ii) the Declaration of
Restrictions, dated December 3, 1997, made by Lunt, TSP and Atlantic and
recorded in the Register's Office on December 18, 1997, in Reel 2523 page 2084,
and (iii) the Declaration of Easements, dated as of December 3, 1997, between
TSP and Atlantic, and recorded in the Register's Office on December 18, 1997, in
Reel 2523 page 2124 (as the same may hereafter be amended or modified, the
"DECLARATION").
E. PARKING RIGHTS. All parking facilities located other than on the
Property and used or intended to be used in connection with the operation,
ownership or use of the Property, any and all replacements and substitutions for
the same, and any other parking rights, easements, covenants and other interests
in parking facilities acquired by Mortgagor for the use of tenants or occupants
of the Improvements.
F. TANGIBLE PROPERTY. All building materials, goods, construction
materials, appliances (including, without limitation, stoves, ranges, ovens,
disposals, refrigerators, water fountains, water coolers, fans, heaters,
dishwashers, clothes washers and dryers, water heaters, hood and fan
combinations, kitchen equipment, laundry equipment, kitchen cabinets and other
similar equipment), stocks, beds, mattresses, bedding and linens, supplies,
blinds, window shades, drapes, carpets, floor coverings, office equipment,
trees, timber, crops, growing plants and shrubberies, control devices, equipment
and machinery (including window cleaning, building cleaning, swimming pool,
recreational, monitoring, garbage, pest control and other equipment), motor
vehicles, tools, furnishings, furniture, lighting, all nonstructural additions
to the Property and all other tangible property of any kind or character,
together with all replacements thereof, located on or in or used in connection
with the complete and comfortable use, enjoyment, occupation, operation,
development and maintenance of the Property, regardless of whether or not
located on or in the Property or located elsewhere for purposes of storage,
fabrication or otherwise, exclusive of any of the foregoing items leased by
Mortgagor or owned by tenants (other than Mortgagor) of portions of the
Property.
G. MATERIAL AGREEMENTS. All contracts and agreements relating to the
Property (including, without limitation, the Retail Unit Contract of Sale, the
Improvements Agreement, the Master Agreement and the License Agreement (as such
terms are hereinafter defined), and the Declaration), and any deposits or other
security or collateral given by any party to Mortgagor as security for or in
respect of the performance of such party's obligations under any agreement
relating to the Property (including, without limitation, the Deposit, as defined
in the Retail Unit Contract of Sale), together with all rents, income, profits,
issues, royalties, revenues and other benefits derived thereunder or therefrom,
and all title insurance policies, guarantees and warranties and other contracts
and agreements, including any agreements taken or acquired by Mortgagor by
assignment or of which Mortgagor is a third-party beneficiary, now or hereafter
relating to the Property, including all water, sanitary and storm sewer,
drainage, electricity, steam, gas, telephone and other utility supply and
service contracts (collectively, "MATERIAL AGREEMENTS").
H. LEASES AND RENTS. All Leases (as hereinafter defined) now or
hereafter in effect for the use, possession or occupancy of the Property or any
part thereof, and all estate, right, title and interest of Mortgagor in and to
any and all rents, income, profits, issues, royalties, revenues and other
benefits derived from the Property or any other portion of the Mortgaged
Property or from or under any of the Leases (collectively, "RENTS").
I. SECURITY DEPOSIT COLLATERAL. All cash, securities, letters of
credit, guarantees, surety bonds and similar instruments (collectively, the
"SECURITY DEPOSIT COLLATERAL") from time to time delivered to Mortgagor as
security for the performance of any tenant under a Lease, but excluding any
Security Deposit Collateral which, by its terms, is unassignable or may not be
pledged or transferred.
J. INTANGIBLES. All goodwill, trademarks, trade names, option rights,
purchase contracts, books and records and general intangibles of Mortgagor
relating to the Property, or licenses or rights to use such goodwill,
trademarks, trade names, intellectual property or other intangibles granted to
Mortgagor by any Affiliate (as defined in the Indenture) or any other party, and
all accounts, contract rights, instruments, chattel paper and other rights of
Mortgagor for the payment of money for property sold or lent, for services
rendered, for money lent, or for advances or deposits made, and any other
intangible property of Mortgagor relating to the Property, but, in each case
with respect to any of the foregoing intangible property, only if an d to the
extent the same relates to, and is used or to be used in connection with, the
Property or the Hotel/Retail Property.
K. PLANS. All plans and specifications, designs, drawings and other
information, materials and matters heretofore or hereafter prepared relating to
the Property (including, without limitation, the Planet Hollywood Plans, as
defined in the Improvements Agreement).
L. PERMITS. All licenses, authorizations, certificates, variances,
consents, approvals and other permits now or hereafter relating to the Property,
excluding from the grant under this Granting Clause licenses, authorizations,
certificates, variances, consents, approvals and other permits that cannot be
transferred or encumbered by Mortgagor without causing a default thereunder or a
termination thereof.
M. LEASES OF FURNITURE, FIXTURES AND EQUIPMENT. All right, title and
interest of Mortgagor as lessee in, to and under any leases of furniture,
furnishings and equipment now or hereafter installed in or at any time used in
connection with the Property.
N. CONDEMNATION PROCEEDS. All Condemnation Proceeds (as hereinafter
defined).
O. INSURANCE PROCEEDS. All Insurance Proceeds (as hereinafter
defined).
P. AWARDS. All rights and interests of Mortgagor against others,
including adjoining property owners and governmental entities, arising
out of damage to the Mortgaged Property, including damage due to environmental
injury or release of Hazardous Materials.
Q. FURTHER INTERESTS. All greater or additional estate, right, title
and interest of Mortgagor in, to or under any of the Mortgaged Property
hereafter acquired by Mortgagor, and all right, title and interest of Mortgagor
in, to, under or derived from all extensions, improvements, betterments,
renewals, substitutions and replacements of, and additions and appurtenances to,
any of the Mortgaged Property hereafter acquired by or released to Mortgagor
(including any Mortgaged Property acquired by Mortgagor by foreclosure or deed
in lieu of foreclosure pursuant to the terms of any mortgage held by Mortgagor)
or constructed or located on, or attached to, the Property, in each case,
immediately upon such acquisition, release, construction, location or
attachment, without any further conveyance, mortgage, assignment or other act by
Mortgagor; and all right, title and interest of Mortgagor in, to, under or
derived from all other property and rights which by any instrument executed by
Mortgagor or any Person on its behalf are otherwise subjected to the lien of
this Mortgage.
R. PROCEEDS. All proceeds of any voluntary or involuntary conversion
of any of the foregoing into cash or other property, including, without
limitation, Insurance Proceeds and Condemnation Proceeds and liquidated claims.
S. OTHER PROPERTY. All other property and rights of Mortgagor of every
kind and character, in each case only if and to the extent such other property
and rights relate to and are sued or to be used in connection with the Mortgaged
Property or the Hotel/Retail Property, and all proceeds and products of any of
the foregoing.
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee, and its
successors and assigns, forever, under and subject to the terms and conditions
of the Indenture and this Mortgage and for the security and enforcement of the
prompt and complete payment, performance and observance when due of all of the
Secured Obligations.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, the maximum
amount of indebtedness secured by this Mortgage at execution or which under any
contingency may become secured hereby at any time hereafter is _______ Million
and No/100 Dollars ($_____________), plus interest on the principal outstanding
under the Notes from time to time, plus fees payable from time to time to
Mortgagee pursuant to the terms of the Indenture, plus all amounts expended by
Mortgagee at any time to maintain the lien of this Mortgage or to protect the
property secured by this Mortgage, or otherwise, including, without limitation,
amounts in respect of insurance premiums, real estate taxes, Retail Unit Charges
(as defined in the Declaration), litigation expenses to prosecute or defend the
rights, remedies and lien of this Mortgage or title to the property secured
hereby, and any costs, charges or amounts to which Mortgagee becomes subrogated
upon payment, whether under recognized principles of law or equity or under
express statutory authority, together with interest on all the foregoing amounts
as provided for in the Indenture or this Mortgage.
PROVIDED ALWAYS that this Mortgage is upon the express condition that
the Mortgaged Property shall be released from the lien of this Mortgage in the
manner and at the time provided in SECTION 7.1 of this Mortgage.
MORTGAGOR FURTHER COVENANTS AND AGREES WITH MORTGAGEE AS FOLLOWS:
ARTICLE I
DEFINITIONS
SECTION 1.1. TERMS DEFINED IN INDENTURE. All terms defined in the
Indenture and not otherwise defined herein have, as used herein, the respective
meanings provided for in the Indenture.
SECTION 1.2. ADDITIONAL TERMS DEFINED IN THIS MORTGAGE. The following
terms, as used herein, have the following meanings:
"BANKRUPTCY CODE" means the United States Bankruptcy Code, Title 11 of
the United States Code, ss.101 et seq., as amended from time to time.
"BRIDGE LOAN MORTGAGE" means that certain Mortgage, Security
Agreement, Assignment of Rents and Leases and Fixture Filing dated as of the
date hereof, given by Mortgagor to Wilmington Trust Company, as agent for the
holders of the notes issued pursuant to that certain Note Purchase Agreement,
dated as of the date hereof among the Company, the purchasers signatory thereto
and Wilmington Trust Company, as agent, and encumbering the Mortgaged Property.
"BUSINESS DAY" is defined in the Indenture.
"CASUALTY" means damage to, destruction or loss of or other casualty
with respect to any of the Property.
"COLLATERAL" is defined in the Indenture.
"CONDEMNATION" means any actual or threatened condemnation, taking or
exercise of the power of eminent domain or similar action or proceeding relating
to the Mortgaged Property.
"CONDEMNATION PROCEEDS" means, at any time, any award or payment paid
or payable by reason of any Condemnation, whether from the exercise of the right
of Condemnation or any transfer made in lieu thereof or any injury to or
decrease in value of any property in connection with a Condemnation, including
all amounts paid pursuant to any agreement with any condemning authority that
has been made in settlement of any proceeding relating to a Condemnation and any
interest earned on such award, payment or amounts, less the reasonable costs and
expenses (including reasonable attorneys' fees and expenses) of Mortgagor and
Mortgagee in collecting such award, payment or amounts, which costs and expenses
shall be paid out of such award, payment or amounts.
"DECLARATION" is defined in Granting Clause D, and shall include all
exhibits to such instrument and all amendments, restatements, supplements and
replacements thereof from time to time, including, without limitation, the
Declaration of Condominium to be entered into by Mortgagee and the other Owners
(as defined in the Declaration) pursuant to Section 8.4 of the Declaration.
"DECLARATION REQUIREMENTS" means all provisions of the Declaration
binding upon and applicable to Mortgagor and the Mortgaged Property.
"ENVIRONMENTAL LAW" shall mean all federal, state and local laws,
statutes, ordinances and regulations, now or hereafter in effect relating to the
regulation and protection of human health, safety, the environment and natural
resources. Environmental Laws include but are not limited to the Comprehensive
Environmental Response; Compensation and Liability Act of 1980, as amended (42
U.S.C.ss.960 ET SEQ.) ("CERCLA"); the Hazardous Material Transportation Act, as
amended (49 U.S.C.ss.180 ET SEQ.); the Resource Conservation and Recovery Act,
as amended (42 U.S.C.ss.6901 ET SEQ.) ("RCRA"); the Toxic Substance Control Act,
as amended (15 U.S.C.ss.2601 ET SEQ).); the Clean Air Act, as amended (42
U.S.C.ss.7401 ET SEQ.); the Federal Water Pollution Control Act, as amended (33
U.S.C.ss.1251 ET SEQ.); and their state and local counterparts or equivalents.
"EVENTS OF DEFAULT" is defined in the Indenture.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, city, town, municipality, county, local or other political subdivision
thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"GUARANTOR" is defined in the Indenture.
"GUARANTEE" is defined in the Indenture.
"HAZARDOUS MATERIALS" shall mean (i) any element, compound or chemical
that is defined, listed or otherwise classified as a solid waste, contaminant,
pollutant, toxic pollutant, hazardous substance, extremely hazardous substance,
toxic substance, hazardous waste, or special waste under any Environmental Law,
(ii) petroleum and its refined fractions, (iii) any polychlorinated biphenyls,
(iv) any flammable, explosive or radioactive materials, and (v) any
asbestos-containing materials.
"HOTEL/RETAIL PROPERTY" shall mean the improved parcel of real
property commonly known as, and located at, 1567 Broadway, New York, New York,
and having the lot designation Tax Lot 39, Block 1018, on the Tax Map of the
City of New York, together with all rights appurtenant thereto.
"IMPOSITIONS" means all taxes (including real estate taxes and sales
and use taxes), assessments (including all assessments for public improvements
or benefits, whether or not commenced or completed prior to the date hereof),
water, sewer or other rents, rates and charges, excises, levies, license fees,
permit fees, inspection fees and other authorization fees and other charges, in
each case whether general or special, ordinary or extraordinary, foreseen or
unforeseen, of every character (including all interest and penalties thereon),
which at any time may be assessed, levied, confirmed or imposed on or in respect
of, or be a Lien upon, (i) the Mortgaged Property or any interest therein, (ii)
any occupancy, use or possession of, or activity conducted on, the Mortgaged
Property, (iii) the Rents from the Mortgaged Property or the use or occupancy
thereof, or (iv) the Secured Obligations, but excluding income, excess profits,
franchise, capital stock, estate, inheritance, succession, gift or similar taxes
of Mortgagor or Mortgagee, except to the extent that such taxes of Mortgagor or
Mortgagee are imposed in whole or in part in lieu of, or as a substitute for,
any taxes which are or would otherwise be Impositions.
"IMPROVEMENTS AGREEMENT" means that certain Improvements Agreement,
dated as of December 3, 1997, by and among TSP, Atlantic and Mortgagor, as the
same may be amended, modified or supplemented from time to time.
"INDEMNIFIED PARTY" means, with respect to a Person entitled to the
benefit of an indemnity, such Person's officers, directors, shareholders,
partners, members, employees, agents and representatives.
"INSURANCE POLICIES" means the insurance policies and coverages
required to be maintained by Mortgagor or another Obligated Party in accordance
with the provisions set forth in Appendix A hereto.
"INSURANCE PROCEEDS" means, at any time, all proceeds or payments to
which Mortgagor or any other Obligated Party may be or become entitled under any
of the Insurance Policies and any and all unearned premiums accrued, accruing or
to accrue under any Insurance Policies and all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or liquidated
claims, plus (i) the amount of any deductibles under such Insurance Policies and
(ii) any interest earned on such proceeds, payments or amounts, and less (iii)
the reasonable costs and expenses of Mortgagor, any other Obligated Party and
Mortgagee in collecting such proceeds, payments or amounts, which costs and
expenses shall be paid out of such proceeds, payments or amounts.
"INSURANCE REQUIREMENTS" means all provisions of the Insurance
Policies, all requirements of the issuer of any of the Insurance Policies and
all orders, rules, regulations and any other requirements of the National Board
of Fire Underwriters (or any other body exercising similar functions) binding
upon Mortgagor or any other Obligated Party or applicable to the Mortgaged
Property or any adjoining vaults, sidewalks, parking areas or driveways or any
use or condition thereof.
"INTERCREDITOR AGREEMENT" is defined in the Indenture.
"LEASE" means any lease, tenancy, subtenancy, license, franchise,
concession or other use or occupancy agreement relating to the Property,
together with any guarantee of the obligations of the landlord or the tenant
thereunder, or any occupancy or right to possession under Section 365 of the
Bankruptcy Code in the event of the rejection of any of the foregoing by the
landlord or its trustee pursuant to such Section; "landlord" means the landlord,
sublandlord, lessor, sublessor, franchisor or other grantor of a right of use or
occupancy under a Lease and any guarantor of its obligations thereunder; and
"TENANT" means the tenant, subtenant, lessee, sublessee, licensee, franchisee,
concessionaire or other occupant under a Lease and any guarantor of its
obligations thereunder.
"LEGAL REQUIREMENT" means (i) with respect to any Person, including
Mortgagor and the other Obligated Parties, any constitution, act, statute, law,
ordinance, treaty, rule, regulation or official interpretation of, or any
judgment, injunction, order, decision, decree, license, permit or authorization
issued by, any Governmental Authority and (ii) with respect to Mortgagor or any
other Obligated Party, any legal requirement or rule, regulation, by-law,
official interpretation, license, permit, certification or authorization of any
self-regulatory organization, licensing authority, stock exchange or trading
system, in each case applicable to Persons (including brokers and dealers)
involved in the business of managing, trading, underwriting or placing
securities, including without limitation those of the National Association of
Securities Dealers, Inc. and the New York Stock Exchange.
"LICENSE AGREEMENT" means the License Agreement, dated as of December
3, 1997, among Planet Hollywood International, Inc., Planet Hollywood (Region
IV), Inc., Mortgagor and TSP, as the same may be amended, modified or
supplemented from time to time.
"LIEN" means any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including, but not limited to, any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease intended
as, or having the effect of, security.
"LOSSES" means all obligations, damages, claims, causes of action,
costs, fines, fees, charges, penalties, deficiencies, losses, diminutions in
value, expenses (including court costs, fees and expenses of attorneys,
accountants, consultants and other experts) and other liabilities, and, with
respect to any indemnity, includes all attorneys' fees and expenses in
connection with the enforcement and collection of such indemnity.
"MASTER AGREEMENT" means the Master Agreement, dated as of December 2,
1997 by and among TSP, Planet Hospitality Holdings, Inc., Intell Times Square
LLC, Madison Broadway Associates LLC, SPE Times Square, Inc. and Ned White, as
the same may be amended, modified, or supplemented from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
condition (financial or otherwise), operations, performance, properties or
assets of the Company, each Subsidiary and each Subsidiary Guarantor, if any, or
business of (x) the Company or (y) the Company, its Subsidiaries and any
Subsidiary Guarantor taken as a whole, (ii) the ability of (x) the Company or
(y) the Company, its Subsidiaries and any Subsidiary Guarantor collectively, to
pay or perform their Obligations in accordance with their terms, (iii) the
legality, validity or enforceability of this Agreement or any other Security
Document or the priority of any Lien, (iv) the legality, validity or
enforceability of the issuance of the Shares, or (v) the value or marketability
of either (x) the Retail Unit, or (y) the balance of the Retail Unit, [the
Membership Interest, the Retail Unit Contract of Sale, the Master Agreement, the
Improvements Agreement, the License Agreement, the TSP Agreement, the
Declaration of Easements, the Zoning Lot Agreement and the Planet Hollywood
Plan]., as determined by the Mortgagee in its sole discretion.
"OBLIGATED PARTIES" means, collectively, Mortgagor and each of its
direct or indirect Subsidiaries and each other Guarantor, if any. The term
"OBLIGATED PARTY" means any one of such Persons.
"OTHER PAYMENTS" is defined in SECTION 5.1(A). "PERMITTED EXCEPTIONS"
means those exceptions to title to the Property set forth on EXHIBIT B hereto.
"PERMITTED LIENS" means:
(a) Liens created pursuant to the Security Documents;
(b) Liens existing on the date as of which the Indenture is dated and
extensions and renewals thereof provided that such extensions and renewals do
not change the principal, interest, or other financial terms or obligations
thereof, as set forth in Appendix B hereof;
(c) Liens in connection with any taxes, assessments, governmental
charges, levies, or claims that are not yet due and payable or which the Company
is contesting in good faith and by appropriate proceedings diligently conducted
so long as reserves or other appropriate provisions as may be required by GAAP
have been made therefor and so long as the failure to pay the same would not
result in and could not reasonably be expected to result in a Material Adverse
Effect;
(d) Liens created by operation of Law other than environmental Liens,
such as materialmen's liens, mechanics' liens (not to exceed $50,000 in the
aggregate) and other similar Liens, arising in the ordinary course of business
which secure amounts not overdue for a period of more than sixty (60) days or
which are being contested in good faith by appropriate proceedings and which
have been bonded or with respect to which a stay of enforcement is in effect;
(e) deposits (including utility security deposits), pledges or Liens
(other than Liens arising under ERISA), securing (1) obligations incurred in
respect of workers' compensation, unemployment insurance or other forms of
governmental insurance or benefits, (2) the performance of bids, tenders,
leases, contracts (other than for the payment of money) and statutory
obligations, or (3) obligations on surety or appeal bonds, but only to the
extent such deposits, pledges or Liens are incurred or otherwise arise in the
ordinary course of business and secure obligations which are not past due;
(f) Liens in favor of the Mortgagor, subject to the Intercreditor
Agreement;
(g) purchase money Liens solely on the asset being acquired by the
Company, provided that each such Lien does not exceed $3,000,000;
(h) solely with respect to the Retail Unit, Permitted Exceptions;
(i) judgment Liens that do not constitute an Event of Default;
(j) existing Liens on assets acquired after the on the date as of
which the Indenture is dated;
(k) involuntary Liens in the case of the Inactive Guarantors (as
defined in the Note Purchase Agreement);
(l) precautionary UCC filings in connection with property not
constituting Collateral hereunder (E.G., leases of telecopier machines); ----
(m) an encumbrance of a landlord with respect to the interest of the
Company or Guarantors as a lessee or sublessee under a Lease but not including
any liens or encumbrances arising out of any default thereunder.
"PERSON" means an individual, corporation, partnership, limited
liability company, limited liability partnership, trust, unincorporated
association, joint venture, joint-stock company, government (including political
subdivisions), Governmental Authority or agency, or any other entity.
"PERSONAL PROPERTY" means all of the items described in the definition
of Mortgaged Property that constitute personal property under the Uniform
Commercial Code or other applicable law (including common law) of the State.
"PLANET HOLLYWOOD PLANS" is defined in the Improvements Agreement.
"POTENTIAL DEFAULT" means any event or condition which, with notice or
passage of time, or any combination of the foregoing, would constitute an Event
of Default.
"RECEIVER" means any receiver, trustee liquidator, conservator,
custodian or similar Person.
"RETAIL UNIT" is defined in the Declaration.
"RETAIL UNIT CHARGES" means all amounts payable by the owner of the
Property under the Declaration.
"RETAIL UNIT CONTRACT OF SALE" means that certain Purchase and Sale
Agreement, dated as of January 4, 2000, between Mortgagor, as seller, and Intell
1567 LLC, as purchaser, with respect to the Mortgaged Property.
"SECURED OBLIGATIONS" means (i) the Obligations (as defined in the
Indenture), which include all indebtedness, obligations and liabilities of
Mortgagor to Mortgagee incurred under or related to the Notes, the Indenture,
this Mortgage or any other Security Document, whether such indebtedness,
obligations or liabilities are direct or indirect, secured or unsecured, joint
or several, absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising, together with (ii) all fees,
costs, charges and expenses paid or incurred by Mortgagee or any of them in
connection with the creation, protection, preservation or enforcement of their
respective rights under the Indenture and the Security Documents, on a full
indemnity basis.
"SECURITY DOCUMENTS" is defined in the Indenture.
"STATE" means the State of New York.
"SUBSIDIARY" is defined in the Indenture.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code of the
State as in effect from time to time.
"UPPER FLOORS" has the meaning given to such term in the Retail Unit
Contract of Sale.
SECTION 1.3. TERMS DEFINED IN UNIFORM COMMERCIAL CODE. Unless
otherwise defined herein or in the Indenture, or unless the context otherwise
requires, when used in this Mortgage, terms defined in the Uniform Commercial
Code have the same meanings as given therein.
SECTION 1.4. RULES OF INTERPRETATION. In this Mortgage, unless
otherwise specified, (i) singular words include the plural and plural words
include the singular, (ii) words that include a number of constituent parts,
things or elements, including the terms "Land," "Improvements," "Property" and
"Mortgaged Property" (and each element thereof) shall be construed as referring
separately to each constituent part, thing or element thereof, as well as to all
of such constituent parts, things or elements as a whole, (iii) words importing
any gender include the other gender, (iv) references to any Person include such
Person's successors and assigns and, in the case of an individual, the word
"successor" includes such Person's heirs, devisees, legatees, executors,
administrators and personal representatives, (v) references to any statute or
other law include all applicable rules, regulations and orders adopted or made
thereunder and all statutes or other laws amending, consolidating or replacing
the statute or law referred to, (vi) the words "include" and "including," and
words of similar import, shall be deemed to be followed by the words ", without
limitation," (vii) the words "hereto," "herein," "hereof," and "hereunder," and
words of similar import, refer to this Mortgage in its entirety, (viii) unless
otherwise specified, references to Articles, Sections, Exhibits, Schedules,
paragraphs and clauses are to the Articles, Sections, Exhibits, Schedules,
paragraphs and clauses of this Mortgage, (ix) the Exhibits and Schedules to this
Mortgage are incorporated herein by reference, (x) the titles and headings of
Articles, Sections, Exhibits, Schedules, paragraphs and clauses are inserted as
a matter of convenience and shall not affect the construction of this Mortgage,
and (xi) unless otherwise specified, references to this Mortgage and to any
other Security Document include all amendments, modifications, supplements,
consolidations, replacements, extensions and renewals thereof from time to time.
ARTICLE II
COVENANTS AND AGREEMENTS OF MORTGAGOR
To protect the security of this Mortgage, so long as this Mortgage is
in effect, Mortgagor further covenants and agrees with Mortgagee as follows:
SECTION 2.1. PAYMENT AND PERFORMANCE OF OBLIGATIONS. Mortgagor shall
duly and punctually pay and perform all of the Secured Obligations. Mortgagor
represents and warrants that it has received a copy and is fully familiar with
the terms and provisions of the Indenture. All representations, warranties and
covenants made by Mortgagor in the Indenture (except to the extent that they are
not applicable to Mortgagor or the Mortgaged Property) are incorporated herein
by reference and are hereby made by Mortgagor as to itself and the Mortgaged
Property as though such representations, warranties and covenants were set forth
at length herein as the representations, warranties and covenants of Mortgagor.
SECTION 2.2. FURTHER ASSURANCES. At the request of Mortgagee,
Mortgagor shall, at Mortgagor's sole cost and expense: (a) promptly correct any
defect or error which may be discovered in this Mortgage or any financing
statement or other document relating hereto; (b) promptly execute, acknowledge,
deliver, record and re-record, register and re-register, and file and re-file
this Mortgage and any financing statements or other documents or instruments
which Mortgagee may require from time to time, all in form and substance
reasonably satisfactory to Mortgagee, in order to effectuate, complete, perfect,
continue or preserve (i) the Lien and priority of this Mortgage as a perfected
second priority mortgage lien on the Mortgaged Property (junior only to the
Bridge Loan Mortgage), or (ii) any right, power or privilege granted or intended
to be granted to Mortgagee hereunder; and (c) pay all filing, registration and
recording taxes, fees, dues, imposts, assessments and charges in connection with
the execution, delivery, filing, registration or recording of any of the
foregoing.
SECTION 2.3. REPAIR AND REPLACEMENT; MAINTENANCE OF PROPERTIES, ETC.
(a) Mortgagor shall maintain the Mortgaged Property as required in subsection
2.3(b). In addition, Mortgagor shall not remove, demolish or materially alter
any of the Mortgaged Property. Whether or not it shall have received or
otherwise be entitled to receive any Insurance Proceeds or Condemnation
Proceeds, Mortgagor shall promptly repair, replace and rebuild any part of the
Mortgaged Property which may be damaged or destroyed by any Casualty (including
any Casualty for which insurance was not obtained or obtainable) or which may be
affected by any Condemnation, and shall complete and pay for, within a
reasonable time, any structure at any time in the process of construction or
repair on the Property, all in a manner reasonably satisfactory to Mortgagee.
Mortgagor shall not, without the prior written consent of Mortgagee, which will
not be unreasonably withheld, initiate, join in or consent to any private
restrictive covenant, zoning ordinance, or other public or private restrictions
limiting or defining the uses which may be made of the Mortgaged Property or any
part thereof, except as expressly contemplated by, and required pursuant to, the
Declaration.
(b) Maintain and preserve, and cause each of their respective
Subsidiaries to maintain and preserve, all of their properties (including all
real properties leased or owned by them) which are necessary or useful in the
proper conduct of their business in good working order and condition, ordinary
wear and tear excepted, and comply, and cause each of their respective
Subsidiaries to comply, at all times with the provisions of all Leases to which
each of them is a party as lessee or under which each of them occupies property,
so as to prevent any loss or forfeiture thereof or thereunder, except where any
failure to maintain and preserve their properties or failure to comply with the
provisions of their Leases, individually or in the aggregate, would not result
in and could not reasonably be expected to result in a MATERIAL ADVERSE EFFECT.
SECTION 2.4. COMPLIANCE WITH REQUIREMENTS AND PAYMENT OF IMPOSITIONS
AND RETAIL UNIT Charges. Mortgagor shall at all times (a) comply with, and shall
cause the Mortgaged Property at all times to comply with, all applicable Legal
Requirements, Insurance Requirements and Declaration Requirements; (b) promptly
pay all Impositions, Retail Unit Charges and all charges for utilities and other
services to the Mortgaged Property on or before the date on which the same shall
become due and payable; and (c) keep the Mortgaged Property free and clear of
all Liens other than Permitted Exceptions.
SECTION 2.5. INSURANCE AND CASUALTY.
(a) REQUIRED INSURANCE. During the term of this Mortgage, Mortgagor
shall maintain, or cause to be maintained, property, liability and other
insurance with respect to the Mortgaged Property as required pursuant to the
Indenture.
(b) ASSIGNMENT OF POLICIES ON FORECLOSURE. In the event of the
foreclosure of this Mortgage, or other transfer of title to the Mortgaged
Property, or any part thereof, by foreclosure sale, or by power of sale, or deed
in lieu of foreclosure, the purchaser of the Mortgaged Property, or such part
thereof, shall succeed to all of Mortgagor's rights with respect to the
Mortgaged Property, including any rights to unexpired, unearned or returnable
insurance premiums, subject to limitations on the assignment of blanket
policies, but limited to such rights as relate to the Mortgaged Property or such
part thereof. If Mortgagee acquires title to the Mortgaged Property, or any part
thereof, in any manner, it shall thereupon (as between Mortgagor and Mortgagee)
become the sole and absolute owner of the Insurance Policies, and all Insurance
Proceeds payable thereunder with respect to the Mortgaged Property with the sole
right to collect and retain all unearned or returnable premiums thereon with
respect to the Mortgaged Property, or such part thereof, if any.
SECTION 2.6. CONDEMNATION.
(a) NOTICE OF LOSS. In the event of any Condemnation or the
commencement of any proceedings or negotiations that might result in a
Condemnation, Mortgagor shall give notice thereof to Mortgagee, describing in
reasonable detail the nature and extent of such Condemnation or the nature of
such proceedings or negotiations and the nature and extent of the proposed
Condemnation, as the case may be.
(b) PROTECTION OF MORTGAGED PROPERTY. If a Condemnation occurs,
Mortgagor shall immediately take such action or cause such action to be taken as
may be necessary or appropriate to protect the remaining Mortgaged Property.
SECTION 2.7. APPLICATION OF INSURANCE PROCEEDS AND CONDEMNATION
PROCEEDS.
(a) PROCEEDS PAYABLE TO MORTGAGEE. Following a Casualty or a
Condemnation, Mortgagee shall apply the entire amount of any Insurance Proceeds
or Condemnation Proceeds to the payment of the Secured Obligations, whether or
not then due and payable. Notwithstanding any Casualty or Condemnation,
Mortgagor shall continue to pay the Secured Obligations at the time and in the
manner provided for in the Indenture, this Mortgage and the other Security
documents, and the Secured Obligations shall not be reduced until, and then only
to the extent that, any Insurance Proceeds or Condemnation Proceeds shall have
been actually received and applied by Mortgagee to the discharge of the Secured
Obligations. If the Mortgaged Property is sold, through foreclosure or
otherwise, prior to the receipt by Mortgagee of such Insurance Proceeds or
Condemnation Proceeds, Mortgagee shall have the right, whether or not a
deficiency judgment on the Indenture or on any Security document shall have been
sought, recovered or denied, to receive such Insurance Proceeds or Condemnation
Proceeds, or a portion thereof sufficient to pay the Secured Obligations,
whichever is less.
(b) PROSECUTION OF CLAIM FOR LOSS. If a Casualty or a Condemnation
shall occur, Mortgagor shall file and prosecute its claim or claims for any such
Insurance Proceeds or Condemnation Proceeds in good faith and with due diligence
and cause the same to be collected and paid over to Mortgagee, and hereby
irrevocably authorizes and empowers Mortgagee, in the name of Mortgagor or
otherwise, to collect and receipt for any such Insurance Proceeds or
Condemnation Proceeds and to adjust any insurance claims and to file and
prosecute such claim or claims, and although it is hereby expressly agreed that
the same shall not be necessary in any event, Mortgagor shall, upon demand of
Mortgagee, make, execute and deliver any and all assignments and other
instruments sufficient for the purpose of assigning any such Insurance Proceeds
or Condemnation Proceeds to Mortgagee, free and clear of any Liens whatsoever.
Mortgagor hereby irrevocably appoints Mortgagee as Mortgagor's attorney-in-fact
for each such purpose (which appointment is coupled with an interest) and
authorizes any Person to act upon the foregoing appointment.
SECTION 2.8. TRANSFER RESTRICTIONS. Mortgagor shall not mortgage,
hypothecate, pledge or suffer to exist any Lien (other than Permitted
Exceptions) on, or sell, transfer, convey or lease, all or any part of the
Mortgaged Property (or any interest therein), except as expressly permitted by
and in accordance with the terms of the Indenture.
SECTION 2.9. MORTGAGEE'S RIGHT TO PERFORM. If Mortgagor shall fail to
pay or perform any of the Secured Obligations, then Mortgagee, upon ten (10)
days' prior notice to Mortgagor may, but shall not be obligated to, make (or
cause to be made) any such payment or perform (or cause to be performed) any
such Secured Obligation of Mortgagor, in any form and manner deemed reasonably
appropriate by Mortgagee as agent or attorney-in-fact of Mortgagor, and any
amount so paid or extended, plus reimbursement to Mortgagee for its reasonable
out-of-pocket and other expenses, including legal expenses, for each matter for
which it acts under this Mortgage, shall be added to the Secured Obligations and
shall be paid to Mortgagee upon demand. By way of illustration and not in
limitation of the foregoing, Mortgagee may, but need not, make payments of
principal, interest or other charges on any obligations secured by any Permitted
Exception or other Lien or charge; purchase, discharge, compromise or settle any
tax Lien or any other Lien, encumbrance, suit, proceeding, title or claim
thereof; pay any premium owing on any insurance policy covering the Mortgaged
Property; or redeem from any tax sale or forfeiture affecting the Mortgaged
Property or contest any tax or assessment. In making any payment or securing any
performance relating to any such obligation of Mortgagor hereunder or
thereunder, Mortgagee, so long as it acts in good faith, shall be the sole judge
of the legality, validity and amount of any Lien or encumbrance and of all other
matters necessary to be determined in satisfaction thereof. No such action of
Mortgagee shall be considered as a waiver of any right accruing to it on account
of the occurrence of any default on the part of Mortgagor under this Mortgage,
any Event of Default or any default or event of default under the Indenture or
under any other Security Document.
SECTION 2.10. SUBROGATION. To the extent that Mortgagee, after the
date hereof, pays pursuant to the terms of this Mortgage, the Indenture, the
Intercreditor Agreement or any other Security Document any sum due under any
provision of law or any instrument or document creating any Lien prior or
superior to the Lien of this Mortgage, Mortgagee shall have and be entitled to a
Lien on the Mortgaged Property equal in priority to that discharged, and
Mortgagee shall be subrogated to, and receive and enjoy all rights and Liens
possessed, held or enjoyed by the holder of such Lien, which shall remain in
existence for the benefit of Mortgagee to secure the amount expended by
Mortgagee on account of or in connection with such Lien. Mortgagee shall be
subrogated, notwithstanding their release of record, to mortgages, trust deeds,
superior titles, vendor's Liens, Liens, charges, encumbrances, rights and
equities on the Mortgaged Property to the extent that any obligation under any
thereof is paid or discharged by Mortgagee.
SECTION 2.11. CERTAIN TAX LAW CHANGES. In the event of the passage
after the date of this Mortgage of any law deducting from the value of real
property, for the purpose of taxation, amounts in respect of any Lien thereon or
changing in any way the laws for the taxation of mortgages or debts secured by
mortgages for State or local purposes or the manner of the collection of any
such taxes, and imposing a tax, either directly or indirectly, on this Mortgage,
Mortgagor shall pay such tax within ten (10) days after knowledge of the same.
SECTION 2.12. FUTURE ADVANCES. All future advances and expenditures
under this Mortgage or under any other agreements at any time made between
Mortgagor or any other Obligated Party and Mortgagee shall have the same
priority as if such advance or expenditure was made on the date that this
Mortgage was recorded. This Mortgage shall secure all indebtedness of Mortgagor
and each other Obligated Party, and their respective successors and assigns,
under the Indenture, this Mortgage and the other Security Documents, whenever
incurred. Notice is hereby given that the Secured Obligations may also increase
as a result of any defaults hereunder by Mortgagor due to, for example, and
without limitation, unpaid interest or late charges, unpaid Impositions or
insurance premiums or other charges which Mortgagee elects to advance, defaults
under Leases that Mortgagee elects to cure, attorneys' fees or expenses incurred
in enforcing the Indenture or any of the Security Documents or other expenses.
Interest shall accrue and be payable on any future advances at the rate
specified in the Note from the date incurred or paid to the date repaid. SECTION
2.13. BRIDGE LOAN MORTGAGE.
(a) Mortgagor shall promptly notify Mortgagee in writing of the
occurrence of any default or event of default under the Bridge Loan Mortgage
and, in addition, shall deliver to Mortgagee, within one (1) Business Day after
receipt, a copy of any notice of default received by Mortgagor from the holder
of the Bridge Loan Mortgage.
(b) At all times while this Mortgage continues in effect, Mortgagor
shall not, without Mortgagee's prior written consent, increase the principal
amount secured by the Bridge Loan Mortgage or allow the amendment or
modification of the Bridge Loan Mortgage or of any document relating to the
loans secured by the Bridge Loan Mortgage.
ARTICLE III
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 3.1. SECURITY AGREEMENT.
(a) GRANT OF SECURITY INTEREST. To the extent that the Mortgaged
Property includes Personal Property, this Mortgage shall also be construed as a
security agreement and the grant to Mortgagee of a security interest in such
Personal Property under the Uniform Commercial Code.
(b) REMEDIES. If an Event of Default shall occur, Mortgagee may
exercise from time to time and at any time any rights and remedies available to
it under applicable law upon default in the payment of indebtedness, including,
without limitation, any right or remedy available to it as a secured party under
the Uniform Commercial Code. Mortgagor shall, promptly upon request by
Mortgagee, assemble the Mortgaged Property, or any portion thereof generally
described in such request, and make the same available to Mortgagee at such
place or places designated by Mortgagee and reasonably convenient to Mortgagee
and Mortgagor. If Mortgagee elects to proceed under the Uniform Commercial Code
to dispose of all or any portion of the Mortgaged Property, Mortgagee, at its
option, may give Mortgagor notice of the time and place of any public sale of
any such property, or of the date after which any private sale or other
disposition thereof is to be made, by sending notice by registered or certified
first class mail, postage prepaid, to Mortgagor at least ten (10) days prior to
the time of the sale or other disposition. If any notice of any proposed sale,
assignment or transfer by Mortgagee of any portion of the Mortgaged Property or
any interest therein is required by law, Mortgagor conclusively agrees that,
unless any longer period shall then be required by the Uniform Commercial Code,
ten (10) days' notice to Mortgagor of the date, time and place (and, in the case
of a sale, the terms) thereof is reasonable. Mortgagee may, at its option,
appoint any other Person as the agent of Mortgagee for the purpose of
disposition of the Personal Property in accordance with the Uniform Commercial
Code. Mortgagor acknowledges and agrees that a disposition of the Personal
Property in accordance with Mortgagee's rights and remedies in respect of the
Personal Property as provided in this Section is a commercially reasonable
disposition thereof.
SECTION 3.2. FIXTURE FILING. To the extent that the Mortgaged Property
includes items of Personal Property that are or are to become fixtures under
applicable law, and to the extent permitted under applicable law, the filing of
this Mortgage in the land records of the county in which such Mortgaged Property
is located shall also operate from the time of filing as a fixture filing with
respect to such Mortgaged Property, the information required for the purpose of
such fixture filing being as set forth in this Mortgage. (Mortgagor being the
"Debtor" and Mortgagee being the "Secured Party" with respect to such filing.)
SECTION 3.3. SECURITY DEPOSIT COLLATERAL. So long as no Event of
Default shall have occurred, Mortgagor shall have the exclusive right, as
between Mortgagor and Mortgagee, to apply, draw, make demand, sue for, or amend
any Security Deposit Collateral or waive or release any party from its
obligations under or in respect of any Security Deposit Collateral. If an Event
of Default shall occur, Mortgagee shall (at its option) have the exclusive
right, as between Mortgagor and Mortgagee, without notice to Mortgagor, to
apply, draw, make demand, sue for, or amend any Security Deposit Collateral.
SECTION 3.4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Mortgagor
hereby warrants, represents and covenants with respect to the Personal Property
as follows:
(a) NO REMOVAL OF PERSONAL PROPERTY. The Personal Property will be
kept on or at the Property and Mortgagor will not remove the Personal Property
from the Property without the prior written consent of Mortgagee, except such
portions or items of Personal Property which are consumed or worn out in
ordinary usage, which shall be promptly replaced with comparable items of equal
value.
(b) CHANGE OF NAME OR LOCATION. Mortgagor shall give at least thirty
(30) days' advance notice in writing to Mortgagee of any proposed change in
Mortgagor's name, identity, business form or structure or any proposed change in
the location of Mortgagor's chief executive office or principal place of
business or the locations where it keeps or holds any of the Mortgaged Property
or any records relating thereto, all of which are, as of the date hereof,
accurately and completely set forth either in the preamble of this Mortgage or
on EXHIBIT C hereto. Mortgagor will execute and deliver to Mortgagee, prior to
the occurrence of such change, all additional financing statements that
Mortgagee may require to establish and maintain the validity and priority of
Mortgagee's security interest with respect to any of the Mortgaged Property
described or referred to herein.
(c) ADDITIONAL FILINGS. Not more than six (6) months nor less than
thirty (30) days prior to each date on which Mortgagor proposes to take any
action contemplated by SECTION 3.4(B), Mortgagor shall, at its cost and expense,
cause to be delivered to Mortgagee one or more opinions of counsel, satisfactory
to Mortgagee, to the effect that all financing statements and amendments or
supplements thereto, continuation statements and other documents required to be
recorded or filed in order to perfect and protect the security interest granted
hereunder against all creditors of and purchasers from Mortgagor have been filed
in each filing office necessary for such purpose and that all filing and
recording fees and taxes, if any, payable in connection with such filings have
been paid in full.
(d) OPINION OF COUNSEL. Not more than six (6) months nor less than
thirty (30) days prior to each date on which the filing or recordation of any
continuation statement or other document is required to be made in order to
continue, without interruption, the perfection of the security interests
hereunder against all creditors of and purchasers from Mortgagor, Mortgagor
shall, at its cost and expense, cause to be delivered to Mortgagee one or more
opinions of counsel, satisfactory to Mortgagee, to the effect that all such
continuation statements and other documents have been filed in each filing
office necessary for such purpose and that all filing and recording fees and
taxes, if any, payable in connection with such filings have been paid in full.
(e) ATTORNEY-IN-FACT. Mortgagor hereby irrevocably appoints Mortgagee,
and its successors and assigns so long as the Secured Obligations remain
outstanding, as Mortgagor's attorney-in-fact with full power and authority for
and on behalf of Mortgagor to execute, file and record any and all documents
necessary to evidence, perfect and continue the Lien and security interest of
this Mortgage, and agrees that such documents may, to the extent permitted under
applicable law, be filed without the signature of Mortgagor. The foregoing
appointment is coupled with an interest and is irrevocable by Mortgagor without
the consent of Mortgagee.
(f) ADDITIONAL COVENANTS. All other covenants and obligations of
Mortgagor contained elsewhere in this Mortgage relating to the Mortgaged
Property shall be deemed to apply to the Personal Property whether or not
expressly referred to in this Article.
ARTICLE IV
ASSIGNMENT OF RENTS AND LEASES
SECTION 4.1. ASSIGNMENT OF RENTS AND LEASES.
(a) ASSIGNMENT OF RENTS. Mortgagor hereby presently, absolutely and
irrevocably assigns to Mortgagee subject to the license of Mortgagor under
subsection (b) of this Section, all Leases and Rents, if any, and Mortgagee and,
if a Receiver has been appointed under this Mortgage, such Receiver shall have
the absolute, immediate and continuing right, subject to mandatory provisions of
applicable law, to collect and receive all Rents now or hereafter, including
during any period of redemption, accruing with respect to the Mortgaged
Property. The Lien on the Leases and the Rents made under Granting Clause H
hereof shall be in addition to and subject to the foregoing assignment. At the
request of Mortgagee or such Receiver, Mortgagor shall promptly execute,
acknowledge, deliver, record, register and file any additional general
assignment of the Leases or specific assignment of any Lease which Mortgagee or
such Receiver may require from time to time (all in form and substance
satisfactory to Mortgagee and such Receiver) to effectuate, complete, perfect,
continue or preserve this assignment of the Leases and the Rents and the Lien
upon the Leases and the Rents made under Granting Clause H.
(b) LICENSE TO COLLECT RENTS. As long as no Event of Default has
occurred, Mortgagor shall have the right under a license granted hereby, subject
to subsection (c) of this Section, to collect the Rents upon the due date
thereof, but not prior to such due date.
(c) TERMINATION OF LICENSE UPON EVENT OF DEFAULT. If an Event of
Default shall occur, the license granted under subsection (b) of this Section
shall immediately and automatically terminate, without the necessity of any
action by any Person, and Mortgagee and any Receiver appointed under this
Mortgage shall have the right to exercise the rights and remedies provided under
this Mortgage or otherwise under applicable law. If an Event of Default shall
occur, upon demand by the Person exercising the rights under this Section,
Mortgagor shall promptly pay to such Person all security deposits under the
Leases and all Rents allocable to any period after the occurrence of such Event
of Default. Subject to any applicable Legal Requirement, any Rents received
hereunder by the Person exercising the rights under this Section shall be
promptly paid to Mortgagee, and any Rents received hereunder by Mortgagee shall
be applied and disbursed as provided in the Indenture, subject to the
Intercreditor Agreement; PROVIDED that, subject to any applicable requirement of
law, any security deposits actually received by Mortgagee shall be held, applied
and disbursed as provided in the applicable Leases.
(d) DIRECTION TO TENANTS. Upon the occurrence of an Event of Default,
Mortgagor hereby authorizes and directs, and shall, at the direction of
Mortgagee, further authorize and direct, in writing, the tenant under each Lease
to pay directly to, or as directed by, Mortgagee all Rents accruing or due under
its Lease without proof to the tenant of the occurrence and continuance of such
Event of Default. Mortgagor hereby authorizes the tenant under each Lease to
rely upon and comply with any notice or demand from Mortgagee for payment of
Rents to Mortgagee and Mortgagor shall have no claim against any tenant for
Rents paid by such tenant to Mortgagee pursuant to such notice or demand.
(e) NO RELEASE OF TENANTS. Neither this Mortgage nor any action or
inaction on the part of Mortgagee shall release any tenant under any Lease, any
guarantor of any Lease or Mortgagor from any of their respective obligations
under the Leases or constitute an assumption of any such obligation on the part
of Mortgagee. No action or failure to act on the part of Mortgagor shall
adversely affect or limit the rights of Mortgagee under this Mortgage or,
through this Mortgage, under the Leases.
(f) NO LIABILITY OF MORTGAGEE. Neither the acceptance hereof nor the
exercise of the rights and remedies hereunder nor any other action on the part
of Mortgagee or any Person exercising the rights of Mortgagee hereunder shall be
construed to (i) be an assumption by Mortgagee or any such Person or to
otherwise make Mortgagee or such Person liable or responsible for the
performance of any of the obligations of Mortgagor under or with respect to the
Leases or for any Rent, security deposit or other amount delivered to Mortgagor;
PROVIDED that Mortgagee or any such Person exercising the rights of Mortgagee
shall be accountable as provided in subsection (c) of this Section for any
Rents, security deposits or other amounts actually received by Mortgagee or such
Person, as the case may be; or (ii) obligate Mortgagee or any such Person to
take any action under or with respect to the Leases or with respect to the
Mortgaged Property, to incur any expense or perform or discharge any duty or
obligation under or with respect to the Leases or with respect to the Mortgaged
Property, to appear in or defend any action or proceeding relating to the Leases
or the Mortgaged Property, to constitute Mortgagee as a mortgagee-in-possession
(unless Mortgagee actually enters and takes possession of the Mortgaged
Property), or to be liable in any way for any injury or damage to persons or
property sustained by any Person in or about the Mortgaged Property, other than
to the extent caused by the willful misconduct or gross negligence of Mortgagee
or any Person exercising the rights of Mortgagee hereunder.
(g) NO EXISTING LEASES. Mortgagor represents and warrants that as of
the date hereof, no Leases exist with respect to the Mortgaged Property.
ARTICLE V
ASSIGNMENT OF MATERIAL AGREEMENTS
SECTION 5.1. ASSIGNMENT OF MATERIAL AGREEMENTS.
(a) ASSIGNMENT OF MATERIAL AGREEMENTS AND OTHER PAYMENTS. Mortgagor
hereby presently, absolutely and irrevocably assigns to Mortgagee subject to the
license of Mortgagor under subsection (b) of this Section, all Material
Agreements and all rents, income, profits, issues, royalties, revenues and other
benefits derived from or with respect to the Material Agreements, if any ("OTHER
PAYMENTS"), and Mortgagee and, if a Receiver has been appointed under this
Mortgage, such Receiver shall have the absolute, immediate and continuing right,
subject to mandatory provisions of applicable law, to collect and receive all
Other Payments now or hereafter, including during any period of redemption,
accruing with respect to the Mortgaged Property. The Lien on the Material
Agreements and the Other Payments made under Granting Clause G hereof shall be
in addition to and subject to the foregoing assignment. At the request of
Mortgagee or such Receiver, Mortgagor shall promptly execute, acknowledge,
deliver, record, register and file any additional general assignment of the
Material Agreements or specific assignment of any Material Agreement which
Mortgagee or such Receiver may require from time to time (all in form and
substance satisfactory to Mortgagee and such Receiver) to effectuate, complete,
perfect, continue or preserve this assignment of the Material Agreements and the
Other Payments and the Lien upon the Material Agreements and the Other Payments
made under Granting Clause G.
(b) LICENSE TO COLLECT PAYMENTS. As long as no Event of Default has
occurred, Mortgagor shall have the right under a license granted hereby, subject
to subsection (c) of this Section, to collect the Other Payments, if any, upon
the due date thereof, but not prior to such due date.
(c) TERMINATION OF LICENSE UPON EVENT OF DEFAULT. If an Event of
Default shall occur, the license granted under subsection (b) of this Section
shall immediately and automatically terminate, without the necessity of any
action by any Person, and Mortgagee and any Receiver appointed under this
Mortgage shall have the right to exercise the rights and remedies provided under
this Mortgage or otherwise under applicable law. If an Event of Default shall
occur, upon demand by the Person exercising the rights under this Section,
Mortgagor shall promptly pay to such Person all deposits under the Material
Agreements and all Other Payments allocable to any period after the occurrence
of such Event of Default. Subject to any applicable Legal Requirement, any Other
Payments received hereunder by the Person exercising the rights under this
Section shall be promptly paid to Mortgagee, and any Other Payments received
hereunder by Mortgagee shall be applied and disbursed as provided in the
Indenture, subject to the Intercreditor Agreement.
(d) DIRECTION TO CONTRACT PARTIES. Upon the occurrence of an Event of
Default, Mortgagor hereby authorizes and directs, and shall, at the direction of
Mortgagee, further authorize and direct, in writing, each party under a Material
Agreement to pay any Other Payments owing to Mortgagor directly to, or as
directed by, Mortgagee without proof to such party of the occurrence and
continuance of such Event of Default. Mortgagor hereby authorizes the parties
under each Material Agreement to rely upon and comply with any notice or demand
from Mortgagee for payment of Other Payments to Mortgagee and Mortgagor shall
have no claim against any such party for Other Payments paid by such party to
Mortgagee pursuant to such notice or demand.
(e) NO RELEASE OF CONTRACT PARTIES. Neither this Mortgage nor any
action or inaction on the part of Mortgagee shall release any party under any
Material Agreement, any guarantor of any Material Agreement or Mortgagor from
any of their respective obligations under the Material Agreements or constitute
an assumption of any such obligation on the part of Mortgagee. No action or
failure to act on the part of Mortgagor shall adversely affect or limit the
rights of Mortgagee under this Mortgage or, through this Mortgage, under the
Material Agreements.
(f) NO LIABILITY OF MORTGAGEE. Neither the acceptance hereof nor the
exercise of the rights and remedies hereunder nor any other action on the part
of Mortgagee or any Person exercising the rights of Mortgagee hereunder shall be
construed to (i) be an assumption by Mortgagee or any such Person or to
otherwise make Mortgagee or such Person liable or responsible for the
performance of any of the obligations of Mortgagor under or with respect to the
Material Agreements or for any Other Payment, deposit or other amount delivered
to Mortgagor; or (ii) obligate Mortgagee or any such Person to take any action
under or with respect to the Material Agreements or with respect to the
Mortgaged Property, to incur any expense or perform or discharge any duty or
obligation under or with respect to the Material Agreements or with respect to
the Mortgaged Property, to appear in or defend any action or proceeding relating
to the Material Agreements or the Mortgaged Property, to constitute Mortgagee as
a mortgagee-in-possession (unless Mortgagee actually enters and takes possession
of the Mortgaged Property), or to be liable in any way for any injury or damage
to persons or property sustained by any Person in or about the Mortgaged
Property, other than to the extent caused by the willful misconduct or gross
negligence of Mortgagee or any Person exercising the rights of Mortgagee
hereunder.
(g) EXISTING MATERIAL AGREEMENTS. Mortgagor represents and warrants
that as of the date hereof, only the following Material Agreements exist with
respect to the Mortgaged Property: the Retail Unit Contract of Sale, the
Declaration, the Zoning Lot Agreement, the Master Agreement, the Improvements
Agreement, the License Agreement, and the Planet Hollywood Plans.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT. "EVENT OF DEFAULT" as used herein
shall have the meaning set forth in the Indenture.
SECTION 6.2. REMEDIES.
(a) IN GENERAL. If an Event of Default shall occur, Mortgagee, with or
without entry onto the Property, shall have the following rights:
(i) to immediately foreclose this Mortgage and the lien
hereof;
(ii) to sell Mortgagor's right, title and interest in and to
the Mortgaged Property, as a whole or in separate parcels, at one or
more public sales, at such time and place and upon such terms and
conditions as may be required or permitted by applicable law. Such
power shall not be exhausted until the Secured Obligations have been
paid in full. Mortgagee may execute and deliver to the purchaser or
purchasers at any sale a sufficient conveyance of the Mortgaged
Property sold thereby divesting Mortgagor of all right, title or
interest that it may have in and to such Mortgaged Property and
vesting the same in the purchaser or purchasers at such sale or sales,
free of the security interest and lien of this Mortgage and free of
all rights of redemption in Mortgagor;
(iii) to take such steps to protect and enforce its rights
and the lien of this Mortgage, whether by action, suit or proceeding
in equity or at law for the specific performance of any provision in
the Indenture or the Security Documents, or in aid of the execution of
any power granted in this Mortgage, or for any foreclosure hereunder,
or for the enforcement of any other appropriate legal or equitable
remedy Mortgagee shall elect;
(iv) to apply for the appointment of a Receiver for the
Mortgaged Property in accordance with SECTION 6.4; and
(v) to take all such other steps and to assert and exercise
all such other rights and remedies, including power of sale, as shall
be permitted by applicable law.
(b) FORECLOSURE. This Mortgage may be foreclosed once against all or
successively against any part or parts of the Mortgaged Property as Mortgagee
may elect. This Mortgage and the right of foreclosure hereunder shall not be
impaired or exhausted by one or any foreclosure or by one or any sale, and may
be foreclosed successively and in parts, until all of the Mortgaged Property has
been foreclosed against and sold. The purchase money proceeds or avails of any
foreclosure or sale after default and any other sums which then may be held by
Mortgagee under this Mortgage shall be applied as provided in the Indenture,
subject to the Intercreditor Agreement.
(c) MORTGAGEE MAY BID. In connection with any such foreclosure or
sale, Mortgagee may bid for and acquire Mortgagor's interest in the Mortgaged
Property or any part thereof and in lieu of paying cash therefor, may make
settlement for the purchase price by crediting upon the Secured Obligations the
net sales price received therefor, after deducting all unpaid costs and expenses
paid or incurred by any Mortgagee under or in connection with this Mortgage.
Mortgagee may adjourn from time to time any sale by it to be made under or by
virtue of this Mortgage by announcement at the time and place appointed for such
sale or for such adjourned sale or sales, and, Mortgagee, without further notice
or publication, may make such sale at the time and place to which the same shall
be so adjourned.
(d) ACCELERATION OF SECURED OBLIGATIONS. In the event of any sale made
under or by virtue of this Article, the entire principal of, interest and other
amounts in respect of the Secured Obligations, if not previously due and
payable, shall, at the option of Mortgagee, immediately become due and payable,
anything in this Mortgage to the contrary notwithstanding.
SECTION 6.3. POSSESSION OF PROPERTY.
(a) MORTGAGOR TO VACATE MORTGAGED PROPERTY. Mortgagor hereby waives,
if an Event of Default shall occur, all right to the possession, income and
Rents and Other Payments of the Mortgaged Property, and Mortgagor hereby
expressly authorizes and empowers Mortgagee, upon such occurrence and
continuation, for the purpose of protecting and preserving the Mortgaged
Property and the interest of Mortgagee therein, and to the extent permitted by
law, (i) to enter upon and take possession of the Mortgaged Property, to remove
and exclude Mortgagor and its agents and servants wholly therefrom, by summary
proceeding, ejectment or otherwise, and to take possession of all books, records
and accounts relating thereto, and Mortgagor agrees to surrender possession of
the Mortgaged Property and of such books, records and accounts to Mortgagee on
demand, and (ii) with or without the entry upon or taking possession of the
Mortgaged Property, to hold, operate, manage, repair and maintain the Mortgaged
Property and to collect and receive all earnings, revenues, Rents, Other
Payments, issues, profits, income and cash collateral derived from the Mortgaged
Property, and after deducting therefrom all reasonable costs, expenses and
liabilities (including reasonable attorneys' fees and expenses) incurred by
Mortgagee in collecting the same and in using, managing, preserving and
controlling the Mortgaged Property for the purpose of protecting and preserving
the Mortgaged Property and the interest of Mortgagee therein, and otherwise in
exercising Mortgagee's rights hereunder and under the Material Agreements,
including all amounts necessary to pay Impositions, Retail Unit Charges and
other reasonable charges in connection with the Mortgaged Property, as well as
reasonable compensation for Mortgagee's agents and employees, and to apply the
remainder as set forth in SECTION 6.9. Without limiting any other right or
remedy of Mortgagee pursuant to any other provision of this Mortgage or the
Indenture, upon or at any time after the filing of a suit to foreclose this
Mortgage, the court in which such suit is filed shall have full power to enter
an order placing Mortgagee in possession of the Mortgaged Property with the same
power granted to a Receiver pursuant to the applicable Sections of this Mortgage
and with all other rights and privileges of a mortgagee-in-possession under
applicable State law. All such costs, expenses and liabilities incurred by
Mortgagee shall be Secured Obligations.
(b) PAYMENT FOR USE AND OCCUPANCY. Following an Event of Default and
pending the exercise by Mortgagee of its right to exclude Mortgagor from all or
any part of the Mortgaged Property, Mortgagor agrees to pay the fair and
reasonable rental value for the use and occupancy of the Mortgaged Property or
any portion thereof that is being occupied by Mortgagor for such period and,
upon default of any such payment, shall vacate and surrender possession thereof
to Mortgagee or to a Receiver, if any, and in default thereof may be evicted by
any summary action or proceeding for the recovery of possession of such portion
of the Mortgaged Property for nonpayment of rent, however designated.
SECTION 6.4. APPOINTMENT OF RECEIVER. If an Event of Default shall
occur, Mortgagee shall, as a matter of right and without regard to the adequacy
or value of any security for the Secured Obligations or the solvency of
Mortgagor, or the occupancy of the Mortgaged Property or any part thereof as a
homestead, and without the requirement of any bond, be entitled to the
appointment of a Receiver for all or any part of the Mortgaged Property and all
Rents or Other Payments therefrom (the inclusion in this Mortgage of the
provisions for the appointment of a Receiver and the assignment of Rents and
Other Payments being an express condition upon which Mortgagee agreed to execute
the Indenture and to accept this Mortgage), whether or not such receivership is
incidental to a proposed sale of the Mortgaged Property or otherwise, and
Mortgagor hereby consents to the appointment of such a Receiver and will not
oppose any such appointment.
SECTION 6.5. WAIVER OF STAY, EXTENSION, MORATORIUM AND MARSHALLING
LAWS AND EQUITY OF REDEMPTION. To the maximum extent permitted by law, Mortgagor
shall not at any time insist upon, or plead, or in any manner whatever claim or
take any benefit or advantage of any applicable present or future stay,
extension or moratorium law which may affect observance or performance of the
provisions of this Mortgage; nor claim, take or insist upon any benefit or
advantage of any present or future law providing for the valuation or appraisal
of, or rights of marshalling with respect to, the Mortgaged Property or any
portion thereof prior to or in connection with any sale or sales thereof which
may be made under or by virtue of this Mortgage; and Mortgagor, to the extent
that it lawfully may, hereby waives all benefit or advantage of any such law or
laws. Mortgagor, for itself and all who may claim under it, hereby waives, to
the maximum extent permitted by applicable law, any and all rights and equities
of redemption from sale under the power of sale created hereunder or from sale
under any order or decree of foreclosure of this Mortgage and (if an Event of
Default shall occur) all notice or notices of seizure, and all right to have the
Mortgaged Property marshalled upon any foreclosure hereof. Mortgagee shall not
be obligated to pursue or exhaust its rights or remedies as against any other
part of the Mortgaged Property and Mortgagor hereby waives any right or claim of
right to have Mortgagee proceed against any portion of the Mortgaged Property in
any particular order.
SECTION 6.6. MORTGAGEE AUTHORIZED TO EXECUTE DOCUMENTS. Mortgagor
irrevocably appoints Mortgagee the true and lawful attorney-in-fact of Mortgagor
(which appointment is coupled with an interest and shall be irrevocable), in its
name and stead and on its behalf, for the purpose of effectuating any sale,
assignment, transfer or delivery for the enforcement hereof, whether pursuant to
power of sale, foreclosure or otherwise, to execute and deliver all deeds, bills
of sale, assignments, releases and other instruments as Mortgagee may consider
necessary or appropriate, with full power of substitution, Mortgagor hereby
ratifying and confirming all that its said attorney or any substitute shall
lawfully do by virtue hereof. Nevertheless, if so requested by Mortgagee or any
purchaser, Mortgagor will immediately ratify and confirm, without any cost or
charge therefor, any such sale, assignment, transfer or delivery by executing
and delivering to the grantee or such purchaser all such proper deeds, bills of
sale, assignments, releases and other instruments as may be designated in any
such request.
SECTION 6.7. COLLATERAL SITUATED IN MORE THAN ONE COUNTY. If the
Mortgaged Property or any other Collateral is situated in two or more counties
in the State, or in two judicial districts of the same county, Mortgagee shall
have the full power to select in which county or counties, or in which judicial
district or districts, the sale of the Mortgaged Property is to be made, and
Mortgagee's selection shall be binding upon Mortgagor and shall permit the sale
of the whole to be made in any of the counties or judicial districts in which
part of the Mortgaged Property is located. Mortgagor hereby waives any right it
might otherwise have or assert to object to foreclosure, through the use of a
single Mortgage, upon all of the Mortgaged Property in the State.
SECTION 6.8. COLLATERAL IN OTHER STATES. Mortgagor acknowledges and
agrees that the Mortgaged Property and other Collateral may be located in more
than one state, and Mortgagor therefore waives and relinquishes any and all
rights it may have, whether at law or equity, to require Mortgagee to proceed to
enforce or exercise any rights, powers and remedies that Mortgagee or any
trustee may have under this Mortgage, the Indenture and any other Security
Document in any particular manner, in any particular order, or in any particular
state or other jurisdiction. Without limiting the generality of the foregoing,
(a) Mortgagee shall not be precluded from or restricted in exercising any of its
rights and remedies hereunder due to the prior or concurrent exercise by
Mortgagee or any trustee of any of its rights and remedies under the Indenture
or any other Security Document, (b) neither Mortgagee nor any trustee shall be
precluded from or restricted in exercising any of its rights and remedies under
the Indenture or any other Security Document due to the prior or concurrent
exercise by Mortgagee of any of its rights and remedies hereunder, and (c)
neither Mortgagee nor any trustee shall be required to exercise or enforce any
of its rights and remedies under any other Security Document before or
concurrently with the exercise by Mortgagee of any of its rights and remedies
hereunder. Mortgagor further agrees that any particular proceeding, including
foreclosure through court action (in a state or federal court) or power of sale,
may be brought and prosecuted in the local or federal courts of any one or more
of the states in which any of the Mortgaged Property and any other Collateral
may be located, without regard to the fact that any one or more prior or
contemporaneous proceedings have been instituted elsewhere with respect to the
same or any other portion of the Mortgaged Property or any other Collateral.
SECTION 6.9. APPLICATION OF PROCEEDS. Following the occurrence of an
Event of Default, any proceeds of any of the Mortgaged Property shall be applied
as follows:
FIRST, to the fees, costs and expenses of Mortgagee payable
pursuant to this Mortgage,
SECOND, to the payment of all other Secured Obligations,
other than principal and interest,
THIRD, to interest accrued and unpaid on the Secured
Obligations and the satisfaction of the principal amount of the
Secured Obligations, as provided in the Indenture, and
FOURTH, the remainder, if any, to Mortgagor or such other
Person as may be entitled thereto by law.
Mortgagor shall remain liable for any deficiency remaining.
SECTION 6.10. SETOFF. To the extent permitted by applicable law, if an
Event of Default occurs, any and all deposits (including all account balances,
whether provisional or final and whether or not collected or available) and any
other property at any time held or owing by Mortgagee to or for the credit or
account of Mortgagor (except accounts with respect to which Mortgagor is a
trustee or an escrow agent in respect of bona fide third parties), may be offset
and applied toward the payment of the Secured Obligations owing to Mortgagee,
whether or not the Secured Obligations, or any part thereof, shall then be due.
SECTION 6.11. RECEIPT A SUFFICIENT DISCHARGE TO PURCHASER. Upon any
sale of the Mortgaged Property or any part thereof or any interest therein,
whether pursuant to power of sale, foreclosure or otherwise, the receipt by
Mortgagee or the officer making the sale under judicial proceedings of the
purchase money therefor shall be a sufficient discharge to the purchaser for
such purchase money, and such purchaser shall not be obligated to see to the
application thereof.
SECTION 6.12. SALE A BAR AGAINST MORTGAGOR. Any sale of the Mortgaged
Property or any part thereof or any interest therein under or by virtue of this
Mortgage, whether pursuant to power of sale, foreclosure or otherwise, shall
forever be a bar against Mortgagor.
SECTION 6.13. REMEDIES CUMULATIVE; WAIVER. No remedy or right of
Mortgagee hereunder, under the Indenture, or any other Security Document or
otherwise, or available under applicable law, shall be exclusive of any other
right or remedy, but each such remedy or right shall be in addition to every
other remedy or right now or hereafter existing at law or in equity under any
such document or under applicable law. No delay in the exercise of, or omission
to exercise, any remedy or right accruing on any Potential Default or Event of
Default shall impair any such remedy or right or be construed to be a waiver of
any such Potential Default or Event of Default or an acquiescence therein, nor
shall it affect any subsequent Potential Default or Event of Default of the same
or a different nature. Every such remedy or right may be exercised concurrently
or independently, and when and as often as may be deemed proper by Mortgagee.
All obligations of Mortgagor, and all rights, powers and remedies of Mortgagee
expressed herein, shall be in addition to, and not in limitation of, those
provided by law or in the Indenture, any other Security Document or any other
written instrument relating to any of the Secured Obligations or any security
therefor. Any and all covenants of Mortgagor in this Mortgage may from time to
time, by instrument in writing signed by Mortgagee, be waived to such extent and
in such manner as Mortgagee may desire, but no such waiver will ever affect or
impair the rights of Mortgagee hereunder, except to the extent specifically
stated in such written instrument.
SECTION 6.14. NO LIABILITY OF MORTGAGEE. Notwithstanding anything
contained in this Mortgage, this Mortgage is only intended as security for the
Secured Obligations and Mortgagee shall not be obligated to perform or
discharge, and do not hereby undertake to perform or discharge, any obligation,
duty or liability of Mortgagor with respect to any of the Mortgaged Property.
Unless and until Mortgagee takes actual possession of the Mortgaged Property,
either through foreclosure, the taking of a deed in lieu thereof or otherwise,
Mortgagee shall not have responsibility for the control, care, management or
repair of the Mortgaged Property nor shall Mortgagee be responsible or liable
for any negligence in the management, operation, upkeep, repair or control of
the Mortgaged Property resulting in loss or injury or death to any licensee,
employee, tenant or stranger or other Person. Mortgagor shall indemnify and hold
harmless Mortgagee from and against any and all Losses incurred by Mortgagee in
connection with any of the foregoing which are not the responsibility of
Mortgagee in accordance with this Section.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. TERMINATION; DEFEASANCE.
(a) TERMINATION. Upon satisfaction of the applicable conditions of
Article 10 of the Indenture, this Mortgage and the liens and security interests
created hereby shall terminate upon the earlier of the following dates:
(i) the date on which the Secured Obligations due and to
become due shall have been paid or performed in full and such payments
are no longer subject to recoupment or avoidance upon any insolvency
or bankruptcy of Mortgagor; and
(ii) the date on which (A) the closing of the sale of the
Mortgaged Property under the Retail Unit Contract of Sale shall have
occurred, (B) the purchaser under the Retail Unit Contract of Sale
shall have complied with all of its obligations under the Retail Unit
Contract of Sale in connection with such closing (except to the extent
waived by the holder of the Bridge Loan Mortgage), (C) the net
proceeds of such sale have been delivered to the party entitled
thereto under the Intercreditor Agreement, and (D) the holder of the
Bridge Loan Mortgage has released, or have delivered reasonable
evidence to Mortgagee that they are unconditionally prepared to
release, the Bridge Loan of record.
Upon such termination, Mortgagee shall execute and deliver to Mortgagor an
appropriate release and such other documents reasonably required by Mortgagor,
and shall turn over to Mortgagor any of the Mortgaged Property and any other
files, documents or material held by Mortgagee.
(b) SALE OF UPPER FLOORS. If (i) a closing of a sale of only the Upper
Floors shall have occurred pursuant to Section 9.2 of the Retail Unit Contract
of Sale, (ii) the purchaser under the Retail Unit Contract of Sale shall have
complied with all of its obligations under the Retail Unit Contract of Sale in
connection with such closing (except to the extent waived by the holder of the
Bridge Loan Mortgage), (iii) the net proceeds of such sale shall have been
delivered to the party entitled thereto under the Intercreditor Agreement, and
(iv) the holder of the Bridge Loan Mortgage has partially released, or have
delivered reasonable evidence to Mortgagee that they are unconditionally
prepared to partially release, the Bridge Loan Mortgage of record with respect
to the Upper Floors, then, in such event, Mortgagee shall execute and deliver to
Mortgagor an appropriate partial release of this Mortgage upon satisfaction of
the applicable conditions of Article 10 of the Indenture solely with respect to
the Upper Floors.
(c) MORTGAGOR TO PAY COSTS. In any of such events, Mortgagor shall pay
Mortgagee's expenses (including, without limitation, attorney's fees and
expenses) in connection with the termination or partial release hereof and any
transfer of such property.
SECTION 7.2. RIGHTS CUMULATIVE; WAIVERS. To the fullest extent
permitted by law, the rights and remedies of Mortgagee under this Mortgage and
the other Security Documents shall be cumulative. The exercise, failure to
exercise or delay in exercising any right or remedy by Mortgagee shall not
prevent any of them from exercising any other right or remedy or exercising such
right or remedy at a later time.
SECTION 7.3. FEES AND EXPENSES. In addition to any fees and expenses
payable pursuant to the Indenture, Mortgagor shall pay upon demand all fees and
expenses (including reasonable attorney's fees and expenses) incurred by
Mortgagee in connection with the negotiation, execution, production and delivery
of this Mortgage and any other documents executed and delivered in connection
herewith, or in connection with (a) the administration of this Mortgage and any
amendment or modification hereof, (b) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Mortgaged
Property, (c) the failure by Mortgagor to perform or observe any of the
provisions hereof, or (d) the exercise or enforcement of any of the rights of,
and collection of amounts due to, Mortgagee hereunder.
SECTION 7.4. INDEMNIFICATION.
(a) INDEMNITY. Mortgagor shall protect, indemnify and hold harmless
Mortgagee and each of its Indemnified Parties from and against all Losses
imposed upon or incurred by or asserted against Mortgagee or Indemnified Party
by reason of: (i) any accident, injury or death of persons or loss of or damage
to property occurring on or about the Mortgaged Property or any part thereof;
(ii) any use or non-use of the Mortgaged Property or any part thereof; (iii) any
failure on the part of Mortgagor to perform or comply with any of the terms of
this Mortgage; (iv) the performance of any labor or services or the furnishing
of any materials or other property in respect of the Mortgaged Property or any
part thereof; (v) any negligent or tortious act or omission on the part of
Mortgagor or any of its agents, employees, contractors, licensees, lessees or
invitees; (vi) any contest of any Legal Requirement, Imposition or other matter;
or (vii) any other matter or thing arising from or attributable to Mortgagor's
interest in the Mortgaged Property and/or receipt of any income therefrom, other
than, in the case of Losses arising prior to the occurrence of an Event of
Default or any Potential Default, Losses that result from Mortgagee's gross
negligence or willful misconduct, as determined by a court of competent
jurisdiction. If any action, suit or proceeding is brought against Mortgagee or
any Indemnified Party by reason of any such occurrence, Mortgagor, upon such
Person's request, will at Mortgagor's expense resist and defend such action,
suit or proceeding or will cause the same to be resisted and defended by counsel
for the insurer of the liability or by counsel approved by such Person. Any
amounts payable to Mortgagee or any Indemnified Party pursuant to the indemnity
contained in this Section shall bear interest at the rate specified in the Notes
from and including the date(s) such amounts were expended by such Person to the
date of payment by Mortgagor; and all such amounts, together with all such
interest, shall be deemed part of the Secured Obligations secured by this
Mortgage. The indemnity set forth in this Section shall survive the repayment in
full of the Secured Obligations and the release of any and all Liens of
Mortgagee, the transfer of any and all right, title and interest in and to the
Mortgaged Property, or any part thereof, to any Person and the satisfaction of
the Secured Obligations.
(b) THIRD-PARTY BENEFICIARIES. Each Indemnified Party shall be a
third-party beneficiary hereof and shall be entitled to, and to enforce, all of
the rights, benefits and protections afforded herein to an Indemnified Party, as
if such Indemnified Party were a party hereto.
SECTION 7.5. NOTICES. All notices and other communications provided to
any party in connection with this Mortgage shall be given and effective as
provided in the Indenture. Any party may change its address for service of
notice upon it by a notice in writing to the other parties.
SECTION 7.6. AMENDMENT AND WAIVER. Except as otherwise provided
herein, this Mortgage may be amended, and observance of any term of this
Mortgage may be waived, with (and only with) the written consent of Mortgagor
and Mortgagee.
SECTION 7.7. EXPENSES OF MORTGAGOR'S AGREEMENTS AND DUTIES. The terms,
conditions, covenants and agreements to be observed or performed by Mortgagor
under this Mortgage shall be observed or performed by it at its sole cost and
expense.
SECTION 7.8. MORTGAGEE'S RIGHT TO PERFORM ON MORTGAGOR'S BEHALF. If
Mortgagor shall fail to observe or perform any of the terms, conditions,
covenants and agreements to be observed or performed by it under this Mortgage,
Mortgagee may (but shall not be obligated to) do the same or cause it to be done
or performed or observed, either in its name or in the name and on behalf of
Mortgagor, and Mortgagor hereby authorizes Mortgagee so to do.
SECTION 7.9. MORTGAGEE'S RIGHT TO USE AGENTS AND TO ACT IN NAME OF
MORTGAGOR. Mortgagee may exercise its rights and remedies under this Mortgage
through an agent or other designee and, in the exercise thereof, Mortgagee or
any such other Person may act in its own name or in the name and on behalf of
Mortgagor.
SECTION 7.10. NO COMPENSATION OR EXPENSE. Mortgagee may exercise its
rights and remedies under this Mortgage (a) without payment of any rent, license
fee or compensation of any kind to Mortgagor and (b) for the account, and at the
expense, of Mortgagor.
SECTION 7.11. LIMITATION OF OBLIGATIONS WITH RESPECT TO MORTGAGED
PROPERTY.
(a) REASONABLE CARE. Mortgagee shall have any duty or liability to
protect or preserve any Mortgaged Property or to preserve rights pertaining
thereto other than the duty to use reasonable care in the custody and
preservation of any Mortgaged Property in its actual possession. Mortgagee shall
be deemed to have exercised reasonable care in the custody and preservation of
any Mortgaged Property in its possession if such Mortgaged Property is accorded
treatment substantially equal to that which Mortgagee accords its own like
property. Mortgagee shall be relieved of all responsibility for any Mortgaged
Property in its possession upon surrendering it, or tendering surrender of it,
to Mortgagor or to such other Person entitle thereto by law.
(b) NO OBLIGATIONS. Nothing contained in this Mortgage shall be
construed as requiring or obligating Mortgagee, and Mortgagee shall not be
required, or obligated, to (i) make any demand, or to make any inquiry as to the
nature or sufficiency of any payment received by it, or to present or file any
claim or notice or take any action, with respect to any Mortgaged Property or
the monies due or to become due thereunder or in connection therewith, (ii)
ascertain or take action with respect to calls, conversions, exchanges,
maturities, tenders, offers or other matters relating to any Mortgaged Property,
whether or not Mortgagee has or is deemed to have knowledge or notice thereof,
(iii) take any necessary steps to preserve rights against any prior parties with
respect to any Mortgaged Property, or (iv) notify Mortgagor or any other Person
of any decline in the value of any Mortgaged Property.
SECTION 7.12. TIME OF THE ESSENCE. Time is of the essence with respect
to the various obligations of Mortgagor and rights and remedies of Mortgagee
under this Mortgage.
SECTION 7.13. DISCLOSURES. Mortgagee may disclose to, and exchange and
discuss with, any other Person (Mortgagee and each such other Person being
hereby irrevocably authorized to do so) any information concerning the Mortgaged
Property or Mortgagor (whether received by Mortgagee or such other Person in
connection with or pursuant to the Indenture, the Security Documents or
otherwise) for the purpose of (a) complying with applicable Legal Requirements
(including, without limitation, any court order, subpoena or other legal
process), (b) protecting or preserving the Mortgaged Property, (c) protecting,
preserving, exercising or enforcing any of its rights in, under or related to
the Mortgaged Property, the Indenture or the Security Documents, (d) performing
any of its obligations under or related to the Indenture and the Security
Documents, (e) consulting with attorneys, accountants or regulators with respect
to any of the foregoing matters, or (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any participant
in or assignee of, or prospective participant in or assignee of, any of the
Secured Obligations.
SECTION 7.14. INCONSISTENCY WITH INDENTURE.
(a) INDENTURE. In the event of any express conflict between the terms
of this Mortgage and the terms of the Indenture with respect to the Mortgaged
Property, the terms of the Indenture shall govern and control.
(b) SECURITY DOCUMENTS. Mortgagor and Mortgagee are parties to one or
more Security Documents. If any term or provision hereof with respect to any
Mortgaged Property hereunder which is Personal Property and which is the subject
of and covered by a Security Document is inconsistent with any term or provision
of such Security Document, then such term or provision of this Mortgage shall
govern and control with respect to such Personal Property to the extent of such
inconsistency.
SECTION 7.15. SEVERABILITY. If any provision of this Mortgage shall be
invalid, illegal or unenforceable in any jurisdiction, the remaining provisions
shall continue to be valid and enforceable and such provision shall continue to
be valid and enforceable in any other jurisdiction.
SECTION 7.16. HEADINGS. The headings of the Sections and subsections
are for convenience and shall not affect the meaning of this Mortgage.
SECTION 7.17. ASSIGNMENT; BENEFIT. Mortgagor may not sell, convey,
assign, transfer or otherwise dispose of all or any portion of its rights and
obligations under this Mortgage. Mortgagor and Mortgagee and their permitted
successors and assigns shall be bound by this Mortgage. They (and their
Indemnified Parties) shall be the only persons entitled to its benefits.
SECTION 7.18. GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
MORTGAGEE SHALL HAVE THE RIGHT TO SEEK A DEFICIENCY JUDGMENT AGAINST MORTGAGOR
IN OTHER STATES OR FOREIGN JURISDICTIONS; AND MORTGAGOR AGREES THAT, TO THE
EXTENT MORTGAGEE OBTAINS A DEFICIENCY JUDGMENT IN ANY OTHER STATE OR FOREIGN
JURISDICTION, THEN SUCH PARTY SHALL HAVE THE RIGHT TO ENFORCE SUCH JUDGMENT IN
THE STATE, AS WELL AS IN OTHER STATES OR FOREIGN JURISDICTIONS.
SECTION 7.19. WAIVER OF JURY TRIAL. MORTGAGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS MORTGAGE, THE INDENTURE OR ANY OTHER SECURITY DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF MORTGAGEE OR MORTGAGOR IN CONNECTION HEREWITH. MORTGAGOR
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF THE INDENTURE AND EACH SECURITY
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR MORTGAGEE ENTERING INTO THIS MORTGAGE. SECTION
7.20. CONSENT TO JURISDICTION. MORTGAGOR AND MORTGAGEE CONSENT FOR
THEMSELVES AND IN RESPECT OF THEIR PROPERTIES, GENERALLY, UNCONDITIONALLY AND
IRREVOCABLY, TO THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS
SITTING IN NEW YORK COUNTY WITH RESPECT TO ANY PROCEEDING RELATING TO ANY
MATTER, CLAIM OR DISPUTE ARISING UNDER THIS MORTGAGE OR THE TRANSACTIONS
CONTEMPLATED HEREBY. MORTGAGOR FURTHER CONSENTS, GENERALLY, UNCONDITIONALLY AND
IRREVOCABLY, TO THE NONEXCLUSIVE JURISDICTION OF THE STATE OF NEW YORK AND
FEDERAL COURTS OF THE STATE OF NEW YORK IN RESPECT OF ANY PROCEEDING RELATING TO
ANY MATTER, CLAIM OR DISPUTE ARISING WITH RESPECT TO THE COLLATERAL. MORTGAGOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS, GENERALLY,
UNCONDITIONALLY AND IRREVOCABLY, AT ITS ADDRESS PURSUANT TO SECTION 7.5 HEREOF,
IN CONNECTION WITH ANY OF THE AFORESAID PROCEEDINGS IN ACCORDANCE WITH THE RULES
APPLICABLE TO SUCH PROCEEDINGS. MORTGAGOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY HAVE NOW OR IN THE FUTURE TO THE LAYING OF VENUE IN
RESPECT OF ANY OF THE AFORESAID PROCEEDINGS BROUGHT IN THE COURTS REFERRED TO
ABOVE AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF MORTGAGEE TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW OR TO COMMENCE PROCEEDINGS OR OTHERWISE PROCEED AGAINST
MORTGAGOR IN ANY JURISDICTION.
SECTION 7.21. LIMITATION ON INTEREST PAYABLE. It is the intention of
the parties to conform strictly to the usury laws, whether state or federal,
that are applicable to the transaction of which this Mortgage is a part. All
agreements between Mortgagor and Mortgagee whether now existing or hereafter
arising and whether oral or written, are hereby expressly limited so that in no
contingency or event whatsoever shall the amount paid or agreed to be paid by
Mortgagor for the use, forbearance or detention of the money to be paid pursuant
to the Indenture or any Security Document, or for the payment or performance of
any covenant or obligation contained herein or in the Indenture, the Notes or
any other Security Document, exceed the maximum amount permissible under
applicable federal or state usury laws. If under any circumstances whatsoever
fulfillment of any such provision, at the time performance of such provision
shall be due, shall involve exceeding the limit of validity prescribed by law,
then the obligation to be fulfilled shall be reduced to the limit of such
validity. If under any circumstances Mortgagor shall have paid an amount deemed
interest by applicable law, which would exceed the highest lawful rate, such
amount that would be excessive interest under applicable usury laws shall be
applied to the reduction of the principal amount owing in respect of the Secured
Obligations and not to the payment of interest, or if such excessive interest
exceeds the unpaid balance of principal and any other amounts due hereunder, the
excess shall be refunded to Mortgagor. All sums paid or agreed to be paid for
the use, forbearance or detention of the principal under any extension of credit
by Mortgagee shall, to the extent permitted by applicable law, and to the extent
necessary to preclude exceeding the limit of validity prescribed by law, be
amortized, prorated, allocated and spread from the date of this Mortgage until
payment in full of the Secured Obligations so that the actual rate of interest
on account of such principal amounts is uniform throughout the term hereof.
SECTION 7.22. COVENANTS TO RUN WITH THE LAND. All of the grants,
covenants, terms, provisions and conditions in this Mortgage shall run with the
Land and shall apply to and bind the successors and assigns of Mortgagor. If
there shall be more than one mortgagor, the covenants, representations and
warranties made herein shall be joint and several.
SECTION 7.23. NO MERGER. The rights and estate created by this
Mortgage shall not, under any circumstances, be held to have merged into any
other estate or interest now owned or hereafter acquired by Mortgagee unless
Mortgagee shall have consented to such merger in writing.
SECTION 7.24. RELATIONSHIP. The relationship of Mortgagee to Mortgagor
hereunder is strictly and solely that of mortgagee and mortgagor and nothing
contained in this Mortgage, or any other document or instrument now existing and
delivered in connection herewith or otherwise in connection with the Secured
Obligations, is intended to create or shall in any event or under any
circumstance be construed as creating a partnership, joint venture,
tenancy-in-common, joint tenancy or other relationship of any nature whatsoever
between Mortgagee and Mortgagor other than as mortgagee and mortgagor.
SECTION 7.25. [RESERVED]
SECTION 7.26. SUBORDINATION TO BRIDGE LOAN MORTGAGE. This Mortgage and
the Lien hereof is subject and subordinate to the Bridge Loan Mortgage and the
Lien thereof, and the Revolving Loan Mortgage and the Lien thereof to the extent
set forth in and subject to the terms and conditions of the Intercreditor
Agreement.
SECTION 7.27. SUBJECT TO RETAIL UNIT CONTRACT OF SALE. Notwithstanding
anything to the contrary contained herein, no Potential Default or Event of
Default shall occur under this Mortgage, and Mortgagee may not claim a Potential
Default or Event of Default hereunder, by reason of any action or omission taken
or permitted by Mortgagor for the purpose of satisfying or complying with any
term or condition of the Retail Unit Contract of Sale which, if not satisfied or
complied with by Mortgagor, would constitute a breach or default under the
Retail Unit Contract of Sale. Further, the modification or suspension of the
obligations under the Declaration, the License Agreement and/or the Improvements
Agreement in accordance with the terms and provisions of the Retail Unit
Contract of Sale, provided that the same does not arise by reason of the default
by Mortgagor thereunder, shall not constitute a Potential Default or an Event of
Default under this Mortgage.
ARTICLE VIII
NEW YORK LAW PROVISIONS
SECTION 8.1. EXECUTION OF FINANCING STATEMENTS. Pursuant to Section
9-402 of the Uniform Commercial Code, Mortgagor authorizes Mortgagee to file
financing statements with respect to the Mortgaged Property without the
signature of Mortgagor in such form and in such filing offices as Mortgagee
reasonably determines appropriate to perfect the security interests of Mortgagee
under this Mortgage. A carbon, photographic or other reproduction of this
Mortgage shall be sufficient as a financing statement for filing in any
jurisdiction. Without limiting the foregoing, Mortgagor acknowledges that it is
responsible for the execution, delivery and filing of financing statements and
continuation statements with respect to the Mortgaged Property to perfect the
security interests of Mortgagee under this Mortgage.
SECTION 8.2. LIEN LAW. In compliance with Section 13 of the New York
Lien Law, Mortgagor shall receive any advances secured hereby, and shall hold
the right to receive such advances, as a trust fund to be applied first for the
purpose of paying the cost of any improvement, and shall apply the same first to
the payment of the cost of such improvement before using any part of the total
of the same for any other purpose. Mortgagor hereby represents and warrants in
favor of Mortgagee that, during the period commencing eight (8) months prior to
the date of this Mortgage and ending on the date of this Mortgage, no work has
been performed in connection with the Property or the Improvements which could
give rise to the filing of a mechanic's or materialmen's lien that would attach
to the Property or the Improvements.
SECTION 8.3. PROVISION REGARDING RESIDENTIAL DWELLING UNITS. This
Mortgage does not cover real property principally improved or to be improved by
one or more structures containing in the aggregate not more than six residential
dwelling units, each having their own separate cooking facilities.
SECTION 8.4. INSURANCE. The provisions of subsection 4 of Section 254
of the New York Real Property Law covering the insurance of buildings against
loss by fire shall not apply to this Mortgage, the Indenture or the other
Security Documents. In the event of any conflict, inconsistency or ambiguity
between the provisions of this Mortgage, the Indenture and the other Security
Documents and the provisions of subsection 4 of Section 254 of the New York Real
Property Law covering the insurance of buildings against loss by fire, the
provisions of this Mortgage and the Indenture shall prevail.
SECTION 8.5. LEASES. In addition to all of Mortgagee's other rights
and remedies herein, in the Indenture or in the other Security Documents,
Mortgagee shall also have all of the rights against lessees of the Property, if
any, set forth in Section 291-f of the Real Property Law of New York.
SECTION 8.6. STATUTORY CONSTRUCTION. The provisions of this Mortgage
shall be in addition to the provisions set forth in Section 254 of the Real
Property Law of New York, and the provisions contained in this Mortgage, the
Indenture and the other Security Documents shall afford rights supplemental to
and not exclusive of the rights conferred by the provisions set forth in said
Section 254 and shall not impair, modify, alter or defeat such rights (except as
provided in Section 8.4 above), notwithstanding that such provisions may relate
to the same subject matter or provide for different or additional rights in the
same or similar contingencies as the provisions set forth in said Section 254.
The rights of Mortgagee arising under the provisions contained in this Mortgage,
the Indenture and the other Security Documents shall be separate, distinct and
cumulative, and none of them shall be in exclusion of the others. No act of
Mortgagee shall be construed as an election to proceed under any one provision
herein to the exclusion of any other provision, anything herein or otherwise to
the contrary notwithstanding. Except as provided in Section 8.4 above, in the
event of any conflict between the provisions of Section 254 of the New York Real
Property Law and the provisions of this Mortgage, the Indenture and the other
Security Documents, the provisions affording Mortgagee greater rights or
protection shall prevail.
SECTION 8.7. TRANSFER TAXES.
(a) In the event of a sale or other disposition of the Mortgaged
Property or an interest in an entity having an interest in the Mortgaged
Property, including a sale pursuant to a judgment of foreclosure or a transfer
in lieu thereof, or any other transaction with respect to the Mortgaged
Property, which would result in any transfer tax liability, Mortgagor shall
fully and accurately complete and execute all forms and documents which
Mortgagee may reasonably require, and shall deliver such forms and documents,
together with the amount of any tax liability that will be due, to Mortgagee at
least fifteen (15) days prior to the scheduled date of the sale or other
disposition in question. If Mortgagor fails to pay any such tax liability and
Mortgagee pays all or any part thereof, the amount of any such payment, together
with interest thereon at the Default Rate from the date incurred by Mortgagee
until actually paid by Mortgagor, shall be immediately paid by Mortgagor on
demand and shall be secured by this Mortgage and by all of the other Security
Documents securing all or any part of the Secured Obligations.
(b) Mortgagor shall pay when due any and all mortgage recording and
other taxes payable or determined to be payable in connection with the
execution, delivery, recording or enforcement of this Mortgage, the Indenture
and the other Security Documents, and any interest and penalties thereon.
(c) Mortgagor hereby indemnifies and agrees to hold Mortgagee harmless
from and against any and all Losses with respect to or resulting from any delay
in paying or any omission or failure to pay any taxes described in this Section
(including all costs of responding to any audits and any and all penalties and
interest imposed).
SECTION 8.8. MORTGAGE RECORDING TAX. If, by the laws of the United
States of America, or of any state or political subdivision having jurisdiction
over Mortgagor, any stamp, mortgage recording or other tax (other than real
estate taxes) is due or becomes due in respect of the issuance of the Notes, the
execution and delivery of the Credit Agreement or the execution, delivery or
recording of this Mortgage or any assignment of leases and rents given as
security for the Notes or is otherwise required to be paid in order to enforce
this Mortgage or to foreclose the lien hereof, Mortgagor covenants and agrees to
pay such tax at the time and in the manner required by any such law, Mortgagor
further covenants to defend and hold harmless and agrees to indemnity each
Secured Party from and against any and all Losses incurred by reason of any such
imposition of any such tax or any claim therefor.
SECTION 8.9. POWER OF SALE.
(a) The provisions of Section 6.2 of this Mortgage are hereby
supplemented to provide that Mortgagee may, either with or without entry or
taking possession of the Property as provided in this Mortgage or otherwise,
personally or by its agents or attorneys, and without prejudice to the right to
bring an action for foreclosure of this Mortgage, sell the Mortgaged Property or
portion thereof, and all estate, right, title and interest of Mortgagor therein,
and terminate all rights of redemption with respect thereto, pursuant to any
procedures provided by applicable law, including, without limitation, the
procedures set forth in Article 14 of the New York Real Property Actions and
Proceedings Law and any amendments or substitute statutes in regard thereto (the
"RPAPL"). Any sale or sales pursuant hereto shall be for the Mortgaged Property
as a whole or in parcels and shall be held at such time and place, upon such
terms and after such notice thereof as may be required or permitted by
applicable law.
(b) All notices hereunder or under any applicable law pertaining
hereto (including, without limitation, Article 14 of the RPAPL) shall be in
writing and shall be deemed sufficiently served for all purposes when given
pursuant to Section 7.5 of this Mortgage or as otherwise permitted by Article 14
of the RPAPL. For purposes hereof, notices may be given by the parties hereto or
by their respective attorneys.
(c) The provisions of this Section are intended to supplement, and not
limit, the other provisions of this Mortgage; provided, however, that in the
event the provisions of this Section contradict any other provision of this
Mortgage, the provisions of this Section shall govern.
[-REMAINDER OF PAGE IS BLANK.-]
<PAGE>
IN WITNESS WHEREOF, Mortgagor has duly executed and delivered this Mortgage as
of the date first written above.
PLANET HOLLYWOOD (REGION III), INC.,
a Florida corporation
By:
Name:
Title:
Attest:
Name:
Title:
<PAGE>
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of March in the year 2000, before me, the
undersigned, personally appeared
________________________________________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
--------------------------------
Notary Public
My commission expires:
[affix notarial seal]
<PAGE>
EXHIBIT A
TO MORTGAGE
DESCRIPTION OF LAND
<PAGE>
EXHIBIT B
TO MORTGAGE
PERMITTED EXCEPTIONS
1. [Zoning laws and regulations]
2. [Attach acceptable title exceptions described in Schedule B to the
title insurance policy.]
<PAGE>
EXHIBIT C
TO MORTGAGE
INFORMATION FOR FINANCING STATEMENTS
Chief Executive Office: c/o Planet Hollywood International, Inc.
Corporate Office
8669 Commodity Circle
Orlando, Florida 32819
Principal Place of Business: c/o Planet Hollywood International, Inc.
Corporate Office
8669 Commodity Circle
Orlando, Florida 32819
Location of Each Required Filing Office:
1. Secretary of State of New York.
2. New York County, State of New York
3. Florida Secretary of State
<PAGE>
Appendix A
1. INSURANCES FOR THE MORTGAGED PROPERTY
(i) REQUIRED INSURANCE. Planet Hollywood, Region III and/or
Hospitality will maintain, or cause to be maintained, property and liability
insurance (in addition to that which is required by section 2 below) with
respect to the Mortgaged Property as reasonably requested from time to time by
the Mortgagee (but in any event in an amount sufficient to prevent the Mortgagee
or any Guarantor from becoming a co-insurer of any loss under the terms of the
policy), including: (A) "all risk" property insurance against direct physical
loss or damages caused by any of the perils customarily insured under the
standard fire insurance policy with broad form extended coverage, vandalism and
malicious mischief and sprinkler leakage endorsements added thereto covering the
Mortgaged Property in at least the amount of its full insurable value on a
replacement cost basis; (B) comprehensive general liability insurance with a
combined single limit of $5,000,000 for each occurrence providing coverage for
bodily injury, including death, and property damage, including loss of use of
such property, arising out of the ownership, maintenance or use of the Mortgaged
Property and premises liability insurance, blanket contractual liability
insurance and products liability insurance (during the period of any
construction or restoration work at the Mortgaged Property); (C) if the
Mortgaged Property or any portion thereof is located in any area designated by
the Federal Emergency Management Agency as a special flood hazard area (Zone A
or Zone V) (the "Flood Zone"), flood insurance covering the Mortgaged Property
(and the Mortgagee reserves the right to require that the applicable Guarantor
secure flood insurance in excess of the amount required by applicable law if
such insurance is commercially available, up to the amount provided in clause
(A) above); (D) steam boiler and machinery breakdown direct-damage insurance and
third-party liability coverage (if not covered under the comprehensive general
liability policy described in clause (B) above), with full comprehensive
coverage on a repair and replacement cost basis, for all boilers and machinery
which form a part of the Mortgaged Property; (E) to the extent not covered under
clauses (A) and (D) above, difference-in-conditions coverage (including flood
and earthquake to the extent available), in an amount satisfactory to the
Mortgagee; (F) during any period of construction or restoration of the Mortgaged
Property, a policy or policies of builder's risk coverage written on a completed
value basis insuring against such risks (including, without limitation, fire and
extended coverage, collapse of the Mortgaged Property and earthquake coverage to
agreed limits) as the Mortgagee may request, in form and substance acceptable to
the Mortgagee; and (G) such other insurance with respect to the Mortgaged
Property as the Mortgagee from time to time may reasonably require.
(ii) FORM. All insurance required by this Section 1 shall be taken out
and maintained with an insurer licensed to do business in the State of New York,
having a general policy holder's rating of not less than ["A"] and a financial
rating of not less than Class ["XII"] as rated by the most recent A.M. Best &
Co. insurance reports and otherwise reasonably acceptable to the Mortgagee, and
shall have a deductible, and shall otherwise be in form and substance,
reasonably satisfactory to the Mortgagee. Each such policy with respect to the
Mortgaged Property shall name the Mortgagee as an additional insured and loss
payee and shall contain standard clauses waiving all rights of subrogation
against the Mortgagee and requiring that, subject to the terms of the
Intercreditor Agreement, all Insurance Proceeds resulting from any claim be paid
to the Mortgagee notwithstanding (A) any act or negligence of any Guarantor or
its agents or employees which might, absent such agreement, result in a
forfeiture of all or part of such insurance payment, (B) the occupation or use
of the Mortgaged Property or any part thereof for purposes more hazardous than
permitted by the terms of such policy, (C) any foreclosure or other action or
proceeding taken pursuant to the Mortgage, or (D) any change in title to or
ownership of the Mortgaged Property or any part thereof. Each policy shall
contain an undertaking by the insurer that such policy shall not be modified
without at least thirty (30) days' prior notice to, and the prior written
consent of, the Mortgagee.
(iii) DELIVERY OF POLICIES; PAYMENT OF PREMIUMS. Deliver, or cause to
be delivered, all insurance policies or certificates therefor (or the underlying
policies in the case of blanket insurance) required under this Section to the
Mortgagee with premiums paid, which delivery shall constitute an assignment by
the applicable Guarantor to the Mortgagee of all of its rights thereunder,
including return of premium. If the Company shall fail to deliver, or cause to
be delivered, renewal policies therefor and receipts showing payment of premiums
not less than thirty (30) days prior to their respective dates of expiration,
the Mortgagee may procure such insurance as it may elect and may make payment of
premiums thereon, which payment shall be payable immediately upon demand,
together with interest at the rate specified in the Indenture from the date of
payment by the Mortgagee, and shall be added to and become part of the
Obligations. In no event, and whether or not default hereunder has occurred,
shall the Mortgagee, by the fact of approving, accepting or obtaining such
insurance, incur any liability for the amount of such insurance, the form or
legal sufficiency of insurance contracts, solvency of insurers or payment of
losses by insurers, and the Company hereby expressly assume full responsibility
therefor and liability, if any, thereunder.
(iv) NOTICE OF LOSS. If damage to, destruction or loss of or other
casualty with respect to any of the Mortgaged Property (a "Casualty") occurs,
immediately take such action or cause such action to be taken as may be
necessary or reasonably appropriate to protect the Mortgaged Property or
remaining portion thereof. The Company will also give the Mortgagee prompt
notice of damage to or destruction of any portion of the Mortgaged Property and
in case of loss covered by policies of insurance, the Mortgagee is hereby
authorized to make proof of loss if not made promptly by the Company. Any
expenses incurred by the Mortgagee in the collection of the proceeds of such
policies of insurance, together with interest thereon from date of any such
expense at the rate specified in the Indenture (or such lesser rate of interest
as may be the maximum not prohibited by applicable law), shall be added to and
become part of the Obligations and shall be reimbursed to the Mortgagee
immediately upon demand.
(v) NO SEPARATE INSURANCE. Except as set forth in section 2 below,
Planet Hollywood (Region III), Inc. ("Region III"), or Planet Hospitality
Holdings, Inc. ("Hospitality"), both a Florida corporation shall not take out
separate insurance concurrent in form or contributing in the event of loss with
that required to be maintained hereunder unless the Mortgagee is named as an
additional insured thereon under a standard mortgagee clause acceptable to the
Mortgagee and each such policy is otherwise in form and substance acceptable to
the Mortgagee. Planet Hollywood, Region III or Hospitality, as the case may be,
shall notify the Mortgagee at least thirty (30) days prior to the date that any
such separate insurance is to be taken out and, if such insurance is permitted
by the Mortgagee, shall promptly deliver to the Mortgagee the policy or policies
of such insurance satisfactory to the Mortgagee.
2. MAINTENANCE OF INSURANCE.
(i) Maintain, and cause each of their respective Subsidiaries to
maintain, with responsible and reputable insurance companies or associations
insurance (including, without limitation, comprehensive general liability,
hazard, rent and business interruption insurance) with respect to their
properties and business, in such amounts and covering such risks, as is required
by any Governmental Authority or other regulatory body having jurisdiction with
respect thereto or as is carried generally in accordance with sound business
practice by companies in similar businesses similarly situated and in any event
in amount, adequacy and scope reasonably satisfactory to the Mortgagee as of the
on the date as of which the Indenture is dated and with such deductibles or
self-insured retentions as are in accordance with normal industry practice and
all applicable laws, rules and regulations; PROVIDED, HOWEVER, that in no event
will any such deductible or self-insured retention in respect of liability
claims or in respect of casualty damage exceed, in each such case, $250,000 per
occurrence. Each insurance policy referred to in this section 2 shall specify
the Mortgagee as loss payee thereof and contain a standard endorsement
satisfactory to the Mortgagee effecting such specification. All policies
covering the Collateral are to be made payable to the Mortgagee, in case of
loss, under a standard non-contributory "lender" or "secured party" clause and
are to contain such other provisions as the Mortgagee may require to fully
protect the Mortgagee's interest in the Collateral and to any payments to be
made under such policies. All original policies or true copies thereof are to be
delivered to the Mortgagee, premium prepaid, with the additional insured
endorsement in the Mortgagee's favor, and shall provide for not less than thirty
(30) days prior written notice to the Mortgagee of the exercise of any right of
modification or cancellation. So long as no Event of Default has occurred or is
continuing or would occur after giving effect to the loss giving rise to the
insurance proceeds, amounts received by the Mortgagee as payee shall, if in
excess of $1,000,000, be credited to the borrowings and shall be available for
reborrowing, subject to the terms and conditions hereof. Insurance proceeds of
$1,000,000 or less may be reinvested in the replacement of items which were the
subject of the insurance recovery. At the Company's request, the Mortgagee may
arrange for such insurance, but at the Company's expense and without any
responsibility on the Mortgagee's part for obtaining the insurance, the solvency
of the insurance companies, the adequacy of the coverage, or the collection of
claims.
(b) After the on the date as of which the Indenture is dated, the
Company shall have the right to change insurance carriers to one or more other
insurance carriers having the same "Best" rating or to modify existing insurance
policies upon notice to the Mortgagee without the Mortgagee's consent; PROVIDED,
HOWEVER, that on the effective date of such changes and modifications, (i) the
Company remains insured in such amounts and covering such risks as is required
by any Governmental Authority or other regulatory body having jurisdiction with
respect thereto, (ii) such insurance is adequate in amount and scope as is
carried generally in accordance with sound business practice by companies in
similar businesses similarly situated, (iii) the amount, adequacy and scope of
such insurance is substantially similar to that in existence as of the on the
date as of which the Indenture is dated, and (iv) a loss payee endorsement is
delivered to Mortgagee simultaneously with the effective date thereto (there
being no grace period for any Event of Default based on the requirements of this
section 2.
(c) Upon the occurrence and during the continuance of an Event of
Default, the Mortgagee shall have the sole right, in the name of the Mortgagee,
to file claims under any insurance policies insuring any of the Collateral
(other than with respect to the Bridge Loan Collateral until such time that the
holders of the notes issued pursuant to the Note Purchase Agreement have been
paid in full), provided that the Mortgagee gives prompt notice thereof to the
Company, to receive, receipt and give acquittance for any payments that may be
payable thereunder, and to execute any and all endorsements, receipts, releases,
assignments, reassignments or other documents that may be necessary to effect
the collection, compromise or settlement of any claims under any such insurance
policies.
<PAGE>
Appendix B
[Insert Part A of Schedule 9.01]
Draft
Exhibit E
to Indenture
THIS AGREEMENT IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED
OF EVEN DATE HEREWITH BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT
FOR THE LENDERS UNDER THE REVOLVING CREDIT AGREEMENT, WILMINGTON TRUST COMPANY,
AS AGENT UNDER THE SENIOR NOTE PURCHASE AGREEMENT, UNITED STATES TRUST COMPANY
OF NEW YORK, AS TRUSTEE UNDER THE INDENTURE, AND CONSENTED TO BY THE HOLDERS
SIGNATORY THERETO, WHICH MATERIALLY AFFECTS CERTAIN PAYMENT RIGHTS, SUBORDINATES
CERTAIN OBLIGATIONS AND CERTAIN SECURITY INTERESTS, AND LIMITS RIGHTS TO
ENFORCEMENT. ALL PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD INDEBTEDNESS
UNDER THIS AGREEMENT ARE BOUND BY THE TERMS OF SUCH INTERCREDITOR AGREEMENT
WHICH WILL BE MADE AVAILABLE UPON REQUEST.
FORM OF PLEDGE AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated as of March __, 2000, made by
Planet Hollywood International, Inc., a Delaware corporation, All Star Cafe
International, Inc., a Florida corporation, Cool Planet, Inc., a Florida
corporation, OFFICIAL ALL STAR CAFE, INC., a Nevada corporation, PLANET
HOLLYWOOD (CHEFS), INC., a Florida corporation, PLANET HOLLYWOOD (LONDON), INC.,
a Florida corporation, Planet Hollywood (LP), Inc., a Nevada corporation, Planet
Hollywood (New York City), Inc., a Florida corporation, PLANET HOLLYWOOD
(PARIS), INC., a Florida corporation, Planet Hollywood (Region V), Inc., a Texas
corporation, PLANET HOLLYWOOD (TEL AVIV), INC., a Florida corporation, PLANET
HOLLYWOOD (THEATRES), INC., a Florida corporation, PLANET HOSPITALITY HOLDINGS,
INC., a Florida corporation, SOUND REPUBLIC, INC., a Florida corporation, PLANET
HOLLYWOOD (ORLANDO), INC., a Florida corporation, Planet Hollywood (Region IV),
Inc., a Minnesota corporation, Planet Hollywood (Region VI), Inc., a Nevada
corporation, PLANET HOLLYWOOD NEW YORK LTD., a Florida limited partnership,
SILVER BRACELETS, INC., a Nevada corporation, and PLANET HOLLYWOOD (TROCADERO),
L.C., a Florida corporation (collectively, and jointly and severally, the
"PLEDGORS" and each individually, a "PLEDGOR"), in favor of UNITED STATES TRUST
COMPANY OF NEW YORK, as trustee and collateral agent (the "AGENT") under that
certain Indenture (such Indenture, as amended or otherwise modified from time to
time, the "INDENTURE"), dated as of the date hereof, among Planet Hollywood
International, Inc., the parties whose names and signatures appear on the
signature pages thereto under the heading "Subsidiary Guarantors" and the Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, each Grantor will receive substantial direct and indirect
benefits from the Company and the Agent entering into the Indenture and the
Holders accepting the Notes as contemplated thereby;
WHEREAS, it is a condition precedent to the effectiveness of the
Indenture that the Pledgors shall have executed and delivered to the Agent a
pledge and security agreement providing for the pledge to the Agent of, and the
grant to the Agent of a security interest in, (i) certain indebtedness from time
to time owing to the Pledgors, (ii) one hundred percent (100%) by number all of
the issued and outstanding shares of capital stock of the Domestic Pledged
Subsidiaries (as defined herein) from time to time owned by the Pledgors, and
(iii) sixty six and two thirds percent (66.66%) by number all of the issued and
outstanding shares of capital stock of the Foreign Pledged Subsidiaries (as
defined herein) from time to time owned by the Pledgors;
WHEREAS, the Pledgors have determined that the execution, delivery and
performance of this Agreement directly benefits, and is in the best interest of
the Pledgors;
NOW, THEREFORE, in consideration of the premises and the agreements
herein and of other good and valuable consideration, each Pledgor hereby agrees
with the Agent as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, capitalized terms
used herein without definition have the meanings specified in the Indenture or
if not defined in the Indenture, then in Article 8 or Article 9 of the Uniform
Commercial Code (the "CODE") currently in effect in the State of New York, and
the following terms have the following meanings:
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect upon
(i) the business, operations, condition (financial or otherwise), properties of
the Company or Planet Hollywood Memorabilia, Inc. individually or the Company
and the Subsidiary Guarantors as a whole, (ii) the ability of the Company or
Planet Hollywood Memorabilia, Inc. individually or the Company and the
Subsidiary Guarantors as a whole to perform their obligations hereunder or under
the Indenture, (iii) the legality, validity or enforceability of this Agreement,
the Notes or the Indenture, or (iv) saleability or the value of the Memorabilia
taken as a whole, as determined by a third party appraiser acceptable to the
Agent in its sole discretion.
SECTION 2. PLEDGE AND GRANT OF SECURITY INTEREST. As collateral
security for all of the Obligations (as defined in Section 3 hereof), each
Pledgor hereby pledges and collaterally assigns to the Agent, and grants to the
Agent a continuing security interest in, the following (collectively, the
"PLEDGED COLLATERAL"):
(a) the indebtedness described in Schedule I hereto (with a separate
Schedule I to be prepared for each Pledgor) and all indebtedness acquired in the
future (the "PLEDGED DEBT"), the promissory notes and other instruments
evidencing the Pledged Debt, and all interest, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Debt;
(b) the shares of stock, partnership interests, membership interests
and all other equity interests now or hereafter owned that is issued by any
corporation, partnership, limited liability company, trust or any other Person
formed in the United States, whether or not evidenced or represented by any
stock certificate, certificated security or any other instrument, including,
without limitation, the shares of stock, partnership interests and membership
interests set forth in Schedule II hereto (with a separate Schedule II to be
prepared for each Pledgor) (individually, a "DOMESTIC PLEDGED SECURITY" and
collectively, the "DOMESTIC PLEDGED SECURITIES") issued by ALL STAR CAFE
INTERNATIONAL, INC., a Florida corporation, ALL STAR CAFE (NEW YORK), INC., a
Florida corporation, COOL PLANET, INC., a Florida corporation, COOL PLANET II,
INC., a Florida corporation, PLANET HOLLYWOOD (ATLANTIC CITY), INC., a Florida
corporation, PLANET HOLLYWOOD (HONOLULU), INC., a Florida corporation, PLANET
HOLLYWOOD (LP), INC., a Nevada corporation, PLANET HOLLYWOOD MEMORABILIA INC., a
Florida corporation, PLANET HOLLYWOOD NEW YORK, LTD., a Florida corporation,
PLANET HOLLYWOOD (NEW YORK CITY), INC., a Florida corporation, PLANET HOLLYWOOD
(ORLANDO), INC., a Florida corporation, PLANET HOLLYWOOD (REGION II), INC., a
Florida corporation, Planet Hollywood (Region III), a Florida corporation,
PLANET HOLLYWOOD (REGION IV), INC., a Minnesota corporation, PLANET HOLLYWOOD
(REGION V), INC., a Texas corporation, PLANET HOLLYWOOD (REGION VI), INC., a
Nevada corporation, PLANET HOLLYWOOD (REGION VII), INC., a Florida corporation,
PLANET HOLLYWOOD (TEXAS), LTD., a Texas limited partnership, and PLANET
HOLLYWOOD (WAREHOUSE), INC., a Florida corporation, MEANT 2 BE, INC., a Nevada
corporation, OFFICIAL ALL STAR CAFE, INC., a Nevada corporation, PLANET
HOLLYWOOD (LONDON), INC., a Florida corporation, PLANET HOLLYWOOD (PARIS), INC.,
a Florida corporation, PLANET HOLLYWOOD (TEL AVIV), INC., a Florida corporation,
PLANET HOLLYWOOD (THEATRES), INC., a Florida corporation, PLANET HOSPITALITY
HOLDINGS, INC., a Florida corporation, SILVER BRACELETS, INC., a Florida
corporation, SOUND REPUBLIC, INC., a Florida corporation, 308 AVIATION, INC., a
Florida corporation, 308-III AVIATION, INC., a Florida corporation, ALL STAR
CAFE (LP), INC., a Nevada corporation, ALL STAR CAFE (REGION V), INC., a Texas
corporation, ALL STAR CAFE (REGION VII), INC., a Florida corporation, COOL
PLANET I, INC., a Florida corporation, EBCO MANAGEMENT, INC., a Florida
corporation, KARMALANNE, INC., a Nevada corporation, PLANET HOLLYWOOD (ASPEN),
INC., a Florida corporation, PLANET HOLLYWOOD (CHEFS), INC., a Florida
corporation, PLANET HOLLYWOOD (COSTA MESA), INC., a Florida corporation, PLANET
HOLLYWOOD (CHICAGO), INC., a Florida corporation, PLANET HOLLYWOOD (GAMING),
INC., a Florida corporation, PLANET HOLLYWOOD (MAIL ORDER), INC., a Florida
corporation, PLANET HOLLYWOOD (ORLANDO DISTRIBUTION), INC., a Florida
corporation, PLANET HOLLYWOOD (PHOENIX), INC., a Florida corporation, PLANET
HOLLYWOOD (REGION I), INC., a Florida corporation, PLANET HOLLYWOOD
TRANSPORTATION, INC., a Florida corporation, ROCKY PIT, INC., a Nevada
corporation, SOUND REPUBLIC I, INC., a Florida corporation, TEN ALPS, INC., a
Nevada corporation, Coast Licensing, Inc., a Nevada corporation, PLANET
HOLLYWOOD (FRANCE), L.C., a Florida corporation, PLANET HOLLYWOOD (ISRAEL),
L.C., a Florida corporation, and PLANET HOLLYWOOD (TROCADERO), L.C., a Florida
corporation (each a "DOMESTIC PLEDGED SUBSIDIARY" and collectively, the
"DOMESTIC PLEDGED SUBSIDIARIES"), the certificates representing the Domestic
Pledged Securities, all warrants, options and other rights, contractual or
otherwise, in respect thereof, and all dividends, interest, cash, instruments
and other property (including but not limited to, any stock dividend and any
distribution in connection with a stock split) from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Domestic Pledged Securities, including, without limitation, by way of
redemption, bonus, preference, option rights or otherwise;
(c) (i) all additional shares of stock, partnership interests,
membership interests and all other equity interests from time to time acquired
of any Domestic Pledged Subsidiary, (ii) the certificates representing such
additional shares, partnership interests, membership interests or other equity
interests, as the case may be, and (iii) all options and other rights,
contractual or otherwise, in respect thereof and all dividends, distributions,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
additional shares;
(d) the shares of stock, partnership interests, membership interests
and all other equity interests now or hereafter owned that are issued by any
corporation, partnership, limited liability company, trust or any other Person
formed in any jurisdiction other than within the United States, whether or not
evidenced or represented by any stock certificate, certificated security or any
other instrument, including, without limitation, the shares of stock,
partnership interests and membership interests set forth in Schedule III hereto
(with a separate Schedule III to be prepared for each Pledgor) (individually, a
"FOREIGN PLEDGED SECURITY" and collectively, the "FOREIGN PLEDGED SECURITIES"
and together with the Domestic Pledged Securities, the "PLEDGED SECURITIES")
issued by ECE, S.A. de C.V., an Italian corporation, Movie Restaurant
Verwaltungs GmbH, a German corporation, Movie Restaurant GmbH & Co. KG, a German
corporation, OFFICIAL ALL STAR CAFE (U.K.), LTD., a United Kingdom corporation,
Planet Hollywood Amsterdam, BV, a Netherlands corporation, Planet Hollywood
Canada, Inc., a Canadian corporation, Planet Hollywood Czech, a.s., a
Czechoslovakian corporation, Planet Hollywood Europe, Ltd., a United Kingdom
corporation, PLANET HOLLYWOOD (PUERTO RICO), INC., a Puerto Rico corporation,
Planet Hollywood Restaruantbetriebsgesettsschaft GmbH, a German corporation,
Rivermist Limited, an Irish corporation, RM 46 Restaurant Vermogensverwaltungs
GmbH, a German corporation, and Planet Hollywood Restaurant OY, a Finnish
corporation, subsidiaries of the Pledgor listed therein (each a "FOREIGN PLEDGED
SUBSIDIARY" and collectively, the "FOREIGN PLEDGED SUBSIDIARIES"), the
certificates representing the Foreign Pledged Securities, all warrants, options
and other rights, contractual or otherwise, in respect thereof, and all
dividends, interest, cash, instruments and other property (including but not
limited to, any stock dividend and any distribution in connection with a stock
split) from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Foreign Pledged Securities,
including, without limitation, by way of redemption, bonus, preference, option
rights or otherwise;
(e) (i) all additional shares of stock, partnership interests,
membership interests and all other equity interests from time to time acquired
of any Foreign Pledged Subsidiary, (ii) the certificates representing such
additional shares, partnership interests, membership interests or other equity
interests, as the case may be, and (iii) all options and other rights,
contractual or otherwise, in respect thereof and all dividends, distributions,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
additional shares; and
(f) all proceeds of any and all of the foregoing;
in each case, whether now owned or hereafter acquired by any Pledgor and
howsoever its respective interest therein may arise or appear (whether by
ownership, security interest, claim or otherwise).
SECTION 3. SECURITY FOR OBLIGATIONS. The security interest created
hereby in the Pledged Collateral constitutes continuing collateral security for
all of the following obligations (all of which shall be joint and several as
between the Pledgors) whether now existing or hereafter incurred (collectively,
the "OBLIGATIONS"):
(a) the due and punctual payment of the principal and premium, if any,
of, and interest on, the Notes when and as the same shall be due and payable, by
acceleration, repurchase, redemption or otherwise, interest on the overdue
principal of and interest (to the extent permitted by law), if any, on the Notes
and under the Indenture (including, without limitation, all interest that
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency or reorganization of one or more of the Pledgors);
and
(b) the due performance and observance by each Pledgor of all of its
other obligations from time to time existing in respect of the Notes and the
Indenture.
SECTION 4. DELIVERY OF THE PLEDGED COLLATERAL.
(a) All promissory notes currently evidencing the Pledged Debt and all
certificates evidencing shares of stock, partnership interests, member interests
and all other equity interests representing the Pledged Securities shall be
delivered to the Agent, together with any necessary indorsement and/or
appropriate stock transfer form duly executed in blank with respect to such
Pledged Securities, on or prior to the execution and delivery of this Agreement.
All other promissory notes, bonds, debentures, credit agreements, commercial
paper, certificates, confirmations and other instruments constituting Pledged
Debt from time to time, and all other certificates evidencing shares of stock,
partnership interests, member interests and all other equity interests
constituting the Pledged Securities from time to time, shall be pledged to the
Agent (the "ADDITIONAL COLLATERAL") shall be delivered to the Agent (or to such
other Person as provided for in the Intercreditor Agreement) within ten (10)
Business Days of receipt thereof by or on behalf of one or more of the Pledgors.
All such promissory notes, bonds, debentures, credit agreements, commercial
paper, certificates, confirmations and other instruments, and all such
certificated shares of stock, partnership interests, member interests and all
other equity interest evidencing the Pledged Securities held by or on behalf of
the Agent pursuant hereto or the Intercreditor Agreement and shall be delivered
in suitable form for transfer by delivery or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to the Agent. Within ten (10) Business Days of
the receipt by any Pledgor of any Additional Collateral, a Pledge Amendment,
duly executed by such Pledgor, in substantially the form of Schedule IV hereto
(a "PLEDGE AMENDMENT") shall be delivered to the Agent, in respect of the
Additional Collateral which are to be pledged pursuant to this Agreement, which
Pledge Amendment shall from and after delivery thereof constitute part of
Schedules I and II hereto. Each Pledgor hereby authorizes the Agent to attach
each Pledge Amendment to this Agreement and agree that all promissory notes,
certificates or instruments listed on any Pledge Amendment delivered to the
Agent shall for all purposes hereunder constitute Pledged Collateral and such
Pledgor shall be deemed upon delivery thereof to have made the representations
and warranties set forth in Section 5 with respect to such Additional
Collateral.
(b) If any Pledgor shall receive, by virtue of its being or having
been an owner of any Pledged Collateral, any (i) stock certificate (including,
without limitation, any certificate representing a stock dividend or
distribution in connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination of shares,
stock split, spinoff or split-off), promissory note or other instrument, (ii)
option or right, whether as an addition to, substitution for, or in exchange
for, any Pledged Collateral, or otherwise, (iii) dividends payable in cash
(except such dividends permitted to be retained by such Pledgor pursuant to
Section 7 hereof) or in securities or other property, or (iv) dividends or other
distributions in connection with a partial or total liquidation or dissolution
or in connection with a reduction of capital, capital surplus or paid-in
surplus, such Pledgor shall receive such stock certificate, promissory note,
instrument, option, right, payment or distribution in trust for the benefit of
the Agent, shall segregate it from the Pledgor's other property and shall
deliver it forthwith to the Agent (or to such other Person as provided for in
the Intercreditor Agreement) in the exact form received, with any necessary
indorsement and/or appropriate stock powers or stock transfer forms duly
executed in blank, to be held by or on behalf of the Agent as Pledged Collateral
and as further collateral security for the Obligations.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Each Pledgor represents and
warrants as follows:
(a) The Pledged Securities have been duly authorized and validly
issued, are fully paid and nonassessable and constitute the percentage by number
of the capital stock of each Pledged Subsidiary as set forth in Schedules II and
III hereto as of the date hereof. All other shares of stock constituting Pledged
Collateral will be, when issued, duly authorized and validly issued, fully paid
and nonassessable.
(b) The promissory notes[s] currently evidencing the Pledged Debt have
been, and all other promissory notes from time to time evidencing Pledged Debt,
when executed and delivered, will have been, duly authorized, executed and
delivered by the respective makers thereof, and all such promissory notes are or
will be, as the case may be, legal, valid and binding obligations of such
makers, enforceable against such makers in accordance with their respective
terms, subject as to enforceability to applicable bankruptcy, insolvency,
reorganization and similar laws affecting creditors' rights and to general
principles of equity.
(c) It is and will be at all times the legal and beneficial owner of
the Pledged Collateral free and clear of any Lien, security interest, option or
other charge or encumbrance except for the security interest created by this
Agreement and Permitted Liens.
(d) The exercise by the Agent of any of its rights and remedies
hereunder will not contravene any law or any material contractual restriction
binding on or affecting it or any of its properties, and will not result in or
require the creation of any Lien, security interest or other charge or
encumbrance upon or with respect to any of its properties other than pursuant to
this Agreement.
(e) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority is required to be obtained or made by
it for (i) the due execution, delivery and performance of this Agreement, (ii)
the grant, or the perfection, of the security interest purported to be created
hereby in the Pledged Collateral, or (iii) the exercise by the Agent of any of
its rights and remedies hereunder, except as may be required in connection with
any sale of any Pledged Collateral by laws affecting the offering and sale of
securities generally.
(f) This Agreement creates a valid security interest in favor of the
Agent in the Pledged Collateral, as security for the Obligations. The possession
by the Agent (or its custodian, nominee, bailee or other designee) of the
promissory notes, bonds, debentures, credit agreements, commercial paper,
certificates, confirmations and other instruments evidencing the Pledged Debt,
the certificates evidencing shares of stock, partnership interests, member
interests and all other equity interests constituting the Pledged Securities,
all other promissory notes, bonds, debentures, credit agreements, commercial
paper, certificates, confirmations and other instruments and cash constituting
Pledged Collateral from time to time, and all other certificates evidencing
shares of stock, partnership interests, member interests and all other equity
interests constituting the Pledged Securities from time to time, and the filing
under the Code of the financing statement(s) in the offices described in
Schedule VIII to the Security Agreement results in the perfection of such
security interest in any instruments and certificated securities constituting
Pledged Collateral. If any Pledged Collateral consists of uncertificated
securities, unless the immediately succeeding sentence is applicable thereto,
the Agent's security interest therein will be perfected when the Agent (or its
custodian, nominee or other designee ) becomes the registered holder thereof, or
upon the agreement of each issuer that it will comply with instructions
originated by the Agent with respect to such securities without further consent
by any Pledgor. If any Pledged Collateral consists of security entitlements, the
Agent's security interest therein will be perfected upon the filing of
appropriate UCC-1 Financing Statements, signed by the Pledgor hereby pledging
such security entitlements, or upon the agreement of any applicable securities
intermediary to comply with entitlement orders by the Agent without further
consent by any Pledgor. Such security interest is, or in the case of Pledged
Collateral in which any Pledgor obtains rights after the date hereof, will be, a
perfected security interest having the priority set forth in the Intercreditor
Agreement. All action necessary to perfect and protect such security interest
has been duly taken, except for the Agent's (or the Agent's custodian, nominee,
bailee or other designee ) having possession of the promissory notes, bonds,
debentures, credit agreements, commercial paper, certificates, confirmations and
other instruments and cash constituting Pledged Collateral, and of the
certificated shares of stock, partnership interests, member interests and all
other equity interests constituting the Pledged Securities, after the date
hereof and obtaining control of uncertificated securities and securities
entitlements constituting Pledged Collateral after the date hereof.
(g) There is no pending or, to the best of its knowledge, threatened
action, suit, proceeding or claim before any court or other Governmental
Authority or any arbitrator, or any order, judgment or award by any court or
other Governmental Authority or arbitrator, that may adversely affect the grant
or the perfection of the security interest purported to be created hereby in the
Pledged Collateral, or the exercise by the Agent of any of its rights or
remedies hereunder.
SECTION 6. COVENANTS AS TO THE PLEDGED COLLATERAL. So long as any
Obligations shall remain outstanding, each Pledgor will, unless the Agent shall
otherwise consent in writing:
(a) keep adequate records concerning the Pledged Collateral and permit
the Agent or any agents or representatives thereof at any time or from time to
time to examine and make copies of and abstracts from such records;
(b) at their expense (which obligation shall be joint and several in
nature), upon the request of the Agent, promptly deliver to the Agent a copy of
each material notice or other communication received by it in respect of the
Pledged Collateral;
(c) at their expense (which obligation shall be joint and several in
nature), defend the Agent's right, title and security interest in and to the
Pledged Collateral against the claims of any Person;
(d) at their expense (which obligation shall be joint and several in
nature), at any time and from time to time, promptly execute and deliver all
further instruments and documents and take all further action that may be
necessary or that the Agent may reasonably request in order to (i) perfect and
protect the security interest purported to be created hereby, (ii) enable the
Agent to exercise and enforce its rights and remedies hereunder in respect of
the Pledged Collateral, or (iii) otherwise effect the purposes of this
Agreement, including, without limitation, delivering to the Agent, after the
occurrence and during the continuation of an Event of Default, irrevocable
proxies in respect of the Pledged Collateral;
(e) not sell, assign (by operation of law or otherwise), exchange or
otherwise dispose of any Pledged Collateral or any interest therein except as
permitted by Section 7(a)(i) hereof;
(f) not create or suffer to exist any Lien, security interest or other
charge or encumbrance upon or with respect to any Pledged Collateral except for
the security interest created hereby and Permitted Liens;
(g) not make or consent to any amendment or other modification or
waiver with respect to any Pledged Collateral or enter into any agreement or
permit to exist any restriction with respect to any Pledged Collateral other
than pursuant to the Indenture and applicable securities laws;
(h) not permit the issuance of (i) any additional shares of any class
of capital stock of a Pledged Subsidiary, (ii) any securities convertible
voluntarily by the holder thereof or automatically upon the occurrence or
non-occurrence of any event or condition into, or exchangeable for, any such
shares of capital stock, or (iii) any warrants, options, contracts or other
commitments entitling any Person to purchase or otherwise acquire any such
shares of capital stock; and
(i) not take or fail to take any action which would in any manner
impair the enforceability of the Agent's security interest in any Pledged
Collateral.
SECTION 7. VOTING RIGHTS, DIVIDENDS, ETC. IN RESPECT OF THE PLEDGED
COLLATERAL.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) each Pledgor may exercise any and all voting and other
consensual rights pertaining to any Pledged Collateral for any purpose
not inconsistent with the terms of this Agreement, the Notes and the
Indenture; PROVIDED, HOWEVER, that (A) each such Pledgor will not
exercise or refrain from exercising any such right, as the case may
be, if the Agent gives it notice that, in the Agent's reasonable
judgment, such action would have a Material Adverse Effect upon such
Pledged Collateral, and (B) each such Pledgor will give the Agent at
least five (5) Business Days' notice of the manner in which it intends
to exercise, or the reasons for refraining from exercising, any such
right which is reasonably likely to have a material adverse effect
upon such Pledged Collateral;
(ii) each Pledgor may receive and retain any and all
dividends, interest or other amounts paid in respect of the Pledged
Collateral; PROVIDED, HOWEVER, that any and all (A) dividends and
interest paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or payable in cash in
respect of any Pledged Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in surplus, and (C) cash paid,
payable or otherwise distributed in redemption of, or in exchange for,
any Pledged Collateral, shall be, and shall forthwith be delivered to
the Agent to hold as, Pledged Collateral or be applied to the
Obligations in the sole discretion of the Agent and shall, if received
by such Pledgor, be received in trust for the benefit of the Agent,
shall be segregated from the other property or funds of such Pledgor,
and shall be forthwith delivered to the Agent in the exact form
received with any necessary indorsement and/or appropriate stock
powers duly executed in blank, to be held by the Agent as Pledged
Collateral and as further collateral security for the Obligations; and
(iii) the Agent will execute and deliver (or cause to be
executed and delivered) to each Pledgor all such proxies and other
instruments as such Pledgor may reasonably request for the purpose of
enabling such Pledgor to exercise the voting and other rights which it
is entitled to exercise pursuant to paragraph (i) of this Section 7(a)
and to receive the dividends which it is authorized to receive and
retain pursuant to paragraph (ii) of this Section 7(a).
(b) Subject to the terms of the Intercreditor Agreement, upon the
occurrence and during the continuance of an Event of Default:
(i) all rights of each Pledgor to exercise the voting and
other consensual rights which it would otherwise be entitled to
exercise pursuant to paragraph (i) of subsection (a) of this Section
7, and to receive the dividends and interest payments which it would
otherwise be authorized to receive and retain pursuant to paragraph
(ii) of subsection (a) of this Section 7, shall cease, and all such
rights shall thereupon become vested in the Agent which shall
thereupon have the sole right to exercise such voting and other
consensual rights and to receive and hold as Pledged Collateral such
dividends and interest payments;
(ii) the Agent is authorized to notify each debtor with
respect to the Pledged Debt to make payment directly to the Agent and
may collect any and all monies due or to become due to each Pledgor in
respect of the Pledged Debt and each Pledgor hereby authorizes each
such debtor to make such payment directly to the Agent without any
duty of inquiry;
(iii) without limiting the generality of the foregoing, the
Agent may at its option exercise any and all rights of conversion,
exchange, subscription or any other rights, privileges or options
pertaining to any of the Pledged Collateral as if it were the absolute
owner thereof, including, without limitation, the right to exchange,
in its discretion, any and all of the Pledged Collateral upon the
merger, consolidation, reorganization, recapitalization or other
adjustment of a Pledged Subsidiary, or upon the exercise by a Pledged
Subsidiary of any right, privilege or option pertaining to any Pledged
Collateral, and, in connection therewith, to deposit and deliver any
and all of the Pledged Collateral with any committee, depository,
transfer agent, registrar or other designated agent upon such terms
and conditions as it may determine; and
(iv) all dividends and interest payments which are received
by each Pledgor contrary to the provisions of paragraph (i) of this
Section 7(b) shall be received in trust for the benefit of the Agent,
shall be segregated from other funds of such Pledgor, and shall be
forthwith paid over to the Agent as Pledged Collateral in the exact
form received with any necessary indorsement and/or appropriate stock
powers duly executed in blank, to be held by the Agent as Pledged
Collateral and as further collateral security for the Obligations.
SECTION 8. ADDITIONAL PROVISIONS CONCERNING THE PLEDGED COLLATERAL.
(a) Each Pledgor hereby authorizes the Agent to file, without the
signature of the Pledgor where permitted by law, one or more financing or
continuation statements, and amendments thereto, relating to the Pledged
Collateral.
(b) Each Pledgor hereby irrevocably appoints the Agent such Pledgor's
attorney-in-fact and proxy, with full authority in the place and stead of such
Pledgor and in the name of such Pledgor or otherwise, from time to time in the
Agent's discretion exercised reasonably and during the continuance of an Event
of Default, to take any action and to execute any instrument which the Agent may
deem necessary or reasonably advisable to accomplish the purposes of this
Agreement (subject to the rights of such Pledgor under Section 7(a) hereof),
including, without limitation, to receive, indorse and collect all instruments
made payable to such Pledgor representing any dividend, interest payment or
other distribution in respect of any Pledged Collateral and to give full
discharge for the same.
(c) During the occurrence and continuance of an Event of Default, if
any Pledgor fails to perform any agreement or obligation contained herein, the
Agent itself may perform, or cause performance of, such agreement or obligation,
and the expenses of the Agent incurred in connection therewith shall be payable
by the Pledgors (such obligation being joint and several in nature) pursuant to
Section 10 hereof.
(d) Other than the exercise of reasonable care to assure the safe
custody of the Pledged Collateral while held hereunder, the Agent shall have no
duty or liability to preserve rights pertaining thereto and shall be relieved of
all responsibility for the Pledged Collateral upon surrendering it or tendering
surrender of it to one or more of the Pledgors. The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which the Agent accords its own property, it being
understood that the Agent shall not have responsibility for (i) ascertaining or
taking action with respect to calls, conversions, exchanges, maturities,
tenders, or other matters relating to any Pledged Collateral, whether or not the
Agent has or is deemed to have knowledge of such matters, or (ii) taking any
necessary steps to preserve rights against any parties with respect to any
Pledged Collateral.
(e) The Agent may at any time after the occurrence and during the
continuation of an Event of Default in its discretion (i) without notice to any
of the Pledgors, transfer or register in the name of the Agent or any of its
nominees any or all of the Pledged Collateral, subject only to the revocable
rights of such Pledgor(s) under Section 7(a) hereof, and (ii) exchange
certificates or instruments constituting Pledged Collateral for certificates or
instruments of smaller or larger denominations.
SECTION 9. REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
shall have occurred and be continuing:
(a) The Agent may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all of the rights and remedies of a secured party on default under the
Code then in effect in the State of New York; and without limiting the
generality of the foregoing and without notice except as specified below, sell
the Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or elsewhere, at such price or
prices and on such other terms as the Agent may deem commercially reasonable.
Each Pledgor agrees that, to the extent notice of sale shall be required by law,
at least ten (10) Business Days' notice to such Pledgor of the time and place of
any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Agent shall not be obligated to make any
sale of Pledged Collateral regardless of notice of sale having been given. The
Agent may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(b) Each Pledgor recognizes that it is impracticable to effect a
public sale of all or any part of the Pledged Securities or any other securities
constituting Pledged Collateral and that the Agent may, therefore, determine to
make one or more private sales of any such securities to a restricted group of
purchasers who will be obligated to agree, among other things, to acquire such
securities for their own account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor acknowledges that any such private
sale may be at prices and on terms less favorable to the seller than the prices
and other terms which might have been obtained at a public sale and,
notwithstanding the foregoing, agrees that such private sales shall be deemed to
have been made in a commercially reasonable manner and that the Agent shall have
no obligation to delay sale of any such securities for the period of time
necessary to permit the issuer of such securities to register such securities
for public sale under the Securities Act of 1933, as amended (the "SECURITIES
ACT"). Each Pledgor further acknowledges and agrees that any offer to sell such
securities which has been (i) publicly advertised on a BONA FIDE basis in a
newspaper or other publication of general circulation in the financial community
of New York, New York (to the extent that such an offer may be so advertised
without prior registration under the Securities Act), or (ii) made privately in
the manner described above to not less than fifteen (15) bona FIDE offerees
shall be deemed to involve a "public sale" for the purposes of Section 9-504(3)
of the Code (or any successor or similar, applicable statutory provision) as
then in effect in the State of New York, notwithstanding that such sale may not
constitute a "public offering" under the Securities Act, and that the Agent may,
in such event, bid for the purchase of such securities.
(c) Any cash held by the Agent as Pledged Collateral and all cash
proceeds received by the Agent in respect of any sale of, collection from, or
other realization upon, all or any part of the Pledged Collateral may, in the
discretion of the Agent, be held by the Agent as collateral for, and/or then or
at any time thereafter applied (after payment of any amounts payable to the
Agent pursuant to Section 10 hereof) in whole or in part by the Agent against,
all or any part of the Obligations in such order as the Agent shall elect
consistent with the provisions of the Indenture. Any surplus of such cash or
cash proceeds held by the Agent and remaining after payment in full of all of
the Obligations shall be paid over to the relevant Pledgor or to such person as
may be lawfully entitled to receive such surplus.
(d) In the event that the proceeds of any such sale, collection or
realization are insufficient to pay all amounts to which the Agent or any Lender
is legally entitled, the Pledgors shall be jointly and severally liable for the
deficiency, together with interest thereon at the highest rate specified in the
Notes for interest on overdue principal thereof or such other rate as shall be
fixed by applicable law, together with the costs of collection and the
reasonable fees of any attorneys employed by the Agent and any Lender to collect
such deficiency.
SECTION 10. INDEMNITY AND EXPENSES.
(a) The Pledgors agree jointly and severally to indemnify the Agent
from and against any and all claims, losses and liabilities growing out of or
resulting from this Agreement (including, without limitation, enforcement of
this Agreement), except claims, losses or liabilities resulting from the Agent's
gross negligence or willful misconduct as determined by a final judgment of a
court of competent jurisdiction.
(b) The Pledgors shall be jointly and severally obligated for, and
will promptly pay to the Agent, the amount of any and all reasonable costs and
expenses, including the reasonable fees and disbursements of the Agent's counsel
and of any experts and agents, which the Agent may incur in connection with (i)
the administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from, or other realization upon, any
Pledged Collateral, (iii) the exercise or enforcement of any of the rights of
the Agent or any of the Lenders hereunder, or (iv) the failure by any of the
Pledgors to perform or observe any of the provisions hereof.
SECTION 11. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing and shall be mailed (by certified
mail, postage prepaid and return receipt requested), telecopied or delivered, if
to a Pledgor, to the address for the Company specified in the Indenture, and if
to the Agent, to it at its address specified in the Indenture, or as to either
such Person at such other address as shall be designated by such Person in a
written notice to such other Person complying as to delivery with the terms of
this Section 11. All such notices and other communications shall be effective
(i) if sent by certified mail, return receipt requested, when received or three
(3) Business Days after mailing, whichever first occurs, (ii) if telecopied,
when transmitted and confirmation is received, provided same is on a Business
Day and, if not, on the next Business Day, or (iii) if delivered, upon delivery,
provided same is on a Business Day and, if not, on the next Business Day.
SECTION 12. CONSENT TO JURISDICTION, ETC.
(a) Any legal action or proceeding with respect to this Agreement or
any document related thereto may be brought in the courts of the State of New
York located in the borough of Manhattan or of the United States of America for
the Southern District of New York, and, by execution and delivery of this
Agreement, each Pledgor hereby accepts unconditionally the jurisdiction of the
aforesaid courts. Each Pledgor hereby irrevocably waives any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of FORUM NON CONVENIENS, which such Pledgor may now or hereafter
have to the bringing of any such action or proceeding in such respective
jurisdictions.
(b) Each Pledgor irrevocably consents to the service of process of any
of the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to such Pledgor
at its address referred to in Section 11 hereof.
(c) Nothing contained in this Section 12 shall affect the right of the
Agent to serve legal process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against one or more of the Pledgors in
any other jurisdiction.
SECTION 13. WAIVER OF JURY TRIAL. EACH OF THE PLEDGORS AND THE AGENT
(BY ACCEPTING THIS AGREEMENT) WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT AND AGREES
THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY.
SECTION 14. MISCELLANEOUS.
(a) No amendment of any provision of this Agreement shall be effective
unless it is in writing and signed by the relevant Pledgor and the Agent, and no
waiver of any provision of this Agreement, and no consent to any departure by
such Pledgor therefrom, shall be effective unless it is in writing and signed by
the Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(b) No failure on the part of the Agent to exercise, and no delay in
exercising, any right hereunder or under any other document shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The rights and remedies of the Agent provided herein are cumulative and
are in addition to, and not exclusive of, any rights or remedies provided by
law. The rights of the Agent under any document against any party thereto are
not conditional or contingent on any attempt by the Agent to exercise any of its
rights under any other document against such party or against any other person.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or thereof or affecting the validity or enforceability
of such provision in any other jurisdiction.
(d) This Agreement shall create a continuing security interest in the
Pledged Collateral and shall (i) remain in full force and effect until the
payment in full or release of the Obligations, and (ii) be binding on the
Pledgors and by its acceptance hereof, the Agent, and their respective
successors and assigns and shall inure, together with all rights and remedies of
the Agent hereunder, to the benefit of the Pledgors, the Agent and its
successors, transferees and assigns. Without limiting the generality of clause
(ii) of the immediately preceding sentence, the Agent may assign or otherwise
transfer its rights and obligations under this Agreement to any other Person
pursuant to the terms of the Indenture, and such other Person shall thereupon
become vested with all of the benefits in respect thereof granted to the Agent
herein or otherwise. Upon any such assignment or transfer, all references in
this Agreement to the Agent shall mean the assignee of the Agent. None of the
rights or obligations of any of the Pledgors hereunder may be assigned or
otherwise transferred without the prior written consent of the Agent.
(e) Upon the satisfaction in full of Obligations, (i) this Agreement
and the security interest created hereby shall terminate and all rights to the
Pledged Collateral shall revert to each respective Pledgor, and (ii) the Agent
will, upon such Pledgor's request, and at such Pledgor's expense, promptly (A)
return to such Pledgor such of the Pledged Collateral as shall not have been
sold or otherwise disposed of or applied pursuant to the terms hereof, and (B)
execute and deliver to such Pledgor, without recourse, representation or
warranty, such documents as such Pledgor shall reasonably request to evidence
such termination.
(f) This Agreement shall be governed by and construed in accordance
with the law of the State of New York, except as required by mandatory
provisions of law and except to the extent that the validity and perfection or
the perfection and the effect of perfection or non-perfection of the security
interest created hereby, or remedies hereunder, in respect of any particular
Pledged Collateral are governed by the law of a jurisdiction other than the
State of New York.
(g) This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the Pledgors have caused this Agreement to be
executed and delivered by its officer thereunto duly authorized, as of the date
first above written.
PLEDGORS:
PLANET HOLLYWOOD INTERNATIONAL, INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
ALL STAR CAFE INTERNATIONAL, INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
COOL PLANET, INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
OFFICIAL ALL STAR CAFE, INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (CHEFS), INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (LONDON), INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (LP), INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (NEW YORK CITY), INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (PARIS), INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (REGION V), INC.
By:__________________________
Name: Thomas Avallone
Title:
PLANET HOLLYWOOD (TEL AVIV), INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (THEATRES), INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
SILVER BRACELETS, INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
SOUND REPUBLIC, INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (REGION IV), INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (REGION VI), INC.
By:__________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD (TROCADERO), L.C.
By: __________________________
Name: Thomas Avallone
Title: Chief Financial Officer
PLANET HOLLYWOOD NEW YORK LTD.
By: PLANET HOLLYWOOD INTER-
NATIONAL, INC.,
its General Partner
By: __________________________
Name: Thomas Avallone
Title: Chief Financial Officer
ACCEPTED AND AGREED:
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Agent
By:____________________________________
Name: Mitchell Drucker
Title: Senior Vice President
<PAGE>
SCHEDULE I TO PLEDGE AGREEMENT
-----------------------------
PLEDGED DEBT
PRINCIPAL AMOUNT
NAME OF MAKER NAME OF PAYEE DESCRIPTION OUTSTANDING AS OF
- ------------- ------------- ----------- -----------------
<PAGE>
SCHEDULE II TO PLEDGE AGREEMENT
------------------------------
DOMESTIC PLEDGED SECURITIES
CERTIFICATE
NAME OF ISSUER NUMBER OF SHARES CLASS NO.(S)
- -------------- ---------------- ----- ------
<PAGE>
SCHEDULE III TO PLEDGE AGREEMENT
------------------------------
FOREIGN PLEDGED SECURITIES
CERTIFICATE
NAME OF ISSUER NUMBER OF SHARES CLASS NO.(S)
- -------------- ---------------- ----- ------
<PAGE>
SCHEDULE IV
TO
PLEDGE AGREEMENT
PLEDGE AMENDMENT
This Pledge Amendment, dated ___________________, is delivered
pursuant to Section 4 of the Pledge Agreement referred to below. The undersigned
hereby agrees that this Pledge Amendment may be attached to the Pledge
Agreement, dated March __, 2000, as it may heretofore have been or hereafter may
be amended or otherwise modified or supplemented from time to time and that the
promissory notes or shares listed on this Pledge Amendment shall be and become
part of the Pledged Collateral referred to in said Pledge Agreement and shall
secure all of the Obligations referred to in said Pledge Agreement.
PLEDGED DEBT
PRINCIPAL AMOUNT
NAME OF MAKER NAME OF PAYEE DESCRIPTION OUTSTANDING AS OF
- ------------- ------------- ----------- -----------------
DOMESTIC PLEDGED SECURITIES
NAME OF ISSUER NUMBER OF SHARES CLASS CERTIFICATE NO.(S)
- -------------- ---------------- ----- ------------------
FOREIGN PLEDGED SECURITIES
NAME OF ISSUER NUMBER OF SHARES CLASS CERTIFICATE NO.(S)
- -------------- ---------------- ----- ------------------
--------------------------------------
By: ___________________________________
Name:______________________________
Title:_____________________________
DRAFT
Exhibit F
to Indenture
THIS AGREEMENT IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED
OF EVEN DATE HEREWITH BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT
FOR THE LENDERS UNDER THE REVOLVING CREDIT AGREEMENT, WILMINGTON TRUST COMPANY,
AS AGENT UNDER THE SENIOR NOTE PURCHASE AGREEMENT, UNITED STATES TRUST COMPANY
OF NEW YORK, AS TRUSTEE UNDER THE PIK INDENTURE, AND CONSENTED TO BY THE PIK
HOLDERS SIGNATORY THERETO, WHICH MATERIALLY AFFECTS CERTAIN PAYMENT RIGHTS,
SUBORDINATES CERTAIN OBLIGATIONS AND CERTAIN SECURITY INTERESTS, AND LIMITS
RIGHTS TO ENFORCEMENT. ALL PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD
INDEBTEDNESS UNDER THIS AGREEMENT ARE BOUND BY THE TERMS OF SUCH INTERCREDITOR
AGREEMENT WHICH WILL BE MADE AVAILABLE UPON REQUEST.
ASSIGNMENT, PLEDGE AND SECURITY AGREEMENT
THIS ASSIGNMENT, PLEDGE AND SECURITY AGREEMENT, dated as of March
____, 2000 (the "AGREEMENT"), is made by PLANET HOSPITALITY HOLDINGS, INC., a
Florida corporation, as pledgor (the "PLEDGOR") in favor of UNITED STATES TRUST
COMPANY OF NEW YORK (the "AGENT"), as trustee and collateral agent under that
certain Indenture (such Indenture, as amended or otherwise modified from time to
time, the "INDENTURE"), dated as of the date hereof, among Planet Hollywood
International, Inc., a Delaware corporation (the "COMPANY") and the parties
whose names and signatures appear on the signature pages thereto under the
heading "Subsidiary Guarantors" (collectively, the "SUBSIDIARY GUARANTORS").
BACKGROUND:
A. Pursuant to the Indenture, the Company may issue 10% Secured
Deferrable Interest Notes due 2005 in an aggregate principal amount of ________
Million Dollars ($____________ ) (collectively with all notes issued in
connection with the substitution, replacement or transfer thereof, the "NOTES")
to certain entities (the "HOLDERS").
B. The Pledgor, a wholly-owned subsidiary of the Company, is the
holder and owner of a 20% membership interest (the "MEMBERSHIP INTEREST") in
Times Square Partners LLC, a New York limited liability company ("TSP"), under
and pursuant to the Amended and Restated Limited Liability Company Agreement of
TSP, dated as of December 3, 1997, among Pledgor, Intell Times Square LLC,
Madison Broadway Associates LLC, SPE Times Square, Inc. and Ned White (the "TSP
AGREEMENT").
C. The Pledgor, among others, is a guarantor under a certain Guarantee
made to the Agent and contained in the Indenture (the "GUARANTEE").
D. It is a condition to the effectiveness of the Indenture that, among
other things, the Pledgor execute and deliver to the Agent this Agreement
granting to the Agent liens and security interests in the Collateral (as
hereinafter defined).
E. The Pledgor will receive substantial direct and indirect benefits
from the Company and the Agent entering into the Indenture and the Holders
accepting the Notes as contemplated thereby.
F. To induce the Agent to enter into the Indenture and to induce the
Holders to accept the Notes in accordance with the terms of the Indenture, the
Pledgor desires to pledge to the Agent all of its right, title and interest in,
to and under the Membership Interest, including, without limitation, (i) all
distributions of profits and income of TSP, (ii) all repayments of any and all
loans and advances made to TSP, (iii) all capital distributions from TSP, (iv)
all distributions of cash flow by TSP, (v) all proceeds of any liquidation upon
the dissolution of TSP and winding up of the affairs thereof, (vi) all proceeds
arising from the sale, transfer or other disposition of the Membership Interest,
whether paid or payable in cash, notes or other evidence of indebtedness, (vii)
all proceeds paid or payable or distributed or distributable directly or
indirectly to the Pledgor or to an Affiliate (as defined in the Indenture) of
Pledgor arising from or related to the settlement of any dispute between Pledgor
or any Affiliate of Pledgor and any other member of TSP or any Affiliate of any
member of TSP in respect of the ownership, use, management or operation of the
Property or the Project (as such terms are defined in the TSP Agreement), and
(viii) all other rights of the Pledgor to receive any distributions or other
payments of any kind whatsoever from or in respect of TSP, the Membership
Interest or otherwise in respect of TSP or any interest therein, the Property or
the Project or the estate of TSP therein or the ownership or operation thereof,
including, without limitation, any and all commissions, fees and other
compensation payable to the Pledgor or to any Affiliate of the Pledgor arising
from the leasing of any space or the granting of any concession rights in or at
the Property or the Project, and any and all payments and rights to payment
under any other agreements or obligations hereafter entered into or incurred by
the Pledgor or any Affiliate of Pledgor in each case only if and to the extent
that the same are in respect of TSP or are otherwise used or to be used at the
Property or the Project, whether any of the above-described distributions shall
consist of money or property (all of the foregoing, collectively, the
"INTERESTS").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. DEFINED TERMS. As used in this Agreement, capitalized terms used
herein without definition have the meanings specified in the Indenture, and the
following terms have the following meanings:
"BRIDGE LOAN PLEDGE" means that certain Assignment, Pledge and
Security Agreement dated as of the date hereof, given by the Pledgor to
Wilmington Trust Company, as agent for the purchasers signatory to the Note
Purchase Agreement, and encumbering the Collateral.
"BRIDGE LOAN COLLATERAL DOCUMENTS" shall mean (A) the Master
Agreement, dated as of December 2, 1997, by and among TSP, Hospitality, Intell
Times Square LLC, Madison Broadway Associates LLC, SPE Times Square, Inc., and
Ned White, as the same may be amended, modified, or supplemented from time to
time; (B) the Improvements Agreement, dated as of December 3, 1997, by and among
TSP, Atlantic Financial Group, Ltd. and Region III, as the same may be amended,
modified or supplemented from time to time; (C) the License Agreement, dated as
of December 3, 1997, among Planet Hollywood, Planet Hollywood (Region IV), Inc.,
Region III, and TSP, as the same may be amended, modified or supplemented from
time to time; (D) the Declaration of Easements, dated as of December 3, 1997,
between TSP and Atlantic Financial Group, Ltd., recorded on December 18, 1997,
in the Office of the City Register, New York County, in Reel 2523, Page 2124;
(E) the TSP Agreement; (F) the Zoning Lot, Development and Easement Agreement,
dated December 3, 1997, made by and among Lunt Theatre Company, TSP and Atlantic
Financial Group Ltd. and recorded in the Office of the Register of The City of
New York, County of New York, on December 18, 1997 in Reel 2523, Page 2094, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof; (G) the working drawings and specifications
that Region III and Atlantic Financial Group, Ltd. have prepared or are required
to prepare with respect to the Mortgaged Property as described in the
Improvements Agreement (the "PLANET HOLLYWOOD PLANS"); and (H) the Retail Unit
Contract of Sale, dated as of January 4, 2000, between Region III, as seller,
and Intell 1567 LLC, as purchaser, with respect to the Mortgaged Property.
"BUSINESS DAY" is defined in the Indenture.
"CODE" means the Uniform Commercial Code as the same may from time to
time be in effect in the State of New York.
"CREDIT AGREEMENT" means that certain Revolving Credit Agreement among
the Company, Planet Hollywood Memorabilia, Inc., the borrowers signatory
thereto, The CIT Group/Business Credit, Inc., Rothschild Recovery Fund, L.P. and
the financial institutions signatory thereto, dated as of the date hereof, as
amended, modified, supplemented or restated from time to time.
"EVENTS OF DEFAULT" is defined in the Indenture.
"INDEMNIFIED PARTY" means, with respect to a Person entitled to the
benefit of an indemnity, such Person's officers, directors, shareholders,
partners, members, employees, agents and representatives.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor Agreement,
dated of even date herewith, among The CIT Group/Business Credit, Inc., on
behalf of the financial institutions signatory thereto, Wilmington Trust
Company, as agent on behalf of the purchasers from time to time of any of the
notes issued under the Note Purchase Agreement, the Pledgee, as trustee under
the Indenture and consented to by the Holders of the Notes, in form and
substance satisfactory to such financial institutions establishing, among other
things, lien and payment priority.
"LEGAL REQUIREMENT" means (i) with respect to any Person, including
the Pledgor, any constitution, act, statute, law, ordinance, treaty, rule,
regulation or official interpretation of, or any judgment, injunction, order,
decision, decree, license, permit or authorization issued by, any Governmental
Authority and (ii) with respect to the Pledgor, any legal requirement or rule,
regulation, by-law, official interpretation, license, permit, certification or
authorization of any self-regulatory organization, licensing authority, stock
exchange or trading system, in each case applicable to Persons (including
brokers and dealers) involved in the business of managing, trading, underwriting
or placing securities, including without limitation those of the National
Association of Securities Dealers, Inc. and the New York Stock Exchange.
"LIEN" means any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including, but not limited to, any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease intended
as, or having the effect of, security.
"LOSSES" means all obligations, damages, claims, causes of action,
costs, fines, fees, charges, penalties, deficiencies, losses, diminutions in
value, expenses (including court costs, fees and expenses of attorneys,
accountants, consultants and other experts) and other liabilities, and, with
respect to any indemnity, includes all attorneys' fees and expenses in
connection with the enforcement and collection of such indemnity.
"NOTE PURCHASE AGREEMENT" means that certain Note Purchase Agreement,
dated as of the date hereof, among the lenders signatory thereto, the Company
and Wilmington Trust Company pursuant to which such lenders acquired certain
secured senior notes, as amended, modified, supplemented or restated from time
to time.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, a business trust, a joint stock company, a trust, an
unincorporated association, a joint venture, a governmental subdivision, agency
or authority or any other entity of any nature.
"PROCEEDS" has the meaning assigned to it under the Code and, in any
event, shall include, but not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to the Pledgor from time to
time with respect to any of the Interests, (ii) any and all payments (in any
form whatsoever) made or due and payable to the Pledgor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Interests by any governmental body,
authority, bureau or agency or any other Person (whether or not acting under
color of governmental authority), and (iii) any and all other monies or other
property from time to time paid or payable or distributed or distributable under
or in connection with any of the Interests.
"REVOLVING CREDIT PLEDGE" means that certain Assignment, Pledge and
Security Agreement dated as of the date hereof, given by the Pledgor to The CIT
Group/Business Credit, Inc., as agent for the benefit of the lenders signatory
to the Credit Agreement, and encumbering the Collateral.
"REVOLVING CREDIT COLLATERAL DOCUMENTS" shall mean the Cash
Concentration Account Agreement, the Depository Account Agreements, each Notice
Letter, each Depository Account Agreement, each Payment Direction Notice, and
each Credit Card Depository Account Agreement delivered to a Depository Bank or
other financial institution pursuant to Section 8.11 hereof, and the other
documents, instruments and agreements referred to in Section 6.01 hereof, and
all other instruments, agreements and documents from time to time delivered in
connection with or otherwise relating to any Related Document.
"SECURITY DOCUMENTS" is defined in the Indenture.
"SECURED OBLIGATIONS" means (i) the Obligations (as defined in the
Indenture) which include all indebtedness, obligations and liabilities of the
Pledgor to the Agent incurred under or related to the Indenture (including the
Guarantee contained in the Indenture), this Agreement or any other Security
Document, whether such indebtedness, obligations or liabilities are direct or
indirect, secured or unsecured, joint or several, absolute or contingent, due or
to become due, whether for payment or performance, now existing or hereafter
arising, together with (ii) all fees, costs, charges and expenses paid or
incurred by the Agent in connection with the creation, protection, preservation
or enforcement of its respective rights under the Security Documents (including
the Mortgage and this Pledge Agreement), on a full indemnity basis.
2. GRANT OF SECURITY INTEREST. As collateral security for the prompt
and complete payment and performance when due of all of the Obligations, the
Pledgor hereby sells, assigns, conveys, mortgages, pledges, hypothecates and
transfers to the Agent, and hereby grants to the Agent a security interest in,
all of the Pledgor's right, title and interest in, to and under the Interests
and all of the Proceeds thereof (collectively, the "COLLATERAL").
3. RIGHTS OF THE AGENT; LIMITATIONS ON THE AGENT'S OBLIGATIONS. The
Agent shall have no obligation or liability under the TSP Agreement or with
respect to the Membership Interest or otherwise by reason of or arising out of
this Agreement or the assignment to the Agent of the Collateral, nor shall the
Agent be required or obligated in any manner to perform or fulfill any of the
obligations of the Pledgor under or pursuant to, or to make any payment, or to
make any inquiry as to the nature or the sufficiency of any payment received by
it or the sufficiency of any performance by any party under the TSP Agreement or
any other Person, or to present or file any claim, or to take any action to
collect or enforce any performance or the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or times.
4. INCORPORATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Pledgor represents and warrants that it has received a copy of, and is fully
familiar with the terms and provisions of, the Indenture. Except to the extent
that they are not applicable to the Collateral, all representations, warranties
and covenants made by the Company in the Indenture are incorporated herein by
reference and are hereby made by the Pledgor as to itself and the Collateral as
though such representations, warranties and covenants were set forth at length
herein as the representations, warranties and covenants of the Pledgor.
5. COVENANTS. The Pledgor covenants and agrees with the Agent that
from and after the date of this Agreement and until the Obligations are fully
satisfied:
(a) PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Pledgor and the place where the records of the Pledgor
concerning the Collateral are kept is accurately set forth on SCHEDULE 1 hereto,
and the Pledgor will not change such principal place of business or remove such
records without the express prior written consent of the Agent.
(b) FURTHER ASSURANCES. At any time and from time to time,
upon the written request of the Agent, and at the sole expense of the Pledgor,
the Pledgor promptly and duly shall execute and deliver any and all such further
instruments and documents and take such further action as the Agent reasonably
may deem desirable in obtaining the full benefits of this Agreement and of the
rights and powers herein granted, including, without limitation, the filing of
any financing or continuation statements under the Uniform Commercial Code in
effect in any jurisdiction with respect to the liens and security interests
granted hereby. The Pledgor also hereby authorizes the Agent to file any such
financing or continuation statement without the signature of the Pledgor to the
extent permitted by applicable law. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any promissory note
or other instrument, such note or instrument shall be immediately pledged to the
Agent hereunder, duly endorsed in a manner satisfactory to the Agent.
(c) FURTHER IDENTIFICATION OF COLLATERAL. The Pledgor will
furnish to the Agent from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Agent may reasonably request, all in reasonable
detail.
(d) MAINTENANCE OF RECORDS. The Pledgor will keep and
maintain at its own cost and expense satisfactory and complete records of the
Collateral, including, without limitation, a record of all payments received and
all credits granted with respect to the Collateral and all other dealings with
the Collateral. The Pledgor will mark its books and records pertaining to the
Collateral to evidence this Agreement and the security interests granted hereby.
For the Agent's further security, the Pledgor agrees that the Agent shall have a
special property interest in all of the Pledgor's books and records pertaining
to the Collateral and the Pledgor shall deliver and turn over any such books and
records to the Agent or to its representatives at any time on demand of the
Agent.
(e) COMPLIANCE WITH LAWS. The Pledgor will comply with all
Legal Requirements applicable to it or to the Collateral or any part thereof or
to the operation of the Pledgor's business; provided, HOWEVER, that the Pledgor
may contest any act, regulation, order, decree or direction in any reasonable
manner which shall not in the sole opinion of the Agent adversely affect the
Agent's rights or the priority of its liens and security interests in the
Collateral.
(f) PAYMENT OF OBLIGATIONS. The Pledgor will pay promptly
when due all taxes, assessments and governmental charges or levies imposed upon
the Collateral or in respect of its income or profits therefrom, as well as all
claims of any kind, except that no such charge need be paid if (i) the validity
thereof is being contested in good faith by appropriate proceedings, (ii) such
proceedings do not involve any danger of the sale, forfeiture or loss of any of
the Collateral or any interest therein, and (iii) such charge is adequately
reserved against in accordance with generally accepted accounting principles and
such reserve is deposited in and maintained as a cash escrow account with the
Agent on terms and conditions reasonably acceptable to the Agent.
(g) COMPLIANCE WITH CONTRACTS. The Pledgor will perform,
observe and comply in all respects with all of its obligations under the TSP
Agreement and all other agreements to which it is a party or by which it is
bound relating to the Collateral. The Pledgor will use its best efforts to cause
TSP to perform, observe and comply in all respects with all mortgages, ground
leases, occupancy leases and all other agreements and contracts with respect to
the ownership, use and operation of the Property or the Project (as such terms
are defined in the TSP Agreement) to which TSP is a party, including, without
limitation, all Bridge Loan Collateral Documents and all Revolving Credit
Collateral Documents affecting or with respect to the Collateral.
(h) NO MODIFICATIONS OF THE TSP AGREEMENT; NO WAIVERS,
EXTENSIONS. The Pledgor will not (i) amend, modify, terminate or waive any
provision of the TSP Agreement or vote to permit the amendment, modification,
termination or waiver of the TSP Agreement or any provision thereof, (ii) fail
to exercise promptly and diligently each and every material right which it may
have under the TSP Agreement (other than any right of termination or "put" right
or other right the exercise of which would be adverse to the interests of the
Agent hereunder, which rights it shall not exercise without the Agent's prior
written consent), or (iii) fail to deliver to the Agent a copy of each demand,
notice or document received or given by it relating in any way to the TSP
Agreement or the Collateral. In no event shall the Pledgor withdraw from or
cause or consent to the dissolution of TSP.
(i) NO DISPOSITION. The Pledgor will not sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, any of the Collateral, except to the extent expressly required by the TSP
Agreement (and in such event, subject to and in accordance with the terms of the
Indenture.)
(j) LIMITATION ON LIENS ON COLLATERAL. Except for the Bridge
Loan Pledge, the Revolving Credit Pledge and as expressly permitted under the
Indenture, the Pledgor will not create, permit or suffer to exist, and will
defend the Collateral against and take such other action as is necessary to
remove, any Lien in or to the Collateral, and will defend the right, title and
interest of the Agent in and to any of the Pledgor's rights under the TSP
Agreement and in and to the Collateral and products thereof against the claims
and demands of all persons whomsoever.
(k) NOTICES. The Pledgor will advise the Agent promptly, in
reasonable detail, (i) of any Lien made or asserted against any of the
Collateral and (ii) of the occurrence of any other event which could have an
adverse effect on the value of the Collateral or on the liens and security
interests created hereunder.
(1) RIGHT OF INSPECTION. The Agent and the Agent's agents
and representatives shall at all times have full and free access during normal
business hours to all the books, correspondence and records of the Pledgor
relating to the Collateral, and the Agent or its representatives may examine the
same, take extracts therefrom and make photocopies thereof, and the Pledgor
agrees to render to the Agent, at the Pledgor's cost and expense, such clerical
and other assistance as may be reasonably requested with regard thereto.
6. THE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) The Pledgor hereby constitutes and appoints the Agent
with full power of substitution (which appointment is coupled with an interest
and shall be irrevocable while this Agreement remains in effect), as its true
and lawful attorney in fact, with full irrevocable power and authority in the
place and stead of the Pledgor and in the name of the Pledgor or in its own
name, from time to time in the discretion of the Agent, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement and, without limiting the
generality of the foregoing, hereby gives the Agent the power and right, on
behalf of the Pledgor, without notice to or assent by the Pledgor to do the
following:
(i) upon the occurrence and continuance of an Event of
Default, to ask, demand, collect, receive and give acquittances and
receipts for any and all moneys due and to become due under the TSP
Agreement and, in the name of the Pledgor or its own name or otherwise, to
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under the
TSP Agreement or otherwise with respect to the Collateral and to file any
claim or to take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Agent for the purpose of
collecting any and all such moneys due under the TSP Agreement or otherwise
with respect to the Collateral whenever payable;
(ii) at any time, (A) to pay or discharge taxes, Liens,
security interests or other encumbrances levied or placed on or threatened
against the Collateral; and (B) to direct any party liable for any payment
under the TSP Agreement or otherwise with respect to the Collateral to make
payment of any and all moneys due and to become due thereunder directly to
the Agent or as the Agent shall direct; and
(iii) upon the occurrence and continuance of an Event
of Default, (A) to receive payment of and receipt for any and all moneys,
claims and other amounts due and to become due at any time in respect of or
arising out of any Collateral, (B) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any part thereof and to enforce
any other right in respect of any Collateral, (C) to defend any suit,
action or proceeding brought against the Pledgor with respect to any
Collateral, (D) to settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give such
discharges or releases as the Agent may deem appropriate, and (E) generally
to sell, transfer, pledge, make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as though the Agent
were the absolute owner thereof for all purposes, and to do, at the option
of the Agent and at the Pledgor's expense, at any time, or from time to
time, all acts and things which the Agent reasonably deems necessary to
protect, preserve or realize upon the Collateral and the Agent's liens and
security interests therein, in order to effect the intent of this
Agreement, all as fully and effectively as the Pledgor might do. Nothing
contained in this Agreement shall be construed or interpreted (x) to
transfer to The Agent any of the rights and obligations of a member in TSP
other than the rights of collateral security in and to the Collateral or
(y) to constitute The Agent a beneficial owner of TSP, PROVIDED that such
limitation shall, in no manner, otherwise limit the right of the Agent
granted under this Agreement. This Agreement (1) shall not be deemed to
terminate the Pledgor's status as a beneficial owner in TSP and (2) shall
not be construed as constituting a current conveyance, but rather as
creating a security interest in the Pledgor's beneficial interest.
(b) The Pledgor hereby ratifies all that said attorneys
shall lawfully do or cause to be done by virtue hereof. This power of attorney
is a power coupled with an interest and shall be irrevocable.
(c) The powers conferred on the Agent hereunder are solely
to protect the Agent's interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. The Agent shall be accountable only for
amounts that it actually receives as a result of the exercise of such powers and
neither it nor any of its officers, directors, employees or agents shall be
responsible to the Pledgor for any act or failure to act, except for its own
gross negligence or willful misconduct.
(d) The Pledgor also authorizes the Agent, at any time and
from time to time after the occurrence and during the continuance of an Event of
Default, to execute, in connection with the sale provided for in paragraph (b)
of SECTION 8 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
7. PERFORMANCE BY THE AGENT OF THE PLEDGOR'S OBLIGATIONS. If the
Pledgor fails to perform or comply with any of its agreements contained herein
and the Agent, as provided for by the terms of this Agreement, may itself
perform or comply, or otherwise cause performance or compliance, with such
agreement, the expenses of the Agent incurred in connection with such
performance or compliance, together with interest thereon at the rate specified
in the Notes, shall be payable by the Pledgor to the Agent on demand and shall
constitute Obligations secured hereby.
8. REMEDIES; RIGHTS UPON AN EVENT OF DEFAULT.
(a) Upon the occurrence of an Event of Default:
(i) The Pledgor shall re-confirm its direction to TSP
to make and pay all distributions and payments to or for the account of the
Pledgor to the Agent;
(ii) all payments received by the Pledgor under or in
connection with any of the Collateral shall be held by the Pledgor in trust
for the Agent, shall be segregated from other funds of the Pledgor and
shall forthwith upon receipt by the Pledgor, be turned over to the Agent,
in the same form as received by the Pledgor (duly endorsed by the Pledgor
to the Agent, if required); and
(iii) any and all such payments so received by the
Agent (whether from the Pledgor or otherwise) may, in the sole discretion
of the Agent, be held by the Agent as collateral security for, and/or then
or at any time thereafter applied to the payment in whole or in part of the
Obligations, pursuant to SECTION 10 below, the Pledgor remaining liable for
any deficiency.
(b) Upon the occurrence of an Event of Default, in addition
to all other rights and remedies granted to the Agent in this Agreement, in the
Indenture, in the Notes or in any Security Document, the Agent may exercise all
rights and remedies of a secured party under the Code. Without limiting the
generality of the foregoing, the Pledgor expressly agrees that in any such event
the Agent, without demand of performance or other demand, advertisement or
notice of any kind (except the notice specified below of time and place of
public or private sale) to or upon the Pledgor or any other Person (all and each
of which demands, advertisements and/or notices are hereby expressly waived to
the full extent permitted by applicable law), may forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or sell or
otherwise dispose of and deliver the Collateral (or contract to do so), or any
part thereof, in one or more parcels at public or private sale or sales, at any
exchange brokers board or at any of the Agent's offices or elsewhere at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Agent shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of said Collateral so sold,
free of any right or equity of redemption in the Pledgor, which right or equity
is hereby expressly released to the full extent permitted by applicable law. The
Pledgor further agrees, at the request of the Agent, to assemble the Collateral
and to make it available to the Agent at places which the Agent reasonably shall
select, whether at the Pledgor's premises or elsewhere. The Agent shall apply
the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care, safe keeping or otherwise of
any or all of the Collateral or in any way relating to the rights of the Agent
hereunder, including reasonable attorneys' fees and legal expenses, to the
payment in whole or in part of the Obligations, pursuant to SECTION 10 below,
the Pledgor remaining liable for any deficiency. To the extent permitted by
applicable law, the Pledgor waives all claims, damages and demands against the
Agent arising out of the repossession, retention or sale of the Collateral. The
Pledgor agrees that it need not be given more than ten (10) days' notice (which
notification shall be deemed given when mailed, postage prepaid, addressed to
the Pledgor at its address referred to in SECTION 11 hereof) of the time and
place of any public sale or of the time after which a private sale may take
place and that such notice is reasonable notification of such matters. The
Pledgor shall remain liable for any deficiency if the proceeds of any sale or
disposition of the Collateral are insufficient to pay all amounts to which the
Agent is entitled, the Pledgor also being liable for the fees and expenses of
any attorneys employed by the Agent to collect such deficiency.
(c) The Pledgor also agrees to pay all costs of the Agent,
including attorneys' fees and expenses, incurred with respect to the collection
of any of the Obligations and the enforcement of any of their respective rights
hereunder.
(d) The Pledgor hereby waives presentment, demand, protest
or any notice (to the fullest extent permitted by applicable law) of any kind in
connection with this Agreement or any Collateral.
9. LIMITATION ON THE AGENT'S DUTY IN RESPECT OF COLLATERAL. The Agent
shall not have any duty as to any Collateral in its possession or control or in
the possession or control of any agent or nominee of it or any income thereon or
as to the preservation of rights against prior parties or any other rights
pertaining thereto.
10. APPLICATION OF PROCEEDS OF COLLATERAL. The Pledgor hereby agrees
that if the Agent shall realize any Proceeds or other payments upon the sale,
liquidation or other disposition or otherwise in respect of the Collateral, then
the same shall be distributed by the recipients thereof, from time to time as
and when the same is received, as follows:
FIRST, to the fees, costs and expenses of the Agent payable pursuant
to this Agreement,
SECOND, to the payment of all other Obligations, other than principal
and interest,
THIRD, to interest accrued and unpaid on the Obligations and to the
satisfaction of the principal amount of the Obligations, as provided
in the Indenture, and
FOURTH, the remainder, if any, to the Pledgor or such other Person as
may be entitled thereto by law.
The Pledgor shall remain liable for any deficiency.
11. NOTICES. Any notices hereunder shall be given in the manner set
forth in the Indenture to the respective addresses of the Pledgor and the Agent
set forth in the Indenture.
12. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. NO WAIVER; CUMULATIVE REMEDIES. The Agent shall not by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by the
Agent, and then only to the extent therein set forth. A waiver by the Agent of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Agent would otherwise have had on any
future occasion. No failure to exercise nor any delay in exercising on the part
of the Agent any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Agreement may be waived, altered, modified or
amended except in writing, duly executed by the Agent. No amendment or
modification of or waiver under the Notes or the Indenture shall affect or
impair the liens and security interests granted under this Agreement.
14. SUCCESSORS AND ASSIGNS. This Agreement and all obligations of the
Pledgor hereunder shall be binding upon the heirs and assigns of the Pledgor,
and shall, together with the rights and remedies of the Agent hereunder, inure
to the benefit of the Agent and its respective successors and assigns.
15. FURTHER INDEMNIFICATION. The Pledgor agrees to pay, and to save
the Agent harmless from, any and all Losses with respect to, or resulting from
any delay in paying, any and all excise, sales or other taxes which may be
payable or determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Agreement.
16. AMENDMENTS. This Agreement may only be amended or compliance with
any provision modified, altered or waived by a written agreement signed by the
Pledgor and the Agent.
17. GOVERNING LAW. THIS AGREEMENT HAS BEEN NEGOTIATED, EXECUTED AND
DELIVERED IN THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
18. JURISDICTION; VENUE; SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SECURITY DOCUMENT
OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN NEW YORK COUNTY AND HEREBY
EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE
PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM
THAT SUCH COURTS ARE AN INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS BY NOTICE
IN THE MANNER SPECIFIED IN SECTION 11. EACH PARTY TO THIS AGREEMENT IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN
ANY SUCH ACTION OR PROCEEDING.
19. FEES AND EXPENSES. In addition to any fees and expenses payable
pursuant to the Indenture, the Pledgor shall pay upon demand all fees and
expenses (including reasonable attorney's fees and expenses) incurred by the
Agent in connection with the negotiation, execution, production and delivery of
this Agreement and any other documents executed and delivered in connection
herewith, or in connection with (a) the administration of this Agreement and any
amendment or modification hereof, (b) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral, (c)
the failure by the Pledgor to perform or observe any of the provisions hereof,
or (d) the exercise or enforcement of any of the rights of, and collection of
amounts due to, the Agent hereunder.
20. INDEMNITY. The Pledgor shall protect, indemnify and hold harmless
the Agent and each of its Indemnified Parties from and against all Losses
imposed upon or incurred by or asserted against any such the Agent or
Indemnified Party by reason of (a) any failure on the part of the Pledgor to
perform or comply with any of the terms of this Agreement or (b) any other
matter or thing arising from or attributable to the Collateral and/or any act or
omission of any Person with respect thereto, other than, in the case of Losses
arising prior to the occurrence of an Event of Default or any event or condition
which, with notice or passage of time, or both, would constitute an Event of
Default, Losses that result from the Agent's gross negligence or willful
misconduct, as determined by a court of competent jurisdiction. If any action,
suit or proceeding is brought against the Agent or any Indemnified Party by
reason of any such occurrence, the Pledgor, upon such Person's request, will at
the Pledgor's expense resist and defend such action, suit or proceeding or will
cause the same to be resisted and defended by counsel for the insurer of the
liability or by counsel approved by such Person. Any amounts payable to the
Agent or any Indemnified Party pursuant to the indemnity contained in this
Section shall bear interest at the Default Rate from and including the date(s)
such amounts were expended by such Person to the date of payment by the Pledgor;
and all such amounts, together with all such interest, shall be deemed part of
the Obligations secured by this Agreement. The indemnity set forth in this
Section shall survive the repayment in full of the Obligations and the release
of any and all liens of the Agent, the transfer of any and all right, title and
interest in and to the Collateral, or any part thereof, to any Person and the
satisfaction of the Obligations.
22. TERMINATION. This Agreement shall remain in full force and effect
until the date on which: (a) the Obligations due and to become due shall have
been paid or performed in full and such payments are no longer subject to
recoupment or avoidance upon any insolvency or bankruptcy of the Pledgor and (b)
all of the obligations under the Indenture, the Notes or any of the other
Security Documents shall have terminated.
23. CONFLICTING PROVISIONS.
(a) INDENTURE. In the event of any conflict between the
terms of this Agreement and the terms of the Indenture with respect to the
Collateral, the terms of the Indenture shall govern and control.
(b) SECURITY DOCUMENTS. The Pledgor and the Agent are
parties to one or more Security Documents. If any term or provision hereof with
respect to any Collateral hereunder which is the subject of and covered by a
Security Document is inconsistent with any term or provision of such Security
Agreement, then such term or provision of this Agreement shall govern and
control with respect to such Collateral to the extent of such inconsistency.
24. BRIDGE LOAN PLEDGE.
(a) The Pledgor shall promptly notify the Agent in writing
of the occurrence of any default or event of default under the Bridge Loan
Pledge and, in addition, shall deliver to the Agent, within one (1) Business Day
after receipt, a copy of any notice of default received by the Pledgor from the
holder of the Bridge Loan Pledge.
(b) At all times while this Agreement continues in effect,
the Pledgor shall not, without the Agent's prior written consent, increase the
principal amount secured by the Bridge Loan Pledge or allow the amendment or
modification of the Bridge Loan Pledge or of any document relating to the loans
secured by the Bridge Loan Pledge.
25. REVOLVING CREDIT PLEDGE.
(a) The Pledgor shall promptly notify the Agent in writing
of the occurrence of any default or event of default under the Revolving Credit
Pledge and, in addition, shall deliver to the Agent, within one (1) Business Day
after receipt, a copy of any notice of default received by the Pledgor from the
holder of the Revolving Credit Pledge.
(b) At all times while this Agreement continues in effect,
the Pledgor shall not, without the Agent's prior written consent, increase the
principal amount secured by the Revolving Credit Pledge or allow the amendment
or modification of the Revolving Credit Pledge or of any document relating to
the loans secured by the Revolving Credit Pledge.
26. SUBORDINATION TO BRIDGE LOAN PLEDGE AND REVOLVING CREDIT PLEDGE.
This Agreement and the Lien hereof is subject and subordinate to the Bridge Loan
Pledge and the Revolving Credit Pledge and the Lien thereof to the extent set
forth in and subject to the terms and conditions of the Intercreditor Agreement.
[-REMAINDER OF PAGE IS BLANK-]
<PAGE>
IN WITNESS WHEREOF, The Pledgor and the Agent have duly executed this
Assignment, Pledge and Security Agreement as of the date first set forth above.
PLANET HOSPITALITY HOLDINGS, INC.
a Florida corporation
By:
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee and
collateral agent under the
Indenture dated as of March __, 2000
By:
Name:
Title:
<PAGE>
SCHEDULE 1 TO
ASSIGNMENT, PLEDGE AND
SECURITY AGREEMENT
INFORMATION FOR FINANCING STATEMENTS
Chief Executive Office:
__________________________
__________________________
__________________________
Principal Place of Business:
__________________________
__________________________
__________________________
Place where the record of __________________________
the Pledgor concerning the __________________________
Collateral are kept: __________________________
__________________________
Location of Each Required Filing Office:
1. Secretary of State of New York.
2. New York County, State of New York
3. ___________ Secretary of State
