DRAFT
Exhibit F
to Indenture
THIS AGREEMENT IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED
OF EVEN DATE HEREWITH BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT
FOR THE LENDERS UNDER THE REVOLVING CREDIT AGREEMENT, WILMINGTON TRUST COMPANY,
AS AGENT UNDER THE SENIOR NOTE PURCHASE AGREEMENT, UNITED STATES TRUST COMPANY
OF NEW YORK, AS TRUSTEE UNDER THE PIK INDENTURE, AND CONSENTED TO BY THE PIK
HOLDERS SIGNATORY THERETO, WHICH MATERIALLY AFFECTS CERTAIN PAYMENT RIGHTS,
SUBORDINATES CERTAIN OBLIGATIONS AND CERTAIN SECURITY INTERESTS, AND LIMITS
RIGHTS TO ENFORCEMENT. ALL PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD
INDEBTEDNESS UNDER THIS AGREEMENT ARE BOUND BY THE TERMS OF SUCH INTERCREDITOR
AGREEMENT WHICH WILL BE MADE AVAILABLE UPON REQUEST.
ASSIGNMENT, PLEDGE AND SECURITY AGREEMENT
THIS ASSIGNMENT, PLEDGE AND SECURITY AGREEMENT, dated as of March
____, 2000 (the "AGREEMENT"), is made by PLANET HOSPITALITY HOLDINGS, INC., a
Florida corporation, as pledgor (the "PLEDGOR") in favor of UNITED STATES TRUST
COMPANY OF NEW YORK (the "AGENT"), as trustee and collateral agent under that
certain Indenture (such Indenture, as amended or otherwise modified from time to
time, the "INDENTURE"), dated as of the date hereof, among Planet Hollywood
International, Inc., a Delaware corporation (the "COMPANY") and the parties
whose names and signatures appear on the signature pages thereto under the
heading "Subsidiary Guarantors" (collectively, the "SUBSIDIARY GUARANTORS").
BACKGROUND:
A. Pursuant to the Indenture, the Company may issue 10% Secured
Deferrable Interest Notes due 2005 in an aggregate principal amount of ________
Million Dollars ($____________ ) (collectively with all notes issued in
connection with the substitution, replacement or transfer thereof, the "NOTES")
to certain entities (the "HOLDERS").
B. The Pledgor, a wholly-owned subsidiary of the Company, is the
holder and owner of a 20% membership interest (the "MEMBERSHIP INTEREST") in
Times Square Partners LLC, a New York limited liability company ("TSP"), under
and pursuant to the Amended and Restated Limited Liability Company Agreement of
TSP, dated as of December 3, 1997, among Pledgor, Intell Times Square LLC,
Madison Broadway Associates LLC, SPE Times Square, Inc. and Xxx Xxxxx (the "TSP
AGREEMENT").
C. The Pledgor, among others, is a guarantor under a certain Guarantee
made to the Agent and contained in the Indenture (the "GUARANTEE").
D. It is a condition to the effectiveness of the Indenture that, among
other things, the Pledgor execute and deliver to the Agent this Agreement
granting to the Agent liens and security interests in the Collateral (as
hereinafter defined).
E. The Pledgor will receive substantial direct and indirect benefits
from the Company and the Agent entering into the Indenture and the Holders
accepting the Notes as contemplated thereby.
F. To induce the Agent to enter into the Indenture and to induce the
Holders to accept the Notes in accordance with the terms of the Indenture, the
Pledgor desires to pledge to the Agent all of its right, title and interest in,
to and under the Membership Interest, including, without limitation, (i) all
distributions of profits and income of TSP, (ii) all repayments of any and all
loans and advances made to TSP, (iii) all capital distributions from TSP, (iv)
all distributions of cash flow by TSP, (v) all proceeds of any liquidation upon
the dissolution of TSP and winding up of the affairs thereof, (vi) all proceeds
arising from the sale, transfer or other disposition of the Membership Interest,
whether paid or payable in cash, notes or other evidence of indebtedness, (vii)
all proceeds paid or payable or distributed or distributable directly or
indirectly to the Pledgor or to an Affiliate (as defined in the Indenture) of
Pledgor arising from or related to the settlement of any dispute between Pledgor
or any Affiliate of Pledgor and any other member of TSP or any Affiliate of any
member of TSP in respect of the ownership, use, management or operation of the
Property or the Project (as such terms are defined in the TSP Agreement), and
(viii) all other rights of the Pledgor to receive any distributions or other
payments of any kind whatsoever from or in respect of TSP, the Membership
Interest or otherwise in respect of TSP or any interest therein, the Property or
the Project or the estate of TSP therein or the ownership or operation thereof,
including, without limitation, any and all commissions, fees and other
compensation payable to the Pledgor or to any Affiliate of the Pledgor arising
from the leasing of any space or the granting of any concession rights in or at
the Property or the Project, and any and all payments and rights to payment
under any other agreements or obligations hereafter entered into or incurred by
the Pledgor or any Affiliate of Pledgor in each case only if and to the extent
that the same are in respect of TSP or are otherwise used or to be used at the
Property or the Project, whether any of the above-described distributions shall
consist of money or property (all of the foregoing, collectively, the
"INTERESTS").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. DEFINED TERMS. As used in this Agreement, capitalized terms used
herein without definition have the meanings specified in the Indenture, and the
following terms have the following meanings:
"BRIDGE LOAN PLEDGE" means that certain Assignment, Pledge and
Security Agreement dated as of the date hereof, given by the Pledgor to
Wilmington Trust Company, as agent for the purchasers signatory to the Note
Purchase Agreement, and encumbering the Collateral.
"BRIDGE LOAN COLLATERAL DOCUMENTS" shall mean (A) the Master
Agreement, dated as of December 2, 1997, by and among TSP, Hospitality, Intell
Times Square LLC, Madison Broadway Associates LLC, SPE Times Square, Inc., and
Xxx Xxxxx, as the same may be amended, modified, or supplemented from time to
time; (B) the Improvements Agreement, dated as of December 3, 1997, by and among
TSP, Atlantic Financial Group, Ltd. and Region III, as the same may be amended,
modified or supplemented from time to time; (C) the License Agreement, dated as
of December 3, 1997, among Planet Hollywood, Planet Hollywood (Region IV), Inc.,
Region III, and TSP, as the same may be amended, modified or supplemented from
time to time; (D) the Declaration of Easements, dated as of December 3, 1997,
between TSP and Atlantic Financial Group, Ltd., recorded on December 18, 1997,
in the Office of the City Register, New York County, in Reel 2523, Page 2124;
(E) the TSP Agreement; (F) the Zoning Lot, Development and Easement Agreement,
dated December 3, 1997, made by and among Xxxx Theatre Company, TSP and Atlantic
Financial Group Ltd. and recorded in the Office of the Register of The City of
New York, County of New York, on December 18, 1997 in Reel 2523, Page 2094, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof; (G) the working drawings and specifications
that Region III and Atlantic Financial Group, Ltd. have prepared or are required
to prepare with respect to the Mortgaged Property as described in the
Improvements Agreement (the "PLANET HOLLYWOOD PLANS"); and (H) the Retail Unit
Contract of Sale, dated as of January 4, 2000, between Region III, as seller,
and Intell 1567 LLC, as purchaser, with respect to the Mortgaged Property.
"BUSINESS DAY" is defined in the Indenture.
"CODE" means the Uniform Commercial Code as the same may from time to
time be in effect in the State of New York.
"CREDIT AGREEMENT" means that certain Revolving Credit Agreement among
the Company, Planet Hollywood Memorabilia, Inc., the borrowers signatory
thereto, The CIT Group/Business Credit, Inc., Rothschild Recovery Fund, L.P. and
the financial institutions signatory thereto, dated as of the date hereof, as
amended, modified, supplemented or restated from time to time.
"EVENTS OF DEFAULT" is defined in the Indenture.
"INDEMNIFIED PARTY" means, with respect to a Person entitled to the
benefit of an indemnity, such Person's officers, directors, shareholders,
partners, members, employees, agents and representatives.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor Agreement,
dated of even date herewith, among The CIT Group/Business Credit, Inc., on
behalf of the financial institutions signatory thereto, Wilmington Trust
Company, as agent on behalf of the purchasers from time to time of any of the
notes issued under the Note Purchase Agreement, the Pledgee, as trustee under
the Indenture and consented to by the Holders of the Notes, in form and
substance satisfactory to such financial institutions establishing, among other
things, lien and payment priority.
"LEGAL REQUIREMENT" means (i) with respect to any Person, including
the Pledgor, any constitution, act, statute, law, ordinance, treaty, rule,
regulation or official interpretation of, or any judgment, injunction, order,
decision, decree, license, permit or authorization issued by, any Governmental
Authority and (ii) with respect to the Pledgor, any legal requirement or rule,
regulation, by-law, official interpretation, license, permit, certification or
authorization of any self-regulatory organization, licensing authority, stock
exchange or trading system, in each case applicable to Persons (including
brokers and dealers) involved in the business of managing, trading, underwriting
or placing securities, including without limitation those of the National
Association of Securities Dealers, Inc. and the New York Stock Exchange.
"LIEN" means any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including, but not limited to, any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease intended
as, or having the effect of, security.
"LOSSES" means all obligations, damages, claims, causes of action,
costs, fines, fees, charges, penalties, deficiencies, losses, diminutions in
value, expenses (including court costs, fees and expenses of attorneys,
accountants, consultants and other experts) and other liabilities, and, with
respect to any indemnity, includes all attorneys' fees and expenses in
connection with the enforcement and collection of such indemnity.
"NOTE PURCHASE AGREEMENT" means that certain Note Purchase Agreement,
dated as of the date hereof, among the lenders signatory thereto, the Company
and Wilmington Trust Company pursuant to which such lenders acquired certain
secured senior notes, as amended, modified, supplemented or restated from time
to time.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, a business trust, a joint stock company, a trust, an
unincorporated association, a joint venture, a governmental subdivision, agency
or authority or any other entity of any nature.
"PROCEEDS" has the meaning assigned to it under the Code and, in any
event, shall include, but not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to the Pledgor from time to
time with respect to any of the Interests, (ii) any and all payments (in any
form whatsoever) made or due and payable to the Pledgor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Interests by any governmental body,
authority, bureau or agency or any other Person (whether or not acting under
color of governmental authority), and (iii) any and all other monies or other
property from time to time paid or payable or distributed or distributable under
or in connection with any of the Interests.
"REVOLVING CREDIT PLEDGE" means that certain Assignment, Pledge and
Security Agreement dated as of the date hereof, given by the Pledgor to The CIT
Group/Business Credit, Inc., as agent for the benefit of the lenders signatory
to the Credit Agreement, and encumbering the Collateral.
"REVOLVING CREDIT COLLATERAL DOCUMENTS" shall mean the Cash
Concentration Account Agreement, the Depository Account Agreements, each Notice
Letter, each Depository Account Agreement, each Payment Direction Notice, and
each Credit Card Depository Account Agreement delivered to a Depository Bank or
other financial institution pursuant to Section 8.11 hereof, and the other
documents, instruments and agreements referred to in Section 6.01 hereof, and
all other instruments, agreements and documents from time to time delivered in
connection with or otherwise relating to any Related Document.
"SECURITY DOCUMENTS" is defined in the Indenture.
"SECURED OBLIGATIONS" means (i) the Obligations (as defined in the
Indenture) which include all indebtedness, obligations and liabilities of the
Pledgor to the Agent incurred under or related to the Indenture (including the
Guarantee contained in the Indenture), this Agreement or any other Security
Document, whether such indebtedness, obligations or liabilities are direct or
indirect, secured or unsecured, joint or several, absolute or contingent, due or
to become due, whether for payment or performance, now existing or hereafter
arising, together with (ii) all fees, costs, charges and expenses paid or
incurred by the Agent in connection with the creation, protection, preservation
or enforcement of its respective rights under the Security Documents (including
the Mortgage and this Pledge Agreement), on a full indemnity basis.
2. GRANT OF SECURITY INTEREST. As collateral security for the prompt
and complete payment and performance when due of all of the Obligations, the
Pledgor hereby sells, assigns, conveys, mortgages, pledges, hypothecates and
transfers to the Agent, and hereby grants to the Agent a security interest in,
all of the Pledgor's right, title and interest in, to and under the Interests
and all of the Proceeds thereof (collectively, the "COLLATERAL").
3. RIGHTS OF THE AGENT; LIMITATIONS ON THE AGENT'S OBLIGATIONS. The
Agent shall have no obligation or liability under the TSP Agreement or with
respect to the Membership Interest or otherwise by reason of or arising out of
this Agreement or the assignment to the Agent of the Collateral, nor shall the
Agent be required or obligated in any manner to perform or fulfill any of the
obligations of the Pledgor under or pursuant to, or to make any payment, or to
make any inquiry as to the nature or the sufficiency of any payment received by
it or the sufficiency of any performance by any party under the TSP Agreement or
any other Person, or to present or file any claim, or to take any action to
collect or enforce any performance or the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or times.
4. INCORPORATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Pledgor represents and warrants that it has received a copy of, and is fully
familiar with the terms and provisions of, the Indenture. Except to the extent
that they are not applicable to the Collateral, all representations, warranties
and covenants made by the Company in the Indenture are incorporated herein by
reference and are hereby made by the Pledgor as to itself and the Collateral as
though such representations, warranties and covenants were set forth at length
herein as the representations, warranties and covenants of the Pledgor.
5. COVENANTS. The Pledgor covenants and agrees with the Agent that
from and after the date of this Agreement and until the Obligations are fully
satisfied:
(a) PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Pledgor and the place where the records of the Pledgor
concerning the Collateral are kept is accurately set forth on SCHEDULE 1 hereto,
and the Pledgor will not change such principal place of business or remove such
records without the express prior written consent of the Agent.
(b) FURTHER ASSURANCES. At any time and from time to time,
upon the written request of the Agent, and at the sole expense of the Pledgor,
the Pledgor promptly and duly shall execute and deliver any and all such further
instruments and documents and take such further action as the Agent reasonably
may deem desirable in obtaining the full benefits of this Agreement and of the
rights and powers herein granted, including, without limitation, the filing of
any financing or continuation statements under the Uniform Commercial Code in
effect in any jurisdiction with respect to the liens and security interests
granted hereby. The Pledgor also hereby authorizes the Agent to file any such
financing or continuation statement without the signature of the Pledgor to the
extent permitted by applicable law. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any promissory note
or other instrument, such note or instrument shall be immediately pledged to the
Agent hereunder, duly endorsed in a manner satisfactory to the Agent.
(c) FURTHER IDENTIFICATION OF COLLATERAL. The Pledgor will
furnish to the Agent from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Agent may reasonably request, all in reasonable
detail.
(d) MAINTENANCE OF RECORDS. The Pledgor will keep and
maintain at its own cost and expense satisfactory and complete records of the
Collateral, including, without limitation, a record of all payments received and
all credits granted with respect to the Collateral and all other dealings with
the Collateral. The Pledgor will xxxx its books and records pertaining to the
Collateral to evidence this Agreement and the security interests granted hereby.
For the Agent's further security, the Pledgor agrees that the Agent shall have a
special property interest in all of the Pledgor's books and records pertaining
to the Collateral and the Pledgor shall deliver and turn over any such books and
records to the Agent or to its representatives at any time on demand of the
Agent.
(e) COMPLIANCE WITH LAWS. The Pledgor will comply with all
Legal Requirements applicable to it or to the Collateral or any part thereof or
to the operation of the Pledgor's business; provided, HOWEVER, that the Pledgor
may contest any act, regulation, order, decree or direction in any reasonable
manner which shall not in the sole opinion of the Agent adversely affect the
Agent's rights or the priority of its liens and security interests in the
Collateral.
(f) PAYMENT OF OBLIGATIONS. The Pledgor will pay promptly
when due all taxes, assessments and governmental charges or levies imposed upon
the Collateral or in respect of its income or profits therefrom, as well as all
claims of any kind, except that no such charge need be paid if (i) the validity
thereof is being contested in good faith by appropriate proceedings, (ii) such
proceedings do not involve any danger of the sale, forfeiture or loss of any of
the Collateral or any interest therein, and (iii) such charge is adequately
reserved against in accordance with generally accepted accounting principles and
such reserve is deposited in and maintained as a cash escrow account with the
Agent on terms and conditions reasonably acceptable to the Agent.
(g) COMPLIANCE WITH CONTRACTS. The Pledgor will perform,
observe and comply in all respects with all of its obligations under the TSP
Agreement and all other agreements to which it is a party or by which it is
bound relating to the Collateral. The Pledgor will use its best efforts to cause
TSP to perform, observe and comply in all respects with all mortgages, ground
leases, occupancy leases and all other agreements and contracts with respect to
the ownership, use and operation of the Property or the Project (as such terms
are defined in the TSP Agreement) to which TSP is a party, including, without
limitation, all Bridge Loan Collateral Documents and all Revolving Credit
Collateral Documents affecting or with respect to the Collateral.
(h) NO MODIFICATIONS OF THE TSP AGREEMENT; NO WAIVERS,
EXTENSIONS. The Pledgor will not (i) amend, modify, terminate or waive any
provision of the TSP Agreement or vote to permit the amendment, modification,
termination or waiver of the TSP Agreement or any provision thereof, (ii) fail
to exercise promptly and diligently each and every material right which it may
have under the TSP Agreement (other than any right of termination or "put" right
or other right the exercise of which would be adverse to the interests of the
Agent hereunder, which rights it shall not exercise without the Agent's prior
written consent), or (iii) fail to deliver to the Agent a copy of each demand,
notice or document received or given by it relating in any way to the TSP
Agreement or the Collateral. In no event shall the Pledgor withdraw from or
cause or consent to the dissolution of TSP.
(i) NO DISPOSITION. The Pledgor will not sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, any of the Collateral, except to the extent expressly required by the TSP
Agreement (and in such event, subject to and in accordance with the terms of the
Indenture.)
(j) LIMITATION ON LIENS ON COLLATERAL. Except for the Bridge
Loan Pledge, the Revolving Credit Pledge and as expressly permitted under the
Indenture, the Pledgor will not create, permit or suffer to exist, and will
defend the Collateral against and take such other action as is necessary to
remove, any Lien in or to the Collateral, and will defend the right, title and
interest of the Agent in and to any of the Pledgor's rights under the TSP
Agreement and in and to the Collateral and products thereof against the claims
and demands of all persons whomsoever.
(k) NOTICES. The Pledgor will advise the Agent promptly, in
reasonable detail, (i) of any Lien made or asserted against any of the
Collateral and (ii) of the occurrence of any other event which could have an
adverse effect on the value of the Collateral or on the liens and security
interests created hereunder.
(1) RIGHT OF INSPECTION. The Agent and the Agent's agents
and representatives shall at all times have full and free access during normal
business hours to all the books, correspondence and records of the Pledgor
relating to the Collateral, and the Agent or its representatives may examine the
same, take extracts therefrom and make photocopies thereof, and the Pledgor
agrees to render to the Agent, at the Pledgor's cost and expense, such clerical
and other assistance as may be reasonably requested with regard thereto.
6. THE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) The Pledgor hereby constitutes and appoints the Agent
with full power of substitution (which appointment is coupled with an interest
and shall be irrevocable while this Agreement remains in effect), as its true
and lawful attorney in fact, with full irrevocable power and authority in the
place and stead of the Pledgor and in the name of the Pledgor or in its own
name, from time to time in the discretion of the Agent, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement and, without limiting the
generality of the foregoing, hereby gives the Agent the power and right, on
behalf of the Pledgor, without notice to or assent by the Pledgor to do the
following:
(i) upon the occurrence and continuance of an Event of
Default, to ask, demand, collect, receive and give acquittances and
receipts for any and all moneys due and to become due under the TSP
Agreement and, in the name of the Pledgor or its own name or otherwise, to
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under the
TSP Agreement or otherwise with respect to the Collateral and to file any
claim or to take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Agent for the purpose of
collecting any and all such moneys due under the TSP Agreement or otherwise
with respect to the Collateral whenever payable;
(ii) at any time, (A) to pay or discharge taxes, Liens,
security interests or other encumbrances levied or placed on or threatened
against the Collateral; and (B) to direct any party liable for any payment
under the TSP Agreement or otherwise with respect to the Collateral to make
payment of any and all moneys due and to become due thereunder directly to
the Agent or as the Agent shall direct; and
(iii) upon the occurrence and continuance of an Event
of Default, (A) to receive payment of and receipt for any and all moneys,
claims and other amounts due and to become due at any time in respect of or
arising out of any Collateral, (B) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any part thereof and to enforce
any other right in respect of any Collateral, (C) to defend any suit,
action or proceeding brought against the Pledgor with respect to any
Collateral, (D) to settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give such
discharges or releases as the Agent may deem appropriate, and (E) generally
to sell, transfer, pledge, make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as though the Agent
were the absolute owner thereof for all purposes, and to do, at the option
of the Agent and at the Pledgor's expense, at any time, or from time to
time, all acts and things which the Agent reasonably deems necessary to
protect, preserve or realize upon the Collateral and the Agent's liens and
security interests therein, in order to effect the intent of this
Agreement, all as fully and effectively as the Pledgor might do. Nothing
contained in this Agreement shall be construed or interpreted (x) to
transfer to The Agent any of the rights and obligations of a member in TSP
other than the rights of collateral security in and to the Collateral or
(y) to constitute The Agent a beneficial owner of TSP, PROVIDED that such
limitation shall, in no manner, otherwise limit the right of the Agent
granted under this Agreement. This Agreement (1) shall not be deemed to
terminate the Pledgor's status as a beneficial owner in TSP and (2) shall
not be construed as constituting a current conveyance, but rather as
creating a security interest in the Pledgor's beneficial interest.
(b) The Pledgor hereby ratifies all that said attorneys
shall lawfully do or cause to be done by virtue hereof. This power of attorney
is a power coupled with an interest and shall be irrevocable.
(c) The powers conferred on the Agent hereunder are solely
to protect the Agent's interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. The Agent shall be accountable only for
amounts that it actually receives as a result of the exercise of such powers and
neither it nor any of its officers, directors, employees or agents shall be
responsible to the Pledgor for any act or failure to act, except for its own
gross negligence or willful misconduct.
(d) The Pledgor also authorizes the Agent, at any time and
from time to time after the occurrence and during the continuance of an Event of
Default, to execute, in connection with the sale provided for in paragraph (b)
of SECTION 8 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
7. PERFORMANCE BY THE AGENT OF THE PLEDGOR'S OBLIGATIONS. If the
Pledgor fails to perform or comply with any of its agreements contained herein
and the Agent, as provided for by the terms of this Agreement, may itself
perform or comply, or otherwise cause performance or compliance, with such
agreement, the expenses of the Agent incurred in connection with such
performance or compliance, together with interest thereon at the rate specified
in the Notes, shall be payable by the Pledgor to the Agent on demand and shall
constitute Obligations secured hereby.
8. REMEDIES; RIGHTS UPON AN EVENT OF DEFAULT.
(a) Upon the occurrence of an Event of Default:
(i) The Pledgor shall re-confirm its direction to TSP
to make and pay all distributions and payments to or for the account of the
Pledgor to the Agent;
(ii) all payments received by the Pledgor under or in
connection with any of the Collateral shall be held by the Pledgor in trust
for the Agent, shall be segregated from other funds of the Pledgor and
shall forthwith upon receipt by the Pledgor, be turned over to the Agent,
in the same form as received by the Pledgor (duly endorsed by the Pledgor
to the Agent, if required); and
(iii) any and all such payments so received by the
Agent (whether from the Pledgor or otherwise) may, in the sole discretion
of the Agent, be held by the Agent as collateral security for, and/or then
or at any time thereafter applied to the payment in whole or in part of the
Obligations, pursuant to SECTION 10 below, the Pledgor remaining liable for
any deficiency.
(b) Upon the occurrence of an Event of Default, in addition
to all other rights and remedies granted to the Agent in this Agreement, in the
Indenture, in the Notes or in any Security Document, the Agent may exercise all
rights and remedies of a secured party under the Code. Without limiting the
generality of the foregoing, the Pledgor expressly agrees that in any such event
the Agent, without demand of performance or other demand, advertisement or
notice of any kind (except the notice specified below of time and place of
public or private sale) to or upon the Pledgor or any other Person (all and each
of which demands, advertisements and/or notices are hereby expressly waived to
the full extent permitted by applicable law), may forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or sell or
otherwise dispose of and deliver the Collateral (or contract to do so), or any
part thereof, in one or more parcels at public or private sale or sales, at any
exchange brokers board or at any of the Agent's offices or elsewhere at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Agent shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of said Collateral so sold,
free of any right or equity of redemption in the Pledgor, which right or equity
is hereby expressly released to the full extent permitted by applicable law. The
Pledgor further agrees, at the request of the Agent, to assemble the Collateral
and to make it available to the Agent at places which the Agent reasonably shall
select, whether at the Pledgor's premises or elsewhere. The Agent shall apply
the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care, safe keeping or otherwise of
any or all of the Collateral or in any way relating to the rights of the Agent
hereunder, including reasonable attorneys' fees and legal expenses, to the
payment in whole or in part of the Obligations, pursuant to SECTION 10 below,
the Pledgor remaining liable for any deficiency. To the extent permitted by
applicable law, the Pledgor waives all claims, damages and demands against the
Agent arising out of the repossession, retention or sale of the Collateral. The
Pledgor agrees that it need not be given more than ten (10) days' notice (which
notification shall be deemed given when mailed, postage prepaid, addressed to
the Pledgor at its address referred to in SECTION 11 hereof) of the time and
place of any public sale or of the time after which a private sale may take
place and that such notice is reasonable notification of such matters. The
Pledgor shall remain liable for any deficiency if the proceeds of any sale or
disposition of the Collateral are insufficient to pay all amounts to which the
Agent is entitled, the Pledgor also being liable for the fees and expenses of
any attorneys employed by the Agent to collect such deficiency.
(c) The Pledgor also agrees to pay all costs of the Agent,
including attorneys' fees and expenses, incurred with respect to the collection
of any of the Obligations and the enforcement of any of their respective rights
hereunder.
(d) The Pledgor hereby waives presentment, demand, protest
or any notice (to the fullest extent permitted by applicable law) of any kind in
connection with this Agreement or any Collateral.
9. LIMITATION ON THE AGENT'S DUTY IN RESPECT OF COLLATERAL. The Agent
shall not have any duty as to any Collateral in its possession or control or in
the possession or control of any agent or nominee of it or any income thereon or
as to the preservation of rights against prior parties or any other rights
pertaining thereto.
10. APPLICATION OF PROCEEDS OF COLLATERAL. The Pledgor hereby agrees
that if the Agent shall realize any Proceeds or other payments upon the sale,
liquidation or other disposition or otherwise in respect of the Collateral, then
the same shall be distributed by the recipients thereof, from time to time as
and when the same is received, as follows:
FIRST, to the fees, costs and expenses of the Agent payable pursuant
to this Agreement,
SECOND, to the payment of all other Obligations, other than principal
and interest,
THIRD, to interest accrued and unpaid on the Obligations and to the
satisfaction of the principal amount of the Obligations, as provided
in the Indenture, and
FOURTH, the remainder, if any, to the Pledgor or such other Person as
may be entitled thereto by law.
The Pledgor shall remain liable for any deficiency.
11. NOTICES. Any notices hereunder shall be given in the manner set
forth in the Indenture to the respective addresses of the Pledgor and the Agent
set forth in the Indenture.
12. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. NO WAIVER; CUMULATIVE REMEDIES. The Agent shall not by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by the
Agent, and then only to the extent therein set forth. A waiver by the Agent of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Agent would otherwise have had on any
future occasion. No failure to exercise nor any delay in exercising on the part
of the Agent any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Agreement may be waived, altered, modified or
amended except in writing, duly executed by the Agent. No amendment or
modification of or waiver under the Notes or the Indenture shall affect or
impair the liens and security interests granted under this Agreement.
14. SUCCESSORS AND ASSIGNS. This Agreement and all obligations of the
Pledgor hereunder shall be binding upon the heirs and assigns of the Pledgor,
and shall, together with the rights and remedies of the Agent hereunder, inure
to the benefit of the Agent and its respective successors and assigns.
15. FURTHER INDEMNIFICATION. The Pledgor agrees to pay, and to save
the Agent harmless from, any and all Losses with respect to, or resulting from
any delay in paying, any and all excise, sales or other taxes which may be
payable or determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Agreement.
16. AMENDMENTS. This Agreement may only be amended or compliance with
any provision modified, altered or waived by a written agreement signed by the
Pledgor and the Agent.
17. GOVERNING LAW. THIS AGREEMENT HAS BEEN NEGOTIATED, EXECUTED AND
DELIVERED IN THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
18. JURISDICTION; VENUE; SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SECURITY DOCUMENT
OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN NEW YORK COUNTY AND HEREBY
EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE
PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM
THAT SUCH COURTS ARE AN INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS BY NOTICE
IN THE MANNER SPECIFIED IN SECTION 11. EACH PARTY TO THIS AGREEMENT IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN
ANY SUCH ACTION OR PROCEEDING.
19. FEES AND EXPENSES. In addition to any fees and expenses payable
pursuant to the Indenture, the Pledgor shall pay upon demand all fees and
expenses (including reasonable attorney's fees and expenses) incurred by the
Agent in connection with the negotiation, execution, production and delivery of
this Agreement and any other documents executed and delivered in connection
herewith, or in connection with (a) the administration of this Agreement and any
amendment or modification hereof, (b) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral, (c)
the failure by the Pledgor to perform or observe any of the provisions hereof,
or (d) the exercise or enforcement of any of the rights of, and collection of
amounts due to, the Agent hereunder.
20. INDEMNITY. The Pledgor shall protect, indemnify and hold harmless
the Agent and each of its Indemnified Parties from and against all Losses
imposed upon or incurred by or asserted against any such the Agent or
Indemnified Party by reason of (a) any failure on the part of the Pledgor to
perform or comply with any of the terms of this Agreement or (b) any other
matter or thing arising from or attributable to the Collateral and/or any act or
omission of any Person with respect thereto, other than, in the case of Losses
arising prior to the occurrence of an Event of Default or any event or condition
which, with notice or passage of time, or both, would constitute an Event of
Default, Losses that result from the Agent's gross negligence or willful
misconduct, as determined by a court of competent jurisdiction. If any action,
suit or proceeding is brought against the Agent or any Indemnified Party by
reason of any such occurrence, the Pledgor, upon such Person's request, will at
the Pledgor's expense resist and defend such action, suit or proceeding or will
cause the same to be resisted and defended by counsel for the insurer of the
liability or by counsel approved by such Person. Any amounts payable to the
Agent or any Indemnified Party pursuant to the indemnity contained in this
Section shall bear interest at the Default Rate from and including the date(s)
such amounts were expended by such Person to the date of payment by the Pledgor;
and all such amounts, together with all such interest, shall be deemed part of
the Obligations secured by this Agreement. The indemnity set forth in this
Section shall survive the repayment in full of the Obligations and the release
of any and all liens of the Agent, the transfer of any and all right, title and
interest in and to the Collateral, or any part thereof, to any Person and the
satisfaction of the Obligations.
22. TERMINATION. This Agreement shall remain in full force and effect
until the date on which: (a) the Obligations due and to become due shall have
been paid or performed in full and such payments are no longer subject to
recoupment or avoidance upon any insolvency or bankruptcy of the Pledgor and (b)
all of the obligations under the Indenture, the Notes or any of the other
Security Documents shall have terminated.
23. CONFLICTING PROVISIONS.
(a) INDENTURE. In the event of any conflict between the
terms of this Agreement and the terms of the Indenture with respect to the
Collateral, the terms of the Indenture shall govern and control.
(b) SECURITY DOCUMENTS. The Pledgor and the Agent are
parties to one or more Security Documents. If any term or provision hereof with
respect to any Collateral hereunder which is the subject of and covered by a
Security Document is inconsistent with any term or provision of such Security
Agreement, then such term or provision of this Agreement shall govern and
control with respect to such Collateral to the extent of such inconsistency.
24. BRIDGE LOAN PLEDGE.
(a) The Pledgor shall promptly notify the Agent in writing
of the occurrence of any default or event of default under the Bridge Loan
Pledge and, in addition, shall deliver to the Agent, within one (1) Business Day
after receipt, a copy of any notice of default received by the Pledgor from the
holder of the Bridge Loan Pledge.
(b) At all times while this Agreement continues in effect,
the Pledgor shall not, without the Agent's prior written consent, increase the
principal amount secured by the Bridge Loan Pledge or allow the amendment or
modification of the Bridge Loan Pledge or of any document relating to the loans
secured by the Bridge Loan Pledge.
25. REVOLVING CREDIT PLEDGE.
(a) The Pledgor shall promptly notify the Agent in writing
of the occurrence of any default or event of default under the Revolving Credit
Pledge and, in addition, shall deliver to the Agent, within one (1) Business Day
after receipt, a copy of any notice of default received by the Pledgor from the
holder of the Revolving Credit Pledge.
(b) At all times while this Agreement continues in effect,
the Pledgor shall not, without the Agent's prior written consent, increase the
principal amount secured by the Revolving Credit Pledge or allow the amendment
or modification of the Revolving Credit Pledge or of any document relating to
the loans secured by the Revolving Credit Pledge.
26. SUBORDINATION TO BRIDGE LOAN PLEDGE AND REVOLVING CREDIT PLEDGE.
This Agreement and the Lien hereof is subject and subordinate to the Bridge Loan
Pledge and the Revolving Credit Pledge and the Lien thereof to the extent set
forth in and subject to the terms and conditions of the Intercreditor Agreement.
[-REMAINDER OF PAGE IS BLANK-]
IN WITNESS WHEREOF, The Pledgor and the Agent have duly executed this
Assignment, Pledge and Security Agreement as of the date first set forth above.
PLANET HOSPITALITY HOLDINGS, INC.
a Florida corporation
By:
Name:
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee and
collateral agent under the
Indenture dated as of March __, 2000
By:
Name:
Title:
SCHEDULE 1 TO
ASSIGNMENT, PLEDGE AND
SECURITY AGREEMENT
INFORMATION FOR FINANCING STATEMENTS
Chief Executive Office:
__________________________
__________________________
__________________________
Principal Place of Business:
__________________________
__________________________
__________________________
Place where the record of __________________________
the Pledgor concerning the __________________________
Collateral are kept: __________________________
__________________________
Location of Each Required Filing Office:
1. Secretary of State of New York.
2. Xxx Xxxx Xxxxxx, Xxxxx xx Xxx Xxxx
0. ___________ Secretary of State
