SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM T-3/A
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 17, 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 22, 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 Guarantor Security Agreement (Exhibit B to the
Indenture). To be filed by amendment.
Exhibit T3C-4 Form of Intercreditor Agreement (Exhibit C to the
Indenture).
Exhibit T3C-5 Form of Mortgage (Exhibit D to the Indenture). To be filed
by amendment.
Exhibit T3C-6 Form of Pledge Agreement (Exhibit E to the Indenture). To
be filed by amendment.
Exhibit T3C-7 Form of TSP Pledge Agreement (Exhibit G to the Indenture).
To be filed by amendment.
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 13th 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 T3A-2
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PLANET HOLLYWOOD INTERNATIONAL, INC.
The undersigned, being the President and Chief Executive Officer of
Planet Hollywood International, Inc., a Delaware corporation (the
"Corporation"), originally incorporated in the State of Delaware on December 16,
1994, for the purpose of amending and restating the Certificate of
Incorporation, hereby certifies that the following amended and restated
certificate of incorporation has been duly adopted in accordance with the
provisions of Sections 145 and 303 of the General Corporation Law of the State
of Delaware:
ARTICLE I
Name
The name of the Corporation is PLANET HOLLYWOOD INTERNATIONAL, INC.
ARTICLE II
Registered Office and Agent
The street address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle, Delaware 19805.
The name of the registered agent of the Corporation at that address is
Corporation Service Company.
ARTICLE III
Mailing Address
The mailing address of the Corporation is 8669 Commodity Circle,
Orlando, Florida 32819.
ARTICLE IV
Duration
This Corporation shall exist perpetually.
ARTICLE V
Purpose
The purpose or purposes of the Corporation are:
(1) To conduct any lawful business, to exercise any lawful purpose and
power, and to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware; and
(2) In general, to possess and exercise all the powers and privileges
granted by the General Corporation Law of Delaware or any other law of Delaware
or by this Amended and Restated Certificate of Incorporation together with any
power incidental thereto, so far as such powers and privileges are necessary or
convenient to the conduct, promotion or attainment of the business or purposes
of the Corporation.
ARTICLE VI
Capital Stock
SECTION 1. The maximum number of shares of capital stock which this
Corporation shall have authority to issue is Two Hundred Twenty-Five Million
(225,000,000), consisting of One Hundred Million (100,000,000) shares of Class A
Common Stock, $.01 par value, Twenty Five Million (25,000,000) shares of Class B
Common Stock, $.01 par value, and One Hundred Million (100,000,000) shares of
Preferred Stock, $.01 par value. The Class A Common Stock and the Class B Common
Stock are hereinafter referred to collectively as the "Common Stock".
Notwithstanding anything to the contrary set forth in this Article VI,
the Corporation shall not issue any non-voting equity securities; PROVIDED,
HOWEVER, that this provision, included in this Amended and Restated Certificate
of Incorporation in compliance with Section 1123(a)(6) of the United States
Bankruptcy Code of 1978, as amended (the "Bankruptcy Code"), shall have no force
and effect beyond that required by Section 1123(a)(6) of the Bankruptcy Code and
shall be effective only for so long as Section 1123(a)(6) of the Bankruptcy Code
is in effect and applicable to the Corporation.
Upon the filing in the Office of the Secretary of State of the State
of Delaware of this 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 (collectively, the "Old Common
Stock"), of the Corporation issued and outstanding immediately prior to the time
when this Amended and Restated Certificate of Incorporation becomes effective
are hereby automatically canceled and extinguished. Upon the filing in the
Office of the Secretary of State of the State of Delaware of this Amended and
Restated Certificate of Incorporation, each certificate which prior to such
filing evidenced Old Common Stock shall be deemed canceled and extinguished.
The preferences, qualifications, limitations, restrictions and the
special or relative rights in respect of the shares of each class are as
follows:
SECTION 2. Preferred Stock. The Preferred Stock may be issued from
time to time in one or more series. All shares of Preferred Stock shall be of
equal rank and shall be identical, except in respect of the matters that may be
fixed and determined by the Board of Directors as hereinafter provided, and each
share of each series shall be identical with all other shares of such series,
except as to the date from which dividends are cumulative. The Board of
Directors hereby is authorized to cause such shares to be issued in one or more
classes or series and with respect to each such class or series to fix and
determine the designation, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each series
shall include, but not be limited to, determination of the following:
(1) the number of shares constituting a series, the distinctive
designation of a series and the stated value of a series, if different from the
par value;
(2) whether the shares of a series are entitled to any fixed or
determinable dividends, the dividend rate (if any) on such shares, whether the
dividends are cumulative and the relative rights of priority of dividends on
shares of that series;
(3) whether a series has voting rights in addition to the voting
rights provided by law and the terms and conditions of such voting rights;
(4) whether a series will have or receive conversion or exchange
privileges and the terms and conditions of such conversion or exchange
privileges;
(5) whether the shares of a series are redeemable and the terms and
conditions of such redemption, including the manner of selecting shares for
redemption if less than all shares are to be redeemed, the date or dates on or
after which the shares in the series will be redeemable and the amount payable
in case of redemption;
(6) whether a series will have a sinking fund for the redemption or
purchase of the shares in the series and the terms and the amount of such
sinking fund;
(7) the right of a series to the benefit of conditions and
restrictions on the creation of indebtedness of the Corporation or any
subsidiary, on the issuance of any additional capital stock (including
additional shares of such series or any other series) on the payment of
dividends or the making of other distributions on any outstanding stock of the
Corporation and the purchase, redemption or other acquisition by the
Corporation, or any subsidiary, of any outstanding stock of the Corporation;
(8) the rights of a series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and the relative
rights of priority of payment of a series; and
(9) any other relative, participating, optional or other special
rights, qualifications, limitations or restrictions of such series.
Dividends on outstanding shares of Preferred Stock shall be paid or
set apart for payment before any dividends shall be paid or declared or set
apart for payment on the Common Stock with respect to the same dividend period.
If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation the assets available for distribution to holders
of shares of Preferred Stock of all series shall be insufficient to pay such
holders the full preferential amount to which they are entitled, then such
assets shall be distributed ratably among the shares of all series in accordance
with the respective preferential amounts (including unpaid cumulative dividends,
if any, payable with respect thereto).
SECTION 3. Common Stock - General Provisions. The Common Stock shall
be subject to the express terms of the Preferred Stock and any series thereof.
Except as otherwise provided in this Amended and Restated Certificate of
Incorporation or as otherwise required by the Delaware General Corporation Law,
all shares of Class A Common Stock and Class B Common Stock shall be identical
and shall entitle the holders thereof to the same powers, preferences and
rights, and shall be subject to the same qualifications, limitations and
restrictions thereof.
Shares of Common Stock authorized hereby shall not be subject to
preemptive rights. The holders of shares of Common Stock now or hereafter
outstanding shall have no preemptive right to purchase or have offered to them
for purchase any of such authorized but unissued shares, or any shares of
Preferred Stock, Common Stock or other equity securities issued or to be issued
by the Corporation.
Subject to the preferential and other dividend rights applicable to
Preferred Stock, the holders of shares of Common Stock shall be entitled to
receive such dividends (payable in cash, stock or otherwise) as may be declared
on the Common Stock by the Board of Directors at any time or from time to time
out of any funds legally available therefor.
In the event of any voluntary or involuntary liquidation, distribution
or winding up of the Corporation, after distribution in full of the preferential
or other amounts to be distributed to the holders of shares of Preferred Stock,
the holders of shares of Common Stock shall be entitled to receive all of the
remaining assets of the Corporation available for distribution to its
stockholders, ratably in proportion to the number of shares of Common Stock held
by them.
SECTION 4. Common Stock - Other Provisions.
(a) Voting Rights. Except as prescribed in this Amended and Restated
Certificate of Incorporation 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.
(i) Except as otherwise provided in this Section 4, 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;
(ii) Notwithstanding the provisions of subparagraph (i) above, after
the payment in full of all of the Corporation's obligations under the Deferrable
Interest 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.
(iii) 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.
(iv) In addition to any other vote that may be required by the
Delaware General Corporation Law or this 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 this
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.
(b) Dividends and Distributions. Except as otherwise provided in this
Amended and Restated Certificate of Incorporation, holders of Common Stock shall
be entitled to such dividends and other distributions in cash, stock or property
of the Corporation as may be declared thereon by the Board of Directors from
time to time out of assets or funds of the Corporation legally available
therefor; PROVIDED, HOWEVER, that in no event may the rate of any dividend
payable on outstanding shares of any class of Common Stock be greater than the
dividend rate payable on outstanding shares of the other class of Common Stock.
All dividends and distributions on the Class A Common Stock payable in stock of
the Corporation shall be made in shares of Class A Common Stock, and all
dividends and distributions on the Class B Common Stock payable in stock of the
Corporation shall be made at the same dividend rate per share in shares of Class
B Common Stock. In no event will shares of any class of Common Stock be split,
divided or combined unless the outstanding shares of the other class of Common
Stock shall be proportionately split, divided or combined.
(c) Options, Rights or Warrants. The Corporation may make offerings of
options, rights or warrants to subscribe for shares of either class of capital
stock to all holders of one class of Common Stock if an identical offering is
made simultaneously to all the holders of the other class. All such offerings of
options, rights or warrants shall offer the respective holders of Class A Common
Stock and Class B Common Stock the right to subscribe at the same rate per
share.
SECTION 5. Conversion of Class B Common Stock.
(a) Automatic Conversion.
(i) Upon the transfer of shares of Class B Common Stock (other than a
transfer to a New Money Investor or an affiliate of a New Money Investor), such
shares of Class B Common Stock shall automatically convert into an equal number
of shares of Class A Common Stock.
(ii) In the event that all issued and outstanding shares of Class B
Common Stock constitute 10% or less of all issued and outstanding shares of
Common Stock, all issued and outstanding shares of Class B Common Stock shall
automatically convert into an equal number of shares of Class A Common Stock.
(iii) Upon the occurrence of any event set forth in clauses (i) and
(ii) above (each an "Automatic Conversion"), the conversion of the Class B
Common Stock affected thereby shall be effective without any further action on
the part of the Corporation or the holder or holders of Class B Common Stock.
Stock certificates formerly representing shares of Class B Common Stock held by
(A) the transferee of Class B Common Stock in the case of clause (i) above, or
(B) the record holders of then outstanding shares of Class B Common Stock in the
case of clause (ii) above, shall thereupon and thereafter be deemed to represent
a number of shares of Class A Common Stock equal to the number of shares of
Class B Common Stock represented by such certificates. Each holder of shares of
Class B Common Stock shall to deliver to the Corporation or any transfer agent
for shares of Class A Common Stock the certificates representing shares of Class
B Common Stock subject to Automatic Conversion, but the failure to deliver such
certificates shall not affect the validity of such Automatic Conversion. As
promptly as practicable after such surrender, the Corporation or its transfer
agent will deliver to, or upon the written order of, such holder, a certificate
or certificates representing the number of shares of Class A Common Stock
issuable upon such Automatic Conversion. The Board Directors of the Corporation
shall have all power and authority necessary or advisable to implement the
provisions of this Section.
(b) Voluntary Conversion. All shares of Class B Common Stock shall be
convertible, at the option of the record holders of such shares, into an equal
number of validly issued, fully paid and nonassessable shares of Class A Common
Stock at any time after payment in full of the Deferrable Interest Notes;
provided that such optional conversion must include all then outstanding shares
of Class B Common Stock.
(c) Voluntary Conversion Procedure. At the time of the voluntary
conversion, if any, the record holders of the Class B Common Stock shall deliver
to the principal office of the Corporation or any transfer agent for shares of
the Class A Common Stock (i) the certificate or certificates representing in the
aggregate all shares of Class B Common Stock, duly endorsed in blank or
accompanied by proper instruments of transfer and (ii) written notice to the
Corporation stating that the record holders elect to convert all outstanding
shares of Class B Common Stock and stating the name or names (with addresses)
and denominations in which the certificate or certificates representing the
shares of Class A Common Stock issuable upon such conversion are to be issued
and including instructions for the delivery thereof. Conversion shall be deemed
to have been effected at the time when delivery is made to the Corporation or
its transfer agent of such written notice and the certificate or certificates
representing all outstanding shares of Class B Common Stock, and as of such time
each person named in such written notice as the person to whom a certificate
representing shares of Class A Common Stock is to be issued shall be deemed to
be the holder of record of the number of shares of Class A Common Stock to be
evidenced by that certificate. Upon such delivery, the Corporation or its
transfer agent shall promptly issue and deliver at such stated address to such
record holder of shares of Class A Common Stock a certificate or certificates
representing the number of shares of Class A Common Stock to which such record
holder is entitled by reason of such conversion, and shall cause such shares of
Class A Common Stock to be registered in the name of such record holder.
(d) Reclassifications. In the event of a reclassification or other
similar transaction as a result of which the shares of Class A Common Stock are
converted into another security, then the holders of Class B Common Stock shall
be entitled to receive upon conversion the amount of such security that such
holders would have received if such conversion had occurred immediately prior to
the record date of such reclassification or other similar transaction.
(e) Retired Shares. Shares of Class B Common Stock that are converted
into shares of Class A Common Stock as provided herein shall be canceled and
retired by the Corporation, such shares shall not be reissued and the number of
shares of Class B Common Stock which the Corporation shall have authority to
issue shall be decreased by the number of shares of Class B Common Stock so
converted. The Board of Directors shall take such steps as are required to so
retire such shares.
(f) Reservation. The Corporation shall at all times reserve and keep
available, out of its authorized and unissued shares of Class A Common Stock,
for the purposes of effecting conversions, such number of duly authorized shares
of Class A Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Class B Common Stock; PROVIDED, HOWEVER,
that nothing contained herein shall be construed to preclude the Corporation
from satisfying its obligations in respect of the conversion of the outstanding
shares of Class B Common Stock by delivery of purchased shares of Class A Common
Stock which are held in treasury of the Corporation. All the shares of Class A
Common Stock so issuable shall, when so issued, be duly and validly issued,
fully paid and nonassessable, and free from liens and charges with respect to
the issue. The Corporation shall take all actions as may be necessary to ensure
that all such shares of Class A Common Stock may be so issued without violation
of any applicable law or regulation, or of any requirements of any national
securities exchange upon which the shares of Class A Common Stock are or may be
listed, or of any inter-dealer quotation system of a registered national
securities association upon which the shares of Class A Common Stock are or may
be listed.
(g) Taxes. The issuance of a certificate for shares of Class A Common
Stock upon conversion of shares of Class B Common Stock shall be made without
charge for any stamp or other similar tax in respect of such issuance. However,
if any such certificate is to be issued in a name other than that of the holder
of the shares of Class B Common Stock converted, the person or persons
requesting the issuance thereof shall pay to the Corporation the amount of any
tax which may be payable in respect of any transfer involved in such issuance or
shall establish to the satisfaction of the Corporation that such tax has been
paid or is not required to be paid.
ARTICLE VII
Board of Directors
SECTION 1. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. In addition to the
powers and authorities herein or by statute expressly conferred upon it, the
Board of Directors may exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation, subject, nevertheless, to the
provisions of the laws of the State of Delaware, or this Amended and Restated
Certificate of Incorporation and the By-laws of the Corporation.
SECTION 2. Number and Terms. The number of directors which shall
constitute the whole Board of Directors shall be determined in the manner
provided in the Bylaws of the Corporation. The Board of Directors shall be
divided into three classes, designated Class I, Class II and Class III, which
shall be as nearly equal in number as possible. The initial directors of Class I
shall hold office for a term expiring at the next succeeding annual meeting; the
initial directors of Class II shall be elected to hold office for a term
expiring at the second succeeding annual meeting and the initial directors of
Class III shall be elected to hold office for a term expiring at the third
succeeding annual meeting. Beginning with the next succeeding annual meeting,
directors shall be chosen for a term of three years to succeed those whose terms
then expire and shall hold office until the third following annual meeting of
stockholders and until election of their respective successors.
SECTION 3. Vacancies. Any vacancy on the Board of Directors, whether
arising through death, resignation or removal of a director or through an
increase in the number of directors of any class, shall be filled in the
following manner: (i) vacancies in Class A directorships shall be filled by the
holders of the issued and outstanding shares of Class A Common Stock, voting
separately as a single class; and (ii) vacancies in Class B directorships shall
be filled by the holders of the issued and outstanding shares of Class B Common
Stock, voting separately as a single class; The term of office of any director
elected to fill such a vacancy shall expire at the expiration of the term of
office of directors of the class in which the vacancy occurred.
SECTION 4. Other Provisions. Notwithstanding any other provision of
this Article VII, and except as otherwise required by law, whenever the holders
of any one or more series of Preferred Stock or other securities of the
Corporation shall have the right, voting separately as a class, to elect one or
more directors of the Corporation, the term of office, the filling of vacancies
and other features of such directorships shall be governed by the terms of this
Amended and Restated Certificate of Incorporation applicable thereto, and unless
the terms of this Amended and Restated Certificate of Incorporation expressly
provide otherwise, such directorship shall be in addition to the number of
directors provided in the Bylaws and such directors shall not be classified.
Elections of directors need not be by written ballot unless the Bylaws of the
Corporation shall so provide.
ARTICLE VIII
Bylaws
The power to adopt, alter, amend or repeal the Bylaws of the
Corporation shall be vested in the Board of Directors. The stockholders of the
Corporation may adopt, amend or repeal the Bylaws of the Corporation only by the
affirmative vote of holders of at least 66 2/3% of the combined voting power of
the then outstanding shares of stock of all classes and series of the
Corporation entitled to vote generally on matters requiring the approval of
stockholders (the "Voting Stock").
ARTICLE IX
Stockholder Meetings
Any action required or permitted to be taken by the stockholders of
the Corporation must be taken at a duly called and noticed meeting of
stockholders and may not be taken by consent in writing, unless such action
requiring or permitting stockholder approval is approved by a majority of the
directors then in office. An action required or permitted to be taken by the
stockholders which has been approved by a majority of the directors may be taken
by consent in writing if the consent is signed by the record holders of no less
than the Voting Stock that would otherwise be required for approval of such
action.
ARTICLE X
Indemnification
SECTION 1. The personal liability of the directors of the Corporation
is hereby eliminated to the fullest extent permitted by the provisions of
paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of
the State of Delaware, as the same may be amended and supplemented (but any such
amendment shall not be deemed to increase the liability of any directors of the
Corporation for past acts or omissions of any such person insofar as such
amendment decreases the extent of liability protection that said law permitted
the Corporation to provide prior to such amendment).
SECTION 2. The Corporation shall, to the fullest extent permitted by
the provisions of Section 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented (but any such amendment
shall not be deemed to limit or prohibit the rights of indemnification
hereunder for past acts or omissions of any such person insofar as such
amendment limits or prohibits the indemnification rights that said law permitted
the Corporation to provide prior to such amendment), indemnify any and all
persons whom it shall have the power to indemnify under said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the benefit of heirs,
executors, and administrators of such person.
SECTION 3. Any repeal or modification of this Article X shall be
prospective only and shall not adversely affect any right or protection of, or
any limitation of the liability of, a director or officer of the Corporation, or
any other person covered under this Article X, existing at, or arising out of
facts or incidents occurring prior to, the effective date of such repeal or
modification.
ARTICLE XI
Amendments
The provisions set forth in Articles VI, VII, VIII IX, X and in this
Article XI may not be repealed, rescinded, altered or amended, and no other
provision may be adopted which is inconsistent therewith or impairs in any way
the operation or effect thereof, except by the affirmative vote of holders of
not less than 66 2/3% of the Voting Stock.
Consistent with the preceding sentence, the Corporation reserves the
right to adopt, repeal, rescind, alter or amend in any respect any provision
contained in this Amended and Restated Certificate of Incorporation as
prescribed by applicable law.
ARTICLE XII
Definitions
The following terms used herein shall the meanings specified below.
"Deferrable Interest Notes" shall mean the 10% Secured Deferrable
Interest Notes due 2005 issued by the Corporation pursuant to the Plan under the
Secured Deferrable Interest Notes Indenture.
"Deferrable Interest Notes Indenture" means the Indenture among the
Corporation, as Issuer, the Subsidiary Guarantors named therein, and United
States Trust Company of New York, as trustee, which Indenture relates to the
Deferrable Interest Notes.
"New Class B Common Stock" means the 7,000,000 shares of Class B
Common Stock to be issued to the New Money Investors under the Plan.
"New Money Investors" means certain persons or entities that have
agreed to purchase 7,000,000 shares of New Class B Common Stock for an aggregate
purchase price of $30 million in accordance with the terms of the Plan.
"Plan" means the Joint Plan of Reorganization proposed by the
Corporation and certain of its subsidiaries, as it may be amended or modified
from time to time, and as confirmed by Order dated January 20, 2000 by the
United States Bankruptcy Court for the District of Delaware.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be executed in its corporate name this
__ day of March, 2000.
PLANET HOLLYWOOD INTERNATIONAL, INC.,
a Delaware corporation
By: _________________________
Name:
Title:
Exhibit T3B-2
FOURTH AMENDED AND RESTATED BY-LAWS
OF
PLANET HOLLYWOOD INTERNATIONAL, INC.
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders of
this Corporation for the election of directors and for the transaction of any
proper business shall be held at the time and place designated by the Board of
Directors (the "Board") of the Corporation.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders
shall be held when called by the Chief Executive Officer or by a majority of the
Board of Directors. Special meetings may not be called by any other person.
Written notice of a special meeting pursuant to Section 4 herein shall be given
to all shareholders entitled to vote at such meeting not less than 10 nor more
than 60 days before the date of the meeting. Each such special meeting shall be
held at such date and time as requested by the person or persons calling the
meeting within the limits fixed by law. Business transacted at any special
meeting of shareholders shall be limited to the purposes stated in the notice.
SECTION 3. PLACE. Meetings of shareholders may be held in the State of
Delaware or outside the State of Delaware.
SECTION 4. NOTICE. Written notice stating the place, date and time of
the meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than 10 nor more than
60 days before the meeting, either personally or by first class mail, by or at
the direction of the Chief Executive Officer, the Secretary, or the officer or
persons calling the meeting to each shareholder of record entitled to vote at
such meeting. If mailed, such notice shall be effective when deposited in the
United States mail addressed to the shareholder at his address as it appears on
the Corporation's current record of shareholders.
SECTION 5. NOTICE OF ADJOURNED MEETINGS. When a meeting is adjourned
to another time or place, it shall not be necessary to give any notice of the
adjourned meeting if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken, and at the adjourned
meeting any business may be transacted that might have been transacted on the
original date of the meeting. If, however, the adjournment is for more than 30
days, or if, after the adjournment, the Board of Directors fixes a new record
date for the adjourned meeting, a notice of the adjourned meeting shall be given
as provided in Section 4 herein to each shareholder of record on the new record
date entitled to vote at such meeting.
SECTION 6. NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS. Except as
may otherwise be provided herein, or in the Amended and Restated Certificate of
Incorporation in connection with rights to elect directors under specified
circumstances which may be granted to the holders of any series of Preferred
Stock, nominations for the election of directors and the proposal of business to
be considered by the shareholders may be made by the Board or any shareholder of
record entitled to vote at the meeting and who complies with the notice
procedures set forth in this by-law.
For nominations or other business to be properly brought before an
annual meeting by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for shareholder action. Except as otherwise
provided by applicable law, to be timely, a shareholder's notice must be
delivered to the Secretary of the Corporation at the Corporation's principal
executive offices not later than the close of business on the 60th day, nor
earlier than the close of business on the 90th day, prior to the first
anniversary of the preceding year's annual meeting; PROVIDED, HOWEVER, that in
the event that the date of the annual meeting is more than 30 days before or 60
days after such anniversary date, notice by the shareholder must be so delivered
not earlier than the close of business on the later of the 60th day prior to
such meeting or the 10th day following the day on which public announcement of
the date of such meeting is made by the Corporation. In no event shall public
announcement of an adjournment of an annual meeting commence a new time period
for giving of a shareholder's notice as described above.
Such shareholder's notice shall set forth (a) as to each person whom
the shareholder proposes to nominate for election to the Board of Directors, all
information relating to such person required to be disclosed in solicitation of
proxies for election of directors pursuant to Regulation 14A under the
Securities Exchange Act of 1934 (including such person's written consent to
being named in the proxy statements as a nominee and to serving as a director if
elected); (b) as to any other business that the shareholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such shareholder and the beneficial
owner, if any, on whose behalf the nomination or proposal is made; and (c) as to
the shareholder giving notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (i) the name and address of such shareholder,
as they appear on the Corporation's books, and of such beneficial owner and (ii)
the class and number of shares of the Corporation which are owned beneficially
and of record by such shareholder and beneficial owner. Notice of nominations
which are proposed by the Board shall be given by the Chairman, the Chief
Executive Officer, the President or the Secretary of the Corporation on behalf
of the Board.
The chairperson of the meeting may, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he or she should so determine, he or she shall so
declare to the meeting and the defective nomination shall be disregarded.
SECTION 7. FIXING RECORD DATE. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to receive payment of any distribution, or
in order to make a determination of shareholders for any other purpose, the
Board of Directors may fix in advance a date as the record date for any
determination of shareholders, such date in any case to be not more than 60 days
and, in case of a meeting of shareholders, not less than 10 days prior to the
date on which the particular action requiring such determination of shareholders
is to be taken.
If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice or to vote at an annual
or special meeting of shareholders, or shareholders entitled to receive payment
of a distribution, the date on which notice of the meeting is mailed or the date
on which the resolution of the Board of Directors declaring such distribution is
adopted, as the case may be, shall be the record date for such determination of
shareholders.
When a determination of shareholders entitled to vote at any meeting
of shareholders has been made as provided in this section, such determination
shall apply to any adjournment thereof, unless the Board of Directors fixes a
new record date for the adjourned meeting. A new record date must be fixed if
the meeting is adjourned to a date more than 120 days after the date fixed for
the original meeting.
SECTION 8. VOTING RECORD. The officers or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least 10 days
before each meeting of shareholders, a complete alphabetical list of the
shareholders entitled to vote at such meeting or any adjournment thereof,
arranged by voting group with the address of and the number and class and
series, if any, of shares held by each. The list, for a period of 10 days prior
to such meeting, shall be available for inspection at the principal office of
the Corporation, or at the office of the transfer agent or registrar of the
Corporation or at a place identified in the meeting notice in the city where the
meeting will be held. Upon written demand to the Corporation, any shareholder or
his agent or attorney shall be entitled to inspect the list at any time during
usual business hours. The list shall also be produced and kept open at the time
and place of the meeting and shall be subject to the inspection of any
shareholder or his agent or attorney at any time during the meeting.
If the requirements of this section have not been substantially
complied with, the meeting, on demand of any shareholder in person or by proxy,
shall be adjourned until the requirements are complied with. If no such demand
is made, failure to comply with the requirements of this section shall not
affect the validity of any action taken at such meeting.
SECTION 9. SHAREHOLDER QUORUM AND VOTING. A majority of all then
outstanding shares of voting stock entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of shareholders. When a specified
item of business is required to be voted on by a class or series of stock, a
majority of the shares of such class or series shall constitute a quorum for the
transaction of such item of business by that class or series.
If a quorum is present, the affirmative vote of the majority of the
shares represented at the meeting and entitled to vote on the subject matter
shall be the act of the shareholders unless otherwise provided by law or by the
Amended and Restated Certificate of Incorporation.
After a quorum has been established at a shareholders' meeting, the
subsequent withdrawal of shareholders, so as to reduce the number of
shareholders entitled to vote at the meeting below the number required for a
quorum, shall not affect the validity of any action taken at the meeting or any
adjournment thereof.
SECTION 10. VOTING OF SHARES. Except as otherwise provided in the
Amended and Restated Certificate of Incorporation, each outstanding share of
Common Stock shall be entitled to one vote on each matter submitted to a vote at
a meeting of shareholders.
Shares of stock of this Corporation owned directly or indirectly by
another corporation the majority of the voting stock of which is owned, directly
or indirectly, by this Corporation are not entitled to vote, and shall not be
counted in determining the total number of outstanding shares at any given time.
A shareholder or the shareholder's attorney in fact may vote either in
person or by proxy executed in writing by the shareholder or his duly authorized
attorney-in-fact.
At each election for directors every shareholder entitled to vote at
such election shall have the right to vote, in person or by proxy, the number of
votes represented by the shares owned by him for as many persons as there are
directors to be elected at that time and for whose election he has a right to
vote.
Shares standing in the name of another corporation, domestic or
foreign, may be voted by the officer, agent, or proxy designated by the by-laws
of the corporate shareholder; or, in the absence of any applicable by-law, by
such person as the board of directors of the corporate shareholder may
designate. Proof of such designation may be made by presentation of a certified
copy of the by-laws or other instrument of the corporate shareholder. In the
absence of any such designation, or in case of conflicting designation by the
corporate shareholder, the Chairman of the Board, Chief Executive officer,
President, any Vice President, Secretary and Treasurer of the corporate
shareholder shall be presumed to possess, in that order, authority to vote such
shares.
Shares held by an administrator, executor, guardian, personal
representative, or conservator may be voted by him, either in person or by
proxy, without a transfer of such shares into his name. Shares standing in the
name of a trustee may be voted by him, either in person or by proxy, but no
trustee shall be entitled to vote shares held by him without a transfer of such
shares into his name or the name of his nominee.
Shares held by or under the control of a receiver, trustee in
bankruptcy proceedings or an assignee for the benefit of creditors, may be voted
by such receiver, trustee or assignee, without the transfer thereof into the
name of such receiver, trustee or assignee.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee or his nominee shall be entitled to vote the shares so
transferred.
On and after the date on which written notice of redemption of
redeemable shares has been mailed to the holders thereof and a sum sufficient to
redeem such shares has been deposited with a bank, trust company or other
financial institution, with irrevocable instruction and authority to pay the
redemption price to the holders thereof upon surrender of certificates therefor,
such shares shall not be entitled to vote on any matter and shall not be deemed
to be outstanding shares.
SECTION 11. WRITTEN CONSENT OF SHAREHOLDERS. Any action required or
permitted to be taken by the shareholders of the Corporation must be effected at
a duly called annual or special meeting of the shareholders, unless such action
is approved by a majority of the Board of Directors. In the event of such
approval, such action may be taken without a meeting, without prior notice and
without a vote if a consent in writing, setting forth the action so taken, shall
be signed by the holders of outstanding shares having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting of shareholders at which all shares entitled to vote thereon were
present and voted, provided that all requirements of law and the Amended and
Restated Certificate of Incorporation have been satisfied. To be effective, the
executed written consent of the shareholders must be delivered to the
Corporation within 60 days of the date the earliest written consent is received
by the Corporation. If any class of shares is entitled to vote thereon as a
class, such written consent shall be required of the holders of a majority of
the shares of each class of shares entitled to vote thereon.
After obtaining such authorization by written consent, notice shall
promptly be given to those shareholders who have not consented in writing or who
are not entitled to vote on the action. The notice shall fairly summarize the
material features of the authorized action and, if the action be a merger,
consolidation or sale or exchange of assets for which dissenters rights are
provided by law, the notice shall contain a clear statement of the right of
shareholders dissenting therefrom to be paid the fair value of their shares upon
compliance with further provisions of the law regarding the rights of dissenting
shareholders.
SECTION 12. WAIVER OF NOTICE OF MEETINGS OF SHAREHOLDERS. Notice of a
meeting of the shareholders need not be given to any shareholder who signs a
Waiver of Notice either before or after the meeting. Attendance of a shareholder
at a meeting shall constitute a waiver of notice of such meeting and waiver of
any and all objections to the place of the meeting, the time of the meeting, the
manner in which it has been called or convened, or the matters considered at a
meeting except when a shareholder states, at the beginning of the meeting, any
objection to the transaction of business because the meeting is not lawfully
called or convened, or except when a shareholder objects to considering a
particular matter that is not within the purposes described in the meeting
notice.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the shareholders need be specified in any written
Waiver of Notice of such meeting.
ARTICLE II
DIRECTORS
SECTION 1. FUNCTION. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the Corporation shall be
managed under the direction of, the Board of Directors.
SECTION 2. QUALIFICATION. Directors must be natural persons who are 18
years of age or older, but need not be residents of the State of Delaware,
citizens of the United States of America or shareholders of this Corporation.
SECTION 3. COMPENSATION. The Board of Directors shall have authority
to fix the compensation of directors.
SECTION 4. DUTIES OF DIRECTORS. A director shall perform his duties as
a director, including his duties as a member of any committee of the board upon
which he may serve, in good faith, in a manner he reasonably believes to be in
the best interests of the Corporation, and with such care as an ordinarily
prudent person in a like position would use under similar circumstances.
In performing his duties, a director shall be entitled to rely on
information, opinions, reports or statements, including financial statements and
other financial data, in each case prepared or presented by:
(a) one or more officers or employees of the Corporation whom the
director reasonably believes to be reliable and competent in the matters
presented;
(b) counsel, public accountants or other persons as to matters which
the director reasonably believes to be within such person's professional or
expert competence; or
(c) a committee of the Board upon which he does not serve, duly
designated in accordance with a provision of the Amended and Restated
Certificate of Incorporation or the By-laws, as to matters within its designated
authority, which committee the director reasonably believes to merit confidence.
A director shall not be considered to be acting in good faith if he
has knowledge concerning the matter in question that would cause such reliance
described above to be unwarranted.
In discharging his duties, a director may consider such factors as the
director deems relevant, including the long-term prospects and interests of the
Corporation and its shareholders, and the social, economic, legal, or other
effects of any action on the employees, suppliers, customers of the Corporation
or its subsidiaries, the communities and society in which the Corporation or its
subsidiaries operate, and the economy of the state and the nation.
A person who performs his duties in compliance with this section shall
have no liability by reason of being or having been a director of the
Corporation.
SECTION 5. PRESUMPTION OF ASSENT. A director of the Corporation who is
present at a meeting of its Board of Directors or a committee of the Board of
Directors at which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless (a) he objects at the beginning of the
meeting (or promptly upon his arrival) to holding it or transacting specified
business at the meeting; or (b) he votes against such action or abstains from
voting in respect thereto.
SECTION 6. NUMBER. Except as may otherwise be provided pursuant to the
Amended and Restated Certificate of Incorporation in connection with rights to
elect directors which may be granted to the holders of any series of Preferred
Stock, the number of directors which shall constitute the whole Board shall
initially be seven. The holders of the Corporation's Class B Common Stock may
increase the number of directors constituting the whole Board to up to a total
of eleven. At such time when there shall be no shares of Class B Common Stock
issued and outstanding, the number of directors constituting the whole Board
shall be fixed by the Board of Directors, but shall not be fewer than [five] nor
more than [eleven]. The directors, other than those who may be elected by the
holders of any shares of Preferred Stock under specified circumstances, shall be
divided, with respect to the time for which they severally hold office, into
three classes, designated Class I, Class II and Class III, which shall be nearly
equal in number as is reasonably possible, with the term of office of Class I to
expire at the 2001 annual meeting of shareholders, the term of office of Class
II to expire at the 2002 annual meeting of shareholders and the term of office
of Class III to expire at the 2003 annual meeting of shareholders, with each
director to hold office until his or her successor has been duly elected and
qualified. At each annual meeting of shareholders, commencing with the 2001
annual meeting, directors elected to succeed those directors whose terms shall
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of shareholders after their election, each director to hold
office until his or her successor shall have been duly elected and qualified.
SECTION 7. ELECTION OF DIRECTORS. Except as may otherwise be provided
pursuant to the Amended and Restated Certificate of Incorporation in connection
with the rights to elect directors under specified circumstances which may be
granted to the holders of any series of Preferred Stock, and except as otherwise
provided pursuant to Section 8 of this Article II, directors shall be elected by
the holders of the Corporation's Class B Common Stock; PROVIDED, HOWEVER, that,
in accordance with the Amended and Restated Certificate of Incorporation, (i)
after the payment in full of all of the Corporation's obligations under the
Deferrable Interest Notes, the holders of the Corporation's Class A Common Stock
shall be entitled to elect two directors (the "Class A Directors"). and (ii) 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. Except as otherwise provided by
applicable law, at each election the persons receiving the greatest number of
votes shall be the persons then elected. Each director shall serve until his or
her successor is elected and qualified or until his or her death, resignation or
removal. The election of directors is subject to any provisions relating thereto
contained in the Amended and Restated Certificate of Incorporation.
SECTION 8. VACANCIES. Except as may otherwise be provided pursuant to
the Amended and Restated Certificate of Incorporation in connection with rights
to elect additional directors under specified circumstances which may be granted
to the holders of any series of Preferred Stock, newly created directorships
resulting from any increase in the number of directors, or any vacancies on the
Board of Directors resulting from death, resignation, removal or other causes,
shall be filled in the following manner: (i) vacancies in Class A directorships
shall be filled by the holders of the issued and outstanding shares of Class A
Common Stock voting separately as a single class and (ii) vacancies in Class B
directorships shall be filled by the holders of the issued and outstanding
shares of Class B Common Stock voting separately as a single class; PROVIDED,
HOWEVER, that vacancies in a directorship held by any Creditor Director shall be
filled either by appointment by the Board of Directors or the vote of
stockholders, by individuals designated by the holders of at least a majority in
principal amount of the outstanding Deferrable Interest Notes in accordance with
Section 4.15 of the Defferable Interest Notes Indenture. Any director elected in
accordance with the preceding sentence shall hold office until such director's
successor shall have been elected and qualified or until such director's death,
resignation or removal, whichever first occurs. No decrease in the number of
directors constituting the Board shall shorten the term of any incumbent
director.
SECTION 9. RESIGNATION OF DIRECTORS. Any director of the Corporation
may resign at any time by giving written notice to the Chairman of the Board,
Chief Executive Officer, President or to the Secretary of the Corporation. The
resignation of any director shall take effect at the time specified therein;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 10. REMOVAL OF DIRECTORS. Subject to the right to elect
directors under specified circumstances which may be granted pursuant to the
Amended and Restated Certificate of Incorporation to the holders of any series
of Preferred Stock and unless otherwise provided by law, any director may be
removed from office with or without cause only by the vote of the holders of the
class of voting stock entitled to elect such director, voting together as a
single class and holding not less than a majority of the issued and outstanding
shares of such class of voting stock; PROVIDED, HOWEVER, that as long as the
Deferrable Interest Notes are outstanding, the Creditor Directors may not be so
removed without the prior written consent of the holders of at least a majority
in principal amount of the outstanding Deferrable Interest Notes. At such time
when there shall be no shares of Class B Common Stock issued and outstanding,
directors 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.
SECTION 11. QUORUM AND VOTING. A majority of the number of directors
fixed by these By-laws shall constitute a quorum for the transaction of
business. Subject to the provisions of Section 12 of Article II of these
By-laws, the act of the majority of the directors present at a meeting at which
a quorum is present shall be the act of the Board of Directors.
SECTION 12. SUPERMAJORITY VOTING REQUIREMENTS. Notwithstanding any
provision in these By-laws to the contrary, for as long as the Deferrable
Interest Notes are outstanding, the affirmative vote of at least a majority of
the members of the Board of Directors including at least one of the Creditor
Directors or at least one Class A Director (a "Supermajority Vote") shall be
required to authorize the taking of any of the following actions on the part of
the Corporation:
(a) entering into any contract or other transaction (or series or
related contracts or transactions) with any stockholder, director or beneficial
owner of five percent (5%) or more of the capital stock of the Corporation;
(b) entering into any contract or other transaction (or series of
related contracts or transactions) with any officer of the Corporation
inconsistent with prior practice and involving more than $350,000;
(c) engaging in or committing to engage in the acquisition by the
Corporation or any subsidiary thereof of a majority of the assets or capital
stock of another entity as an entirety;
(d) merging or consolidating the Corporation or any subsidiary thereof
with and/or into another entity, or selling all or substantially all of the
assets of the Corporation or any subsidiary thereof as an entirety; and
(e) authorizing or approving any amendment to the Amended and Restated
Certificate of Incorporation of the Corporation or any amendment by the Board of
Directors to the By-laws of the Corporation.
SECTION 13. DIRECTOR CONFLICTS OF INTEREST. No contract or other
transaction between this Corporation and one or more of its directors or any
other corporation, firm, association or entity in which one or more of the
directors are directors or officers or are financially interested, shall be
either void or voidable because of such relationship or interest or because such
director or directors are present at the meeting of the Board of Directors or a
committee thereof which authorizes, approves or ratifies such contract or
transaction or because his or their votes are counted for such purpose, if:
(a) the fact of such relationship or interest is disclosed or known to
the Board of Directors or committee which authorizes, approves or ratifies the
contract or transaction by a vote or consent sufficient for the purpose without
counting the votes or consents of such interested directors; or
(b) the fact of such relationship or interest is disclosed or known to
the shareholders entitled to vote and they authorize, approve or ratify such
contract or transaction by vote or written consent; or
(c) the contract or transaction is fair and reasonable as to the
Corporation at the time it is authorized by the Board, a committee or the
shareholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors of a committee
thereof which authorizes, approves or ratifies such contract or transaction.
SECTION 14. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors, by
resolution adopted by a majority of the full Board of Directors, may designate
from among its members an executive committee and one or more other committees
each of which, to the extent provided in such resolution, shall have and may
exercise all the authority of the Board of Directors, except that no committee
shall have the authority to:
(a) approve or recommend to shareholders actions or proposals required
by law to be approved by shareholders;
(b) designate candidates for the office of director, for purposes of
proxy solicitation or otherwise;
(c) fill vacancies on the Board of Directors or any committee thereof;
(d) adopt, amend or repeal these By-laws or the Amended and Restated
Certificate of Incorporation;
(e) authorize or approve the reacquisition of shares unless pursuant
to a general formula or method specified by the Board of Directors;
(f) adopt an agreement of merger or consolidation; or
(g) authorize or approve the issuance or sale of, or any contract to
issue or sell, shares or designate the terms of a series of a class of shares,
except that the Board of Directors, having acted regarding general authorization
for the issuance or sale of shares, or any contract therefor, and, in the case
of a series, the designation thereof, may, pursuant to a general formula or
method specified by the Board of Directors, by resolution or by adoption of a
stock option or other plan, authorize a committee to fix the terms of any
contract for the sale of the shares and to fix the terms upon which such shares
may be issued or sold, including the price, the rate or manner of payment of
dividends, provisions for redemption, sinking fund, conversion, voting or
preferential rights, and provisions for other features of a class of shares, or
a series of a class of shares, with full power in such committee to adopt any
final resolution setting forth all the terms thereof and to authorize the
statement of the terms of a series for filing with the office of the Secretary
of State.
The Board of Directors, by resolution adopted in accordance with this
section, may designate one or more directors as alternate members of any such
committee, who may act in the place and stead of any absent member or members at
any meeting of such committee.
SECTION 15. CHANGES IN COMMITTEES; RESIGNATIONS, REMOVALS AND
VACANCIES. The Board of Directors shall have power at any time to change or
remove the members of, to fill vacancies in, and to discharge any committee
created pursuant to these By-laws, either with or without cause. Any member of
any such committee may resign at any time by giving written notice to the Board
or the Chairman of the Board or the Secretary. Such resignation shall take
effect upon receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective. Any vacancy in any committee, whether arising
from death, resignation, an increase in the number of committee members or any
other cause, shall be filled by the Board of Directors in the manner prescribed
in these By-laws for the original appointment of the members of such committee.
SECTION 16. PLACE OF MEETINGS. Regular and special meetings by the
Board of Directors may be held within or without the State of Delaware.
SECTION 17. TIME, NOTICE AND CALL OF MEETINGS. Regular meetings of the
Board of Directors shall be held at times and places specified by the Board of
Directors without notice of the date, time, place or purpose of the meeting.
Written notice of the date, time and place of special meetings of the Board of
Directors shall be given to each director at least 2 days before the meeting.
The notice need not describe the purpose of the special meeting. In addition to
any other regular meetings, a regular meeting of the Board of Directors shall be
held, without other notice than this by-law, immediately after and at the same
place as the annual meeting of shareholders.
Notice of a meeting of the Board of Directors need not be given to any
director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a meeting shall constitute a waiver of notice of
such meeting and waiver of any and all objections to the place of the meeting,
the time of the meeting, or the manner in which it has been called or convened,
except when a director states, at the beginning of the meeting, any objection to
the transaction of business because the meeting is not lawfully called or
convened.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
A majority of the directors present, whether or not a quorum exists,
may adjourn any meeting of the Board of Directors to another time and place.
Notice of any such adjourned meeting shall be given to the directors who were
not present at the time of the adjournment and, unless the time and place of the
adjourned meeting are announced at the time of the adjournment, to the other
directors.
Meetings of the Board of Directors may be called by the Chairman of
the Board, by the Chief Executive Officer, by the President of the Corporation,
or by any two directors.
Members of the Board of Directors may participate in a meeting of such
board by means of a conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other at
the same time. Participation by such means shall constitute presence in person
at a meeting.
SECTION 18. ACTION WITHOUT A MEETING. Any action required to be taken
at a meeting of the directors of the Corporation, or any action which may be
taken at a meeting of the directors or a committee thereof, may be taken without
a meeting if a consent in writing, setting forth the action to be taken, signed
by all of the directors, or all the members of the committee, as the case may
be, is filed in the minutes of the proceedings of the Board or of the committee.
Such consent shall have the same effect as a unanimous vote and may be described
as such in any document.
SECTION 19. ADVISORY DIRECTORS. The Board of Directors shall have the
authority to elect a board of outside directors consisting of two members
initially which number can be increased or decreased by a vote of the
shareholders. The outside directors shall not be shareholders or officers of the
Corporation, and shall not have voting powers, but rather are to act in the
capacity of consulting and advising the Board of Directors at their invitation.
ARTICLE III
OFFICERS
SECTION 1. OFFICERS. The officers of this Corporation shall consist of
a Chairman of the Board, a Chief Executive Officer, a President, a Secretary and
a Treasurer, each of whom shall be elected by the Board of Directors, and shall
serve until their successors are chosen and qualify. Such other officers and
assistant officers and agents as may be deemed necessary may be elected or
appointed by the Board of Directors from time to time.
Any two or more offices may be held by the same person. The failure to
elect a President, Chairman of the Board, Secretary or Treasurer shall not
affect the existence of this Corporation.
SECTION 2. DUTIES. The officers of this Corporation shall have the
following duties:
The Chief Executive Officer of the Corporation shall have overall
responsibility for the Corporation, subject to the directions of the Board of
Directors, and shall preside at all meetings of the shareholders and, unless the
Chairman of the Board of Directors has been elected and is present, shall
preside at all meetings of the Board of Directors.
The President and Chief Operating Officer shall report to the Chief
Executive Officer and the Board of Directors and shall be responsible for the
general and active management of the business, operations and affairs of the
Corporation, subject to the direction of the Chief Executive Officer.
The Chairman of the Board of Directors shall preside at all meetings
of the Board of Directors.
The Secretary shall have custody of, and maintain, all the corporate
records except the financial records, shall have the authority to execute any
and all documents in connection with intellectual property matters, including,
but not limited to, Powers of Attorney, Appointment of Resident Agent forms and
any other documents which are required in connection with the intellectual
property matters of the Corporation, shall prepare the minutes of all meetings
of the shareholders and Board of Directors, shall authenticate records of the
Corporation; shall send all notices of meetings out, and shall perform such
other duties as may be prescribed by the Board of Directors or the President.
The Treasurer shall have custody of all corporate funds and financial
records, shall keep full and accurate accounts of receipts and disbursements and
render accounts thereof at the annual meetings of shareholders and whenever else
required by the Board of Directors or the President, and shall perform such
other duties as may be prescribed by the Board of Directors or the President.
SECTION 3. REMOVAL OF OFFICERS. Any officer or agent elected or
appointed by the Board of Directors may be removed by the Board at any time with
or without cause.
Removal of any officer shall be without prejudice to the contract
rights, if any, of the person so removed; however, election or appointment of an
officer or agent shall not of itself create contract rights.
SECTION 4. RESIGNATION OF OFFICERS. An officer may resign at any time
by delivering notice to the Corporation. A resignation is effective when the
notice is delivered unless the notice specifies a later effective date. If a
resignation is made effective at a later date and the Corporation accepts the
future effective date, the Board of Directors may fill the pending vacancy
before the effective date if the Board of Directors provides that the successor
does not take office until the effective date.
ARTICLE IV
STOCK CERTIFICATES
SECTION 1. ISSUANCE. Every holder of shares in this Corporation shall
be entitled to have a certificate, representing all shares to which he is
entitled. The Board of Directors may authorize shares to be issued for
consideration consisting of any tangible or intangible property or benefit to
the Corporation, including cash, promissory notes, services performed, promises
to perform services evidenced by a written contract, or other securities of the
Corporation.
Before the Corporation issues shares, the Board of Directors must
determine that the consideration received for shares to be issued is adequate.
The determination by the Board of Directors is conclusive insofar as the
adequacy of consideration for the issuance of shares relates to whether the
shares are validly issued, fully paid and nonassessable. When it cannot be
determined that outstanding shares are fully paid and nonassessable, there shall
be a conclusive presumption that such shares are fully paid and nonassessable if
the Board of Directors makes a good faith determination that there is no
substantial evidence that the full consideration for such shares has not been
paid.
When the Corporation receives the consideration for which the Board of
Directors authorized the issuance of shares, the shares issued therefor are
fully paid and nonassessable. Consideration in the form of a promise to pay
money or a promise to perform services is received by the Corporation at the
time of the making of the promise, unless the agreement specifically provides
otherwise.
SECTION 2. FORM. Certificates representing shares in this Corporation
shall be signed by the Chief Executive Officer or by the President or any vice
president and the Secretary or an assistant secretary and may be sealed with the
seal of this Corporation or a facsimile thereof. The signatures of the Chief
Executive Officer or the President or any Vice President and the Secretary or an
Assistant Secretary may be facsimiles if the certificate is manually signed on
behalf of a transfer agent or a registrar, other than the Corporation itself or
an employee of the Corporation. In case any officer who signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of its
issuance.
If this Corporation is authorized to issue shares of more than one
class or more than one series of any class, every certificate representing
shares issued by this Corporation shall set forth or fairly summarize upon the
face or back of the certificate, or shall state that the Corporation will
furnish to any shareholder upon request and without charge a full statement of,
the designations, preferences, limitations and relative rights of the shares of
each class or series authorized to be issued, and the variations in the relative
rights and preferences between the shares of each series so far as the same have
been fixed and determined, and the authority of the Board of Directors to fix
and determine the relative rights and preferences of subsequent series.
Every certificate representing shares which are restricted as to the
sale, disposition or other transfer of such shares shall state that such shares
are restricted as to transfer and shall set forth or fairly summarize upon the
certificate, or shall state that the Corporation will furnish to any shareholder
upon request and without charge a full statement of, such restrictions.
Each certificate representing shares shall state upon the face
thereof: the name of the Corporation; that the Corporation is organized under
the laws of the State of Delaware; the name of the person or persons to whom
issued; the number and class of shares; and the designation of the series, if
any, which such certificate represents.
SECTION 3. TRANSFER OF STOCK. Transfer of shares of the Corporation
shall be made only on the stock transfer books of the Corporation by the holder
of record thereof or by his legal representative, who shall furnish proper
evidence of authority to transfer, or by his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary of the Corporation,
and on surrender for cancellation of the certificate of such shares. The person
in whose name shares stand on the books of the Corporation shall be deemed by
the Corporation to be the owner thereof for all purposes.
SECTION 4. LOST, STOLEN, OR DESTROYED CERTIFICATES. The Corporation
shall issue a new stock certificate in the place of any certificate previously
issued if the holder of record of the certificate (a) makes proof in affidavit
form that it has been lost, destroyed or wrongfully taken; (b) requests the
issue of a new certificate before the Corporation has notice that the
certificate has been acquired by a purchaser for value in good faith and without
notice of any adverse claim; (c) gives bond in such form as the Corporation may
direct to indemnify the Corporation, the transfer agent and registrar against
any claim that may be made on account of the alleged loss, destruction or theft
of a certificate; and (d) satisfies any other reasonable requirements imposed by
the Corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or officers, agent or
agents, of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
ARTICLE VI
BOOKS AND RECORDS
SECTION 1. BOOKS AND RECORDS. The Corporation shall keep as permanent
records, in accordance with applicable law, minutes of all meetings of its
shareholders and Board of Directors, a record of all actions taken by the
shareholders or Board of Directors without a meeting, a record of all actions
taken by a committee of the Board of Directors in place of the Board of
Directors on behalf of the Corporation, and such books or records and accounts
as may be necessary for the proper conduct of the business of the Corporation.
SECTION 2. INSPECTION OF BOOKS AND RECORDS. The Board of Directors
and, unless otherwise specified by the Board, the Chairman of the Board, the
Chief Executive Officer or the President shall, subject to applicable law, have
the sole power to determine from time to time whether and to what extent and at
what times and places and under what conditions and regulations the accounts,
books and records of the Corporation, or any of them, shall be open to the
inspection of the shareholders; and, except as specifically conferred by law, no
shareholder shall have any right to inspect any account, book, record or
document of the Corporation, unless and until authorized to do so by the Board
or, unless otherwise specified by the Board, by order of the Chairman of the
Board or by the Chief Executive Officer or the President.
ARTICLE VII
DISTRIBUTIONS, SHARE DIVIDENDS AND SHARE OPTIONS
SECTION 1. DISTRIBUTIONS. The Board of Directors of this Corporation
may, from time to time, authorize and the Corporation may pay distributions to
the shareholders. A distribution is a direct or indirect transfer of money or
other property (except the Corporation's own shares) or incurrence of
indebtedness by the Corporation to or for the benefit of the shareholders in
respect of any of its shares. A distribution may be in the form of a declaration
or payment of a dividend; a purchase, redemption, or other acquisition of
shares; a distribution of indebtedness; or otherwise.
No distribution may be made if, after giving it effect:
(a) the Corporation would not be able to pay its debts as they become
due in the usual course of business; or
(b) the Corporation's total assets would be less than the sum of its
total liabilities plus the amount that would be needed, if the Corporation were
to be dissolved at the time of the distribution, to satisfy the preferential
rights upon dissolution of shareholders whose preferential rights are superior
to those receiving the distribution.
If the Board of Directors does not fix the record date for determining
shareholders entitled to a distribution (other than one involving a purchase,
redemption, or other acquisition of the Corporation's shares), it is the date
the Board of Directors authorizes the distribution.
The Board of Directors may base a determination that a distribution is
not prohibited either on financial statements prepared on the basis of
accounting practices and principles that are reasonable in the circumstances or
on a fair valuation or other method that is reasonable in the circumstances. In
the case of any distribution based upon such a valuation, each such distribution
shall be identified as a distribution based upon a current valuation of assets,
and the amount per share paid on the basis of such valuation shall be disclosed
to the shareholders concurrent with their receipt of the distribution.
SECTION 2. SHARE DIVIDENDS. Unless the Amended and Restated
Certificate of Incorporation provides otherwise, shares may be issued pro rata
and without consideration to the Corporation's shareholders or to the
shareholders of one or more classes or series. An issuance of shares under this
section is a share dividend.
Shares of one class or series may not be issued as a share dividend in
respect of shares of another class or series unless:
(a) the Amended and Restated Certificate of Incorporation so
authorizes;
(b) a majority of the votes entitled to be cast by the class or series
to be issued approves the issue; or
(c) there are no outstanding shares of the class or series to be
issued.
If the Board of Directors does not fix the record date for determining
shareholders entitled to a share dividend, it is the date the Board of Directors
authorizes the share dividend.
SECTION 3. SHARE OPTIONS. Unless the Amended and Restated Certificate
of Incorporation provides otherwise, the Corporation may issue rights, options
or warrants for the purchase of its shares. The Board of Directors shall
determine the terms upon which the rights, options or warrants are issued, their
form and content, and the consideration for which the shares are to be issued.
The terms and conditions of stock rights and options which are created
and issued by the Corporation, or its successor, and which entitle the holders
thereof to purchase from the Corporation shares of any class or classes, whether
authorized but unissued shares, treasury shares or shares to be purchased or
acquired by the Corporation, may include restrictions or conditions that
preclude or limit the exercise, transfer, receipt or holding of such rights or
options by any person or persons, including any person or persons owning or
offering to acquire a specified number or percentage of the outstanding common
shares or other securities of the Corporation, or any transferee or transferees
of any such person or persons, or that invalidate or void such rights or options
held by any such person or persons or any such transferee or transferees.
ARTICLE VIII
CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall have
inscribed thereon the name of the Corporation and such other words and figures
and in such design as may be prescribed by the Board of Directors, and may be
facsimile, engraved, printed or an impression, or other type seal.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall, by resolution, be determined
by the Board of Directors.
ARTICLE X
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
SECTION 1. ACTION AGAINST PARTY BECAUSE OF CORPORATE POSITION. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, partner, officer,
employee or agent of another Corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees inclusive of any
appeal), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such claim, action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
unlawful. The termination of any claim, action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
SECTION 2. ACTION BY OR IN THE RIGHT OF CORPORATION. The Corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed claim, action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, partner, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees inclusive of any appeal) actually and reasonably
incurred by him in connection with the defense or settlement of such claim,
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that a court of competent jurisdiction (the "Court") in which such
claim, action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court shall deem proper.
SECTION 3. REIMBURSEMENT IF SUCCESSFUL. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any claim, action, suit or proceeding referred to in
Sections 1 or 2 of this Article X, or in defense of any claims, issue or matter
therein, he shall be indemnified against expenses (including attorneys fees
inclusive of any appeal) actually and reasonably incurred by him in connection
therewith, notwithstanding that he has not been successful (on the merits or
otherwise) on any other claim, issue or matter in any such claim, action, suit
or proceeding.
SECTION 4. AUTHORIZATION. Any indemnification under Sections 1 and 2
of this Article X (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Sections 1 and 2. Such determination shall be made (a) by the Board of Directors
by a majority vote of the directors who were not parties to such action, suit or
proceeding, even though less than a quorum, or (b) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (c) by the shareholders.
SECTION 5. ADVANCED REIMBURSEMENT. Expenses incurred in defending a
civil or criminal action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding as
authorized by the Board of Directors in the specific case upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this Article.
SECTION 6. INDEMNIFICATION NOT EXCLUSIVE. The indemnification provided
by this Article shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any statute, rule of law, provision of the
Amended and Restated Certificate of Incorporation, by-law, agreement, vote of
shareholders or disinterested directors, or otherwise, both as to action in his
official capacity and as to action in another capacity, while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. Where such other provision
provides broader rights of indemnification than these by-laws, said other
provision shall control. any person to which this Article applies shall be
deemed to have a contractual right to the indemnification described herein.
SECTION 7. ACTIONS INITIATED BY INDEMNIFIED PARTIES. Notwithstanding
the foregoing sections of this Article X, the Corporation shall not be required
to indemnify any person seeking indemnification in connection with a claim,
action, suit or proceeding (or part thereof) initiated by such person (except
for a suit or action pursuant to the following paragraph of this Section 7)
unless such claim, action, suit or proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation.
If a claim by a person entitled to be indemnified under this Article X
is not paid in full by the Corporation within sixty days after a written claim
has been received by the Corporation, the claimant may at any time thereafter
bring an action against the Corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such action. It shall be a defense to
any such action (other than an action brought to enforce a claim for expenses
incurred in connection with any proceeding in advance of its final disposition
where the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the Corporation to indemnify the claimant for the amount claimed or is otherwise
not entitled to indemnification under this Article X, but the burden of proving
such defense shall be on the Corporation The failure of the Corporation (in the
manner provided under this Article X and the General Corporation Law of the
State of Delaware) to have made a determination prior to or after the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in this Article X and the General Corporation Law of the State of
Delaware shall not be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct. Unless otherwise
specified in an agreement with the claimant, an actual determination by the
Corporation (in the manner provided under this Article X and the General
Corporation Law of the State of Delaware) after the commencement of such action
that the claimant has not met such applicable standard of conduct shall not be a
defense to the action, but shall create a presumption that the claimant has not
met the applicable standard of conduct.
SECTION 8. INSURANCE. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, partner, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of this
Article.
ARTICLE XI
AMENDMENT
Except as otherwise provided herein, these By-laws may be altered,
amended or repealed or new by-laws may be adopted by the shareholders or by the
Board of Directors at any regular meeting of the shareholders or of the Board of
Directors or at any special meeting of the shareholders or of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such meeting; provided, HOWEVER, that in
the case of amendments by shareholders, notwithstanding any other provisions of
these By-laws or any other provision of law which might otherwise permit a
lesser vote or no vote, but in addition to any affirmative vote of the holders
of any particular class or series of the capital stock required by law, the
Amended and Restated Certificate of Incorporation or these By-laws, the
affirmative vote of the holders of at least 66 2/3% of all then outstanding
shares of voting stock of the Corporation, voting together as a single class,
shall be required to alter, amend or repeal any provision of these By-laws;
PROVIDED, FURTHER, HOWEVER, that any amendment or repeal of any provision of
Section 12 of Article II of these By-laws by the shareholders shall require the
affirmative vote of the holders of at least a majority of all then outstanding
shares of Class A Common Stock, voting as a single class, and Class B Common
Stock, voting as a single class.
ARTICLE XII
DEFINITIONS
The following terms used herein shall the meanings specified below.
"Creditor Directors" shall mean the Creditor Directors and the
Replacement Directors as such terms are defined in Section 4.15 of the
Deferrable Interest Notes Indenture.
"Deferrable Interest Notes" shall mean the 10% Secured Deferrable
Interest Notes due 2005 issued by the Corporation pursuant to the Plan under the
Deferrable Interest Notes Indenture.
"Deferrable Interest Notes Indenture" means the Indenture among the
Corporation, as Issuer, the Subsidiary Guarantors named therein and United
States Trust Company of New York, as trustee, which indenture relates to the
Deferrable Interest Notes, as it may be amended, modified or supplemented from
time to time.
"New Money Investors" means certain persons or entities that have
agreed to purchase for an aggregate purchase price of $30 million to acquire
7,000,000 shares of Class B Common Stock in accordance with the terms of the
Plan.
"Plan" means the Joint Plan of Reorganization proposed by the
Corporation and certain of its subsidiaries, as it may be amended or modified
from time to time, and as confirmed by Order dated January 20, 2000 by the
United States Bankruptcy Court for the District of Delaware.
"Voting Agreement" means that certain Voting Agreement dated as of
February __, 2000 by and among the New Money Investors and the Corporation.
Exhibit T3C-1
================================================================================
Draft
PLANET HOLLYWOOD INTERNATIONAL, INC.,
as Issuer,
THE SUBSIDIARY GUARANTORS
NAMED HEREIN,
as Subsidiary Guarantors,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
10% Secured Deferrable Interest Notes Due 2005
INDENTURE
Dated as of March __, 2000
===============================================================================
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1. Definitions and Incorporation by Reference
SECTION 1.1. Definitions............................................ 1
SECTION 1.2. Other Definitions......................................16
SECTION 1.3. Incorporation by Reference of Trust Indenture Act......17
SECTION 1.4. Rules of Construction..................................18
ARTICLE 2. The Notes
SECTION 2.1. Form and Dating........................................18
SECTION 2.2. Execution and Authentication...........................19
SECTION 2.3. Registrar and Paying Agent.............................19
SECTION 2.4. Paying Agent To Hold Money in Trust....................19
SECTION 2.5. Lists of Holders.......................................20
SECTION 2.6. Transfer and Exchange..................................20
SECTION 2.7. Replacement Notes......................................21
SECTION 2.8. Outstanding Notes......................................21
SECTION 2.9. Temporary Notes........................................21
SECTION 2.10. Cancellation..........................................21
SECTION 2.11. Defaulted Interest....................................22
SECTION 2.12. CUSIP Numbers.........................................22
ARTICLE 3. Redemption
SECTION 3.1. Notices to the Trustee.................................22
SECTION 3.2. Selection of Notes To Be Redeemed......................22
SECTION 3.3. Notice of Redemption...................................23
SECTION 3.4. Effect of Notice of Redemption.........................23
SECTION 3.5. Deposit of Redemption Price............................23
SECTION 3.6. Notes Redeemed in Part.................................24
SECTION 3.7. Optional Redemption....................................24
SECTION 3.8. Mandatory Redemption...................................24
ARTICLE 4. Covenants
SECTION 4.1. Payment of Notes.......................................24
SECTION 4.2. SEC Reports............................................25
SECTION 4.3. Limitation on Consolidated Debt........................25
SECTION 4.4. Future Guarantors......................................27
SECTION 4.5. Limitation on Restricted Payments......................27
SECTION 4.6. Dividend and other Payment Restrictions
Affecting Subsidiaries.................................27
SECTION 4.7. Asset Dispositions.....................................29
SECTION 4.8. Transactions with Affiliates...........................30
SECTION 4.9. Limitation on Issuances and Sales of Capital,
Stock of Restricted Subsidiaries.......................30
SECTION 4.10. Change of Control.....................................31
SECTION 4.11. Limitation on Liens...................................32
SECTION 4.12. Business Activities...................................34
SECTION 4.13. Maintenance of Insurance..............................34
SECTION 4.14. Compliance Certificates; Statement by Officers
as to Default.........................................34
SECTION 4.15. Creditor Directors....................................34
SECTION 4.16. Voting Agreement Among Stockholders...................37
SECTION 4.17. Foreign Subsidiaries..................................37
SECTION 4.18. Further Instruments and Acts..........................35
SECTION 4.19. Calculation of Original Issue Discount.................35
ARTICLE 5. Successor Company
SECTION 5.1. When Company May Merge or Transfer Assets..............35
ARTICLE 6. Defaults and Remedies
SECTION 6.1. Events of Default......................................36
SECTION 6.2. Acceleration...........................................38
SECTION 6.3. Other Remedies.........................................38
SECTION 6.4. Waiver of Past Defaults................................38
SECTION 6.5. Control by Majority....................................39
SECTION 6.6. Limitation on Suits....................................39
SECTION 6.7. Rights of Holders To Receive Payment...................39
SECTION 6.8. Collection Suit by Trustee.............................39
SECTION 6.9. Trustee May File Proofs of Claim.......................40
SECTION 6.10. Priorities............................................40
SECTION 6.11. Undertaking for Costs.................................40
SECTION 6.12. Waiver of Stay or Extension Laws......................40
SECTION 6.13. Actions of a Holder...................................41
ARTICLE 7. Trustee
SECTION 7.1. Duties of Trustee......................................41
SECTION 7.2. Rights of Trustee......................................42
SECTION 7.3. Individual Rights of Trustee...........................43
SECTION 7.4. Trustee's Disclaimer...................................43
SECTION 7.5. Notice of Defaults.....................................43
SECTION 7.6. Reports by Trustee to Holders..........................43
SECTION 7.7. Compensation and Indemnity.............................43
SECTION 7.8. Replacement of Trustee.................................44
SECTION 7.9. Successor Trustee by Merger............................45
SECTION 7.10. Eligibility; Disqualification.........................45
SECTION 7.11. Preferential Collection of Claims Against Company.....45
ARTICLE 8. Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Notes; Defeasance............45
SECTION 8.2. Conditions to Defeasance...............................46
SECTION 8.3. Application of Trust Money.............................47
SECTION 8.4. Repayment to Company...................................48
SECTION 8.5. Indemnity for Government Obligations...................48
SECTION 8.6. Reinstatement..........................................48
ARTICLE 9. Amendments
SECTION 9.1. Without Consent of Holders.............................48
SECTION 9.2. With Consent of Holders................................49
SECTION 9.3. Compliance with Trust Indenture Act....................49
SECTION 9.4. Revocation and Effect of Consents and Waivers..........50
SECTION 9.5. Notation on or Exchange of Notes.......................50
SECTION 9.6. Trustee To Sign Such Amendments........................50
SECTION 9.7. Payment for Consent....................................50
ARTICLE 10. Security
SECTION 10.1. Security Documents....................................51
SECTION 10.2. Opinions of Counsel...................................51
SECTION 10.3. Release and Substitution of Collateral................52
SECTION 10.4. Certificates of the Company...........................52
SECTION 10.5. Authorization of Actions to be Taken by the Trustee
Under the Security Documents..........................53
SECTION 10.6. Authorization of Receipt of Funds by the Trustee
Under the Security Documents..........................53
SECTION 10.7. Release upon Termination of the Obligations...........53
ARTICLE 11. Subsidiary Guarantees
SECTION 11.1. Guarantees............................................54
SECTION 11.2. Limitation on Liability...............................55
SECTION 11.3. Successors and Assigns................................55
SECTION 11.4. No Waiver.............................................55
SECTION 11.5. Modification..........................................56
SECTION 11.6. Release of Subsidiary Guarantor.......................56
ARTICLE 12. Miscellaneous
SECTION 12.1. Trust Indenture Act Controls..........................56
SECTION 12.2. Notices...............................................58
SECTION 12.3. Communication by Holders with Other Holders...........57
SECTION 12.4. Certificate and opinion as to Conditions Precedent....57
SECTION 12.5. Statements Required in Certificate or Opinion.........57
SECTION 12.6. When Notes Disregarded................................57
SECTION 12.7. Rules by Trustee, Paying Agent and Registrar..........58
SECTION 12.8. Legal Holidays........................................58
SECTION 12.9. Governing Law.........................................58
SECTION 12.10. No Recourse Against Others...........................58
SECTION 12.11. Successors...........................................58
SECTION 12.12. Multiple Originals...................................58
SECTION 12.13. Table of Contents; Headings..........................58
Exhibit A Form of Note
Exhibit B Form of Guarantor Security Agreement
Exhibit C Form of Intercreditor Agreement
Exhibit D Form of Mortgage
Exhibit E Form of Pledge Agreement
Exhibit F Form of Security Agreement
Exhibit G Form of TSP Pledge Agreement
Exhibit F Form of Officers Certificate for Release of Mortgage on Retail
Unit
Exhibit G Form of Opinion for Release of Mortgage on Retail Unit
<PAGE>
CROSS-REFERENCE TABLE
TIA Indenture
SECTION SECTION
310 (a)(1)......................................................... 7.10
(a)(2)......................................................... 7.10
(a)(3)......................................................... N.A.
(a)(4)......................................................... N.A.
(b)............................................................ 7.8;7.10
(c)............................................................ N.A.
311 (a)............................................................ 7.11
(b)............................................................ 7.11
(c)............................................................ N.A.
312 (a)............................................................ 2.5
(b)............................................................ 12.3
(c)............................................................ 12.3
313 (a)............................................................ 7.6
(b)(1)......................................................... N.A.
(b)(2)......................................................... 7.6
(c)............................................................ 7.6
(d)............................................................ 7.6
314 (a)............................................................ 12.2
(b)............................................................ 10.4
(c)(1)......................................................... 12.4
(c)(2)......................................................... 12.4
(c)(3)......................................................... N.A.
(d)............................................................ 10.2
(e)............................................................ 12.5
315 (a)............................................................ 7.1
(b)............................................................ 7.5;12.2
(c)............................................................ 7.1
(d)............................................................ 7.1;7.2
(e)............................................................ 6.11
316 (a)(last sentence)............................................. 12.6
(a)(1)(A)...................................................... 6.5
(a)(1)(B)...................................................... 6.4
(a)(2)......................................................... N.A.
(b)............................................................ 6.7
317 (a)(1)......................................................... 6.8
(a)(2)......................................................... 6.9
(b)............................................................ 2.4
318 (a)............................................................ 12.1
N.A. means Not Applicable.
- ------------------
Note: This Cross-Reference Table shall not, for any purpose be deemed to be
part of this Indenture.
<PAGE>
INDENTURE dated as of March __, 2000, among PLANET HOLLYWOOD
INTERNATIONAL, INC., a Delaware corporation ("PLANET HOLLYWOOD" and the
"COMPANY"), the parties whose names and signatures appear on the signature pages
hereto under the heading "Subsidiary Guarantors" (collectively, the "SUBSIDIARY
GUARANTORS") and UNITED STATES TRUST COMPANY OF NEW YORK, a New York banking
corporation (the "TRUSTEE").
Each party hereto agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders.
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"ACQUIRED DEBT" means, with respect to any specified Person, (i) Debt
of any other Person existing at the time such Person merges with or into or
consolidates with or becomes a Restricted Subsidiary of such specified Person
and (ii) Debt secured by a Lien encumbering any asset acquired by such specified
Person, which Debt or Lien was not Incurred in anticipation of, and was
outstanding prior to, such merger, consolidation or acquisition.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; PROVIDED, HOWEVER,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control. The terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"AGGREGATE ASSET DISPOSITION PROCEEDS" means from and after the Issue
Date the Aggregate Net available Proceeds from all Asset Dispositions.
"ASSET DISPOSITION" means any transfer, conveyance, sale, lease or
other disposition (collectively, any "DISPOSITION") by the Company or any
Restricted Subsidiary (including any disposition by means of a consolidation,
merger or similar transaction or as a result of any Condemnation) other than (a)
dispositions in the ordinary course of business (including dispositions of
Memorabilia in the ordinary course of business and dispositions of obsolete or
worn-out property), (b) a disposition of all or any portion of the Retail Unit
in accordance with the Senior Secured Note Purchase Agreement, (c) dispositions
of Orlando Allstar Cafe owned by All Star Cafe (New York), Inc., the Dublin,
Ireland location owned by Rivermist Limited, the Munich, Germany location owned
by Movie Restaurant GmbH & Co. KG and Planet Hollywood at 57th Street in New
York, New York owned by Planet Hollywood New York, Ltd., (d) a disposition by a
Restricted Subsidiary to the Company or a Restricted Subsidiary or by the
Company to a Restricted Subsidiary of (i) shares of Capital Stock or other
ownership interests of a Restricted Subsidiary, (ii) all or substantially all of
the assets of the Company or any Restricted Subsidiary representing a division
or line of business or (iii) other assets or rights of such Person or any of its
Restricted Subsidiaries, (e) a Restricted Payment which is permitted pursuant to
Section 4.5 or (f) a disposition that is subject to the provisions set forth in
Section 5.1(a).
"ATTRIBUTABLE DEBT" in respect of a Sale and Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Notes, compounded annually) of the total obligations
of the lessee for rental payments during the remaining term of the lease
included in such Sale and Leaseback Transaction (including any period for which
such lease has been extended).
"AVERAGE LIFE" means, as of the date of determination with respect to
any Debt or Preferred Stock, the quotient obtained by dividing (i) the sum of
the products of the numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such Debt or redemption or
similar payment with respect to such Preferred Stock multiplied by the amount of
such payment by (ii) the sum of all such payments.
"BANK CREDIT AGREEMENT" means any one or more credit agreements (which
may include or consist of revolving credits) between the Company or any
Restricted Subsidiary and one or more banks or other financial institutions
providing financing for the business of the Company and its Restricted
Subsidiaries, including without limitation the Revolving Credit Agreement and
the Senior Secured Note Purchase Agreement.
"BANKRUPTCY COURT" means the United States District Court for the
District of Delaware, presiding over the Chapter 11 cases of the Company and
certain of its Subsidiaries and Affiliates.
"BUILDING" means the building situated on the Hotel/Retail Property.
"BUSINESS DAY" means each day which is not a Legal Holiday.
"CAPITAL LEASE OBLIGATION" of any Person means an obligation that is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with GAAP (a "CAPITAL
LEASE"). The amount of such Debt represented by such obligation shall be the
capitalized amount thereof that would appear on the face of a balance sheet of
such Person in accordance with GAAP.
"CAPITAL STOCK" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person and shall (i) include any preferred equivalent
obligations and (ii) exclude debt securities convertible into Capital Stock.
"CHANGE OF CONTROL" means:
(i) the sale, lease or transfer, in one transaction or a series
of related transactions, of all or substantially all the assets of the
Company and the Restricted Subsidiaries taken as a whole, except as
permitted by the proviso to Section 5.1; or
(ii) the adoption of a plan relating to the liquidation or
dissolution of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" means any assets of the Company or any of its
Subsidiaries defined as "COLLATERAL" in any of the Security Documents and assets
from time to time in which a Lien exists as security for any of the Obligations
under this Indenture.
"COLLATERAL AGENT" means United States Trust Company of New York,
acting in its capacity as agent with respect to the Collateral under the
Security Documents.
"COMMISSION" means the Securities and Exchange Commission and any
survivor agency.
"CONDEMNATION" means any actual or threatened condemnation, taking or
exercise of the power of eminent domain or similar action or proceeding.
"CONSOLIDATED EBITDA" for any period means the Consolidated Net Income
of the Company and its Restricted Subsidiaries for such period PLUS the
following (to the extent deducted in calculating such Consolidated Net Income):
(i) Consolidated Interest Expense of the Company and its
Restricted Subsidiaries for such period,
(ii) Consolidated Income Tax Expense of the Company and its
Restricted Subsidiaries for such period,
(iii) the consolidated depreciation and amortization expense
included in the income statement of the Company and its Restricted
Subsidiaries for such period, and
(iv) any non-cash expense related to the issuance to employees of
the Company or any Restricted Subsidiary of the Company of options to
purchase Capital Stock of the Company or such Restricted Subsidiary;
PROVIDED, HOWEVER, that if Consolidated EBITDA for any period shall be less than
$1.00, Consolidated EBITDA for such period shall be deemed to be $1.00.
"CONSOLIDATED INCOME TAX EXPENSES" for any period means the
consolidated provision for income taxes of the Company and the Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the
consolidated interest expense included in a consolidated income statement
(excluding interest income) of the Company and the Restricted Subsidiaries for
such period calculated on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the consolidated net
income (or loss) of the Company and the Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; PROVIDED, HOWEVER,
that there shall be excluded therefrom:
(i) the net income (or loss) of any Person acquired by the
Company or a Restricted Subsidiary in a pooling-of-interests
transaction for any period prior to the date of such transaction,
(ii) the net income (and loss) of any Person that is not a
Restricted Subsidiary except to the extent of the amount of dividends
or other distributions actually paid to the Company or a Restricted
Subsidiary by such Person during such period,
(iii) all extraordinary gains and losses (including from Asset
Dispositions),
(iv) the cumulative effect of changes in accounting principles,
(v) non-cash gains or losses resulting from fluctuations in
currency exchange rates,
(vi) any non-cash gain or loss realized on the termination of any
employee pension benefit plan and
(vii) the tax effect of any of the items described in clauses (i)
through (vii) above;
PROVIDED FURTHER, HOWEVER, that for purposes of any determination pursuant to
the provisions of Section 4.5, there shall further be excluded therefrom the net
income of any Restricted Subsidiary that is subject to a restriction which
prevents the payment of dividends or the making of distributions to the Company
or another Restricted Subsidiary of the Company to the extent of such
restriction.
"CONSOLIDATED NET WORTH" of any Person means the consolidated
stockholders, equity of such Person, determined on a consolidated basis in
accordance with GAAP, LESS amounts attributable to Disqualified Stock of such
Person; PROVIDED, HOWEVER, that, with respect to the Company, adjustments
following the date of this Indenture to the accounting books and records of the
Company in accordance with Accounting Principles Board Opinions Nos. 16 and 17
(or successor opinions thereto) or otherwise resulting from the acquisition of
control of the Company by another Person shall not be given effect to.
"CORE ASSET" means any of the following assets: [list of all core
assets to come.]
"DEBT" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent,
(i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including any such
obligations Incurred in connection with the acquisition of property,
assets or businesses,
(iii) every reimbursement obligation of such Person with respect
to letters of credit, bankers, acceptances or similar facilities
issued for the account of such Person,
(iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith),
(v) every Capital Lease Obligation of such Person,
(vi) all Receivables Sales of such Person, together with any
obligation of such Person to pay any discount, interest, fees,
indemnities, penalties, recourse expenses or other amounts in
connection therewith,
(vii) all obligations to redeem Disqualified Stock issued by such
Person,
(viii) all Attributable Debt,
(ix) net obligations under Interest Rate and Currency Protection
Agreements of such Person,
(x) every obligation of the type referred to in clauses (i)
through (ix) of another Person secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the
lesser of the fair market value of such property or assets and the
amount of the obligation so secured and
(xi) every obligation of the type referred to in clauses (i)
through (ix) of another Person and all dividends of another Person the
payment of which, in either case, such Person has Guaranteed.
The "AMOUNT" or "PRINCIPAL AMOUNT" of any Debt at any time of determination as
used herein represented by (a) any Debt issued at a price that is less than the
principal amount at maturity thereof, shall be the amount of the liability in
respect thereof determined in accordance with GAAP, (b) any Receivables Sales
shall be the amount of the unrecovered capital or principal investment of the
purchaser (other than the Company or a Wholly-Owned Restricted Subsidiary)
thereof, excluding amounts representative of yield or interest earned on such
investment, (c) any Disqualified Stock, shall be the maximum fixed redemption or
repurchase price in respect thereof, (d) any Capital Lease Obligation, shall be
determined in accordance with the definition thereof and (e) any Permitted
Interest Rate or Currency Protection Agreement shall be zero. In no event shall
Debt include any liability for taxes. For purposes of determining any particular
amount of Debt, Guarantees or Liens with respect to letters of credit supporting
Debt otherwise included in the determination of a particular amount shall not be
included.
"DECLARATION OF EASEMENTS" means the Declaration of Easements, dated
as of December 3, 1997 between TSP and Atlantic Financial Group Ltd., as the
same may be amended or modified from time to time.
"DEFAULT" means an event that is, or after the passing of time or the
giving of notice or both would be, an Event of Default.
"DEFEASANCE OBLIGATIONS" means Government Securities (or certificates
representing an ownership interest in such Government Obligations) which are not
callable or redeemable at the issuer's option.
"DISQUALIFIED STOCK" of any Person means any Capital Stock of such
Person which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
first anniversary of the final Stated Maturity of the Notes; PROVIDED, HOWEVER,
that any Preferred Stock which would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require the Company to
repurchase or redeem such Preferred Stock upon the occurrence of a change of
control occurring prior to the first anniversary of the final Stated Maturity of
the Notes shall not constitute Disqualified Stock if the change of control
provisions applicable to such Preferred Stock are no more favorable to the
holders of such Preferred Stock than the provisions applicable to the Notes
contained in Section 4.10 and such Preferred Stock specifically provides that
the Company will not repurchase or redeem any such stock pursuant to such
provisions prior to the Company's repurchase of such Notes as are required to be
repurchased pursuant to Section 4.10.
"ELIGIBLE INSTITUTION" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated "A-311 or higher or "A--" or higher
according to Moody's Investors Service, Inc. or Standard & Poor's Ratings Group
(or such similar equivalent rating by at least one "NATIONALLY RECOGNIZED
STATISTICAL RATING ORGANIZATION" (as defined in Rule 436 under the Securities
Act)) respectively, at the time as of which any investment or rollover therein
is made.
"EQUITY OFFERING" means any offering of common stock of the Company in
an underwritten sale to the public pursuant to a registration statement (other
than on Form S-8 or any other form relating to securities issuable under any
benefit plan of the Company) that is declared effective by the Commission.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
(or any successor act) and the rules and regulations thereunder.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Company that is
organized in a jurisdiction outside of the United States of America.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the relevant date, including those set
forth in (i) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the Commission
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which obligations
or guarantee the full faith and credit of the United States is pledged.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person, (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purposes of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "GUARANTEED", "GUARANTEEING" and "GUARANTOR" shall have meanings
correlative to the foregoing); PROVIDED, HOWEVER, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"GUARANTOR SECURITY AGREEMENT" means the Guarantor Security Agreement,
dated as of March __, 2000, made by the Subsidiary Guarantors in favor of the
Collateral Agent as secured party thereunder, as the same may be amended,
supplemented or otherwise modified from time to time, and which shall be
substantially in the form of Exhibit B attached hereto.
"HOLDERS" means the registered holders from time to time of the Notes.
"HOSPITALITY" shall mean Planet Hospitality Holdings, Inc.
"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.
"IMPROVEMENTS AGREEMENT" means the Improvements Agreement, dated as of
December 3, 1997, among TSP, Atlantic Financial Group, Ltd. and Planet Hollywood
(Region III), Inc., as the same may be amended from time to time.
"INCUR" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
including by acquisition of Subsidiaries or the recording, as required pursuant
to GAAP or otherwise, of any such Debt or other obligation on the balance sheet
of such Person (and "INCURRENCE", "Incurred" and "Incurring" shall have the
meanings correlative to the foregoing); PROVIDED, HOWEVER, that a change in GAAP
that results in an obligation of such Person that exists at such time becoming
Debt shall not be deemed an Incurrence of such Debt and that neither the accrual
of interest nor the accretion of original issue discount shall be deemed an
Incurrence of Debt. Notwithstanding the foregoing, the Company may elect to
treat all or any portion of revolving credit debt of the Company or a Subsidiary
as being Incurred from and after any date beginning the date the revolving
credit commitment is extended to the Company or a Subsidiary, by furnishing
notice thereof to the Trustee, and any borrowings or reborrowings by the Company
or a Subsidiary under such commitment up to the amount of such commitment
designated by the Company as Incurred shall not be deemed to be new Incurrence
of Debt by the Company or such Subsidiary; PROVIDED, HOWEVER, that the undrawn
portion of any such revolving credit debt shall be deemed to be outstanding Debt
until such time as the commitment thereunder is terminated. Neither the accrual
of interest nor the accretion of principal of a non-interest bearing or other
discount or deferrable security shall be deemed the Incurrence of Debt.
"INDENTURE" means this Indenture as the same may be amended,
supplemented or otherwise modified from time to time.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
judgment of the Board of Directors of the Company, qualified to perform the task
for which it has been engaged and disinterested and independent with respect to
the Company and its Subsidiaries and Affiliates.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement dated as
of the Issue Date by and among the Company, the Revolving Credit Agent, the
Senior Secured Notes Agent and the Trustee that shall set forth the relative
rights of the parties in respect of the shared collateral and security interests
granted by the Company and the Subsidiary Guarantors to such parties, as the
same may be amended, supplemented or otherwise modified from time to time, and
which shall be substantially in the form of Exhibit C attached hereto.
"INTEREST PAYMENT DATE" means _______________.
"INTEREST RATE OR CURRENCY PROTECTION AGREEMENT" of any Person means
any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates or currency exchange rates or indices.
"INVESTMENT" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other property to others or payments for property or services for the
account or use of others, or otherwise) to, or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by, any other Person, including any payment on a Guarantee of any
obligation of such other Person, but excluding any loan, advance or extension of
credit to an employee of the Company or any Restricted Subsidiary in the
ordinary course of business, accounts receivables and other commercially
reasonable extensions of trade credit.
"ISSUE DATE" means the date on which the Notes are first issued and
delivered.
"JOINT VENTURE" means (i) [Planet Movies], (ii) [Planet Hollywood
Asia], (iii) [the dot com entity], (iv) [list all other the joint ventures in
which Company has an equity stake in excess of 50%], and (v) any joint venture
in which the Company or any Restricted Subsidiary does not have both a majority
ownership interest therein and the power to direct the policies, management and
affairs thereof.
"LENDERS" means each of the institutions a party to and acting as
lenders under the Revolving Credit Agreement.
"LICENSE AGREEMENT" means the License Agreement dated as of December
3, 1997, among the Company, Planet Hollywood (Region IV), Inc., Planet Hollywood
(Region III), Inc. and TSP, as the same may be amended from time to time.
"LIEN" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing or any
Sale and Leaseback Transaction).
"MASTER AGREEMENT" means the Master Agreement dated as of December 2,
1997, among TSP, Hospitality, Intell Times Square LLC, Madison Broadway
Associates LLC, SPE Times Square, Inc. and Ned White, as the same may be amended
from time to time.
"MEMORABILIA" means all memorabilia, collectibles, souvenirs,
keepsakes or any other tangible property owned by the Company or any Subsidiary
Guarantor the market value of which is to any extent derived from the
association with (i) a celebrity, entertainer or athlete or any other person
reasonably understood to be a celebrity, entertainer or athlete or (ii) any
motion picture, television program, series of television programs or sports or
entertainment event.
"MORTGAGE" means that certain Mortgage, Security Agreement, Assignment
of Rents and Leases and Fixture Filing dated as of March __, 2000 made by [New
1567 Broadway SPV, Inc.] in favor of the Collateral Agent for the benefit of the
Holders, as the same may be amended, modified or supplemented from time to time,
and which shall be substantially in the form of Exhibit D attached hereto.
"NET AVAILABLE PROCEEDS" from any Asset Disposition by any Person
means cash or Permitted Short-Term Investments received (including by way of
sale or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Debt or other obligations relating to such properties or assets)
therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred and all federal,
state, provincial, foreign and local taxes (including taxes payable upon payment
or other distribution of funds from a foreign subsidiary to the Company or
another Subsidiary of the Company) required to be accrued as a liability as a
consequence of such Asset Disposition, (ii) all payments made by such Person or
its Restricted Subsidiaries on any Debt which is secured by such assets in
accordance with the terms of any Lien upon or with respect to such assets or
which must by the terms of such Lien, or in order to obtain a necessary consent
to such Asset Disposition or by applicable law, be repaid out of the proceeds
from such Asset Disposition, (iii) all distributions and other payments made to
minority interest holders in Restricted Subsidiaries of such Person or Joint
Ventures as a result of such Asset Disposition, (iv) appropriate amounts to be
provided by such Person or any Restricted Subsidiary thereof, as the case may
be, as a reserve in accordance with GAAP against any liabilities associated with
such assets and retained by such Person or any Restricted Subsidiary thereof, as
the case may be, after such Asset Disposition, including, without limitation,
liabilities under any indemnification obligations and severance and other
employee termination costs associated with such Asset Disposition, in each case
as determined by the Board of Directors of the Company, in its reasonable good
faith judgment evidenced by a board resolution filed with the Trustee; PROVIDED,
HOWEVER, that any reduction in such reserve within twelve months following the
consummation of such Asset Disposition will be treated for all purposes of this
Indenture and the Notes as a new Asset Disposition at the time of such reduction
with Net Available Proceeds equal to the amount of such reduction, and (v) any
consideration for an Asset Disposition (which would otherwise constitute Net
Available Proceeds) that is required to be held in escrow pending determination
of whether a purchase price adjustment will be made, but amounts under this
clause (v) shall become Net Available Proceeds at such time and to the extent
such amounts are released to such Person.
"NET CASH PROCEEDS", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"NON-RECOURSE DEBT" means Debt:
(i) as to which neither the Company nor any Restricted
Subsidiary:
(a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Debt);
(b) is directly or indirectly liable (as a guarantor or
otherwise); or
(c) constitutes the lender;
(ii) no default with respect to which (including any rights that
the holders thereof may have to take enforcement action against the
Company or any Unrestricted Subsidiary) would permit (upon notice,
lapse of time or both) any holder of any other Debt of the Company or
any Restricted Subsidiary to declare a default on such other Debt or
cause the payment thereof to be accelerated or payable prior to its
stated maturity; and
(iii) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of the Company
or any of its Restricted Subsidiaries.
"NOTES" means the Notes issued under this Indenture.
"OFFER TO PURCHASE" means a written offer (the "OFFER") sent by the
Company by first class mail, postage prepaid, to each holder at his address
appearing in the Notes register on the date of the Offer offering to purchase up
to the principal amount of Notes specified in such offer at the purchase price
specified in such offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "EXPIRATION DATE") of the offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such offer and a settlement date for purchase of Notes
within five Business Days after the Expiration Date. The Company shall notify
the Trustee at least 15 Business Days (or such shorter period as is acceptable
to the Trustee) prior to the mailing of the Offer of the Company's obligation to
make an Offer to Purchase, and the offer shall be mailed by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company. The Offer shall contain information concerning the business of the
Company and its Subsidiaries which the Company in good faith believes will
enable such holders to make an informed decision with respect to the Offer to
Purchase (which at a minimum will include (i) the most recent annual and
quarterly financial statements and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" contained in the documents
required to be filed with the Trustee pursuant to this Indenture (which
requirements may be satisfied by delivery of such documents together with the
offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to in
clause (i) (including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to Purchase and the events requiring the
Company to make the Offer to Purchase and (iv) any other information required by
applicable law to be included therein). The Offer shall contain all instructions
and materials necessary to enable such holders to tender Notes pursuant to the
Offer to Purchase.
"OFFICER" means the Chairman of the Board, the President, the Chief
Financial Officer, any Vice President, the Treasurer or the Secretary of the
Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of, or counsel to, the
Company or the Trustee.
"PARENT" means, with regard to any Person, any other entity of which
such Person is a Subsidiary.
"PERMITTED INTEREST RATE OR CURRENCY PROTECTION AGREEMENT" of any
Person means any Interest Rate or Currency Protection Agreement entered into
with one or more financial institutions in the ordinary course of business that
is designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby and not for purposes of speculation.
"PERMITTED INVESTMENT" means an Investment by the Company or any
Restricted Subsidiary (i) in any Person as a result of which such Person becomes
a Restricted Subsidiary, (ii) in Permitted Short-Term Investments, (iii) in
Permitted Interest Rate or Currency Protection Agreements, (iv) made as a result
of the receipt of noncash consideration from an Asset Disposition that was made
pursuant to and in compliance with Section 4.7, (v) in TSP as and if required
under the TSP Agreement, (vi) in Joint Ventures using only the net proceeds from
dispositions of existing Joint Ventures of the Company or any Restricted
Subsidiary, (vii) consisting of loans or advances to employees made in the
ordinary course of business not to exceed $250,000 in the aggregate outstanding
at any one time and (viii) in addition to any Investments in Joint Ventures
pursuant to clause (vi) above, in Joint Ventures, Foreign Subsidiaries and
Unrestricted Subsidiaries not to exceed in the aggregate the amounts set forth
below during the indicated periods:
Amount of Permitted Investment in
Period Joint Ventures During such Period
Calendar Year 2000 $2.5 million
Calendar Year 2001 $3 million
Calendar Year 2002 $3 million
Calendar Year 2003 $4 million
Calendar Year 2004 $4 million
January 1, 2005 through Fifth
Anniversary of Issue Date $1 million
"PERMITTED SHORT-TERM INVESTMENTS" means: (i) U.S. dollars, (ii)
Government Securities that mature or are subject to redemption at the option of
the holder not more than one year after the date of acquisition thereof; (iii)
any time deposit account, money market deposit and certificate of deposit
maturing not more than 270 days after the date of acquisition issued by, or
demand deposit in, an Eligible Institution; (iv) commercial paper maturing not
more than 270 days after the date of acquisition issued by a corporation (other
than an Affiliate of the Company) with a rating, at the date of acquisition, of
"P-1" or higher according to Moody's Investors Service, Inc. or "A-1" or higher
according to Standard & Poor's Ratings Group (or such similar equivalent rating
by at least one "NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION" (as
defined in Rule 436 under the Securities Act)); (iv) any banker's acceptances or
money market deposit accounts issued or offered by an Eligible Institution; (vi)
repurchase obligations with a term of not more than 7 days for Government
Securities entered into with an Eligible Institution; and (vii) any fund
investing primarily in investments of the types described in clauses (i) through
(vi) above.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof or any other entity.
"PLAN OF REORGANIZATION" means that certain First Amended Joint Plan
of Reorganization of the Company and certain of its Subsidiaries, dated as of
December 13, 1999, as amended, supplemented or otherwise modified, and as
confirmed by the United States Bankruptcy Court for the District of Delaware on
January 21, 2000.
"PLANET HOLLYWOOD PLANS" means the working drawings and specifications
that Planet Hollywood (Region III), Inc. and Atlantic Financial Group, Ltd. have
prepared or are required to prepare with respect to the Retail Unit as described
in the Improvements Agreement.
"PLEDGE AGREEMENT" shall mean the Pledge Agreement dated as of
March __, 2000 by the Company and Planet Hollywood Memorabilia, Inc. and each
Subsidiary Guarantor that is a pledgor hereunder in favor of the Collateral
Agent for the benefit of the Holders, as amended, modified or supplemented from
time to time, and which shall be substantially in the form of Exhibit E attached
hereto.
"PREFERRED STOCK" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"PRINCIPAL" of a Note means the principal of the Note PLUS the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"RECEIVABLES" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right to payment of money in
respect of the sale of goods or services.
"RECEIVABLES SALE" of any Person means any sale of Receivables of such
Person (pursuant to a purchase facility or otherwise), other than in connection
with a disposition of the business operations of such Person relating thereto or
a disposition of defaulted Receivables for purpose of collection and not as a
financing arrangement.
"REFINANCE" means in respect of any Debt, to refinance, extend, renew,
refund, repay, prepay, redeem, defease or retire, or to issue other Debt in
exchange or replacement for, such Debt. "REFINANCED" and "REFINANCE" shall have
correlative meanings.
"REFINANCING DEBT" means Debt that Refinances any Debt of the Company
or any Restricted Subsidiary existing on the Issue Date or Incurred in
compliance with this Indenture, including Debt that Refinances Refinancing Debt;
PROVIDED, HOWEVER, that:
(i) such Refinancing Debt has a Stated Maturity no earlier than
the Stated Maturity of the Debt being Refinanced,
(ii) such Refinancing Debt has an Average Life at the time such
Refinancing Debt is Incurred that is equal to or greater than the
Average Life of the Debt being Refinanced,
(iii) such Refinancing Debt has an aggregate principal amount (or
if Incurred with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value)
then outstanding or committed (PLUS fees and expenses, including any
premium and defeasance costs) under the Debt being Refinanced;
PROVIDED, HOWEVER, that (A) the aggregate principal amount of all
Refinancing Debt in respect of the Revolving Credit Agreement may be
in an amount not to exceed $25 million, if such Refinancing Debt is
secured by only Receivables, inventory and Memorabilia of the Company
and its Restricted Subsidiaries and (B) the aggregate principal amount
of all Refinancing Debt in respect of the Senior Secured Notes may be
in an amount not to exceed the greater of (x) $22 million plus the
amount of any Origination Fee as defined under the Senior Secured Note
Purchase Agreement that has then become due and payable and (y) $25
million; and
(iv) in the event the Debt being Refinanced constitutes a
Subordinated Obligation, the Refinancing Debt is subordinated to the
Notes to at least the same extent as the Debt being Refinanced;
PROVIDED FURTHER, HOWEVER, that Refinancing Debt shall not include (x) Debt of a
Subsidiary that Refinances Debt of the Company or (y) Debt of the Company or a
Restricted Subsidiary that Refinances Debt of an Unrestricted Subsidiary.
"RELATED PERSON" of any Person means any other Person directly or
indirectly owning (a) 10% or more of the outstanding common equity of such
Person (or, in the case of a Person that is not a corporation, 10% or more of
the equity interest in such Person) or (b) 10% or more of the combined voting
power of the Voting Stock of such Person.
"RESTRICTED PAYMENT" with respect to any Person means:
(i) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including
any payment in connection with any merger or consolidation involving
such Person) or similar payment to the direct or indirect holders of
its Capital Stock (other than dividends or distributions payable
solely in its Capital Stock (other than Disqualified Stock) and
dividends or distributions payable solely to the Company or a
Restricted Subsidiary, and other than pro rata dividends or other
distributions made by a Subsidiary that is not a Wholly-Owned
Restricted Subsidiary to minority stockholders (or owners of an
equivalent interest in the case of a Subsidiary that is an entity
other than a corporation)),
(ii) the purchase, redemption or other acquisition or retirement
for value of any Capital Stock of the Company held by any Person or of
any Capital Stock of a Restricted Subsidiary held by any Affiliate of
the Company (other than a Restricted Subsidiary), including the
exercise of any option to exchange any Capital Stock (other than into
Capital Stock of the Company that is not Disqualified Stock),
(iii) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment of any
Subordinated obligations (other than the purchase, repurchase or other
acquisition of Subordinated obligations purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of acquisition)
or
(iv) the making of any Investment in any Person (other than a
Permitted Investment).
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company, whether
existing on or after the Issue Date, unless such Subsidiary is an Unrestricted
Subsidiary.
"RETAIL UNIT" shall have the meaning set forth in that certain
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 2084, and includes, among other
things, (i) a fee simple interest in certain portions of the Building (i.e.,
most of the first, second and third floors of the Building and certain portions
of the fourth floor and the first floor of the cellar), (ii) an undivided twenty
five percent (25%) fee interest in the general common elements of the Building
(e.g., the underlying land and all shared utility facilities), and (iii) various
access and other easements (including access to the hotel located on the upper
floors of the Building, the general common elements of the Building and the
limited common elements appurtenant to the portions of the Building referenced
in clause (i) above).
"RETAIL UNIT CONTRACT OF SALE" means the Purchase and Sale Agreement,
dated January 4, 2000, between Planet Hollywood (Region III), Inc., as seller,
and Intell 1567 LLC, as purchaser, with respect to the Retail Unit.
"REVOLVING CREDIT AGENT" means the Agent from time to time under the
Revolving Credit Agreement.
"REVOLVING CREDIT AGREEMENT" means the Revolving Credit Agreement
dated March __, 2000 among the Company, Planet Hollywood Memorabilia, Inc.,
the Subsidiary Guarantors, The CIT Group/Business Credit, Inc. and Rothschild
Recovery Fund, L.P., as the same may be amended, supplemented or otherwise
modified from time to time.
"SALE AND LEASEBACK TRANSACTION" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Restricted
Subsidiary transfers such property to a Person and the Company or a Restricted
Subsidiary leases it from such Person.
"SECURITIES ACT" means the Securities Act of 1933, as amended (or any
successor act) and the rules and regulations thereunder.
"SECURITY AGREEMENT" means the Security Agreement, dated as of
March __, 2000, made by the Company in favor of the Collateral Agent as
secured party thereunder, as the same may be amended, supplemented or otherwise
modified from time to time, and which shall be substantially in the form of
Exhibit F attached hereto.
"SECURITY DOCUMENTS" shall mean, collectively, the Security Agreement,
the Guarantor Security Agreement, the Pledge Agreement, the TSP Pledge
Agreement, the Mortgage, each Assignment for Security (Trademarks and
Copyrights), substantially in the form of Exhibit A to the Security Agreement,
executed and delivered by the Company and Planet Hollywood Memorabilia, Inc.,
and all Uniform Commercial Code financing statements required by the Security
Agreement and the Mortgage to be filed with respect to the security interests in
personal property and fixtures created pursuant to such agreements, and all
other documents and agreements executed and delivered by the Company and Planet
Hollywood Memorabilia, Inc. and/or their respective Subsidiaries in connection
with any of the foregoing documents.
"SENIOR SECURED NOTES" means the Company's Senior Secured Notes Due
2001.
"SENIOR SECURED NOTES AGENT" means Wilmington Trust Company, together
with its successors and assigns in such capacity.
"SENIOR SECURED NOTES COLLATERAL" means the Retail Unit, the TSP
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
Plans.
"SENIOR SECURED NOTE PURCHASE AGREEMENT" means the Note Purchase
Agreement dated as of March __, 2000 among the Company, each of the
purchasers signatory thereto and the Senior Secured Notes Agent, as the same may
be amended, supplemented or otherwise modified from time to time.
"SIGNIFICANT SUBSIDIARY" means a Restricted Subsidiary that is a
"SIGNIFICANT SUBSIDIARY" as defined in Rule 1-02(w) of Regulation S-X under the
Securities Act and the Exchange Act.
"STATED MATURITY" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"SUBORDINATED OBLIGATION" means any Debt of the Company (whether
outstanding on the Issue Date or thereafter Incurred) which is subordinate or
junior in right of payment to the Notes pursuant to a written agreement to that
effect.
"SUBSIDIARY" of any Person means (i) a corporation more than 50% of
the combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person or
(ii) any other Person (other than a corporation) in which such Person, or one or
more other Subsidiaries of such Person or such Person and one or more other
Subsidiaries of such Person, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs thereof.
Notwithstanding the foregoing, a Joint Venture shall be not be deemed to be a
Subsidiary of the Company or any Restricted Subsidiary.
"SUBSIDIARY GUARANTEE" means the Guarantee by a Subsidiary Guarantor
of the Company' obligations with respect to the Notes contained in Article 11
hereof.
"SUBSIDIARY GUARANTOR" shall have the meaning set forth in the
Preamble and from and after the Issue date shall include each Restricted
Subsidiary that, pursuant to Section 4.4 or Section 4.17, fully and
unconditionally guarantees, jointly and severally, on a senior basis to each
Holder the Company's payment obligations under this Indenture and the Notes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. H 77aaa-77bbbb)
as in effect on the date of this Indenture, except as provided by Section 9.3.
"TRUST OFFICER" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"TSP" shall mean Times Square Partners LLC.
"TSP AGREEMENT" means the Amended and Restated Limited Liability
Company Operating Agreement of TSP, dated as of December 3, 1997, among Intell
Times Square LLC, Madison Broadway Associates LLC, SPE Times Square, Inc.,
Hospitality and Ned White.
"TSP MEMBERSHIP INTEREST" shall mean the twenty percent (20%) equity
interest in TSP owned by Hospitality.
"TSP PLEDGE AGREEMENT" shall mean the Assignment, Pledge and Security
Agreement dated as of March __, 2000 by Planet Hospitality Holdings, Inc. in
favor of the Collateral Agent for the benefit of the Holders, as the same may be
amended, supplemented or otherwise modified from time to time, and which shall
be substantially in the form of Exhibit G attached hereto.
"UNIFORM COMMERCIAL CODE" means the New York Uniform Commercial Code
as in effect from time to time.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of the Company
designated as such by the Board of Directors of the Company as set forth below
where (a) neither the Company nor any of its other Subsidiaries (other than
another Unrestricted Subsidiary) (1) provides credit support for, or Guarantee
of, any Debt of such Subsidiary or any Subsidiary of such Subsidiary (including
any undertaking, agreement or instrument evidencing such Debt), (2) is directly
or indirectly liable for any Debt of such Subsidiary or any Subsidiary of such
Subsidiary, or (3) has any obligation to make additional Investments in such
Subsidiary or any Subsidiary of such Subsidiary, (b) such Subsidiary has no Debt
other than Non-Recourse Debt; PROVIDED, HOWEVER, that if any Unrestricted
Subsidiary Incurs any Debt other than Non-Recourse Debt or any Non-Recourse Debt
Incurred by such Unrestricted Subsidiary shall thereafter cease for any reason
to be Non-Recourse Debt, such event shall be deemed to constitute an Incurrence
of such Debt by the Company and such Unrestricted Subsidiary shall be deemed to
be a Restricted Subsidiary for purposes of Section 4.4 and (c) such Subsidiary
and each Subsidiary of such Subsidiary has at least one director on its board of
directors that is not a director or executive officer of the Company or any
Restricted Subsidiary and (ii) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary, PROVIDED that, immediately after giving effect to such designation,
the Company could incur an additional $1.00 of Debt pursuant to Section 4.3(a).
"VENDOR FINANCING FACILITY" means (i) any agreements between the
Company and/or any Restricted Subsidiary and one or more vendors or lessors of
the Company and/or any Restricted Subsidiary (or any affiliate of any such
vendor or lessor) providing financing for the acquisition by the Company or any
such Restricted Subsidiary of inventory, equipment or other assets used in the
business of the Company and/or any Restricted Subsidiary and (ii) the existing
agreement between the Company and [name of insurer] providing financing for the
insurance premiums for [describe the insurance policies covered].
"VOTING STOCK" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means a Restricted Subsidiary 99%
or more of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by the
Company or by one or more Wholly-Owned Restricted Subsidiaries of the Company or
by the Company and one or more Wholly-Owned Restricted Subsidiaries of the
Company.
"ZONING LOT AGREEMENT" means 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 or supplemented or otherwise modified from time
to time in accordance with the terms thereof.
SECTION 1.2. OTHER DEFINITIONS.
Defined in
Term Section
"AFFILIATE TRANSACTION"......................................... 4.8
"APPENDIX"...................................................... 2.1
"BANKRUPTCY LAW"................................................ 6.1
"CASH INSURANCE"................................................ 4.13
"COMPANY"....................................................... Preamble
"COVENANT DEFEASANCE OPTION".................................... 8.1(b)
"CREDIT DIRECTORS".............................................. 4.15
"CREDITOR DIRECTOR RE-ELECTION NOTICE".......................... 4.15
"CUSTODIAN"..................................................... 6.1
"DEBT COVERAGE RATIO"........................................... 4.3
"EVENT OF DEFAULT".............................................. 6.1
"HOLDERS NOTICE OF REPLACEMENT CREDITOR DIRECTORS".............. 4.15
"INSURANCE ACCOUNT"............................................. 4.13
"INSURANCE PROCEEDS"............................................ 4.13
"COMPANY"....................................................... Preamble
"LEGAL DEFEASANCE OPTION"....................................... 8.1(b)
"LEGAL HOLIDAY"................................................. 12.8
"MANDATORY REDEMPTION".......................................... 3.8
"NOTES"......................................................... Recital
"NOTICE OF DEFAULT" 6.1
"OBLIGATIONS"................................................... 10.1
"PAYING AGENT".................................................. 2.3
"PERMITTED LIEN"................................................ 4.11
"PLANET HOLLYWOOD".............................................. Preamble
"PROXY STATEMENT"............................................... 4.15
"REGISTRAR"..................................................... 2.3
"REPLACEMENT DIRECTOR".......................................... 4.15
"SUCCESSOR COMPANY"............................................. 5.1
"TRUSTEE"....................................................... Preamble
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. The
provisions of TIA ss.ss. 310 through 317 that impose a duty on any Person
(including the provisions automatically deemed included herein unless expressly
excluded by this Indenture) are a part of and govern this Indenture upon and so
long as the Indenture and Notes are subject to the TIA. If any provision of this
Indenture limits, qualifies or conflicts with such duties, the imposed duties
shall control. If a provision of the TIA requires or permits a provision of this
Indenture and the TIA provision is amended, then the Indenture provision shall
be automatically amended to like effect. The following TIA terms have the
following meanings:
"COMMISSION" means the Commission;
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meanings assigned to them by such definitions.
SECTION 1.4. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "OR" is not exclusive;
(4) "INCLUDING" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Debt shall not be deemed to be subordinate or
junior to secured Debt merely by virtue of its nature as unsecured
Debt;
(7) the principal amount of any noninterest bearing or other
discount or deferrable interest security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP, but accretion
of principal on such security shall not be deemed to be the Incurrence
of Debt;
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to
such Preferred Stock, whichever is greater;
(9) the terms "redemption" and "redeemable" shall not be deemed
to refer to Offers to Purchase or to repurchases pursuant to Section
4.10 or similar offers or repurchases.
ARTICLE 2.
THE NOTES
SECTION 2.1. FORM AND DATING. The Notes and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit A, which is
hereby incorporated in and expressly made a part of this Indenture. The Notes
may have notations, legends or endorsements required by law, stock exchange
rule, agreements to which the Company is subject, if any, or usage (PROVIDED
that any such notation, legend or endorsement is in a form acceptable to the
Company). Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in the Exhibit A are part of the terms of this Indenture.
SECTION 2.2. EXECUTION AND AUTHENTICATION. Two officers shall sign the
Notes for the Company by manual or facsimile signature.
If an officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
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 this
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.
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 this 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.
SECTION 2.3. REGISTRAR AND PAYING AGENT. The Company shall maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange (the "REGISTRAR") and an office or agency where Notes may be
presented for payment (the "PAYING AGENT"). The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Company may have one or
more co-registrars and one or more additional paying agents. The term "PAYING
AGENT" includes any additional paying agent. Whenever the Company must issue or
deliver Notes pursuant to this Indenture, the Trustee shall authenticate the
Notes at the Company's request.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any of its domestically incorporated wholly owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Notes.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST. Prior to each due
date of the principal and interest on any Note, the Company shall deposit with
the Paying Agent a sum sufficient to pay such principal and interest when so
becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Notes and shall notify the Trustee of
any default by the Company in making any such payment. If either Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying with this Section,
the Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.5. LISTS OF HOLDERS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee, in writing at least five Business Days
before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders.
SECTION 2.6. TRANSFER AND EXCHANGE. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note for
registration of transfer. When a Note is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar shall register
the transfer as requested if the requirements of Section 8-401(l) (or any
successor provision thereto) of the Uniform Commercial Code are met. When Notes
are presented to the Registrar or a co-registrar with a request to exchange them
for an equal principal amount of Notes of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met.
To permit registration of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at the Registrar's or
co-registrar's request. The Company may require payment of a sum sufficient to
pay all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section.
The Company shall not be required to make and the Registrar need not
register transfers or exchanges of Notes selected for redemption (except, in the
case of Notes to be redeemed in part, the portion thereof not to be redeemed) or
any Notes for a period of 15 days before a selection of Notes to be redeemed or
15 days before an interest payment date.
Prior to the due presentation for registration of transfer of any
Note, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall be affected by notice to
the contrary.
All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture will evidence the same debt and will be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.7. REPLACEMENT NOTES. If a mutilated Note is surrendered to
the Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 (or any
successor provision thereto) of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements of the Trustee. Such Holder
shall furnish an indemnity bond sufficient in the judgment of the Company and
the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar
and any co-registrar from any loss which any of them may suffer if a Note is
replaced. The Company and the Trustee may charge the Holder for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company.
SECTION 2.8. OUTSTANDING NOTES. 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 this Section as not
outstanding. A Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, then on and
after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
A Note does not cease to be outstanding because the Company or one of
its Affiliates holds such Note; PROVIDED, HOWEVER, that, in determining whether
the Holders of the requisite principal amount at maturity of the outstanding
Notes have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, Notes owned by the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which the
Trustee actually knows to be so owned shall be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not the Company or any
other obligor upon the Notes or any Affiliate of the Company or of such other
obligor.
SECTION 2.9. TEMPORARY NOTES. Until definitive Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Company consider appropriate for temporary
Notes. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes and deliver them in exchange for Temporary
Notes.
SECTION 2.10. CANCELLATION. The Company at any time may deliver Notes
to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel and may,
but shall not be required to, destroy (subject to the record retention
requirements of the Exchange Act) all Notes surrendered for registration of
transfer, exchange, payment or cancellation unless the Company directs the
Trustee to deliver canceled Notes to the Company. The Company may not issue new
Notes to replace securities they have redeemed, paid or delivered to the Trustee
for cancellation.
SECTION 2.11. DEFAULTED INTEREST. If the Company defaults in a payment
of interest on the Notes, the Company shall pay defaulted interest (plus
interest on such defaulted interest to the extent lawful) in any lawful manner.
The Company may pay the defaulted interest to the persons who are Holders on a
subsequent special record date. The Company shall fix or cause to be fixed any
such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail to each Holder a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP NUMBERS. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; PROVIDED,
HOWEVER, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE 3.
REDEMPTION
SECTION 3.1. NOTICES TO THE TRUSTEE. If the Company elects to redeem
Notes pursuant to Sections 3.7 or 3.8 hereof, it shall notify the Trustee in
writing of the redemption date, the principal amount of Notes to be redeemed and
the paragraph of the Notes pursuant to which the redemption will occur.
The Company shall give each notice to the Trustee provided for in this
Section at least 60 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.2. SELECTION OF NOTES TO BE REDEEMED. If less than all the
Notes are to be redeemed at any time, the Trustee shall select the Notes to be
redeemed by a method that complies with the requirements of the principal
national securities exchange, if any, on which the Notes are listed, or if the
Notes are not listed, on a pro rata basis, by lot or by such method as the
Trustee in its sole discretion shall deem to be fair and appropriate and in
accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Trustee shall make the selection from outstanding
Notes not previously called for redemption. The Trustee may select for
redemption portions of the principal of Notes that have denominations larger
than $1,000. Notes and portions of them the Trustee selects shall be in amounts
of $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption. The Trustee shall notify the Company promptly of the Notes or
portions of Notes to be redeemed.
SECTION 3.3. NOTICE OF REDEMPTION. At least 30 days but not more than
60 days before a date for redemption of Notes, the Company shall mail a notice
of redemption by first-class mail to each Holder of Notes to be redeemed at such
Holder's registered address. The notice shall identify the Notes (including
CUSIP number(s), if any) to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Notes are to be redeemed,
the identification and principal amounts of the particular Notes to be
redeemed;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on Notes (or portion
thereof) called for redemption ceases to accrue on and after the
redemption date;
(7) the paragraph of the Notes pursuant to which the Notes called
for redemption are being redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is mailed, Notes called for redemption become due and payable on the redemption
date and at the redemption price stated in the notice. Upon surrender to the
Paying Agent, such Notes shall be paid at the redemption price stated in the
notice, plus accrued interest to the redemption date. Failure to give notice or
any defect in the notice to any Holder shall not affect the validity of the
notice to any other Holder.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE. On or prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest on all
Notes to be redeemed on that date other than Notes or portions of Notes called
for redemption which have been delivered by the Company to the Trustee for
cancellation.
SECTION 3.6. NOTES REDEEMED IN PART. Upon surrender of a Note that is
redeemed in part, the Company shall execute and the Trustee shall authenticate
for the Holder (at the Company's expense) a new Note equal in principal amount
to the unredeemed portion of the Note surrendered.
SECTION 3.7. OPTIONAL REDEMPTION. At any time following the Issue
Date, the Notes will be redeemable, in whole or in part, at the option of the
Company, upon not less than 30 and no more than 60 days' prior notice, on any
_______ __, _______.__, _______ __ or _______ __ of any year at a redemption
price equal to 100% of the principal amount thereof PLUS accrued and unpaid
interest, if any, to the date of redemption.
SECTION 3.8. MANDATORY REDEMPTION. If (i) as reflected in the
Company's financial statements for the most recently completed period of four
fiscal quarters immediately preceding any Interest Payment Date (commencing with
the four-quarter fiscal period ending immediately prior to the first anniversary
of the Issue Date), the ratio of the Company's Consolidated EBITDA to
Consolidated Interest Expense for such four-quarter period is greater than 2.00
to 1.00 and (ii) the sum of the Company's cash on hand at the last day of such
period PLUS the lesser of the borrowing base or the commitments under the
Revolving Credit Agreement exceeds $25,000,000, then the Company shall be
required to use 50% of such excess amount to redeem the Notes, in whole or in
part, on the next Interest Payment Date, at a redemption price equal to 100% of
the principal amount thereof PLUS accrued and unpaid interest, if any, to the
date of redemption (a "MANDATORY REDEMPTION"); PROVIDED, HOWEVER, that the
Company shall not be required to make a Mandatory Redemption if such redemption
is not otherwise permitted under the Revolving Credit Agreement or the Senior
Secured Note Purchase Agreement.
ARTICLE 4.
COVENANTS
SECTION 4.1. PAYMENT OF NOTES. The Company shall promptly pay the
principal of and interest on the Notes on the dates and in the manner provided
in the Notes and in this Indenture. Principal, interest and other amounts due on
the Notes shall be considered paid on the date due if on such date the Trustee
or the Paying Agent holds in accordance with this Indenture money sufficient to
pay all such amounts then due and the Trustee or the Paying Agent is not
prohibited from paying such amounts to the Holders on such date pursuant to the
terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Notes, and shall pay interest on overdue installments
of interest at the same rate to the extent lawful.
Notwithstanding any other provision of this Indenture or the Notes,
the Company shall be entitled to defer and compound to principal the first five
semi-annual installments of interest on the Notes; PROVIDED that (i) to the
extent so deferred and compounded, such installments shall be calculated at the
rate of 12.75% per annum (rather than 10% per annum) and (ii) if, as reflected
in the Company's financial statements for the most recently completed period of
four fiscal quarters (commencing with the first fiscal quarter after the Notes
are initially issued) for which such financial statements are available, the
ratio of the Company's Consolidated EBITDA to Consolidated Interest Expense for
such period is greater than 1.75 to 1.00, the Company shall not be entitled to
defer or compound the next succeeding semi-annual installments of interest
pursuant to the foregoing.
SECTION 4.2. SEC REPORTS. Notwithstanding that the Company may not be,
or may not be required to remain, subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file with the
Commission (unless the Commission will not accept such filing) and provide the
Trustee and Holders with such annual reports and such information, documents and
other reports as are specified in Sections 13 and 15(d) of the Exchange Act and
applicable to a U.S. corporation subject to such Sections, such information,
documents and other reports to be so filed and provided at the times specified
for the filing of such information, documents and reports under such Sections.
The Company will also comply with the other provisions of TIA ss. 314(a).
In addition, for so long as any Notes remain outstanding, the Company
shall furnish to the Holders and to securities analysts and prospective
investors, promptly following their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company,
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.3. LIMITATION ON CONSOLIDATED DEBT. (a) The Company may not,
and may not permit any Restricted Subsidiary to, Incur any Debt; PROVIDED,
HOWEVER, that the Company or any Restricted Subsidiary may Incur Debt so long as
the ratio of (i) the aggregate consolidated principal amount of Debt of the
Company and the Restricted Subsidiaries outstanding as of the most recent
available quarterly or annual balance sheet, after giving pro forma effect to
the Incurrence of such Debt and any other Debt Incurred since such balance sheet
date and the receipt and application of the proceeds thereof to (ii)
Consolidated EBITDA for the four full fiscal quarters ending on the date of such
balance sheet determined on a pro forma basis as if any such Debt had been
Incurred and the proceeds thereof had been applied at the beginning of such four
fiscal quarters, would be less than 3.00 to 1.00 (the "DEBT COVERAGE RATIO").
(b) Notwithstanding the foregoing limitation, the Company and any
Restricted Subsidiary may Incur the following:
(i) Debt Incurred under any one or more Vendor Financing
Facilities;
(ii) Debt under the Revolving Credit Agreement or other
agreements or arrangements to finance working capital requirements of
the Company and any Refinancing Debt in respect of such Debt;
PROVIDED, HOWEVER, at the time of the Incurrence of such Debt and
after giving effect thereto, the aggregate principal amount of all
Debt Incurred pursuant to this clause (ii) and then outstanding shall
not exceed (A) $16.5 million or (B) $25 million, if such Debt is
secured by only Receivables, inventory and Memorabilia of the Company
and the Restricted Subsidiaries;
(iii) Debt represented by the Senior Secured Notes and any
Refinancing Debt in respect of such Debt; PROVIDED, that at the time
of the Incurrence of such Debt and after giving effect thereto, (A)
the aggregate principal amount of all Debt Incurred under the Senior
Secured Notes and then outstanding shall not exceed $22 million plus
the amount of any Origination Fee as defined under the Senior Secured
Note Purchase Agreement that has become due and payable thereunder and
(B) the aggregate principal amount of all Refinancing Debt Incurred
pursuant to this clause (iii) and then outstanding shall not exceed
the greater of (x) $22 million plus the amount of any Origination Fee
as defined under the Senior Secured Note Purchase Agreement that has
then become due and payable and (y) $25 million;
(iv) Debt owed by the Company to any Wholly-Owned Restricted
Subsidiary or Debt owed by any Wholly-Owned Restricted Subsidiary to
the Company or to another Wholly-Owned Restricted Subsidiary;
PROVIDED, HOWEVER, that upon either (x) the transfer or other
disposition by such Wholly-Owned Restricted Subsidiary or the Company
of any Debt so permitted to a Person other than the Company or another
Wholly-Owned Restricted Subsidiary or (y) the issuance (other than
directors, qualifying shares), sale, lease, transfer or other
disposition of shares of Capital Stock (including by consolidation or
merger) of such Wholly-Owned Restricted Subsidiary to a Person other
than the Company or another such Wholly-Owned Restricted Subsidiary,
the provisions of this clause (iii) shall no longer be applicable to
such Debt and such Debt shall be deemed to have been Incurred by the
Company thereof at the time of such issuance, sale, lease, transfer or
other disposition;
(v) Refinancing Debt Incurred to Refinance Debt Incurred pursuant
to the first paragraph of this covenant or pursuant to clause (i),
(vii) or (viii) or this clause (v) of this paragraph;
(vi) Debt consisting of Permitted Interest Rate and Currency
Protection Agreements;
(vii) Debt represented by the Notes;
(viii) Debt (including Capital Lease Obligations) of the Company
or any Restricted Subsidiary financing the purchase, lease or
improvement of property (real or personal) or equipment (whether
through the direct purchase of assets or the Capital Stock of any
Person owning such assets) at the time of the Incurrence of such Debt
and after giving effect thereto, the aggregate amount of all Debt
Incurred pursuant to this clause (viii) and then outstanding shall not
exceed $[10] million;
(ix) Debt consisting of performance and other similar bonds and
reimbursement obligations Incurred in the ordinary course of business
securing the performance of contractual, franchise or license
obligations of the Company or a Restricted Subsidiary, or in respect
of a letter of credit obtained to secure such performance;
(x) Guarantees by the Company or any Restricted Subsidiary of
Debt of debt of any Joint Venture of the Company or any Restricted
Subsidiary, PROVIDED that such Guarantees are unsecured and expressly
subordinated to the prior payment in full in cash of all Obligations
with respect to the Notes and this Indenture; and
(xi) other Debt of the Company or any Restricted Subsidiary that
is unsecured and expressly subordinated to the prior payment in full
in cash of all Obligations with respect to the Notes and this
Indenture.
(c) For purposes of determining compliance with this Section 4.3, in
the event that an item of Debt meets the criteria of more than one of the types
of Debt the Company and the Restricted Subsidiaries are permitted to Incur, the
Company or such Restricted Subsidiary, as the case may be, shall have the right,
in its sole discretion, to classify such item of Debt at the time of its
Incurrence and shall only be required to include the amount and type of such
Debt under the clause permitting the Debt as so classified.
SECTION 4.4. FUTURE GUARANTORS. In the event that, after the Issue
Date, the Company shall acquire or create a Subsidiary, the Company shall cause
such Subsidiary (unless such Subsidiary is a Foreign Subsidiary or an
Unrestricted Subsidiary) to become a Subsidiary Guarantor and to Guarantee the
Notes pursuant to a Subsidiary Guarantee.
SECTION 4.5. LIMITATION ON RESTRICTED PAYMENTS. (a) The Company may
not, and may not permit any Restricted Subsidiary, directly or indirectly, to
make a Restricted Payment. Notwithstanding the foregoing, the Company may (i)
Refinance, and permit its Restricted Subsidiaries to Refinance, any Debt
otherwise permitted to be Refinanced by clause (v) of Section 4.3(b); and (ii)
make any Restricted Payment by exchange for, or out of the proceeds of the sale
of, or capital contribution in respect of, Capital Stock of the Company (other
than Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary of the Company or an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the benefit of their
employees) occurring within 150 days prior to such Restricted Payment.
(b) Notwithstanding the foregoing, the Company may, and may permit any
Restricted Subsidiary, directly or indirectly, to make an Investment if at the
time the Company or such Restricted Subsidiary makes such Investment:
(1) a Default shall not have occurred and be continuing (or would
not result therefrom);
(2) the Company is able to Incur an additional $1.00 of Debt
pursuant to Section 4.3(a); and
(3) the aggregate amount of such Investment and all other
Investments made pursuant to this Section 4.5(b) since the Issue Date
would not exceed the sum of:
(A) ___% of the Consolidated Net Income of the Company
accrued during the period (treated as one accounting period) from
the beginning of the fiscal quarter immediately following the
fiscal quarter which the Issue Date occurs to the end of the most
recent fiscal quarter for which internal financial statements are
available at the time of such Investment (or, in case such
Consolidated Net Income shall be a deficit, MINUS ___% of such
deficit);
(B) the aggregate Net Cash Proceeds received by the Company
from the issuance or sale of its Capital Stock (other than a
Disqualified Stock) subsequent to the Issue Date (other than an
issuance or sale to a Subsidiary of the Company and other than
an issuance or sale to an employee stock ownership plan or to a
trust established by the Company or any of its Subsidiaries for
the benefit of its employees) less any Net Cash Proceeds used to
make Restricted Payments pursuant to Section 4.5(a);
(C) the amount by which Debt of the Company is reduced on
the balance sheet of the Company upon the conversion or exchange
(other than by a Subsidiary of the Company) subsequent to the
Issue Date of any Debt of the Company convertible or exchangeable
for Capital Stock (other than Disqualified Stock) of the Company
(LESS the amount of any cash, or the fair value of any other
property, distributed by the Company upon such conversion or
exchange); and
(D) an amount equal to the sum of (i) the net reduction in
Investments in Joint Ventures or Unrestricted Subsidiaries
resulting from dividends, repayments of loans or advances or
other transfers of assets, in each case to the Company or any
Restricted Subsidiary from Joint Ventures or Unrestricted
Subsidiaries, and (ii) the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market
value of the net assets of an Unrestricted Subsidiary at the time
such Unrestricted Subsidiary is designated a Restricted
Subsidiary; PROVIDED, HOWEVER, that the foregoing sum shall not
exceed, in the case of any Unrestricted Subsidiary, the amount of
Investments previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary.
SECTION 4.6. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. (a) The Company may not, and may not permit any Restricted
Subsidiary, directly or indirectly, to create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(i) pay dividends or make any other distributions to the Company
or any of its Restricted Subsidiaries on its Capital Stock or with
respect to any other interest or participation in, or measured by, its
profits;
(ii) pay any indebtedness owed to the Company or any Restricted
Subsidiary;
(iii) make loans or advances to the Company or any Restricted
Subsidiary; or
(iv) transfer any of its properties or assets to the Company or
any Restricted Subsidiary.
(b) Notwithstanding the foregoing, the Company may, and may permit any
Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
(i) pursuant to any agreement in effect on the Issue Date;
(ii) pursuant to an agreement relating to any Acquired Debt,
which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person so
acquired and its Subsidiaries;
(iii) pursuant to an agreement effecting a Refinancing of Debt
Incurred pursuant to an agreement referred to in clause (i) or (ii)
above or clause (iv) below, PROVIDED, HOWEVER, that the provisions
contained in such Refinancing agreement relating to such encumbrance
or restriction are no more restrictive taken as a whole (as determined
in good faith by the Chief Financial Officer of the Company) than the
provisions contained in the predecessor agreement the subject thereof;
(iv) in the case of clause (iii) of Section 4.6(a), consisting of
restrictions contained in any security agreement (including a Capital
Lease Obligation) securing Debt of the Company or a Restricted
Subsidiary otherwise permitted under this Indenture, but only to the
extent such encumbrances or restrictions restrict the transfer of the
property subject to such security agreement;
(v) in the case of clause (iv) of Section 4.6(a), consisting of
customary nonassignment provisions entered into in the ordinary course
of business in leases governing leasehold interests, but only to the
extent such provisions restrict the transfer of the lease or the
property thereunder;
(vi) with respect to a Restricted Subsidiary, imposed pursuant to
an agreement which has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such
Restricted Subsidiary; PROVIDED, HOWEVER, that after giving effect to
such transaction no Default shall have occurred or be continuing, that
such restriction terminates if such transaction is not consummated and
that such consummation or abandonment of such transaction occurs
within one year of the date such agreement was entered into;
(vii) imposed pursuant to applicable law or regulations;
(viii) imposed pursuant to the Revolving Credit Agreement;
(ix) imposed pursuant to the Senior Secured Note Purchase
Agreement and the Senior Secured Notes;
(x) imposed pursuant to this Indenture and the Notes; or
(xi) consisting of any restriction on the sale or other
disposition of assets or property securing Debt as a result of a
Permitted Lien on such assets or property.
SECTION 4.7. ASSET DISPOSITIONS. (a) The Company may not, and may not
permit any Restricted Subsidiary to, directly or indirectly, make any Asset
Disposition unless: (i) the Company or such Restricted Subsidiary, as the case
may be, receives consideration at the time of such Asset Disposition at least
equal to the fair market value (including as to the value of all non-cash
consideration) of the shares and assets subject to such Asset Disposition, as
determined by the Board of Directors of the Company in good faith and evidenced
by a resolution filed with the Trustee; (ii) at least 80% of the consideration
thereof received by the Company or such Restricted Subsidiary, as the case may
be, consists of (A) cash or Permitted Short-Term Investments or (B) the
assumption of Debt (other than Subordinated Obligations) of the Company or such
Restricted Subsidiary and the release of the Company and the Restricted
Subsidiaries, as applicable, from all liability on the Debt assumed; and (iii)
if (A) no Event of Default has occurred and is then continuing and if (x) the
Aggregate Asset Disposition Proceeds then exceed the greater of $25 million or
33% of the Consolidated EDITDA for the most recently ended period of four fiscal
quarters or (y) the asset being disposed of is a Core Asset or (B) an Event of
Default has occurred and is then continuing, all Net Available Proceeds, less
any amounts invested within 180 days of such disposition in assets that comply
with Section 4.12, are applied within 180 days of such disposition:
(A) FIRST, to the repayment of Debt then outstanding under any
Bank Credit Agreement and a corresponding permanent reduction in the
commitments thereunder, if any; and
(B) SECOND, to the extent that the Net Available Proceeds exceed
the amount of Debt then outstanding under the Bank Credit Agreements,
to a permanent reduction in the commitments thereunder, if any, by an
amount equal to such excess Net Available Proceeds; and
(C) THIRD, if the commitments under all Bank Credit Agreements
have been reduced to zero and to the extent that the remaining Net
Available Proceeds exceed $2.5 million to make an Offer to Purchase
outstanding Notes at 100% of their principal amount plus accrued and
unpaid interest to the date of purchase thereon and, to the extent
required by the terms thereof, any other Debt of the Company or a
Restricted Subsidiary that ranks PARI PASSU with the Notes at a price
no greater than 100% of the principal amount thereof plus accrued and
unpaid interest to the date of purchase. To the extent that the
aggregate amount of Notes tendered pursuant to an Offer to Purchase
pursuant to this Section 4.7 exceeds the amount of remaining Net
Available Proceeds, the Trustee shall select the Notes to be purchased
on a pro rata basis.
To the extent any Net Available Proceeds remain after such uses,
the Company and the Restricted Subsidiaries may use such amounts for
any purposes not prohibited by this Indenture.
(b) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.7. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.7, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.7 by virtue
thereof.
SECTION 4.8. TRANSACTIONS WITH AFFILIATES. (a) Except for transactions
the terms of which are set forth in agreements existing on the Issue Date, the
Company may not, and may not permit any Restricted Subsidiary, directly or
indirectly, to enter into any transactions (or series of related transactions)
with an Affiliate or Related Person of the Company (other than the Company or a
Wholly-Owned Restricted Subsidiary) (an "AFFILIATE TRANSACTION") unless:
(i) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary, as the case may be, with an
unrelated Person; and
(ii) the Company delivers to the Trustee (A) with respect to any
Affiliate Transaction involving aggregate consideration in excess of
$500,000, a certificate of the Chief Executive officer of the Company
to the effect that such Affiliate Transaction complies with clause (i)
above; and (B) with respect to any Affiliate Transaction involving
aggregate consideration in excess of $5 million, an opinion as to the
fairness to the Company or such Restricted Subsidiary, as the case may
be, of such Affiliate Transaction from a financial point of view
issued by an Independent Financial Advisor.
(b) Notwithstanding the foregoing Section 4.8(a), the following shall
be deemed not to be Affiliate Transactions:
(i) employee compensation arrangements entered into in the
ordinary course of business and approved by the Board of Directors of
the Company;
(ii) transactions solely between or among the Company and the
Restricted Subsidiaries;
(iii) Restricted Payments permitted by Section 4.5;
(iv) Investments by an Affiliate or Related Person of the Company
in the Capital Stock (other than Disqualified Stock) of the Company or
any Restricted Subsidiary; and
(v) transactions contemplated under the Plan of Reorganization.
SECTION 4.9. LIMITATION ON ISSUANCES AND SALES OF CAPITAL, STOCK OF
RESTRICTED SUBSIDIARIES. The Company may not, and may not permit any Restricted
Subsidiary to, issue, transfer, convey, sell or otherwise dispose of any shares
of Capital Stock of a Restricted Subsidiary or securities convertible or
exchangeable into, or options, warrants, rights or any other interest with
respect to, Capital Stock of a Restricted Subsidiary to any person other than
the Company or a Wholly-Owned Restricted Subsidiary except (i) in a transaction
consisting of a sale of all the Capital Stock of such Restricted Subsidiary and
that complies with the provisions of Section 4.7 to the extent such provisions
apply; (ii) if required, the issuance, transfer, conveyance, sale or other
disposition of directors, qualifying shares; (iii) in a transaction in which, or
in connection with which, the Company or a Restricted Subsidiary acquires at the
same time sufficient Capital Stock of such Restricted Subsidiary to at least
maintain the same percentage ownership interest it had prior to such
transaction; and (iv) Disqualified Stock of a Restricted Subsidiary Incurred to
Refinance Disqualified Stock of such Restricted Subsidiary; PROVIDED, HOWEVER,
that the amounts of the redemption obligations of such Disqualified Stock shall
not exceed the amounts of the redemption obligations of, and such Disqualified
Stock shall have redemption obligations no earlier than those required by, the
Disqualified Stock being Refinanced.
SECTION 4.10. CHANGE OF CONTROL. (a) Upon the occurrence of a Change
of Control, each Holder of Notes shall have the right to require that the
Company repurchase such Holder's Notes at a purchase price in cash equal to 100%
of the principal amount thereof plus accrued and unpaid interest to the date of
purchase (subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date).
(b) Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder with a copy to the Trustee stating:
(i) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase such Holder's Notes
at a purchase price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest to the date of purchase
(subject to the right of Holders of record on the relevant record date
to receive interest on the relevant interest payment date);
(ii) the circumstances and relevant facts regarding such Change
of Control (including information with respect to pro forma historical
income, cash flow and capitalization, each after giving effect to such
Change of Control);
(iii) the repurchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Company, consistent with
this Section 4.10, that a Holder must follow in order to have its
Notes purchased.
(c) Holders electing to have a Note purchased will be required to
surrender the Note, with an appropriate form duly completed, to the Company at
the address specified in the notice at least three Business Days prior to the
purchase date. Holders will be entitled to withdraw their election if the
Trustee or the Company receives not later than one Business Day prior to the
purchase date, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note which was delivered for purchase by the
Holder and a statement that such Holder is withdrawing his election to have such
Note purchased.
(d) On the purchase date, all Notes purchased by the Company under
this Section shall be delivered by the Trustee for cancellation, and the Company
shall pay the purchase price plus accrued and unpaid interest, if any, to the
Holders entitled thereto.
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
SECTION 4.11. LIMITATION ON LIENS. The Company may not, and may not
permit any Restricted Subsidiary, directly or indirectly, to Incur or permit to
exist any Lien on any asset now owned or hereafter acquired, or any income or
profits therefrom or assign or convey any right to receive income therefrom,
except for the following Liens (each, a "PERMITTED LIEN"):
(i) Liens to secure the Debt outstanding at any time under the
Revolving Credit Agreement or the Senior Secured Notes, subject to the
Intercreditor Agreement;
(ii) Liens to secure up to $5 million of other Debt permitted to
be Incurred under this Indenture so long as effective provision is
made to secure the Notes on a senior basis to the obligations so
secured;
(iii) Liens under the Security Documents;
(iv) Liens in favor of the Company;
(v) Liens on property or shares of Capital Stock of another
Person at the time such other Person becomes a Subsidiary of such
Person; PROVIDED, HOWEVER, that such Liens are not created, incurred
or assumed in connection with, or in contemplation of, such other
Person becoming such a Subsidiary; PROVIDED FURTHER, HOWEVER, that
such Lien may not extend to any other property owned by such Person or
any of its Subsidiaries (other than inventory and receivables
generated in the ordinary course of business and substitute property);
(vi) Liens on property at the time such Person or any of its
Subsidiaries acquires such property, including any acquisition by
means of a merger or consolidation with or into such Person or a
Subsidiary of such Person; PROVIDED, HOWEVER, that such Liens are not
created, incurred or assumed in connection with, or in contemplation
of, such acquisition; PROVIDED FURTHER, HOWEVER, that the Liens may
not extend to any other property owned by such Person or any of its
Subsidiaries;
(vii) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a
like nature incurred in the ordinary course of business;
(viii) Liens existing on the Issue Date;
(ix) Liens to secure any Refinancing Debt incurred to refinance
any Debt secured by any Lien referred to in the foregoing clauses (i)
through (viii);
(x) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded; PROVIDED, HOWEVER, that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have been
made therefor;
(xi) Carriers', warehousemens', mechanics', landlords'
materialmens', repairmens' or other like Liens arising in the ordinary
course of business is respect of obligations not overdue for a period
in excess of 60 days or which are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded;
PROVIDED, HOWEVER, that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made
therefor;
(xii) purchase money Liens solely on the asset being acquired;
PROVIDED that each such Lien does not secure Debt in excess of $3
million;
(xiii) Liens arising from precautionary UCC financing statement
filings;
(xiv) statutory and common law landlords' liens under leases to
which the Company or any of its Subsidiaries is a party;
(xv) Easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects incurred, or leases or
subleases granted to others, in the ordinary course of business, which
do not in any case materially detract from the value of the property
subject thereto or do not interfere with or adversely affect in any
material respect the ordinary conduct of the business of the Company
and its Restricted Subsidiaries taken as a whole;
(xvi) any attachment or judgment Lien not constituting an Event
of Default under clause (9) of the first paragraph of Section 6.1; and
(xvii) Liens incurred in the ordinary course of business of the
Company and the Restricted Subsidiaries with respect to obligations
that do not exceed $1 million at any one time outstanding and that:
(A) are not incurred in connection with the borrowing of
money or the obtaining of advances or credit (other than trade
credit in the ordinary course of business); and
(B) do not in the aggregate materially detract from the
value of the property or materially impair the use thereof in the
operation of business by the Company and the Restricted
Subsidiaries.
SECTION 4.12. BUSINESS ACTIVITIES. The Company shall not, and shall
not permit any Restricted Subsidiary to, make any material change in the nature
of the business as carried on at the date hereof.
SECTION 4.13. MAINTENANCE OF INSURANCE.
(a) The Company will and will cause each of its Restricted
Subsidiaries to maintain, with financially sound and reputable insurers,
insurance with respect to the respective properties and businesses of the
Company and its Restricted Subsidiaries against such casualties and
contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of entities of
established reputations engaged in the same or a similar business and similarly
situated.
(b) In the event that the Company or any of its Restricted
Subsidiaries receives any proceeds of any insurance that they are required to
maintain pursuant to this Section 4.13, such proceeds shall constitute
"INSURANCE PROCEEDS". Promptly following the receipt of any Insurance Proceeds,
the Company shall apply such Insurance Proceeds in accordance with the
provisions of Section 4.7; PROVIDED, HOWEVER, that Insurance Proceeds shall only
be required to be so applied to the extent that the aggregate amount of all
Insurance Proceeds received by the Company exceeds $1 million in any 12-month
period.
SECTION 4.14. COMPLIANCE CERTIFICATES; STATEMENT BY OFFICERS AS TO
DEFAULT. 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).
SECTION 4.15. CREDITOR DIRECTORS. (a) On or prior to the 90th day
prior to the date on which the Company shall file with the Commission a proxy
statement (the "PROXY STATEMENT") to be sent to the stockholders of the Company
in connection with a meeting of the Company's stockholders to re-elect the two
individuals that were nominated to serve as directors by the Creditors'
Committee (as defined in the Plan of Reorganization) and elected to such
directorships immediately following consummation of the Plan of Reorganization
(the "CREDITOR DIRECTORS"), the Company shall mail a notice to each Holder, with
a copy to the Trustee, stating that the Company shall nominate for re-election
the Creditor Directors then serving on the Company's Board of Directors (the
"CREDITOR DIRECTORS RE-ELECTION NOTICE"), subject to receiving the notice
provided for in the following sentence. The Holders of at least a majority in
principal amount of the Notes then outstanding shall have the right to notify
the Company in writing within 60 days from the date the Company mails the
Creditor Directors Re-election Notice to the Holders that the Company shall
nominate one or two other named individuals (each a "REPLACEMENT DIRECTOR") to
serve as the Creditor Directors in place of a specified then serving Creditor
Director or both then serving Creditor Directors, as the case may be (a "HOLDERS
NOTICE OF REPLACEMENT CREDITOR DIRECTORS"). Upon receipt of a Holders Notice of
Replacement Creditor Directors, the Company shall nominate each Replacement
Director for election as a Creditor Director and shall recommend in the Proxy
Statement that the Company's stockholders vote in favor of each such Replacement
Director.
(b) In the event of a vacancy in directorship of a Creditor Director
or Replacement Director resulting from death, resignation, removal or other
causes, the Company shall mail a notice to each Holder, with a copy to the
Trustee, stating that such vacancy has occurred and that the Company shall
nominate for election as a Replacement Director to fill such vacancy an
individual specified by the holders of at least a majority in principal amount
of the Notes then outstanding in a Holders Notice of Replacement Director. Upon
receipt of such Holders Notice of Replacement Creditor Director, unless such
Replacement Director is appointed by the Company's Board of Directors to fill
such vacancy, the Company shall nominate such Replacement Directors for election
as a Creditor Director to fill such vacancy and shall recommend in a proxy
statement that the Company's stockholders vote in favor of such Replacement
Director. Until such vacancy is filled in accordance with the foregoing, such
directorship shall remain vacant.
(c) The Company shall not amend its Bylaws in any manner that would
adversely affect the right of Holders of at least a majority in principal amount
of the Notes then outstanding to consent to the removal of any Creditor Director
from the Company's Board of Directors.
SECTION 4.16. VOTING AGREEMENT AMONG STOCKHOLDERS. The Company shall
not amend the Voting Agreement among Stockholders, dated as of March __, 2000,
among the Company, Holst Trust, Leisure Ventures PTE Ltd., Kingdom Planet
Hollywood Ltd., Philip Green and Claudio Gonzalez in any manner that would
adversely affect the ability of Holders or the Company to cause the Creditor
Directors or any Replacement Directors to serve on the Company's Board of
Directors.
SECTION 4.17 FOREIGN SUBSIDIARIES. In the event that, after the Issue
Date, the Company shall acquire or create a Foreign Subsidiary, neither the
Company nor any Restricted Subsidiary (other than a Foreign Subsidiary) shall
transfer any assets to such Foreign Subsidiary unless such Foreign Subsidiary
becomes a Subsidiary Guarantor and Guarantees the Notes pursuant to a Subsidiary
Guarantee.
SECTION 4.18. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.19. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on outstanding Notes as of the end of such
year and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Code, as amended from time to time.
ARTICLE 5.
SUCCESSOR COMPANY
SECTION 5.1. WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. (a) The
Company may not consolidate with or merge with or into, or convey, transfer or
lease, in one transaction or a series of transactions, all or substantially all
its assets to any Person; PROVIDED, HOWEVER, that the Company may consolidate
with or merge with or into, or convey, transfer or lease, in one transaction or
a series of transactions, all or substantially all its assets to any Person, if:
(i) the resulting, surviving or transferee Person (the "SUCCESSOR
COMPANY") shall be a Person organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia and the Successor Company (if not the Company) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Notes and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Debt which becomes an obligation of the Successor Company
or any Subsidiary as a result of such transaction as having been
Incurred by the Successor Company or such Subsidiary at the time of
such transaction), no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of Debt
pursuant to Section 4.3(a);
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount that
is not less than the Consolidated Net Worth of the Company immediately
prior to such transaction; and
(v) prior to such transaction, the Company shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such transaction and such supplemental indenture (if
any) comply with this Indenture.
The Successor Company shall be the successor to the Company and shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture, and the Company (other than in the case of a
lease) shall be released from the obligation to pay the principal of and
interest on the Notes.
(b) The Company shall not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all of its assets
to any Person unless: (i) the resulting, surviving or transferee Person (if not
such Subsidiary) shall be a Person organized and existing under the laws of the
jurisdiction under which such Subsidiary was organized or under the laws of the
United States of America, or any State thereof or the District of Columbia, and
such Person shall expressly assume, by a guarantee agreement in a form
acceptable to the Trustee, all the obligations of such Subsidiary, if any, under
its Subsidiary Guarantee; (ii) immediately after giving effect to such
transaction or transactions on a pro forma basis (and treating any Debt which
becomes an obligation of the resulting, surviving or transferee Person as a
result of such transaction as having been issued by such Person at the time of
such transaction), no Default shall have occurred and be continuing; and (iii)
the Company delivers to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
guarantee agreement, if any, complies with this Indenture.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs 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 this Indenture or the Notes;
(3) the Company fails to comply with Section 5.1;
(4) the Company fails to comply with Section 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 or 4.19
(other than a failure to purchase Notes when required under Section
4.7 or 4.10) 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 this 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, or it is not waived, within the time specified after receipt
of such notice. Such notice must specify the Default, demand that it be
remedied, to the extent consistent with law, 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.
SECTION 6.2. ACCELERATION. If an Event of Default (other than an Event
of Default specified in Section 6.1(7) or (8) 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 Section 6.1(7) or (8) 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.
SECTION 6.3. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
SECTION 6.4. WAIVER OF PAST DEFAULTS. The Holders of a majority in
principal amount of the Notes by notice to the Trustee may waive an existing
Default and its consequences except (i) a Default in the payment of the
principal of or interest on a Note or (ii) a Default in respect of a provision
that under Section 9.2 cannot be amended without the consent of each Holder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
SECTION 6.5. CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.1, that the Trustee determines is unduly prejudicial to the
rights of other Holders or would involve the Trustee in personal liability or
expense for which the Trustee has not received a satisfactory indemnity
therefore; PROVIDED, HOWEVER, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to reasonable
indemnification satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.
SECTION 6.6. LIMITATION ON SUITS. A Holder may pursue a remedy with
respect to this Indenture or the Notes only if:
(1) the Holder gives to the Trustee notice of a continuing Event
of Default;
(2) the Holders of at least 25% in principal amount of the Notes
make a request to the Trustee to pursue the remedy;
(3) the Trustee either (i) gives to such Holders notice that it
will not comply with the request, or (ii) does not comply with the
request within 60 days after receipt of the request; and
(4) the Holders of a majority in principal amount of the Notes do
not give the Trustee a direction inconsistent with the request prior
to the earlier of the date, if ever, on which the Trustee delivers a
notice under Section 6.6(3)(i) or the expiration of the period
described in Section 6.6(3)(ii).
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
SECTION 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and interest on the Notes held by such Holder, on or after the
respective due dates expressed in the Notes, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.7.
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders approved or
allowed in any judicial proceedings relative to the Company, its creditors or
its property and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any proceeding.
SECTION 6.10. PRIORITIES. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for
principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section. At least 15 days before such record date, the Company
shall mail to each Holder and the Trustee a notice that states the record date,
the payment date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys, fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by
Holders of more than 10% in principal amount of the Notes.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. The Company (to the
extent they may lawfully do so) shall not at any time insist upon, or plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that they may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 6.13. ACTIONS OF A HOLDER. For purposes of providing any
consent, waiver or instruction to the Company or the Trustee, a "Holder" shall
include a Person who provides to the Company or the Trustee, as the case may be,
an affidavit of beneficial ownership of a Note together with a satisfactory
indemnity against any loss, liability or expense to such party to the extent
that it acts upon such affidavit of beneficial ownership (including any consent,
waiver or instructions given by a Person providing such affidavit and
indemnity).
ARTICLE 7.
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
(i) The Trustee is hereby authorized and directed to acknowledge,
enter into, execute and deliver, as the case may be, and to perform all of its
obligations and exercise its rights under the following documents, which
documents shall be incorporated into this Indenture by reference:
(1) the Guarantor Security Agreement;
(2) the Intercreditor Agreement;
(3) the Mortgage;
(4) the Pledge Agreement;
(5) the Security Agreement; and
(6) the TSP Pledge Agreement.
SECTION 7.2. RIGHTS OF TRUSTEE. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; PROVIDED, HOWEVER, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at the principal corporate trust office of the Trustee, and such notice
references the Notes and this Indenture.
(g) Except in connection with compliance with Sections 7.10 and 7.11,
the Trustee shall only be charged with knowledge of Trust Officers.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.4. TRUSTEE'S DISCLAIMER. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULTS. If a Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each Holder notice
of the Default within 90 days after it occurs. Except in the case of a Default
in payment of principal of or interest on any Note (including payments pursuant
to the mandatory redemption provisions of such Note, if any), the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of Holders.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS. If required by TIA ss.
313(a), as promptly as practicable after each __________ beginning with the
__________, __________, and in any event prior to __________ in each year, the
Trustee shall mail to each Holder a brief report dated as of that __________
complies with such TIA ss. 313(a). The Trustee also shall comply with TIA ss.
313(b).
A copy of each report at the time of its mailing to Holders shall be
filed with the Commission and each stock exchange (if any) on which the Notes
are listed. The Company agrees to notify promptly the Trustee whenever the Notes
become listed on any stock exchange and of any delisting thereof.
SECTION 7.7. COMPENSATION AND INDEMNITY. Company shall pay to the
Trustee from time to time reasonable compensation for its services (including
for any agent capacity in which it acts). The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Company shall indemnify
the Trustee against any and all loss, damage, claim, liability or reasonable
expense (including reasonable attorneys, fees and expenses) incurred by it
(including for any agent capacity in which it acts) in connection with the
acceptance or administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Notes.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.1(7) or (8) with respect to
the Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in principal amount
of the Notes may remove the Trustee by so notifying the Trustee and may appoint
a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Notes and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.7.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Notes may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee, PROVIDED THAT such corporation or
banking association shall be eligible under this Article 7 and TIA ss. 310(a).
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA ss. 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b); PROVIDED, HOWEVER, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company is
outstanding if the requirements for such exclusion set forth in TIA ss. 310 (b)
(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
ARTICLE 8.
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE. (a) When (i)
the Company delivers to the Trustee all outstanding Notes (other than Notes
replaced pursuant to Section 2.7) 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 hereof 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), and if
in either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Sections 8.1(c), cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
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, the Company at any time may
terminate (i) all its obligations under the Notes and this 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) (but,
in the case of Sections 6.1(7) and (8), with respect only to Significant
Subsidiaries) and the limitations contained in Sections 5.1(a)(iii) and (iv)
("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) (but, in the case of
Sections 6.1(7) and (8), with respect only to Significant Subsidiaries) or
because of the failure of the Company to comply with Section 5.1(a)(iii) or
(iv). 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 in Section 8.2, the
Trustee shall acknowledge in writing the discharge of those obligations that the
Company terminates under the Indenture, the release of the Subsidiary Guarantees
and the termination of such rights under the Security Documents.
(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 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.
SECTION 8.2. CONDITIONS TO DEFEASANCE. 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.
SECTION 8.3. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust money or Defeasance Obligations deposited with it pursuant to this Article
8. It shall apply the deposited money and the money from Defeasance Obligations
through the Paying Agent and in accordance with this Indenture to the payment of
principal of and interest on the Notes.
SECTION 8.4. REPAYMENT TO COMPANY. 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.
SECTION 8.5. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited Defeasance Obligations or the principal and
interest received on such Defeasance obligations.
SECTION 8.6. REINSTATEMENT. If the Trustee or Paying Agent is unable
to apply any money or Defeasance Obligations in accordance with this Article 8
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 this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 8 until such time as the Trustee or Paying Agent is permitted to
apply all such money or Defeasance Obligations in accordance with this Article
8; 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.
ARTICLE 9.
AMENDMENTS
SECTION 9.1. WITHOUT CONSENT OF HOLDERS. The Company and the Trustee
may amend this Indenture or the Notes without notice to or consent of any
Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes; PROVIDED, HOWEVER, that the
uncertificated Notes are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Notes are described in Section 163(f)(2)(B) of the Code;
(4) to add guarantees with respect to the Notes, including any
Subsidiary Guarantees, or to secure the Notes or to release such
guarantees in accordance with the terms of Section 4.4;
(5) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(6) to comply with any requirements of the Commission in
connection with qualifying, or maintaining the qualification of, this
Indenture under the TIA; or
(7) to make any change that does not adversely affect the rights
of any Holder.
After an amendment under this Section becomes effective, the Company
shall mail to Holders a notice briefly describing such amendment. The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section.
SECTION 9.2. WITH CONSENT OF HOLDERS. The Company and the Trustee may
amend this Indenture or the Notes without notice to any Holder but with the
written consent of the Holders of at least a majority in principal amount of the
Notes then outstanding (including consents obtained in connection with a tender
offer or exchange for the Notes). However, without the consent of each Holder
affected thereby, an amendment may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest
on any Note;
(3) reduce the principal of or extend the Stated Maturity of any
Note;
(4) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with
Article 3;
(5) make any Note payable in money other than that stated in the
Note;
(6) make any change in Section 6.4 or 6.7 or the second sentence
of this Section; or
(7) make any change in any Subsidiary Guarantee that would
adversely affect the Holders.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company
shall mail to Holders a notice briefly describing such amendment. The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section.
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. A consent
to an amendment or a waiver by a Holder of a Note shall bind the Holder and
every subsequent Holder of that Note or portion of the Note that evidences the
same debt as the consenting Holder's Note, even if notation of the consent or
waiver is not made on the Note. However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder's Note or portion of the Note
if the Trustee receives the notice of revocation before the date the amendment
or waiver becomes effective. After an amendment or waiver becomes effective, it
shall bind every Holder. An amendment or waiver becomes effective upon the
execution of such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant
to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.5. NOTATION ON OR EXCHANGE OF NOTES. If an amendment changes
the terms of a Note, the Trustee may require the Holder of the Note to deliver
it to the Trustee. The Trustee may place an appropriate notation on the Note
regarding the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Note shall
issue and the Trustee shall authenticate a new Note that reflects the changed
terms. Failure to make the appropriate notation or to issue a new security shall
not affect the validity of such amendment.
SECTION 9.6. TRUSTEE TO SIGN SUCH AMENDMENTS. The Trustee shall sign
any amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7. PAYMENT FOR CONSENT. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Notes unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend (and,
if appropriate, tender their Notes) in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
ARTICLE 10.
SECURITY
SECTION 10.1. SECURITY DOCUMENTS.
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 this Indenture, and performance of all other Obligations shall be
secured as provided in the Security Documents.
The Trustee, the Company and the Subsidiary Guarantors hereby consent
and agree that, with respect to that portion of the Collateral in which the
security interest is being perfected by possession, the Revolving Credit Agent
and/or the Senior Secured Notes Agent shall hold the Collateral for the benefit
of the Trustee in accordance with the terms of the Intercreditor Agreement, for
the purpose of perfecting the Trustee's security interest therein for so long
as any obligations or commitments outstanding under the Revolving Credit
Agreement or the obligations under the Senior Secured Note Purchase Agreement or
the Senior Secured Notes.
The Company shall, and shall cause each of its Restricted Subsidiaries
to, do or cause to be done all such acts and things as may be necessary or
proper, or as may be required by the provisions of the Security Documents, to
assure and confirm to the Collateral Agent the security interest in the
Collateral contemplated hereby and by the Security Documents, as from time to
time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes secured hereby and thereby, according
to the intent and purposes herein and therein expressed. The Company shall, and
shall cause each of its Restricted Subsidiaries to, take, upon request of the
Trustee or the Collateral Agent, any and all actions required to cause the
Security Documents to create and maintain, as security for the Obligations,
valid and enforceable, perfected (except as expressly provided herein or
therein), Liens in and on all the Collateral, in favor of the Collateral Agent,
superior to and prior to the rights of all third Persons, and subject to no
other Liens, other than as provided herein and therein.
Each Holder of a Note, by its acceptance thereof, consents and agrees
to the terms of the Security Documents and the Intercreditor Agreement
(including, without limitation, the provisions providing for the foreclosure and
release of Collateral and indemnification of the Collateral Agent) as the same
may be in effect or may be amended from time to time in accordance with their
terms, and authorizes and directs (i) the Collateral Agent, with respect to each
of the Security Documents, and (ii) the Trustee, with respect to the
Intercreditor Agreement, to perform their respective obligations and exercise
their respective rights thereunder in accordance therewith; PROVIDED, HOWEVER,
that upon qualification of this Indenture with the TIA, if any provision of the
Intercreditor Agreement limits, qualifies or conflicts with the duties imposed
by the provisions of the TIA, the TIA shall control.
SECTION 10.2. OPINIONS OF COUNSEL.
To the extent required by the TIA, the Company shall furnish to the
Trustee on the Issue Date and within _____ days after each anniversary of the
Issue Date, an Opinion of Counsel, dated as of such date, stating either that
(i) in the opinion of such counsel, all action has been taken with respect to
the recording, registering, filing, re-recording, re-registering and refiling of
all supplemental indentures, financing statements, continuation statements or
other instruments of further assurance as is necessary to maintain the Liens of
the Security Documents and reciting the details of such action or (ii) in the
opinion of such counsel, no such action is necessary to effect and maintain the
validity and perfection of such Liens in full force and effect.
SECTION 10.3. RELEASE AND SUBSTITUTION OF COLLATERAL.
(a) Subject to subsections (b), (c) and (d) of this Section 10.3, (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 this Indenture, such Collateral shall,
concurrently with the disposition of such Collateral automatically be released
from the Lien of the relevant Security Documents and (ii) the Company and its
Subsidiaries may (but shall not be 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 hereby.
(b) Except as otherwise provided for in the Intercreditor Agreement,
at 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 this 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
hereof, of an acceleration of the Notes.
(c) The release of any Collateral from the terms of the Security
Documents will not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to the Security Documents. At all time after qualification of
this 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 H hereto and
an opinion of counsel to the Company substantially in the form of Exhibit I
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.
(d) 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 hereby acknowledged and agreed
that the Bankruptcy Court's finding shall serve as 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).
SECTION 10.4. CERTIFICATES OF THE COMPANY.
The Company shall furnish to the Trustee prior to each proposed
release of Collateral all documents required by TIA Section 314(d). The Trustee
may, to the extent permitted by Sections 7.1 and 7.2 hereof, accept as
conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such instruments. 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 engineer, appraiser or other such expert within the meaning of TIA
Section 314(d). The foregoing sentence is qualified in its entirety by the
acknowledgement and agreement in the preceding section, that with respect to the
release of Retail Unit Collateral pursuant to the Security Documents, the
finding of the Bankruptcy Court shall serve as the certificate or opinion
required by TIA Section 314(d).
SECTION 10.5. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE
UNDER THE SECURITY DOCUMENTS.
Subject to the provisions of the Security Documents and the
Intercreditor Agreement, the Trustee may, in its sole discretion and without the
consent of the Holders, on behalf of the Holders, take all actions it deems
necessary or appropriate in order to (a) enforce any of the terms of the
Security Documents and (b) collect and receive any and all amounts payable in
respect of the Obligations. The Trustee shall have the power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts that may be unlawful or in violation of
the Security Documents or to preserve or protect its interest and the interests
of the Holders in the Collateral (including power to institute and maintain
suits or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of or compliance with
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders or the Trustee).
SECTION 10.6. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER
THE SECURITY DOCUMENTS.
The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Security Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture and the Security Documents.
SECTION 10.7. RELEASE UPON TERMINATION OF THE OBLIGATIONS.
(a) If (i) the Company delivers Officers' Certificates certifying that
all of its obligations under this Indenture have been indefeasably satisfied and
discharged by complying with the provisions of Article 8 or (ii) all outstanding
Notes issued under this Indenture shall be surrendered to the Trustee for
cancellation and an Opinion of Counsel that the delivery of such a notice is
authorized, the Trustee shall deliver to the Collateral Agent a notice stating
that the Trustee, for itself and on behalf of the Holders, disclaims and has
given up any and all rights it has in or to the Collateral, and any rights it
has under the Security Documents, and, upon and after the receipt by the
Collateral Agent of such notice, the Collateral Agent shall no longer be deemed
to hold the Lien in the Collateral on behalf of the Trustee for the benefit of
itself and the Holders.
(b) Any release of Collateral made in compliance with this Section
10.7 shall not be deemed to impair the Lien under the Security Documents or the
Collateral thereunder in contravention of the provisions of this Indenture or
the Security Documents.
ARTICLE 11.
SUBSIDIARY GUARANTEES
SECTION 11.1. GUARANTEES. Each Subsidiary Guarantor hereby
unconditionally and irrevocably guarantees, jointly and severally, to each
Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment of principal of and interest on the Notes when due, whether at
maturity, by acceleration, by redemption or otherwise, and all other monetary
obligations of the Company under this Indenture and the securities and (b) the
full and punctual performance within applicable grace periods of all other
obligations of the Company under this Indenture and the Notes (all the foregoing
being hereinafter collectively called the "OBLIGATIONS"). Each Subsidiary
Guarantor further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice or further assent from such Subsidiary
Guarantor and that such Subsidiary Guarantor will remain bound under this
Article 11 notwithstanding any extension or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of, payment
from and protest to the Company of any of the obligations and also waives notice
of protest for nonpayment. Each Subsidiary Guarantor waives notice of any
default under the Notes or the Obligations. The Obligations of each Subsidiary
Guarantor hereunder shall not be affected by (a) the failure of any Holder or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Company or any other Person under this Indenture, the Notes or any
other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Notes or any other agreement; (d) the release
of any security held by any Holder or the Trustee for the Obligations or any of
them; (e) the failure of any Holder or the Trustee to exercise any right or
remedy against any other guarantor of the Obligations; or (f) any change in the
ownership of the Company.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
herein constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of
the Obligations.
Except as expressly set forth in Sections 8.1(b), 11.2 and 11.6, the
obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
Obligations of each Subsidiary Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Notes or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay, willful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
such Subsidiary Guarantor or would otherwise operate as a discharge of such
Subsidiary Guarantor as a matter of law or equity.
Each Subsidiary Guarantor further agrees that its Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any obligation
is rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other obligation, each Subsidiary Guarantor hereby
promises to and will, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal
to the sum of (i) the unpaid amount of such obligations, (ii) accrued and unpaid
interest on such Obligations (but only to the extent not prohibited by law) and
(iii) all other monetary Obligations to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations Guaranteed hereby may be accelerated as provided in Article 6 for
the purposes of such Subsidiary Guarantor's Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such Obligations as provided in
Article 6, such Obligations (whether or not due and payable) shall forthwith
become due and payable by such Subsidiary Guarantor for the purposes of this
Section.
Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys, fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section.
SECTION 11.2. LIMITATION ON LIABILITY. Any term or provision of this
Indenture to the contrary notwithstanding, the maximum, aggregate amount of the
obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed
the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
SECTION 11.3. SUCCESSORS AND ASSIGNS. This Article 11 shall be binding
upon each Subsidiary Guarantor and its successors and assigns and shall ensure
to the benefit of the successors and assigns of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee, the rights and privileges conferred upon that party in this Indenture
and in the Notes shall automatically extend to and be vested in such transferee
or assignee, all subject to the terms and conditions of this Indenture.
SECTION 11.4. NO WAIVER. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 11 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 11 at law,
in equity, by statute or otherwise.
SECTION 11.5. MODIFICATION. No modification, amendment or waiver of
any provision of this Article 11, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 11.6. RELEASE OF SUBSIDIARY GUARANTOR. Upon the sale or other
disposition (including by way of consolidation or merger) of a Subsidiary
Guarantor or the sale or disposition of all or substantially all the assets of
such Subsidiary Guarantor (in each case other than to the Company or an
Affiliate of the Company), such Subsidiary Guarantor shall be deemed released
from all Obligations under this Article 11 without any further action required
on the part of the Trustee or any Holder. At the request of the Company, the
Trustee shall execute and deliver an appropriate instrument evidencing such
release.
ARTICLE 12.
MISCELLANEOUS
SECTION 12.1. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 12.2. NOTICES. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
Planet Hollywood International, Inc.
8669 Commodity Circle
Orlando, Florida 32819
Attention:
Facsimile:
if to the Trustee:
United States Trust Company of New York
Corporate Trust & Agency Division
114 West 47th Street, 25th Floor
New York, New York 10036-1532
Attention: Corporate Trust Administration
Facsimile: (212) 852-1627
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to the
Holder at the Holder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 12.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Holders may
communicate pursuant to TIA ss. 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA ss. 312(c).
SECTION 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 12.6. WHEN NOTES DISREGARDED. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee actually knows are so owned shall be
so disregarded. Also, subject to the foregoing, only Notes outstanding at the
time shall be considered in any such determination.
SECTION 12.7. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 12.8. LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 12.9. GOVERNING LAW. This Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York,
including Section 5-1401 of the New York General Obligations Law, but otherwise
without regard to conflict of laws rules.
SECTION 12.10. NO RECOURSE AGAINST OTHERS. Any past, present or future
director, officer, partner (including any general partner) employee,
incorporator or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Notes or this Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Note, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for
the issue of the Notes.
SECTION 12.11. SUCCESSORS. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
SECTION 12.12. MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 12.13. TABLE OF CONTENTS; HEADINGS. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
PLANET HOLLYWOOD INTERNATIONAL, INC.,
By__________________________
Name:
Title:
SUBSIDIARY GUARANTORS
PLANET HOLLYWOOD MEMORABILIA, INC.
By__________________________
Name:
Title:
ALL STAR CAFE INTERNATIONAL, INC.
By__________________________
Name:
Title:
ALL STAR CAFE INTERNATIONAL, INC.
By__________________________
Name:
Title:
COOL PLANET, INC.
By__________________________
Name:
Title:
COOL PLANET II, INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (ATLANTIC CITY), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (HONOLULU), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (LP), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (NEW YORK), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (NEW YORK), LTD.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (ORLANDO), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (REGION II), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (REGION III), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (REGION IV), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (REGION V), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (REGION VI), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (REGION VII), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (TEXAS), LTD.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (WAREHOUSE), INC.
By__________________________
Name:
Title:
308 AVIATION, INC.
By__________________________
Name:
Title:
308-III AVIATION, INC.
By__________________________
Name:
Title:
ALL STAR CAFE (LP), INC.
By__________________________
Name:
Title:
ALL STAR CAFE (REGION V), INC.
By__________________________
Name:
Title:
ALL STAR CAFE (REGION VII), INC.
By__________________________
Name:
Title:
COAST LICENSING, INC.
By__________________________
Name:
Title:
COOL PLANET I, INC.
By__________________________
Name:
Title:
EBCO MANAGEMENT, INC.
By__________________________
Name:
Title:
KARMALANNE, INC.
By__________________________
Name:
Title:
MEANT 2 BE, INC.
By__________________________
Name:
Title:
OFFICIAL ALL STAR CAFE, INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (ASPEN), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (CHEFS), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (CHICAGO), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (COSTA MESA), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (FRANCE), L.C.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (GAMING), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (ISRAEL), L.C.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (LONDON), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (MAIL ORDER), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (ORLANDO
DISTRIBUTION), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (PARIS), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (PHOENIX), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (REGION I), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (TEL AVIV), INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (THEATRES),
By__________________________
Name:
Title:
PLANET HOLLYWOOD TRANSPORTATION, INC.
By__________________________
Name:
Title:
PLANET HOLLYWOOD (TROCADERO), L.C.
By__________________________
Name:
Title:
PLANET HOSPITALITY HOLDINGS, INC.
By__________________________
Name:
Title:
PLANET MOVIES COMPANY L.P.
By__________________________
Name:
Title:
PMBA UNIT (PH), L.P.
By__________________________
Name:
Title:
PMC MANAGEMENT, INC.
By__________________________
Name:
Title:
ROCKY PIT, INC.
By__________________________
Name:
Title:
SILVER BRACELETS, INC.
By__________________________
Name:
Title:
SOUND REPUBLIC I, INC.
By__________________________
Name:
Title:
SOUND REPUBLIC INC.
By__________________________
Name:
Title:
TEN ALPS, INC.
By__________________________
Name:
Title:
TRUSTEE
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By__________________________
Name:
Title:
Exhibit T3C-2
Exhibit A
To Indenture
[The face of the Notes shall be substantially as follows:]
THIS NOTE IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED AS OF
MARCH __, 2000 BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT,
WILMINGTON TRUST COMPANY, AS AGENT, AND UNITED STATES TRUST COMPANY OF NEW YORK,
AS JUNIOR SUBORDINATED TRUSTEE, WHICH MATERIALLY AFFECTS CERTAIN PAYMENT RIGHTS,
SUBORDINATES CERTAIN SECURITY INTERESTS AND LIMITS RIGHTS TO ENFORCEMENT. ALL
PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD INDEBTEDNESS HEREUNDER ARE
BOUND BY THE TERMS OF THE INTERCREDITOR AND SUBORDINATION AGREEMENT WHICH WILL
BE MADE AVAILABLE UPON REQUEST.
PLANET HOLLYWOOD INTERNATIONAL, INC.
10% Secured Deferrable Interest Notes Due 2005.
No. __________ $_____________ Initial Principal Amount
Interest Payment Dates: ________ and _________ of each year,
commencing ________, ___________
CUSIP No. ______________
PLANET HOLLYWOOD INTERNATIONAL, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
________________________, or registered assigns, the Initial Principal Amount
set forth above (as the same may be increased through the compounding of
deferred interest as provided in the immediately succeeding paragraph) on
________ __, 2005 and to pay interest thereon from the date hereof, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on each Interest Payment Date in each year, at the
rate of 10% per annum, until the principal hereof is paid or duly provided for,
PROVIDED that any principal and premium, if any, and any such installment of
interest, which is overdue shall bear interest at the rate of 12.75% per annum
(to the extent that the payment of such interest shall be legally enforceable),
from the dates such amounts are due until they are paid or duly provided for,
and such interest shall be payable on demand.
Notwithstanding the foregoing, the Company shall be entitled to defer
and compound to principal the first five semi-annual installments of interest on
the Notes on the related Interest Payment Dates; PROVIDED that (i) to the extent
so deferred and compounded, such installments shall be calculated at the rate of
12.75% per annum (rather than 10% per annum) and (ii) if, as reflected in the
Company's financial statements for the most recently completed period of four
fiscal quarters (commencing with the first fiscal quarter after the Notes are
initially issued) for which such financial statements are available, the ratio
of the Company's Consolidated EBITDA to Consolidated Interest Expense for such
period is greater than 1.75 to 1.00, the Company shall not be entitled to defer
or compound the next succeeding semi-annual installments of interest pursuant to
the foregoing.
The interest so payable in cash, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the last day of the calendar month
(whether or not a Business Day) next preceding such Interest Payment Date.
In the case of a default in payment of principal upon acceleration,
redemption or repurchase, the overdue principal and any overdue premium shall
bear interest at the rate of 12.75% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or duly provided for. Interest on any overdue principal or
premium shall be payable on demand. Any such interest on overdue principal or
premium which is not paid on demand shall bear interest at the rate of 12.75%
per annum (to the extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount so demanded
is paid or duly provided for, and such shall be payable on demand.
Payment in respect of the principal of (and premium, if any) and any
interest on this Note will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
or at such additional offices or agencies as the Company from time to time may
designate for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, PROVIDED, HOWEVER, that payment of the principal of (and premium,
if any, on) this Note shall be made only upon presentation and surrender hereof
at any such office or agency and, at the option of the Company, payment of
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[SEAL] PLANET HOLLYWOOD INTERNATIONAL, INC.
By __________________________
Name:
Title:
Attest:
By __________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee, certifies that
this is one of the 10% Secured Deferrable Interest Notes Due 2005 referred to in
the Indenture dated as of _____ __, 2000 among Planet Hollywood International,
Inc., [Names of the Subsidiary Guarantors] and the Trustee.
By _________________________
Authorized Signatory
<PAGE>
[Form of Reverse of Note:]
This Note is one of a duly authorized issue of Notes of the Company
designated as its 10% Secured Deferrable Interest Notes Due 2005 (herein called
the "Notes"), limited in aggregate principal amount to $_________, issued and to
be issued under an Indenture, dated as of ______ __, 2000 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee (herein called the "Trustee" which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders and of the terms upon
which the Notes are, and are to be, authenticated and delivered. Capitalized
terms used herein and not defined herein have the meanings ascribed thereto in
the Indenture.
To guarantee (a) the full and punctual payment of principal of and
interest on the Notes when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Company under
this Indenture and the securities and (b) the full and punctual performance
within applicable grace periods of all other obligations of the Company under
this Indenture and the Notes, the Subsidiary Guarantors have unconditionally and
irrevocably guaranteed, jointly and severally, such obligations pursuant to the
terms of Article 11 of the Indenture.
The Notes are secured to the extent set forth in the Security
Documents and Article 10 of the Indenture.
At any time following the Issue Date, the Notes will be redeemable, in
whole or in part, at the option of the Company, upon not less than 30 and no
more than 60 days' prior notice, on any _______ __, _______.__, _______ __ or
_______ __ of any year at a redemption price equal to 100% of the principal
amount thereof PLUS accrued and unpaid interest, if any, to the date of
redemption.
If (i) as reflected in the Company's financial statements for the most
recently completed period of four fiscal quarters immediately preceding any
Interest Payment Date (commencing with the four-quarter fiscal period ending
immediately prior to the first anniversary of the Issue Date), the ratio of the
Company's Consolidated EBITDA to Consolidated Interest Expense for such
four-quarter period is greater than 2.00 to 1.00 and (ii) the sum of the
Company's cash on hand at the last day of such period PLUS the lesser of the
borrowing base or the commitments under the Revolving Credit Agreement exceeds
$25,000,000, then the Company shall be required to use 50% of such excess amount
to redeem the Notes, in whole or in part, on the next Interest Payment Date, at
a redemption price equal to 100% of the principal amount thereof PLUS accrued
and unpaid interest, if any, to the date of redemption (a "Mandatory
Redemption"); PROVIDED, HOWEVER, that the Company shall not be required to make
a Mandatory Redemption if such redemption is not otherwise permitted under the
Revolving Credit Agreement or the Senior Secured Note Purchase Agreement.
The Notes do not have the benefit of any sinking fund obligations.
Under the Indenture, the Company is obligated to make Offers to
Purchase Notes as described below:
(i) If a Change of Control occurs, the Company will be required
to make an Offer to Purchase all of the outstanding Notes at a
purchase price in cash equal to 100% of the principal amount thereof,
plus accrued and unpaid interest, if any, on such principal amount, to
the date of purchase; and
(ii) If the Company or any Restricted Subsidiary consummates an
Asset Disposition, under certain circumstances, the Company will be
required to make an Offer to Purchase up to all or a specified portion
of the Notes at a purchase price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, if any, on
such principal amount to the date of purchase, in an aggregate
principal amount equal to any Net Available Proceeds from such an
Asset Disposition which are not used to make a permanent repayment or
reduction of (i) Debt then outstanding under any Bank Credit Agreement
or Vendor Financing Facility, to the extent such agreement or facility
would require such application or prohibit an Offer to Purchase Notes
or (ii) Debt then outstanding of the Company or a Restricted
Subsidiary that ranks PARI PASSU with the Notes at a price no greater
than 100% of the principal amount thereof plus accrued and unpaid
interest to the date of purchase.
In the event of redemption, or purchase pursuant to an Offer to
Purchase, of this Note in part only, a new Note or Notes for the unredeemed or
unpurchased portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire Debt of this Note and for defeasance of certain covenants (including
covenants relating to the making of Offers to Purchase the Notes) and Events of
Default with respect to this Note, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, the Notes may be
declared due and payable, in the manner and with the effect provided in the
Indenture. Upon payment of (i) the principal of the Notes so declared due and
payable, any overdue premium and any overdue installment of interest in respect
of this Note and (ii) as provided on the face hereof, any interest on any
overdue principal, premium or interest in respect of this Note (to the extent
that the payment of such interest shall be legally enforceable), all of the
Company's obligations in respect of the payment of the principal of and any
premium and interest on this Note shall terminate.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the outstanding Notes. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the outstanding Notes, on behalf of the Holders of all the
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
In addition, without the consent of any Holder, the Indenture and the Notes may
be amended and supplemented to cure any ambiguity or inconsistency, make other
changes which will not adversely affect in any material aspect the rights of the
Holders or certain other matters set forth in the Indenture. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver, or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the outstanding
Notes shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity and the Trustee shall not have received from the Holders of a majority
in principal amount of the outstanding Notes a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to certain suits described in the Indenture, including any suit
instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective
due dates expressed herein (or, in the case of redemption, on or after the
Redemption Date or, in the case of any purchase of this Note required to be made
pursuant to an Offer to Purchase, on or after the Purchase Date).
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company in the Borough of Manhattan, The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
A director, officer, employee, stockholder or incorporator of the
Company shall not have any liability for any obligations of the Company under
this Note or the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Holder by accepting this Note waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of this Note.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Note shall be computed on the basis of a 360-day year
of twelve 30-day months.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York, including Section 5-1401 of
the New York General Obligations Law, but otherwise without regard to conflict
of laws rules.
<PAGE>
[FORM OF GUARANTEE]
THIS GUARANTEE IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED
AS OF MARCH __, 2000 BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT,
WILMINGTON TRUST COMPANY, AS AGENT, AND UNITED STATES TRUST COMPANY OF NEW YORK,
AS JUNIOR SUBORDINATED TRUSTEE, WHICH MATERIALLY AFFECTS CERTAIN PAYMENT RIGHTS,
SUBORDINATES CERTAIN SECURITY INTERESTS AND LIMITS RIGHTS TO ENFORCEMENT. ALL
PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD INDEBTEDNESS GUARANTEED
HEREUNDER ARE BOUND BY THE TERMS OF THE INTERCREDITOR AND SUBORDINATION
AGREEMENT WHICH WILL BE MADE AVAILABLE UPON REQUEST.
Each Subsidiary Guarantor hereby unconditionally and irrevocably
guarantees jointly and severally, on a subordinated basis to the extent and in
the manner provided in the Intercreditor Agreement, to each Holder and to the
Trustee and its successors and assigns (a) the full and punctual payment of
principal of and interest on the Notes when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under this Indenture and the securities and (b) the full and
punctual performance within applicable grace periods of all other obligations of
the Company under the Indenture and the Notes (all the foregoing being
hereinafter collectively called the "OBLIGATIONS"). Each Subsidiary Guarantor
further agrees that the Obligations may be extended or renewed, in whole or in
part, without notice or further assent from such Subsidiary Guarantor and that
such Subsidiary Guarantor will remain bound under Article 11 of the Indenture
notwithstanding any extension or renewal of any Obligation.
Each Subsidiary Guarantor further agrees that its Guarantee
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Obligations.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Notes upon which this Guarantee is
notes shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
The terms of the Guarantees evidences hereby are qualified in their
entirety and remain subject to the terms of Article 11 of the Indenture, as such
Article may be amended, modified or changes from the date hereof, including but
not limited to the addition of additional Subsidiary Guarantors and the release
of existing Subsidiary Guarantors form their obligations under the Indenture.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York, including Section 5-1401 of the New York
General Obligations Law, but otherwise without regard to conflicts of laws
rules.
[THE SIGNATURE PAGE FOLLOWS.]
<PAGE>
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this
instrument to be duly executed.
PLANET HOLLYWOOD MEMORABILIA, INC.
By____________________________________
Name:
Title:
ALL STAR CAFE INTERNATIONAL, INC
By____________________________________
Name:
Title:
ALL STAR CAFE (NEW YORK), INC.
By____________________________________
Name:
Title:
COOL PLANET, INC.
By____________________________________
Name:
Title:
COOL PLANET II, INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (HONOLULU), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (LP), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (NEW YORK CITY), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (NEW YORK), LTD.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (ORLANDO), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION II), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION III), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION IV), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION V), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION VI), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION VII), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (TEXAS), LTD.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (WAREHOUSE), INC.
By____________________________________
Name:
Title:
308 AVIATION, INC.
By____________________________________
Name:
Title:
308-III AVIATION, INC.
By____________________________________
Name:
Title:
ALL STAR CAFE (LP), INC.
By____________________________________
Name:
Title:
ALL STAR CAFE (REGION V), INC.
By____________________________________
Name:
Title:
ALL STAR CAFE (REGION VII), INC.
By____________________________________
Name:
Title:
COAST LICENSING, INC.
By____________________________________
Name:
Title:
COOL PLANET I, INC.
By____________________________________
Name:
Title:
EBCO MANAGEMENT, INC.
By____________________________________
Name:
Title:
KARMALANNE, INC.
By____________________________________
Name:
Title:
MEANT 2 BE, INC.
By____________________________________
Name:
Title:
OFFICIAL ALL STAR CAFE, INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (ASPEN), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (CHEFS), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (CHICAGO), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (COSTA MESA), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (FRANCE), L.C.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (GAMING), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (ISRAEL), L.C.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (LONDON), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (MAIL ORDER), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (ORLANDO DISTRIBUTION), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (PARIS), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (PHOENIX), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION I), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (TEL AVIV), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (THEATRES), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD TRANSPORTATION, INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (TROCADERO), INC.
By____________________________________
Name:
Title:
PLANET HOSPITALITY HOLDINGS, INC.
By____________________________________
Name:
Title:
PLANET MOVIES COMPANY, L.P.
By____________________________________
Name:
Title:
PMBA UNIT (PH), L.P.
By____________________________________
Name:
Title:
PMC MANAGEMENT, INC.
By____________________________________
Name:
Title:
ROCKY PIT, INC.
By____________________________________
Name:
Title:
SILVER BRACELETS, INC.
By____________________________________
Name:
Title:
SOUND REPUBLIC I, INC.
By____________________________________
Name:
Title:
SOUND REPUBLIC, INC.
By____________________________________
Name:
Title:
TEN ALPS, INC.
By____________________________________
Name:
Title:
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to:
-----------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
-----------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: __________________ Your Signature: _______________________________
(sign exactly as name appears on
the other side of this Note)
Signature Guarantee: ___________________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"),
the Stock Exchange Medallion Program ("SEMP"), the New York Stock
Exchange, Inc. Medallion Signature Program ("MSP") or such other
signature guarantee program as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP, SEMP or MSP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its entirety by
the Company pursuant to Section 4.7 or 4.10 of the Indenture, check here:
- ---------
If you want to elect to have only a part of the principal amount of
this Note purchased by the Company pursuant to Section 4.7 or 4.10 of the
Indenture, state the portion of such amount: $________.
Dated: __________________ Your Signature: _______________________________
(sign exactly as name appears on
the other side of this Note)
Signature Guarantee: ___________________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"),
the Stock Exchange Medallion Program ("SEMP"), the New York Stock
Exchange, Inc. Medallion Signature Program ("MSP") or such other
signature guarantee program as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP, SEMP or MSP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
Exhibit T3C-4
[Exhibit C to the Indenture]
SRZ Draft
03/10/00
===============================================================================
INTERCREDITOR AND SUBORDINATION AGREEMENT
dated as of March __, 2000
among
THE CIT GROUP/BUSINESS CREDIT, INC.,
THE SENIOR AGENT ON BEHALF OF THE CR SENIOR LENDERS,
WILMINGTON TRUST COMPANY, AS AGENT
FOR LENDERS [IDENTIFIED ON EXHIBIT A]
UNITED STATES TRUST COMPANY OF NEW YORK,
THE JUNIOR SUBORDINATED TRUSTEE
CONSENTED TO BY THE NOTEHOLDERS APPEARING ON
SIGNATURE PAGE
===============================================================================
<PAGE>
TABLE OF CONTENTS
PAGE
-----
ARTICLE I DEFINITIONS.....................................................2
Section 1.1 Certain Definitions.......................................2
Section 1.1 A BH/PIK Lenders Lien Subordination.........................6
Section 1.1 B CR/Junior Subordinated Trustee Lien Subordination.........7
Section 1.1 C Junior Subordinated Noteholders Debt Subordination........9
Section 1.1 D BH Deficiency Claim Subordination........................10
Section 1.1 E Junior Subordinated Deficiency Claim Subordination.......10
Section 1.2 No Payment Upon Insolvency Event..........................7
Section 1.3 No Payment When CR Senior Obligations in Default..........8
Section 1.4 Remedies Standstill.......................................8
Section 1.5 Waiver of Certain Rights.................................11
Section 1.6 [Intentionally Left Bland................................12
Section 1.7 [Intentionally Left Blank]................................9
Section 1.8 Provisions Solely To Define Relative Rights...............9
Section 1.9 No Waiver of Subordination Provisions.....................9
Section 1.10 Amendments, etc..........................................10
Section 1.11 Specific Enforcement.....................................10
ARTICLE II COLLATERAL ISSUES, ETC........................................10
Section 2.1 Representations and Warranties as to this Agreement......10
Section 2.2 CR First Priority Collateral Rights......................10
Section 2.3 A BH First Priority Collateral Rights......................11
Section 2.3 B BH First Priority Collateral Sale Proceeds Shortfall.....16
Section 2.4 Guaranty and Subordination Action........................11
Section 2.5 [Intentionally Left Blank]...............................12
Section 2.6 Exclusive Enforcement Rights.............................12
ARTICLE III OTHER AGREEMENTS.............................................13
Section 3.1 Releases................................................13
Section 3.2 Insurance and Condemnation Awards.......................14
Section 3.3 No Additional Obligations...............................14
Section 3.4 Waivers.................................................15
Section 3.5 Information Concerning PHI, etc.........................16
Section 3.6 Application of Payments.................................16
Section 3.7 Independent Decisions...................................16
Section 3.8 Turnover of Prohibited Transfers........................17
Section 3.9 Effectiveness During Insolvency Proceeding..............17
Section 3.10 Amendments..............................................17
Section 3.11 Limitation on Declaring Defaults........................17
Section 3.12 Duration and Termination; Payment Invalidated...........17
Section 3.13 Notice of BH/PIK Lenders Interests......................18
Section 3.14 Credit Documents........................................19
Section 3.15 Bailee for Perfection...................................19
Section 3.16 Legend..................................................19
Section 3.17 Junior Subordinated Lenders: Power of Attorney;
Agreement to Cooperate..................................19
Section 3.18 BH Senior Lenders: Power of Attorney; Agreement
to Cooperate............................................20
Section 3.19 CR Senior Lenders/Junior Subordinated Lenders:
Power of Attorney; Agreement to Cooperate...............28
ARTICLE IV MISCELLANEOUS.................................................20
Section 4.1 Conflict................................................20
Section 4.2 No Third Party Benefit, etc.............................20
Section 4.3 Amendments and Waivers..................................21
Section 4.4 Successors and Assigns..................................21
Section 4.5 Partial Invalidity......................................21
Section 4.6 Communications..........................................21
Section 4.7 Governing Law; Consent to Jurisdiction..................22
Section 4.8 Forum Selection and Consent to Jurisdiction.............22
Section 4.9 Waiver of Jury Trial, etc...............................23
Section 4.10 Counterparts............................................23
Section 4.11 Further Assurances......................................23
Section 4.12 Specific Enforcement....................................23
Section 4.13 Acknowledgement by PHI..................................23
SCHEDULES
Schedule 1 - List of Borrowers
Schedule 2 - CR First Priority Collateral
Schedule 3 - BH First Priority Collateral
Annex I - CR Senior Security Agreements
Annex II - BH Senior Security Agreements
Annex III - Junior Subordinated Security Agreements
Annex IV - BH Revolver Participation
<PAGE>
INTERCREDITOR AND SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND SUBORDINATION AGREEMENT, dated as of March __,
2000 (as amended, restated or otherwise modified from time to time, this
"AGREEMENT"), among THE CIT GROUP/BUSINESS CREDIT, INC., ("CIT") as agent for
CIT ROTHSCHILD RECOVERY FUND, L.P. ("Rothschild") and the other lenders party
to the CR Senior Credit Agreement from time to time (together with its
successors and assigns, in such capacity, the "CR Senior Agent") pursuant to the
CR Senior Credit Agreement (as hereinafter defined), WILMINGTON TRUST COMPANY,
as agent (the "BH Senior Agent") for each BH Senior Lender identified in Exhibit
A annexed hereto (together with any and all successors and assigns,
collectively, the "BH Senior Lenders") under the BH Note Purchase Agreement (as
hereinafter defined), UNITED STATES TRUST COMPANY OF NEW YORK as trustee under
the Junior Subordinated Indenture (as hereinafter defined) (together with its
successors and assigns in such capacity, the "Junior Subordinated Trustee")
consented to by the Junior Subordinated Noteholders appearing on the signature
page hereto.
RECITALS:
WHEREAS, Planet Hollywood International, Inc. ("PHI"), and the other
entities listed on Schedule 1 hereto (herein being referred to collectively as
the "COMPANY"), CIT, Rothschild and various financial institutions as may from
time to time become parties thereto (collectively, the "CR SENIOR LENDERS") and
the CR Senior Agent are entering into a Revolving Credit Agreement, dated as of
the date hereof (as amended, restated, supplemented, replaced or otherwise
modified from time to time in accordance with SECTION 3.10 hereof, the "CR
SENIOR CREDIT AGREEMENT") and the CR Guaranties (as hereinafter defined);
WHEREAS, the CR Senior Obligations as hereinafter defined are secured
by (a) first priority perfected liens on and security interests in substantially
all of the assets (excluding the BH First Priority Collateral) of the Company
and the Subsidiary Guarantors (as hereinafter defined) as more fully described
on Schedule 2 hereto (collectively, the "CR FIRST PRIORITY COLLATERAL"), and (b)
second priority perfected liens on and security interest in all real property of
the Company located at 1567 Broadway, New York, New York and the other
collateral listed on and as more fully described on Schedule 3 (the "BH FIRST
PRIORITY COLLATERAL"), in each case pursuant to the CR Senior Security
Agreements;
WHEREAS, the Company and the BH Senior Agent and the BH Senior Lenders
are entering into a SENIOR NOTE PURCHASE AGREEMENT, dated as of the date hereof
(as amended, restated, supplemented, replaced or otherwise modified from time to
time in accordance with SECTION 3.10, the "BH NOTE PURCHASE AGREEMENT") and the
BH Guaranties (as hereinafter defined);
WHEREAS, the BH Senior Obligations (as hereinafter defined) are
secured by (a) second priority perfected liens on and security interests in
substantially all of the CR First Priority Collateral and (b) first priority
perfected liens on all of the BH First Priority Collateral, in each case
pursuant to the BH Senior Security Agreements; and
WHEREAS, the Company, and the Junior Subordinated Trustee, are
entering into a Junior Subordinated Indenture dated, as of the date hereof (as
amended, restated, supplemented, replaced or otherwise modified from time to
time in accordance with SECTION 3.10 hereof, the "JUNIOR SUBORDINATED
INDENTURE");
WHEREAS, the Junior Subordinated Obligations (as hereinafter defined)
are secured by third priority perfected liens on and security interests in all
the Intercreditor Collateral (as hereinafter defined) pursuant to the Junior
Subordinated Credit Documents (as hereinafter defined);
WHEREAS, the Junior Subordinated Obligations are junior and
subordinate in right of payment in full in cash of the CR Senior Obligations and
the BH Senior Obligations;
WHEREAS, this Agreement, (a) confirms (i) the first priority perfected
security interests and liens of the CR Senior Agent in the CR First Priority
Collateral, (ii) the second priority perfected security interests and liens of
the CR Senior Agent in the BH First Priority Collateral, (iii) the second
priority perfected security interests and liens of the BH Senior Agent in the CR
First Priority Collateral, (iv) the first priority perfected security interests
and liens of the BH Senior Agent in the BH First Priority Collateral (the "CR
First Priority Collateral" and the "BH First Priority Collateral" being
collectively referred to as the "INTERCREDITOR COLLATERAL"), and (v) the third
priority security interests and liens of the Junior subordinated Trustee in the
CR First Priority Collateral and the BH First Priority Collateral, and (b)
provides for the relative rights of the Intercreditor Parties, in connection
with, among other things, the enforcement of their respective security interests
and liens in the Intercreditor Collateral.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, each
of the CR Senior Agent, the BH Senior Agent, and the Junior Subordinated Trustee
hereby agrees as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS. The following terms when used in this
Agreement shall have the following meanings:
"AGREEMENT" is defined in the PREAMBLE hereto.
"APPLICABLE LAW" means any law of the United States or any other
jurisdiction where any Intercreditor Collateral is located or any Obligor
operates, including, without limitation, the UCC.
"BANKRUPTCY CODE" means Title 11 of the United States Bankruptcy Code
(11 U.S.C. ss. 101 et seq.), as amended from time to time and any successor
statute.
"BH DEFICIENCY CLAIM" means the amount, if any, of BH Senior
Obligations remaining unpaid and/or not satisfied after all of the Intercreditor
has been sold, transferred, liquidated or otherwise disposed of on account of
any Remedial action or otherwise.
"BH FIRST PRIORITY COLLATERAL" is defined in SECOND RECITAL hereto.
"BH FIRST PRIORITY COLLATERAL PROCEEDS" is defined in Section 1.2(a)
hereof.
"BH FIRST PRIORITY COLLATERAL SALE" means any sale, lease, transfer or
other disposition of all or any portion of any BH first Priority Collateral that
is not a Permitted Enforcement Action.
"BH GUARANTIES" means that certain or those certain guaranties of
payment of BH Senior Obligations executed by any BH Guarantor.
"BH GUARANTOR" means Planet Hollywood (Region III), Inc., Planet
Hollywood Hospitality, Inc. and any other Subsidiary Guarantor that owns any
interest in any of the BH First Priority Collateral.
"BH NOTE PURCHASE AGREEMENT" shall mean that certain Note Purchase
Agreement, dated March __, 2000, pursuant to which BH Senior Lenders acquired
certain secured senior notes, as amended, modified, supplemented or restated
from time to time.
"BH REVOLVER PARTICIPATIONS" means the junior participations, if any,
in the CR Credit Documents and CR Senior Obligations, substantially in
conformance with the form of participation annexed hereto as Exhibit C, that the
BH Senior Agent and/or the BH Senior Lenders may be required to purchase
pursuant to Section 2.3(b) hereof.
"BH SCHEDULED PAYMENTS" means (a) interest payable in respect of the
BH Senior Obligations at the Initial Note Rate (as such term is defined in the
BH Note Purchase Agreement) from time to time and (b) expenses payable and/or
reimbursable pursuant to the BH Note Purchase Agreement in an amount not to
exceed in the aggregate $150,000 (the "BH Scheduled Expenses").
"BH SENIOR AGENT" is defined in the PREAMBLE hereto.
"BH SENIOR LENDERS" is defined in the PREAMBLE hereto.
"BH SENIOR NOTE DOCUMENTS" collectively means the BH Note Purchase
Agreement, the BH Senior Security Agreements and all other documents,
instruments and agreements now or hereafter executed and/or delivered in
connection therewith, as the same may be amended, restated, supplemented,
replaced or otherwise modified from time to time in accordance with SECTION 3.10
hereof.
"BH SENIOR OBLIGATIONS" means the original aggregate principal amount
of $22,000,000 plus premium, if any, payable on redemption or prepayment of, and
interest on, all indebtedness and all other obligations now existing or
hereafter incurred under the BH Senior Note Documents, including without
limitation, all fees, expenses, claims, charges and indemnity obligations and
the Origination Fee (as defined in the BH Note Purchase Agreement).
"BH SENIOR SECURITY AGREEMENTS" collectively means all of the
agreements specified on ANNEX II hereto and each other guaranty, security
agreement, mortgage, deed of trust or other collateral agreement now or
hereafter entered into in connection with the BH Senior Obligations, each as may
be as amended, restated, supplemented, replaced or otherwise modified from time
to time in accordance with SECTION 3.10 hereof.
"BH/PIK CREDIT DOCUMENTS" collectively means the BH Senior Note
Documents and the Junior Subordinated Credit Documents.
"BH/PIK GUARANTIES" collectively means all the guaranties forming a
part of the BH Senior Note Documents or the Junior Subordinated Credit
Documents.
"BH/PIK LENDERS" collectively means the BH Senior Lenders, the BH
Senior Agent, the Junior Subordinated Trustee and the Junior Subordinated
Noteholders.
"BH/PIK OBLIGATIONS" collectively means the BH Senior Obligations and
the Junior Subordinated Obligations.
"BH/PIK SECURITY AGREEMENTS" collectively means the BH Senior Security
Agreements and the Junior Subordinated Security Agreements.
"COMPANY" is defined in the FIRST RECITAL hereto.
"CR COLLATERAL PROCEEDS" is defined in SECTION 3.18 hereof.
"CR CREDIT DOCUMENTS" collectively means the CR Senior Credit
Agreement, the CR Senior Security Agreements and all other documents,
instruments and agreements now or hereafter executed and/or delivered in
connection therewith, each as may be amended, restated, supplemented, replaced
or otherwise modified from time to time in accordance with SECTION 3.10 hereof.
"CR DEFICIENCY CLAIM" means the amount, if any, of CR Senior
Obligations remaining unpaid and/or not satisfied after all of the Intercreditor
Collateral has been sold, transferred, liquidated or otherwise disposed of on
account of any Remedial Action or otherwise.
"CR FIRST PRIORITY COLLATERAL" is defined in the SECOND RECITAL
hereto.
"CR GUARANTIES" means the guaranties forming a part of the CR Credit
Documents.
"CR SENIOR AGENT" is defined in the PREAMBLE hereto.
"CR SENIOR CREDIT AGREEMENT" is defined in the FIRST RECITAL hereto.
"CR SENIOR DEFAULT" is defined in SECTION 1.3 hereof.
"CR SENIOR LENDERS" is defined in the FIRST RECITAL hereto.
"CR SENIOR OBLIGATIONS" means the principal of, and premium, if any,
payable on redemption or prepayment of, and interest on, all indebtedness and
all other obligations now existing or hereafter incurred or owing under the CR
Credit Documents up to a maximum amount of $16,500,000 plus, all fees, expenses,
claims, charges and indemnity obligations.
"CR SENIOR SECURITY AGREEMENTS" collectively means all of the
agreements specified on ANNEX I hereto and each other guaranty, security
agreement, pledge agreement, mortgage, deed of trust or other collateral
agreement now or hereafter entered into in connection with the CR Senior
Obligations, each as may be as amended, restated, supplemented, replaced or
otherwise modified from time to time in accordance with SECTION 3.10 hereof.
"CREDIT DOCUMENTS" collectively means the CR Credit Documents and the
BH/PIK Credit Documents.
"GUARANTIES" collectively means the CR Senior Guaranties and the
BH/PIK Guaranties.
"GUARANTY ACTION" means any claim, demand, proceeding, action or act
against any guarantor pursuant to affecting or otherwise in connection with any
Credit Documents.
"INSOLVENCY PROCEEDING" means (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding relative to PHI, any Obligor or any of their property or
assets, (b) any liquidation, dissolution, reorganization or winding up of PHI or
any Obligor, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of PHI or any Obligor.
"INTERCREDITOR COLLATERAL" is defined in the EIGHT RECITAL hereto,
together with all Proceeds therefrom.
"INTERCREDITOR PARTIES" collectively means the CR Senior Agent, the CR
Senior Lenders and the BH/PIK Lenders.
"JUNIOR SUBORDINATED CREDIT DOCUMENTS" means the Junior Subordinated
Indenture, the Junior Subordinated Notes the Subordinated Notes, the Junior
Subordinated Security Agreements and all other documents, instruments and
agreements executed and/or delivered in connection therewith, each as may be
amended, restated, supplemented, replaced or otherwise modified from time to
time in accordance with SECTION 3.10 hereof.
"JUNIOR SUBORDINATED DEFICIENCY CLAIM" means the amount, if any, of
Junior Subordinated Obligations remaining unpaid and/or not satisfied after all
of the Intercreditor Collateral has been sold, transferred, liquidated or
otherwise disposed of on account of any Remedial Action or otherwise.
"JUNIOR SUBORDINATED INDENTURE" is defined in the FIFTH RECITAL
hereto.
"JUNIOR SUBORDINATED NOTES" means the notes issued pursuant to the
Junior Subordinated Indenture.
"JUNIOR SUBORDINATED NOTEHOLDERS" means the holders of the Junior
Subordinated Notes.
"JUNIOR SUBORDINATED NOTEHOLDER PERMITTED ACTION" means any lawsuit
permitted by Section 316(b) of the Trust Indenture Act to be commenced and
prosecuted by any Junior Subordinated Noteholder on account of non-payment of
principal and/or interest due and payable in accordance with the terms and
conditions of the Junior Subordinated Indenture.
"JUNIOR SUBORDINATED OBLIGATIONS" means the principal of, and premium,
if any, payable on redemption or prepayment of, and interest on, all
indebtedness and all other obligations now existing or hereafter incurred or
owing under, the Junior Subordinated Credit Documents, including without
limitation, all fees, expenses, claims, charges and indemnity obligations.
"JUNIOR SUBORDINATED SCHEDULED PAYMENTS" means, at such time when
interest in respect of the Junior Subordinated Notes is required to be
paid in cash under the terms of the Junior Subordinated Indenture, interest
payable at the non-default rate pursuant to Section __ of the Junior
Subordinated Indenture.
"JUNIOR SUBORDINATED SECURITY AGREEMENTS" collectively means all of
the agreements specified on ANNEX III hereto and each other guaranty, security
agreement, pledge agreement, mortgage, deed of trust or other collateral
agreement now or hereafter entered into in connection with the Junior
Subordinated Obligations, each as may be as amended, restated, supplemented,
replaced or otherwise modified from time to time in accordance with SECTION 3.10
hereof.
"JUNIOR SUBORDINATED TRUSTEE" is defined in the PREAMBLE hereto.
"LEGEND" is defined in SECTION 3.16 hereof.
"LIEN" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such property or asset.
"NET PROCEEDS" means, for any BH First Priority Collateral Sale or any
Permitted Enforcement Action, the amount of cash and other payments received by
the Company or the BH Senior Lenders net of the (i) amount, if any, of BH
Scheduled expenses previously paid by the Company (which amount shall be
retained by the Company from such Net Proceeds) and (ii) repayment of
Indebtedness secured by a Permitted Lien on the subject asset having a higher
priority than the priority of the Lien in favor of the BH Senior Agent on the
subject asset (as such terms are defined in the BH Note Purchase Agreement).
"OBLIGOR" means PHI and each of its subsidiaries that is obligated
under any CR Credit Document or BH/PIK Credit Document.
"PARTICIPATION PERIOD" is defined in Section 2.3(b) hereof.
"PERMITTED ENFORCEMENT ACTION" means any Remedial Action taken by the
BH Senior Agent and/or any BH Senior Lenders solely with respect to BH First
Priority Collateral or any BH Guarantor that then owns any interest in any BH
First Priority Collateral.
"PHI" is defined in the FIRST RECITAL hereto.
"PROCEEDS" means "proceeds," as such term is defined in Section
9-306(1) of the UCC and, in any event, shall include without limitation, (a) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to
any Obligor from time to time with respect to any of the Intercreditor
Collateral, (b) any and all payments (in any form whatsoever) made or due and
payable to any Obligor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Intercreditor Collateral by any governmental authority, (c) any and all other
amounts from time to time paid or payable under or in connection with any of the
Intercreditor Collateral on account of any Guaranty Action or Remedial Action
and (d) the following types of property acquired with cash Proceeds: accounts,
chattel paper, contracts, documents, general intangibles, equipment, investment
property and inventory, as such terms are defined in the UCC.
"REMEDIAL ACTION" means any claim, action, proceeding, order, judgment
or agreement (whether by judicial action, self help or otherwise) to foreclose
upon, take possession or control of, sell, lease, dispose of or otherwise
realize upon or protect (including, without limitation, any treatment of, or
distribution with respect to, the BH Senior Obligations or CR Senior Obligations
pursuant to any plan of reorganization or liquidation of any entity comprising a
part of the Company) any Intercreditor Collateral or other property of the
Company or any Guarantor, whether pursuant to the UCC or other Applicable Law.
"SECURITY AGREEMENTS" collectively means the CR Senior Security
Agreements and the BH/PIK Security Agreements.
"SENIOR DEFAULT" is defined in SECTION 1.3 hereof.
"SUBSIDIARY GUARANTORS" collectively means [_______________].
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
SECTION 1.1 A BH/PIK LENDERS LIEN SUBORDINATION. Notwithstanding
anything contained in the BH/PIK Credit Documents or any other document or
instrument evidencing or in any way relating to the BH/PIK Obligations, the
security interests and liens of the BH/PIK Lenders in the CR First Priority
Collateral are expressly "subordinate and junior" to the lien of the CR Senior
Lenders in the CR First Priority Collateral. Except for (i) the BH First
Priority Collateral Proceeds paid at any time to the BH Senior Agent or to the
BH Senior Lenders or (ii) the Junior Subordinated Scheduled Payments and the BH
Scheduled Payments made by the Company to the BH Senior Agent, the BH Senior
Lenders, or to the Junior Subordinated Trustee or the Junior Subordinated
Noteholders at such times as are required under the BH/PIK Credit Documents (in
effect on the date hereof), "subordinate and junior" shall mean that until the
CR Senior Obligations shall have been paid in full and satisfied as more fully
described herein, the BH/PIK Lenders shall not, without the express prior
written consent of the CR Senior Lenders, (A) demand, require or accept any
payments or prepayment of the BH/PIK Obligations, except for or on account of
any Permitted Enforcement Action, (B) enforce or take any action to (x) enforce
or collect the BH/PIK Obligations or any portion thereof (other than, in the
case of the BH Senior Agent or any BH Senior Lender, any Permitted Enforcement
Action) or any BH First Priority Collateral Sale or, in the case of any Junior
Subordinated Noteholder, any Junior Subordinated Noteholder Permitted Action),
or (y) enforce any rights or remedies with respect to, or to realize upon, the
CR First Priority Collateral or (C) exercise any remedies with respect thereto
under the BH/PIK Credit Documents except, in the case of the BH Senior Agent or
any BH Senior Lender, for any Permitted Enforcement Action or any BH First
Priority Collateral Sale.
SECTION 1.1 B CR/JUNIOR SUBORDINATED TRUSTEE LIEN SUBORDINATION.
Notwithstanding anything contained in the CR Credit Documents, the Junior
Subordinated Creditor Documents or any other document or instrument evidencing
or in any way relating to the CR Senior Obligations and/or the Junior
Subordinated Obligations, the security interest and liens of the CR Senior
Agent, the CR Senior Lenders and the Junior Subordinated trustee in the BH First
Priority Collateral are expressly "subordinate and junior" to the security
interests and liens of the BH Senior Agent in the BH First Priority Collateral.
"Subordinate and junior" shall mean that until the BH Senior Obligations shall
have been paid in full and satisfied as more fully described herein (i) the CR
Senior Agent, the CR Senior Lenders and the Junior Subordinated Trustee shall
not, without the express prior written consent of the BH Senior Agent, (i)
enforce or take any action to enforce any rights or remedies with respect to, or
to realize upon, the BH First Priority Collateral, or any BH Guaranty, or (2)
exercise any remedies with respect thereto under the CR Credit Documents and/or
the Junior Subordinated Credit Documents, and (B) in addition, except for the
Junior Subordinated Scheduled Payments, the Junior Subordinated Trustee also
shall not, without the express prior written consent of the BH Senior Agent (1)
demand, require or accept any payment or prepayment of the Junior Subordinated
Obligations, or (2) enforce or take any action to enforce or collect the Junior
Subordinated Obligations or any portion thereof.
SECTION 1.1 C JUNIOR SUBORDINATED NOTEHOLDERS DEBT SUBORDINATION. To
the extent and in the manner hereinafter set forth, the payment of the Junior
Subordinated Obligations is hereby expressly made subordinate and subject in
right of payment to the prior payment in full in cash of all the CR Senior
Obligations (first) and the BH Senior Obligations (second) pursuant to the terms
of this Agreement unless and until the CR Senior Obligations and the BH Senior
Obligations shall have been indefeasibly paid in full and satisfied. The Junior
Subordinated Trustee and the Junior Subordinated Noteholders will not, without
the express prior written consent of the CR Senior Agent, with respect to the CR
First Priority Collateral, and the BH Senior Agent with respect to the BH First
Priority Collateral, take, demand or receive, and the Company or any Subsidiary
Guarantor will not make, give or permit, directly or indirectly, by setoff,
redemption, purchase or in any other manner, any payment on or security for the
whole or any part of the Junior Subordinated Obligations, and, without the
express prior written consent of the CR Senior Agent and the BH Senior Agent,
the Junior Subordinated Trustee and each of the Junior Subordinated Noteholders
will not accelerate the scheduled maturities of any amounts owing under the
Junior Subordinated Obligations; PROVIDED, HOWEVER, that the Company may make,
and the Junior Subordinated Trustee and each of the Junior Subordinated
Noteholders may demand and receive, the Junior Subordinated Scheduled Payments
so long as no Event of Default under and as defined in the CR Credit Documents
or the BH Note Documents shall have occurred and then be continuing, or would
occur as a result of such payment.
SECTION 1.1 D BH DEFICIENCY CLAIM SUBORDINATION. To the extent and in
the manner hereinafter set forth, the payment of the BH Deficiency Claim is
hereby expressly made subordinate and subject in right of payment to the prior
payment in full in cash of all the CR Deficiency Claims, and until such time,
the BH Senior Agent and each BH Senior Lender will not, without the express
prior written consent of the CR Senior Agent take, demand or receive, and the
Company or any Subsidiary Guarantor will not make, give or permit, directly or
indirectly, by setoff, redemption, purchase or in any other manner, any payment
for the whole or any part of the BH Deficiency Claim without the express written
consent of the CR Senior Agent.
SECTION 1.1 E JUNIOR SUBORDINATED DEFICIENCY CLAIM SUBORDINATION. To
the extent and in the manner hereinafter set forth, the payment of the Junior
Subordinated Deficiency Claim is hereby expressly made subordinate and subject
in right of payment to the prior payment in full in cash of all the CR
Deficiency Claims and all of the BH Deficiency Claims, and until such time, the
Junior Subordinated Trustee and each of the Junior Subordinated Noteholders will
not, without the express prior written consent of the CR Senior Agent and the BH
Senior Agent, take, demand or receive, and the Company or any Guarantor will not
make, give or permit, directly or indirectly, by setoff, redemption, purchase or
in any manner, any payment for the whole or any part of the Junior Subordinated
Deficiency Claim without the express written consent of the CR Senior Agent and
the BH Senior Agent.
SECTION 1.2 NO PAYMENT UPON INSOLVENCY EVENT. During any Insolvency
Proceeding:
(a) the CR Senior Lenders shall receive payment in full in cash of all
amounts due on or to become due on or in respect of all CR Senior Obligations
(including, without limitation, any fees, costs and interest accruing thereon at
the rate provided in the CR Senior Credit Agreement after the commencement of
any such Insolvency Proceeding, whether or not such fees, costs and interests
are allowed as a claim against the Company and/or any Guaranty in such
Insolvency Proceeding) before the BH/PIK Senior Lenders receive or accept any
payment or distribution, whether by setoff, exercising contractual or statutory
rights or otherwise, and whether in the form of cash, stock, property or
otherwise, on account of the BH/PIK Obligations; PROVIDED, HOWEVER, that subject
to Section 2.3B hereof, nothing set forth in this clause shall be deemed to
restrict or limit in any way, the rights of the BH Senior Lenders to receive Net
Proceeds of the BH First Priority Collateral received pursuant to any Permitted
Enforcement Action and/or any BH First Priority Collateral Sale (collectively,
the "BH FIRST PRIORITY COLLATERAL PROCEEDS");
(b) any payment, transfer or other distribution of assets of the
Company (or of any Subsidiary Guarantor other than a BH Guarantor in respect of
BH First Priority Collateral) of any kind or character, whether in the form of
cash, property, securities or otherwise, by setoff, exercising contractual or
statutory rights or otherwise (other than BH First Priority Collateral Proceeds
to the BH Senior Agent), to which the BH/PIK Senior Lenders would be entitled
but for the provisions of this SECTION 1.2, shall be paid by the Company, the
Subsidiary Guarantor or the liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee, or otherwise, directly to the CR Senior Agent on behalf of
the CR Senior Lenders; and
(c) to the extent any portion of (or payment in respect of) the CR
Senior Obligations, the BH Senior Obligations, or the Junior Subordinated
Obligations (whether by or on behalf of the Company, as proceeds of security or
enforcement of any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar person under any
Insolvency Proceeding or in connection with any fraudulent conveyance or similar
law, then if such payment or incurrence of such obligation is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent,
or other similar person, the CR Senior Obligations originally the BH Senior
Obligations, and/or the Junior Subordinated Obligations (or any part of any of
these respective obligations intended to be satisfied) shall be deemed to be
reinstated and outstanding as if such payment had not occurred.
Notwithstanding the foregoing provisions of this Section 1.2, (a) in
the event that the BH/PIK Lenders shall receive any payment, transfer or
distribution of assets of the Company (or of any Subsidiary Guarantor other than
a BH Guarantor in respect of BH First Priority Collateral) of any kind or
character, whether in the form of cash, property, securities or otherwise (other
than (x) the Junior Subordinated Scheduled Payments and the BH Scheduled
Payments previously paid by the Company to the extent paid in accordance with
the terms hereof, and (y) payments received by the BH Senior Agent of BH First
Priority Collateral Proceeds), before all the CR Senior Obligations have been
paid in full in cash and all commitments of the CR Senior Lenders to make
extensions of credit available to the Company have been irrevocably terminated,
then such payment or distribution shall be held in trust for the benefit of, and
be immediately paid over to, the CR Senior Agent on behalf of the CR Senior
Lender; (b) in the event that the CR Senior Agent or any CR Senior Lender shall
receive any payment, transfer or distribution of assets of the Company (or any
Guarantor) of any kind or character, whether in the form of cash, property,
securities or otherwise after all CR Senior Obligations have been paid in full
and after all commitments of the CR Senior Lenders to make extensions of credit
available to the Company have terminated, then such payment or distribution
shall be held in trust for the benefit of, and be immediately paid over to, the
BH Senior Agent on behalf of the BH Senior Lenders until BH Senior Obligations
have been paid in full and then to Junior Subordinated Trustee; (c) in the event
that the CR Senior Agent, any CR Senior Lender or the Junior Subordinated
Trustee, prior to payment in full of all BH Senior Obligations, shall receive
any Proceeds in respect of the BH First Priority Collateral, then such proceeds
shall, subject to Section 2.3 B hereof, be held in trust for the benefit of,
and be immediately paid over to, the BH Senior Agent on behalf of the BH Senior
Lenders until all BH Senior Obligations have been paid in full and then to the
CR Senior Agent; and (d) in the event that the BH Senior Agent or any BH Senior
Lender shall receive any payment, transfer or distribution of assets of the
Company (or any Guarantor) or any kind or character, whether in the form of
cash, property, securities or otherwise after all BH Senior Obligations have
been paid in full and after all commitments of the BH Senior Lenders to make
extensions of credit available to the Company have irrevocably terminated, then
such payment or distribution shall be held in trust for the benefit of and be
immediately paid over to, the Junior Subordinated Trustee until all the
Obligations under the Junior Subordinated Indenture have been paid in full.
SECTION 1.3 NO PAYMENT WHEN CR SENIOR OBLIGATIONS IN DEFAULT. In the
event that any Event of Default has occurred and is continuing under the CR
Senior Credit Agreement (a "CR Senior Default"), the BH/PIK Lenders shall not
receive or accept any BH Scheduled Payments or any Junior Subordinated Scheduled
Payments or any other payment, transfer, or distribution (other than payments
received by the BH Senior Agent or BH Senior Lenders of BH First Priority
Collateral Proceeds), whether by setoff, exercising contractual or statutory
rights or otherwise and whether in the form of cash, stock, property or
otherwise, on account of the BH Senior Obligations until the earlier to occur of
(a) such CR Senior Default having been waived in writing by the CR Senior Agent
or (b)(i) the CR Senior Obligations (including, without limitation, amounts that
have become and remain due by acceleration, together with all costs, fees and
any interest accruing thereon at the rate provided in the CR Senior Credit
Agreement) having been paid in full in cash, and (ii) all the commitments by the
CR Senior Lenders to make credit extensions available to the Company having been
terminated. Notwithstanding the foregoing, in the event that the Company shall
have made, or the BH/PIK Lenders shall have received, any payment or
distribution of assets of PHI or any of its subsidiaries of any kind or
character, whether in the form of cash, property, securities or otherwise, at
any time when prohibited by the foregoing provisions of this Section 1.3 (other
than payments received by the BH Senior Agent or BH Senior Lenders of BH First
Priority Collateral Proceeds), then in such event such payment shall be held in
trust for the benefit of, and be immediately paid over to, the CR Senior Agent
on behalf of the CR Senior Lenders.
SECTION 1.4 REMEDIES STANDSTILL. At any time while the BH/PIK Senior
Lenders are prohibited from obtaining or receiving any payment on the BH/PIK
Obligations, the BH/PIK Lenders shall not take, demand, sue for, accelerate or
commence any remedial proceeding with respect to any amount that is payable on
account of the BH/PIK Obligations until (a) all of the CR Senior Obligations
have been paid in full in cash and (b) all the commitments by the CR Senior
Lenders to make credit extensions available to the Company have been terminated;
PROVIDED, HOWEVER, that (x) the BH Senior Agent may accelerate the BH Senior
Obligations and take any Permitted Enforcement Action and receive BH First
Priority Collateral Sale Proceeds and (y) any Junior Subordinated Noteholder
may take any Junior Subordinated Noteholder Permitted Action.
SECTION 1.5 WAIVER OF CERTAIN RIGHTS. No BH/PIK Lender shall (a)
require the CR Senior Agent or the CR Senior Lenders to marshal any property or
assets of the Company or of any Subsidiary Guarantor, (b) require the CR Senior
Lenders or the CR Senior Agent to enforce any guaranty or any security interest
or lien given by any Guarantor or other person to secure the payment of any or
all of the CR Senior Obligations, (c) oppose, interfere or otherwise attempt to
prevent or impair the CR Senior Lenders or the CR Senior Agent from enforcing
the security interests and liens on any CR First Priority Collateral securing
the repayment of the CR Senior Obligations, or (d) take, or permit to be taken
on its behalf, any action that is inconsistent with the terms and conditions set
forth herein. Neither the CR Senior Agent, the CR Senior Lenders, the Junior
Subordinated Trustee nor any of the Junior Subordinated Noteholders shall (i)
require the BH Senior agent or the BH Senior Lenders to marshal any property or
assets of the Company or of any Guarantor, (ii) require the BH Senior Agent or
BH Senior Lenders to enforce any guaranty or any security interest or lien given
by any BH Guarantor or other person to secure the payment of any or all of the
BH Senior Obligations, (iii) oppose, interfere or otherwise attempt to prevent
or impair the BH Senior Agent and/or the BH Senior Lenders from enforcing the
security interests on any BH First Priority Collateral securing the repayment of
the BH Senior Obligations, or (iv) take, or permit to be taken on its behalf,
any action that is inconsistent with the terms and conditions set forth herein.
Notwithstanding anything to the contrary contained in this Section 1.5, any
Junior Subordinated Noteholder may take a Junior Subordinated Permitted Action.
SECTION 1.6 [Intentionally Left Blank]
SECTION 1.7 [Intentionally Left Blank]
SECTION 1.8 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS. The
provisions of this Agreement are and are intended solely for the purpose of
defining the relative rights of the BH Senior Agent, BH Senior Lenders, the
Junior Subordinated Noteholders, the Junior Subordinated Trustee, the CR Senior
Lenders and the CR Senior Agent. Nothing contained in this Agreement, in the
BH/PIK Credit Documents, or the CR Credit Documents or elsewhere shall impair,
as among the Company (or any Subsidiary Guarantor), or its creditors other than
the CR Senior Lenders, CR Senior Agent and the BH/PIK Lenders, the obligations
of the Company or any Subsidiary Guarantor, which are absolute and
unconditional, to pay the principal of, premium, if any, and, interest on the CR
Senior Obligations and the BH/PIK Obligations, in each case in accordance with
their respective terms.
SECTION 1.9 NO WAIVER OF SUBORDINATION PROVISIONS. No right of any
present or future CR Senior Lender or the CR Senior Agent to enforce the
provisions provided herein shall at any time be prejudiced or impaired in any
manner by (a) any act or failure to act on the part of the Company (or any
Subsidiary Guarantor) or the BH/PIK Lenders, (b) any act or failure to act by
the CR Senior Lenders or the CR Senior Agent, or (c) any noncompliance by the
Company, any Subsidiary Guarantor or the BH/PIK Lenders with the terms,
provisions and covenants of this Agreement, regardless, in each case, of any
knowledge thereof any CR Senior Lender may have or otherwise be charged with.
No right of any present or future BH Senior Lender or the BH Senior Agent to
enforce the provisions provided herein shall at any time be prejudiced or
impaired in any manner by (i) any act or failure to act on the part of the
Company (or any Subsidiary Guarantor), the Junior Subordinated Trustee, any
Junior Subordinated Noteholder, any CR Senior Lender or the CR Senior Agent,
(ii) any act or failure to act by the BH Senior Lenders or the BH Senior Agent,
or (iii) any noncompliance by the Company, any BH Guarantor, the Junior
Subordinated Trustee, any Junior Subordinated Noteholder, any CR Senior Lender
or the CR Senior Agent with the terms, provisions and covenants of this
Agreement, regardless, in each case, of any knowledge thereof the BH Senior
Agent or any BH Senior Lender may have or otherwise be charged with.
SECTION 1.10 AMENDMENTS, ETC. No provision of this Agreement may be
amended, supplemented or otherwise modified in any respect without the consent
of each party hereto affected thereby.
SECTION 1.11 SPECIFIC ENFORCEMENT.
(a) The provisions of this Agreement are intended for the benefit of,
and shall be enforceable directly by, the CR Senior Agent and the CR Senior
Lenders. The terms of this Agreement are a material inducement to the CR Senior
Lenders to make the CR Senior Obligations available to the Company. The CR
Senior Lenders would not have made the CR Senior Obligations available to the
Company without the benefit of the provisions contained in this Agreement. The
BH/PIK Lenders are receiving substantial benefits as a result of the CR Senior
Lenders making the CR Senior Obligations available to the Company.
(b) Each CR Senior Lender and the CR Senior Agent is hereby authorized
to demand specific performance of the provisions of this Agreement, whether or
not the Company shall have complied with any of the provisions hereof applicable
to it, at any time when any of the BH/PIK Lenders shall have failed to comply
with any of such provisions applicable to it. The BH/PIK Lenders may not assert
any defense based on the adequacy of a remedy at law that might be asserted as a
bar to such remedy of specific performance, it being understood that the CR
Senior Lenders will suffer irreparable harm if the terms of this Agreement are
not strictly enforced in accordance with its terms.
(c) The provisions of this Agreement are also intended for the benefit
of, and shall be enforceable directly by, the BH Senior Agent and the BH Senior
Lenders. The terms of this Agreement are a material inducement to the BH Senior
Lenders to make the BH Senior Obligations available to the Company. The BH
Senior Lenders would not have made the BH Senior Obligations available to the
Company without the benefit of the provisions contained in this Agreement. The
CR Senior Lenders and the Junior Subordinated Noteholders are receiving
substantial benefits as a result of the BH Senior Lenders making the BH Senior
Obligations available to the Company.
(d) Each BH Senior Lender and the BH Senior Agent is entitled to
specific performance of the provisions of this Agreement, whether or not the
Company shall have complied with any of the provisions hereof applicable to it,
at any time when the Junior Subordinated Trustee, any Junior Subordinated
Noteholder, the CR Senior Agent or any CR Senior Lenders shall have failed to
comply with any of such provisions applicable to it. The Junior Subordinated
Trustee, the Junior Subordinated Noteholders, the CR Senior Agent and the CR
Senior Lenders may not interpose any defense based on the adequacy of a remedy
at law that might be asserted as a bar to such remedy of specific performance,
it being understood that the BH Senior Lenders will suffer irreparable harm if
the terms of this Agreement are not strictly enforced in accordance with its
terms.
ARTICLE II
COLLATERAL ISSUES, ETC.
SECTION 2.1 REPRESENTATIONS AND WARRANTIES AS TO THIS AGREEMENT. Each
signatory to this Agreement hereby represents and warrants for itself to the
other signatories hereto that (a) it has all requisite power and authority to
execute, deliver and perform this Agreement, (b) the execution, delivery and
performance by it of this Agreement has been duly authorized by all requisite
corporate or other action, (c) no consent or approval of any other person and no
consent, license, approval or authorization of any governmental authority is
required in connection with the execution, delivery and performance by it of
this Agreement, (d) the execution, delivery and performance by it of this
Agreement does not violate the CR Senior Credit Documents, the BH/PIK Credit
Documents, the Plan, and/or the confirmation order to which it is a party, and
(e) this Agreement constitutes its legal, valid and binding obligation
enforceable against each such Intercreditor Party in accordance with its terms.
SECTION 2.2 CR FIRST PRIORITY COLLATERAL RIGHTS. Irrespective of (a)
the time, order, manner or method of creation, attachment or perfection of the
respective Liens granted by the Company to any Intercreditor Party in any or all
of the CR First Priority Collateral, (b) the time, manner or place of the filing
of the respective UCC financing statements or other applicable filings of any
Intercreditor Party with respect to any or all of the CR First Priority
Collateral, (c) any statement contained in any Credit Document, (d) any other
event, circumstance, occurrence or otherwise, or (e) any provision of any
Applicable Law to the contrary, (i) the Liens granted by the Company to the CR
Senior Agent (for and on behalf of itself and the CR Senior Lenders) in and to
the CR First Priority Collateral shall be superior and prior to any Liens
granted by the Company therein to the BH Senior Agent or the Junior Subordinated
Trustee, and (ii) the Liens granted by the Company to the BH Senior Agent for
and on behalf of the BH Senior Lenders in and to the CR First Priority
Collateral shall be superior and prior to any Liens granted by the Company
therein to the Junior Subordinated Trustee.
SECTION 2.3 A BH FIRST PRIORITY COLLATERAL RIGHTS. Irrespective of (a)
the time, order, manner or method of creation, attachment or perfection of the
Liens granted by the Company to any Intercreditor Party with respect in any or
all of the BH First Priority Collateral, (b) the time, manner or place of filing
of any mortgages or UCC financing statements or other applicable filings by any
Intercreditor Party with respect to any or all of the BH First Priority
Collateral, (c) any statement contained in any Credit Document, (d) any other
event, circumstance, occurrence or otherwise or (e) any provision of any
Applicable Law to the contrary, (i) the Liens granted by the Company to the BH
Senior Agent for and on behalf of the BH Senior Lenders in and to the BH First
Priority Collateral shall be superior and prior to any Liens granted by the
Company therein to the CR Senior Agent for and on behalf of, the CR Senior
Lenders, or to the Junior Subordinated Trustee and (ii) the Liens granted by the
Company to the CR Senior Agent (for and on behalf of itself and the CR Senior
Lenders) in and to the BH First Priority Collateral shall be superior and prior
to any Liens granted by the Company therein to the Junior Subordinated Trustee.
SECTION 2.3 B BH FIRST PRIORITY COLLATERAL SALE PROCEEDS SHORTFALL.
During the Participation Period (as defined below), upon the receipt by the BH
Senior Lenders of BH First Priority Collateral Proceeds, the BH Senior Lenders
shall concurrently purchase BH Revolver Participations in an aggregate face
amount equal to the amount of such BH First Priority Collateral Proceeds, up to
an aggregate face amount of the BH Revolver Participations not to exceed
$3,000,000. The "Participation Period" means the period of time from and after
(a) such time as the BH Senior Lenders have received BH First Priority
Collateral Proceeds equal to the sum of $22,000,000.00, plus all interest
accrued thereon under the BH Note Purchase Agreement at the [Initial Note Rate]
(as such term is defined on the BH Note Purchase Agreement), plus expenses until
(b) such time as the sum of (x) the aggregate amount of the BH First Priority
Collateral Proceeds received or retained by the Company (exclusive of any BH
Scheduled Expenses) and (y) the aggregate face amount of BH Revolver
Participations purchased by the BH Senior Lenders and/or the BH Senior Agent
equals $3,000,000. From and after the end of the Participation Period, the BH
Senior Agent and/or the BH Senior Lenders shall have no further obligation to
purchase any BH Revolver Participations.
SECTION 2.4 GUARANTY AND SUBORDINATION ACTION. (a) So long as the CR
Senior Obligations have not been paid in full or the commitments under the CR
Credit Documents have not been terminated, the CR Senior Agent shall have the
sole and exclusive right to take or fail to take any Guaranty Action with
respect to each Guaranty in any manner deemed appropriate by the CR Senior Agent
or the CR Senior Lenders in its or their sole discretion that is consistent with
the terms of each such Guaranty, and the BH/PIK Lenders shall not take any
Guaranty Action with respect to any Subsidiary Guarantor or seek to hinder,
delay, impede or seek judicial review of or jurisdiction over the method, manner
or actions of the CR Senior Agent or any CR Senior Lender in its pursuit of any
Guaranty Action with respect to each Guaranty; PROVIDED, HOWEVER, that (x) such
prohibitions and limitations shall in no way prohibit or limit or otherwise
restrict a Permitted Enforcement Action or a Junior Subordinated Noteholder
Permitted Action, and (y) until the BH Senior Obligations have been paid in
full, neither the CR Senior Agent nor any CR Senior Lender shall take any
Remedial Action against any BH Guarantor with respect to the BH First Priority
Collateral.
(b) So long as the CR Senior Obligations have not been paid in full or
the commitments under the CR Credit Documents have not been terminated, the CR
Senior Agent shall have the sole and exclusive right to take or fail to take any
Remedial Action with respect to the CR First Priority Collateral in any manner
deemed appropriate by the CR Senior Agent or the CR Senior Lenders in its or
their sole discretion (without regard to the BH/PIK Senior Lenders) that is
consistent with the terms hereof, and the BH/PIK Senior Lenders shall not take
any Remedial Action with respect to the CR First Priority Collateral or seek to
hinder, delay, impede or seek judicial review of or jurisdiction over the
method, manner or actions of the CR Senior Agent or any CR Senior Lender in its
pursuit of any Remedial Action with respect to the CR First Priority Collateral
PROVIDED, HOWEVER, that (x) such prohibitions and limitations shall in no way
prohibit or limit or otherwise restrict a Permitted Enforcement Action or a
Junior Subordinated Noteholder Permitted Action, and (y) until the BH Senior
Obligations have been paid in full, the CR Senior Agent nor any CR Senior Lender
shall take any Remedial Action against any BH Guarantor with respect to the BH
First Priority Collateral.
(c) So long as the BH Senior Obligations have not been paid in full,
the BH Senior Agent shall have the sole and exclusive right to take or fail to
take any Remedial Action with respect to the BH First Priority Collateral in any
manner deemed appropriate by the BH Senior Agent or the BH Senior Lenders in its
or their sole discretion (without regard to the CR Senior Lenders, the CR Senior
Agent, the Junior Subordinated Trustee or the Junior Subordinated Noteholders)
that is consistent with the terms hereof, and the CR Senior Lenders, the Junior
Subordinated Trustee and the Junior Subordinated Noteholders shall not take any
Remedial Action with respect to the BH First Priority Collateral, or seek to
hinder, delay, impede or seek judicial review of or jurisdiction over the
method, manner or actions of the BH Senior Agent or any BH Senior Lender in its
pursuit of any Remedial Action with respect to the BH First Priority Collateral.
SECTION 2.5 [INTENTIONALLY LEFT BLANK]
SECTION 2.6 EXCLUSIVE ENFORCEMENT RIGHTS. (a) The CR Agent and each CR
Senior Lender shall have the exclusive right to carry out, or not to carry out,
the provisions of each CR Senior Security Agreement (as each such agreement
relates to the CR First Priority Collateral, but not the BH First Priority
Collateral) and Guaranty (but not any Guaranty from a BH Guarantor), and to take
or commence any Guaranty Action or Remedial Action in connection therewith (but
not with respect to a BH Guarantor, with respect to the BH First Priority
Collateral), all in the CR Senior Agent's and each CR Senior Lender's sole
discretion and in the exercise of its and their sole business judgment (without
regard to the rights of the BH/PIK Lenders under any BH/PIK Credit Document with
respect to the CR First Priority Collateral). Such exclusive rights shall
include, specifically (but not by way of limitation) (i) the right to sell or
otherwise dispose of (or not take any such action) any or all of the CR First
Priority Collateral and to incur expenses in connection therewith, or (ii) the
right to commence or take or not commence or take any Guaranty Action (but not
with respect to a BH Guarantor, with respect to the BH First Priority
Collateral), all as may be desirable in the CR Senior Agent's and each CR Senior
Lender's sole discretion to the extent provided in the relevant CR Senior
Security Agreements (only to the extent related to the CR First Priority
Collateral) and Guaranties (but not any guaranty from a BH Guarantor), as the
case may be. In exercising its rights as aforesaid, the CR Senior Agent and each
CR Senior Lender shall not have any duties, obligations or liabilities to the
BH/PIK Lenders.
(b) The BH/PIK Lenders shall not, either directly or indirectly,
assert or exercise any Remedial Action in respect of all or any part of the CR
First Priority Collateral or any Lien thereon held by the BH/PIK Lenders or
exercise any Guaranty Action (other than with respect to a BH Guarantor with
respect to the BH First Priority Collateral) with respect to the CR First
Collateral. The BH/PIK Lenders shall not take or receive from or on behalf of
the Company, directly or indirectly, in cash or other property or by setoff or
in any other manner (whether pursuant to any enforcement, collection, execution,
levy or foreclosure proceeding or otherwise) any portion of the CR First
Priority Collateral or Proceeds thereof, except as provided in SECTION 3.6
hereof. Without limiting the generality of the foregoing, until the CR Senior
Obligations have been paid in full, the sole right of the BH/PIK Lenders (i)
with respect to the CR First Priority Collateral is to hold a Lien thereon
granted pursuant to the BH/PIK Security Agreements and not take, exercise or
commence any Remedial Action with respect thereto and (ii) with respect to each
Subordinated Guaranty (other than from a BH Guarantor), to hold the same and not
take, exercise or commence any Guaranty Action with respect thereto except as
provided in SECTION 3.6 hereof.
(c) The BH Senior Agent and each BH Senior Lender shall have the
exclusive right to carry out, or not to carry out, the provisions of each BH
Senior Security Agreement (as each such agreement relates to the BH First
Priority Collateral but not the CR First Priority Collateral) and to take or
commence or any Permitted Enforcement Action in connection therewith, all in the
BH Senior Agent's sole discretion and in the exercise of its sole business
judgment (without regard to the rights of the CR Senior Agent, the CR Senior
Lenders, the Junior Subordinated Trustee or the Junior Subordinated Lenders
under any of their respective Credit Documents). Such exclusive rights shall
include, specifically (but not by way of limitation) the right to sell or
otherwise dispose of (or not take any such action), any or all of the BH First
Priority Collateral and to incur expenses in connection therewith, all as may be
desirable in the BH Senior Agent's sole discretion to the extent provided in the
BH Senior Security Agreements (only to the extent related to the BH First
Priority Collateral). In exercising its rights as aforesaid, the BH Senior Agent
and the BH Senior Lenders shall not have any duties, obligations or liabilities
to any of the CR Senior Agent, the CR Senior Lenders and the Junior Subordinated
Trustee.
(d) None of the CR Senior Agent, the CR Senior Lenders, the Junior
Subordinated Trustee and the Junior Subordinated Noteholders shall, either
directly or indirectly, assert or exercise any Remedial Action in respect of all
or any part of the BH First Priority Collateral or any Lien thereon held by such
party or exercise any Guaranty Action with respect to a BH Guarantor in
connection therewith. Each of the CR Senior Agent, the CR Senior Lenders, the
Junior Subordinated Trustee and the Junior Subordinated Noteholders agrees not
to take or receive from or on behalf of the Company, directly or indirectly, in
cash or other property or by setoff or in any other manner (whether pursuant to
any enforcement, collection, execution, levy or foreclosure proceeding or
otherwise) any portion of the BH First Priority Collateral or proceeds thereof,
except as provided in SECTIONS 2.3 B and 3.6 hereof. Without limiting the
generality of the foregoing, the sole right of each of the CR Senior Agent, the
CR Senior Lenders and the Junior Subordinated Trustee with respect to the BH
First Priority Collateral is to hold a Lien thereon granted pursuant to the CR
Senior Security Agreements or the Junior Subordinated Security Agreements, as
the case may be, and not exercise any Remedial Action with respect thereto or
exercise any Guaranty Action with respect to a BH Guarantor.
ARTICLE III
OTHER AGREEMENTS
[SECTION 3.1 RELEASES].
(a) If the CR Senior Agent or any CR Senior Lender releases any Lien
on any part of the CR First Priority Collateral in connection with any sale,
lease, exchange, transfer or other disposition thereof in accordance with the
terms of the CR Credit Documents (not involving any Remedial Action or Guaranty
Action), the Liens of the BH Senior Agent shall be automatically and
unconditionally and simultaneously released and the Liens of the Junior
Subordinated trustee shall be released upon satisfaction of the applicable
conditions of Article 10 of the Junior Subordinated Indenture. The BH/PIK
Lenders shall execute and deliver to PHI and the CR Senior Agent such
termination statements, releases and other documents as the CR Senior Agent, the
CR Senior Lenders or the Company may reasonably request to effectively confirm
such release. All such disposition proceeds shall be applied as provided in the
CR Senior Credit Agreement. Notwithstanding the foregoing, the CR Senior Agent
shall notify the BH Senior Agent and the Junior Subordinated Trustee at least
three (3) business days before entry of such proposed sale, lease, exchange,
transfer or other disposition.
(b) Subject to the provisions of Section 2.3 B hereof, if the BH
Senior Lender releases any Lien on any part of the BH First Priority Collateral
in connection with any sale, lease, exchange, transfer or other disposition
thereof in accordance with the terms of the BH Note Purchase Documents (not
involving any Remedial Action or Guaranty Action), the Liens of the CR Senior
Agent, and the CR Senior Lenders, and the Junior Subordinated Trustee shall be
automatically and unconditionally and simultaneously released and the CR Senior
Agent, the CR Senior Lenders, the Junior Subordinated Trustee shall execute and
deliver to the Company and the BH Senior Agent such termination statements,
releases and other documents as the BH Senior Agent or the Company may
reasonably request to effectively confirm such release. Subject to the
provisions of Sections 2.3 B hereof, all such disposition proceeds shall be
applied as provided in the BH Note Purchase Agreement. Notwithstanding the
foregoing, the BH Senior Lenders shall notify the CR Senior Agent and the Junior
Subordinated Trustee at least three (3) business days before entry of such
proposed sale, lease, exchange, transfer or other disposition, and the CR Senior
Agent shall have been provided the opportunity to purchase the Collateral to be
sold, leased, exchanged, transferred or otherwise disposed of on terms more
favorable to PHI than those offered as aforesaid.
SECTION 3.2 INSURANCE AND CONDEMNATION AWARDS.
(a) The CR Senior Agent and the CR Senior Lenders shall have the sole
and exclusive right as among the Intercreditor Parties to adjust, settle, direct
or otherwise deal with any insurance Proceeds with respect to the CR First
Priority Collateral in the event of any loss thereunder and to approve any award
granted in any condemnation or similar proceeding in respect of the CR First
Priority Collateral.
(b) Nothwithstanding the designation of any Person as an additional
insured or a loss payee on any policy of insurance with respect to any
Intercreditor Collateral, all the Proceeds of any insurance policies and any
awards relating to the CR First Priority Collateral shall (i) first, be paid
exclusively to the CR Senior Agent and applied as provided in the CR Senior
Credit Agreement, and the BH/PIK Lenders shall have no right, title or interest
therein and (ii) second, after all amounts owing under the CR Credit Documents
have been paid in full and the obligations of the CR Senior Agent and the CR
Senior Lenders have been terminated, as provided in SECTION 3.6, and if a party
that is not entitled to receive the same under this provision shall nonetheless
receive any of the same, such party shall hold the same in trust for, and shall
immediately pay the same over to the party that is entitled to the same.
(c) The BH Senior Agent shall have the sole and exclusive right as
among the Intercreditor Parties to adjust, settle, direct or otherwise deal with
any insurance Proceeds with respect to the BH First Priority Collateral in the
event of any loss thereunder and to approve any award granted in any
condemnation or similar proceeding in respect of the BH First Priority
Collateral.
(d) Notwithstanding the designation of any Person as an additional
insured or a loss payee on any policy of insurance with respect to any
Intercreditor Collateral, subject to the provisions of SECTION 2.3 B hereof, all
the Proceeds of any insurance policies and any awards relating to the BH First
Priority Collateral shall (i) first, be paid exclusively to the BH Senior Lender
and applied as provided in the BH Note Purchase Agreement, and none of the CR
Senior Agent, the CR Senior Lenders, the Junior Subordinated Trustee and the
Junior Subordinated Noteholders shall have any right, title or interest therein
and (y) second, after all amounts owing under the BH Senior Note Documents have
been paid in full and the obligations of the BH Senior Agent and the BH Senior
Lenders have been terminated, as provided in SECTION 3.6 hereof, and if a party
that is not entitled to receive the same under this provision shall nonetheless
receive any of the same, such party shall hold the same in trust for, and shall
immediately pay the same over to the party that is entitled to the same.
SECTION 3.3 NO ADDITIONAL OBLIGATIONS.
(a) The CR Senior Agent and the CR Senior Lenders will be entitled to
manage and supervise the CR Senior Obligations and the CR Credit Documents in
accordance with their sole and absolute discretion, without regard to any of the
rights or interests of the BH/PIK Lenders (but subject to the terms and
conditions of this Agreement).
(b) The BH Senior Agent and the BH Senior Lenders will be entitled to
manage and supervise the BH Senior Obligations and the BH Senior Note Documents
in accordance with their sole and absolute discretion, without regard to any of
the rights or interest of the CR Senior Agent, the CR Senior Lenders, the Junior
Subordinated Trustee (but subject to the terms and conditions of this
Agreement).
(c) (i) The CR Senior Agent and the CR Senior Lenders shall have no
obligation whatsoever to the BH/PIK Lenders to assure the ownership, existence
or genuineness of any CR First Priority Collateral. The CR Senior Agent and the
CR Senior Lenders shall have no obligation whatsoever to the BH/PIK Lenders to
preserve their rights or benefits in any of the CR First Priority Collateral,
and (ii) the BH Senior Agent and the BH Senior Lenders shall have no obligation
whatsoever to any of the CR Senior Agent, the CR Senior Lenders, the Junior
Subordinated Trustee or the Junior Subordinated Noteholders to assure the
ownership, existence or genuineness of any BH First Priority Collateral. The BH
Senior Agent and the BH Senior Lenders shall have no obligation whatsoever to
the CR Senior Agent, the Cr Senior Lenders, the Junior Subordinated Trustee or
the Junior Subordinated Noteholders to preserve their rights or benefits in any
of the BH First Priority Collateral.
SECTION 3.4 WAIVERS.
(a) (i) No right of the CR Senior Agent or any CR Senior Lender to
enforce the subordination with respect to any CR First Priority Collateral or
take Remedial Action in connection with the CR First Priority Collateral,
exercise any Guaranty Action in respect of the Guaranties, in each case as
provided in this Agreement, shall in any manner be prejudiced or impaired by any
act or failure to act on the part of the Company, or the CR Senior Agent or any
CR Senior Lender, or by any noncompliance by any person with the terms,
provisions and covenants of this Agreement, any of the CR Credit Documents or
any of the BH/PIK Credit Documents, regardless of any knowledge thereof which
the CR Senior Agent or any CR Senior Lender may have or be otherwise charged
with, and (ii) no right of the BH Senior Agent and the BH Senior Lenders to
enforce the subordination with respect to any BH First Priority Collateral or
take Remedial Action in connection with the BH First Priority Collateral or
exercise any Guaranty Action with respect to a BH Guarantor as provided in this
Agreement, shall in any manner be prejudiced or impaired by any act or failure
to act on the part of the Company, or the BH Senior Agent or any BH Senior
Lender, or by any noncompliance by any person with the terms, provisions and
covenants of this Agreement or any of the BH/PIK Credit Documents or CR Credit
Documents, regardless of any knowledge thereof which the BH Senior Agent or any
BH Senior Lender may have or be otherwise charged with.
(b) (i) To the fullest extent permitted by law, none of the BH/PIK
Lenders shall have any claim it may have against the CR Senior Agent or any CR
Senior Lender (including, without limitation, any such claims under Sections
9-207, 9-506 and 9-507 of the UCC) arising out of or with respect to any action
which the CR Senior Agent or any CR Senior Lender may take or permit or omit to
take with respect to the Intercreditor Collateral pursuant to, and in accordance
with the terms of, this Agreement and (ii) to the fullest extent permitted by
law, none of the CR Senior Agent, the CR Senior Lenders, the Junior Subordinated
Trustee, and the Junior Subordinated Noteholders shall have any claim against
the BH Senior Agent and any BH Senior Lender (including, without limitation, any
such claims under Sections 9-207, 9-506 and 9-507 of the UCC) arising out of or
with respect to any action which the BH Senior Agent or any BH Senior Lender may
take or permit or omit to take with respect to the Intercreditor Collateral
pursuant to, and in accordance with the terms of, this Agreement.
(c) (i) With respect to the CR First Priority Collateral, to the
fullest extent permitted by law, the BH/PIK Lenders shall not assert any right
to demand, request, plead or otherwise assert or otherwise claim the benefit of,
any marshalling, appraisement, valuation or other similar right that may
otherwise be available under any Applicable Law or any other similar rights a
junior secured creditor may have under any Applicable Law, and (ii) to the
fullest extent permitted by law, with respect to the BH First Priority
Collateral, the CR Senior Agent, the CR Senior Lenders, the Junior Subordinated
Trustee and the Junior Subordinated Noteholders shall not assert, any right to
demand, request, plead or otherwise assert or otherwise claim the benefit of,
any marshalling, appraisement, valuation or other similar right that may
otherwise be available under any Applicable Law or any other similar rights a
junior secured creditor may have under any Applicable Law.
SECTION 3.5 INFORMATION CONCERNING PHI, ETC. Each Intercreditor Party
shall be responsible for keeping itself informed of (a) the financial condition
of PHI, the Obligors and all endorsers and/or Guarantors of the BH/PIK
Obligations or the CR Senior Obligations, as the case may be, and (b) all other
circumstances bearing upon the risk of nonpayment of the BH/PIK Obligations or
the CR Senior Obligations, as the case may be. No Intercreditor Party shall have
any present or future duty or responsibility to any other Intercreditor Party to
advise them of information known to it regarding the financial condition of PHI
or any other Obligor or of any circumstances bearing upon the risk of nonpayment
of the BH/PIK Obligations or the CR Senior Obligations, as the case may be.
SECTION 3.6 APPLICATION OF PAYMENTS.
(a) All proceeds arising from any Remedial Action with respect to any
CR First Priority Collateral or any Guaranty Action with respect to any CR First
Priority Collateral shall be applied, FIRST, to the payment of the CR Senior
Obligations until they have been paid in full in cash, SECOND, to the payment of
the BH Senior Obligations until they have been paid in full in cash, and THIRD,
to the payment of the Junior Subordinated Obligations until this Agreement is
terminated.
(b) Except as otherwise provided in SECTION 2.3 B hereof, all Proceeds
arising from any Remedial Action with respect to any BH First Priority
Collateral shall be applied, FIRST, to the payment of the BH Senior Obligations
until they have been paid in full in cash, SECOND, to the payment of the CR
Senior Obligations until they have been paid in full in cash, and THIRD, to the
payment of the Junior Subordinated Obligations until this Agreement is
terminated.
SECTION 3.7 INDEPENDENT DECISIONS. Each Intercreditor Party has,
independently and without reliance on any other Intercreditor Party, and in
reliance upon information supplied to it by the Company and upon such other
information as it has deemed appropriate, has made its own independent decision
to enter into the Credit Documents and to make the extensions of credit
contemplated thereunder; and each Intercreditor Party shall, independently and
without reliance upon any other Intercreditor Party, continue to make its own
independent analysis and decisions in acting or not acting under such Credit
Documents and this Agreement.
SECTION 3.8 TURNOVER OF PROHIBITED TRANSFERS. If any amount is
received by any signatory to this Agreement in violation of the terms of this
Agreement, such amount shall, without the necessity of demand or request by any
other Intercreditor Party, be delivered forthwith by such signatory to the
applicable Intercreditor Party entitled to receive the same for application to
payment of the CR Senior Obligations or BH/PIK Obligations, as the case may be,
in the form received, except for the addition of any endorsement or assignment
necessary to effect a transfer of all rights therein to such other party. Until
so delivered, any such amount shall be deemed received and held by the relevant
signatory in trust for the Intercreditor Party entitled to receive the same and
shall not be commingled with other funds or property of such Intercreditor
Party. Notwithstanding anything to the contrary in the prior two sentences of
this Section 3.8, the Junior Subordinated Trustee shall not be charged with
knowledge of the existence of any facts (other than the terms and conditions of
this Agreement) which would prohibit the making of any payment to or by the
Junior subordinated Trustee unless and until the Junior Subordinated Trustee
shall have received, no later than [2] business days prior to any such payment,
written notice from an Intercreditor Party of an Event of Default under either
the CR Credit Documents or the BH Senior Note Documents or such other notice
(i.e. of a Remedial Action) as may be reasonable to place the Junior
Subordinated Trustee on notice of any such prohibited payment; unless the Junior
subordinated Trustee shall have received such notice, it shall have full power
and authority to receive such payment and to apply the same as required by the
Junior Subordinated Indenture.
SECTION 3.9 EFFECTIVENESS DURING INSOLVENCY PROCEEDING. This Agreement
shall continue in full force and effect notwithstanding any Insolvency
Proceeding.
SECTION 3.10 AMENDMENTS. The Company shall not, and shall not permit
any subsidiary or Guarantor to, and no Intercreditor Party shall amend,
supplement or otherwise modify, without the consent of each other Intercreditor
Party, the terms of any of the Credit Documents to which it is a party, or enter
into any other agreement having the effect of doing so, in a manner that (a) is
inconsistent in any respect with the terms of this Agreement, or (b) increases
or expands the scope of the Intercreditor Collateral. Other than the CR Senior
Lenders or the CR Senior Agent, no Intercreditor Party shall be entitled to a
first priority Lien on any now or hereafter acquired property of the Company or
any its subsidiaries (except for the first priority Liens of the BH Senior Agent
and the BH Senior Lenders with respect to the BH First Priority Collateral). In
addition, the Legend shall not be amended or modified in any respect.
SECTION 3.11 LIMITATION ON DECLARING DEFAULTS. Notwithstanding the
occurrence of any fact or circumstance that may result in any default or event
of default under any Junior Subordinated Credit Document, the Junior
Subordinated Trustee shall not declare any default or event of default
thereunder. In addition, neither the Junior Subordinated Trustee nor any of the
Junior Subordinated Noteholders shall join in any involuntary Insolvency
Proceeding against PHI or any Obligor.
SECTION 3.12 DURATION AND TERMINATION; PAYMENT INVALIDATED.
(a) This Agreement shall constitute a continuing agreement and shall
terminate with respect to the CR Senior Agent and the CR Senior Lenders only
upon written notice by the CR Senior Agent to PHI, the BH Senior Agent, and the
Junior Subordinated Trustee of the indefeasible payment in full in cash of all
of the CR Senior Obligations and the termination of the CR Credit Documents
(such written notice the CR Senior Agent agrees to give promptly, and, in any
event, within three (3) business days, after the occurrence of the foregoing).
The termination of this Agreement with respect to the CR Senior Agent and the CR
Senior Lenders shall, subject to CLAUSE (C) of this Section 3.12, release fully
and irrevocably such persons from any and all liabilities, duties and
responsibilities hereunder to the same extent as if this Agreement had been
fully terminated by all the parties hereto, PROVIDED, HOWEVER, that the
foregoing shall not release any of the parties with respect to any obligations
arising prior to such termination.
(b) This Agreement shall constitute a continuing agreement and shall
terminate with respect to the BH Senior Agent and the BH Senior Lenders only
upon written notice by the BH Senior agent to PHI, the CR Senior Agent and the
Junior Subordinated Trustee of the payment in full in cash of all of the BH
Senior Obligations and the termination of the BH Credit Documents (such written
notice the BH Senior Agent agrees to give promptly, and, in any event, within
three (3) business days after the occurrence of the foregoing). The termination
of this Agreement with respect to the BH Senior Agent and the BH Senior Lenders
shall, subject to clause (c) of this Section 3.12, release fully and irrevocably
such persons from any and all liabilities, duties, responsibilities hereunder to
the same extent as if this Agreement had been fully terminated by all parties
hereto; PROVIDED, HOWEVER, that the foregoing shall not release any of the
parties with respect to any obligations arising prior to such termination.
(c) In the event that this Agreement is terminated with respect to (i)
the CR Senior Agent and the CR Senior Lenders, as provided in CLAUSE (a), (ii)
the BH Senior Agent and the BH Senior Lenders, as provided in clause (b), of
this Section 3.12, and the CR Senior Agent, any CR Senior Lender, the BH Senior
Agent or any BH Senior Lender shall be required by a court or other tribunal of
competent jurisdiction to disgorge, refund, rebate or otherwise return any
amount received with respect to any of the Intercreditor Collateral, any
Guaranty to any debtor-in-possession or trustee in respect of any Insolvency
Proceeding, or any other person (whether as the result of such payment
constituting, or being alleged to constitute, a preference, a fraudulent
conveyance or any other payment required to be disgorged pursuant to any such
Insolvency Proceeding) then, in any such event, (i) the terms and conditions of
this Agreement shall be reinstated, notwithstanding any prior termination of
this Agreement pursuant to this Section 3.12, and (ii) all provisions of this
Agreement shall once again be operative until all such CR Senior Obligations
and/or BH Senior Obligations, as the case may be, are again paid in full in
cash.
(d) If both the BH Senior Obligations and Junior Subordinated
Obligations are outstanding at the time this Agreement is terminated with
respect to the CR Senior Agent and the CR Senior Lenders, the BH/PIK Lenders
shall continue to be subject to this Agreement with respect to the Intercreditor
Collateral on the same terms as provided in this Agreement immediately prior to
such termination with respect to the CR Senior Agent and the CR Senior Lenders,
except that (i) all references to the CR Senior Agent, the CR Senior Lenders and
the BH Senior Agent and BH Senior Lenders shall refer to the BH Senior Agent and
the BH Senior Lenders, and (ii) this Agreement shall be interpreted as if there
were two classes of Intercreditor Parties, with the CR Senior Agent, CR Senior
Lenders, the BH Senior Agent and the BH Senior Lenders being, collectively, the
senior class, and the Junior Subordinated Trustee and the Junior Subordinated
Noteholders being the junior class (it being understood and agreed that, to the
extent the BH Senior Agent or BH Senior Lenders are prohibited from taking any
action hereunder as it relates to the CR Senior Agent and the CR Senior Lenders,
such provisions shall be null and void as it relates to the BH Senior Agent and
BH Senior Lenders).
(e) In connection with the termination of this Agreement with respect
to the CR Senior Agent and the CR Senior Lenders, the CR Senior Agent shall
transfer the possession to the BH Senior Agent (if the BH Senior Obligations are
outstanding) or the Junior Subordinated Trustee (if the Junior Subordinated
Obligations are outstanding but no BH Senior Obligations are outstanding) any
Intercreditor Collateral it holds as bailee for the BH/PIK Lenders under Section
3.15 hereof. No such transfer shall be taken in violation of any applicable law,
rule or regulation or court order, and shall be taken at the sole cost and
expense of the Company. All such transfers shall be done without any
representation or warranty by the CR Senior Agent or the CR Senior Lenders and
on an "as is, where is" basis, and none of the CR Senior Agent and the CR Senior
Lenders shall have any liability with respect thereto.
SECTION 3.13 NOTICE OF BH/PIK LENDERS INTERESTS. This Agreement
constitutes a written notification of demand to the CR Senior Agent by the
BH/PIK Lenders for the satisfaction of the indebtedness outstanding under the
BH/PIK Credit Documents that are secured by the Intercreditor Collateral for the
purposes of Section 9-504(1)(c) of the UCC, and the CR Senior Agent hereby
waives any rights that it might otherwise have under said Section to require the
BH/PIK Lenders to file any proof of their interest in the Intercreditor
Collateral.
SECTION 3.14 CREDIT DOCUMENTS. Each signatory to this Agreement hereby
confirms that it has delivered to the other signatories true and complete copies
of its Credit Documents, in each case as in effect on the date hereof, and all
UCC financing statements and other filings to perfect its security interest in
the Intercreditor Collateral.
SECTION 3.15 BAILEE FOR PERFECTION. For purposes of the UCC, each
BH/PIK Lender hereby appoints the CR Senior Agent as bailee for the BH/PIK
Lenders (and by its execution hereof the CR Senior Agent accepts such
appointment) to hold on their behalf all the instruments, certificates and
Proceeds forming a part of the Intercreditor Collateral solely for the purpose
of perfecting its Liens in the same pursuant to the BH/PIK Security Agreements,
subject to the terms and conditions of this Agreement. Neither the CR Senior
Agent nor any CR Senior Lender shall have by reason of this Agreement or any
other document a fiduciary relationship in respect of the BH/PIK Lenders, nor
shall the CR Senior Agent or any CR Senior Lender incur any liabilities of any
kind whatsoever to the BH/PIK Lenders by virtue of it acting as bailee on behalf
of the BH/PIK Lenders, other than to use commercially reasonable efforts to
maintain and keep secure such Intercreditor Collateral and to pay or deliver the
same to the parties entitled thereto in accordance herewith.
SECTION 3.16 LEGEND. Each of the CR Senior Credit Agreement, the BH
Note Purchase Agreement, the Junior Subordinated Indenture, and each Security
Agreement and any notes or other evidences of indebtedness in connection
therewith shall contain a legend which shall read as follows:
THIS AGREEMENT IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION
AGREEMENT DATED AS OF MARCH __, 2000 BY AND AMONG THE CIT
GROUP/BUSINESS CREDIT, INC., AS AGENT, WILMINGTON TRUST COMPANY, AS
AGENT, AND THE UNITED STATES TRUST COMPANY OF NEW YORK, AS JUNIOR
SUBORDINATED TRUSTEE (THE "INTERCREDITOR AGREEMENT", WHICH MATERIALLY
AFFECTS CERTAIN PAYMENT RIGHTS, SUBORDINATES CERTAIN OBLIGATIONS AND
CERTAIN SECURITY INTERESTS AND LIENS, AND LIMITS RIGHTS TO
ENFORCEMENT OF THE PARTIES TO THIS AGREEMENT. ALL PERSONS OR OTHER
ENTITIES WHICH AT ANY TIME HOLD INDEBTEDNESS HEREUNDER OR WHICH IS
SECURED HEREBY ARE BOUND BY THE TERMS OF THE INTERCREDITOR
AGREEMENT, WHICH WILL BE MADE AVAILABLE UPON REQUEST.
SECTION 3.17 JUNIOR SUBORDINATED TRUSTEE: POWER OF ATTORNEY; AGREEMENT
TO COOPERATE. The CR Senior Agent and the CR Senior Lenders (or any and all
representatives thereof) are hereby irrevocably appointed and empowered to
demand, sue for, collect and receive every such payment or distribution to which
such Junior Subordinated Noteholders are entitled and give acquittance therefor,
and to file claims and proofs of claim in any statutory or non-statutory
proceeding, to vote such claim in any such proceeding, and to take any and all
such other actions, in their own name as the CR Senior Agent or CR Senior
Lenders, or in the name of such Junior Subordinated Noteholders or otherwise, as
the CR Senior Agent and the CR Senior Lenders (or their respective
representatives) may deem necessary or advisable in its sole discretion for the
enforcement of the provisions of this Agreement and for the satisfaction and
payment in full of the CR Senior Obligations. The Junior Subordinated
Noteholders shall, duly and promptly take such action as may be requested at any
time and from time to time by the CR Senior Agent and the CR Senior Lenders (or
their respective representatives), to file appropriate proofs of claim in
respect of the Junior Subordinated Obligations, and to execute and deliver such
powers of attorney, assignments of proofs of claim or other instruments as may
be requested by the CR Senior Agent and the CR Senior Lenders (or their
respective representatives), in order to enable the CR Senior Lender to enforce
any and all claims upon or in respect of the Junior Subordinated Obligations and
to collect and receive any and all payments or distributions which may be
payable or deliverable at any time upon or in respect of the Junior Subordinated
Obligations.
SECTION 3.18 BH SENIOR LENDERS: POWER OF ATTORNEY; AGREEMENT TO
COOPERATE. The BH Senior Agent and each of the BH Senior Lenders irrevocably
authorizes and empowers the CR Senior Agent and the CR Senior Lenders (or their
respective representatives) to demand, sue for, collect and receive every such
payment or distribution to which the BH Senior Lender is entitled from the
proceeds of the CR First Priority Collateral (the "CR COLLATERAL PROCEEDS") and
give acquittance therefor, and to file claims and proofs of claim in any
statutory or non-statutory proceeding, to vote such claim in any such
proceeding, and to take such other actions, in their own name as the CR Senior
Agent or the CR Senior Lenders, or in the name of the BH Senior Lender or
otherwise, as the CR Senior Agent and the CR Senior Lenders (or their respective
representatives) may deem necessary or advisable for the enforcement of the
provisions of this Agreement. The BH Senior Agent and the BH Senior Lenders
hereby agree, duly and promptly to take such action as may be requested at any
time and from time to time by the CR Senior Agent and CR Senior Lenders (or
their respective representatives), to file appropriate proofs of claim in
respect of the BH Senior Obligations, and to execute and deliver such powers of
attorney, assignments of proofs of claim or other instruments as may be
requested by the CR Senior Agent and the CR Senior Lenders (or their respective
representatives), in order to enable the CR Senior Lenders to enforce any and
all claims upon or in respect of the CR Senior Obligations and to collect and
receive any and all payments or distributions which may be payable or
deliverable at any time upon or in respect of the CR Senior Obligations from the
CR Collateral Proceeds.
SECTION 3.19 CR SENIOR LENDERS/JUNIOR SUBORDINATED LENDERS: POWER OF
ATTORNEY; AGREEMENT TO COOPERATE. BH Senior Agent and the BH Senior Lenders (or
their respective representatives) are hereby irrevocably appointed and empowered
to demand, sue for, collect and receive every such payment or distribution to
which the CR Senior Lenders, the CR Senior Agent, the Junior Subordinated
Noteholders or the Junior Subordinated Trustee are entitled from the BH First
Priority Collateral Proceeds and give acquittance therefor, and to file claims
and proofs of claim in any statutory or non-statutory proceeding, to vote such
claim in any such proceeding, and to take such other actions, in their own name
as the BH Senior Agent or the BH Senior Lenders, or in the name of the CR Senior
Lenders, the CR Senior Agent, the Junior Subordinated Trustee or any Junior
Subordinated Lender or otherwise, as the BH Senior Agent and the BH Senior
Lenders (or their respective representatives) may deem necessary or advisable
for the enforcement of the provisions of this Agreement, in each case, solely,
with respect to BH First Priority Collateral Proceeds. The CR Senior Agent, the
CR Senior lenders, the Junior Subordinated Trustee and the Junior Subordinated
Noteholders shall, duly and promptly to take such action as may be requested at
any time and from time to time by the BH Senior Agent and BH Senior Lender (or
their respective representatives), to file appropriate proofs of claim in
respect of the CR Senior Obligations and/or the Junior Subordinated Obligations,
and to execute and deliver such powers of attorney, assignments of proofs of
claims or other instruments as may be requested by the BH Senior Agent and the
BH Senior Lenders (or their respective representatives), in order to enable the
BH Senior Lender to enforce any and all claims upon or in respect of the BH
Senior Obligations and to collect and receive any and all payments or
distributions which may be payable or deliverable at any time upon or in respect
of the BH Senior Obligations from the BH First Priority Collateral Proceeds.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 CONFLICT. In the event of any conflict between the terms
of any Credit Document and the terms of this Agreement, the terms of this
Agreement shall control.
SECTION 4.2 NO THIRD PARTY BENEFIT, ETC. This Agreement is entered
into for the benefit of the parties hereto and their respective successors and
assigns only and no benefit shall accrue or is intended with respect to any
third party, including, without limitation, any trustee in bankruptcy for PHI or
any other Obligor.
SECTION 4.3 AMENDMENTS AND WAIVERS. All modifications, amendments or
waivers of any of the terms or provisions of this Agreement shall be in writing
and duly executed by a duly authorized officer of each of the parties to this
Agreement.
SECTION 4.4 SUCCESSORS AND ASSIGNS. All the covenants, terms and
agreements in this Agreement shall bind and inure to the benefit of the
respective successors and assigns of PHI, the other Obligors, the Noteholders
and the Intercreditor Parties.
SECTION 4.5 PARTIAL INVALIDITY. The unenforceability or invalidity of
any provision or provisions of this Agreement shall not render any other
provision or provisions herein contained unenforceable or invalid.
SECTION 4.6 COMMUNICATIONS. All communications between or among the
Intercreditor Parties provided for herein shall be in writing and via overnight
delivery or telecopier, and shall be deemed to have been given: (a) when
delivered, if delivered personally or by overnight delivery service; (b) when
delivered, if delivered by the United States mail, postage prepaid, with return
receipt requested; or (c) if delivered by telecopier transmissions, upon receipt
of confirmation of transmission thereof by the sender thereof, addressed, in
each case, at the address of each party set forth below or such other address as
such party may designate by notice duly given in accordance with this SECTION
4.6 to the other parties hereto:
IF TO THE CR SENIOR AGENT:
--------------------------
CIT Group/Business Group, Inc., as Agent for the Lenders to
Planet Hollywood
1211 Avenue of the Americas
New York, New York 10036
Attention: Robert Smith
Telecopier No.: (212) 790-9140
with a copy to:
Rothschild Recovery Fund, L.P.
1251 Avenue of the Americas, 51st Floor
New York, New York 10020
Attention: Wilbur Ross
Telecopier No.: (212) 403-3578
IF TO THE BH SENIOR AGENT:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopier No.: (302) 651-8882
with a copy to:
Bay Harbour Management L.C.
---------------------------
Attention: Jeffrey Wertheim
Telecopier No.: (212) 371-7497
IF TO THE JUNIOR SUBORDINATED TRUSTEE
United States Trust Company of New York
Corporate Trust & Agency Division
114 West 47th Street, 25th Floor
New York, New York 10036-1532
Attention: Corporate Trust Administration
Telecopier No.: (212) 852-1627
SECTION 4.7 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO ANY CONFLICTS-OF-LAW PRINCIPLES).
SECTION 4.8 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF ANY PARTY TO THIS AGREEMENT, SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF NEW YORK LOCATED IN THE
BOROUGH OF MANHATTAN; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY INTERCREDITOR COLLATERAL MAY BE BROUGHT IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH
SIGNATORY HERETO HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF
SUCH COURTS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION. EACH SIGNATORY HERETO FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH SIGNATORY HERETO HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY HAVE OR HEREAFTER MAY 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. TO THE EXTENT THAT
ANY SIGNATORY HERETO HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OF 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, SUCH SIGNATORY HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
SECTION 4.9 WAIVER OF JURY TRIAL, ETC. EACH SIGNATORY HERETO 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 AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
EACH SIGNATORY HERETO ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR EACH SIGNATORY HERETO ENTERING INTO THIS AGREEMENT.
SECTION 4.10 COUNTERPARTS. This Agreement may be executed and
delivered in any number of counterparts, each of such counterparts constituting
an original but altogether only one Agreement.
SECTION 4.11 FURTHER ASSURANCES. Each Intercreditor Party agrees to
execute such further documents and agreements as may be reasonably requested by
the other to give effect to the purposes of this Agreement.
SECTION 4.12 SPECIFIC ENFORCEMENT. EACH SIGNATORY TO THIS AGREEMENT
ACKNOWLEDGES AND AGREES THAT THE TERMS OF THIS AGREEMENT ARE A MATERIAL
INDUCEMENT TO ITS ENTERING INTO THE CREDIT DOCUMENTS IT IS A PARTY TO.
ACCORDINGLY, EACH SIGNATORY HERETO IS HEREBY AUTHORIZED TO DEMAND SPECIFIC
PERFORMANCE OF THE PROVISIONS OF THIS AGREEMENT AT ANY TIME WHEN ANY OTHER
SIGNATORY HERETO SHALL HAVE FAILED TO COMPLY WITH ANY OF THE PROVISIONS THAT ARE
APPLICABLE TO IT. EACH SIGNATORY HERETO HEREBY IRREVOCABLY WAIVES ANY DEFENSE
BASED ON THE ADEQUACY OF A REMEDY AT LAW THAT MIGHT BE ASSERTED AS A BAR TO SUCH
REMEDY OF SPECIFIC PERFORMANCE.
SECTION 4.13 ACKNOWLEDGEMENT BY PHI. By executing the acknowledgement
to this Agreement, PHI agrees, for and on behalf of itself and the other
Obligors, to all the terms hereof and shall not, either directly or indirectly,
take any action to challenge or otherwise impair in any respect the operation of
this Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE CIT GROUP/BUSINESS CREDIT, INC.,
as CR Senior Agent
By:
----------------------------
Name:
Title:
ROTHSCHILD RECOVERY FUND, L.P.
By:
----------------------------
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
----------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as BH Senior Agent
By:
----------------------------
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Junior Subordinated Trustee
By:
----------------------------
Name:
Title:
[OTHER BONDHOLDERS]
ACKNOWLEDGED AND AGREED:
PLANET HOLLYWOOD INTERNATIONAL, INC.
By:
----------------------------
Name:
Title:
[SUBSIDIARY BORROWERS/SUBSIDIARY GUARANTORS]
By:
----------------------------
Name:
Title:
CONSENTED AND AGREED TO BY:
BH SENIOR LENDERS
By:
----------------------------
By:
----------------------------
CONSENTED AND AGREED TO BY:
JUNIOR SUBORDINATED NOTEHOLDERS
By:
----------------------------
<PAGE>
SCHEDULE 1
LIST OF BORROWERS
<PAGE>
SCHEDULE 2
CR FIRST PRIORITY COLLATERAL
<PAGE>
SCHEDULE 3
BH FIRST PRIORITY COLLATERAL
<PAGE>
Annex I
CR SENIOR SECURITY AGREEMENTS
<PAGE>
Annex II
BH SENIOR SECURITY AGREEMENTS
<PAGE>
Annex III
JUNIOR SUBORDINATED SECURITY AGREEMENTS
<PAGE>
Annex IV
BH REVOLVER PARTICIPATION
Exhibit T3F
CROSS-REFERENCE TABLE
TIA Indenture
SECTION SECTION
310 (a)(1).......................................................... 7.10
(a)(2).......................................................... 7.10
(a)(3).......................................................... N.A.
(a)(4).......................................................... N.A.
(b)......................................................... 7.8;7.10
(c)............................................................. N.A.
311 (a)............................................................. 7.11
(b)............................................................. 7.11
(c)............................................................. N.A.
312 (a)............................................................. 2.5
(b)............................................................. 12.3
(c)............................................................. 12.3
313 (a)............................................................. 7.6
(b)(1).......................................................... N.A.
(b)(2).......................................................... 7.6
(c)............................................................. 7.6
(d)............................................................. 7.6
314 (a)............................................................. 12.2
(b)............................................................. 10.2
10.4
(c)(1).......................................................... 12.4
(c)(2).......................................................... 12.4
(c)(3).......................................................... N.A.
(d)............................................................. 10.2
(e)............................................................. 12.5
315 (a)............................................................. 7.1
(b)............................................................. 7.5;12.2
(c)............................................................. 7.1
(d)............................................................. 7.1;7.2
(e)............................................................. 6.11
316 (a)(last sentence).............................................. 12.6
(a)(1)(A)....................................................... 6.5
(a)(1)(B)....................................................... 6.4
(a)(2).......................................................... N.A.
(b)............................................................. 6.7
317 (a)(1).......................................................... 6.8
(a)(2).......................................................... 6.9
(b)............................................................. 2.4
318 (a)............................................................. 12.1
N.A. means Not Applicable.
- ------------------
Note: This Cross-Reference Table shall not, for any purpose be deemed to be
part of this Indenture.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
----------
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
/ / CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
UNITED STATES TRUST COMPANY OF NEW YORK
------------------------------------------------------------
(Exact name of trustee as specified in its charter)
New York 13-3818954
------------------------------- -----------------------------------
(State of incorporation if not (I.R.S. Employer Identification No.)
a national bank)
114 West 47th Street 10036-1532
New York, New York
------------------------------------------- -----------------
(Address of principal executive offices) (Zip Code)
NONE
(Name, address and telephone number of agent for service)
PLANET HOLLYWOOD INTERNATIONAL, INC.
------------------------------------
(Exact name of obligor as specified in its charter)
Delaware 59-3283783
------------------------------- -----------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
8669 Commodity Circle, Orlando, FL 32819
------------------------------------------ --------------
(Address of principal executive offices) (Zip Code)
10% Secured Deferrable Interest Notes due 2005
-----------------------------------------------------
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject,
Federal Reserve Bank of New York (2nd District), New York,
New York (Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, D.C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers:
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with obligor and underwriter.
If the obligor or any underwriter for the obligor is an affiliate
of the trustee, describe each such affiliation.
None.
Item 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15:
Planet Hollywood International, Inc. currently is in default
under any of its outstanding securities for which United States
Trust Company of New York is Trustee. Accordingly, responses to
Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of Form T-1
are not required under General Instruction B.
Item 16. List of Exhibits.
T-1.1 Organization Certificate, as amended, issued by the State of
New York Banking Department to transact business as a Trust
Company, is incorporated by reference to Exhibit T-1.1 to
Form T-1 filed on September 15, 1995 with the Commission
pursuant to the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.2 Included in Exhibit T-1.1.
T-1.3 Included in Exhibit T-1.1.
T-1.4 The By-laws of the United States Trust Company of New York,
as amended, is incorporated by reference to Exhibit T-1.4 to
Form T-1 filed on September 15, 1995 with the Commission
pursuant to the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.6 The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990.
T-1.7 A copy of the latest reports of condition of the trustee
pursuant to law or the requirements of its supervising or
examining authority.
NOTES
As of January 25, 2000, the trustee had 2,999,020 shares of Common stock
outstanding all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in Item 2, refers to each of United States Trust
Company of New York and its parent company, U.S. Trust Corporation.
In answering Item 2 in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, United States Trust Company of New York, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of New York, and State of New York,
on the 13th day of March, 2000.
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: /s/ Gerard F. Ganey
----------------------
Name: Gerard F. Ganey
Title: Senior Vice President
<PAGE>
EXHIBIT T-1.6
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
March 10, 2000
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, ;and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
By:
---------------------------------
/S/Gerard F. Ganey
Senior Vice President
<PAGE>
EXHIBIT T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
SEPTEMBER 30, 1999
($ IN THOUSANDS)
ASSETS
Cash and Due from Banks $ 193,238
Short-Term Investments 57,951
Securities, Available for Sale 489,135
Loans 2,423,223
Less: Allowance for Credit Losses 17,792
------
New Loans 2,405,431
Premises and Equipment 56,406
Other Assets 123,784
-------
TOTAL ASSETS $3,325,943
==========
LIABILITIES
Deposits:
Non-Interest Bearing $ 779,713
Interest Bearing 1,978,842
---------
Total Deposits 2,753,555
Short-Term Credit Facilities 238,736
Accounts Payable and Accrued Liabilities 142,477
-------
TOTAL LIABILITIES $3,134,768
==========
STOCKHOLDER'S EQUITY
Common Stock 14,995
Capital Surplus 53,041
Retained Earnings 124,916
Unrealized Loss on Securities
Available for Sale (Net of Taxes) (1,777)
------
TOTAL STOCKHOLDER'S EQUITY 191,175
-------
TOTAL LIABILITIES AND
STOCKHOLDER'S EQUITY $3,325,943
==========
I, Richard E. Brinkmann, Managing Director & Comptroller of the named bank
do hereby declare that this Statement of Condition has been prepared in
conformance with the instructions issued by the appropriate regulatory
authority and is true to the best of my knowledge and belief.
Richard E. Brinkmann, Managing Director & Controller
January 25, 2000
