Draft
Exhibit E
to Indenture
THIS AGREEMENT IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION AGREEMENT DATED
OF EVEN DATE HEREWITH BY AND AMONG THE CIT GROUP/BUSINESS CREDIT, INC., AS AGENT
FOR THE LENDERS UNDER THE REVOLVING CREDIT AGREEMENT, WILMINGTON TRUST COMPANY,
AS AGENT UNDER THE SENIOR NOTE PURCHASE AGREEMENT, UNITED STATES TRUST COMPANY
OF NEW YORK, AS TRUSTEE UNDER THE INDENTURE, AND CONSENTED TO BY THE HOLDERS
SIGNATORY THERETO, WHICH MATERIALLY AFFECTS CERTAIN PAYMENT RIGHTS, SUBORDINATES
CERTAIN OBLIGATIONS AND CERTAIN SECURITY INTERESTS, AND LIMITS RIGHTS TO
ENFORCEMENT. ALL PERSONS OR OTHER ENTITIES WHICH AT ANY TIME HOLD INDEBTEDNESS
UNDER THIS AGREEMENT ARE BOUND BY THE TERMS OF SUCH INTERCREDITOR AGREEMENT
WHICH WILL BE MADE AVAILABLE UPON REQUEST.
FORM OF PLEDGE AGREEMENT
PLEDGE AND SECURITY AGREEMENT dated as of March __, 2000, made by
Planet Hollywood International, Inc., a Delaware corporation, All Star Cafe
International, Inc., a Florida corporation, Cool Planet, Inc., a Florida
corporation, OFFICIAL ALL STAR CAFE, INC., a Nevada corporation, PLANET
HOLLYWOOD (CHEFS), INC., a Florida corporation, PLANET HOLLYWOOD (LONDON), INC.,
a Florida corporation, Planet Hollywood (LP), Inc., a Nevada corporation, Planet
Hollywood (New York City), Inc., a Florida corporation, PLANET HOLLYWOOD
(PARIS), INC., a Florida corporation, Planet Hollywood (Region V), Inc., a Texas
corporation, PLANET HOLLYWOOD (TEL AVIV), INC., a Florida corporation, PLANET
HOLLYWOOD (THEATRES), INC., a Florida corporation, PLANET HOSPITALITY HOLDINGS,
INC., a Florida corporation, SOUND REPUBLIC, INC., a Florida corporation, PLANET
HOLLYWOOD (ORLANDO), INC., a Florida corporation, Planet Hollywood (Region IV),
Inc., a Minnesota corporation, Planet Hollywood (Region VI), Inc., a Nevada
corporation, PLANET HOLLYWOOD NEW YORK LTD., a Florida limited partnership,
SILVER BRACELETS, INC., a Nevada corporation, and PLANET HOLLYWOOD (TROCADERO),
L.C., a Florida corporation (collectively, and jointly and severally, the
"PLEDGORS" and each individually, a "PLEDGOR"), in favor of UNITED STATES TRUST
COMPANY OF NEW YORK, as trustee and collateral agent (the "AGENT") under that
certain Indenture (such Indenture, as amended or otherwise modified from time to
time, the "INDENTURE"), dated as of the date hereof, among Planet Hollywood
International, Inc., the parties whose names and signatures appear on the
signature pages thereto under the heading "Subsidiary Guarantors" and the Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, each Grantor will receive substantial direct and indirect
benefits from the Company and the Agent entering into the Indenture and the
Holders accepting the Notes as contemplated thereby;
WHEREAS, it is a condition precedent to the effectiveness of the
Indenture that the Pledgors shall have executed and delivered to the Agent a
pledge and security agreement providing for the pledge to the Agent of, and the
grant to the Agent of a security interest in, (i) certain indebtedness from time
to time owing to the Pledgors, (ii) one hundred percent (100%) by number all of
the issued and outstanding shares of capital stock of the Domestic Pledged
Subsidiaries (as defined herein) from time to time owned by the Pledgors, and
(iii) sixty six and two thirds percent (66.66%) by number all of the issued and
outstanding shares of capital stock of the Foreign Pledged Subsidiaries (as
defined herein) from time to time owned by the Pledgors;
WHEREAS, the Pledgors have determined that the execution, delivery and
performance of this Agreement directly benefits, and is in the best interest of
the Pledgors;
NOW, THEREFORE, in consideration of the premises and the agreements
herein and of other good and valuable consideration, each Pledgor hereby agrees
with the Agent as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, capitalized terms
used herein without definition have the meanings specified in the Indenture or
if not defined in the Indenture, then in Article 8 or Article 9 of the Uniform
Commercial Code (the "CODE") currently in effect in the State of New York, and
the following terms have the following meanings:
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect upon
(i) the business, operations, condition (financial or otherwise), properties of
the Company or Planet Hollywood Memorabilia, Inc. individually or the Company
and the Subsidiary Guarantors as a whole, (ii) the ability of the Company or
Planet Hollywood Memorabilia, Inc. individually or the Company and the
Subsidiary Guarantors as a whole to perform their obligations hereunder or under
the Indenture, (iii) the legality, validity or enforceability of this Agreement,
the Notes or the Indenture, or (iv) saleability or the value of the Memorabilia
taken as a whole, as determined by a third party appraiser acceptable to the
Agent in its sole discretion.
SECTION 2. PLEDGE AND GRANT OF SECURITY INTEREST. As collateral
security for all of the Obligations (as defined in Section 3 hereof), each
Pledgor hereby pledges and collaterally assigns to the Agent, and grants to the
Agent a continuing security interest in, the following (collectively, the
"PLEDGED COLLATERAL"):
(a) the indebtedness described in Schedule I hereto (with a separate
Schedule I to be prepared for each Pledgor) and all indebtedness acquired in the
future (the "PLEDGED DEBT"), the promissory notes and other instruments
evidencing the Pledged Debt, and all interest, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Debt;
(b) the shares of stock, partnership interests, membership interests
and all other equity interests now or hereafter owned that is issued by any
corporation, partnership, limited liability company, trust or any other Person
formed in the United States, whether or not evidenced or represented by any
stock certificate, certificated security or any other instrument, including,
without limitation, the shares of stock, partnership interests and membership
interests set forth in Schedule II hereto (with a separate Schedule II to be
prepared for each Pledgor) (individually, a "DOMESTIC PLEDGED SECURITY" and
collectively, the "DOMESTIC PLEDGED SECURITIES") issued by ALL STAR CAFE
INTERNATIONAL, INC., a Florida corporation, ALL STAR CAFE (NEW YORK), INC., a
Florida corporation, COOL PLANET, INC., a Florida corporation, COOL PLANET II,
INC., a Florida corporation, PLANET HOLLYWOOD (ATLANTIC CITY), INC., a Florida
corporation, PLANET HOLLYWOOD (HONOLULU), INC., a Florida corporation, PLANET
HOLLYWOOD (LP), INC., a Nevada corporation, PLANET HOLLYWOOD MEMORABILIA INC., a
Florida corporation, PLANET HOLLYWOOD NEW YORK, LTD., a Florida corporation,
PLANET HOLLYWOOD (NEW YORK CITY), INC., a Florida corporation, PLANET HOLLYWOOD
(ORLANDO), INC., a Florida corporation, PLANET HOLLYWOOD (REGION II), INC., a
Florida corporation, Planet Hollywood (Region III), a Florida corporation,
PLANET HOLLYWOOD (REGION IV), INC., a Minnesota corporation, PLANET HOLLYWOOD
(REGION V), INC., a Texas corporation, PLANET HOLLYWOOD (REGION VI), INC., a
Nevada corporation, PLANET HOLLYWOOD (REGION VII), INC., a Florida corporation,
PLANET HOLLYWOOD (TEXAS), LTD., a Texas limited partnership, and PLANET
HOLLYWOOD (WAREHOUSE), INC., a Florida corporation, MEANT 2 BE, INC., a Nevada
corporation, OFFICIAL ALL STAR CAFE, INC., a Nevada corporation, PLANET
HOLLYWOOD (LONDON), INC., a Florida corporation, PLANET HOLLYWOOD (PARIS), INC.,
a Florida corporation, PLANET HOLLYWOOD (TEL AVIV), INC., a Florida corporation,
PLANET HOLLYWOOD (THEATRES), INC., a Florida corporation, PLANET HOSPITALITY
HOLDINGS, INC., a Florida corporation, SILVER BRACELETS, INC., a Florida
corporation, SOUND REPUBLIC, INC., a Florida corporation, 308 AVIATION, INC., a
Florida corporation, 308-III AVIATION, INC., a Florida corporation, ALL STAR
CAFE (LP), INC., a Nevada corporation, ALL STAR CAFE (REGION V), INC., a Texas
corporation, ALL STAR CAFE (REGION VII), INC., a Florida corporation, COOL
PLANET I, INC., a Florida corporation, EBCO MANAGEMENT, INC., a Florida
corporation, KARMALANNE, INC., a Nevada corporation, PLANET HOLLYWOOD (ASPEN),
INC., a Florida corporation, PLANET HOLLYWOOD (CHEFS), INC., a Florida
corporation, PLANET HOLLYWOOD (COSTA MESA), INC., a Florida corporation, PLANET
HOLLYWOOD (CHICAGO), INC., a Florida corporation, PLANET HOLLYWOOD (GAMING),
INC., a Florida corporation, PLANET HOLLYWOOD (MAIL ORDER), INC., a Florida
corporation, PLANET HOLLYWOOD (ORLANDO DISTRIBUTION), INC., a Florida
corporation, PLANET HOLLYWOOD (PHOENIX), INC., a Florida corporation, PLANET
HOLLYWOOD (REGION I), INC., a Florida corporation, PLANET HOLLYWOOD
TRANSPORTATION, INC., a Florida corporation, ROCKY PIT, INC., a Nevada
corporation, SOUND REPUBLIC I, INC., a Florida corporation, TEN ALPS, INC., a
Nevada corporation, Coast Licensing, Inc., a Nevada corporation, PLANET
HOLLYWOOD (FRANCE), L.C., a Florida corporation, PLANET HOLLYWOOD (ISRAEL),
L.C., a Florida corporation, and PLANET HOLLYWOOD (TROCADERO), L.C., a Florida
corporation (each a "DOMESTIC PLEDGED SUBSIDIARY" and collectively, the
"DOMESTIC PLEDGED SUBSIDIARIES"), the certificates representing the Domestic
Pledged Securities, all warrants, options and other rights, contractual or
otherwise, in respect thereof, and all dividends, interest, cash, instruments
and other property (including but not limited to, any stock dividend and any
distribution in connection with a stock split) from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Domestic Pledged Securities, including, without limitation, by way of
redemption, bonus, preference, option rights or otherwise;
(c) (i) all additional shares of stock, partnership interests,
membership interests and all other equity interests from time to time acquired
of any Domestic Pledged Subsidiary, (ii) the certificates representing such
additional shares, partnership interests, membership interests or other equity
interests, as the case may be, and (iii) all options and other rights,
contractual or otherwise, in respect thereof and all dividends, distributions,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
additional shares;
(d) the shares of stock, partnership interests, membership interests
and all other equity interests now or hereafter owned that are issued by any
corporation, partnership, limited liability company, trust or any other Person
formed in any jurisdiction other than within the United States, whether or not
evidenced or represented by any stock certificate, certificated security or any
other instrument, including, without limitation, the shares of stock,
partnership interests and membership interests set forth in Schedule III hereto
(with a separate Schedule III to be prepared for each Pledgor) (individually, a
"FOREIGN PLEDGED SECURITY" and collectively, the "FOREIGN PLEDGED SECURITIES"
and together with the Domestic Pledged Securities, the "PLEDGED SECURITIES")
issued by ECE, S.A. de C.V., an Italian corporation, Movie Restaurant
Verwaltungs GmbH, a German corporation, Movie Restaurant GmbH & Co. KG, a German
corporation, OFFICIAL ALL STAR CAFE (U.K.), LTD., a United Kingdom corporation,
Planet Hollywood Amsterdam, BV, a Netherlands corporation, Planet Hollywood
Canada, Inc., a Canadian corporation, Planet Hollywood Czech, a.s., a
Czechoslovakian corporation, Planet Hollywood Europe, Ltd., a United Kingdom
corporation, PLANET HOLLYWOOD (PUERTO RICO), INC., a Puerto Rico corporation,
Planet Hollywood Restaruantbetriebsgesettsschaft GmbH, a German corporation,
Rivermist Limited, an Irish corporation, RM 46 Restaurant Vermogensverwaltungs
GmbH, a German corporation, and Planet Hollywood Restaurant OY, a Finnish
corporation, subsidiaries of the Pledgor listed therein (each a "FOREIGN PLEDGED
SUBSIDIARY" and collectively, the "FOREIGN PLEDGED SUBSIDIARIES"), the
certificates representing the Foreign Pledged Securities, all warrants, options
and other rights, contractual or otherwise, in respect thereof, and all
dividends, interest, cash, instruments and other property (including but not
limited to, any stock dividend and any distribution in connection with a stock
split) from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Foreign Pledged Securities,
including, without limitation, by way of redemption, bonus, preference, option
rights or otherwise;
(e) (i) all additional shares of stock, partnership interests,
membership interests and all other equity interests from time to time acquired
of any Foreign Pledged Subsidiary, (ii) the certificates representing such
additional shares, partnership interests, membership interests or other equity
interests, as the case may be, and (iii) all options and other rights,
contractual or otherwise, in respect thereof and all dividends, distributions,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
additional shares; and
(f) all proceeds of any and all of the foregoing;
in each case, whether now owned or hereafter acquired by any Pledgor and
howsoever its respective interest therein may arise or appear (whether by
ownership, security interest, claim or otherwise).
SECTION 3. SECURITY FOR OBLIGATIONS. The security interest created
hereby in the Pledged Collateral constitutes continuing collateral security for
all of the following obligations (all of which shall be joint and several as
between the Pledgors) whether now existing or hereafter incurred (collectively,
the "OBLIGATIONS"):
(a) 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 the Indenture (including, without limitation, all interest that
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency or reorganization of one or more of the Pledgors);
and
(b) the due performance and observance by each Pledgor of all of its
other obligations from time to time existing in respect of the Notes and the
Indenture.
SECTION 4. DELIVERY OF THE PLEDGED COLLATERAL.
(a) All promissory notes currently evidencing the Pledged Debt and all
certificates evidencing shares of stock, partnership interests, member interests
and all other equity interests representing the Pledged Securities shall be
delivered to the Agent, together with any necessary indorsement and/or
appropriate stock transfer form duly executed in blank with respect to such
Pledged Securities, on or prior to the execution and delivery of this Agreement.
All other promissory notes, bonds, debentures, credit agreements, commercial
paper, certificates, confirmations and other instruments constituting Pledged
Debt from time to time, and all other certificates evidencing shares of stock,
partnership interests, member interests and all other equity interests
constituting the Pledged Securities from time to time, shall be pledged to the
Agent (the "ADDITIONAL COLLATERAL") shall be delivered to the Agent (or to such
other Person as provided for in the Intercreditor Agreement) within ten (10)
Business Days of receipt thereof by or on behalf of one or more of the Pledgors.
All such promissory notes, bonds, debentures, credit agreements, commercial
paper, certificates, confirmations and other instruments, and all such
certificated shares of stock, partnership interests, member interests and all
other equity interest evidencing the Pledged Securities held by or on behalf of
the Agent pursuant hereto or the Intercreditor Agreement and shall be delivered
in suitable form for transfer by delivery or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to the Agent. Within ten (10) Business Days of
the receipt by any Pledgor of any Additional Collateral, a Pledge Amendment,
duly executed by such Pledgor, in substantially the form of Schedule IV hereto
(a "PLEDGE AMENDMENT") shall be delivered to the Agent, in respect of the
Additional Collateral which are to be pledged pursuant to this Agreement, which
Pledge Amendment shall from and after delivery thereof constitute part of
Schedules I and II hereto. Each Pledgor hereby authorizes the Agent to attach
each Pledge Amendment to this Agreement and agree that all promissory notes,
certificates or instruments listed on any Pledge Amendment delivered to the
Agent shall for all purposes hereunder constitute Pledged Collateral and such
Pledgor shall be deemed upon delivery thereof to have made the representations
and warranties set forth in Section 5 with respect to such Additional
Collateral.
(b) If any Pledgor shall receive, by virtue of its being or having
been an owner of any Pledged Collateral, any (i) stock certificate (including,
without limitation, any certificate representing a stock dividend or
distribution in connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination of shares,
stock split, spinoff or split-off), promissory note or other instrument, (ii)
option or right, whether as an addition to, substitution for, or in exchange
for, any Pledged Collateral, or otherwise, (iii) dividends payable in cash
(except such dividends permitted to be retained by such Pledgor pursuant to
Section 7 hereof) or in securities or other property, or (iv) dividends or other
distributions in connection with a partial or total liquidation or dissolution
or in connection with a reduction of capital, capital surplus or paid-in
surplus, such Pledgor shall receive such stock certificate, promissory note,
instrument, option, right, payment or distribution in trust for the benefit of
the Agent, shall segregate it from the Pledgor's other property and shall
deliver it forthwith to the Agent (or to such other Person as provided for in
the Intercreditor Agreement) in the exact form received, with any necessary
indorsement and/or appropriate stock powers or stock transfer forms duly
executed in blank, to be held by or on behalf of the Agent as Pledged Collateral
and as further collateral security for the Obligations.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Each Pledgor represents and
warrants as follows:
(a) The Pledged Securities have been duly authorized and validly
issued, are fully paid and nonassessable and constitute the percentage by number
of the capital stock of each Pledged Subsidiary as set forth in Schedules II and
III hereto as of the date hereof. All other shares of stock constituting Pledged
Collateral will be, when issued, duly authorized and validly issued, fully paid
and nonassessable.
(b) The promissory notes[s] currently evidencing the Pledged Debt have
been, and all other promissory notes from time to time evidencing Pledged Debt,
when executed and delivered, will have been, duly authorized, executed and
delivered by the respective makers thereof, and all such promissory notes are or
will be, as the case may be, legal, valid and binding obligations of such
makers, enforceable against such makers in accordance with their respective
terms, subject as to enforceability to applicable bankruptcy, insolvency,
reorganization and similar laws affecting creditors' rights and to general
principles of equity.
(c) It is and will be at all times the legal and beneficial owner of
the Pledged Collateral free and clear of any Lien, security interest, option or
other charge or encumbrance except for the security interest created by this
Agreement and Permitted Liens.
(d) The exercise by the Agent of any of its rights and remedies
hereunder will not contravene any law or any material contractual restriction
binding on or affecting it or any of its properties, and will not result in or
require the creation of any Lien, security interest or other charge or
encumbrance upon or with respect to any of its properties other than pursuant to
this Agreement.
(e) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority is required to be obtained or made by
it for (i) the due execution, delivery and performance of this Agreement, (ii)
the grant, or the perfection, of the security interest purported to be created
hereby in the Pledged Collateral, or (iii) the exercise by the Agent of any of
its rights and remedies hereunder, except as may be required in connection with
any sale of any Pledged Collateral by laws affecting the offering and sale of
securities generally.
(f) This Agreement creates a valid security interest in favor of the
Agent in the Pledged Collateral, as security for the Obligations. The possession
by the Agent (or its custodian, nominee, bailee or other designee) of the
promissory notes, bonds, debentures, credit agreements, commercial paper,
certificates, confirmations and other instruments evidencing the Pledged Debt,
the certificates evidencing shares of stock, partnership interests, member
interests and all other equity interests constituting the Pledged Securities,
all other promissory notes, bonds, debentures, credit agreements, commercial
paper, certificates, confirmations and other instruments and cash constituting
Pledged Collateral from time to time, and all other certificates evidencing
shares of stock, partnership interests, member interests and all other equity
interests constituting the Pledged Securities from time to time, and the filing
under the Code of the financing statement(s) in the offices described in
Schedule VIII to the Security Agreement results in the perfection of such
security interest in any instruments and certificated securities constituting
Pledged Collateral. If any Pledged Collateral consists of uncertificated
securities, unless the immediately succeeding sentence is applicable thereto,
the Agent's security interest therein will be perfected when the Agent (or its
custodian, nominee or other designee ) becomes the registered holder thereof, or
upon the agreement of each issuer that it will comply with instructions
originated by the Agent with respect to such securities without further consent
by any Pledgor. If any Pledged Collateral consists of security entitlements, the
Agent's security interest therein will be perfected upon the filing of
appropriate UCC-1 Financing Statements, signed by the Pledgor hereby pledging
such security entitlements, or upon the agreement of any applicable securities
intermediary to comply with entitlement orders by the Agent without further
consent by any Pledgor. Such security interest is, or in the case of Pledged
Collateral in which any Pledgor obtains rights after the date hereof, will be, a
perfected security interest having the priority set forth in the Intercreditor
Agreement. All action necessary to perfect and protect such security interest
has been duly taken, except for the Agent's (or the Agent's custodian, nominee,
bailee or other designee ) having possession of the promissory notes, bonds,
debentures, credit agreements, commercial paper, certificates, confirmations and
other instruments and cash constituting Pledged Collateral, and of the
certificated shares of stock, partnership interests, member interests and all
other equity interests constituting the Pledged Securities, after the date
hereof and obtaining control of uncertificated securities and securities
entitlements constituting Pledged Collateral after the date hereof.
(g) There is no pending or, to the best of its knowledge, threatened
action, suit, proceeding or claim before any court or other Governmental
Authority or any arbitrator, or any order, judgment or award by any court or
other Governmental Authority or arbitrator, that may adversely affect the grant
or the perfection of the security interest purported to be created hereby in the
Pledged Collateral, or the exercise by the Agent of any of its rights or
remedies hereunder.
SECTION 6. COVENANTS AS TO THE PLEDGED COLLATERAL. So long as any
Obligations shall remain outstanding, each Pledgor will, unless the Agent shall
otherwise consent in writing:
(a) keep adequate records concerning the Pledged Collateral and permit
the Agent or any agents or representatives thereof at any time or from time to
time to examine and make copies of and abstracts from such records;
(b) at their expense (which obligation shall be joint and several in
nature), upon the request of the Agent, promptly deliver to the Agent a copy of
each material notice or other communication received by it in respect of the
Pledged Collateral;
(c) at their expense (which obligation shall be joint and several in
nature), defend the Agent's right, title and security interest in and to the
Pledged Collateral against the claims of any Person;
(d) at their expense (which obligation shall be joint and several in
nature), at any time and from time to time, promptly execute and deliver all
further instruments and documents and take all further action that may be
necessary or that the Agent may reasonably request in order to (i) perfect and
protect the security interest purported to be created hereby, (ii) enable the
Agent to exercise and enforce its rights and remedies hereunder in respect of
the Pledged Collateral, or (iii) otherwise effect the purposes of this
Agreement, including, without limitation, delivering to the Agent, after the
occurrence and during the continuation of an Event of Default, irrevocable
proxies in respect of the Pledged Collateral;
(e) not sell, assign (by operation of law or otherwise), exchange or
otherwise dispose of any Pledged Collateral or any interest therein except as
permitted by Section 7(a)(i) hereof;
(f) not create or suffer to exist any Lien, security interest or other
charge or encumbrance upon or with respect to any Pledged Collateral except for
the security interest created hereby and Permitted Liens;
(g) not make or consent to any amendment or other modification or
waiver with respect to any Pledged Collateral or enter into any agreement or
permit to exist any restriction with respect to any Pledged Collateral other
than pursuant to the Indenture and applicable securities laws;
(h) not permit the issuance of (i) any additional shares of any class
of capital stock of a Pledged Subsidiary, (ii) any securities convertible
voluntarily by the holder thereof or automatically upon the occurrence or
non-occurrence of any event or condition into, or exchangeable for, any such
shares of capital stock, or (iii) any warrants, options, contracts or other
commitments entitling any Person to purchase or otherwise acquire any such
shares of capital stock; and
(i) not take or fail to take any action which would in any manner
impair the enforceability of the Agent's security interest in any Pledged
Collateral.
SECTION 7. VOTING RIGHTS, DIVIDENDS, ETC. IN RESPECT OF THE PLEDGED
COLLATERAL.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) each Pledgor may exercise any and all voting and other
consensual rights pertaining to any Pledged Collateral for any purpose
not inconsistent with the terms of this Agreement, the Notes and the
Indenture; PROVIDED, HOWEVER, that (A) each such Pledgor will not
exercise or refrain from exercising any such right, as the case may
be, if the Agent gives it notice that, in the Agent's reasonable
judgment, such action would have a Material Adverse Effect upon such
Pledged Collateral, and (B) each such Pledgor will give the Agent at
least five (5) Business Days' notice of the manner in which it intends
to exercise, or the reasons for refraining from exercising, any such
right which is reasonably likely to have a material adverse effect
upon such Pledged Collateral;
(ii) each Pledgor may receive and retain any and all
dividends, interest or other amounts paid in respect of the Pledged
Collateral; PROVIDED, HOWEVER, that any and all (A) dividends and
interest paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or payable in cash in
respect of any Pledged Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in surplus, and (C) cash paid,
payable or otherwise distributed in redemption of, or in exchange for,
any Pledged Collateral, shall be, and shall forthwith be delivered to
the Agent to hold as, Pledged Collateral or be applied to the
Obligations in the sole discretion of the Agent and shall, if received
by such Pledgor, be received in trust for the benefit of the Agent,
shall be segregated from the other property or funds of such Pledgor,
and shall be forthwith delivered to the Agent in the exact form
received with any necessary indorsement and/or appropriate stock
powers duly executed in blank, to be held by the Agent as Pledged
Collateral and as further collateral security for the Obligations; and
(iii) the Agent will execute and deliver (or cause to be
executed and delivered) to each Pledgor all such proxies and other
instruments as such Pledgor may reasonably request for the purpose of
enabling such Pledgor to exercise the voting and other rights which it
is entitled to exercise pursuant to paragraph (i) of this Section 7(a)
and to receive the dividends which it is authorized to receive and
retain pursuant to paragraph (ii) of this Section 7(a).
(b) Subject to the terms of the Intercreditor Agreement, upon the
occurrence and during the continuance of an Event of Default:
(i) all rights of each Pledgor to exercise the voting and
other consensual rights which it would otherwise be entitled to
exercise pursuant to paragraph (i) of subsection (a) of this Section
7, and to receive the dividends and interest payments which it would
otherwise be authorized to receive and retain pursuant to paragraph
(ii) of subsection (a) of this Section 7, shall cease, and all such
rights shall thereupon become vested in the Agent which shall
thereupon have the sole right to exercise such voting and other
consensual rights and to receive and hold as Pledged Collateral such
dividends and interest payments;
(ii) the Agent is authorized to notify each debtor with
respect to the Pledged Debt to make payment directly to the Agent and
may collect any and all monies due or to become due to each Pledgor in
respect of the Pledged Debt and each Pledgor hereby authorizes each
such debtor to make such payment directly to the Agent without any
duty of inquiry;
(iii) without limiting the generality of the foregoing, the
Agent may at its option exercise any and all rights of conversion,
exchange, subscription or any other rights, privileges or options
pertaining to any of the Pledged Collateral as if it were the absolute
owner thereof, including, without limitation, the right to exchange,
in its discretion, any and all of the Pledged Collateral upon the
merger, consolidation, reorganization, recapitalization or other
adjustment of a Pledged Subsidiary, or upon the exercise by a Pledged
Subsidiary of any right, privilege or option pertaining to any Pledged
Collateral, and, in connection therewith, to deposit and deliver any
and all of the Pledged Collateral with any committee, depository,
transfer agent, registrar or other designated agent upon such terms
and conditions as it may determine; and
(iv) all dividends and interest payments which are received
by each Pledgor contrary to the provisions of paragraph (i) of this
Section 7(b) shall be received in trust for the benefit of the Agent,
shall be segregated from other funds of such Pledgor, and shall be
forthwith paid over to the Agent as Pledged Collateral in the exact
form received with any necessary indorsement and/or appropriate stock
powers duly executed in blank, to be held by the Agent as Pledged
Collateral and as further collateral security for the Obligations.
SECTION 8. ADDITIONAL PROVISIONS CONCERNING THE PLEDGED COLLATERAL.
(a) Each Pledgor hereby authorizes the Agent to file, without the
signature of the Pledgor where permitted by law, one or more financing or
continuation statements, and amendments thereto, relating to the Pledged
Collateral.
(b) Each Pledgor hereby irrevocably appoints the Agent such Pledgor's
attorney-in-fact and proxy, with full authority in the place and stead of such
Pledgor and in the name of such Pledgor or otherwise, from time to time in the
Agent's discretion exercised reasonably and during the continuance of an Event
of Default, to take any action and to execute any instrument which the Agent may
deem necessary or reasonably advisable to accomplish the purposes of this
Agreement (subject to the rights of such Pledgor under Section 7(a) hereof),
including, without limitation, to receive, indorse and collect all instruments
made payable to such Pledgor representing any dividend, interest payment or
other distribution in respect of any Pledged Collateral and to give full
discharge for the same.
(c) During the occurrence and continuance of an Event of Default, if
any Pledgor fails to perform any agreement or obligation contained herein, the
Agent itself may perform, or cause performance of, such agreement or obligation,
and the expenses of the Agent incurred in connection therewith shall be payable
by the Pledgors (such obligation being joint and several in nature) pursuant to
Section 10 hereof.
(d) Other than the exercise of reasonable care to assure the safe
custody of the Pledged Collateral while held hereunder, the Agent shall have no
duty or liability to preserve rights pertaining thereto and shall be relieved of
all responsibility for the Pledged Collateral upon surrendering it or tendering
surrender of it to one or more of the Pledgors. The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which the Agent accords its own property, it being
understood that the Agent shall not have responsibility for (i) ascertaining or
taking action with respect to calls, conversions, exchanges, maturities,
tenders, or other matters relating to any Pledged Collateral, whether or not the
Agent has or is deemed to have knowledge of such matters, or (ii) taking any
necessary steps to preserve rights against any parties with respect to any
Pledged Collateral.
(e) The Agent may at any time after the occurrence and during the
continuation of an Event of Default in its discretion (i) without notice to any
of the Pledgors, transfer or register in the name of the Agent or any of its
nominees any or all of the Pledged Collateral, subject only to the revocable
rights of such Pledgor(s) under Section 7(a) hereof, and (ii) exchange
certificates or instruments constituting Pledged Collateral for certificates or
instruments of smaller or larger denominations.
SECTION 9. REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
shall have occurred and be continuing:
(a) The Agent may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all of the rights and remedies of a secured party on default under the
Code then in effect in the State of New York; and without limiting the
generality of the foregoing and without notice except as specified below, sell
the Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or elsewhere, at such price or
prices and on such other terms as the Agent may deem commercially reasonable.
Each Pledgor agrees that, to the extent notice of sale shall be required by law,
at least ten (10) Business Days' notice to such Pledgor of the time and place of
any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Agent shall not be obligated to make any
sale of Pledged Collateral regardless of notice of sale having been given. The
Agent may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(b) Each Pledgor recognizes that it is impracticable to effect a
public sale of all or any part of the Pledged Securities or any other securities
constituting Pledged Collateral and that the Agent may, therefore, determine to
make one or more private sales of any such securities to a restricted group of
purchasers who will be obligated to agree, among other things, to acquire such
securities for their own account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor acknowledges that any such private
sale may be at prices and on terms less favorable to the seller than the prices
and other terms which might have been obtained at a public sale and,
notwithstanding the foregoing, agrees that such private sales shall be deemed to
have been made in a commercially reasonable manner and that the Agent shall have
no obligation to delay sale of any such securities for the period of time
necessary to permit the issuer of such securities to register such securities
for public sale under the Securities Act of 1933, as amended (the "SECURITIES
ACT"). Each Pledgor further acknowledges and agrees that any offer to sell such
securities which has been (i) publicly advertised on a BONA FIDE basis in a
newspaper or other publication of general circulation in the financial community
of New York, New York (to the extent that such an offer may be so advertised
without prior registration under the Securities Act), or (ii) made privately in
the manner described above to not less than fifteen (15) bona FIDE offerees
shall be deemed to involve a "public sale" for the purposes of Section 9-504(3)
of the Code (or any successor or similar, applicable statutory provision) as
then in effect in the State of New York, notwithstanding that such sale may not
constitute a "public offering" under the Securities Act, and that the Agent may,
in such event, bid for the purchase of such securities.
(c) Any cash held by the Agent as Pledged Collateral and all cash
proceeds received by the Agent in respect of any sale of, collection from, or
other realization upon, all or any part of the Pledged Collateral may, in the
discretion of the Agent, be held by the Agent as collateral for, and/or then or
at any time thereafter applied (after payment of any amounts payable to the
Agent pursuant to Section 10 hereof) in whole or in part by the Agent against,
all or any part of the Obligations in such order as the Agent shall elect
consistent with the provisions of the Indenture. Any surplus of such cash or
cash proceeds held by the Agent and remaining after payment in full of all of
the Obligations shall be paid over to the relevant Pledgor or to such person as
may be lawfully entitled to receive such surplus.
(d) In the event that the proceeds of any such sale, collection or
realization are insufficient to pay all amounts to which the Agent or any Lender
is legally entitled, the Pledgors shall be jointly and severally liable for the
deficiency, together with interest thereon at the highest rate specified in the
Notes for interest on overdue principal thereof or such other rate as shall be
fixed by applicable law, together with the costs of collection and the
reasonable fees of any attorneys employed by the Agent and any Lender to collect
such deficiency.
SECTION 10. INDEMNITY AND EXPENSES.
(a) The Pledgors agree jointly and severally to indemnify the Agent
from and against any and all claims, losses and liabilities growing out of or
resulting from this Agreement (including, without limitation, enforcement of
this Agreement), except claims, losses or liabilities resulting from the Agent's
gross negligence or willful misconduct as determined by a final judgment of a
court of competent jurisdiction.
(b) The Pledgors shall be jointly and severally obligated for, and
will promptly pay to the Agent, the amount of any and all reasonable costs and
expenses, including the reasonable fees and disbursements of the Agent's counsel
and of any experts and agents, which the Agent may incur in connection with (i)
the administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from, or other realization upon, any
Pledged Collateral, (iii) the exercise or enforcement of any of the rights of
the Agent or any of the Lenders hereunder, or (iv) the failure by any of the
Pledgors to perform or observe any of the provisions hereof.
SECTION 11. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing and shall be mailed (by certified
mail, postage prepaid and return receipt requested), telecopied or delivered, if
to a Pledgor, to the address for the Company specified in the Indenture, and if
to the Agent, to it at its address specified in the Indenture, or as to either
such Person at such other address as shall be designated by such Person in a
written notice to such other Person complying as to delivery with the terms of
this Section 11. All such notices and other communications shall be effective
(i) if sent by certified mail, return receipt requested, when received or three
(3) Business Days after mailing, whichever first occurs, (ii) if telecopied,
when transmitted and confirmation is received, provided same is on a Business
Day and, if not, on the next Business Day, or (iii) if delivered, upon delivery,
provided same is on a Business Day and, if not, on the next Business Day.
SECTION 12. CONSENT TO JURISDICTION, ETC.
(a) Any legal action or proceeding with respect to this Agreement or
any document related thereto may be brought in the courts of the State of New
York located in the borough of Manhattan or of the United States of America for
the Southern District of New York, and, by execution and delivery of this
Agreement, each Pledgor hereby accepts unconditionally the jurisdiction of the
aforesaid courts. Each Pledgor hereby irrevocably waives any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of FORUM NON CONVENIENS, which such Pledgor may now or hereafter
have to the bringing of any such action or proceeding in such respective
jurisdictions.
(b) Each Pledgor irrevocably consents to the service of process of any
of the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to such Pledgor
at its address referred to in Section 11 hereof.
(c) Nothing contained in this Section 12 shall affect the right of the
Agent to serve legal process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against one or more of the Pledgors in
any other jurisdiction.
SECTION 13. WAIVER OF JURY TRIAL. EACH OF THE PLEDGORS AND THE AGENT
(BY ACCEPTING THIS AGREEMENT) WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT AND AGREES
THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY.
SECTION 14. MISCELLANEOUS.
(a) No amendment of any provision of this Agreement shall be effective
unless it is in writing and signed by the relevant Pledgor and the Agent, and no
waiver of any provision of this Agreement, and no consent to any departure by
such Pledgor therefrom, shall be effective unless it is in writing and signed by
the Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(b) No failure on the part of the Agent to exercise, and no delay in
exercising, any right hereunder or under any other document shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The rights and remedies of the Agent provided herein are cumulative and
are in addition to, and not exclusive of, any rights or remedies provided by
law. The rights of the Agent under any document against any party thereto are
not conditional or contingent on any attempt by the Agent to exercise any of its
rights under any other document against such party or against any other person.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or thereof or affecting the validity or enforceability
of such provision in any other jurisdiction.
(d) This Agreement shall create a continuing security interest in the
Pledged Collateral and shall (i) remain in full force and effect until the
payment in full or release of the Obligations, and (ii) be binding on the
Pledgors and by its acceptance hereof, the Agent, and their respective
successors and assigns and shall inure, together with all rights and remedies of
the Agent hereunder, to the benefit of the Pledgors, the Agent and its
successors, transferees and assigns. Without limiting the generality of clause
(ii) of the immediately preceding sentence, the Agent may assign or otherwise
transfer its rights and obligations under this Agreement to any other Person
pursuant to the terms of the Indenture, and such other Person shall thereupon
become vested with all of the benefits in respect thereof granted to the Agent
herein or otherwise. Upon any such assignment or transfer, all references in
this Agreement to the Agent shall mean the assignee of the Agent. None of the
rights or obligations of any of the Pledgors hereunder may be assigned or
otherwise transferred without the prior written consent of the Agent.
(e) Upon the satisfaction in full of Obligations, (i) this Agreement
and the security interest created hereby shall terminate and all rights to the
Pledged Collateral shall revert to each respective Pledgor, and (ii) the Agent
will, upon such Pledgor's request, and at such Pledgor's expense, promptly (A)
return to such Pledgor such of the Pledged Collateral as shall not have been
sold or otherwise disposed of or applied pursuant to the terms hereof, and (B)
execute and deliver to such Pledgor, without recourse, representation or
warranty, such documents as such Pledgor shall reasonably request to evidence
such termination.
(f) This Agreement shall be governed by and construed in accordance
with the law of the State of New York, except as required by mandatory
provisions of law and except to the extent that the validity and perfection or
the perfection and the effect of perfection or non-perfection of the security
interest created hereby, or remedies hereunder, in respect of any particular
Pledged Collateral are governed by the law of a jurisdiction other than the
State of New York.
(g) This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the Pledgors have caused this Agreement to be
executed and delivered by its officer thereunto duly authorized, as of the date
first above written.
PLEDGORS:
PLANET HOLLYWOOD INTERNATIONAL, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
ALL STAR CAFE INTERNATIONAL, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
COOL PLANET, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
OFFICIAL ALL STAR CAFE, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (CHEFS), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (LONDON), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (LP), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (NEW YORK CITY), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (PARIS), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (REGION V), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (TEL AVIV), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (THEATRES), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
SILVER BRACELETS, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
SOUND REPUBLIC, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (REGION IV), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (REGION VI), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (TROCADERO), L.C.
By: __________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD NEW YORK LTD.
By: PLANET HOLLYWOOD INTER-
NATIONAL, INC.,
its General Partner
By: __________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
ACCEPTED AND AGREED:
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Agent
By:____________________________________
Name: Xxxxxxxx Xxxxxxx
Title: Senior Vice President
SCHEDULE I TO PLEDGE AGREEMENT
-----------------------------
PLEDGED DEBT
PRINCIPAL AMOUNT
NAME OF MAKER NAME OF PAYEE DESCRIPTION OUTSTANDING AS OF
------------- ------------- ----------- -----------------
SCHEDULE II TO PLEDGE AGREEMENT
------------------------------
DOMESTIC PLEDGED SECURITIES
CERTIFICATE
NAME OF ISSUER NUMBER OF SHARES CLASS NO.(S)
-------------- ---------------- ----- ------
SCHEDULE III TO PLEDGE AGREEMENT
------------------------------
FOREIGN PLEDGED SECURITIES
CERTIFICATE
NAME OF ISSUER NUMBER OF SHARES CLASS NO.(S)
-------------- ---------------- ----- ------
SCHEDULE IV
TO
PLEDGE AGREEMENT
PLEDGE AMENDMENT
This Pledge Amendment, dated ___________________, is delivered
pursuant to Section 4 of the Pledge Agreement referred to below. The undersigned
hereby agrees that this Pledge Amendment may be attached to the Pledge
Agreement, dated March __, 2000, as it may heretofore have been or hereafter may
be amended or otherwise modified or supplemented from time to time and that the
promissory notes or shares listed on this Pledge Amendment shall be and become
part of the Pledged Collateral referred to in said Pledge Agreement and shall
secure all of the Obligations referred to in said Pledge Agreement.
PLEDGED DEBT
PRINCIPAL AMOUNT
NAME OF MAKER NAME OF PAYEE DESCRIPTION OUTSTANDING AS OF
------------- ------------- ----------- -----------------
DOMESTIC PLEDGED SECURITIES
NAME OF ISSUER NUMBER OF SHARES CLASS CERTIFICATE NO.(S)
-------------- ---------------- ----- ------------------
FOREIGN PLEDGED SECURITIES
NAME OF ISSUER NUMBER OF SHARES CLASS CERTIFICATE NO.(S)
-------------- ---------------- ----- ------------------
--------------------------------------
By: ___________________________________
Name:______________________________
Title:_____________________________
