Exhibit 10.20
MASTER AGREEMENT
AGREEMENT, dated as of December 2, 1997, between TIMES SQUARE PARTNERS
LLC, a New York limited liability company having an office at c/o Property
Markets Group, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Company"), INTELL TIMES SQUARE, LLC, a New York limited liability company
having an office at c/o Property Markets Group, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Intell"), MADISON BROADWAY ASSOCIATES LLC, a New York
limited liability company having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Madison"), and PLANET HOSPITALITY HOLDINGS, INC., a Florida
corporation, having an office at 0000 Xxxx Xxxx Xxxx, Xxxxxxx, XX 00000
("Planet Hollywood").
W I T N E S S E T H:
WHEREAS, Intell Real Estate Management and Investment Company ("Assignor
Intell") and Madison formed a limited liability company pursuant to the New
York Limited Liability Company Act, et seq., as amended from time to time, by
filing on March 19, 1997, Articles of Organization of the Company with the
office of the Secretary of State of the State of New York;
WHEREAS, Assignor Intell assigned all of its right, title and interest
in and to the Company to Intell; and
WHEREAS, Intell owns a ninety percent (90%) membership interest in the
Company and Madison owns a ten percent (10%) membership interest in the
Company; and
WHEREAS, the Company is the contract vendee under (a) a contract to
purchase that certain real property located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx and (b) a contract to purchase certain zoning and development rights
appurtenant to certain property located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx; and
WHEREAS, Planet Hollywood desires to be admitted as a member in the
Company and receive a membership interest in the Company, upon the terms and
conditions set forth in this Agreement; and
WHEREAS, Intell and Madison desire to admit Planet Hollywood as a member
in the Company and permit Planet Hollywood to receive a membership interest
in the Company, upon the terms and conditions set forth in this Agreement; and
WHEREAS, the Company intends to demolish the existing structure located
on the Property and construct a mixed use hotel, retail and sign tower
building thereon
(the "Project"), the retail portion of which will be operated by Planet
Hollywood as a Planet Hollywood theme restaurant; and
WHEREAS, at the closing for the acquisition of the Property pursuant to
the Property Agreement, the Company intends to cause Brel to convey the
Property in two (2) parcels as follows: (a) one parcel to be conveyed to
Planet Hollywood, Atlantic or PH-III and consist of the volume of space below
a horizontal plane at a height approximately equivalent to the height of the
roof of the third floor of the proposed new building, and (b) one parcel to
be conveyed to the Company and consist of the volume of space at and above
such horizontal plane; and
WHEREAS, upon the completion of the Project, the Project shall be
submitted to a condominium form of ownership pursuant to Article 9-B of the
Real Property Law of the State of New York, with the parties exchanging
confirmatory deeds with respect to the units in the condominium which
generally correspond to the respective volumes of space, subject to changes
reflecting the as-built condition of the Project and the terms and provisions
of the Reciprocal Easement (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereby agree as follows:
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings indicated:
"Affiliate" means any Person that directly or indirectly controls,
is controlled by or is under common control with the Person in question. As
used in this definition, the term "control" means the ownership, control, or
power to vote more than fifty (50%) percent of the voting securities of a
Person and (ii) and the power to direct or cause the direction of the
management and policies of a Person.
"Assignment Transaction" has the meaning set forth in Section 8.1(d).
"Atlantic" has the meaning set forth in Section 15.4.
"Brel" means Brel Associates XV, L.P.
"Broker" has the meaning set forth in Section 11.1.
"Capital Contribution" has the meaning set forth in Section 3.1.
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"Cash Balance" has the meaning set forth in Section 3.1(b).
"Closing" has the meaning set forth in Section 4.1 hereof.
"Closing Date" has the meaning set forth in Section 4.1 hereof.
"Closing Payment" has the meaning set forth in Section 3.1 hereof.
"Company Parties" means, collectively, the Company, Intell and
Madison. "Company Party" means any one of the Company Parties.
"Company's Percentage" means seventy-five percent (75%).
"Development Rights" means the zoning and development rights and
other rights to be sold by Xxxx pursuant to the Development Rights
Agreement.
"Development Rights Agreement" means that certain Development
Rights Purchase Agreement, dated June 16, 1997, between Xxxx, as seller,
and the Company, as purchaser, as the same may be hereafter amended,
modified, supplemented or extended.
"Development Rights Agreement Closing" means the closing of the
sale and purchase of the Development Rights pursuant to the Development
Rights Agreement.
"Development Rights Agreement Closing Documents" means the
documents and instruments to be delivered by Xxxx to the Company at the
Development Rights Agreement Closing pursuant to the Development Rights
Agreement.
"Deposit" has the meaning set forth in Section 3.1(a).
"Directed Documents Transaction" has the meaning set forth in
Section 8.1(d).
"Escrow Agent" means Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx.
"First Improvements Escrow Payment" has the meaning set forth in
Section 3.1(a).
"Guarantor" means Planet Hollywood International, Inc.
"Hotel Unit" has the meaning set forth in the Reciprocal
Easement.
"Hotel Parcel" has the meaning set forth in the Reciprocal
Easement.
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"Improvements Agreement" means the Improvements Agreement in the
form of Exhibit C annexed hereto, as the same may be amended, modified or
supplemented after the Closing Date.
"Improvements Escrow Account" has the meaning set forth in
Section 3.1(a).
"Intention to Terminate Notice" has the meaning set forth in
Section 8.1(d).
"Land" means that certain parcel of land more particularly
described on Exhibit F annexed hereto and made a part hereof.
"Last Termination Date" has the meaning set forth in Section
8.1(d).
"License Agreement" means that certain License Agreement in the
form of Exhibit E annexed hereto, as the same may be amended, modified or
supplemented after the Closing Date.
"Xxxx" means Xxxx Theatre Company.
"Member" has the meaning set forth in the Operating Agreement.
"Membership Interest" has the meaning set forth in the Operating
Agreement.
"Operating Agreement" means the Amended and Restated Limited
Liability Company Agreement of the Company in the form of Exhibit A annexed
hereto, as the same may be amended, modified or supplemented after the
Closing Date.
"Outside Date" has the meaning set forth in Section 8.1(a).
"Person" means an individual or a corporation, limited liability
company, partnership, trust, unincorporated organization, association or
other entity.
"PH-III" means Planet Hollywood (Region III), Inc.
"PH Indemnity" has the meaning set forth in Section 8.1(d).
"Planet Hollywood's Percentage" means twenty-five percent (25%).
"Planet Hollywood Interest" has the meaning given in Section 2.1
hereof.
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"Project" has the meaning set forth in the recitals hereof.
"Property" means the Land and the improvements to be conveyed by
the seller under the Property Agreement.
"Property Agreement" means that certain Purchase and Sale
Agreement between Brel, as seller, and the Company, as purchaser, dated as
of April 7, 1997, for the purchase and sale of the Property, as the same
may be hereafter amended, modified, supplemented or extended.
"Property Agreement Closing" means the closing of the sale and
purchase of the Property pursuant to the Property Agreement.
"Property Agreement Closing Documents" means the documents and
instruments to be delivered by Brel to the Company at the Property
Agreement Closing pursuant to the Property Agreement.
"Reciprocal Easement" means the Declaration of Easements in the
form of Exhibit B annexed hereto, as the same may be amended, modified or
supplemented after the Closing Date.
"Request for Assignment Notice" has the meaning set forth in
Section 8.1(d).
"Retail Parcel" has the meaning set forth in the Reciprocal
Easement.
"Retail Unit" has the meaning set forth in the Reciprocal
Easement.
"Retail Unit Contribution" has the meaning set forth in Section
3.1.
"Second Improvements Escrow Payment" has the meaning set forth in
Section 3.1(b).
"Suntrust" has the meaning set forth in Section 15.4.
ARTICLE 2.
MEMBERSHIP INTEREST; PURCHASE OF RETAIL UNIT
Section 2.1. Membership Interest. At the Closing, the Company agrees
to admit Planet Hollywood as a Member of the Company and permit Planet
Hollywood to receive a twenty percent (20%) Membership Interest in the
Company (such Membership Interest being referred to herein as the "Planet
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Hollywood Interest"), and Planet Hollywood agrees to be admitted as a
Member of the Company and receive the Planet Hollywood Interest, subject to
and in accordance with the terms and conditions of this Agreement.
Section 2.2. Retail Parcel and Hotel Parcel. At the Closing, the
Company agrees to direct Brel to convey the Property to the Company and
Planet Hollywood or Atlantic in two (2) parcels as follows: (a) the Retail
Parcel shall be conveyed to Planet Hollywood, Atlantic or PH-III and (b)
the Hotel Parcel shall be conveyed to the Company. Planet Hollywood agrees
to accept such portion of the Property comprising the Retail Parcel at the
Closing in accordance with the terms and conditions of this Agreement and
the Reciprocal Easement.
ARTICLE 3.
CAPITAL CONTRIBUTION; RETAIL UNIT CONTRIBUTION
Section 3.1. Payment of Capital Contribution and Retail Unit
Contribution. The capital contribution (the "Capital Contribution") to be
made by Planet Hollywood for the Planet Hollywood Interest is Seven Million
and 00/100 ($7,000,000) Dollars. The contribution (the "Retail Unit
Contribution") to be made by Planet Hollywood for the Retail Parcel is
Thirty-Three Million and 00/100 ($33,000,000) Dollars. The Retail Unit
Contribution consists of Eighteen Million and 00/100 ($18,000,000) Dollars
for the purchase price of the Retail Parcel and Fifteen Million and 00/100
($15,000,000) Dollars for the construction of the base-building portion of
the Retail Unit as further described in the Improvements Agreement. The
Capital Contribution and Retail Unit Contribution, being in the aggregate
amount of Forty Million and 00/100 ($40,000,000) Dollars, is collectively
referred to as the "Closing Payment", which Closing Payment is payable by
Planet Hollywood as follows:
(a) Thirty Three Million ($33,000,000) Dollars on the date hereof,
by wire transfer of immediately available federal funds to an account of
Escrow Agent designated by the Company which sum shall consist of (i) Eight
Million Five Hundred Thousand ($8,500,000) Dollars (such amount, together
with the interest earned thereon, being referred to herein as the
"Deposit"), which Deposit shall be held and disbursed by Escrow Agent in
accordance with the provisions set forth in Section 3.2 below; (ii) Sixteen
Million Five Hundred Thousand ($16,500,000) Dollars (the "Cash Balance"),
which Cash Balance shall be disbursed by Escrow Agent at the Closing to an
account designated by the Company; and (iii) Eight Million ($8,000,000)
Dollars (the "First Improvements Escrow Payment"), which First Improvements
Escrow Payment shall be transferred by the Escrow Agent at the Closing to
an account (the "Improvements Escrow Account") of Escrow Agent (or, if
required by the lender providing construction financing
for the Project, another third-party independent custodial escrow agent
such as a title insurance company or institutional bank designated by such
lender providing construction financing
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for the Project and reasonably acceptable to the Company), in accordance
with the terms and conditions set forth in the Improvements Agreement; and
(b) Five Million ($5,000,000) Dollars on or before the tenth (10th)
day after the Closing (the "Second Improvements Escrow Payment"), to be
paid by Planet Hollywood by wire transfer of immediately available federal
funds to the Improvements Escrow Account (or, if required by the lender
providing construction financing for the Project, another third-party
independent custodial escrow agent such as a title insurance company or
institutional bank designated by such lender providing construction
financing for the Project and reasonably acceptable to the Company), which
sum shall be held and disbursed in accordance with the terms and conditions
set forth in the Improvements Agreement; provided, however, that if Planet
Hollywood shall fail to make the Second Improvements Escrow Payment on or
before the tenth (10th) day after the Closing, interest shall accrue
thereon at the rate of fifteen percent (15%) per annum, compounded daily,
until fully paid; and
(c) (i) Two Million ($2,000,000) Dollars, to be paid by Planet
Hollywood in accordance with the terms and conditions set forth in the
Improvements Agreement.
(ii) Notwithstanding anything to the contrary contained in this
Section 3.1, in the event the Closing does not occur on or before December
5, 1997, Escrow Agent is hereby irrevocably authorized and directed to
promptly return the sum of Twenty Four Million Five Hundred Thousand
($24,500,000) Dollars, representing the Cash Balance and the First
Improvements Escrow Payment, together with interest thereon, by wire
transfer of immediately available federal funds to an account as designated
by Planet Hollywood; provided, however, that in the event the Closing
occurs on a date that is after December 5, 1997 and the Cash Balance and
the First Improvements Escrow Payment was returned to Planet Hollywood in
accordance with the immediately preceding clause in this
Section 3.1(c)(ii), then, in such event, Planet Hollywood shall pay the
Cash Balance ($16,500,000), the First Improvements Escrow Payment
($8,000,000), the Second Improvements Escrow Payment ($5,000,000), and the
remaining unpaid portion of the Closing Payment ($2,000,000) as follows:
(A) Sixteen Million Five Hundred Thousand ($16,500,000) Dollars
representing the Cash Balance, to be paid at the Closing by wire transfer
of immediately available federal funds to an account as designated by the
Company;
(B) Eight Million ($8,000,000) Dollars, representing the First
Improvements Escrow Payment, to be paid at the Closing by wire transfer of
immediately available federal funds to the Improvements Escrow Account (or,
if required by the lender providing construction financing for the Project,
another third-party independent custodial
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escrow agent such as a title insurance company or institutional bank
designated by such lender providing construction financing for the Project
and reasonably acceptable to the Company), which sum shall be held and
disbursed in accordance with the terms and conditions set forth in the
Improvements Agreement;
(C) Five Million ($5,000,000) Dollars, representing the Second
Improvements Escrow Payment, shall be paid pursuant to, and in accordance
with, Section 3.1(b) hereof; and
(D) Two Million ($2,000,000) Dollars, representing the remaining
balance of the Closing Payment, shall be paid pursuant to, and in
accordance with, Section 3.1(c)(i) hereof.
Section 3.2. Escrow of Deposit.
(a) The Deposit shall be delivered to Escrow Agent in accordance with
the provisions of Section 3.1 hereof, and shall be held by Escrow Agent
until the Closing or sooner termination of this Agreement. Escrow Agent
shall pay over or apply the Deposit in accordance with the terms of this
Section 3.2. Any interest earned on the Deposit or any portion thereof
shall be paid to the same party entitled to the Deposit or any portion
thereof hereunder (as and when such party is entitled to the Deposit or
such portion thereof), and the party receiving such interest shall pay any
income taxes thereon. For purposes thereof, the tax identification numbers
of the parties hereto are as follows: 00-0000000 (the Company); and
00-0000000 (Planet Hollywood).
(b) At the Closing, the Deposit shall be paid by Escrow Agent to or
as directed by the Company. Interest earned on the Deposit shall be
credited against the Cash Balance.
(c) If for any reason the Closing does not occur, then Escrow Agent
shall continue to hold the Deposit until otherwise directed by joint
written instructions from the Company and Planet Hollywood or a final
judgment of a court having jurisdiction. Escrow Agent, however, shall have
the right at any time to deposit the Deposit with the clerk of any federal
or state court sitting in the State of New York or a court having
jurisdiction in the county in which the Property is located. Escrow Agent
shall give written notice of such deposit to the Company and Planet
Hollywood. Upon such deposit, Escrow Agent shall be relieved and
discharged of all further obligations and responsibilities hereunder.
(d) The parties acknowledge that Escrow Agent (i) is acting solely
as a stakeholder at their request and for their convenience, (ii) shall not
be deemed to be the agent of either of the parties and (iii) shall not be
liable to either of the parties for any act or omission on its part unless
taken or suffered in bad faith, willful disregard of this
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Agreement or involving gross negligence. The Company and Planet Hollywood
shall jointly and severally indemnify and hold Escrow Agent harmless from
and against all costs, claims and expenses, including reasonable attorneys'
fees, incurred in connection with the performance of Escrow Agent's duties
hereunder, except with respect to actions or omissions taken or suffered by
Escrow Agent in bad faith, willful disregard of this Agreement or involving
gross negligence on the part of Escrow Agent.
(e) Escrow Agent shall invest the Deposit in an interest bearing
account at Citibank, N.A. Escrow Agent shall not be liable for any losses
suffered in connection with any such investment and shall have no
obligation to obtain the best, or otherwise seek to maximize, the rate of
interest earned on any such investment. Any fees or charges in connection
with such investment shall be paid out of the amounts held in escrow before
any other payments shall be required to be made from such amounts.
(f) Upon any delivery of the amount remaining in escrow as provided
in Sections 3.2(b) or 3.2(c) above, Escrow Agent shall be relieved of all
liability, responsibility or obligation with respect to or arising out of
the escrow or under this Agreement. Escrow Agent shall not be bound by any
modification to this Section 3.2 unless Escrow Agent shall have agreed to
such modification in writing.
(g) Escrow Agent shall be entitled to rely or act upon any notice,
instrument or document believed by Escrow Agent to be genuine and to be
executed and delivered by the proper person, and shall have no obligation
to verify any statements contained in any notice, instrument or document or
the accuracy or due authorization of the execution of any notice,
instrument or document.
(h) Escrow Agent shall be entitled to retain attorneys of its
choice, including itself, in connection with this escrow and Escrow Agent
may continue to represent the Company and Intell in connection with this
Agreement, or any dispute which may arise hereunder or otherwise.
(i) Escrow Agent has acknowledged agreement to the foregoing
provisions of this Section 3.2 by signing in the place indicated on the
signature page of this Agreement.
ARTICLE 4.
CLOSING
Section 4.1. Closing Date. The closing of the transactions
contemplated by this Agreement (the "Closing") shall be held at such
offices in the City of New York as shall be designated by the Company, and
shall occur at the same time and on the same date as the Property Agreement
Closing (such date being the "Closing Date"). TIME
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SHALL BE OF THE ESSENCE with respect to the Company Parties' and Planet
Hollywood's obligation to close on the Closing Date. As of the date hereof
and pursuant to the exercise of rights set forth in the Property Agreement,
the Property Agreement Closing is scheduled to occur on December 3, 1997.
Within one (1) business day after giving to or receiving from Brel any
notice changing the scheduled date of the Property Agreement Closing, the
Company shall give notice of such change to Planet Hollywood.
Section 4.2. Order of Closing. The Company Parties and Planet
Hollywood acknowledge and agree that the transactions constituting the
Closing under this Agreement and the transactions constituting the Property
Agreement Closing and Development Rights Agreement Closing shall occur
substantially contemporaneously; provided, however, the Company Parties and
Planet Hollywood agree that the Closing under this Agreement shall occur
immediately prior to the Property Agreement Closing and Development Rights
Agreement Closing so that a portion of the proceeds of the Closing Payment
may be used to satisfy the obligations of the purchaser under the Property
Agreement and Development Rights Agreement.
ARTICLE 5.
CLOSING DELIVERIES
Section 5.1. Documents and Payments to be Delivered at the Closing.
At the Closing, the Company Parties and/or Planet Hollywood, as the case
may be, shall make, or cause to be made, the following payments and
deliveries:
(a) Planet Hollywood shall pay, or direct the Escrow Agent to pay,
the Cash Balance and the First Improvements Escrow Payment, and Planet
Hollywood shall pay any other amounts payable by Planet Hollywood to or as
directed by the Company, at the Closing, pursuant to this Agreement.
(b) Intell, Madison and Planet Hollywood, and such other Persons as
Intell shall designate to be members of the Company, shall each execute,
acknowledge and deliver the Operating Agreement.
(c) The Company shall execute, acknowledge and deliver the
Improvements Agreement, and Planet Hollywood shall cause each of Atlantic
and PH-III to execute, acknowledge and deliver the Improvements Agreement.
(d) The Company shall execute, acknowledge and deliver the
Reciprocal Easement, and Planet Hollywood shall cause Atlantic and PH-III
to execute, acknowledge and deliver the Reciprocal Easement.
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(e) The Company shall execute, acknowledge and deliver the License
Agreement, and Planet Hollywood shall cause each of Guarantor, PH-III and
Planet Hollywood (Region IV), Inc. to execute, acknowledge and deliver the
License Agreement.
(f) The Company Parties shall execute and/or deliver such other
instruments or documents which by the terms of this Agreement are to be
delivered by the Company Parties at Closing, and Planet Hollywood shall
execute and/or deliver such other instruments or documents which by the
terms of this Agreement are to be delivered by Planet Hollywood at Closing.
(g) Planet Hollywood shall deliver to the Company Parties (i) a copy
of the certificate of incorporation of Planet Hollywood, certified as true
and correct by an officer of Planet Hollywood and (ii) a certified copy of
such corporate documents of Planet Hollywood as are reasonably necessary to
demonstrate that the transactions contemplated hereby have been authorized
by all necessary corporate action of Planet Hollywood.
(h) The Company shall deliver to Planet Hollywood a copy of the
Articles of Organization of the Company, certified as having been filed
with the State of New York Department of State.
(i) Intell shall deliver to Planet Hollywood (i) a copy of the
Articles of Organization of Intell, certified as having been filed with the
State of New York Department of State and (ii) a certified copy of such
documents of Intell as are reasonably necessary to demonstrate that the
transactions contemplated hereby have been authorized by all necessary
company action of Intell.
(j) Madison shall deliver to Planet Hollywood (i) a copy of the
Articles of Organization of Madison, certified as having been filed with
the State of New York Department of State and (ii) a certified copy of such
documents of Madison as are reasonably necessary to demonstrate that the
transactions contemplated hereby have been authorized by all necessary
company action of Madison.
(k) The Company shall deliver to Planet Hollywood a copy of the
closing documents delivered by Brel to the Company at the Property
Agreement Closing pursuant to the Property Agreement, including, without
limitation, the original deed conveying the Retail Parcel to Planet
Hollywood, and a copy of the title insurance commitment insuring fee title
to the Retail Parcel in Planet Hollywood.
(l) The Company shall deliver to Planet Hollywood a copy of the
closing documents delivered by Xxxx to the Company at the Development
Rights Agreement Closing pursuant to the Development Rights Agreement.
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(m) Planet Hollywood shall cause Atlantic and/or PH-III to execute,
acknowledge and deliver such Development Rights Agreement Closing Documents
and Property Agreement Closing Documents as are required to be executed by
the owner of fee title to the Retail Parcel, including, without limitation,
the zoning lot declaration, zoning lot development agreement, and all Xxx
Xxxx Xxxx xxx Xxx Xxxx Xxxxx transfer tax forms.
ARTICLE 6.
CONDITIONS TO CLOSING
Section 6.1. Conditions to Planet Hollywood's Obligation to Close.
Planet Hollywood's obligation to pay the Capital Contribution and Retail
Unit Contribution is subject to the satisfaction of the condition precedent
(which may be waived by Planet Hollywood) that (i) this Agreement shall be
in full force and effect and there shall not then exist any event which
would allow Planet Hollywood to terminate this Agreement pursuant to the
terms of this Agreement and (ii) subject to the provisions of Section 4.2
hereof, the Development Rights Agreement Closing shall occur substantially
contemporaneously with the Closing.
Section 6.2. Conditions to the Company Parties' Obligation to Close.
The Company Parties' obligation to admit Planet Hollywood as a Member in
the Company and permit Planet Hollywood to receive the Planet Hollywood
Interest and purchase the Retail Parcel is subject to the satisfaction of
the condition precedent (which may be waived by the Company) that this
Agreement shall be in full force and effect and there shall not then exist
any event which would allow the Company to terminate this Agreement
pursuant to the terms of this Agreement.
ARTICLE 7.
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties as to the Company. The
Company represents and warrants to Planet Hollywood that, as of the date
hereof:
(a) Organization. The Company is a limited liability company duly
organized, validly existing and in good standing under the laws of the
state of New York. The Company has limited liability company powers
adequate for the making and performing of this Agreement, has taken all
limited liability company action required to execute, deliver and perform
this Agreement and to make the provisions of this Agreement binding upon
the Company the valid and enforceable obligations of the Company they
purport to be and has caused this Agreement to be executed by a duly
authorized member or members of the Company.
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(b) Conflict with Existing Laws or Contracts. The execution and
delivery of this Agreement and all related documents and the performance of
its obligations hereunder and thereunder by the Company does not conflict
with any provision of the operating agreement of the Company or any law or
regulation to which the Company is subject, conflict with or result in a
breach of or constitute a default under any of the terms, conditions or
provisions of any agreement or instrument to which the Company is a party
or by which the Company is bound or any order or decree applicable to the
Company or result in the creation or imposition of any lien on any of its
assets or property, which would materially and adversely affect the ability
of the Company to perform its obligations under this Agreement; and the
Company has obtained all consents, approvals, authorizations or orders of
any court or governmental agency or body, if any, required for the
execution, delivery and performance by the Company of this Agreement.
(c) Legal Action Against The Company. There is no action, suit or
proceeding pending against the Company in any court or by or before any
other governmental agency or instrumentality which (a) would adversely
affect the ability of the Company to perform its obligations under this
Agreement or (b) has, or is likely to have, a material adverse effect on
the financial condition, operations or business prospects of the Company.
(d) Bankruptcy of The Company. The Company has not filed any
petition seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any law relating to bankruptcy or insolvency, nor has any such petition
been filed against the Company. The Company is not insolvent and the
consummation of the transactions contemplated by this Agreement shall not
render the Company insolvent.
(e) Property Agreement. The Property Agreement is in full force and
effect and the Company has no knowledge of any default by either party to
the Property Agreement nor has the Company given or received written notice
of any default under the Property Agreement.
(f) Development Rights Agreement. The Development Rights Agreement
is in full force and effect and the Company has no knowledge of any default
by either party to the Development Rights Agreement nor has the Company
given or received written notice of any default under the Development
Rights Agreement.
(g) Sign Agreement. At the request of the Company, Brel has sent a
notice to terminate the Sign Agreement (as defined in the Property
Agreement).
(h) Financial Statement. The financial statements of the Company
attached hereto as Exhibit D have been prepared from the books and records
of the Company on an accrual basis for Federal income tax purposes
consistently applied and
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maintained throughout the periods indicated, and fairly present the
financial condition of the Company as at their respective dates for the
periods covered thereby.
(i) Feasibility Studies. The Company has made available to Planet
Hollywood all written feasibility reports commissioned by the Company
regarding the Project, which feasibility reports are, to the Company's
knowledge, true, accurate and complete copies of the reports provided by
the applicable third parties to the Company.
(j) Zoning. Based upon the due diligence performed by or on behalf
of the Company, which due diligence includes the retention of Xxxxx
Xxxxxxxx and Associates to examine applicable zoning statutes, the zoning
regulations presently applicable to the Property permit restaurant and
hotel use and, assuming the acquisition of the Development Rights pursuant
to the Development Rights Agreement, the construction of an approximately
400 room hotel.
(k) Demolition. The Company has filed an ACP-7, and has received an
interior demolition and sidewalk bridge permit in connection with the
demolition of the existing building on the Land.
(l) Nomura Loan Documents. The documents evidencing and/or securing
that certain loan contemplated by the loan commitment (the "Commitment"),
dated November 7, 1997 from Nomura Asset Capital Corp. ("Nomura") to Xxxx
Xxxxxxx and Strategic Investment Property Fund, Inc. (the "Nomura Loan
Documents") shall (i) provide that a copy of all notices given by Nomura to
the Company shall be given to Planet Hollywood, (ii) not prohibit the
operation of the dilution provisions set forth in Sections 4.9 and 4.10 of
the Operating Agreement, (iii) provide that Nomura consents to the
operation of Section 12.5 of the Operating Agreement, subject to Planet
Hollywood or its designee satisfying such single purpose entity, bankruptcy
remote and customary legal opinion requirements of Nomura and (iv) require
the delivery of the completion guaranties and contractor payment and
performance bond substantially in the manner required by the Commitment.
Section 7.2. Representations and Warranties as to Planet Hollywood.
Planet Hollywood represents and warrants to the Company Parties that, as of
the date hereof:
(a) Authority; Binding on Planet Hollywood; Enforceability. Planet
Hollywood is a corporation duly organized, validly existing and in good
standing under the laws of the state of Florida. Planet Hollywood has
corporate powers adequate for the making and performing of this Agreement,
has taken all corporate action required to execute, deliver and perform
this Agreement and to make the provisions of this Agreement binding upon
Planet Hollywood the valid and enforceable obligations of Planet Hollywood
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they purport to be and has caused this Agreement to be executed by a duly
authorized officer or officers of Planet Hollywood.
(b) Conflict with Existing Laws or Contracts. The execution and
delivery of this Agreement and all related documents and the performance of
its obligations hereunder and thereunder by Planet Hollywood does not
conflict with any provision of the certificate of incorporation of Planet
Hollywood or any law or regulation to which Planet Hollywood is subject,
conflict with or result in a breach of or constitute a default under any of
the terms, conditions or provisions of any agreement or instrument to which
Planet Hollywood is a party or by which Planet Hollywood is bound or any
order or decree applicable to Planet Hollywood or result in the creation or
imposition of any lien on any of its assets or property, which would
materially and adversely affect the ability of Planet Hollywood to perform
its obligations under this Agreement; and Planet Hollywood has obtained all
consents, approvals, authorizations or orders of any court or governmental
agency or body, if any, required for the execution, delivery and
performance by Planet Hollywood of this Agreement.
(c) Legal Action Against Planet Hollywood. Except as set forth on
Schedule A annexed hereto, there is no action, suit or proceeding pending
against Planet Hollywood in any court or by or before any other
governmental agency or instrumentality which would adversely affect the
ability of Planet Hollywood to perform its obligations under this
Agreement.
(d) Bankruptcy of Planet Hollywood. Planet Hollywood has not filed
any petition seeking or acquiescing in any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any law relating to bankruptcy or insolvency, nor has any such petition
been filed against Planet Hollywood. Planet Hollywood is not insolvent and
the consummation of the transactions contemplated by this Agreement shall
not render Planet Hollywood insolvent.
Section 7.3. Representations and Warranties as to Intell. Intell
represents and warrants to Planet Hollywood that, as of the date hereof:
(a) Organization. Intell is a limited liability company duly
organized, validly existing and in good standing under the laws of the
state of New York. Intell has limited liability company powers adequate
for the making and performing of this Agreement, has taken all limited
liability company action required to execute, deliver and perform this
Agreement and to make the provisions of this Agreement binding upon Intell
the valid and enforceable obligations of Intell they purport to be and has
caused this Agreement to be executed by a duly authorized member or members
of Intell.
(b) Conflict with Existing Laws or Contracts. The execution and
delivery of this Agreement and all related documents and the performance of
its
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obligations hereunder and thereunder by Intell does not conflict with any
provision of the operating agreement of Intell or any law or regulation to
which Intell is subject, conflict with or result in a breach of or
constitute a default under any of the terms, conditions or provisions of
any agreement or instrument to which Intell is a party or by which Intell
is bound or any order or decree applicable to Intell or result in the
creation or imposition of any lien on any of its assets or property, which
would materially and adversely affect the ability of Intell to perform its
obligations under this Agreement; and Intell has obtained all consents,
approvals, authorizations or orders of any court or governmental agency or
body, if any, required for the execution, delivery and performance by
Intell of this Agreement.
(c) Legal Action Against Intell. There is no action, suit or
proceeding pending against Intell in any court or by or before any other
governmental agency or instrumentality which would adversely affect the
ability of Intell to perform its obligations under this Agreement.
(d) Bankruptcy of Intell. Intell has not filed any petition seeking
or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any law
relating to bankruptcy or insolvency, nor has any such petition been filed
against Intell. Intell is not insolvent and the consummation of the
transactions contemplated by this Agreement shall not render Intell
insolvent.
Section 7.4. Representations and Warranties as to Madison. Madison
represents and warrants to Planet Hollywood that, as of the date hereof:
(a) Organization. Madison is a limited liability company duly
organized, validly existing and in good standing under the laws of the
state of New York. Madison has limited liability company powers adequate
for the making and performing of this Agreement, has taken all limited
liability company action required to execute, deliver and perform this
Agreement and to make the provisions of this Agreement binding upon Madison
the valid and enforceable obligations of Madison they purport to be and has
caused this Agreement to be executed by a duly authorized member or members
of Madison.
(b) Conflict with Existing Laws or Contracts. The execution and
delivery of this Agreement and all related documents and the performance of
its obligations hereunder and thereunder by Madison does not conflict with
any provision of the operating agreement of Madison or any law or
regulation to which Madison is subject, conflict with or result in a breach
of or constitute a default under any of the terms, conditions or provisions
of any agreement or instrument to which Madison is a party or by which
Madison is bound or any order or decree applicable to Madison or result in
the creation or imposition of any lien on any of its assets or property,
which would materially and adversely affect the ability of Madison to
perform its obligations under this
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Agreement; and Madison has obtained all consents, approvals, authorizations
or orders of any court or governmental agency or body, if any, required for
the execution, delivery and performance by Madison of this Agreement.
(c) Legal Action Against Madison. There is no action, suit or
proceeding pending against Madison in any court or by or before any other
governmental agency or instrumentality which would adversely affect the
ability of Madison to perform its obligations under this Agreement.
(d) Bankruptcy of Madison. Madison has not filed any petition
seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any law
relating to bankruptcy or insolvency, nor has any such petition been filed
against Madison. Madison is not insolvent and the consummation of the
transactions contemplated by this Agreement shall not render Madison
insolvent.
Section 7.5. Restatement of Representations and Warranties; Survival.
Each representation and warranty made in this Article VII shall be
effective as of the Closing Date, and shall survive the Closing for a
period of nine (9) months.
ARTICLE 8.
COVENANTS
Section 8.1. Amendment of Property Agreement; Development Rights
Agreement.
(a) The Company shall have the right, from time to time and without
Planet Hollywood's consent, to terminate (subject to the provisions of
Section 8.1(d) below), amend, modify, supplement, extend or waive any of
the terms and provisions of the Property Agreement and/or Development
Rights Agreement (including, without limitation, any condition precedent to
the obligation of the Company to consummate the Property Agreement Closing
or Development Rights Agreement Closing), and, except as expressly set
forth in this Agreement, nothing contained in this Agreement shall give
Planet Hollywood any rights, as a third-party beneficiary or otherwise, in
and to the Property Agreement, Development Rights Agreement or any of the
rights of the Company thereunder. Notwithstanding the preceding sentence
to the contrary, the Company shall be required to obtain Planet Hollywood's
prior written consent to an amendment, modification, supplement, extension
or waiver of the Property Agreement (including, without limitation, any
condition precedent to the obligation of the Company to consummate the
Property Agreement Closing) to the extent that such amendment,
modification, supplement, extension or waiver of the Property Agreement
(i), subject to the provisions of Section 8.1(c) below, extends the
Property Agreement Closing to a date
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after December 31, 1997 (the "Outside Date"), if such extension is
requested by the Company (it being understood that an extension of the
Property Agreement Closing by Brel pursuant to its rights under the
Property Agreement, at law or in equity shall not be an amendment,
modification, supplement, extension or waiver of the Property Agreement for
purposes of this Section 8.1) or (ii) would materially and adversely affect
the ability of (A) Planet Hollywood to use the Retail Unit as a Planet
Hollywood theme restaurant or (B) the Company to operate the Hotel Unit as
a Planet Hollywood theme hotel. If Planet Hollywood's consent is required
to any amendment, modification, supplement, extension or waiver of the
Property Agreement pursuant to the preceding sentence, then such consent
shall be deemed granted if not denied by written notice given to the
Company within five (5) business days after the request for consent is
given.
(b) Planet Hollywood agrees that (i) no Company Party shall have any
obligation, and shall not be obligated to cause any other Company Party, to
expend any sums of money, incur any liability, commence any litigation or
proceeding or take any other action to (A) cause Brel to perform or
otherwise comply with its obligations under the Property Agreement, (B)
cause Xxxx to perform or otherwise comply with its obligations under the
Development Rights Agreement, (C) cause Brel to satisfy any condition
precedent to the obligation of the Company to purchase the Property
pursuant to the Property Agreement (and the Company shall have the right to
elect and exercise, in the Company's sole and absolute discretion, any and
all rights and remedies of the Company under the Property Agreement), or
(D) cause Xxxx to satisfy any condition precedent to the obligation of the
Company to purchase the Development Rights pursuant to the Development
Rights Agreement (and the Company shall have the right to elect and
exercise, in the Company's sole and absolute discretion, any and all rights
and remedies of the Company under the Development Rights Agreement), (ii)
no Company Party shall have any liability to Planet Hollywood, and shall
not be in default under this Agreement, if (A) Brel shall fail to perform
or otherwise comply with its obligations under the Property Agreement, (B)
Xxxx shall fail to perform or otherwise comply with its obligations under
the Development Rights Agreement, (C) Brel shall fail to satisfy any
condition precedent to the obligation of the Company to purchase the
Property pursuant to the Property Agreement or (D) Xxxx shall fail to
satisfy any condition precedent to the obligation of the Company to
purchase the Development Rights pursuant to the Development Rights
Agreement and (iii) no Company Party shall have any obligation or liability
to Planet Hollywood, and shall not be in default under this Agreement, if
the Company is unable to perform any of its covenants, agreements or
obligations under the Property Agreement and/or Development Rights
Agreement for any reason.
(c) Notwithstanding the foregoing provisions of Sections 8.1(a) and
8.1(b) to the contrary, if (i)the Company alleges that Brel has failed to
perform or otherwise comply with its obligations under the Property
Agreement, and the Company elects to enforce its rights and remedies
against Brel pursuant to the Property Agreement,
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or (ii) Brel alleges that the Company has failed to perform or otherwise
comply with its obligations under the Property Agreement, and Brel elects
to enforce its rights and remedies against the Company pursuant to the
Property Agreement and, in either such case, the Retail Unit has not been
conveyed to Planet Hollywood on or before December 31, 1997, then Planet
Hollywood shall have the right, as its sole and exclusive remedy, to
terminate this Agreement by notice given to the Company on or before
January 9, 1998. If Planet Hollywood shall so elect to terminate this
Agreement, then the Deposit shall be returned to Planet Hollywood, the
Company shall reimburse Planet Hollywood for the actual and reasonable
out-of-pocket expenses incurred by Planet Hollywood in connection with the
transaction contemplated by this Agreement, including reasonable attorneys
fees, and neither party shall have any further rights or obligations under
this Agreement, except those which expressly survive the termination of
this Agreement.
(d) (i) If (A) Brel shall fail to perform or otherwise comply with
its obligations under the Property Agreement or shall fail to satisfy any
condition precedent to the obligation of the Company to purchase the
Property pursuant to the Property Agreement, (B) such failure shall give
the Company the right to terminate the Property Agreement and receive a
return of the deposit monies paid by the Company pursuant to the Property
Agreement, (C) as a result of such failure, the Company, in the exercise of
its sole and absolute discretion, shall intend to terminate the Property
Agreement and Development Rights Agreement, the Company shall give notice
(the "Intention to Terminate Notice") of such intention to Planet
Hollywood. The Company shall give the Intention to Terminate Notice as
promptly as practicable after the occurrence of the events described in the
preceding subclauses (A), (B) and (C). If the Company shall send an
Intention to Terminate Notice, Planet Hollywood shall have the right to
elect either to (1) cause the Company to request that Brel consent to an
assignment of the Property Agreement to Planet Hollywood pursuant the
provisions of Section 21.01 thereof and Xxxx consent to an assignment of
the Development Rights Agreement to Planet Hollywood pursuant to Section 10
thereof (the "Assignment Transaction") or (2) cause the Company to request
that Brel deliver the Property Agreement Closing Documents directly to
Planet Hollywood and that Xxxx deliver the Development Rights Agreement
Closing Documents directly to Planet Hollywood (the "Directed Documents
Transaction"); provided, however, that in each such event (x) Planet
Hollywood shall not be in breach of any of its covenants, agreements or
representations under this Agreement and (y) such election shall be
exercised by notice (the "Request for Assignment Notice") received by the
Company from Planet Hollywood on or before the earlier of (I) the date
which is five (5) business days after the giving of the Intention to
Terminate Notice and (II) the date which is eleven (11) business days prior
to the last day by which the Company may exercise its right to terminate
the Property Agreement as a result of such failure of Brel (such last day
being referred to herein as the "Last Termination Date"), which notice
shall specify whether Planet Hollywood desires to effectuate the Assignment
Transaction or Directed
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Documents Transaction and (z) Planet Hollywood shall make such other
deliveries and payments as and when required pursuant to, and otherwise
comply with the provisions of, this Section 8.1(d).
(ii) If Planet Hollywood timely shall deliver the Request for
Assignment Notice in accordance with Section 8.1(d)(i) above, then, the
Company shall either (A) request that Brel and Xxxx consent to an
assignment of the Property Agreement to Planet Hollywood and Xxxx consent
to an assignment of the Development Rights Agreement to Planet Hollywood,
in the case where Planet Hollywood requested the Assignment Transaction in
the Request for Assignment Notice or (B) request that Brel deliver the
Property Agreement Closing Documents directly to Planet Hollywood and that
Xxxx deliver the Development Rights Agreement Closing Documents directly to
Planet Hollywood, in the case where Planet Hollywood requested the Directed
Documents Transaction in the Request for Assignment Notice.
(iii) In the case where Planet Hollywood timely delivered a
Request for Assignment Notice to consummate the Assignment Transaction, if,
at least one (1) business day prior to the Last Termination Date, (A) Brel
shall deliver to the Company its written consent to an assignment of the
Property Agreement to Planet Hollywood, together with (1) an irrevocable
and unconditional release of the Company from all of the covenants,
agreements and obligations of the "Purchaser" under the Property Agreement
and (2) the original Letter of Credit, if any, delivered on behalf of the
Company to Brel pursuant to Section 5.02 of the Property Agreement, (B)
Planet Hollywood shall deliver to Intell, by wire transfer of immediately
available funds to an account designated by Intell, an amount equal to the
sum of (1) the Downpayment (as defined in the Property Agreement), together
with the interest accrued thereon, (2) the Deposit (as defined in the
Development Rights Agreement), together with the interest accrued thereon,
(3) the amount, if any, deposited by the Company with Brel pursuant to
Section 5.02 of the Property Agreement in lieu of the Letter of Credit, (4)
all other sums which Brel would have been obligated to pay and/or return to
the Company had the Company elected to so terminate the Property Agreement,
(5) all other sums which Xxxx would have been obligated to pay and/or
return to the Company had the Company elected to so terminate the
Development Rights Agreement and (6) an amount, not to exceed Two Million
Dollars ($2,000,000), equal to all costs and expenses theretofore incurred
by the Company (but not Planet Hollywood) in connection with the Project,
(C) Planet Hollywood shall deliver to the Company an irrevocable and
unconditional assumption of all of the Company's obligations under the
Property Agreement and Development Rights Agreement and (D) Xxxx shall
deliver to the Company its written consent to an assignment of the
Development Rights Agreement to Planet Hollywood, together with an
irrevocable and unconditional release of the Company from all of the
covenants, agreements and obligations of the "Buyer" under the Development
Rights Agreement, then the Company shall not exercise such right of
termination and shall assign, without representation,
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warranty or recourse, the Company's rights and obligations as the
"Purchaser" under the Property Agreement, and the "Buyer" under the
Development Rights Agreement, to Planet Hollywood. If the Property
Agreement and Development Rights Agreement shall be so assigned to Planet
Hollywood, and Planet Hollywood shall have complied with all of the
covenants, agreements and obligations, and shall not be in breach of any
representation or warranty, of Planet Hollywood under this Agreement, then,
upon such assignment, (I) this Agreement shall automatically and without
further act of the parties, terminate and be of no further force or effect,
(II) the Deposit shall be returned to Planet Hollywood and (III) neither
party shall have any further rights or obligations under this Agreement,
except those which expressly survive the termination of this Agreement.
(iv) In the case where Planet Hollywood timely delivered a
Request for Assignment Notice to consummate the Directed Documents
Transaction, if, at least one (1) business day prior to the Last
Termination Date, Planet Hollywood shall deliver to Intell, (A) by wire
transfer of immediately available funds to an account designated by Intell,
an amount equal to the sum of (1) the Downpayment (as defined in the
Property Agreement), together with the interest accrued thereon, (2) the
Deposit (as defined in the Development Rights Agreement), together with the
interest accrued thereon, (3) the amount, if any, deposited by the Company
with Brel pursuant to Section 5.02 of the Property Agreement in lieu of the
Letter of Credit or, if the Letter of Credit was deposited by the Company
with Brel, an amount equal to the face amount of such Letter of Credit, (4)
all other sums which Brel would have been obligated to pay and/or return to
the Company had the Company elected to so terminate the Property Agreement,
(5) all other sums which Xxxx would have been obligated to pay and/or
return to the Company had the Company elected to so terminate the
Development Rights Agreement and (6) an amount, not to exceed Two Million
Dollars ($2,000,000), equal to all costs and expenses theretofore incurred
by the Company (but not Planet Hollywood) in connection with the Project,
and (B) an irrevocable and unconditional assumption of all of the Company's
obligations under the Property Agreement and Development Rights Agreement,
then the Company shall not exercise such right of termination, and the
Company shall request that Brel deliver the Property Agreement Closing
Documents directly to Planet Hollywood and that Xxxx deliver the
Development Rights Agreement Closing Documents directly to Planet
Hollywood. At the Property Agreement Closing, Planet Hollywood shall
comply with and fulfill all of the Company's obligations as the "Purchaser"
under the Property Agreement, and the "Buyer" under the Development Rights
Agreement, including, without limitation, the obligation to pay all sums
due to Brel and Xxxx under the Property Agreement and Development Rights
Agreement, respectively. In the event that Planet Hollywood shall deliver
the Request For Assignment Notice requesting the Directed Documents
Transaction, the delivery of such notice shall automatically constitute the
agreement of Planet Hollywood and Guarantor, jointly and severally, to
indemnify, defend and hold the Company and the Company Parties free and
harmless from and against any and all judgments, claims, liabilities,
damages, costs, expenses and losses (including
-21-
reasonable attorneys' fees and expenses) incurred by any of the Company
Parties and arising from or in connection with the Property Agreement,
Development Rights Agreement and Property (the "PH Indemnity"). The PH
Indemnity shall survive the Closing or termination of this Agreement. If
the Property Agreement Closing and Development Rights Agreement Closing
occurs, the Property Agreement Closing Documents and Development Rights
Agreement Closing Documents are delivered to Planet Hollywood in
consummation of a Directed Documents Transaction, Planet Hollywood shall
have complied with all of the covenants, agreements and obligations, and
shall not be in breach of any representation or warranty, of Planet
Hollywood under this Agreement, then, upon the occurrence of all such
events, (I) this Agreement shall automatically and without further act of
the parties, terminate and be of no further force or effect, (II) the
Deposit shall be returned to Planet Hollywood and (III) neither party shall
have any further rights or obligations under this Agreement, except those
which expressly survive the termination of this Agreement.
(v) Notwithstanding any provision of this Agreement to the
contrary, in no event shall the Company have any express or implied
obligation to assign, transfer or convey, or cause the assignment, transfer
or conveyance of, any interest of the Company in the Property Agreement or
Development Rights Agreement to Planet Hollywood, except as expressly set
forth in this Section 8.1(d), and Planet Hollywood acknowledges and agrees
that this Section 8.1(d) has no applicability unless and until the Company
voluntary elects not to proceed with the acquisition of the Property and
Development Rights under the circumstances more particularly described in
Section 8.1(d)(i) above.
(e) If the Property Agreement shall terminate and be of no further
force or effect, then this Agreement shall automatically and without
further act of the parties, terminate and be of no further force or effect.
If the Property Agreement shall so terminate and Planet Hollywood shall
have complied with all of the covenants, agreements and obligations, and
shall not be in breach of any representation or warranty, of Planet
Hollywood under this Agreement, then, upon such termination of this
Agreement, (I) the Deposit shall be returned to Planet Hollywood and (II)
neither party shall have any further rights or obligations under this
Agreement, except those which expressly survive the termination of this
Agreement.
ARTICLE 9.
CONDITION OF PROPERTY
Section 9.1. Condition of Interests; Property. Planet Hollywood is a
sophisticated investor and its valuation of, and decision to be admitted as
a Member of the Company, pay the Closing Payment and receive the Planet
Hollywood Interest and
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purchase the Retail Parcel is based upon its own independent expert
evaluations of such facts and materials deemed relevant by Planet Hollywood
and its agents. Planet Hollywood acknowledges that no employee, agent,
consultant, advisor or representative of any Company Party has been
authorized to make, and that Planet Hollywood has not relied upon, any
statements or representations other than those specifically contained in
this Agreement. Without limiting the generality of the foregoing, Planet
Hollywood acknowledges and agrees that, except as expressly set forth in
Article VII hereof, Planet Hollywood is receiving the Planet Hollywood
Interest and Retail Parcel "as is" and "where is" on the Closing Date, and,
except as expressly set forth in Article VII hereof, no Company Party is
making any representation or warranty, express or implied, and Planet
Hollywood has not relied on any representation or warranty, express or
implied, regarding the Planet Hollywood Interest, Retail Parcel, the
Company or Property. No Company Party is liable or bound in any manner by
any verbal or written statements, representations, real estate brokers'
"set-ups", offering memorandum or information pertaining to the Planet
Hollywood Interest, Retail Unit, the Company or Property furnished by any
real estate broker, advisor, consultant, agent, employee, representative or
other person.
ARTICLE 10.
TRANSACTION COSTS
Section 10.1. The Company's Transaction Costs. The Company, and not
Planet Hollywood, shall be responsible for the cost of the Company's legal
counsel, advisors and the other professionals employed by it in connection
with the transactions contemplated hereby. The Company shall also be
responsible for (a) the policy premiums in respect of any title insurance
obtained by the Company for the purchase of the Hotel Parcel and any
mortgage title insurance required by the Company's lender (if any), (b) the
Company's Percentage of all survey and departmental search costs and
updates related to the purchase of the entire Property and (c) the
Company's Percentage of all real estate taxes and assessments payable with
respect to the Property from and after the Closing Date.
Section 10.2. Planet Hollywood's Transaction Costs. Planet Hollywood
shall be responsible for all costs and expenses associated with (a) Planet
Hollywood's legal counsel, advisors, engineers, consultants and the other
professionals employed by it in connection with Planet Hollywood's due
diligence and the transactions contemplated hereby, (b) the policy premiums
in respect of any title insurance obtained by Planet Hollywood for the
purchase of the Retail Parcel and any mortgage title insurance required by
Planet Hollywood's lender (if any), (c) Planet Hollywood's Percentage of
all survey and departmental search costs and updates related to the
purchase of the entire Property
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and (d) Planet Hollywood's Percentage of all real estate taxes and
assessments payable with respect to the Property from and after the Closing
Date.
Section 10.3. Property Agreement Adjustments. Upon the calculation of
the adjustments to be made between the Company and Brel pursuant to the
provisions of Section 14.01 of the Property Agreement, an amount equal to
Planet Hollywood's Percentage of the net amount of such adjustments shall
be added to (if such net amount is in Brel's favor) or deducted from (if
such net amount is in the Company's favor) the Cash Balance of the Closing
Payment payable by Planet Hollywood at the Closing pursuant to this
Agreement.
Section 10.4. Survival. The provisions of this Article 10 shall
survive the Closing.
ARTICLE 11.
BROKERAGE
Section 11.1 The Company's Representation and Indemnification. The
Company represents and warrants to Planet Hollywood that neither it nor its
representatives have engaged or dealt with any broker or other person who
may be entitled to any finder's fee, brokerage commission or other like
payment in respect of the negotiation, execution, or performance of this
Agreement other than Insignia/Xxxxxx X. Xxxxxx Co. Inc. (the "Broker").
The Company agrees to pay any commission or other compensation due to
Broker pursuant to a separate written agreement, and that it will indemnify
and hold harmless Planet Hollywood against all claims, damages, expenses
and losses (including reasonable attorneys' fees and expenses) which may be
asserted against Planet Hollywood by any person as a result of dealings,
arrangements or agreements by the Company or its representatives with any
broker other than Broker. Planet Hollywood shall not, by virtue of the
Planet Hollywood Interest being acquired pursuant to this Agreement, be
directly liable for the payment of any portion of the commission due the
Broker or the transaction costs to be paid by the Company pursuant to
Section 10.1 hereof, but such commission and costs shall be proper expenses
of the Company for purposes of calculating the amount of any distributions
which may be due to Planet Hollywood as Member of the Company after the
Closing. The indemnifications set forth in this Section 11.1 shall survive
the Closing or termination of this Agreement.
Section 11.2. Planet Hollywood's Representation and Indemnification.
Planet Hollywood represents and warrants to the Company Parties that
neither it nor its representatives have engaged or dealt with any broker or
other person who may be entitled to any finder's fee, brokerage commission
or other like payment in respect of the negotiation, execution, or
performance of this Agreement other than Broker, and that it will indemnify
and hold harmless the Company Parties against all claims, damages,
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expenses and losses (including reasonable attorneys' fees and expenses)
which may be asserted against the Company Parties by any person as a result
of dealings, arrangements or agreements by Planet Hollywood or its
representatives with any broker other than Broker. Planet Hollywood agrees
to indemnify the Company Parties from all claims, damages, expenses and
losses (including reasonable attorneys' fees and expenses) which may be
asserted against the Company Parties by any person as a result of dealings,
arrangement or agreements by Planet Hollywood with any broker other than
Broker. The indemnifications set forth in this Section 11.2 shall survive
the Closing or termination of this Agreement.
ARTICLE 12.
DEFAULT; REMEDIES; SURVIVAL
Section 12.1. Planet Hollywood's Default On or Before Closing.
(a) If,(i) on or prior to the Closing Date, (x) Planet Hollywood
defaults in any of the material covenants, agreements or obligations to be
performed by Planet Hollywood under this Agreement on or as of the Closing
Date (or at the Closing) or (y) any of the Company Parties shall become
aware of an inaccuracy in any representation or warranty made by Planet
Hollywood pursuant to Section 7.2 hereof which has a material adverse
effect on any of the Company Parties and such material inaccuracy is not
cured by the earlier of (A) the Closing Date or (B) the date which is ten
(10) days after notice of such inaccuracy from the Company to Planet
Hollywood and (ii) the conditions to Planet Hollywood's obligation to make
the Capital Contribution and Retail Unit Contribution as set forth in
Section 6.1 hereof have been satisfied and (iii) the Company Parties are
ready, willing and able to proceed with the Closing, then, and in any of
such events, the Company Parties shall have the right to terminate this
Agreement by written notice to Planet Hollywood, and make a claim against
Planet Hollywood for damages incurred by the Company as a result of such
default and/or material inaccuracy. The provisions of this Section 12.1(a)
shall survive the termination of this Agreement only in the event of a
termination pursuant to the terms of this Section 12.1(a).
(b) If the Company Parties, with knowledge of (i) a default in any
of the covenants, agreements or obligations to be performed by Planet
Hollywood under this Agreement or (ii) a material inaccuracy in any
representation or warranty of Planet Hollywood made in this Agreement
elects to proceed to Closing, then, upon the consummation of the Closing,
the Company Parties shall be deemed to have waived any such default, and
shall have no claim against Planet Hollywood on account thereof.
Section 12.2. Company Parties' Default On or Before Closing.
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(a) If,(i) on or prior to the Closing Date, (x) the Company Parties
default in any of the material covenants, agreements or obligations to be
performed by the Company Parties under this Agreement on or as of the
Closing Date (or at the Closing), (y) Planet Hollywood shall become aware
of an inaccuracy in any representation or warranty made by the Company
pursuant to Sections 7.1, 7.3, or 7.4 hereof which has a material adverse
effect on Planet Hollywood or (z) the Company Parties otherwise materially
default hereunder and, in the case of the preceding subclauses (y) or (z),
such inaccuracy or other material default is not cured by the earlier of
(A) the Closing Date or (B) the date which is ten (10) days after notice of
such default from Planet Hollywood to the Company Parties and (ii) the
conditions to the Company's obligation to admit Planet Hollywood as a
Member in the Company and permit Planet Hollywood to receive the Planet
Hollywood Interest, and purchase the Retail Parcel as set forth in Section
6.2 hereof have been satisfied and (iii) Planet Hollywood is ready, willing
and able to proceed with the Closing, then, and in any of such events,
Planet Hollywood, as its sole remedy therefor, may either (1) seek specific
performance of the Company Parties' obligations hereunder, without
abatement, credit against or reduction of the Closing Payment or
(2) terminate this Agreement by written notice to the Company Parties,
whereupon the Deposit shall be refunded to Planet Hollywood, and Planet
Hollywood shall have the right to make a claim against the Company for
damages incurred by Planet Hollywood as a result of such default and/or
material inaccuracy. The provisions of this Section 12.2(a) shall survive
the termination of this Agreement only in the event of a termination
pursuant to the terms of this Section 12.2(a).
(b) If Planet Hollywood, with knowledge of (i) a default in any of
the covenants, agreements or obligations to be performed by the Company
Parties under this Agreement or (ii) a material inaccuracy in any
representation or warranty of any Company Party made in this Agreement
elects to proceed to Closing, then, upon the consummation of the Closing,
Planet Hollywood shall be deemed to have waived any such default or
material inaccuracy and shall have no claim against any of the Company
Parties on account thereof.
Section 12.3. Survival.
(a) Except as otherwise expressly provided in this Agreement to
survive the Closing, no provision of this Agreement (i.e., no
representation, warranty, covenant, agreement or other obligation set forth
in any provision of this Agreement) shall survive the Closing (and,
accordingly, no claim arising out of the same may be commenced after the
Closing), and the delivery and acceptance of the Retail Parcel and the
Planet Hollywood Interest shall be deemed to be full performance and
discharge of each such representation, warranty, covenant, agreement or
other obligation.
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(b) If, after the Closing, the Company shall first learn of (i) an
inaccuracy in any representation or warranty of Planet Hollywood made
pursuant to Section 7.2 hereof which, in any case, has a material adverse
effect on any Company Party and expressly survives the Closing pursuant to
this Agreement or (ii) a default in any of the covenants, agreements or
obligations to be performed by Planet Hollywood under this Agreement which
expressly survives the Closing, then the Company Parties shall have a claim
for damages on account thereof, provided that any such claim shall be
brought within the survival period applicable to such representation,
warranty covenant, agreement or obligation as set forth in this Agreement,
and any claim not brought within such survival period shall be deemed
waived.
(c) If, after the Closing, Planet Hollywood shall first learn of (i)
an inaccuracy in any representation or warranty of a Company Party made
pursuant to Section 7.1, 7.3 or 7.4 hereof which, in any case, has a
material adverse effect on Planet Hollywood and expressly survives the
Closing pursuant to this Agreement or (ii) a default in any of the
covenants, agreements or obligations to be performed by any Company Party
under this Agreement which expressly survives the Closing, then Planet
Hollywood shall have a claim against such Company Party for damages on
account thereof, provided that any such claim shall be brought within the
survival period applicable to such representation, warranty covenant,
agreement or obligation as set forth in this Agreement, and any claim not
brought within such survival period shall be deemed waived.
ARTICLE 13.
NOTICES
Section 13.1. Notices. All notices, demands, requests and other
communications required hereunder shall be in writing and shall be deemed
to have been given: (a) upon delivery, if personally delivered; (b) three
(3) days after deposit in the United States Mail when delivered, postage
prepaid, by certified or registered mail, return receipt requested; or (c)
one (1) Business Day after deposit with a nationally recognized overnight
delivery service marked for delivery on the next Business Day, addressed to
the party for whom it is intended at its address hereinafter set forth:
To the Company Parties:
Intell Times Square, LLC
c/o Property Markets Group
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx
with a copy to:
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Xxxxxxx Xxxxxxxx Associates LLC
c/o Madison Equities
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: Xxxxxx Xxxxxxxxx
with a copy to:
Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: Xxxxxx X. Xxxxx, Esq.
To Planet Hollywood:
Planet Hospitality Holdings, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Att: General Counsel
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Att: Xxxx Xxxxxxx, Esq.
or at such other address in the United States of America as may be
designated by either of the parties in a written notice given in accordance
with the provisions of this Section. The attorney for any party may send
notices on that party's behalf.
ARTICLE 14.
Intentionally Omitted
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ARTICLE 15.
MISCELLANEOUS
Section 15.1. Governing Law; Jurisdiction and Venue.
(a) This Agreement shall be governed by, and construed in accordance
with, the substantive laws of the State of New York, without regard to
conflict of law principles.
(b) For the purposes of any suit, action or proceeding involving this
Agreement, Planet Hollywood, the Company, Intell and Madison hereby
expressly submit to the jurisdiction of all federal and state courts
sitting in the State of New York and consent that any order, process,
notice of motion or other application to or by any such court or a judge
thereof may be served within or without such court's jurisdiction by
registered mail or by personal service, provided that a reasonable time for
appearance is allowed, and Planet Hollywood, the Company, Intell and
Madison agree that such courts shall have the exclusive jurisdiction over
any such suit, action or proceeding commenced by any of said parties. In
furtherance of such agreement, Planet Hollywood agrees upon the request of
the Company to discontinue (or agree to the discontinuance of) any such
suit, action or proceeding pending in any other jurisdiction.
(c) Planet Hollywood, the Company, Intell and Madison hereby
irrevocably waive any objection that they may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement brought in any federal or state court sitting in
the State of New York and hereby further irrevocably waives any claim that
any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
Section 15.2. Further Assurances. In addition to the obligations
required to be performed hereunder by the Company Parties and Planet
Hollywood at or prior to the Closing, each party, from and after the
Closing, shall execute, acknowledge and/or deliver such other instruments,
as may reasonably be requested in order to effectuate the purposes of this
Agreement; provided, however, that the foregoing provisions of this Section
15.2 shall not obligate either party to execute, acknowledge or deliver any
instrument which would or might impose upon such party any additional
liability or obligation (beyond that imposed upon on it under the documents
delivered by such party at the Closing and the other provisions of this
Agreement which survive the Closing).
Section 15.3. Successors. All of the provisions of this Agreement and
of any of the documents and instruments executed in connection herewith
shall apply to and be binding upon, and inure to the benefit of the Company
Parties and Planet Hollywood, their successors and permitted assigns.
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Section 15.4. Assignment.
(a) Except as otherwise expressly permitted in this Section 15.4,
neither this Agreement nor any of the rights of Planet Hollywood hereunder
(nor the benefits of such rights) may be assigned, transferred or
encumbered without the Company's prior written consent and any purported
assignment, transfer or encumbrance without the Company's prior written
consent shall be void.
(b) Notwithstanding the foregoing provisions of Section 15.4(a),
Planet Hollywood shall have the right to assign this Agreement to an
Affiliate of Planet Hollywood International, Inc.; provided that, as a
condition to the effectiveness of such assignment, (i) Planet Hollywood
shall give to the Company prior written notice of such assignment and (ii)
such Affiliate assignee shall agree in writing for the benefit of the
Company to assume and be bound by all of the terms, covenants and
provisions of this Agreement and deliver an original counterpart of such
executed assumption to the Company. In no event shall any permitted
assignment of this Agreement relieve the assignor of its obligations under
this Agreement.
(c) Notwithstanding the foregoing provisions of Section 15.4(a),
Planet Hollywood shall have the right to assign this Agreement or its
rights to the Retail Parcel under this Agreement to Atlantic Financial
Group, Ltd. ("Atlantic"), or an Affiliate of SunTrust Bank, Central
Florida, National Association ("Suntrust"); provided that, as a condition
to the effectiveness of such assignment (i) Suntrust shall be financing
Planet Hollywood's acquisition of the Retail Parcel pursuant to a synthetic
leasing and/or mortgage transaction and, concurrently with such assignment,
entering into, among other agreements, a lease with PH-III, as lessee, for
the Retail Unit and (ii) Planet Hollywood grants to Atlantic or an
affiliate of Suntrust all licenses, patents, trademarks and other rights
necessary to operate a Planet Hollywood themed restaurant, which grant
shall unconditionally and irrevocably continue in the event of termination
of the synthetic lease. In no event shall any permitted assignment of this
Agreement relieve the assignor of its obligations under this Agreement.
(d) Without limiting the Company's ability to freely assign this
Agreement, the Company shall have the right to collaterally assign this
Agreement to Nomura Asset Capital Corporation or an Affiliate of Nomura
Asset Capital Corporation.
Section 15.5. No Third Party Beneficiary. This Agreement and each of
the provisions hereof are solely for the benefit of Planet Hollywood and
the Company Parties and their permitted assigns. No provisions of this
Agreement, or of any of the documents and instruments executed in
connection herewith, shall be construed as creating in any person or entity
other than Planet Hollywood and the Company Parties and their permitted
assigns any rights of any nature whatsoever.
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Section 15.6. Entire Agreement. This Agreement, together with the
documents and instruments executed and delivered in connection herewith,
sets forth the entire agreement between Planet Hollywood and the Company
Parties relating to the transactions contemplated hereby and all other
prior or contemporaneous agreements, understandings, representations or
statements, oral or written, relating to the Membership Interests, the
Retail Parcel and the Property are superseded hereby.
Section 15.7. Severability. If any provision in this Agreement is found
by a court of competent jurisdiction to be in violation of any applicable
law, and if such court should declare such provision of this Agreement to
be unlawful, void, illegal or unenforceable in any respect, the remainder
of this Agreement shall be construed as if such unlawful, void, illegal or
unenforceable provision were not contained herein, and the rights,
obligations and interests of the parties hereto under the remainder of this
Agreement shall continue in full force and effect undisturbed and
unmodified in any way.
Section 15.8. Modification. This Agreement and the terms hereof may not
be changed, waived, modified, supplemented, canceled, discharged or
terminated orally, but only by an instrument or instruments in writing
executed and delivered by Planet Hollywood and the Company Parties.
Section 15.9. Waiver of Trial by Jury. EACH PARTY HEREBY WAIVES,
IRREVOCABLY AND UNCONDITIONALLY, TRIAL BY JURY IN ANY ACTION BROUGHT ON,
UNDER OR BY VIRTUE OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY OF
THE DOCUMENTS EXECUTED IN CONNECTION HEREWITH, THE PROPERTIES, OR ANY
CLAIMS, DEFENSES, RIGHTS OF SET-OFF OR OTHER ACTIONS PERTAINING HERETO OR
TO ANY OF THE FOREGOING.
Section 15.10. No Recording. Neither this Agreement nor any memorandum
hereof shall be recorded. Each party hereby agrees to indemnify and hold
harmless the others for all liabilities, losses, damages, liens, suits,
claims, costs and expenses (including reasonable attorneys' fees) incurred
by the other by reason of a breach of the foregoing covenant.
Section 15.11. Captions; Interpretation.
(a) The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent
of this Agreement or any of the provisions hereof. All references to
"Articles" and "Sections" without reference to a document other than this
Agreement, are intended to designate articles and sections of this
Agreement, and the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article or Section, unless specifically designated otherwise.
-31-
(b) As used in this Agreement, the masculine shall include the
feminine and neuter, the singular shall include the plural and the plural
shall include the singular, as the context may require.
(c) The use of the term "including" shall mean in all cases "including
but not limited to" unless specifically designated otherwise.
(d) No rules of construction against the drafter of this Agreement
shall apply in any interpretation or enforcement of this Agreement, any
documents or certificates executed pursuant hereto, or any provisions of
any of the foregoing.
Section 15.12. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
and the same original, and the execution of separate counterparts by Planet
Hollywood and the Company Parties shall bind Planet Hollywood and the
Company Parties as if they had each executed the same counterpart.
Section 15.13. No Waiver. Neither the failure of either party to
exercise any power given such party hereunder or to insist upon strict
compliance by the other party with its obligations hereunder, nor any
custom or practice of the parties at variance with the terms hereof shall
constitute a waiver of either party's right to demand exact compliance with
the terms hereof.
Section 15.14. Time of Essence. Time shall be of the essence with
respect to this Agreement and the covenants and obligations of the parties
hereunder.
Section 15.15. Attorney's Fees. In the event that either party hereto
shall commence litigation against the other in connection herewith, the
losing party in such action shall reimburse the attorneys' fees and
disbursements of the prevailing party in such action.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed the date and year first above written.
TIMES SQUARE PARTNERS LLC, a New
York limited liability company
By: SPE Times Square, Inc., a New York
corporation, its Managing Member
By:
--------------------------------
Name:
Title:
MADISON BROADWAY ASSOCIATES
LLC, a New York limited liability company
By:
------------------------------------
Name:
Title:
INTELL TIMES SQUARE, LLC, a New York
limited liability company
By:
------------------------------------
Name:
Title:
PLANET HOSPITALITY HOLDINGS, INC., a
Florida corporation
By:
------------------------------------
Name:
Title:
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AGREEMENT OF :
The undersigned hereby acknowledges receipt of $33,000,000, and agrees to
hold such sum in escrow pursuant to the provisions of Sections 3.1 and 3.2
of this Agreement.
FRIED XXXXX XXXXXX XXXXXXX & XXXXXXXX
By:
------------------------------------
Name:
Title:
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EXHIBIT A
Form of Operating Agreement
-35-
EXHIBIT B
Form of Declaration of Easements
-36-
EXHIBIT C
Form of Improvements Agreement
-37-
EXHIBIT D
Financial Statements
-38-
EXHIBIT E
Form of License Agreement
-39-
EXHIBIT F
Land
-40-
Schedule A
Litigation
Planet Hollywood (Region IV), Inc. et al v. Hollywood Casino Corporation, et al
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