Exhibit T3C-2
Exhibit A
To Indenture
[The face of the Notes shall be substantially as follows:]
THIS NOTE IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED AS OF
MARCH __, 2000 BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT,
WILMINGTON TRUST COMPANY, AS AGENT, AND UNITED STATES TRUST COMPANY OF NEW YORK,
AS JUNIOR SUBORDINATED TRUSTEE, WHICH MATERIALLY AFFECTS CERTAIN PAYMENT RIGHTS,
SUBORDINATES CERTAIN SECURITY INTERESTS AND LIMITS RIGHTS TO ENFORCEMENT. ALL
PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD INDEBTEDNESS HEREUNDER ARE
BOUND BY THE TERMS OF THE INTERCREDITOR AND SUBORDINATION AGREEMENT WHICH WILL
BE MADE AVAILABLE UPON REQUEST.
PLANET HOLLYWOOD INTERNATIONAL, INC.
10% Secured Deferrable Interest Notes Due 2005.
No. __________ $_____________ Initial Principal Amount
Interest Payment Dates: ________ and _________ of each year,
commencing ________, ___________
CUSIP No. ______________
PLANET HOLLYWOOD INTERNATIONAL, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
________________________, or registered assigns, the Initial Principal Amount
set forth above (as the same may be increased through the compounding of
deferred interest as provided in the immediately succeeding paragraph) on
________ __, 2005 and to pay interest thereon from the date hereof, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on each Interest Payment Date in each year, at the
rate of 10% per annum, until the principal hereof is paid or duly provided for,
PROVIDED that any principal and premium, if any, and any such installment of
interest, which is overdue shall bear interest at the rate of 12.75% per annum
(to the extent that the payment of such interest shall be legally enforceable),
from the dates such amounts are due until they are paid or duly provided for,
and such interest shall be payable on demand.
Notwithstanding the foregoing, the Company shall be entitled to defer
and compound to principal the first five semi-annual installments of interest on
the Notes on the related Interest Payment Dates; PROVIDED that (i) to the extent
so deferred and compounded, such installments shall be calculated at the rate of
12.75% per annum (rather than 10% per annum) and (ii) if, as reflected in the
Company's financial statements for the most recently completed period of four
fiscal quarters (commencing with the first fiscal quarter after the Notes are
initially issued) for which such financial statements are available, the ratio
of the Company's Consolidated EBITDA to Consolidated Interest Expense for such
period is greater than 1.75 to 1.00, the Company shall not be entitled to defer
or compound the next succeeding semi-annual installments of interest pursuant to
the foregoing.
The interest so payable in cash, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the last day of the calendar month
(whether or not a Business Day) next preceding such Interest Payment Date.
In the case of a default in payment of principal upon acceleration,
redemption or repurchase, the overdue principal and any overdue premium shall
bear interest at the rate of 12.75% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or duly provided for. Interest on any overdue principal or
premium shall be payable on demand. Any such interest on overdue principal or
premium which is not paid on demand shall bear interest at the rate of 12.75%
per annum (to the extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount so demanded
is paid or duly provided for, and such shall be payable on demand.
Payment in respect of the principal of (and premium, if any) and any
interest on this Note will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
or at such additional offices or agencies as the Company from time to time may
designate for such purpose, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts, PROVIDED, HOWEVER, that payment of the principal of (and premium,
if any, on) this Note shall be made only upon presentation and surrender hereof
at any such office or agency and, at the option of the Company, payment of
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[SEAL] PLANET HOLLYWOOD INTERNATIONAL, INC.
By __________________________
Name:
Title:
Attest:
By __________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee, certifies that
this is one of the 10% Secured Deferrable Interest Notes Due 2005 referred to in
the Indenture dated as of _____ __, 2000 among Planet Hollywood International,
Inc., [Names of the Subsidiary Guarantors] and the Trustee.
By _________________________
Authorized Signatory
[Form of Reverse of Note:]
This Note is one of a duly authorized issue of Notes of the Company
designated as its 10% Secured Deferrable Interest Notes Due 2005 (herein called
the "Notes"), limited in aggregate principal amount to $_________, issued and to
be issued under an Indenture, dated as of ______ __, 2000 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee (herein called the "Trustee" which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders and of the terms upon
which the Notes are, and are to be, authenticated and delivered. Capitalized
terms used herein and not defined herein have the meanings ascribed thereto in
the Indenture.
To guarantee (a) the full and punctual payment of principal of and
interest on the Notes when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Company under
this Indenture and the securities and (b) the full and punctual performance
within applicable grace periods of all other obligations of the Company under
this Indenture and the Notes, the Subsidiary Guarantors have unconditionally and
irrevocably guaranteed, jointly and severally, such obligations pursuant to the
terms of Article 11 of the Indenture.
The Notes are secured to the extent set forth in the Security
Documents and Article 10 of the Indenture.
At any time following the Issue Date, the Notes will be redeemable, in
whole or in part, at the option of the Company, upon not less than 30 and no
more than 60 days' prior notice, on any _______ __, _______.__, _______ __ or
_______ __ of any year at a redemption price equal to 100% of the principal
amount thereof PLUS accrued and unpaid interest, if any, to the date of
redemption.
If (i) as reflected in the Company's financial statements for the most
recently completed period of four fiscal quarters immediately preceding any
Interest Payment Date (commencing with the four-quarter fiscal period ending
immediately prior to the first anniversary of the Issue Date), the ratio of the
Company's Consolidated EBITDA to Consolidated Interest Expense for such
four-quarter period is greater than 2.00 to 1.00 and (ii) the sum of the
Company's cash on hand at the last day of such period PLUS the lesser of the
borrowing base or the commitments under the Revolving Credit Agreement exceeds
$25,000,000, then the Company shall be required to use 50% of such excess amount
to redeem the Notes, in whole or in part, on the next Interest Payment Date, at
a redemption price equal to 100% of the principal amount thereof PLUS accrued
and unpaid interest, if any, to the date of redemption (a "Mandatory
Redemption"); PROVIDED, HOWEVER, that the Company shall not be required to make
a Mandatory Redemption if such redemption is not otherwise permitted under the
Revolving Credit Agreement or the Senior Secured Note Purchase Agreement.
The Notes do not have the benefit of any sinking fund obligations.
Under the Indenture, the Company is obligated to make Offers to
Purchase Notes as described below:
(i) If a Change of Control occurs, the Company will be required
to make an Offer to Purchase all of the outstanding Notes at a
purchase price in cash equal to 100% of the principal amount thereof,
plus accrued and unpaid interest, if any, on such principal amount, to
the date of purchase; and
(ii) If the Company or any Restricted Subsidiary consummates an
Asset Disposition, under certain circumstances, the Company will be
required to make an Offer to Purchase up to all or a specified portion
of the Notes at a purchase price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, if any, on
such principal amount to the date of purchase, in an aggregate
principal amount equal to any Net Available Proceeds from such an
Asset Disposition which are not used to make a permanent repayment or
reduction of (i) Debt then outstanding under any Bank Credit Agreement
or Vendor Financing Facility, to the extent such agreement or facility
would require such application or prohibit an Offer to Purchase Notes
or (ii) Debt then outstanding of the Company or a Restricted
Subsidiary that ranks PARI PASSU with the Notes at a price no greater
than 100% of the principal amount thereof plus accrued and unpaid
interest to the date of purchase.
In the event of redemption, or purchase pursuant to an Offer to
Purchase, of this Note in part only, a new Note or Notes for the unredeemed or
unpurchased portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire Debt of this Note and for defeasance of certain covenants (including
covenants relating to the making of Offers to Purchase the Notes) and Events of
Default with respect to this Note, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, the Notes may be
declared due and payable, in the manner and with the effect provided in the
Indenture. Upon payment of (i) the principal of the Notes so declared due and
payable, any overdue premium and any overdue installment of interest in respect
of this Note and (ii) as provided on the face hereof, any interest on any
overdue principal, premium or interest in respect of this Note (to the extent
that the payment of such interest shall be legally enforceable), all of the
Company's obligations in respect of the payment of the principal of and any
premium and interest on this Note shall terminate.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the outstanding Notes. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the outstanding Notes, on behalf of the Holders of all the
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
In addition, without the consent of any Holder, the Indenture and the Notes may
be amended and supplemented to cure any ambiguity or inconsistency, make other
changes which will not adversely affect in any material aspect the rights of the
Holders or certain other matters set forth in the Indenture. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver, or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the outstanding
Notes shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity and the Trustee shall not have received from the Holders of a majority
in principal amount of the outstanding Notes a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to certain suits described in the Indenture, including any suit
instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective
due dates expressed herein (or, in the case of redemption, on or after the
Redemption Date or, in the case of any purchase of this Note required to be made
pursuant to an Offer to Purchase, on or after the Purchase Date).
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company in the Borough of Manhattan, The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
A director, officer, employee, stockholder or incorporator of the
Company shall not have any liability for any obligations of the Company under
this Note or the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Holder by accepting this Note waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of this Note.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Note shall be computed on the basis of a 360-day year
of twelve 30-day months.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York, including Section 5-1401 of
the New York General Obligations Law, but otherwise without regard to conflict
of laws rules.
[FORM OF GUARANTEE]
THIS GUARANTEE IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED
AS OF MARCH __, 2000 BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT,
WILMINGTON TRUST COMPANY, AS AGENT, AND UNITED STATES TRUST COMPANY OF NEW YORK,
AS JUNIOR SUBORDINATED TRUSTEE, WHICH MATERIALLY AFFECTS CERTAIN PAYMENT RIGHTS,
SUBORDINATES CERTAIN SECURITY INTERESTS AND LIMITS RIGHTS TO ENFORCEMENT. ALL
PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD INDEBTEDNESS GUARANTEED
HEREUNDER ARE BOUND BY THE TERMS OF THE INTERCREDITOR AND SUBORDINATION
AGREEMENT WHICH WILL BE MADE AVAILABLE UPON REQUEST.
Each Subsidiary Guarantor hereby unconditionally and irrevocably
guarantees jointly and severally, on a subordinated basis to the extent and in
the manner provided in the Intercreditor Agreement, to each Holder and to the
Trustee and its successors and assigns (a) the full and punctual payment of
principal of and interest on the Notes when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under this Indenture and the securities and (b) the full and
punctual performance within applicable grace periods of all other obligations of
the Company under the Indenture and the Notes (all the foregoing being
hereinafter collectively called the "OBLIGATIONS"). Each Subsidiary Guarantor
further agrees that the Obligations may be extended or renewed, in whole or in
part, without notice or further assent from such Subsidiary Guarantor and that
such Subsidiary Guarantor will remain bound under Article 11 of the Indenture
notwithstanding any extension or renewal of any Obligation.
Each Subsidiary Guarantor further agrees that its Guarantee
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Obligations.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Notes upon which this Guarantee is
notes shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
The terms of the Guarantees evidences hereby are qualified in their
entirety and remain subject to the terms of Article 11 of the Indenture, as such
Article may be amended, modified or changes from the date hereof, including but
not limited to the addition of additional Subsidiary Guarantors and the release
of existing Subsidiary Guarantors form their obligations under the Indenture.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York, including Section 5-1401 of the New York
General Obligations Law, but otherwise without regard to conflicts of laws
rules.
[THE SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this
instrument to be duly executed.
PLANET HOLLYWOOD MEMORABILIA, INC.
By____________________________________
Name:
Title:
ALL STAR CAFE INTERNATIONAL, INC
By____________________________________
Name:
Title:
ALL STAR CAFE (NEW YORK), INC.
By____________________________________
Name:
Title:
COOL PLANET, INC.
By____________________________________
Name:
Title:
COOL PLANET II, INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (HONOLULU), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (LP), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (NEW YORK CITY), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (NEW YORK), LTD.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (ORLANDO), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION II), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION III), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION IV), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION V), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION VI), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION VII), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (TEXAS), LTD.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (WAREHOUSE), INC.
By____________________________________
Name:
Title:
308 AVIATION, INC.
By____________________________________
Name:
Title:
308-III AVIATION, INC.
By____________________________________
Name:
Title:
ALL STAR CAFE (LP), INC.
By____________________________________
Name:
Title:
ALL STAR CAFE (REGION V), INC.
By____________________________________
Name:
Title:
ALL STAR CAFE (REGION VII), INC.
By____________________________________
Name:
Title:
COAST LICENSING, INC.
By____________________________________
Name:
Title:
COOL PLANET I, INC.
By____________________________________
Name:
Title:
EBCO MANAGEMENT, INC.
By____________________________________
Name:
Title:
KARMALANNE, INC.
By____________________________________
Name:
Title:
MEANT 2 BE, INC.
By____________________________________
Name:
Title:
OFFICIAL ALL STAR CAFE, INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (ASPEN), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (CHEFS), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (CHICAGO), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (COSTA MESA), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (FRANCE), L.C.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (GAMING), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (ISRAEL), L.C.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (LONDON), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (MAIL ORDER), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (ORLANDO DISTRIBUTION), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (PARIS), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (PHOENIX), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (REGION I), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (TEL AVIV), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (THEATRES), INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD TRANSPORTATION, INC.
By____________________________________
Name:
Title:
PLANET HOLLYWOOD (TROCADERO), INC.
By____________________________________
Name:
Title:
PLANET HOSPITALITY HOLDINGS, INC.
By____________________________________
Name:
Title:
PLANET MOVIES COMPANY, L.P.
By____________________________________
Name:
Title:
PMBA UNIT (PH), L.P.
By____________________________________
Name:
Title:
PMC MANAGEMENT, INC.
By____________________________________
Name:
Title:
ROCKY PIT, INC.
By____________________________________
Name:
Title:
SILVER BRACELETS, INC.
By____________________________________
Name:
Title:
SOUND REPUBLIC I, INC.
By____________________________________
Name:
Title:
SOUND REPUBLIC, INC.
By____________________________________
Name:
Title:
TEN ALPS, INC.
By____________________________________
Name:
Title:
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to:
-----------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
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agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: __________________ Your Signature: _______________________________
(sign exactly as name appears on
the other side of this Note)
Signature Guarantee: ___________________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"),
the Stock Exchange Medallion Program ("SEMP"), the New York Stock
Exchange, Inc. Medallion Signature Program ("MSP") or such other
signature guarantee program as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP, SEMP or MSP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its entirety by
the Company pursuant to Section 4.7 or 4.10 of the Indenture, check here:
---------
If you want to elect to have only a part of the principal amount of
this Note purchased by the Company pursuant to Section 4.7 or 4.10 of the
Indenture, state the portion of such amount: $________.
Dated: __________________ Your Signature: _______________________________
(sign exactly as name appears on
the other side of this Note)
Signature Guarantee: ___________________________________
(Signature must be guaranteed by a financial institution that is a
member of the Securities Transfer Agent Medallion Program ("STAMP"),
the Stock Exchange Medallion Program ("SEMP"), the New York Stock
Exchange, Inc. Medallion Signature Program ("MSP") or such other
signature guarantee program as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP, SEMP or MSP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
