Exhibit T3C
EXECUTION COPY
================================================================================
PLANET HOLLYWOOD INTERNATIONAL, INC.,
as Issuer,
THE SUBSIDIARY GUARANTORS
NAMED HEREIN,
as Subsidiary Guarantors,
and
SOUTHTRUST BANK
as Trustee
9% Secured Deferrable Interest Notes Due March 31, 2010
----------
INDENTURE
Dated as of March 31, 2003
----------
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE 1. Definitions and Incorporation by Reference
SECTION 1.1. Definitions...................................................1
SECTION 1.2. Other Definitions............................................16
SECTION 1.3. Incorporation by Reference of Trust Indenture Act............17
SECTION 1.4. Rules of Construction........................................18
ARTICLE 2. The Notes
SECTION 2.1. Form and Dating..............................................18
SECTION 2.2. Execution and Authentication.................................18
SECTION 2.3. Registrar and Paying Agent...................................19
SECTION 2.4. Paying Agent To Hold Money in Trust..........................20
SECTION 2.5. Lists of Holders.............................................20
SECTION 2.6. Transfer and Exchange........................................20
SECTION 2.7. Replacement Notes............................................21
SECTION 2.8. Outstanding Notes............................................21
SECTION 2.9. Temporary Notes..............................................22
SECTION 2.10. Cancellation.................................................22
SECTION 2.11. Defaulted Interest...........................................22
SECTION 2.12. CUSIP Numbers................................................22
ARTICLE 3. Redemption
SECTION 3.1. Notices to the Trustee.......................................23
SECTION 3.2. Selection of Notes To Be Redeemed............................23
SECTION 3.3. Notice of Redemption.........................................23
SECTION 3.4. Effect of Notice of Redemption...............................24
SECTION 3.5. Deposit of Redemption Price..................................24
SECTION 3.6. Notes Redeemed in Part.......................................24
SECTION 3.7. Optional Redemption..........................................24
ARTICLE 4. Covenants
SECTION 4.1. Payment of Notes.............................................24
SECTION 4.2. Future Guarantors............................................26
SECTION 4.3. Limitation on Restricted Payments............................26
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(i)
SECTION 4.4. Dividend and other Payment Restrictions Affecting
Subsidiaries..............................................26
SECTION 4.5. Asset Dispositions...........................................27
SECTION 4.6. Transactions with Affiliates.................................29
SECTION 4.7. Limitation on Issuances and Sales of Capital, Stock of
Restricted Subsidiaries...................................29
SECTION 4.8. Change of Control............................................30
SECTION 4.9. Limitation on Liens..........................................31
SECTION 4.10. Business Activities..........................................32
SECTION 4.11. Maintenance of Insurance.....................................32
SECTION 4.12. Compliance Certificates; Statement by Officers as to
Default...................................................33
SECTION 4.13. Foreign Subsidiaries.........................................33
SECTION 4.14. Further Instruments and Acts.................................33
SECTION 4.15. Calculation of Original Issue Discount.......................33
ARTICLE 5. Successor Company
SECTION 5.1. When Company May Merge or Transfer Assets....................33
ARTICLE 6. Defaults and Remedies
SECTION 6.1. Events of Default............................................34
SECTION 6.2. Acceleration.................................................36
SECTION 6.3. Other Remedies...............................................36
SECTION 6.4. Waiver of Past Defaults......................................37
SECTION 6.5. Control by Majority..........................................37
SECTION 6.6. Limitation on Suits..........................................37
SECTION 6.7. Rights of Holders To Receive Payment.........................37
SECTION 6.8. Collection Suit by Trustee...................................37
SECTION 6.9. Trustee May File Proofs of Claim.............................38
SECTION 6.10. Priorities...................................................38
SECTION 6.11. Undertaking for Costs........................................38
SECTION 6.12. Waiver of Stay or Extension Laws.............................38
SECTION 6.13. Actions of a Holder..........................................39
ARTICLE 7. Trustee
SECTION 7.1. Duties of Trustee............................................39
SECTION 7.2. Rights of Trustee............................................40
SECTION 7.3. Individual Rights of Trustee.................................41
SECTION 7.4. Trustee's Disclaimer.........................................41
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(ii)
SECTION 7.5. Notice of Defaults...........................................41
SECTION 7.6. Reports by Trustee to Holders................................42
SECTION 7.7. Compensation and Indemnity...................................42
SECTION 7.8. Replacement of Trustee.......................................42
SECTION 7.9. Successor Trustee by Merger..................................43
SECTION 7.10. Eligibility; Disqualification................................43
SECTION 7.11. Preferential Collection of Claims Against Company............43
ARTICLE 8. Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Notes; Defeasance..................44
SECTION 8.2. Conditions to Defeasance.....................................44
SECTION 8.3. Application of Trust Money...................................45
SECTION 8.4. Repayment to Company.........................................45
SECTION 8.5. Indemnity for Government Obligations.........................46
SECTION 8.6. Reinstatement................................................46
ARTICLE 9. Amendments
SECTION 9.1. Without Consent of Holders...................................46
SECTION 9.2. With Consent of Holders......................................47
SECTION 9.3. Compliance with Trust Indenture Act..........................47
SECTION 9.4. Revocation and Effect of Consents and Waivers................47
SECTION 9.5. Notation on or Exchange of Notes.............................48
SECTION 9.6. Trustee To Sign Such Amendments..............................48
SECTION 9.7. Payment for Consent..........................................48
ARTICLE 10. Security
SECTION 10.1. Security Documents...........................................49
SECTION 10.2. Opinions of Counsel..........................................49
SECTION 10.3. Release and Substitution of Collateral.......................50
SECTION 10.4. Certificates of the Company..................................50
SECTION 10.5. Authorization of Actions to be Taken by the Trustee Under
the Security Documents....................................50
SECTION 10.6. Authorization of Receipt of Funds by the Trustee Under
the Security Documents....................................51
SECTION 10.7. Release upon Termination of the Obligations..................51
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(iii)
SECTION 10.8. Aladdin Transaction; Subordination of BNY Collateral and
Grant of Additional Collateral............................51
SECTION 10.9. Subordination to Replacement Debt ...........................49
ARTICLE 11. Subsidiary Guarantees
SECTION 11.1. Guarantees...................................................52
SECTION 11.2. Limitation on Liability......................................54
SECTION 11.3. Successors and Assigns.......................................54
SECTION 11.4. No Waiver....................................................54
SECTION 11.5. Modification.................................................54
SECTION 11.6. Release of Subsidiary Guarantor..............................54
ARTICLE 12. Miscellaneous
SECTION 12.1. Trust Indenture Act Controls.................................55
SECTION 12.2. Notices......................................................55
SECTION 12.3. Communication by Holders with Other Holders..................55
SECTION 12.4. Certificate and opinion as to Conditions Precedent...........55
SECTION 12.5. Statements Required in Certificate or Opinion................56
SECTION 12.6. When Notes Disregarded.......................................56
SECTION 12.7. Rules by Trustee, Paying Agent and Registrar.................56
SECTION 12.8. Legal Holidays...............................................56
SECTION 12.9. Governing Law; Consent to Jurisdiction; Waiver of
Immunities................................................56
SECTION 12.10. No Recourse Against Others...................................57
SECTION 12.11. Successors...................................................57
SECTION 12.12. Multiple Originals...........................................57
SECTION 12.13. Table of Contents; Headings..................................57
Exhibit A Form of Note
Exhibit B Form of Security Agreement
Exhibit C Form of Intercreditor Agreement
Exhibit D Form of Pledge Agreement
Exhibit E Form of BNY Intercreditor Agreement
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
(iv)
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310 (a)(1)........................................................ 7.9;7.10
(a)(2)........................................................ 7.10
(a)(3)........................................................ N.A.
(a)(4)........................................................ 2.2
(a)(5)........................................................ 7.10
(b)........................................................... 7.8;7.10
(c)........................................................... N.A.
311 (a)........................................................... 7.11
(b)........................................................... 7.11
(c)........................................................... N.A.
312 (a)........................................................... 2.5
(b)........................................................... 12.3
(c)........................................................... 12.3
313 (a)........................................................... 7.6
(b)(1)........................................................ 7.6
(b)(2)........................................................ 7.6
(c)........................................................... 7.6
(d)........................................................... 7.6
314 (a)........................................................... 4.12;4.16
(b)........................................................... 10.2
(c)(1)........................................................ 12.4
(c)(2)........................................................ 12.4
(c)(3)........................................................ N.A.
(d)........................................................... 10.4
(e)........................................................... 12.5
(f) .......................................................... N.A.
315 (a)........................................................... 7.1;7.2
(b)........................................................... 7.5;12.2
(c)........................................................... 7.1;7.2
(d)........................................................... 7.1;7.2
(e)........................................................... 6.11
316 (a)(last sentence)............................................ 12.6
(a)(1)(A)..................................................... 6.5
(a)(1)(B)..................................................... 6.4
(a)(2)........................................................ N.A.
(b)........................................................... 6.7
(c)........................................................... 2.11;9.4
317 (a)(1)........................................................ 6.8
(a)(2)........................................................ 6.9
(b)........................................................... 2.4
318 (a)........................................................... 12.1
N.A. means Not Applicable.
----------
Note: This Cross-Reference Table shall not, for any purpose be deemed to be part
of this Indenture.
THIS INDENTURE IS SUBJECT TO THE INTERCREDITOR AGREEMENTS (AS DEFINED BELOW)
WHICH MATERIALLY AFFECT CERTAIN PAYMENT RIGHTS, SUBORDINATE CERTAIN OBLIGATIONS
AND CERTAIN SECURITY INTERESTS AND LIENS, AND LIMIT CERTAIN RIGHTS OF THE AGENT
TO ENFORCE THIS INDENTURE. ALL PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD
INDEBTEDNESS HEREUNDER OR WHICH IS SECURED HEREBY ARE BOUND BY THE TERMS OF THE
INTERCREDITOR AGREEMENTS, WHICH WILL BE MADE AVAILABLE BY THE COMPANY (AS
DEFINED BELOW) UPON REQUEST TO ANY PARTY HERETO.
THIS INDENTURE dated as of March 31, 2003, among PLANET HOLLYWOOD
INTERNATIONAL, INC., a Delaware corporation ("Planet Hollywood" and the
"Company"), the parties whose names and signatures appear on the signature pages
hereto under the heading "Subsidiary Guarantors" (collectively, the "Subsidiary
Guarantors") and SOUTHTRUST BANK, an Alabama banking corporation (the
"Trustee").
RECITALS
The Company acknowledges that the Company has duly authorized the creation
of an issue of its 9% Secured Deferrable Interest Notes Due March 31, 2010 of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
The Company further acknowledges that all things necessary to make the
Notes, when executed by the Company and authenticated and delivered hereunder
and duly issued by the Company, the valid obligations of the Company, and to
make this Indenture a valid agreement of the Company, in accordance with their
and its terms, have been done.
The Subsidiary Guarantors acknowledge that all things necessary to make the
Guarantee by the Subsidiary Guarantors of the Company's Obligations with respect
to the Notes contained in Article 11 hereof this Indenture a valid agreement of
the Subsidiary Guarantors, in accordance with their and its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
Each party hereto agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders.
ARTICLE 1.
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"Acquired Debt" means, with respect to any specified Person, (i) Debt of
any other Person existing at the time such Person merges with or into or
consolidates with or becomes a Restricted Subsidiary of such specified Person
and (ii) Debt secured by a Lien encumbering any asset acquired by such specified
Person, which Debt or Lien was not Incurred in anticipation of, and was
outstanding prior to, such merger, consolidation or acquisition.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, "control" when used
with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; provided, however, that beneficial
ownership of 10% or more of the voting securities of a Person shall be deemed to
be control. The terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Aggregate Asset Disposition Proceeds" means from and after the Issue Date
the aggregate Net Available Proceeds from all Asset Dispositions.
"Aladdin" means Aladdin Gaming, LLC, debtor and debtor-in-possession under
Title 11 of the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. (S) 101 et
seq., in proceedings before the United States Bankruptcy Court for the District
of Nevada, Southern Division.
"Aladdin Complex" means that certain complex owned by Aladdin consisting of
a 2,567 room hotel, a casino, conference and banquette facilities, food and
beverage operations and retail space, and a 6,700 seat theater, all located at
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx.
"Aladdin Licensing Agreements" mean that certain: (i) Planet Hollywood
Hotel and Casino Licensing Agreement, between the Company, PHIV, PHMemo, and
OpBiz, whereby the Company, PHIV and PHMemo agree to license certain trademarks,
design marks, trade name, trade dress, service marks, and Memorabilia to OpBiz,
for use by OpBiz in the identification, promotion, management and operation of
the Complex and the performance of services therein and the sale of products
thereat; and (ii) Restaurant License Agreement, between the Company, PHIV, and
OpBiz, whereby OpBiz may use certain "Planet Hollywood" trademarks, design
marks, trade name, trade dress and service marks and related domain names to
develop, construct and operate, identify and advertise a Planet Hollywood
branded restaurant and merchandise store(s) within the Aladdin Complex.
"Aladdin Licensing Fees" means all fees, costs, reimbursements and other
payments required to be paid to the Company, PHIV or PHMemo under the Aladdin
Licensing Agreements, including the Continuing Fee and the Retail Royalties (as
such terms are defined therein), and any other amounts which are due and owing
pursuant to the Aladdin Licensing Agreement.
"Aladdin Licensing Fees Security Agreement" means that certain Licensing
Fees Security Agreement which may, pursuant to the terms of Section 10.8 below,
be entered into between the Company, PHMemo and PHIV, on the one hand, and the
Trustee and the Collateral Agent, for the benefit of the Holders, on the other,
whereby the Company, PHMemo and PHIV will, in the event of its execution and
subject to the terms of the Licensor Subordination Agreement, all as more
particularly described in Section 10.8 below, pledge the Aladdin Licensing Fees
as additional Collateral.
"Aladdin Purchase and Sale Agreement" means that certain Purchase and Sale
Agreement, dated as of April 23, 2003, between Aladdin, as seller, and OpBiz, as
purchaser.
"Aladdin Transactions" means the transactions contemplated by the Aladdin
Purchase and Sale Agreement, pursuant to which OpBiz will purchase from Aladdin
the Aladdin Complex.
"Asset Disposition" means any transfer, conveyance, sale, lease or other
disposition (collectively, any "disposition") by the Company or any Restricted
Subsidiary (including any disposition by means of a consolidation, merger or
similar transaction or as a result of any Condemnation) other than (a)
2
dispositions in the ordinary course of business (including dispositions of
Memorabilia in the ordinary course of business and dispositions of obsolete or
worn-out property), (b) dispositions of the Honolulu, Hawaii location owned by
Planet Hollywood (Honolulu), Inc., and the Mall of America location owned by
Planet Hollywood (Region IV), Inc.; (c) a disposition by a Restricted Subsidiary
to the Company or a Restricted Subsidiary or by the Company to a Restricted
Subsidiary of (i) shares of Capital Stock or other ownership interests of a
Restricted Subsidiary, (ii) all or substantially all of the assets of the
Company or any Restricted Subsidiary representing a division or line of business
or (iii) other assets or rights of such Person or any of its Restricted
Subsidiaries, (d) a Restricted Payment which is permitted pursuant to Section
4.3, or (e) a disposition that is subject to the provisions set forth in Section
5.1(a).
"Attributable Debt" in respect of a Sale and Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the Notes, compounded annually) of the total obligations of the
lessee for rental payments during the remaining term of the lease included in
such Sale and Leaseback Transaction (including any period for which such lease
has been extended).
"Average Life" means, as of the date of determination with respect to any
Debt or Preferred Stock, the quotient obtained by dividing (i) the sum of the
products of the numbers of years from the date of determination to the dates of
each successive scheduled principal payment of such Debt or redemption or
similar payment with respect to such Preferred Stock multiplied by the amount of
such payment by (ii) the sum of all such payments.
"Bank Credit Agreement" means any one or more credit agreements (which may
include or consist of revolving credits) between the Company or any Restricted
Subsidiary and one or more banks or other financial institutions providing
financing for the business of the Company and its Restricted Subsidiaries,
including without limitation the CIT/WLR Credit Agreement, the DIP Loan
Documents, and the Replacement Credit Facility.
"Bankruptcy Court" means the United States Bankruptcy Court for the Middle
District of Florida, Orlando Division, presiding over the Chapter 11 cases of
the Company and certain of its Subsidiaries and Affiliates.
"BH Credit Agent" means the Agent from time to time under the BH Note
Purchase Agreement, which as of the date hereof is Bay Harbour Management, L.C.
"BH Debt" means the Debt evidenced by the BH Note Purchase Agreement and
any related promissory notes, security agreements, and other loan documents,
instruments and agreements, including without limitation, that certain Secured
Convertible Term Note, in the original principal amount of $11,040,000, dated
March 31, 2003, made by the Company to the order of Bay Harbour Management, L.C.
or its assigns, as purchaser, with a stated maturity date of March 31, 2006.
"BH Note Purchase Agreement" means that certain Amended and Restated Note
Purchase Agreement, dated as of March 31, 2003, by and among the Company and Bay
Harbour Management, L.C., as Purchaser and as Agent.
"BNY" means BNY Asset Solutions, LLC, a Delaware limited liability company.
"BNY Agent" means the administrative and collateral agent under the BNY
Credit Agreement, which currently is BNY.
3
"BNY Collateral" means that property defined as the "Collateral" in that
certain Security Agreement between the Company, PHIV and PHMemo, on the one
hand, and BNY, on the other, which collateral includes, generally speaking, the
"Planet Hollywood" trademarks, trade name, trade dress, service marks and other
intellectual property licensed for use by OpBiz in connection with its
identification, management and operation of the Aladdin Complex, and the
Memorabilia to be utilized and/or displayed at or within the Aladdin Complex.
"BNY Credit Agreement" means that certain Amended and Restated Loan and
Facilities Agreement between OpBiz, BNY and certain guarantors, providing for
the availability of credit in the amount of $510,000,000 to OpBiz, in connection
with OpBiz's acquisition of the Aladdin Complex.
"BNY Debt" means the Debt evidenced by the BNY Credit Agreement and any
related promissory notes, security agreements, and other loan documents,
instruments and agreements.
"BNY Intercreditor Agreement" means that certain Intercreditor and
Subordination Agreement, which may, pursuant to the terms of Section 10.8 below,
be entered into between the Company and BNY, in substantially the form attached
hereto as Exhibit E, which provides, among other things, that this Indenture,
the Notes, the Security Documents and any and all Obligations shall, in the
event of the execution and delivery thereof, be subordinate and junior to (i)
the BNY Credit Agreement, (ii) the BNY Security and Subordination Agreements,
(iii) any and all other loan documents and instruments related thereto, (iv) any
Liens or security interests relative to the BNY Collateral created thereunder,
and (v) the repayment of the BNY Debt.
"BNY Security and Subordination Agreements" mean: (i) the Licensor
Subordination and Cooperation Agreement, whereby the Company, PHIV and PHMemo
agree to subordinate the payment of any fees, costs or other payments otherwise
payable to them under the Aladdin Licensing Agreements to the payment of all
amounts due and payable to BNY and the lenders under the BNY Credit Agreement,
(ii) that certain Security Agreement between the Company, PHIV, PHMemo and BNY,
whereby the Company, PHIV and PHMemo, as a condition to the extension of credit
to OpBiz under the BNY Credit Agreement, have agreed to pledge and assign to BNY
a first priority lien upon and security interest in all of the pledging parties'
rights, title and interest in and to the BNY Collateral, and (iii) those certain
Subordination and Intercreditor Agreements between BNY and each of Bay Harbour,
DIP Lender, Xxxxx Lender, and the Replacement Lender, whereby each of Bay
Harbour, DIP Lender, Xxxxx Lender, and the Replacement Lender, agrees to
subordinate their security interests in the BNY Collateral to BNY's security
interest therein.
"Business Day" means each day which is not a Legal Holiday.
"CIT/WLR Credit Agent" means the Agent from time to time under the CIT/WLR
Credit Agreement, which as of the date hereof is The CIT Group/Business Credit,
Inc.
"CIT/WLR Credit Agreement" means that certain Amended and Restated Credit
Agreement dated as of March 31, 2003, among the Company, PH Memo, PHIV, and
certain other subsidiaries of the Company, as Borrowers, and The CIT
Group/Business Credit, Inc. and WLR Recovery Fund L.P., as Lenders, and The CIT
Group/Business Credit, Inc., as Agent, as the same may be amended, supplemented
or otherwise modified from time to time.
"CIT/WLR Debt" means the Debt evidenced by the CIT/WLR Credit Agreement and
any related promissory notes, security agreements, and other loan documents,
instruments and agreements.
4
"Capital Lease Obligation" of any Person means an obligation that is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with GAAP (a "Capital
Lease"). The amount of such Debt represented by such obligation shall be the
capitalized amount thereof that would appear on the face of a balance sheet of
such Person in accordance with GAAP.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person and shall (i) include any preferred equivalent
obligations and (ii) exclude debt securities convertible into Capital Stock.
"Change of Control" means:
(i) the sale, lease or transfer, in one transaction or a series of
related transactions, of all or substantially all the assets of the Company
and the Restricted Subsidiaries taken as a whole, except as permitted by
the proviso to Section 5.1; or
(ii) the adoption of a plan relating to the liquidation or dissolution
of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means any assets of the Company or any of its Subsidiaries
defined as "Collateral" in any of the Security Documents and assets from time to
time in which a Lien exists as security for any of the Obligations under this
Indenture.
"Collateral Agent" means the Senior Creditor acting in its capacity as
agent with respect to the Collateral under the Security Documents, to the extent
appointed to and serving in such capacity pursuant to the Intercreditor
Agreement.
"Commission" means the United States Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the governmental
body or agency performing such duties at such time.
"Condemnation" means any actual or threatened condemnation, taking or
exercise of the power of eminent domain or similar action or proceeding.
"Core Asset" means any of the following assets: Planet Hollywood copyrights
and globe design and stylized lettering trademarks, classes 42 and 25; the
Company's investment in the Planet Hollywood restaurant facilities located in
Orlando, Florida, New York (Times Square), New York, and Euro Disney, France;
and Memorabilia reasonably necessary to operate the foregoing Core Assets and
any other then presently operating Planet Hollywood restaurant facilities
(whether owned or franchised), other than any Memorabilia licensed for use at or
in connection with the Aladdin Complex pursuant to the Aladdin Licensing
Agreements.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent,
(i) every obligation of such Person for money borrowed,
5
(ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including any such obligations Incurred
in connection with the acquisition of property, assets or businesses,
(iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers acceptances or similar facilities issued for the
account of such Person,
(iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase
agreements but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business which are not overdue or which
are being contested in good faith),
(v) every Capital Lease Obligation of such Person,
(vi) all Receivables Sales of such Person, together with any
obligation of such Person to pay any discount, interest, fees, indemnities,
penalties, recourse expenses or other amounts in connection therewith,
(vii) all obligations to redeem Disqualified Stock issued by such
Person,
(viii) all Attributable Debt,
(ix) net obligations under Interest Rate and Currency Protection
Agreements of such Person,
(x) every obligation of the type referred to in clauses (i) through
(ix) of another Person secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the fair market
value of such property or assets and the amount of the obligation so
secured and
(xi) every obligation of the type referred to in clauses (i) through
(ix) of another Person and all dividends of another Person the payment of
which, in either case, such Person has Guaranteed.
The "amount" or "principal amount" of any Debt at any time of
determination as used herein represented by (a) any Debt issued at a price that
is less than the principal amount at maturity thereof, shall be the amount of
the liability in respect thereof determined in accordance with GAAP, (b) any
Receivables Sales shall be the amount of the unrecovered capital or principal
investment of the purchaser (other than the Company or a Wholly-Owned Restricted
Subsidiary) thereof, excluding amounts representative of yield or interest
earned on such investment, (c) any Disqualified Stock, shall be the maximum
fixed redemption or repurchase price in respect thereof, (d) any Capital Lease
Obligation, shall be determined in accordance with the definition thereof and
(e) any Permitted Interest Rate or Currency Protection Agreement shall be zero.
In no event shall Debt include any liability for taxes. For purposes of
determining any particular amount of Debt, Guarantees or Liens with respect to
letters of credit supporting Debt otherwise included in the determination of a
particular amount shall not be included.
"Default" means an event that is, or after the passing of time or the
giving of notice or both would be, an Event of Default.
6
"Defeasance Obligations" means Government Securities (or certificates
representing an ownership interest in such Government Obligations) which are not
callable or redeemable at the issuer's option.
"DIP Debt" means the Debt evidenced by the DIP Loan Documents.
"DIP Lender" means Lauren, but only in its capacity as the lender under the
DIP Loan Documents.
"DIP Loan Documents" means that certain Term Sheet, dated as of March 31,
2003, by and between the Company and Lauren, as approved and modified by that
certain Amended Order issued by the Bankruptcy Court on March 6, 2002, pursuant
to which the Bankruptcy Court authorized the Company to obtain credit and incur
debt from Lauren, up to the principal amount of $2,500,000 in accordance with
the modified Term Sheet, together with any and all related loan and security
documents, instruments and agreements.
"Disqualified Stock" of any Person means any Capital Stock of such Person
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
first anniversary of the final Stated Maturity of the Notes; provided, however,
that any Preferred Stock which would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require the Company to
repurchase or redeem such Preferred Stock upon the occurrence of a change of
control occurring prior to the first anniversary of the final Stated Maturity of
the Notes shall not constitute Disqualified Stock if the change of control
provisions applicable to such Preferred Stock are no more favorable to the
holders of such Preferred Stock than the provisions applicable to the Notes
contained in Section 4.8 and such Preferred Stock specifically provides that the
Company will not repurchase or redeem any such stock pursuant to such provisions
prior to the Company's repurchase of such Notes as are required to be
repurchased pursuant to Section 4.8.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated "A-311 or higher or "A--" or higher
according to Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Group
(or such similar equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under the Securities
Act)) respectively, at the time as of which any investment or rollover therein
is made.
"Event of Default" has the meaning set forth in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended (or
any successor act) and the rules and regulations thereunder.
"Fiscal Year" means the fiscal year utilized by the Company to maintain its
books and records, which is the 52-53 week period ending on the last Sunday of
each December, or such other period as to which the Company shall hereafter give
the Trustee notice thereof.
"Foreign Subsidiary" means any Subsidiary of the Company that is organized
in a jurisdiction outside of the United States of America.
7
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the relevant date, including those set forth in
(i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, and (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which obligations
or guarantee the full faith and credit of the United States is pledged.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person guaranteeing, or having the economic effect of guaranteeing, any
Debt of any other Person, (the "primary obligor") in any manner, whether
directly or indirectly, and including, without limitation, any obligation of
such Person, (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Debt or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Debt, (ii) to purchase
property, securities or services for the purposes of assuring the holder of such
Debt of the payment of such Debt, or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt (and "Guaranteed",
"Guaranteeing" and "Guarantor" shall have meanings correlative to the
foregoing); provided, however, that the Guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"Holders" means the registered holders from time to time of the Notes.
"Xxxxx Credit Agreement" means that certain Secondary Revolving Credit
Agreement, dated as of March 28, 2001, by and between SouthTrust Bank and the
Company, as amended by that certain Letter Agreement dated February 16, 2003,
and as assigned, transferred and endorsed by SouthTrust Bank to Lauren effective
July 10, 2003.
"Xxxxx Debt" means the Debt evidenced by the Xxxxx Credit Agreement and any
related promissory notes, security agreements, and other loan documents,
instruments and agreements.
"Xxxxx Lender" means Lauren, but only in its capacity as Lender under the
Xxxxx Credit Agreement.
"Incur" means, with respect to any Debt or other obligation of any Person,
to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
including by acquisition of Subsidiaries or the recording, as required pursuant
to GAAP or otherwise, of any such Debt or other obligation on the balance sheet
of such Person (and "Incurrence", "Incurred" and "Incurring" shall have the
meanings correlative to the foregoing); provided, however, that a change in GAAP
that results in an obligation of such Person that exists at such time becoming
Debt shall not be deemed an Incurrence of such Debt and that neither the accrual
of interest nor the accretion of original issue discount shall be deemed an
Incurrence of Debt. Notwithstanding the foregoing, the Company may elect to
treat all or any portion of revolving credit debt of the Company or a Subsidiary
as being Incurred from and after any date beginning the date the revolving
credit commitment is extended to the Company or a Subsidiary, by furnishing
notice thereof to the Trustee, and any borrowings or reborrowings by the Company
or a Subsidiary under such commitment up to the amount of such commitment
designated by the Company as Incurred shall not be deemed to be new Incurrence
of Debt by the Company or such Subsidiary; provided, however, that the undrawn
portion of any such
8
revolving credit debt shall be deemed to be outstanding Debt until such time as
the commitment thereunder is terminated. Neither the accrual of interest nor the
accretion of principal of a non-interest bearing or other discount or deferrable
security shall be deemed the Incurrence of Debt.
"Indenture" means this Indenture as the same may be amended, supplemented
or otherwise modified from time to time.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
judgment of the Board of Directors of the Company, qualified to perform the task
for which it has been engaged and disinterested and independent with respect to
the Company and its Subsidiaries and Affiliates.
"Intercreditor Agreement" means the Intercreditor and Subordination
Agreement dated as of the May 8, 2000, by and among The CIT Group/Business
Credit, Inc., for itself and as Agent, WLR Recovery Fund, L.P., Bay Harbour
Management, L.C., as Agent, Serena Holdings, Ltd., SouthTrust Bank, Central
Florida, N.A., The Junior Subordinated Trustee thereunder, and the other persons
and entities signatory thereto, as the same has been, from time to time
(including, without limitation, as of the date hereof) and on or after the date
hereof may be further, amended, supplemented or otherwise modified, which
agreement sets forth the relative rights of the parties in respect of the shared
Collateral and security interests granted by the Company and the Subsidiary
Guarantors to such parties, and which agreement shall be substantially in the
form of Exhibit C attached hereto.
"Intercreditor Agreements" means the Intercreditor Agreement and, to the
extent and in the event in effect, the BNY Intercreditor and Subordination
Agreement.
"Interest Payment Dates" mean each of the quarterly interest payment dates
on January 1, April 1, July 1, and October 1 of each year, commencing January 1,
2004.
"Interest Rate or Currency Protection Agreement" of any Person means any
forward contract, futures contract, swap, option or other financial agreement or
arrangement (including, without limitation, caps, floors, collars and similar
agreements) relating to, or the value of which is dependent upon, interest rates
or currency exchange rates or indices.
"Investment" by any Person means any direct or indirect loan, advance or
other extension of credit or capital contribution (by means of transfers of cash
or other property to others or payments for property or services for the account
or use of others, or otherwise) to, or purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities or evidence of Debt issued by, any
other Person, including any payment on a Guarantee of any obligation of such
other Person, but excluding any loan, advance or extension of credit to an
employee of the Company or any Restricted Subsidiary in the ordinary course of
business, accounts receivables and other commercially reasonable extensions of
trade credit.
"Issue Date" means the date on which the Notes are first issued and
delivered.
"Joint Venture" means any joint venture in which the Company or any
Restricted Subsidiary does not have both a majority ownership interest therein
and the power to direct the policies, management and affairs thereof.
"Lauren" means Lauren Investments Holdings, Limited, as Trustee of the
Xxxxx Trust u/a/d 09/10/1999.
9
"Licensor Subordination Agreement" means that certain Licensor
Subordination and Cooperation Agreement, between the Company, PHIV, PHMemo, and
BNY, to be effective upon the consummation and closing of the Aladdin
Transactions.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing or any
Sale and Leaseback Transaction).
"Memorabilia" means all memorabilia, collectibles, souvenirs, keepsakes or
any other tangible property owned by the Company or any Subsidiary Guarantor the
market value of which is to any extent derived from the association with (i) a
celebrity, entertainer or athlete or any other person reasonably understood to
be a celebrity, entertainer or athlete or (ii) any motion picture, television
program, series of television programs or sports or entertainment event.
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or Permitted Short-Term Investments received (including by way of sale or
discounting of a note, installment receivable or other receivable, but excluding
any other consideration received in the form of assumption by the acquiror of
Debt or other obligations relating to such properties or assets) therefrom by
such Person, net of (i) all legal, title and recording tax expenses, commissions
and other fees and expenses Incurred and all federal, state, provincial, foreign
and local taxes (including taxes payable upon payment or other distribution of
funds from a foreign subsidiary to the Company or another Subsidiary of the
Company) required to be accrued as a liability as a consequence of such Asset
Disposition, (ii) all payments made by such Person or its Restricted
Subsidiaries on any Debt which is secured by such assets in accordance with the
terms of any Lien upon or with respect to such assets or which must by the terms
of such Lien, or in order to obtain a necessary consent to such Asset
Disposition or by applicable law, be repaid out of the proceeds from such Asset
Disposition, (iii) all distributions and other payments made to minority
interest holders in Restricted Subsidiaries of such Person or Joint Ventures as
a result of such Asset Disposition, (iv) appropriate amounts to be provided by
such Person or any Restricted Subsidiary thereof, as the case may be, as a
reserve in accordance with GAAP against any liabilities associated with such
assets and retained by such Person or any Restricted Subsidiary thereof, as the
case may be, after such Asset Disposition, including, without limitation,
liabilities under any indemnification obligations and severance and other
employee termination costs associated with such Asset Disposition, in each case
as determined by the Board of Directors of the Company, in its reasonable good
faith judgment evidenced by a board resolution filed with the Trustee; provided,
however, that any reduction in such reserve within twelve months following the
consummation of such Asset Disposition will be treated for all purposes of this
Indenture and the Notes as a new Asset Disposition at the time of such reduction
with Net Available Proceeds equal to the amount of such reduction, and (v) any
consideration for an Asset Disposition (which would otherwise constitute Net
Available Proceeds) that is required to be held in escrow pending determination
of whether a purchase price adjustment will be made, but amounts under this
clause (v) shall become Net Available Proceeds at such time and to the extent
such amounts are released to such Person.
"Net Cash Proceeds", with respect to any issuance or sale of Capital Stock,
means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement
10
agents' fees, discounts or commissions and brokerage, consultant and other fees
actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result thereof.
"Non-Recourse Debt" means Debt:
(i) as to which neither the Company nor any Restricted Subsidiary:
(a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Debt);
(b) is directly or indirectly liable (as a guarantor or
otherwise); or
(c) constitutes the lender;
(ii) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against the Company or
any Unrestricted Subsidiary) would permit (upon notice, lapse of time or
both) any holder of any other Debt of the Company or any Restricted
Subsidiary to declare a default on such other Debt or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity; and
(iii) as to which the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries.
"Notes" means the Notes designated in the first paragraph of the RECITALS
of this Indenture.
"Offer to Purchase" means a written offer (the "Offer") sent by the Company
by first class mail, postage prepaid, to each Holder at his address appearing in
the Notes register on the date of the Offer offering to purchase up to the
principal amount of Notes specified in such offer at the purchase price
specified in such offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such offer and a settlement date for purchase of Notes
within five Business Days after the Expiration Date. The Company shall notify
the Trustee at least 15 Business Days (or such shorter period as is acceptable
to the Trustee) prior to the mailing of the Offer of the Company's obligation to
make an Offer to Purchase, and the offer shall be mailed by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company. The Offer shall contain (i) information concerning the business of the
Company and its Subsidiaries which the Company in good faith believes will
enable such holders to make an informed decision with respect to the Offer to
Purchase (including a description of the events requiring the Company to make
the Offer to Purchase), and (ii) any other information required by applicable
law to be included therein. The Offer shall contain all instructions and
materials necessary to enable such holders to tender Notes pursuant to the Offer
to Purchase.
"Officer" means the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Financial Officer, any Vice President, the
Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
11
"OpBiz" means OpBiz, L.L.C., a Nevada limited liability company.
"Opinion of Counsel" means an opinion from legal counsel who is acceptable
to the Trustee. The counsel may be an employee of, or counsel to, the Company or
the Trustee.
"Parent" means, with regard to any Person, any other entity of which such
Person is a Subsidiary.
"Permitted Interest Rate or Currency Protection Agreement" of any Person
means any Interest Rate or Currency Protection Agreement entered into with one
or more financial institutions in the ordinary course of business that is
designed to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby and not for purposes of speculation.
"Permitted Short-Term Investments" means: (i) U.S. dollars, (ii) Government
Securities that mature or are subject to redemption at the option of the holder
not more than one year after the date of acquisition thereof; (iii) any time
deposit account, money market deposit and certificate of deposit maturing not
more than 270 days after the date of acquisition issued by, or demand deposit
in, an Eligible Institution; (iv) commercial paper maturing not more than 270
days after the date of acquisition issued by a corporation (other than an
Affiliate of the Company) with a rating, at the date of acquisition, of "P-1" or
higher according to Xxxxx'x Investors Service, Inc. or "A-1" or higher according
to Standard & Poor's Ratings Group (or such similar equivalent rating by at
least one "nationally recognized statistical rating organization" (as defined in
Rule 436 under the Securities Act)); (iv) any banker's acceptances or money
market deposit accounts issued or offered by an Eligible Institution; (vi)
repurchase obligations with a term of not more than 7 days for Government
Securities entered into with an Eligible Institution; and (vii) any fund
investing primarily in investments of the types described in clauses (i) through
(vi) above.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization, government or agency or political subdivision thereof or any other
entity.
"PHIV" means Planet Hollywood (Region IV), Inc., a Minnesota corporation.
"PHMemo" means Planet Hollywood Memorabilia, Inc., a Florida corporation.
"Plan of Reorganization" means that certain Third Amended Joint Plan of
Reorganization submitted by the Company and certain of its Subsidiaries, dated
as of November 4, 2002, as amended, supplemented or otherwise modified, and as
confirmed by the United States Bankruptcy Court for the Middle District of
Florida, Orlando Division, by order dated January 6, 2003, with an effective
date of March 31, 2003.
"Pledge Agreement" shall mean the Pledge Agreement, dated as of the date
hereof, by the Company, PHMemo and each Subsidiary Guarantor that is a pledgor
hereunder in favor of the Trustee for the benefit of the Holders, as amended,
modified or supplemented from time to time, and which shall be substantially in
the form of Exhibit D attached hereto.
"Preferred Stock" of any Person means Capital Stock of such Person of any
class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
12
"Principal" of a Note means the principal of the Note plus the premium, if
any, payable on the Note which is due or overdue or is to become due at the
relevant time.
"Receivables" means receivables, chattel paper, instruments, documents or
intangibles evidencing or relating to the right to payment of money in respect
of the sale of goods or services.
"Receivables Sale" of any Person means any sale of Receivables of such
Person (pursuant to a purchase facility or otherwise), other than in connection
with a disposition of the business operations of such Person relating thereto or
a disposition of defaulted Receivables for purpose of collection and not as a
financing arrangement.
"Refinance" means in respect of any Debt, to refinance, extend, renew,
refund, repay, prepay, redeem, defease or retire, or to issue other Debt in
exchange or replacement for, such Debt. "Refinanced" and "Refinance" shall have
correlative meanings.
"Refinancing Debt" means Debt that Refinances any Debt of the Company or
any Restricted Subsidiary existing on the Issue Date or Incurred in compliance
with this Indenture, including Debt that Refinances Refinancing Debt; provided,
however, that:
(i) such Refinancing Debt has a Stated Maturity no earlier than the
Stated Maturity of the Debt being Refinanced,
(ii) such Refinancing Debt has an Average Life at the time such
Refinancing Debt is Incurred that is equal to or greater than the Average
Life of the Debt being Refinanced,
(iii) such Refinancing Debt has an aggregate principal amount (or if
Incurred with original issue discount, an aggregate issue price) that is
equal to or less than the aggregate principal amount (or if Incurred with
original issue discount, the aggregate accreted value) then outstanding or
committed (plus fees and expenses, including any premium and defeasance
costs) under the Debt being Refinanced; and
(iv) in the event the Debt being Refinanced constitutes a Subordinated
Obligation, the Refinancing Debt is subordinated to the Notes to at least
the same extent as the Debt being Refinanced;
provided, however, that Refinancing Debt shall not include (x) Debt of a
Subsidiary that Refinances Debt of the Company, (y) Debt of the Company or a
Restricted Subsidiary that Refinances Debt of an Unrestricted Subsidiary, or (z)
the Replacement Debt.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 10% or more of the outstanding common equity of such
Person (or, in the case of a Person that is not a corporation, 10% or more of
the equity interest in such Person) or (b) 10% or more of the combined voting
power of the Voting Stock of such Person.
"Replacement Credit Facility" means any loan agreement, promissory note,
security agreement and related documentation that satisfies, discharges, pays in
full and/or otherwise replaces any or all of the CIT/WLR Debt, the BH Debt, the
DIP Debt and/or the Xxxxx Debt, as more particularly described in Section 10.9
below.
13
"Replacement Debt" means the Debt evidenced by the Replacement Credit
Facility and any related promissory notes, security agreements, and other loan
documents, instruments and agreements.
"Replacement Lender" means the Person or Persons that provide the
Replacement Credit Facility to the Company.
"Restricted Payment" with respect to any Person means:
(i) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of its Capital
Stock (other than dividends or distributions payable solely in its Capital
Stock (other than Disqualified Stock) and dividends or distributions
payable solely to the Company or a Restricted Subsidiary, and other than
pro rata dividends or other distributions made by a Subsidiary that is not
a Wholly-Owned Restricted Subsidiary to minority stockholders (or owners of
an equivalent interest in the case of a Subsidiary that is an entity other
than a corporation)),
(ii) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company held by any Person or of any
Capital Stock of a Restricted Subsidiary held by any Affiliate of the
Company (other than a Restricted Subsidiary), including the exercise of any
option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock),
(iii) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to its scheduled Stated
Maturity, scheduled repayment or scheduled sinking fund payment of any
Subordinated Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of acquisition).
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on or after the Issue Date, unless such Subsidiary is an Unrestricted
Subsidiary.
"Sale and Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it from such Person.
"Securities Act" means the Securities Act of 1933, as amended (or any
successor act) and the rules and regulations thereunder.
"Security Agreement" means the Security Agreement, dated as of the date
hereof, made by the Company and the Subsidiary Guarantors in favor of the
Trustee as secured party thereunder, as the same may be amended, supplemented
or otherwise modified from time to time, and which shall be substantially in
the form of Exhibit B attached hereto.
"Security Documents" shall mean, collectively, the Security Agreement, the
Pledge Agreement, each Assignment for Security (Trademarks and Copyrights),
substantially in the form of Exhibit A to the Security Agreement and all Uniform
Commercial Code financing statements required by the Security Agreement to be
filed with respect to the security interests in personal property and fixtures
created
14
pursuant to such agreements, and all other documents and agreements executed and
delivered by the Company and PHMemo and/or the Subsidiary Guarantors in
connection with any of the foregoing documents. In addition, in the event it is
entered into pursuant to the provisions of Section 10.8 hereof, the Aladdin
Licensing Fees Security Agreement shall also then be considered a "Security
Document."
"Senior Creditors" means the BH Credit Agent, the CIT/WLR Credit Agent, the
DIP Lender, the Xxxxx Lender, the Replacement Lender (but only in the event the
Replacement Credit Facility is effective), and BNY (but only in the event the
BNY Intercreditor and Subordination Agreement is effective).
"Senior Debt" means the following Debt: (i) the CIT/WLR Debt; (ii) the BH
Debt; (iii) the Xxxxx Debt; (iv) the DIP Debt, (v) the Replacement Debt (but
only in the event and commencing at such time as the Replacement Credit Facility
is effective), and (vi) the BNY Debt (but only in the event and commencing at
such time as the BNY Intercreditor and Subordination Agreement is effective).
"Senior Loan Documents" means any and all loan documents evidencing any of
the Senior Debt.
"Significant Subsidiary" means a Restricted Subsidiary that is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the
Securities Act and the Exchange Act.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the final payment of principal of
such security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Subordinated Obligation" means any Debt of the Company (whether
outstanding on the Issue Date or thereafter Incurred) which is subordinate or
junior in right of payment to the Notes pursuant to a written agreement to that
effect, and shall expressly exclude any Senior Debt.
"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person or
(ii) any other Person (other than a corporation) in which such Person, or one or
more other Subsidiaries of such Person or such Person and one or more other
Subsidiaries of such Person, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs thereof.
Notwithstanding the foregoing, a Joint Venture shall be not be deemed to be a
Subsidiary of the Company or any Restricted Subsidiary.
"Subsidiary Guarantee" means the Guarantee by a Subsidiary Guarantor of the
Company's Obligations with respect to the Notes contained in Article 11 hereof.
"Subsidiary Guarantor" shall have the meaning set forth in the Preamble and
from and after the Issue Date shall include each Restricted Subsidiary that,
pursuant to Section 4.4 or Section 4.17, fully and unconditionally guarantees,
jointly and severally, on a senior basis to each Holder the Company's
Obligations under this Indenture and the Notes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. H 77aaa-77bbbb) as
in effect on the date of this Indenture, except as provided by Section 9.3.
15
"Trust Officer" means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor.
"Uniform Commercial Code" means the New York Uniform Commercial Code as in
effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
designated as such by the Board of Directors of the Company as set forth below
where (a) neither the Company nor any of its other Subsidiaries (other than
another Unrestricted Subsidiary) (1) provides credit support for, or Guarantee
of, any Debt of such Subsidiary or any Subsidiary of such Subsidiary (including
any undertaking, agreement or instrument evidencing such Debt), (2) is directly
or indirectly liable for any Debt of such Subsidiary or any Subsidiary of such
Subsidiary, or (3) has any obligation to make additional Investments in such
Subsidiary or any Subsidiary of such Subsidiary, (b) such Subsidiary has no Debt
other than Non-Recourse Debt; provided, however, that if any Unrestricted
Subsidiary Incurs any Debt other than Non-Recourse Debt or any Non-Recourse Debt
Incurred by such Unrestricted Subsidiary shall thereafter cease for any reason
to be Non-Recourse Debt, such event shall be deemed to constitute an Incurrence
of such Debt by the Company and such Unrestricted Subsidiary shall be deemed to
be a Restricted Subsidiary for purposes of Section 4.2 and (c) such Subsidiary
and each Subsidiary of such Subsidiary has at least one director on its board of
directors that is not a director or executive officer of the Company or any
Restricted Subsidiary and (ii) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary.
"Vendor Financing Facility" means (i) any agreements between the Company
and/or any Restricted Subsidiary and one or more vendors or lessors of the
Company and/or any Restricted Subsidiary (or any affiliate of any such vendor or
lessor) providing financing for the acquisition by the Company or any such
Restricted Subsidiary of inventory, equipment or other assets used in the
business of the Company and/or any Restricted Subsidiary and (ii) the existing
agreement between the Company and Premium Funding Associates, Inc. providing
financing for the insurance premiums for certain insurance policies of the
Company and its Restricted Subsidiaries.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly-Owned Restricted Subsidiary" means a Restricted Subsidiary 99% or
more of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by the
Company or by one or more Wholly-Owned Restricted Subsidiaries of the Company or
by the Company and one or more Wholly-Owned Restricted Subsidiaries of the
Company.
SECTION 1.2. Other Definitions.
Defined in
Term Section
------------------------------------------------------------------ -----------
16
"Affiliate Transaction"........................................... 4.6
"Appendix"........................................................ 2.1
"Bankruptcy Law".................................................. 6.1
"Cash Insurance".................................................. 4.11
"Company"......................................................... Preamble
"Covenant Defeasance Option"...................................... 8.1(b)
"Custodian"....................................................... 6.1
"Event of Default"................................................ 6.1
"Insurance Account"............................................... 4.11
"Insurance Proceeds".............................................. 4.11
"Company"......................................................... Preamble
"Legal Defeasance Option"......................................... 8.1(b)
"Legal Holiday"................................................... 12.8
"Notes"........................................................... Recital
"Notice of Default" 6.1
"Obligations"..................................................... 10.1
"Paying Agent".................................................... 2.3
"Permitted Lien".................................................. 4.9
"Planet Hollywood"................................................ Preamble
"Registrar"....................................................... 2.3
"Successor Company"............................................... 5.1
"Trustee"......................................................... Preamble
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. The
provisions of TIA (S)(S) 310 through 317 that impose a duty on any Person
(including the provisions automatically deemed included herein unless expressly
excluded by this Indenture) are a part of and govern this Indenture upon and so
long as the Indenture and Notes are subject to the TIA. Notwithstanding anything
to the contrary contained herein, if any provision of this Indenture limits,
qualifies or conflicts with such duties, the imposed duties shall control. If a
provision of the TIA requires or permits a provision of this Indenture and the
TIA provision is amended, then the Indenture provision shall be automatically
amended to like effect. The following TIA terms have the following meanings:
"Commission" means the Securities and Exchange Commission and any survivor
or successor agency;
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meanings assigned to them by such definitions.
17
SECTION 1.4. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Debt shall not be deemed to be subordinate or junior to
secured Debt merely by virtue of its nature as unsecured Debt;
(7) the principal amount of any noninterest bearing or other discount
or deferrable interest security at any date shall be the principal amount
thereof that would be shown on a balance sheet of the issuer dated such
date prepared in accordance with GAAP, but accretion of principal on such
security shall not be deemed to be the Incurrence of Debt;
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater;
(9) the terms "redemption" and "redeemable" shall not be deemed to
refer to Offers to Purchase or to repurchases pursuant to Section 4.8 or
similar offers or repurchases.
ARTICLE 2.
The Notes
SECTION 2.1. Form and Dating. The Notes shall be known and designated as
the "9% Secured Deferrable Interest Notes Due March 31, 2010" of the Company.
The Notes and the Trustee's certificate of authentication shall be substantially
in the form of Exhibit A, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, which Exhibit A is hereby incorporated in and expressly made a part
of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Note shall be dated
the date of its authentication. The terms of the Notes set forth in the Exhibit
A are part of the terms of this Indenture.
SECTION 2.2. Execution and Authentication.
(a) Two Officers shall sign the Notes for the Company by manual or
facsimile signature.
18
(b) If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
(c) A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
(d) The Trustee shall, upon written order of the Company signed by two
Officers or by an Officer and either an Assistant Treasurer or an Assistant
Secretary of the Company, authenticate and deliver Notes for original issue up
to the aggregate principal amount of $20,000,000. Such order shall specify the
amount of the Notes to be authenticated and the date on which the original issue
of Notes is to be authenticated. The Notes, other than those set forth in
Section 4.1(e) hereof, shall be certificated.
(e) Pursuant to the Plan of Reorganization, any obligation owing hereunder
to any owner in an amount less than $1,000 shall not be evidenced in the
original issue by a certificated Note registered in the name of such owner.
Instead, such obligation shall be recorded by memo entry recordation of such
uncertificated Note obligation on the books and records of the Company as an
obligation of the Company payable in accordance with the terms of this
Indenture. The Company shall be the Holder of a single certificated Note issued
in the aggregate amount of the original aggregate principal amount of all such
original uncertificated Note obligations. The Company shall be the Holder of
such Note for the benefit of all such owners.
(f) Except to the extent permitted pursuant to (i) Section 4.1 hereof
(which authorizes the creation of additional principal in the event interest is
deferred and compounded to principal in accordance with the terms thereof), and
(ii) Section 2.7 hereof (which addresses the issuance of replacement Notes in
the event of the loss, destruction or wrongful taking of any Note), the
aggregate principal amount of Notes outstanding at any time may not exceed
$20,000,000.
(g) The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, Paying Agent or agent for service of notices and
demands.
(h) The Notes are issuable only in registered form without coupons in
denominations of $1,000 and in integral multiples of $1.00 in excess thereof;
provided, however, that, any Notes registered in the name of the Company will be
in denominations of $1.00 and in integral multiples thereof.
SECTION 2.3. Registrar and Paying Agent. The Company shall maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange (the "Registrar") and an office or agency where Notes may be
presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Company may have one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Company may serve as the Paying
Agent, and the Company's principal office may serve as the Registrar. Whenever
the Company must issue or deliver Notes pursuant to this Indenture, the Trustee
shall authenticate the Notes at the Company's request. The Company shall make
available to the Trustee and Registrar without charge a reasonable supply of
Note certificates in definitive, fully registered form, without interest
coupons.
19
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7 hereof.
The Company or any of its domestically incorporated wholly owned Subsidiaries
may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying Agent in
connection with the Notes.
SECTION 2.4. Paying Agent To Hold Money in Trust. Prior to each due date of
the principal and interest on any Note, the Company shall deposit with the
Paying Agent a sum sufficient to pay such principal and interest when so
becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Notes and shall notify the Trustee of
any default by the Company in making any such payment. If either Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying with this Section,
the Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.5. Lists of Holders. Contemporaneously with the execution of this
Indenture, the Company shall furnish or cause to be furnished to the Trustee a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders and the taxpayer identification numbers for such
Holders, which list of names, addresses, principal amounts, and taxpayer
identification numbers shall be certified by the Company as a true and correct
list as of the original issuance date of the Notes. The Trustee may conclusively
rely, as to the truthfulness and correctness of any such list, upon the
certification of the Company furnished to the Trustee as set forth in the
immediately preceding sentence hereof, and the Trustee shall be under no duty to
examine the list provided by the Company to determine whether or not the list of
Holders is true and correct. The Trustee shall thereafter preserve in as current
a form as is reasonably practicable the list of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee, in writing at least five Business Days before each Interest Payment
Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Holders. If the Paying Agent is not the Registrar, the Company
shall furnish to Paying Agent, in writing at least five Business Days before
each Interest Payment Date and at such other times as the Paying Agent may
request in writing, a list in such form and as of such date as the Paying Agent
may reasonably require of the names and addresses of Holders.
SECTION 2.6. Transfer and Exchange. The Notes shall be issued in registered
form and shall be transferable only upon the surrender of a Note for
registration of transfer. When a Note is presented to the Registrar or a
co-registrar with a request to register a transfer, the Registrar shall register
the transfer as requested if the requirements of Section 8-401(l) (or any
successor provision thereto) of the Uniform Commercial Code are met; provided,
however, that the Trustee shall adjust the principal amount of each such
transferred Note to reflect the then current principal amount of such Note on
its records. When Notes are presented to the Registrar or a co-registrar with a
request to exchange them for an equal principal amount of Notes of other
denominations, the Registrar shall make the exchange as requested if
20
the same requirements are met; provided, however, that the Trustee shall adjust
the principal amount of such exchanged Notes to reflect the then current
principal amount of such Notes on its records.
To permit registration of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at the Registrar's or
co-registrar's request. The Company may require payment of a sum sufficient to
pay all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section.
The Company shall not be required to make and the Registrar need not
register transfers or exchanges of Notes selected for redemption (except, in the
case of Notes to be redeemed in part, the portion thereof not to be redeemed) or
any Notes for a period of 15 days before the redemption date or Regular Record
Dateon or after the fifteenth day of the calendar month (whether or not a
Business Day) next preceding the Interest Payment Date.
Prior to the due presentation for registration of transfer of any Note, the
Company, the Trustee, the Paying Agent, the Registrar or any co-registrar may
deem and treat the person in whose name a Note is registered as the absolute
owner of such Note for the purpose of receiving payment of principal of and
interest on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and none of the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to the contrary.
All Notes issued upon any transfer or exchange pursuant to the terms of
this Indenture will evidence the same debt and will be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.7. Replacement Notes. If a mutilated Note is surrendered to the
Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 (or any
successor provision thereto) of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements of the Trustee. Such Holder
shall furnish an indemnity bond sufficient in the judgment of the Company and
the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar
and any co-registrar from any loss which any of them may suffer if a Note is
replaced. The Company and the Trustee may charge the Holder for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company.
SECTION 2.8. Outstanding Notes. The Notes outstanding at any time are all
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the Note which was replaced is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, then on and
after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
21
A Note does not cease to be outstanding because the Company or one of its
Affiliates holds such Note; provided, however, that, in determining whether the
Holders of the requisite principal amount at maturity of the outstanding Notes
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Company or any other obligor upon the Notes
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which the
Trustee actually knows to be so owned shall be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not the Company or any
other obligor upon the Notes or any Affiliate of the Company or of such other
obligor.
SECTION 2.9. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Company considers appropriate for temporary
Notes. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes and deliver them in exchange for Temporary
Notes.
SECTION 2.10. Cancellation. The Company at any time may deliver Notes to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel and may, but shall
not be required to, destroy (subject to the record retention requirements of the
Exchange Act) all Notes surrendered for registration of transfer, exchange,
payment or cancellation unless the Company directs the Trustee to deliver
canceled Notes to the Company. The Company may not issue new Notes to replace
securities they have redeemed, paid or delivered to the Trustee for
cancellation.
SECTION 2.11. Defaulted Interest. If the Company defaults in a payment of
interest on the Notes, the Company shall pay defaulted interest (plus interest
on such defaulted interest at the rate of 9% per annum) in any lawful manner.
The Company may pay the defaulted interest to the persons who are Holders on a
subsequent special record date. The Company shall fix or cause to be fixed any
such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail to each Holder a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
It is understood and agreed that any election by the Company, pursuant to
Section 4.1 below, to defer and compound to principal any quarterly installment
of interest shall not be considered a default in the payment of interest
hereunder.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
22
ARTICLE 3.
Redemption
SECTION 3.1. Notices to the Trustee. If the Company elects to redeem Notes
pursuant to Section 3.7 hereof, it shall notify the Trustee in writing of the
redemption date, the principal amount of Notes to be redeemed and the paragraph
of the Notes pursuant to which the redemption will occur.
The Company shall give each notice to the Trustee provided for in this
Section at least 60 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.2. Selection of Notes To Be Redeemed. If less than all the Notes
are to be redeemed at any time, the Trustee shall select the Notes to be
redeemed by a method that complies with the requirements of the principal
national securities exchange, if any, on which the Notes are listed, or if the
Notes are not listed, on a pro rata basis, by lot or by such method as the
Trustee in its sole discretion shall deem to be fair and appropriate and in
accordance with methods generally used at the time of selection by fiduciaries
in similar circumstances. The Trustee shall make the selection from outstanding
Notes not previously called for redemption. The Trustee may select for
redemption portions of the principal of Notes that have denominations larger
than $1.00. Notes and portions of them the Trustee selects shall be in amounts
of $1.00 or a whole multiple of $1.00. Provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption. The Trustee shall notify the Company promptly of the Notes or
portions of Notes to be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not more than 60
days before a date for redemption of Notes, the Company shall mail or cause to
be mailed a notice of redemption by first-class mail to each Holder of Notes to
be redeemed at such Holder's registered address.
The notice shall identify the Notes (including CUSIP number(s), if any) to
be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(5) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts of the particular Notes to be
redeemed;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Notes (or portion thereof)
called for redemption ceases to accrue on and after the redemption date;
and
23
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense. In such event, the Company
shall provide the Trustee with the information required by this Section.
SECTION 3.4. Effect of Notice of Redemption. Once notice of redemption is
mailed, Notes called for redemption become due and payable on the redemption
date and at the redemption price stated in the notice. Upon surrender to the
Paying Agent, such Notes shall be paid on the redemption date at the redemption
price stated in the notice, plus accrued interest to the redemption date;
provided, however, that sufficient funds to pay the redemption price have been
made available to the Paying Agent prior to the redemption date. Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder.
SECTION 3.5. Deposit of Redemption Price. On or prior to the redemption
date, the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date other than Notes or portions of Notes called for
redemption which have been delivered by the Company to the Trustee for
cancellation.
SECTION 3.6. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Company shall execute and the Trustee shall authenticate
for the Holder (at the Company's expense) a new Note equal in principal amount
to the unredeemed portion of the Note surrendered.
SECTION 3.7. Optional Redemption. At any time following the Issue Date, the
Notes will be redeemable, in whole or in part, at the option of the Company,
upon not less than 30 and no more than 60 days' prior notice, on any April 1,
July 1, October 1 or January 1 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.
ARTICLE 4.
Covenants
SECTION 4.1. Payment of Notes. The Company shall promptly pay the principal
of and interest on the Notes on the dates and in the manner provided in the
Notes and in this Indenture. Principal, interest and other amounts due on the
Notes shall be considered paid on the date due if on such date the Trustee or
the Paying Agent holds in accordance with this Indenture money sufficient to pay
all such amounts then due and the Trustee or the Paying Agent is not prohibited
from paying such amounts to the Holders on such date pursuant to the terms of
this Indenture.
The Company shall pay interest on overdue principal at the rate specified
therefor in the Notes, on the dates and in the manner provided in the Notes and
in this Indenture and shall pay interest on overdue installments of interest at
the same rate to the extent lawful on the dates and in the manner provided in
the Notes and in this Indenture.
Notwithstanding any other provision of this Indenture or the Notes, in the
event the Company determines, with respect to any Interest Payment Date, that it
has insufficient funds to timely pay the entire amount of the interest payment
due on such Interest Payment Date, the Company may elect to
24
defer such amount, and compound such amount (rounded to the nearest $1.00 with
respect to any Holder) to principal, by providing written notice of such
election (the "Election Notice') to the Trustee at least 10 days prior to, but
no more than 45 days prior to, the record date for the applicable Interest
Payment Date. Such election shall be accompanied by a statement, certified by an
Officer, that the Company has determined that it has insufficient funds to make
such interest payment; provided, however, that the Company, if it makes such an
election to defer interest when due, shall defer all interest due on such
Interest Payment Date and may not defer only a portion of any interest due on
such Interest Payment Date. In the event that interest on the Notes is deferred
and compounded to principal pursuant to the foregoing: (i) such obligation of
the Company to the Holders shall be evidenced as additional principal owing
pursuant to the Notes and this Indenture solely by memo entry recordation on the
Company's books and records; (ii) such amount shall become due and payable on
March 31, 2010, consistent with the original principal amounts owing under the
Notes, (iii) interest shall accrue on such amount at the rate of 9% per annum,
and shall be due and payable on each subsequent Interest Payment Date so long as
such additional principal remains outstanding; (iv) interest so accrued on such
amount may be deferred and compounded to principal as provided in the foregoing
provisions of this paragraph; (v) any such additional principal, as so evidenced
by memo entry recordation, shall not be detachable or otherwise severable from
the Note with respect to which such additional principal is so issued; and (vi)
the Company's obligation evidencing such additional principal (and the Holder's
right to receive payment thereof) shall not be transferable, assignable or
otherwise alienable independent of or severally from the Note with respect to
which so issued.
At least 10 days prior to, but no more than 45 days prior to the record
date for each related Interest Payment Date after the Company has elected to
defer any interest payment when due as provided in the immediately preceding
paragraph of this Section 4.1 (including, but not limited to, the first Interest
Payment Date as to which the Company first elects to defer an interest payment),
the Company shall render an accounting signed by the Company (the "Note
Valuation Report") determined as of the record date preceding the related
Interest Payment Date, and shall deliver a Note Valuation Report to the Trustee
not later than 10 days prior to, but no more than 45 days prior to the record
date for the related Interest Payment Date. The Note Valuation Report shall
contain the following information (determined, unless otherwise specified below,
as of the related Interest Payment Date):
(i) the aggregate principal amount of Notes outstanding as of the record
dated immediately preceding the related Interest Payment Date;
(ii) the amount of any principal payment, if any, to be made on the Notes
on the related Interest Payment Date;
(iii) the aggregate principal amount of Notes outstanding immediately after
giving effect to the principal payment, if any, on the related Interest Payment
Date and after giving effect to any deferral of interest and compounding of such
amount to principal in an Election Notice for the related Interest Payment Date;
(iv) the interest amount, if any, that would be payable to the Holders on
the related Interest Payment Date without giving effect to any deferral of
interest and compounding of such amount to principal in an Election Notice for
the related Interest Payment Date;
(v) the interest amount, if any, the Company has elected to defer in an
Election Notice given at least 10 days prior to, but no more than 45 days prior
to, the record date for the related Interest Payment Date; and
25
(vi) the interest amount, if any, that the Company will pay to the Holders
for the related Interest Payment Date.
Each Note Valuation Report shall contain instructions to the Trustee as to the
amount and character of any interest and principal payments to be made to the
Holders on the related Interest Payment Date. Upon receipt thereof from the
Company, the Trustee shall promptly after the record date for the related
Interest Payment Date provide copies of the Election Notice and the Note
Valuation Notice to all Holders of the Notes who are registered Holders as of
the record date for the related Interest Payment Date. The Company shall provide
a copy of the most recent Note Valuation Report to any Holder who requests in
writing a copy of the same from the Company.
SECTION 4.2. Future Guarantors. In the event that, after the Issue Date,
the Company shall acquire or create a Subsidiary, the Company shall cause such
Subsidiary (unless such Subsidiary is a Foreign Subsidiary or an Unrestricted
Subsidiary) to become a Subsidiary Guarantor and to Guarantee the Notes pursuant
to a Subsidiary Guarantee.
SECTION 4.3. Limitation on Restricted Payments. The Company may not, and
may not permit any Restricted Subsidiary, directly or indirectly, to make a
Restricted Payment. Notwithstanding the foregoing, the Company may (i)
Refinance, and permit its Restricted Subsidiaries to Refinance, any Debt with
Refinancing Debt; (ii) make any Restricted Payment by exchange for, or out of
the proceeds of the sale of, or capital contribution in respect of, Capital
Stock of the Company (other than Disqualified Stock and other than Capital Stock
issued or sold to a Subsidiary of the Company or an employee stock ownership
plan or to a trust established by the Company or any of its Subsidiaries for the
benefit of their employees); and (iii) Incur the Replacement Debt.
SECTION 4.4. Dividend and other Payment Restrictions Affecting
Subsidiaries.
(a) The Company may not, and may not permit any Restricted Subsidiary,
directly or indirectly, to create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(i) pay dividends or make any other distributions to the Company or
any of its Restricted Subsidiaries on its Capital Stock or with respect to
any other interest or participation in, or measured by, its profits;
(ii) pay any indebtedness owed to the Company or any Restricted
Subsidiary;
(iii) make loans or advances to the Company or any Restricted
Subsidiary; or
(iv) transfer any of its properties or assets to the Company or any
Restricted Subsidiary.
(b) Notwithstanding the foregoing, the Company may, and may permit any
Restricted Subsidiary to, suffer to exist any such encumbrance or restriction:
(i) pursuant to any agreement in effect on the Issue Date;
26
(ii) pursuant to an agreement relating to any Acquired Debt, which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person so acquired and
its Subsidiaries;
(iii) pursuant to an agreement effecting a Refinancing of Debt
Incurred pursuant to an agreement referred to in clause (i) or (ii) above
or clause (iv) below, provided, however, that the provisions contained in
such Refinancing agreement relating to such encumbrance or restriction are
no more restrictive taken as a whole (as determined in good faith by the
Chief Financial Officer of the Company) than the provisions contained in
the predecessor agreement the subject thereof;
(iv) in the case of clause (iii) of Section 4.4(a), consisting of
restrictions contained in any security agreement (including a Capital Lease
Obligation) securing Debt of the Company or a Restricted Subsidiary
otherwise permitted under this Indenture, but only to the extent such
encumbrances or restrictions restrict the transfer of the property subject
to such security agreement;
(v) in the case of clause (iv) of Section 4.4(a), consisting of
customary nonassignment provisions entered into in the ordinary course of
business in leases governing leasehold interests, but only to the extent
such provisions restrict the transfer of the lease or the property
thereunder;
(vi) with respect to a Restricted Subsidiary, imposed pursuant to an
agreement which has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Restricted
Subsidiary; provided, however, that after giving effect to such transaction
no Default shall have occurred or be continuing, that such restriction
terminates if such transaction is not consummated and that such
consummation or abandonment of such transaction occurs within one year of
the date such agreement was entered into;
(vii) imposed pursuant to applicable law or regulations;
(viii) imposed pursuant to the Senior Loan Documents or any
Refinancing thereof;
(ix) imposed pursuant to this Indenture and the Notes; or
(x) consisting of any restriction on the sale or other disposition of
assets or property securing Debt as a result of a Permitted Lien on such
assets or property.
SECTION 4.5. Asset Dispositions. (a) The Company may not, and may not
permit any Restricted Subsidiary to, directly or indirectly, make any Asset
Disposition unless: (i) the Company or such Restricted Subsidiary, as the case
may be, receives consideration at the time of such Asset Disposition at least
equal to the fair market value (including as to the value of all non-cash
consideration) of the shares and assets subject to such Asset Disposition, as
determined by the Board of Directors of the Company in good faith and evidenced
by a resolution filed with the Trustee, and the Trustee shall be protected in
relying in good faith on such resolution; (ii) at least 80% of the consideration
thereof received by the Company or such Restricted Subsidiary, as the case may
be, consists of (A) cash or Permitted Short-Term Investments or (B) the
assumption of Debt (other than Subordinated Obligations) of the Company or such
Restricted Subsidiary and the release of the Company and the Restricted
27
Subsidiaries, as applicable, from all liability on the Debt assumed; and (iii)
if (A) no Event of Default has occurred and is then continuing and if (x) the
Aggregate Asset Disposition Proceeds then exceed $15 million, or (y) the asset
being disposed of is a Core Asset, or (B) an Event of Default has occurred and
is then continuing and the Trustee has not exercised any remedies pursuant to
Sections 6.2 or 6.3, then (and only in the event either subclause (A) or (B) of
this clause (iii) is applicable), all Net Available Proceeds, less any amounts
invested within 180 days of such disposition in assets that comply with Section
4.10, are applied within 180 days of such disposition:
(A) first, to the repayment of Debt then outstanding under any Bank
Credit Agreement and a corresponding permanent reduction in the commitments
thereunder, if any, and any appropriate Vendor Financing Facility; and
(B) second, to the extent that the Net Available Proceeds exceed the
amount of Debt then outstanding under the Bank Credit Agreements, to a
permanent reduction in the commitments thereunder, if any, by an amount
equal to such excess Net Available Proceeds; and
(C) third, if the commitments under all Bank Credit Agreements have
been reduced to zero and to the extent that the remaining Net Available
Proceeds exceed $2.5 million, to make an Offer to Purchase outstanding
Notes at 100% of their principal amount plus accrued and unpaid interest to
the date of purchase thereon and, to the extent required by the terms
thereof, any other Debt of the Company or a Restricted Subsidiary that
ranks pari passu with the Notes at a price no greater than 100% of the
principal amount thereof plus accrued and unpaid interest to the date of
purchase. To the extent that the aggregate amount of Notes tendered
pursuant to an Offer to Purchase pursuant to this Section 4.5 exceeds the
amount of remaining Net Available Proceeds, the Trustee shall select the
Notes to be purchased on a pro rata basis. To the extent any Net Available
Proceeds remain after such uses, the Company and the Restricted
Subsidiaries may use such amounts for any purposes not prohibited by this
Indenture.
(b) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.5. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.5, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.5 by virtue
thereof.
(c) Notwithstanding anything to the contrary contained herein, in the event
and to the extent that any provision of this Section 4.5 shall conflict with any
provision of any Senior Loan Document, such provision of the Senior Loan
Document shall govern and apply in lieu of the otherwise applicable provision
hereof, and the provision hereof shall be deemed inapplicable in that instance;
provided, however that the Trustee shall not be deemed to have any knowledge of
any such conflict until notified in writing of such conflict by the Company,
which notice shall be entitled "Notice of Conflict with Senior Loan Document,"
shall reference this Section 4.5(c) of this Indenture, shall identify the
conflict, shall include as an exhibit thereto a copy of the relevant conflicting
applicable Senior Loan Agreement, and shall include as an exhibit thereto an
Opinion of Counsel upon which the Trustee may rely and in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of such
counsel, a conflict does exist between a particular provision of this Indenture
and an identified Senior Loan Agreement provision and that, in the opinion of
such counsel, the Trustee should, pursuant to Section 4.5(c) of this
28
Indenture, be governed by the identified provision of such Senior Loan Agreement
instead of by the conflicting provision in this Indenture. In such event, the
Company's failure to comply with such provision of this Section 4.5 shall not be
considered for any purpose an Event of Default or other breach or violation of
this Indenture.
SECTION 4.6. Transactions with Affiliates. (a) Except for transactions the
terms of which are set forth in agreements existing on the Issue Date, the
Company may not, and may not permit any Restricted Subsidiary, directly or
indirectly, to enter into any transactions (or series of related transactions)
with an Affiliate or Related Person of the Company (other than the Company or a
Wholly-Owned Restricted Subsidiary) (an "Affiliate Transaction") unless:
(i) such Affiliate Transaction is on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary, as the case may be, with an unrelated Person; and
(ii) the Company delivers to the Trustee (A) with respect to any
Affiliate Transaction involving aggregate consideration in excess of $1
million, a certificate of the Chief Executive officer of the Company to the
effect that such Affiliate Transaction complies with clause (i) above; and
(B) with respect to any Affiliate Transaction involving aggregate
consideration in excess of $5 million, an opinion as to the fairness to the
Company or such Restricted Subsidiary, as the case may be, of such
Affiliate Transaction from a financial point of view issued by an
Independent Financial Advisor.
(b) Notwithstanding the foregoing Section 4.6(a), the following shall be
deemed not to be Affiliate Transactions:
(i) employee compensation arrangements entered into in the ordinary
course of business and approved by the Board of Directors of the Company;
(ii) transactions solely between or among the Company and the
Restricted Subsidiaries;
(iii) Restricted Payments permitted by Section 4.3;
(iv) Investments by an Affiliate or Related Person of the Company in
the Capital Stock (other than Disqualified Stock) of the Company or any
Restricted Subsidiary; and
(v) transactions contemplated under the Plan of Reorganization.
SECTION 4.7. Limitation on Issuances and Sales of Capital, Stock of
Restricted Subsidiaries. The Company may not, and may not permit any Restricted
Subsidiary to, issue, transfer, convey, sell or otherwise dispose of any shares
of Capital Stock of a Restricted Subsidiary or securities convertible or
exchangeable into, or options, warrants, rights or any other interest with
respect to, Capital Stock of a Restricted Subsidiary to any person other than
the Company or a Wholly-Owned Restricted Subsidiary except (i) in a transaction
consisting of a sale of all the Capital Stock of such Restricted Subsidiary and
that complies with the provisions of Section 4.5 to the extent such provisions
apply; (ii) if required, the issuance, transfer, conveyance, sale or other
disposition of directors' qualifying shares; (iii) in a transaction in which, or
in connection with which, the Company or a Restricted Subsidiary acquires at
29
the same time sufficient Capital Stock of such Restricted Subsidiary to at least
maintain the same percentage ownership interest it had prior to such
transaction; and (iv) Disqualified Stock of a Restricted Subsidiary Incurred to
Refinance Disqualified Stock of such Restricted Subsidiary; provided, however,
that the amounts of the redemption obligations of such Disqualified Stock shall
not exceed the amounts of the redemption obligations of, and such Disqualified
Stock shall have redemption obligations no earlier than those required by, the
Disqualified Stock being Refinanced.
SECTION 4.8. Change of Control. (a) Upon the occurrence of a Change of
Control, each Holder of Notes shall have the right to require that the Company
repurchase such Holder's Notes at a purchase price in cash equal to 100% of the
principal amount thereof plus accrued and unpaid interest to the date of
purchase (with such unpaid interest to include any interest payable on the
relevant Interest Payment Date to the Holders of record on the relevant record
date if the date of purchase occurs on or after the relevant record date but
before the relevant Interest Payment Date).
(b) Within 30 days following any Change of Control, the Company shall mail
a notice to each Holder with a copy to the Trustee stating:
(i) that a Change of Control has occurred and that such Holder has the
right to require the Company to purchase such Holder's Notes at a purchase
price in cash equal to 100% of the principal amount thereof plus accrued
and unpaid interest to the date of purchase (with such unpaid interest to
include any interest payable on the relevant Interest Payment Date to the
Holders of record on the relevant record date if the date of purchase
occurs on or after the relevant record date but before the relevant
Interest Payment Date);
(ii) the circumstances and relevant facts regarding such Change of
Control;
(iii) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Company, consistent with this
Section 4.8, that a Holder must follow in order to have its Notes
purchased.
(c) Holders electing to have a Note purchased will be required to surrender
the Note, with an appropriate form duly completed, to the Company at the address
specified in the notice at least three Business Days prior to the purchase date.
Holders will be entitled to withdraw their election if the Trustee or the
Company receives not later than one Business Day prior to the purchase date, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note which was delivered for purchase by the Holder and
a statement that such Holder is withdrawing his election to have such Note
purchased.
(d) On the purchase date, all Notes purchased by the Company under this
Section shall be delivered to the Trustee for cancellation, and the Company
shall pay the purchase price plus accrued and unpaid interest, if any, to the
Holders entitled thereto.
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall comply with the
applicable securities laws
30
and regulations and shall not be deemed to have breached its obligations under
this Section by virtue thereof.
SECTION 4.9. Limitation on Liens. The Company may not, and may not permit
any Restricted Subsidiary, directly or indirectly, to Incur or permit to exist
any Lien on any asset now owned or hereafter acquired, or any income or profits
therefrom or assign or convey any right to receive income therefrom, except for
the following Liens (each, a "Permitted Lien"):
(i) Liens to secure the Debt outstanding at any time under any Senior
Loan Document, subject to the Intercreditor Agreements;
(ii) Liens to secure up to $5 million of other Debt permitted to be
Incurred under this Indenture so long as effective provision is made to
secure the Notes on a senior basis to the obligations so secured;
(iii) Liens under the Security Documents;
(iv) Liens in favor of the Company;
(v) Liens on property or shares of Capital Stock of another Person at
the time such other Person becomes a Subsidiary of such Person; provided,
however, that such Liens are not created, incurred or assumed in connection
with, or in contemplation of, such other Person becoming such a Subsidiary;
provided further, however, that such Lien may not extend to any other
property owned by such Person or any of its Subsidiaries (other than
inventory and receivables generated in the ordinary course of business and
substitute property);
(vi) Liens on property at the time such Person or any of its
Subsidiaries acquires such property, including any acquisition by means of
a merger or consolidation with or into such Person or a Subsidiary of such
Person; provided, however, that such Liens are not created, incurred or
assumed in connection with, or in contemplation of, such acquisition;
provided further, however, that the Liens may not extend to any other
property owned by such Person or any of its Subsidiaries;
(vii) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(viii) Liens existing on the Issue Date;
(ix) Liens to secure any Refinancing Debt incurred to refinance any
Debt secured by any Lien referred to in the foregoing clauses (i) through
(viii);
(x) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded;
provided, however, that any reserve or other appropriate provision as shall
be required in conformity with GAAP shall have been made therefor;
31
(xi) Carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
is respect of obligations not overdue for a period in excess of 60 days or
which are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided, however, that any reserve or
other appropriate provision as shall be required in conformity with GAAP
shall have been made therefor;
(xii) purchase money Liens solely on the asset being acquired;
(xiii) Liens arising from precautionary UCC financing statement
filings;
(xiv) statutory and common law landlords' liens under leases to which
the Company or any of its Subsidiaries is a party;
(xv) Easements, rights-of-way, zoning and similar restrictions and
other similar encumbrances or title defects incurred, or leases or
subleases granted to others, in the ordinary course of business, which do
not in any case materially detract from the value of the property subject
thereto or do not interfere with or adversely affect in any material
respect the ordinary conduct of the business of the Company and its
Restricted Subsidiaries taken as a whole;
(xvi) any attachment or judgment Lien not constituting an Event of
Default under clause (9) of the first paragraph of Section 6.1; and
(xvii) Liens incurred in the ordinary course of business of the
Company and the Restricted Subsidiaries with respect to obligations that do
not exceed $2 million at any one time outstanding and that:
(A) are not incurred in connection with the borrowing of money or
the obtaining of advances or credit (other than trade credit in the
ordinary course of business); and
(B) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of
business by the Company and the Restricted Subsidiaries.
SECTION 4.10. Business Activities. The Company shall not, and shall not
permit any Restricted Subsidiary to, make any material change in the nature of
the businesses as carried on at the date hereof.
SECTION 4.11. Maintenance of Insurance.
(a) The Company will and will cause each of its Restricted Subsidiaries to
maintain, with financially sound and reputable insurers, insurance with respect
to the respective properties and businesses of the Company and its Restricted
Subsidiaries against such casualties and contingencies, of such types, on such
terms and in such amounts (including deductibles, co-insurance and
self-insurance, if adequate reserves are maintained with respect thereto) as is
customary in the case of entities of established reputations engaged in the same
or a similar business and similarly situated.
32
(b) In the event that the Company or any of its Restricted Subsidiaries
receives any proceeds of any insurance that they are required to maintain
pursuant to this Section 4.11, such proceeds shall constitute "Insurance
Proceeds". Promptly following the receipt of any Insurance Proceeds, the Company
shall apply such Insurance Proceeds in accordance with the provisions of Section
4.5; provided, however, that Insurance Proceeds shall only be required to be so
applied to the extent that the aggregate amount of all Insurance Proceeds
received by the Company exceeds $1 million in any 12-month period.
SECTION 4.12. Compliance Certificates; Statement by Officers as to Default.
The Company shall deliver to the Trustee within 120 days after the end of each
Fiscal Year an Officers' Certificate, one of the signers of which shall be the
principal executive, principal financial or principal accounting officer of the
Company, stating that in the course of the performance by the signers of their
duties as officers of the Company they would normally have knowledge of any
Default and whether or not the signers know of any Default that occurred during
such period. If they do, the certificate shall describe the Default, its status
and what action the Company is taking or propose to take with respect thereto.
SECTION 4.13. Foreign Subsidiaries. In the event that, after the Issue
Date, the Company shall acquire or create a Foreign Subsidiary, except as
permitted under Section 4.3 hereof, neither the Company nor any Restricted
Subsidiary (other than a Foreign Subsidiary) shall transfer any assets to such
Foreign Subsidiary unless such Foreign Subsidiary becomes a Subsidiary Guarantor
and Guarantees the Notes pursuant to a Subsidiary Guarantee.
SECTION 4.14. Further Instruments and Acts. Upon request of the Trustee,
the Company will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.15. Calculation of Original Issue Discount. Within fifteen (15)
days of the end of each calendar year, the Company shall file with the Trustee
(i) a written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on outstanding Notes as of the end of
such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Code, as amended from time to
time.
SECTION 4.16 Reports by Company. The Company shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
TIA at the times and in the manner provided pursuant to the TIA; provided, that
any such information, documents, or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
ARTICLE 5.
Successor Company
SECTION 5.1. When Company May Merge or Transfer Assets. (a) The Company may
not consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or a series of transactions, all or substantially all its assets to
any Person; provided, however, that the Company may consolidate with or merge
with or into, or convey, transfer or lease, in one transaction or a series of
transactions, all or substantially all its assets to any Person, if:
33
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
the Successor Company (if not the Company) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the Obligations of the Company under
the Notes and this Indenture;
(ii) immediately after giving effect to such transaction (and treating
any Debt which becomes an obligation of the Successor Company or any
Subsidiary as a result of such transaction as having been Incurred by the
Successor Company or such Subsidiary at the time of such transaction), no
Default shall have occurred and be continuing; and
(iii) prior to such transaction, the Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such transaction and such supplemental indenture (if any)
comply with this Indenture.
The Successor Company shall be the successor to the Company and shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture, and the Company (other than in the case of a
lease) shall be released from the obligation to pay the principal of and
interest on the Notes.
(b) The Company shall not permit any Subsidiary Guarantor to consolidate
with or merge with or into, or convey, transfer or lease, in one transaction or
a series of transactions, all or substantially all of its assets to any Person
unless: (i) the resulting, surviving or transferee Person (if not such
Subsidiary) shall be a Person organized and existing under the laws of the
jurisdiction under which such Subsidiary was organized or under the laws of the
United States of America, or any State thereof or the District of Columbia, and
such Person shall expressly assume, by a guarantee agreement in a form
acceptable to the Trustee, all the obligations of such Subsidiary, if any, under
its Subsidiary Guarantee; (ii) immediately after giving effect to such
transaction or transactions on a pro forma basis (and treating any Debt which
becomes an obligation of the resulting, surviving or transferee Person as a
result of such transaction as having been issued by such Person at the time of
such transaction), no Default shall have occurred and be continuing; and (iii)
the Company delivers to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such
guarantee agreement, if any, complies with this Indenture.
ARTICLE 6.
Defaults and Remedies
SECTION 6.1. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on any Note when
the same becomes due and payable, and such default continues for a period
of 30 days (it being understood that the Company's exercise of its right to
defer interest and compound it to principal in accordance with the
provisions of Section 4.1 hereof shall not be considered an Event of
Default hereunder);
(2) the Company (i) defaults in the payment of the principal of any
Note when the same becomes due and payable at its Stated Maturity, upon
optional
34
redemption, upon required repurchase, upon declaration or otherwise, or
(ii) fails to redeem or purchase Notes when required pursuant to this
Indenture or the Notes;
(3) the Company fails to comply with Section 5.1;
(4) the Company fails to comply with any of its agreements in the
Notes or this Indenture (other than those referred to in clause (1), (2) or
(3) above) and such failure continues for 60 days after the notice
specified below;
(5) Debt of the Company or any Significant Subsidiary is not paid
within any applicable grace period after final maturity or is accelerated
by the holders thereof because of a default and the total amount of such
Debt unpaid or accelerated exceeds $1 million;
(6) any Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days;
(8) any judgment or decree for the payment of money in excess of $1
million, or its foreign currency equivalent at the time is entered against
the Company or any Significant Subsidiary, remains outstanding for a period
of 60 days following the entry of such judgment or decree and is not
discharged, waived or the execution thereof stayed within 10 days after the
notice specified below; or
35
(9) a Subsidiary Guarantee ceases to be in full force and effect
(other than in accordance with the terms of such Subsidiary Guarantee) or a
Subsidiary Guarantor denies or disaffirms its obligations under its
Subsidiary Guarantee.
The foregoing will constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
The term "Bankruptcy Law" means Title 11 of the United States Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clauses (4) or (8) is not an Event of Default until the
Trustee or the Holders of at least 50% in principal amount of the outstanding
Notes notify the Company of the Default and the Company does not cure such
Default, or it is not waived, within the time specified after receipt of such
notice. Such notice must specify the Default, demand that it be remedied, to the
extent consistent with law, and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (5) or (9) and any event which with the giving
of notice or the lapse of time would become an Event of Default under either
clause (4) or (8), its status and what action the Company is taking or propose
to take with respect thereto.
SECTION 6.2. Acceleration. If an Event of Default (other than an Event of
Default specified in Section 6.1(6) or (7) with respect to the Company) occurs
and is continuing, the Trustee by notice to the Company, or the Holders of at
least 50% in principal amount of the Notes by notice to the Company and the
Trustee, may declare the principal of and accrued but unpaid interest on all the
Notes to be due and payable. Upon such a declaration, such principal and
interest shall be due and payable immediately. If an Event of Default specified
in Section 6.1(6) or (7) with respect to the Company occurs, the principal of
and interest on all the Notes shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders. The Holders of a majority in principal amount of the Notes by notice to
the Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of acceleration. No such rescission shall
affect any subsequent Default or impair any right consequent thereto. The
availability of acceleration as provided in this Section 6.2 may be subject to
certain restrictions and conditions contained in the BNY Intercreditor and
Subordination Agreement, if executed, and the Intercreditor Agreement.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
36
The availability of remedies as provided in this Section 6.3 may be subject
to certain restrictions and conditions contained in the BNY Intercreditor and
Subordination Agreement, if executed, and the Intercreditor Agreement.
SECTION 6.3.1. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Notes by notice to the Trustee may waive an existing
Default and its consequences except (i) a Default in the payment of the
principal of or interest on a Note or (ii) a Default in respect of a provision
that under Section 9.2 cannot be amended without the consent of each Holder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
SECTION 6.4. Control by Majority. The Holders of a majority in principal
amount of the Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.1,
that the Trustee determines is unduly prejudicial to the rights of other Holders
or would involve the Trustee in personal liability or expense for which the
Trustee has not received a satisfactory indemnity therefore; provided, however,
that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. Prior to taking any action hereunder, the
Trustee shall be entitled to reasonable indemnification satisfactory to it in
its sole discretion against all losses, fees and expenses caused by taking or
not taking such action.
SECTION 6.5. Limitation on Suits. A Holder may pursue a remedy with respect
to this Indenture or the Notes only if:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default;
(2) the Holders of at least 50% in principal amount of the Notes make
a written request to the Trustee to pursue the remedy;
(3) the Trustee either (i) gives to such Holders notice that it will
not comply with the request, or (ii) does not comply with the request
within 60 days after receipt of the request; and
(4) the Holders of a majority in principal amount of the Notes do not
give the Trustee a direction inconsistent with the request prior to the
earlier of the date, if ever, on which the Trustee delivers a notice under
Section 6.6(3)(i) or the expiration of the period described in Section
6.6(3)(ii).
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
SECTION 6.6. Rights of Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and interest on the Notes held by such Holder, on or after the
respective due dates expressed in the Notes, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.7. Collection Suit by Trustee. If an Event of Default specified
in Section 6.1(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an
37
express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 7.7.
SECTION 6.8. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Holders approved or allowed
in any judicial proceedings relative to the Company, its creditors or its
property and any Custodian in any such judicial proceeding is hereby authorized
by each Holder to make payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel, and any
other amounts due the Trustee under Section 7.7. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder any plan of reorganization, arrangement, adjustment, or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any
proceeding. The availability of certain Trustee rights as provided in this
Section 6.9 may be subject to certain restrictions and conditions contained in
the BNY Intercreditor and Subordination Agreement, if executed, and the
Intercreditor Agreements.
SECTION 6.9. Priorities. If the Trustee collects any money or property
pursuant to this Article 6, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for all amounts due under Section 7.7;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section. At least 15 days before such record date, the Company
shall mail to each Holder and the Trustee a notice that states the record date,
the payment date and amount to be paid.
SECTION 6.10. Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys, fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of
more than 25% in principal amount of the Notes.
SECTION 6.11. Waiver of Stay or Extension Laws. The Company (to the extent
they may lawfully do so) shall not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that they may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
38
SECTION 6.12. Actions of a Holder. For purposes of providing any consent,
waiver or instruction to the Company or the Trustee, a "Holder" shall include a
Person who provides to the Company or the Trustee, as the case may be, an
affidavit of beneficial ownership of a Note together with a satisfactory
indemnity against any loss, liability or expense to such party to the extent
that it acts upon such affidavit of beneficial ownership (including any consent,
waiver or instructions given by a Person providing such affidavit and
indemnity).
SECTION 6.14 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
ARTICLE 7.
Trustee
SECTION 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein or otherwise verify the contents thereof).
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.1;
39
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section 7.1.
(e) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or powers.
(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.1 and to the provisions of the TIA.
(i) The Trustee is hereby authorized and directed to acknowledge, enter
into, execute and deliver, as the case may be, and to perform all of its
obligations and exercise its rights under the following documents, which
documents shall be incorporated into this Indenture by reference:
(1) the Security Documents;
(2) the Intercreditor Agreement, including any amendment thereto that
effects the inclusion of the Replacement Lender; and
(3) the BNY Intercreditor and Subordination Agreement.
(j) The Trustee shall, with respect to any certificated Notes, have the
legal power to exercise all of the rights, powers, and privileges of a holder of
the security or securities in which such certificates evidence an interest or
participation.
SECTION 7.2. Rights of Trustee. Subject to the provisions of Section
7.1 hereof:
(a) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties. The Trustee
need not investigate any fact or matter stated in the document.
40
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute
willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Trust Officer has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the Trustee
at the principal corporate trust office of the Trustee, and such notice
references the Notes and this Indenture.
(g) Except in connection with compliance with Sections 7.10 and 7.11, the
Trustee shall only be charged with knowledge of Trust Officers.
(h) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company or its Affiliates with the same rights it would have if it
were not Trustee. Any Paying Agent, Registrar, co-registrar or co-paying agent
may do the same with like rights. However, the Trustee must comply with Sections
7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be responsible for
and makes no representation as to the validity or adequacy of this Indenture or
the Notes, it shall not be accountable for the Company's use of the proceeds
from the Notes, and it shall not be responsible for any statement of the Company
in this Indenture or in any document issued in connection with the sale of the
Notes or in the Notes other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to each Holder notice of
the Default within 90 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note (including payments pursuant to
the mandatory redemption provisions of such Note, if any), the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of Holders.
Copies of notices required to be provided in this Section 7.5 may also need to
be provided to certain other parties as set froth in the BNY Intercreditor and
Subordination Agreement, if executed, and the Intercreditor Agreement.
41
SECTION 7.6. Reports by Trustee to Holders. If required by TIA (S) 313(a),
as promptly as practicable after each January 15 beginning with January 15,
2004, and in any event prior to April 15 in each year, the Trustee shall mail
to each Holder a brief report dated as of such January 15 that complies with
such TIA (S) 313(a). The Trustee also shall comply with TIA (S) 313(b).
The Company agrees to notify promptly the Trustee if the Notes become
listed on any stock exchange and of any delisting thereof.
SECTION 7.7. Compensation and Indemnity. Company shall pay to the Trustee
from time to time reasonable compensation for its services (including for any
agent capacity in which it acts). The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred or made by it, including costs of collection, in addition to
the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company shall indemnify the Trustee
against any and all loss, damage, claim, liability or reasonable expense
(including reasonable attorneys' fees and expenses) incurred by it (including
for any agent capacity in which it acts) in connection with the acceptance or
administration of this trust and the performance of its duties hereunder. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Notes on all money or property held or collected
by the Trustee.
The Company's payment obligations pursuant to this Section shall survive
the discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.1(6) or (7) with respect to the
Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at any time by
so notifying the Company. The Holders of a majority in principal amount of the
Notes may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of a
majority in principal amount of the Notes and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Company shall promptly appoint a successor Trustee.
42
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Notes may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section,
the Company's obligations under Section 7.7 shall continue for the benefit of
the retiring Trustee.
The resignation, removal and replacement of the Trustee as provided in this
Section 7.8 may be subject to certain restrictions and conditions contained in
the BNY Intercreditor and Subordination Agreement, if executed, and the
Intercreditor Agreement.
SECTION 7.9. Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee, provided that such corporation or banking association
shall be eligible under this Article 7 and TIA (S) 310(a).
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of TIA (S) 310(a). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA (S)
310(b); provided, however, that there shall be excluded from the operation of
TIA (S) 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company is
outstanding if the requirements for such exclusion set forth in TIA (S)310 (b)
(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA (S) 311(a), excluding any creditor relationship
listed in TIA (S) 311(b). A Trustee who has resigned or been removed shall be
subject to TIA (S) 311(a) to the extent indicated.
43
ARTICLE 8.
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Notes; Defeasance. (a) When (i) the
Company delivers to the Trustee all outstanding Notes (other than Notes replaced
pursuant to Section 2.7) for cancellation or (ii) all outstanding Notes have
become due and payable, whether at maturity or as a result of the mailing of a
notice of redemption pursuant to Article 3 hereof and the Company irrevocably
deposits with the Trustee funds sufficient to pay at maturity or upon redemption
all outstanding Notes, including interest thereon to maturity or such redemption
date (other than Notes replaced pursuant to Section 2.7), and if in either case
the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Sections 8.1(c), cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of this Indenture on demand
of the Company accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Company.
(b) Subject to Sections 8.1(c) and 8.2, the Company at any time may
terminate (i) all its Obligations under the Notes and this Indenture ("legal
defeasance option") or (ii) its obligations under Sections 4.2, 4.3, 4.4, 4.5,
4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, and 4.15 and the operation of
Sections 6.1(4), 6.1(5), 6.1(6), 6.1(7), 6.1(8), and 6.1(9) (but, in the case of
Sections 6.1(6) and (7), with respect only to Significant Subsidiaries) and the
limitations contained in Section 5.1(a)(iii) ("covenant defeasance option"). The
Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the Notes
may not be accelerated because of an Event of Default with respect thereto. If
the Company exercises its covenant defeasance option, payment of the Notes may
not be accelerated because of an Event of Default specified in Sections 6.1(4),
6.1(5), 6.1(6), 6.1(7), 6.1(8), and 6.1(9) (but, in the case of Sections 6.1(6)
and (7), with respect only to Significant Subsidiaries) or because of the
failure of the Company to comply with Section 5.1(a)(iii). If the Company
exercises its legal defeasance option or its covenant defeasance option, (i)
each Subsidiary Guarantor, if any, shall be released from all its obligations
with respect to its Subsidiary Guarantee, (ii) all rights of the Trustee or the
Holders under any of the Security Documents shall terminate and (iii) the
Company's obligations under Section 3.8 shall terminate.
Upon satisfaction of the conditions set forth in Section 8.2, the Trustee
shall acknowledge in writing the discharge of those obligations that the Company
terminates under the Indenture, the release of the Subsidiary Guarantees and the
termination of such rights under the Security Documents.
(c) Notwithstanding clauses (a) and (b) above, the Company's obligations in
Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 7.7 and 7.8 and in this Article 8 shall
survive until the Notes have been paid in full. Thereafter, the Company's
obligations in Sections 7.7, 8.4 and 8.5 shall survive.
SECTION 8.2. Conditions to Defeasance. The Company may exercise its legal
defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or Defeasance Obligations for the payment of principal of and interest on
the Notes to maturity or redemption, as the case may be;
44
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited Defeasance Obligations plus any deposited
money without investment will provide cash at such times and in such
amounts as will be sufficient to pay principal and interest when due on all
the Notes to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Sections 6.1(6) or (7) with respect to the
Company occurs which is continuing at the end of the period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the Company delivers to the Trustee an opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(6) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the Issue Date there has been a change in
the applicable Federal income tax law, in either case to the effect that,
and based thereon, such Opinion of Counsel shall confirm that, the Holders
will not recognize income, gain or loss for Federal income tax purposes as
a result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(8) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes as contemplated by this Article 8
have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article 3.
SECTION 8.3. Application of Trust Money. The Trustee shall hold in trust
money or Defeasance Obligations deposited with it pursuant to this Article 8. It
shall apply the deposited money and the money from Defeasance Obligations
through the Paying Agent and in accordance with this Indenture to the payment of
principal of and interest on the Notes.
SECTION 8.4. Repayment to Company. The Trustee and the Paying Agent shall
promptly turn over to the Company upon written request any excess money or
securities held by them at any time.
45
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years, and,
thereafter, Holders entitled to the money must look to the Company for payment
as general creditors.
SECTION 8.5. Indemnity for Government Obligations. The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against deposited Defeasance Obligations or the principal and
interest received on such Defeasance Obligations.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or Defeasance Obligations in accordance with this Article 8 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's Obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 8 until such time as the Trustee or Paying Agent is permitted to
apply all such money or Defeasance Obligations in accordance with this Article
8; provided, however, that, if the Company has made any payment of interest on
or principal of any Notes because of the reinstatement of its Obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or Defeasance Obligations held by the
Trustee or Paying Agent.
ARTICLE 9.
Amendments
SECTION 9.1. Without Consent of Holders. The Company and the Trustee may
amend this Indenture or the Notes without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency, provided
such action pursuant to this Section 9.1(1) shall not adversely affect the
interests of the Holders in any material respect;
(2) to comply with Article 5;
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes; provided, however, that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code or in
a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code;
(4) to add guarantees with respect to the Notes, including any
Subsidiary Guarantees, or to secure the Notes or to release such guarantees
in accordance with the terms of Section 4.2;
(5) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(6) to comply with any requirements of the Commission in connection
with qualifying, or maintaining the qualification of, this Indenture under
the TIA; or
(7) to make any change that does not adversely affect the rights of
any Holder.
46
After an amendment under this Section becomes effective, the Company shall
mail to Holders a notice briefly describing such amendment. The failure to give
such notice to all Holders, or any defect therein, shall not impair or affect
the validity of an amendment under this Section.
The amendment of this Indenture as provided in this Section 9.1 may be
subject to certain restrictions and conditions contained in the BNY
Intercreditor and Subordination Agreement, if executed, and the Intercreditor
Agreement.
SECTION 9.2. With Consent of Holders. The Company and the Trustee may amend
this Indenture or the Notes without notice to any Holder but with the written
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding (including consents obtained in connection with a tender offer
or exchange for the Notes). However, without the consent of each Holder affected
thereby, an amendment may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Note;
(3) reduce the principal of or extend the Stated Maturity of any Note;
(4) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with
Article 3;
(5) make any Note payable in money other than that stated in the Note;
(6) make any change in Section 6.4 or 6.7 or the second sentence of
this Section; or
(7) make any change in any Subsidiary Guarantee that would adversely
affect the Holders.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company shall
mail to Holders a notice briefly describing such amendment. The failure to give
such notice to all Holders, or any defect therein, shall not impair or affect
the validity of an amendment under this Section.
The amendment of this Indenture as provided in this Section 9.2 may be
subject to certain restrictions and conditions contained in the BNY
Intercreditor and Subordination Agreement, if executed, and the Intercreditor
Agreements.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A consent to an
amendment or a waiver by a Holder of a Note shall bind the Holder and every
subsequent Holder of that Note or portion of the Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent
47
or waiver is not made on the Note. However, any such Holder or subsequent Holder
may revoke the consent or waiver as to such Holder's Note or portion of the Note
if the Trustee receives the notice of revocation before the date the amendment
or waiver becomes effective. After an amendment or waiver becomes effective, it
shall bind every Holder. An amendment or waiver becomes effective upon the
execution of such amendment or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to give their consent or take any
other action described above or required or permitted to be taken pursuant to
this Indenture. If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
give such consent or to revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 120 days after
such record date.
SECTION 9.5. Notation on or Exchange of Notes. If an amendment changes the
terms of a Note, the Trustee may require the Holder of the Note to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Note regarding
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Note shall issue and
the Trustee shall authenticate a new Note that reflects the changed terms.
Failure to make the appropriate notation or to issue a new security shall not
affect the validity of such amendment.
SECTION 9.6. Trustee To Sign Such Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee
under this Indenture or otherwise. If it does, the Trustee may but need not sign
it. In signing such amendment the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and to receive, and (subject to Section 7.1) shall
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
SECTION 9.7. Payment for Consent. Neither the Company nor any Affiliate of
the Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Notes unless such consideration is offered
to be paid to all Holders that so consent, waive or agree to amend (and, if
appropriate, tender their Notes) in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
48
ARTICLE 10.
Security
SECTION 10.1. Security Documents.
The due and punctual payment of the principal and premium, if any, of, and
interest on, the Notes when and as the same shall be due and payable, by
acceleration, repurchase, redemption or otherwise, interest on the overdue
principal of and interest (to the extent permitted by law), if any, on the Notes
and under this Indenture, and performance of all other Obligations shall be
secured as provided in the Security Documents.
The Trustee, the Company and the Subsidiary Guarantors hereby consent and
agree that, with respect to that portion of the Collateral in which the security
interest is being perfected by possession, the each and/or all of the Senior
Creditors shall hold the Collateral for the benefit of the Trustee in accordance
with the terms of the Intercreditor Agreements, for the purpose of perfecting
the Trustee's security interest therein for so long as any obligations or
commitments are outstanding under any of the Senior Loan Documents.
The Company shall, and shall cause each of its Restricted Subsidiaries to,
do or cause to be done all such acts and things as may be necessary or proper,
or as may be required by the provisions of the Security Documents, to assure and
confirm to the Collateral Agent the security interest in the Collateral
contemplated hereby and by the Security Documents, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the Notes secured hereby and thereby, according to the
intent and purposes herein and therein expressed. The Company shall, and shall
cause each of its Restricted Subsidiaries to, take, upon request of the Trustee
or the Collateral Agent, any and all actions required to cause the Security
Documents to create and maintain, as security for the Obligations, valid and
enforceable, perfected (except as expressly provided herein or therein), Liens
in and on all the Collateral, in favor of the Collateral Agent, superior to and
prior to the rights of all third Persons, and subject to no other Liens, other
than as provided herein and therein.
Each Holder of a Note, by its acceptance thereof, consents and agrees to
the terms of the Security Documents and the Intercreditor Agreements (including,
without limitation, the provisions providing for the foreclosure and release of
Collateral and indemnification of the Collateral Agent) as the same may be in
effect or may be amended from time to time in accordance with their terms, and
authorizes and directs (i) the Collateral Agent, with respect to each of the
Security Documents, and (ii) the Trustee, with respect to the Intercreditor
Agreements, to perform their respective obligations and exercise their
respective rights thereunder in accordance therewith; provided that upon
qualification of this Indenture with the TIA, if any provision of the
Intercreditor Agreements limits, qualifies or conflicts with the duties imposed
by the provisions of the TIA, the TIA shall control.
SECTION 10.2. Opinions of Counsel.
To the extent required by the TIA, the Company shall furnish to the Trustee
on the Issue Date and within ten days after each anniversary of the Issue Date,
an Opinion of Counsel, dated as of such date, stating either that (i) in the
opinion of such counsel, all action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and refiling of all
supplemental indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Liens of the
Security Documents and reciting the details of such action or (ii) in the
opinion
49
of such counsel, no such action is necessary to effect and maintain the validity
and perfection of such Liens in full force and effect.
SECTION 10.3. Release and Substitution of Collateral.
(a) Subject to subsections (b) and (c) of this Section 10.3, (i) in the
event that any Collateral is sold, transferred or otherwise disposed of in an
Asset Disposition (including the application of Insurance Proceeds) or any other
transaction permitted by this Indenture, such Collateral shall, concurrently
with the disposition of such Collateral automatically be released from the Lien
of the relevant Security Documents and (ii) the Company and its Subsidiaries may
(but shall not be required to) from time to time substitute property or
securities released from the Lien of the Security Documents in connection with
the sale, transfer or other disposition thereof for other property or securities
to be subjected to the Lien of the Security Documents, in each case in
accordance with the provisions of the Security Documents and as provided hereby.
(b) Except as otherwise provided for in the Intercreditor Agreements, at
any time when an Event of Default shall have occurred and be continuing and the
maturity of the Notes shall have been accelerated (whether by declaration or
otherwise) and such acceleration shall not have been rescinded or annulled, no
release of Collateral pursuant to the provisions of this Indenture or of the
Security Documents shall be effective as against the Holders of the securities
without the consent of the Collateral Agent. The Trustee shall promptly notify
the Collateral Agent of any rescission or annulment, pursuant to Section 6.4
hereof, of an acceleration of the Notes.
(c) The release of any Collateral from the terms of the Security Documents
will not be deemed to impair the security under this Indenture in contravention
of the provisions hereof if and to the extent the Collateral is released
pursuant to the Security Documents. At all time after qualification of this
Indenture under the TIA, to the extent applicable, the Company shall cause TIA
Section 314(d) relating to the release of property or securities from the Lien
of the Security Documents and relating to the substitution therefor of any
property or securities to be subjected to the Lien of the Security Documents to
be complied with. Any certificate or opinion required by TIA Section 314(d) may
be made by Officers of the Company, except in cases where TIA Section 314(d)
requires that such certificate or opinion be made by an independent Person,
which Person shall be an independent engineer, appraiser or other expert
selected or approved by the Trustee in the exercise of reasonable care.
SECTION 10.4. Certificates of the Company.
The Company shall furnish to the Trustee prior to each proposed release of
Collateral all documents required by TIA Section 314(d). The Trustee may, to the
extent permitted by Sections 7.1 and 7.2 hereof, accept as conclusive evidence
of compliance with the foregoing provisions the appropriate statements contained
in such instruments. Any certificate or opinion required by TIA Section 314(d)
may be made by Officers of the Company except in cases where TIA Section 314(d)
requires that such certificate or opinion be made by an independent engineer,
appraiser or other such expert within the meaning of TIA Section 314(d).
SECTION 10.5. Authorization of Actions to be Taken by the Trustee Under the
Security Documents.
Subject to the provisions of the Security Documents and the Intercreditor
Agreements, the Trustee may, in its sole discretion and without the consent of
the Holders, take all actions it deems
50
necessary or appropriate in order to (a) enforce any of the terms of the
Security Documents and (b) collect and receive any and all amounts payable in
respect of the Obligations. The Trustee shall have the power to institute and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts that may be unlawful or in violation of
the Security Documents or to preserve or protect its interest and the interests
of the Holders in the Collateral (including power to institute and maintain
suits or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of or compliance with
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders or the Trustee).
SECTION 10.6. Authorization of Receipt of Funds by the Trustee Under the
Security Documents.
The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Security Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture and the Security Documents.
SECTION 10.7. Release upon Termination of the Obligations.
(a) If (i) the Company delivers Officers' Certificates certifying that all
of its Obligations under this Indenture have been indefeasibly satisfied and
discharged by complying with the provisions of Article 8 or (ii) all outstanding
Notes issued under this Indenture shall be surrendered to the Trustee for
cancellation and an Opinion of Counsel that the delivery of such a notice is
authorized, the Trustee shall deliver to the Collateral Agent a notice stating
that the Trustee, for itself and on behalf of the Holders, disclaims and has
given up any and all rights it has in or to the Collateral, and any rights it
has under the Security Documents, and, upon and after the receipt by the
Collateral Agent of such notice, the Collateral Agent shall no longer be deemed
to hold the Lien in the Collateral on behalf of the Trustee for the benefit of
itself and the Holders.
(b) Any release of Collateral made in compliance with this Section 10.7
shall not be deemed to impair the Lien under the Security Documents or the
Collateral thereunder in contravention of the provisions of this Indenture or
the Security Documents.
SECTION 10.8. Aladdin Transaction; Subordination of BNY Collateral and
Grant of Additional Collateral. The Aladdin Purchase and Sale Agreement provides
that OpBiz shall purchase the Aladdin Complex from Aladdin. The consummation of
the Aladdin Transactions is contingent upon the occurrence of certain events,
including, without limitation, approval by the United States Bankruptcy Court
for the District of Nevada, Southern Division. It is understood that the Aladdin
Licensing Agreements and the BNY Security and Subordination Agreements will
become effective only in the event the Aladdin Purchase and Sale Agreement is
closed and the Aladdin Transactions are consummated. In such event, it is agreed
that the Trustee shall enter into the BNY Intercreditor and Subordination
Agreement, and the Trustee is hereby directed to do so at such time as the
Trustee receives written direction from the Company signed by two (2) Officers
and an Opinion of Counsel, both the written direction and the Opinion of Counsel
in form and substance as provided in Section 12.4 of this Indenture. In
furtherance of the foregoing, the security interest of BNY in the BNY Collateral
shall then be deemed for all purposes to have a priority senior to the security
interest in the BNY Collateral of the Trustee, the Collateral Agent and the
Holders hereunder. In consideration for such subordination, the Company will,
concurrently therewith, enter into the Aladdin Licensing Fees Security
Agreement, whereby it shall pledge, as additional Collateral hereunder, the
Aladdin Licensing Fees. It is understood
51
and agreed that all actions to be taken by the Company, the Trustee and the
Collateral Agent pursuant to this Section 10.8, including, without limitation,
the execution and delivery of the BNY Intercreditor and Subordination Agreement
and the Aladdin Licensing Fees Security Agreement, shall not require the consent
or approval of the Holders.
SECTION 10.9. Incurrence of Replacement Debt; Subordination to Replacement
Debt. The CIT/WLR Credit Agreement has a Stated Maturity of August 29, 2003. It
is anticipated that the Company will seek replacement financing for the CIT/WLR
Debt, with it being understood that such replacement financing may have a
revolving credit facility component. It is also anticipated that, in connection
therewith, the Company may, but shall not be required to, additionally utilize
such financing or the proceeds thereof to satisfy, discharge, pay off and/or
otherwise replace any or all of the BH Debt, the DIP Debt and/or the Xxxxx Debt,
with the financing described in this Section 10.9 to collectively constitute the
"Replacement Credit Facility" (provided, that the maximum commitment thereunder
shall not exceed $20,000,000). It is further anticipated that the timely
repayment of the Replacement Debt and the performance of all of the Company's
obligations under the Replacement Credit Facility will be secured by a Lien in
the Collateral. In the event the Company obtains the Replacement Credit
Facility, it is understood and agreed that, notwithstanding anything to the
contrary contained herein, any Lien granted to the Replacement Lender pursuant
to the Replacement Credit Facility with respect to the Collateral shall have a
priority superior to the Lien granted in the Collateral for the benefit of the
Holders with respect to this Indenture, the Notes and the Obligations. It is
understood and agreed that any and all actions to be taken by the Company, the
Trustee and the Collateral Agent pursuant to this Section 10.9, including,
without limitation, (i) the discharge and satisfaction of any of the CIT/WLR
Debt, the BH Debt, the DIP Debt and/or the Xxxxx Debt with the proceeds of the
Replacement Credit Facility, (ii) the execution and delivery of any amendment to
the Intercreditor Agreement whereby the Replacement Lender is added or
substituted, as appropriate, as a priority secured party with respect to the
Collateral, (iii) the execution and delivery of the Replacement Credit Facility
and any and all instruments, documents and agreements collectively evidencing
the Replacement Debt, and (iv) the subordination of the Holders' Lien in the
Collateral to the Lien of the Replacement Lender, shall not require the consent
or approval of the Holders, and the Trustee is hereby authorized to execute any
and all documents, instruments and agreements in connection therewith upon
receiving written direction from the Company signed by two (2) Officers and an
Opinion of Counsel, both the written direction and the Opinion of Counsel in
form and substance as provided in Section 12.4 of this Indenture.
ARTICLE 11.
Subsidiary Guarantees
SECTION 11.1. Guarantees. Each Subsidiary Guarantor hereby unconditionally
and irrevocably guarantees, jointly and severally, to each Holder and to the
Trustee and its successors and assigns (a) the full and punctual payment of
principal of and interest on the Notes when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under this Indenture and the securities and (b) the full and
punctual performance within applicable grace periods of all other obligations of
the Company under this Indenture and the Notes (all the foregoing being
hereinafter collectively called the "Obligations"). Each Subsidiary Guarantor
further agrees that the Obligations may be extended or renewed, in whole or in
part, without notice or further assent from such Subsidiary Guarantor and that
such Subsidiary Guarantor will remain bound under this Article 11
notwithstanding any extension or renewal of any Obligation.
52
Each Subsidiary Guarantor waives presentation to, demand of, payment from
and protest to the Company of any of the Obligations and also waives notice of
protest for nonpayment. Each Subsidiary Guarantor waives notice of any default
under the Notes or the Obligations. The Obligations of each Subsidiary Guarantor
hereunder shall not be affected by (a) the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Notes or any other
agreement or otherwise; (b) any extension or renewal of any thereof; (c) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Notes or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Obligations or any of them;
(e) the failure of any Holder or the Trustee to exercise any right or remedy
against any other guarantor of the Obligations; or (f) any change in the
ownership of the Company.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
herein constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of
the Obligations.
Except as expressly set forth in Sections 8.1(b), 11.2 and 11.6, the
Obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
Obligations of each Subsidiary Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Notes or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay, willful or otherwise, in the performance of the
Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
such Subsidiary Guarantor or would otherwise operate as a discharge of such
Subsidiary Guarantor as a matter of law or equity.
Each Subsidiary Guarantor further agrees that its Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right
which any Holder or the Trustee has at law or in equity against any Subsidiary
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of or interest on any Obligation when and as the same shall become due, whether
at maturity, by acceleration, by redemption or otherwise, or to perform or
comply with any other Obligation, each Subsidiary Guarantor hereby promises to
and will, upon receipt of written demand by the Trustee, forthwith pay, or cause
to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of
(i) the unpaid amount of such Obligations, (ii) accrued and unpaid interest on
such Obligations (but only to the extent not prohibited by law) and (iii) all
other monetary Obligations to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that, as between it, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
Obligations Guaranteed hereby may be accelerated as provided in Article 6 for
the purposes of such Subsidiary Guarantor's Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the
53
Obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such Obligations as provided in Article 6, such Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section.
Each Subsidiary Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys, fees and expenses) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
SECTION 11.2. Limitation on Liability. Any term or provision of this
Indenture to the contrary notwithstanding, the maximum, aggregate amount of the
Obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed
the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
SECTION 11.3. Successors and Assigns. This Article 11 shall be binding upon
each Subsidiary Guarantor and its successors and assigns and shall ensure to the
benefit of the successors and assigns of the Trustee and the Holders and, in the
event of any transfer or assignment of rights by any Holder or the Trustee, the
rights and privileges conferred upon that party in this Indenture and in the
Notes shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 11.4. No Waiver. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 11 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 11 at law,
in equity, by statute or otherwise.
SECTION 11.5. Modification. No modification, amendment or waiver of any
provision of this Article 11, nor the consent to any departure by any Subsidiary
Guarantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Subsidiary Guarantor in any case shall entitle such
Subsidiary Guarantor to any other or further notice or demand in the same,
similar or other circumstances.
SECTION 11.6. Release of Subsidiary Guarantor. Upon the sale or other
disposition (including by way of consolidation or merger) of a Subsidiary
Guarantor or the sale or disposition of all or substantially all the assets of
such Subsidiary Guarantor (in each case other than to the Company or an
Affiliate of the Company), such Subsidiary Guarantor shall be deemed released
from all Obligations under this Article 11 without any further action required
on the part of the Trustee or any Holder. At the request of the Company, the
Trustee shall execute and deliver an appropriate instrument evidencing such
release.
54
ARTICLE 12.
Miscellaneous
SECTION 12.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 12.2. Notices. Any request, demand, authorization, direction,
notice, consent, or waiver or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any Subsidiary
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee and received at its
office at SouthTrust Bank, Mail Code A-001-OB-0201, X.X. Xxx 0000,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust Department,
Facsimile: (000) 000-0000, or
(2) the Company or any Subsidiary Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it Planet Hollywood International,
Inc., 0000 X. Xxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Chief
Financial Officer, or at any other address previously furnished in writing
to the Trustee by the Company.
Any notice or communication mailed to a Holder shall be mailed, first-class
postage prepaid, to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION 12.3. Communication by Holders with Other Holders. Holders may
communicate pursuant to TIA (S) 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA (S) 312(c).
SECTION 12.4. Certificate and opinion as to Conditions Precedent. Upon any
request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel upon which the Trustee may rely and in form
and substance reasonably satisfactory to the Trustee stating that, in the
opinion of such counsel, all such conditions precedent have been complied
with.
55
SECTION 12.5. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 12.6. When Notes Disregarded. In determining whether the Holders of
the required principal amount of Notes have concurred in any direction, waiver
or consent, Notes owned by the Company or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company shall be disregarded and deemed not to be outstanding, except that, for
the purpose of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes which a Trust Officer of the
Trustee actually knows are so owned shall be so disregarded. Also, subject to
the foregoing, only Notes outstanding at the time shall be considered in any
such determination.
SECTION 12.7. Rules by Trustee, Paying Agent and Registrar. The Trustee may
make reasonable rules for action by or a meeting of Holders. The Registrar and
the Paying Agent may make reasonable rules for their functions.
SECTION 12.8. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or
a day on which banking institutions are not required to be open in the State of
Alabama or Florida. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 12.9. Governing Law; Consent to Jurisdiction; Waiver of Immunities.
(a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICT OF
LAWS RULES.
(b) THE COMPANY AND EACH SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF ANY FLORIDA STATE OR FEDERAL COURT SITTING IN ORANGE COUNTY
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
NOTES, AND THE COMPANY AND EACH SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY AGREE
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH FLORIDA STATE OR FEDERAL COURT. EACH SUBSIDIARY GUARANTOR
HEREBY IRREVOCABLY APPOINTS THE COMPANY (THE "PROCESS AGENT"), WITH AN OFFICE ON
THE DATE
56
HEREOF AT 0000 X. XXXX XXXX XXXX, XXXXXXX, XXXXXXX 00000, AS ITS AGENT TO
RECEIVE ON BEHALF OF EACH SUBSIDIARY GUARANTOR AND ITS PROPERTY SERVICE OF
COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN
ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING (BY CERTIFIED
OR REGISTERED MAIL, POSTAGE PREPAID AND RETURN RECEIPT REQUESTED) OR DELIVERING
A COPY OF SUCH PROCESS TO EACH SUBSIDIARY GUARANTOR IN CARE OF THE PROCESS AGENT
AT THE PROCESS AGENT'S ABOVE ADDRESS, AND EACH SUBSIDIARY GUARANTOR HEREBY
IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON
ITS BEHALF. THE COMPANY AND EACH SUBSIDIARY GUARANTOR AGREE THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
(c) The Company and each Subsidiary Guarantor hereby expressly and
irrevocably waive, to the fullest extent permitted by law, any objection which
they may now or hereafter have to the laying of venue of any such litigation
brought in any such court referred to above and any claim that any such
litigation has been brought in an inconvenient forum. To the extent that a
Subsidiary Guarantor has or hereafter may acquire any immunity from jurisdiction
of any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or otherwise) with
respect to itself or its property, such Subsidiary Guarantor hereby irrevocably
waives such immunity in respect of its Obligations under this Indenture.
SECTION 12.10. No Recourse Against Others. Any past, present or future
director, officer, partner (including any general partner) employee,
incorporator or stockholder, as such, of the Company shall not have any
liability for any Obligations of the Company under the Notes or this Indenture
or for any claim based on, in respect of or by reason of such Obligations or
their creation. By accepting a Note, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for
the issue of the Notes.
SECTION 12.11. Successors. All agreements of the Company in this Indenture
and the Notes shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 12.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 12.13. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 12.14. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture. IN WITNESS WHEREOF,
the parties have caused this Indenture to be duly executed as of the date first
written above.
PLANET HOLLYWOOD INTERNATIONAL, INC.
57
By
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
SUBSIDIARY GUARANTORS
PLANET HOLLYWOOD MEMORABILIA, INC.
ALL STAR CAFE INTERNATIONAL, INC.
ALL STAR CAFE (NEW YORK), INC.
PLANET HOLLYWOOD (ATLANTIC CITY), INC.
PLANET HOLLYWOOD (HONOLULU), INC.
PLANET HOLLYWOOD (NEW YORK CITY), INC.
PLANET HOLLYWOOD (NEW YORK), LTD.
By: Planet Hollywood International,
Inc., a General Partner
PLANET HOLLYWOOD (ORLANDO) INC.
PLANET HOLLYWOOD (REGION II), INC.
PLANET HOLLYWOOD (REGION IV), INC.
PLANET HOLLYWOOD (REGION VI), INC.
On behalf of each of the above
Subsidiary Guarantors
By:
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
TRUSTEE
SOUTHTRUST BANK, as Trustee
By
-------------------------------------
Name:
Title:
58
Exhibit A
[The face of the Notes shall be substantially as follows:]
THIS NOTE IS SUBJECT TO THE INTERCREDITOR AND SUBORDINATION AGREEMENTS (AS SUCH
TERM IS DEFINED IN THE INDENTURE), WHICH MATERIALLY AFFECT CERTAIN PAYMENT
RIGHTS, SUBORDINATE CERTAIN OBLIGATIONS AND CERTAIN SECURITY INTERESTS AND
LIENS, AND LIMIT RIGHTS TO ENFORCEMENT OF THE HOLDER OF THIS NOTE. ALL PERSONS
OR OTHER ENTITIES WHICH AT ANY TIME HOLD THIS NOTE HEREBY ARE BOUND BY THE TERMS
OF THE INTERCREDITOR AGREEMENTS, WHICH WILL BE MADE AVAILABLE BY THE COMPANY
UPON REQUEST TO ANY SUCH HOLDER.
THE PRINCIPAL AMOUNT OF THIS NOTE MAY BE INCREASED FROM THE PRINCIPAL AMOUNT SET
FORTH BELOW IF THE COMPANY ELECTS TO DEFER ONE OR MORE INTEREST PAYMENTS and TO
compound such amount OR AMOUNTS to principal. IF THE COMPANY ELECTS TO DEFER ONE
OR MORE INTEREST PAYMENTS and TO compound such amount OR AMOUNTS to principal,
THIS NOTE WILL NOT BE REISSUED OR ALTERED TO REFLECT THE THEN CURRENT PRINCIPAL
AMOUNT OF THIS NOTE; PROVIDED, HOWEVER, THAT THE NOTE SHALL, UPON TRANSFER OR
EXCHANGE OF THE NOTE AS PERMITTED IN THE INDENTURE, BE ALTERED TO REFLECT THE
THEN CURRENT PRINCIPAL AMOUNT OF THE NOTE. IN THE INDENTURE, THE COMPANY (AS
HEREINAFTER DEFINED) HAS AGREED TO PROVIDE A COPY OF THE MOST RECENT NOTE
VALUATION REPORT (AS SUCH TERM IS DEFINED IN THE INDENTURE) SETTING FORTH, INTER
ALIA, THE CURRENT PRINCIPAL AMOUNT OF THIS NOTE TO ANY PERSON OR OTHER ENTITY
WHICH HOLDS THIS NOTE AND WHICH MAKES A WRITTEN REQUEST OF THE COMPANY FOR A
COPY OF THE MOST RECENT NOTE VALUATION REPORT.
PLANET HOLLYWOOD INTERNATIONAL, INC.
9% Secured Deferrable Interest Notes Due March 31, 2010.
No. $ Principal Amount
---------- -------------
Interest Payment Dates: January 1, April 1, July 1, and October 1
of each year, commencing January 1, 2004
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
defined), for value received, hereby promises to pay to
, or registered assigns, the Principal Amount set forth
------------------------
above (as the same may be increased through the compounding of deferred interest
as provided in the third paragraph hereof) on March 31, 2010, 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, quarterly on each
Interest Payment
Date in each year, at the rate of 9% per annum on the principal amount, until
the principal hereof is paid or duly provided for.
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 is registered at the close of business on the
fifteenth day of the calendar month (whether or not a Business Day) next
preceding such Interest Payment Date.
Notwithstanding the foregoing, in the event the Company determines, with
respect to any Interest Payment Date, that it has insufficient funds to timely
pay the entire amount of the interest payment due on such Interest Payment Date,
the Company may elect to defer such amount, and compound such amount (rounded to
the nearest $1.00 with respect to any Holder) to principal, by providing written
notice of such election to the Trustee at least 10 days prior to, but no more
than 45 days prior to, the record date for the applicable Interest Payment Date;
provided, however, that the Company, if it makes such an election to defer
interest when due, shall defer all interest due on such Interest Payment Date
and may not defer only a portion of any interest due on such Interest Payment
Date. Such election shall be accompanied by a statement, certified by an
Officer, that the Company has determined that it has insufficient funds to make
such interest payment. Upon receipt thereof from the Company, the Trustee shall
promptly after the record date for the related Interest Payment Date provide a
copy of such election to all Holders of the Notes who are registered Holders as
of the record date for the related Interest Payment Date. In the event that
interest on the Notes is deferred and compounded to principal pursuant to the
foregoing: (i) such obligation of the Company to the Holder shall be evidenced
as additional principal under this Note solely by memo entry recordation on the
Company's books and records; (ii) such amount shall become due and payable on
March 31, 2010, consistent with the original principal amount owing under this
Note, (iii) interest shall accrue on such additional principal at the rate of 9%
per annum, and shall be due and payable on each subsequent Interest Payment Date
so long as such additional principal remains outstanding; (iv) interest so
accrued on such amount may be deferred and compounded to principal as provided
in the foregoing provisions of this paragraph; (v) any such additional
principal, as so evidenced by memo entry recordation, shall not be detachable or
otherwise severable from this Note, and (vi) the Company's obligation evidencing
such additional principal (and the Holder's right to receive payment thereof)
shall not be transferable, assignable or otherwise alienable independent of or
severally from this Note.
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 , 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.
-2-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PLANET HOLLYWOOD INTERNATIONAL, INC.
By
-------------------------------------
Title:
Dated:
-3-
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
SouthTrust Bank, as Trustee, certifies that this is one of the 9% Secured
Deferrable Interest Notes Due March 31, 2010 referred to in the Indenture dated
as of March 31, 2003 among Planet Hollywood International, Inc., the Subsidiary
Guarantors party thereto and the Trustee.
By
-------------------------------------
Authorized Signatory
-4-
[Form of Reverse of Note:]
This Note is one of a duly authorized issue of Notes of the Company
designated as its 9% Secured Deferrable Interest Notes Due March 31, 2010
(herein called the "Notes"), limited in aggregate principal amount to
$20,000,000, issued and to be issued under an Indenture, dated as of March 31,
2003 (herein called the "Indenture", which term shall have the meaning assigned
to it in such instrument), between the Company and SouthTrust Bank, 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 the 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, 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 April 1, July 1, October 1 or January 1
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.
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 50% 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
-2-
(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 , , 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 in integral multiples of $1.00 in excess thereof;
provided, however, that, any Notes registered in the name of the Company will be
in denominations of $1.00 and in integral multiples 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.
In the event any provision in this Note shall conflict with any provision
in the Indenture, the provision in the Indenture shall govern.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF FLORIDA, WITHOUT REGARD TO CONFLICT OF LAWS RULES.
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY FLORIDA
STATE OR FEDERAL COURT SITTING IN ORANGE COUNTY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS NOTE, AND THE COMPANY HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH FLORIDA STATE OR FEDERAL COURT. THE
-3-
COMPANY AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
The Company hereby expressly and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any such litigation brought in any such court referred to above and
any claim that any such litigation has been brought in an inconvenient forum.
-4-
[FORM OF GUARANTEE]
THIS GUARANTEE IS SUBJECT TO THE INTERCREDITOR AND SUBORDINATION AGREEMENTS (AS
DEFINED IN THE INDENTURE) WHICH MATERIALLY AFFECT CERTAIN PAYMENT RIGHTS,
SUBORDINATES CERTAIN OBLIGATIONS AND CERTAIN SECURITY INTERESTS AND LIENS, AND
LIMIT RIGHTS TO ENFORCEMENT OF THE HOLDER OF THIS GUARANTEE. ALL PERSONS OR
OTHER ENTITIES WHICH AT ANY TIME HOLD INDEBTEDNESS GUARANTEED HEREBY ARE BOUND
BY THE TERMS OF THE INTERCREDITOR AGREEMENT, WHICH WILL BE MADE AVAILABLE UPON
REQUEST TO ANY SUCH HOLDER.
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 Agreements, 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
the 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 noted
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 from their obligations under the Indenture.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICT OF LAWS RULES.
EACH SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY FLORIDA STATE OR FEDERAL COURT SITTING IN ORANGE COUNTY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE, AND EACH SUBSIDIARY
GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH FLORIDA STATE OR FEDERAL COURT.
EACH SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY APPOINTS PLANET HOLLYWOOD
INTERNATIONAL, INC. (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT
0000 X. XXXX XXXX XXXX,
-0-
XXXXXXX, XXXXXXX 00000, AS ITS AGENT TO RECEIVE ON BEHALF OF EACH SUBSIDIARY
GUARANTOR AND ITS PROPERTY SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND
ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH
SERVICE MAY BE MADE BY MAILING (BY CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID
AND RETURN RECEIPT REQUESTED) OR DELIVERING A COPY OF SUCH PROCESS TO EACH
SUBSIDIARY GUARANTOR IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT'S ABOVE
ADDRESS, AND EACH SUBSIDIARY GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS
THE PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. EACH SUBSIDIARY
GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
Each Subsidiary Guarantor hereby expressly and irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such litigation brought in any such court
referred to above and any claim that any such litigation has been brought in an
inconvenient forum. To the extent that a Subsidiary Guarantor has or hereafter
may acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to itself or its
property, such Subsidiary Guarantor hereby irrevocably waives such immunity in
respect of its obligations under this Guarantee.
[The signature page follows.]
-6-
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this instrument to
be duly executed.
PLANET HOLLYWOOD MEMORABILIA, INC.
ALL STAR CAFE INTERNATIONAL, INC.
ALL STAR CAFE (NEW YORK), INC.
PLANET HOLLYWOOD (ATLANTIC CITY), INC.
PLANET HOLLYWOOD (HONOLULU), INC.
PLANET HOLLYWOOD (NEW YORK CITY), INC.
PLANET HOLLYWOOD (NEW YORK), LTD.
By: Planet Hollywood International,
Inc., a General Partner
PLANET HOLLYWOOD (ORLANDO) INC.
PLANET HOLLYWOOD (REGION II), INC.
PLANET HOLLYWOOD (REGION IV), INC.
PLANET HOLLYWOOD (REGION VI), INC.
On behalf of each of the above
Subsidiary Guarantors
By:
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
-7-
ASSIGNMENT FORM
To assign this Note and Guarantee (this "Security"), fill in the form
below: (I) or (we) assign and transfer this Security to:
-----------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-----------------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint:
-----------------------------------------------------
agent to transfer this Security 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 Security)
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 Security Registrar in addition to, or
in substitution for, STAMP, SEMP or MSP, all in accordance with the
Securities Exchange Act of 1934, as amended.)
-8-
