PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
SECONDARY REVOLVING CREDIT AGREEMENT
THIS SECONDARY REVOLVING CREDIT AGREEMENT, dated as of
__________, 2001, is made by and among PLANET HOLLYWOOD INTERNATIONAL, INC., a
Delaware corporation ("Planet Hollywood"), the Borrowers signatory hereto listed
on Annex I hereto (together with Planet Hollywood, and jointly and severally,
the "Borrowers" and individually, each a "Borrower") and SOUTHTRUST BANK
("SouthTrust" or "Lender").
RECITALS
WHEREAS, pursuant to that certain Revolving Credit Agreement
dated as of May 8, 2000 among Borrowers, The CIT Group/Business Credit, Inc.
("CIT"), WLR Recovery Fund L.P. ("WLR"), certain other financial institutions
and CIT, as agent for the lenders under such agreement (the "CIT Agreement" and
the "CIT Lenders," respectively), the CIT Lenders provided a $15,000,000
revolving credit facility to the Borrowers (the "CIT Facility");
WHEREAS, under the terms of the CIT Agreement, Indenture (as
defined below), Borrowers are permitted to refinance all or part of the CIT
Facility;
WHEREAS, the Borrowers have requested that the Lender provide
the Borrowers with an up to $3,000,000 revolving credit facility (the
"Facility"), as a partial refinancing of the CIT Facility, which refinancing
shall permit the use of a portion of such proceeds to be utilized to pay down
the CIT Facility, and the balance to be used for working capital purposes and,
subject to the terms and conditions set forth herein, the Lender has agreed to
provide the Facility.
In consideration of the mutual covenants herein contained and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. Certain Definitions. In addition to other words and
terms defined elsewhere in this Agreement, as used herein the following words
and terms shall have the following meanings, respectively, unless the context
hereof otherwise clearly requires:
"Accountant's Opinion" shall have the meaning given that term
in Section 8.01(a) hereof.
"Active Guarantor" and "Active Guarantors" shall mean (i) the
direct or indirect existing Subsidiaries of the Borrowers (other than Inactive
Guarantors) listed on Schedule 1.01(A) annexed hereto, and (ii) any other entity
that, after the Closing Date, becomes a direct or indirect U.S. Subsidiary of
any Borrower, has business operations or assets located within the United States
of America, and executes a Guaranty and Guarantor Security Agreement in
accordance with the terms of this Agreement.
"Affiliate" of a Person shall mean any other Person (other
than a Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For purposes of
this definition (i) "control" of a Person means the power, directly or
indirectly, either to (A) vote twenty percent (20%) or more of the securities
having ordinary voting power for the election of directors of such Person, or
(B) direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Agent" shall have the meaning ascribed to it in the CIT
Agreement.
"Agreement" shall mean this Secondary Revolving Credit
Agreement, as amended, modified, supplemented or restated from time to time.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
"Asset" means any asset, property, right or other interest of
any Borrower or Subsidiary as of, and from time to time after, the Closing Date.
"Asset Sale" means the sale, assignment, lease, transfer or
other disposition by any Borrower or any Subsidiary to any Person other than the
Borrower or any of their wholly-owned Subsidiaries of any Asset; provided,
however, that the repayment to any Borrower or any Subsidiary of any loan or
advance permitted under Section 9.06 hereof or the redemption by any Borrower or
any Subsidiary of any Permitted Investment at maturity shall not be an Asset
Sale.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by the Lender and an assignee substantially in the form
of Exhibit I hereto.
"Authenticity Documents" shall mean all documents and other
written evidence, including, without limitation, computer files, establishing
the authenticity of the Memorabilia or evidencing the chain of title of an item
or items of Memorabilia.
"Availability" shall mean the amount equal to the Current
Commitment, minus the aggregate outstanding principal amount of all Loans.
"Bank" shall mean the Lender, its successors or any other bank
designated by the Lender to the Borrowers from time to time that is reasonably
acceptable to the Borrowers.
"Bay Harbour" shall mean Bay Harbour Management, L.C.
"BH Notes" shall mean the notes issued under the Note Purchase
Agreement.
"Blocked Account" shall have the meaning ascribed to it in the
CIT Agreement.
"Blocked Account Agreement" shall have the meaning ascribed to
it in the CIT Agreement.
"Blocked Account Bank" shall have the meaning ascribed to it
in the CIT Agreement.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Book Value" shall mean, as to any (x) Inventory in respect of
which such amount is to be determined, the lower of (a) the cost of such
Inventory (as reflected in the ledgers of the Borrowers), or (b) the market
value of such Inventory; both cost and market value being determined in
accordance with GAAP calculated on the first-in, first-out basis, or (y)
Memorabilia in respect of which such amount is to be determined, the value
carried on the date hereof on the books and records of Planet Hollywood
Memorabilia, Inc. or Planet Hollywood.
"Borrower" and "Borrowers" shall have the meaning given that
term in the introductory paragraph to this Agreement.
"Borrowers' Account" shall have the meaning given that term in
Section 2.08(a) hereof.
"Business Day" shall mean any day other than a Saturday,
Sunday or other day on which banking institutions are authorized or obligated to
close in New York, New York.
"Capitalized Lease" shall mean any lease which is required
under GAAP to be capitalized on the balance sheet of the lessee.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
"Capitalized Lease Obligations" shall mean the aggregate
amount which is required under GAAP to be reported as a liability on the balance
sheet of a Person as lessee under a Capitalized Lease.
"Cash Concentration Account" shall mean the account maintained
by the Borrowers in the name of Planet Hollywood at Suntrust Bank, Central
Florida, National Association.
"Casualty" shall mean damage to, destruction or loss of or
other casualty with respect to any of the Mortgaged Property.
"CIT" shall have the meaning given that term in the Recitals
to this Agreement.
"CIT Lenders" shall have the meaning given that term in the
introductory paragraph to this Agreement.
"CIT Termination Date" shall mean the date on which all
Indebtedness owing under the CIT Agreement is indefeasibly paid in full and
satisfied and all commitments to extend credit thereunder have terminated.
"Closing Date" shall mean the date on which the conditions set
forth in Section 6.01 hereof shall be satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and any successor statute of similar import. References to sections of
the Code shall be construed also to refer to any successor sections.
"Collateral" shall mean all assets and other property
interests of any kind or nature whether now existing or hereafter acquired as
more fully described in the Security Documents.
"Condemnation" means any actual or threatened condemnation,
taking or exercise of the power of eminent domain or similar action or
proceeding.
"Condemnation Proceeds" means, at any time, any award or
payment paid or payable by reason of any Condemnation, whether from the exercise
of the right of Condemnation or any transfer made in lieu thereof or any injury
to in decrease in value of any property in connection with a Condemnation,
including all amounts paid pursuant to any agreement with any condemning
authority that has been made in settlement of any proceeding relating to a
Condemnation and any interest earned on such award, payment or amounts, less the
reasonable costs and expenses (including reasonable attorney's fees and
expenses) of the Borrowers, any Subsidiary and the Lender in collecting such
award payment or amounts, which costs and expenses shall be paid out of such
award, payment or amounts.
"Credit Card Obligor" shall have the meaning ascribed to it in
the CIT Agreement.
"Credit Extension" shall mean the making of any Loan by the
Lender.
"Current Commitment" shall mean the lesser of $3,000,000 or
the Reduced Commitment.
"Default Rate" shall have the meaning set forth in subsection
2.08(d) hereof.
"Deferred Documents" shall have the meaning set forth in
Article XII hereof.
"Depository Accounts" shall have the meaning ascribed to it in
the CIT Agreement.
"Depository Account Agreement" shall have the meaning ascribed
to it in the CIT Agreement.
"Depository Bank" shall have the meaning ascribed to it in the
CIT Agreement.
"Designated Borrowing Officer" shall mean the Financial
Officer or treasurer of Planet Hollywood, or such other officer as shall be
designated from time to time in writing by Planet Hollywood to the Lender.
"Designated Financial Officer" shall mean the Financial
Officer of Planet Hollywood.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
"Disbursement Account" shall mean the deposit account in the
name of the Borrowers maintained at a bank in the United States of America
designated by the Borrowers to the Lender into which there shall be deposited
proceeds of Loans and funds disbursed to the Borrowers by the Lender.
"Dollar", "Dollars" and the symbol "$" shall mean lawful money
of the United States of America.
"Early Termination Fee" shall have the meaning set forth in
subsection 2.04(c) hereof.
"Employee Savings Plan" shall mean that certain qualified cash
or deferred arrangement plan administered pursuant to Section 401(k) of the
Code.
"Environmental Actions" shall mean any complaint, summons,
citation, notice, directive, order, claim, litigation, investigation,
proceeding, judgment, letter or other communication from any Governmental
Authority or any third party involving a Release (i) from or onto any of the
properties presently or formerly owned or leased by any Borrower, or (ii) from
or onto any facilities which received Hazardous Materials from any Borrower, or
involving any violation of any Environmental Law.
"Environmental Law" shall mean all federal, state and local
laws, statutes, ordinances and regulations, now or hereafter in effect relating
to the regulation and protection of human health, safety, the environment and
natural resources. Environmental Laws include but are not limited to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C.ss.9601 et seq.) ("CERCLA"); the Hazardous Material
Transportation Act, as amended (49 U.S.C.ss.180 et seq.); the Resource
Conservation and Recovery Act, as amended (42 U.S.C.ss.6901 et seq.) ("RCRA");
the Toxic Substance Control Act, as amended (15 U.S.C.ss.2601 et seq.); the
Clean Air Act, as amended (42 U.S.C.ss.7401 et seq.); the Federal Water
Pollution Control Act, as amended (33 U.S.C.ss.1251 et seq.); and their state
and local counterparts or equivalents.
"Environmental Liabilities and Costs" shall mean all
liabilities, monetary obligations (including any and all remedial or clean-up
costs but excluding ordinary course compliance costs), Remedial Actions, losses,
damages, punitive damages, consequential damages, treble damages, costs and
expenses (including all reasonable fees, disbursements and expenses of counsel,
expert and consulting and costs of investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any
Environmental Action relating to any environmental condition, violation of
Environmental Law, Remedial Actions or a Release of Hazardous Materials from or
onto (i) any property presently or formerly owned by any Borrower, or (ii) any
facility which received Hazardous Materials generated by any Borrower.
"Environmental Lien" shall mean any Lien securing
Environmental Liabilities and Costs incurred by a Governmental Authority.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar import. References to
sections of ERISA shall be construed also to refer to any successor sections.
"ERISA Affiliate" shall mean any (i) corporation which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Borrowers, (ii) partnership or other trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Code) with the Borrowers, or (iii) member of the same
affiliated service group (within the meaning of Section 414(m) of the Code) as
any Borrower, any corporation described in clause (i) above or any partnership
or trade or business described in clause (ii) above.
"Events of Default" shall mean any of the Events of Default
described in Section 10.01 hereof.
"Excluded Asset Sale" means an Asset Sale described in and
permitted by clauses of Section 9.04(b)(i), (ii), (iv), (v) and (vi) hereof.
"Facility" shall have the meaning given that term in the
RECITALS to this Agreement.
"Facility Fee" shall have the meaning given that term in
Section 2.08(f) hereof.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
"Federal Emergency Management Agency" shall mean that certain
agency of government of the United States of America known as the Federal
Emergency Management Agency.
"Financial Officer" shall mean, with respect to each Borrower,
that individual designated from time to time by the Board of Directors or
governing body performing like functions of such Borrower to be the chief
financial officer or treasurer of such Borrower (and individuals designated from
time to time by the Board of Directors or governing body performing like
functions of such Borrower to act in lieu of the chief financial officer or the
treasurer).
"Flood Zone" shall mean any area designated by the Federal
Emergency Management Agency as a special flood hazard area (Zone A or Zone V).
"Foreign Entity" and "Foreign Entities" shall mean any
Subsidiary that is organized under the laws of a jurisdiction other than the
United States of America (consisting of each State thereof and the District of
Columbia).
"GAAP" shall mean generally accepted accounting principles as
such principles shall be in effect in the United States of America at the
relevant date.
"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.
"Guarantee" of or by any Person shall mean any obligation of
such Person guaranteeing any Indebtedness of any other Person (the "primary
obligor"), directly or indirectly through an agreement (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or
to purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness against
loss, 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 Indebtedness; provided, however, that the term
Guarantee shall not include endorsements for collection or deposit, in either
case in the ordinary course of business.
"Guarantor" and "Guarantors" shall mean (i) the direct or
indirect existing Subsidiaries of the Borrowers listed on Schedule 1.01(E)
annexed hereto, and (ii) any other entity that, after the Closing Date, becomes
a direct or indirect existing U.S. Subsidiary of any Borrower, and executes a
Guaranty and Guaranty Security Agreement in accordance with the terms of this
Agreement.
"Guarantor Security Agreement" shall mean the Guarantor
Security Agreement substantially in the form of Exhibit D hereto, may by the
Guarantors in favor of the Lender, as amended, modified, or supplemented from
time to time.
"Guaranty" shall mean a guaranty containing the joint and
several obligations of the Guarantors substantially in the form of Exhibit E
hereto, made by the Guarantors in favor of the Lender, as amended, modified or
supplemented from time to time.
"Hazardous Materials" shall mean (i) any element, compound or
chemical that is defined, listed or otherwise classified as a solid waste,
contaminant, pollutant, toxic pollutant, hazardous substance, extremely
hazardous substance, toxic substance, hazardous waste, or special waste under
any Environmental Law, (ii) petroleum and its refined fractions, (iii) any
polychlorinated biphenyls, (iv) any flammable, explosive or radioactive
materials, and (v) any asbestos-containing materials.
"Inactive Guarantor" and "Inactive Guarantors" shall mean (i)
the direct or indirect existing Subsidiaries of the Borrowers listed on Schedule
1.01(F) annexed hereto, and (ii) any other entity that, after the Closing Date,
becomes a direct or indirect U.S. Subsidiary of any Borrower, has no business
operations (other than those operations that directly relate to maintaining
corporate existence) or assets (unless less than $50,000), and executes a
Guaranty and Guaranty Security Agreement in accordance with the terms of this
Agreement.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
"Indebtedness" shall mean as to any Person (i) indebtedness
for borrowed money; (ii) indebtedness for the deferred purchase price of
property or services (other than current trade payables incurred in the ordinary
course of business and payable in accordance with customary practices); (iii)
indebtedness evidenced by bonds, debentures, notes or other similar instruments
(other than performance, surety and appeal or other similar bonds arising in the
ordinary course of business); (iv) obligations and liabilities secured by a Lien
upon property owned by such Person, whether or not owing by such Person and even
though such Person has not assumed or become liable for the payment thereof; (v)
obligations and liabilities of the type otherwise referred to in this definition
directly or indirectly Guaranteed by such Person; (vi) obligations or
liabilities created or arising under any conditional sales contract or other
title retention agreement with respect to property used and/or acquired by such
Person, even though the rights and remedies of the lessor, seller and/or lender
thereunder are limited to repossession of such property; (vii) Capitalized Lease
Obligations; (viii) all liabilities in respect of letters of credit, acceptances
and similar obligations created for the account of such Person; and (ix) net
liabilities of such Person under interest rate cap agreements, interest rate
swap agreements, foreign currency exchange agreements and other hedging
agreements or arrangements calculated on a basis satisfactory to the Lender and
in accordance with accepted practice.
"Indemnified Parties" shall have the meaning given that term
in Section 11.06 hereof.
"Insurance Proceeds" means, at any time, all proceeds or
payments to which any Borrower or any Subsidiary may be or become entitled under
any of the insurance policies and any and all unearned premiums accrued,
accruing or to accrue under any insurance policies and all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing into cash or
liquidated claims, plus (i) the amount of any deductibles under such policies
and (ii) any interest earned on such proceeds, payments or amounts and less
(iii) the reasonable costs and expenses of the Borrower or any Subsidiary and
the Lender in collecting such proceeds, payments or amounts, which costs and
expenses shall be paid out of such proceeds, payments or amounts.
"Intercreditor Agreement" shall mean that certain
Intercreditor Agreement, amended as of even date herewith among the Lender, the
Agent on behalf of the CIT Lenders, the Note Agent, as agent on behalf of the
Note Holders existing as of the Closing Date under the Note Purchase Agreement,
and the PIK Trustee, as Indenture Trustee under the PIK Indenture, in form and
substance satisfactory to the Lender establishing, among other things, lien and
payment priority.
"Inventory" shall mean all goods and merchandise of the
Borrowers including, but not limited to, all raw materials, work in process,
finished goods, materials and supplies of every nature used or usable in
connection with the shipping, storing, advertising or sale of such goods and
merchandise, whether now owned or hereafter acquired and all such property, the
sale or disposition of which would give rise to accounts receivable or cash.
"Law" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Governmental Authority.
"Leases" shall mean any lease of real property to which any
Borrower or Guarantor is a party as lessee or lessor.
"Lender" shall have the meaning given that term in the
introductory paragraph to this Agreement.
"Lender Account" shall mean an account in the name of the
Lender designated to the Borrowers from time to time into which the Borrowers
shall make all payments to the Lender under this Agreement.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, including but not limited to any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease intended
as, or having the effect of, security.
"Loan" or "Loans" shall mean any and all loan or loans made by
the Lender to the Borrowers or made as a result of charges made to the
Borrowers' Account, in each case pursuant to the terms of this Agreement.
"Loan Documents" shall have the meaning given that term in the
definition of "Related Documents" set forth in this Section 1.01.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
"Material Adverse Effect" shall mean a material adverse effect
upon (i) the business, operations, condition (financial or otherwise),
properties, Assets or performance of Planet Hollywood or Planet Hollywood
Memorabilia, Inc. individually or the Borrowers as a whole, (ii) the ability of
Planet Hollywood or Planet Hollywood Memorabilia, Inc. individually or the
Borrowers and the Active Guarantors as a whole to perform their obligations
hereunder or under any other Related Document in accordance with their terms,
(iii) the legality, validity or enforceability of this Agreement or any Related
Document, or (iv) saleability or the value of the Memorabilia taken as a whole,
as determined by a third party appraiser acceptable to the Lender in its sole
discretion.
"Material Contracts" shall mean any and all contracts,
instruments, guaranties, licenses or other arrangements to which the Borrower or
any Guarantor is a party as to which the breach, nonperformance, cancellation or
failure to renew by any party thereto would or could reasonably be expected to
have a Material Adverse Effect.
"Maturity Date" shall have the meaning given that term in
Section 2.01 hereof.
"Memorabilia" shall mean (i) all memorabilia, collectibles,
souvenirs, keepsakes or any other tangible personal property (and Authenticity
Documents related thereto) owned by any Borrower or any Guarantor the market
value of which is to any extent derived from any association with (A) a
celebrity, entertainer or athlete or any other person reasonably understood to
be a celebrity, entertainer or athlete, or (B) any motion picture, television
program, series of television programs or sports or entertainment event, and
(ii) all memorabilia, collectibles, souvenirs or keepsakes recognized as such by
the Lender, to or in which any Borrower or any Guarantor has a right of
ownership (including, without limitation, all items at any time appearing on the
Memorabilia Report and any Memorabilia Change Report).
"Memorabilia Change Report" shall have the meaning given that
term in Section 8.01(f).
"Memorabilia Report" shall mean the master report listing all
items of Memorabilia generated by a computer program maintained by Planet
Hollywood which identifies the Memorabilia by item number as the same is
updated, amended or supplemented from time to time.
"Multiemployer Plan" shall mean a "multiemployer plan" as
defined in Section 3(37) of ERISA and subject to Title IV of ERISA which is, or
within the immediately preceding six (6) years was, contributed (or required to
be contributed) to by the Borrowers or any ERISA Affiliate.
"Net Cash Proceeds" means with respect to any Asset Sale or
multiple Asset Sales to one Person or a group of related Persons, any aggregate
payments of cash or Cash Equivalents received by any Borrower or any Subsidiary
from or in respect of any such Asset Sale(s), net of repayment of Indebtedness
secured by a Permitted Lien on the Asset which is the subject of the Asset Sale
having a priority senior to the priority of the Lien of the Lender on the Asset
subject to such Asset Sale and also net of reasonable direct out-of-pocket
expenses and customary fees of such sale(s) and net of taxes paid (or
anticipated to be paid and that are escrowed for such purpose); provided,
however, that no sales commissions or other fees in connection with any such
sale(s) shall be paid to any Affiliate of any Borrower or any Subsidiary. "Net
Cash Proceeds" shall include all payments or other distributions to any Borrower
or any Subsidiary of cash or property in respect of the Membership Interest.
"Net Proceeds" means with respect to any Asset Sale or
multiple Asset Sales to one person or a group of related Persons, the sum of all
Net Cash Proceeds and all non-cash proceeds received by any Borrower or any
Subsidiary from or in respect of any such Asset Sale(s).
"Note Agent" shall mean Wilmington Trust Company, solely in
its capacity as agent on behalf of the Note Holders pursuant to the Note
Purchase Agreement.
"Note Holders" shall mean the purchasers from time to time of
any of the BH Notes, including Bay Harbour.
"Note Purchase Agreement" shall mean that certain Note
Purchase Agreement, dated as of May 8, 2000, pursuant to which the Purchaser (as
defined therein) has committed to make loans secured by a second priority lien
in the Collateral, as amended, modified, supplemented or restated from time to
time. It is agreed and acknowledged that the Purchaser
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
has agreed, in accordance with the Intercreditor Agreement, as amended, that
such loans are now secured by a third priority lien in the Collateral.
"Notes" shall mean the promissory notes of the Borrowers
executed and delivered to the Lender under this Agreement and substantially in
the form of Exhibit A hereto, as modified or restated from time to time and any
promissory note or notes issued in exchange or replacement thereof, including
all extensions, renewals, refinancings or refundings thereof in whole or part.
"Notice of Borrowing" shall have the meaning given that term
in Section 2.03(a) hereof.
"Obligations" shall mean all indebtedness, obligations and
liabilities of the Borrowers and the Guarantors collectively or any Borrower or
Guarantor individually to the Lender incurred under or related to this
Agreement, the Notes, any Guaranty, or any other Related Document, whether such
indebtedness, obligations or liabilities are direct or indirect, secured or
unsecured, joint or several, absolute or contingent, due or to become due,
whether for payment or performance, now existing or hereafter arising.
"Office" when used in connection with the Lender shall mean
its office located at 000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000 or at such other office or offices of the Lender as may be designated in
writing from time to time by the Lender to the Borrowers.
"Operating Lease Obligations" shall mean all obligations and
indebtedness of the Borrowers and their respective Subsidiaries in respect of
leases of property (whether real, personal or mixed) other than Capitalized
Lease Obligations.
"Other Taxes" shall have the meaning given that term in
Section 2.15.
"Payment Direction Notice" shall have the meaning ascribed to
it in the CIT Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any successor thereto.
"Permitted Investments" shall mean: (a) direct obligations of
the United States of America or of any agency thereof or obligations guaranteed
as to principal and interest by the United States of America or of any agency
thereof, in either case maturing not more than one hundred eighty (180) days
from the date of acquisition thereof by such Person; (b) deposit accounts with
or certificates of deposit issued by any bank or trust company organized under
the laws of the United States of America or any state thereof and having
capital, surplus and undivided profits of at least $500,000,000, maturing not
more than ninety (90) days from the date of acquisition thereof by such Person;
(c) commercial paper rated A-1 or better or P-1 or better by Standard & Poor's
Corporation ("S&P") or Xxxxx'x Investors Services, Inc. ("Moody's"),
respectively, maturing not more than ninety (90) days from the date of
acquisition thereof by such Person; and (d) Investments in money market funds
rated AAAm or AAAm-G by S&P and Aaa by Moody's.
"Permitted Liens" shall have the meaning given that term in
Section 9.01.
"Permitted PIK Note Payments" shall mean any payment of
principal or interest required to be made under the PIK Notes but only to the
extent that the Borrowers have at the time such payment is due and payable, on a
consolidated basis, readily available cash plus Availability of at least
$25,000,000.
"Permitted BH Note Payments" shall mean (i) interest at the
rate of fourteen percent (14%) per annum, and (ii) principal, interest, fees and
expenses at the times and in the amounts permitted to be paid pursuant to the
terms of the Intercreditor Agreement.
"Person" shall mean an individual, corporation, partnership,
limited liability company, limited liability partnership, trust, unincorporated
association, joint venture, joint-stock company, government (including political
subdivisions), Governmental Authority or agency, or any other entity.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
"PH Trademarks" shall mean the trademarks listed on Schedule
5.02 annexed hereto.
"PIK Indenture" shall mean that certain indenture, dated as of
May 8, 2000, among Planet Hollywood, as issuer, the Guarantors, and the PIK
Trustee, as trustee, pursuant to which the PIK Notes were issued, as amended,
modified, supplemented or restated from time to time.
"PIK Holders" shall mean the holders of the PIK Notes, and the
fourth lienholder with respect to the Collateral (in accordance with the
Intercreditor Agreement, as amended to date).
"PIK Notes" shall mean the 10% Secured Deferrable Interest
Notes Due 2005 issued pursuant to the PIK Indenture, as amended, modified,
supplemented or restated from time to time.
"PIK Trustee" shall mean United States Trust Company of New
York (including its successors and assigns), as trustee under the PIK Indenture
pursuant to which the PIK Notes were issued, and the fourth lienholder with
respect to the Collateral (in accordance with the Intercreditor Agreement, as
amended to date).
"Plan" shall mean an employee benefit plan defined in Section
3(3) of ERISA (other than a Multiemployer Plan) in respect of which any Borrower
or any ERISA Affiliate is, or within the immediately preceding six (6) years
was, an "employer" as defined in Section 3(5) of ERISA, or in respect of which
any Borrower or any ERISA Affiliate has any liability under ERISA.
"Planet Hollywood" shall have the meaning given that term in
the introductory paragraph to this Agreement.
"Pledge Agreement" shall mean the Pledge Agreement
substantially in the form of Exhibit C hereto by such Borrowers and Guarantors
that are pledgors thereunder in favor of the Lender, as amended, modified or
supplemented from time to time.
"Potential Default" shall mean any event or condition which,
with notice or passage of time, or any combination of the foregoing, would
constitute an Event of Default.
"Receivables" shall have the meaning ascribed to it in the CIT
Agreement.
"Reduced Commitment" shall mean any reductions in the Current
Commitment pursuant to Section 2.04(a)(i) or (a)(ii).
"Region III" shall mean Planet Hollywood (Region III), Inc.,
a Florida corporation.
"Register" shall have the meaning given that term in Section
11.13(c) hereof.
"Regular Rate" shall mean, for any day, nine percent (9.0%)
per annum.
"Related Documents" or "Loan Documents" shall mean this
Agreement, the Security Documents, the Notes, and the other documents,
instruments and agreements referred to in Section 6.01 hereof, and all other
documents, instruments or agreements arising hereunder or from time to time
delivered in connection with or otherwise relating to any Related Document.
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, injection, discharging, injecting, escaping, leaching,
dumping or disposing (including abandonment or discarding of barrels, containers
and other closed receptacles containing any hazardous substance, pollutant or
contaminant) of a Hazardous Material into the indoor or outdoor environment or
onto or from any property presently or formerly owned or operated by the
Borrowers or any of their respective Subsidiaries, or at any disposed facility
that received Hazardous Materials generated by the Borrowers or any of their
respective Subsidiaries including the migration of Hazardous Materials through
or in the air, soil, surface water, groundwater or property.
"Remedial Action" shall mean all actions taken to (i) monitor,
assess, evaluate, investigate, clean up, remove, remediate, treat, contain or in
any other way address Hazardous Materials in the indoor or outdoor environment;
(ii) prevent or
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
minimize a Release or threatened Release of Hazardous Materials so that the
Release or threatened Release does not migrate or endanger or threaten to
endanger public health or welfare or the environment; or (iii) perform
pre-remedial studies and investigations and post-remedial operation and
maintenance activities, or any other actions authorized by 42 U.S.C. ss. 9601.
"Reportable Event" shall mean any of the events described in
Section 4043(c) of ERISA with respect to a Plan (other than events for which the
notice requirements have been waived).
"Security Agreement" shall mean the Security Agreement,
substantially in the form of Exhibit B hereto, made by the Borrowers in favor of
the Lender, as amended, modified and supplemented from time to time.
"Security Documents" shall mean, collectively, the Guaranty,
the Security Agreement, the Guarantor Security Agreement, the Pledge Agreement,
the Assignment for Security (Trademarks), substantially in the form of Exhibit A
to the Security Agreement, executed and delivered by the Borrowers, the
Assignment for Security (Copyrights), substantially in the form of Exhibit B to
the Security Agreement, executed and delivered by the Borrowers, and all Uniform
Commercial Code financing statements required by this Agreement, the Security
Agreement to be filed with respect to the security interests in personal
property and fixtures created pursuant to such agreements, and all other
documents and agreements executed and delivered by the Borrowers and/or their
respective Subsidiaries in connection with any of the foregoing documents.
"Solvent" means, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is not
less than the total amount of its liabilities, (b the present fair salable value
of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its existing debts as they
become absolute and matured, (c) such Person is able to pay its debts and other
liabilities as they mature in the normal course of business, (d) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (e) such Person is not engaged in business or a transaction for
which such Person's property would constitute unreasonably small capital.
"Subsidiary" shall mean Planet Hollywood Memorabilia, Inc.,
Region III and, with respect to any Person, any corporation, limited or general
partnership, limited liability company, limited liability partnership, trust,
association or other business entity of which an aggregate of more than fifty
percent (50%) of the outstanding stock or other interests entitled to vote in
the election of the Board of Directors or governing body performing like
functions of such corporation (irrespective of whether, at the time, stock of
any other class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency), managers, trustees or
other controlling persons, or an equivalent controlling interest therein, of
such Person is, at the time, directly or indirectly, owned or controlled by such
Person and/or one or more Subsidiaries of such Person; provided, however, that
if Planet Hollywood has the power to direct or cause the direction of the
management and/or policies of such Person, then the language "more than fifty
percent (50%)" in this definition shall read "fifty percent (50%) or more".
"Taxes" shall have the meaning given that term in Section 2.15
hereof.
"Termination Date" shall have the meaning given that term in
Section 2.01 hereof.
"Termination Event" shall mean (i) a Reportable Event with
respect to any Plan, (ii) the withdrawal of any Borrower, or any ERISA Affiliate
from a Plan during a plan year in which any Borrower or any ERISA Affiliate was
a "substantial employer" as defined in Section 4001(a)(2) of ERISA, (iii) the
imposition of an obligation on any Borrower, or any ERISA Affiliate under
Section 4041 of ERISA to provide affected parties written notice of intent to
terminate a Plan in a distress termination described in Section 4041(c) of
ERISA, or (iv) the institution by the PBGC of proceedings to terminate a Plan.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan year, determined
in accordance with Statement of Financial Accounting Standards No. 35, based
upon the actuarial assumptions used by the Plan's actuary in the most recent
annual valuation of the Plan, exceeds the fair market value of the assets
allocable thereto, determined in accordance with Section 412 of the Code.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
"U.S. Subsidiaries" or "U.S. Subsidiary" shall mean any
Subsidiary that has (i) its domicile in the United States of America, and/or
(ii) its principal place of business or assets in the United States of America.
"WLR" shall have the meaning given that term in the
introductory paragraph to this Agreement.
1.02. Construction.
(a) The parties hereto expressly agree and acknowledge that
this Agreement is based substantially on the terms and conditions of the CIT
Agreement, and that it is the intent of all parties involved that Lender shall
have the substantially the same rights of the CIT Lenders, subordinated only to
the CIT Lenders. In connection therewith, the Intercreditor Agreement has been
amended as of even date hereof, setting forth the priority of the Lender's
security interest in the Collateral, second in priority only to the rights of
the CIT Lenders arising under the CIT Agreement. It is the intention of the
parties that the Intercreditor Agreement shall provide that upon the termination
or maturity of the CIT Agreement the Lender shall be entitled to all rights and
protections previously available to the CIT Lenders under the CIT Agreement
(e.g., cash sweeps).
(b) Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, the singular the plural
and the part the whole and "or" has the inclusive meaning represented by the
phrase "and/or." The words "hereof," "herein," "hereunder" and similar terms in
this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement. The section and other headings contained in this
Agreement and the Table of Contents preceding this Agreement are for reference
purposes only and shall not control or affect the construction of this Agreement
or the interpretation thereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified. All capitalized
terms not otherwise defined herein shall have such meaning as is ascribed to
them in the CIT Agreement, unless the context hereof otherwise clearly requires.
1.03. Accounting Principles. Except as otherwise provided in
this Agreement, all computations and determinations as to accounting or
financial matters and all financial statements to be delivered pursuant to this
Agreement shall be made and prepared in accordance with GAAP (including
principles of consolidation where appropriate), and all accounting or financial
terms shall have the meanings ascribed to such terms by GAAP. Notwithstanding
the definition of GAAP contained in this Agreement, no change in GAAP that would
affect the method or calculation of any of the financial covenants, restrictions
or standards or definitions of terms used herein shall be given effect in such
calculations until such financial covenants, restrictions or standards or
definitions are amended in a manner satisfactory to the Borrowers and the Lender
so as to reflect such change in GAAP.
ARTICLE II
THE CREDITS
2.01. Revolving Credit Loans. Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
Lender agrees to make Loans to the Borrowers at any time and from time to time
on or after the date hereof and to, but not including, the Termination Date, in
an aggregate principal amount not exceeding at any one time the Current
Commitment at such time. Lender shall have no obligation to make Loans hereunder
on or after the Termination Date or which, when added to the aggregate amount of
all outstanding and contemporaneous Loans at such time, would cause the
aggregate amount of all Loans at any time to exceed the Current Commitment at
such time. The "Maturity Date" means August 9, 2002. The "Termination Date"
shall mean the earlier of the Maturity Date and any earlier date pursuant to
which this Agreement may be terminated as expressly provided herein. Within the
limits of time and amount set forth in this Section 2.01, and subject to the
provisions of this Agreement, the Borrowers may borrow, repay, and reborrow
hereunder.
2.02. Notes. The obligation of the Borrowers to repay the
unpaid principal amount of the Loans made to it by Lender and to pay interest
thereon shall be evidenced in part by a Note dated as of the date hereof in the
principal amount of Lender's Current Commitment with the blanks appropriately
filled in. An executed Note for Lender shall be delivered by each Borrower to
Lender on the date hereof.
2.03. Notice of Borrowing; Making of Loans.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
(a) The Borrowers shall not be permitted to
borrow hereunder when available cash is in excess of $1,000,000. Whenever the
Borrowers desire to borrow, the Designated Borrowing Officer shall provide
telephonic notice of a proposed borrowing or written notice of such proposed
borrowing (a "Notice of Borrowing") shall be provided by the Designated
Borrowing Officer to Lender not later than 12:00 noon (Orlando, FL time) on the
date of such proposed borrowing. The Notice of Borrowing shall set forth: (a)
the date, which shall be a Business Day, on which such borrowing is to occur,
(b) the principal amount of the Loan being borrowed, and (c) the account
information where such Loan is to be received. Such notice shall be given by
telephone or in writing; provided, however, that, if requested by the Lender,
any such telephonic notice shall be confirmed in writing by delivery to the
Lender on or before the close of business on the date on which such Loan is to
be made (but prior to such Loan being made) a notice containing the original or
facsimile signature of the Designated Borrowing Officer. Unless the Lender
determines that any applicable conditions in Section 6.02 have not been
satisfied, the Lender shall make the funds from the Lenders available to the
Borrowers not later than 2:30 p.m. (Orlando, FL time), on the date specified in
such notice in immediately available funds by (i) depositing such proceeds in
the Disbursement Account if the Disbursement Account is located at the Bank, and
(ii) initiating a wire transfer if the Disbursement Account is not located at
the Bank.
(b) The Lender shall be entitled to rely
conclusively on the Designated Borrowing Officer's authority to request a Loan
on behalf of the Borrowers until the Lender receives written notice to the
contrary. The Lender shall have no duty to verify the authenticity of the
signature appearing on any written Notice of Borrowing and, with respect to an
oral request for a Loan, the Lender shall have no duty to verify the identity of
any Person representing himself as a Designated Borrowing Officer.
(c) The Lender shall not incur any liability to
the Borrowers in acting upon any telephonic notice referred to above which the
Lender believes in good faith to have been given by the Designated Borrowing
Officer or for otherwise acting in good faith under this Section 2.03; and, upon
the funding of a Loan by the Lender in accordance with this Agreement pursuant
to any such telephonic notice, the Borrowers shall have effected a Loan
hereunder.
(d) Each Notice of Borrowing pursuant to this
Section 2.03 shall be irrevocable and the Borrowers shall be bound to make a
borrowing in accordance therewith. Each Loan shall be in a minimum amount of
$100,000.
2.04. Reduction of Current Commitment; Mandatory
Prepayment; Optional Prepayment.
(a) (i) Voluntary Reduction of the Current
Commitment. Subject to Article XII and only from and after the CIT Termination
Date, the Borrowers may at any time or from time to time and without penalty or
premium reduce the Current Commitment of the Lender to an amount (which may be
zero) not less than the sum of (i) the unpaid principal amount of all Loans then
outstanding plus (ii) the principal amount of all Loans not yet made as to which
notice has been given by the Borrowers under Section 2.03 hereof. Any reduction
shall be in an amount which is an integral multiple of $200,000. Reduction of
the Current Commitment shall be made by providing not less than two (2) Business
Days' written notice (which notice shall be irrevocable) to such effect to
Lender.
(ii) Mandatory Reduction of the Current
Commitment. Subject to Article XII, Subject to Article XII and only from and
after the CIT Termination Date, to the extent that either (x) the Loans are
prepaid pursuant hereto or (y) the BH Notes are prepaid pursuant to the Note
Purchase Agreement in each case from the Net Proceeds of Asset Sales, the
Current Commitment shall be reduced as follows:
(A) Permanently and
dollar-for-dollar in an amount equal to the aggregate interest paid by the
Borrowers or any Subsidiary under the Note Purchase Agreement from the original
date thereof through the date of partial or full prepayment thereof (or in the
case of more than one partial payment, from the date of the prior prepayment
through the date of the subsequent prepayment); and
(B) Until such time as the BH
Notes are paid in full and any obligation to fund thereunder is terminated,
dollar-for-dollar by an amount equal to the Net Cash Proceeds of Asset Sales
received by the Lender hereunder or the Agent under the Note Purchase Agreement;
provided, however, that such reduction shall occur only when (1) Section 3.4 of
the Note Purchase Agreement requires that the Current Commitment hereunder be
reduced and (2) there is an outstanding commitment or outstanding obligations
under such Note Purchase Agreement (it being the understanding of the parties
that at such time as the Note Purchase Agreement is terminated and there are no
outstanding obligations thereunder, the Current Commitment shall be reinstated
to $3,000,000 (minus amounts specified in Section 2.04(a)(ii)(A) and any other
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
permanent reductions hereunder). For purposes of this Section 2.04(a)(ii)(B),
only Asset Distribution Proceeds shall not include any Net Proceeds that are not
cash or Cash Equivalents until such time as such amounts have been reduced to
cash or Cash Equivalents.
(b) Mandatory Prepayment.
(i) Exceeding Current Commitment.
Subject to Article XII, Subject to Article XII and only from and after the CIT
Termination Date, if at any time the Current Commitment is less than the
aggregate unpaid principal amount of the Loans then outstanding the Borrowers
shall prepay an amount of the Loans not less than the amount of such difference.
Any such prepayment will not otherwise reduce the Current Commitment of the
Lender. Concurrently with any notice of reduction of the Current Commitment as
set forth in Section 2.04(a), the Borrowers shall give notice to the Lender of
any mandatory prepayment which notice shall specify a prepayment date no later
than the effective date of such reduction of the Current Commitment of the
Lender.
(ii) Asset Sales. Subject to Article
XII, Subject to Article XII and only from and after the CIT Termination Date,
Ssimultaneously with the consummation of any Asset Sale (other than an Excluded
Asset Sale), to the extent permitted by and sold or otherwise disposed of in
accordance with this Agreement and subject to the terms and conditions of the
Intercreditor Agreement as to the application of the Net Proceeds of such Asset
Sale to the obligations owed to each party thereto, the Borrowers shall prepay
the Loans in an aggregate principal amount equal to one hundred percent (100%)
of the Net Proceeds of such sale or disposition; provided, however, that any
proceeds of sales referred to in subsections 9.04(b)(i), (ii), (iv), (v) and
(vi) shall be excluded from any prepayment requirements set forth in this
subsection. Upon and during the continuance of a Default or an Event of Default,
if any Asset Sale, Casualty or Condemnation shall occur with respect to any
Collateral or any other Asset, the Borrowers shall (or shall cause any
Subsidiary to) apply the Net Cash Proceeds, Insurance Proceeds or Condemnation
Proceeds therefrom to the prepayment of the Loans in an aggregate principal
amount equal to one hundred percent (100%) of the Net Proceeds from such Asset
Sale, Casualty or Condemnation.
(c) Optional Prepayment. Subject to Article
XII, Subject to Article XII and only from and after the CIT Termination Date,
the Borrowers may at any time or from time to time prepay, in whole or in part,
any or all Loans then outstanding. The Borrowers may at any time pay all
outstanding Obligations under the Loan Documents, so long as simultaneously
therewith the Borrowers shall pay two percent (2%) of the Current Commitment if
the Current Commitment is terminated on or before the first anniversary of this
Agreement and one percent (1%) of the Current Commitment if the Current
Commitment is terminated on any day prior to the Maturity Date (the "Early
Termination Fee").
(d) Prepayment Penalty. All prepayments of
Loans under this Section 2.04 shall be without premium or penalty, except that
any prepayment shall be subject to subsection (c) above.
2.05. Interest Rate. Each Loan shall bear interest at a
rate per annum for each day until paid equal to the Regular Rate.
2.06. Interest Payment Dates. The Borrowers shall pay
interest on the unpaid principal amount of each Loan from the date of such Loan
until such principal amount shall be paid in full, which interest shall be
payable monthly in arrears on the first day of each month, commencing May 1,
2001. After maturity of any principal amount of any Loan (by acceleration, at
scheduled maturity or otherwise), interest on such amount shall be due and
payable on demand.
2.07. Maturity Date. To the extent not due and payable
earlier pursuant to the terms of this Agreement, the entire unpaid principal
amount of each of the Loans shall be due and payable on the Maturity Date.
2.08. Payments.
(a) Time, Place and Manner. All payments and
prepayments to be made in respect of principal, interest, fees or other amounts
due from the Borrowers hereunder, the Notes or any other Related Document shall
be payable at or before 12:00 noon, Orlando, Florida time, on the day when due
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived. Such payments shall be made to the Lender at the Lender
Account in Dollars in funds immediately available at the Bank's Office without
setoff, counterclaim or other deduction of any nature. The Lender shall
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
maintain a separate loan account (the "Borrowers' Account") on its books in the
name of the Borrowers in which the Borrowers will be charged with Loans made by
the Lender to the Borrowers hereunder and with any other Obligations. The
Borrowers hereby authorize the Lender to, and the Lender may, from time to time
charge the Borrowers' Account with any interest, fees, expenses and other
Obligations that are due and payable under this Agreement or any Related
Document. The Borrowers confirm that any charges which the Lender may so make to
the Borrowers' Account as herein provided will be made as an accommodation to
the Borrowers and solely at the Lender's discretion, and shall constitute a Loan
to the Borrowers funded by the Lender and subject to this Agreement. The
Borrowers agree that the Lender shall have the right to make such charges
regardless of whether any Event of Default or Potential Default shall have
occurred and be continuing or whether any of the conditions precedent in Section
6.02 have been satisfied. The Borrowers' Account will be credited upon receipt
of "good funds" in the Lender Account with all amounts actually received by the
Lender from the Borrowers or others for the account of the Borrowers. Interest
on all Loans and all fees that accrue on a per annum basis shall be computed on
the basis of the actual number of days elapsed in the period during which
interest or such fee accrues and a year of three hundred sixty (360) days. In
computing interest on any Loan, the date of the making of such Loan shall be
included and the date of payment shall be excluded; provided, however, that if a
Loan is repaid on the same day in which it is made, one (1) day's interest shall
be paid on such Loan.
(b) Periodic Statements. Upon request, the
Lender shall provide Planet Hollywood promptly after the end of each calendar
month a summary statement (in the form from time to time used by the Lender) of
(A) the opening and closing daily balances in the Borrowers' Account during such
month, (B) the amounts and dates of all Loans made during such month, (C) the
amounts and dates of all payments on account of the Loans made during such
month, (D) the amount of interest accrued on the Loans during such month, and
(E) the amount and nature of any charges to the Borrowers' Account made during
such month on account of interest, fees and expenses and other Obligations. All
entries on any such statement shall, thirty (30) days after the same is sent, be
presumed to be correct and shall constitute prima facie evidence of the
information contained in such statement, subject to the Borrowers' right to
rebut such presumption by demonstrating to the reasonable satisfaction of the
Lender the existence of any error on the part of the Lender.
(c) Apportionment of Payments. All payments
shall be remitted to the Lender and all such payments and any other amounts,
including, without limitation, proceeds of Collateral received from or on behalf
of the Borrowers shall be applied subject to the provisions of this Agreement
first, to pay any reasonable fees, expense reimbursements or indemnities then
due to the Lender hereunder; second, to pay interest due in respect of Loans;
and third, to pay, prepay or provide cash collateral in respect of principal of
Loans. The foregoing apportionment of payments is solely for the purpose of
determining the obligations of the Borrowers hereunder and, notwithstanding such
apportionment, the Lender may on its books and records allocate payments
received by it in a manner different from that contemplated hereby. No such
different allocation shall alter the rights and obligations of the Borrowers
under this Agreement determined in accordance with the apportionments
contemplated by this Section 2.08(c). To the extent that the Borrowers make a
payment or payments, which payment(s) or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause then, to the
extent of such payment or proceeds received, the Obligations or part thereof
intended to be satisfied shall be revived and continue in full force and effect,
as if such payment or proceeds had not been received by the Lender.
(d) Interest Upon Events of Default. To the
extent permitted by law, after there shall have occurred and so long as there is
continuing an Event of Default pursuant to Section 10.01, all principal,
interest, fees, indemnities or any other Obligations of the Borrowers hereunder,
under any Note or any other Related Document (and including interest accrued
under this subsection 2.08(d)) shall compound on a daily basis and shall bear
interest for each day until paid (before and after judgment), payable on demand,
at a rate per annum of one percent (1%) above the Regular Rate (the "Default
Rate").
(e) [intentionally omitted]
(f) Facility Fees. The Borrowers shall pay to
the Lender a fee of $15,000 payable on the Closing Date (a "Facility Fee").
(g) Payment of Fees. The Borrowers shall pay to
the Lender the fees set forth in this Section 2.08 at the times set forth
herein. All fees under this Agreement and the other Related Documents are
non-refundable under all circumstances.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
2.09. Use of Proceeds. The proceeds of the Loans shall be used
as a refinancing of the CIT Facility, which refinancing shall permit the use of
a portion of such proceeds to be utilized to pay down the CIT Facility, and the
balance to be used for working capital and other general corporate purposes.
2.10. [intentionally omitted]
2.11. Reserve Requirements; Capital Adequacy Circumstances.
(a) Notwithstanding any other provision herein,
if any change in applicable law or regulation after the Closing Date or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall impose any tax on or change the basis of taxation of
payments to the Lender or any Affiliate of the Lender (in lieu of or in addition
to the Lender) on the principal of or interest on any Loan made by the Lender or
of any amounts payable hereunder (other than taxes imposed on the overall net
income of the Lender or such Affiliate by the jurisdiction in which the Lender
or such Affiliate has its principal office or by any political subdivision or
taxing authority therein), or shall impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by the Lender or Affiliate of such
Lender or shall impose on the Lender or such Affiliate any other condition
affecting this Agreement or any Loans made by the Lender, and the result of any
of the foregoing shall be to increase the cost to the Lender of making or
maintaining any Loan or to reduce the amount of any sum received or receivable
by the Lender hereunder (whether of principal, interest or otherwise) in respect
thereof by an amount reasonably deemed by the Lender to be material, then the
Borrowers shall pay to the Lender such additional amount or amounts as will
compensate the Lender for such additional costs incurred or reduction suffered.
Any amount or amounts payable by the Borrowers to the Lender in accordance with
the provisions of this Section 2.11(a) shall be paid by the Borrowers to the
Lender within twenty (20) days after receipt by the Borrowers from the Lender of
a statement setting forth in reasonable detail the amount or amounts due and the
basis for the determination from time to time of such amount or amounts, which
statement shall be conclusive and binding absent manifest error.
(b) If the Lender shall have reasonably
determined that the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Lender (or any lending office of the Lender) or by any Affiliate of the
Lender, as the case may be, with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has the effect of reducing the rate of return on the
Lender's capital or on the capital of the Lender's Affiliate, as the case may
be, as a consequence of the Lender's obligations under this Agreement and the
Related Documents to a level below that which the Lender or the Lender's
Affiliate, as the case may be, could have achieved but for such adoption, change
or compliance (taking into consideration the Lender's policies or the Lender's
Affiliate's policies, as the case may be, with respect to capital adequacy) by
an amount deemed by the Lender to be material, then, from time to time, the
Borrowers shall reimburse the Lender for such reduction. Any amount or amounts
payable by the Borrowers to the Lender in accordance with the provisions of this
Section 2.11(b) shall be paid by the Borrowers to the Lender within ten (10)
days after receipt by the Borrowers from the Lender of a statement setting forth
(i) in reasonable detail the amount or amounts due, (ii) the basis for the
determination from time to time of such amount or amounts and (iii) that such
amount(s) have been determined in good faith, which statement shall be
conclusive and binding absent manifest error.
(c) The protection of this Section 2.11 shall
be available to the Lender regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or other
change or condition which shall have occurred or been imposed.
2.12. [intentionally omitted]
2.13. [intentionally omitted]
2.14. [intentionally omitted]
2.15. Taxes.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
(a) All payments made by each Borrower
hereunder, under the Notes or under any other Loan Document, will be made
without setoff, counterclaim, deduction or other defense. All such payments
shall be made free and clear of and without deduction for any present or future
income, franchise, sales, use, excise, stamp or other taxes, levies, imposts,
deductions, charges, fees, withholdings, restrictions or conditions of any
nature now or hereafter imposed, levied, collected, withheld or assessed by any
jurisdiction (whether pursuant to United States Federal, state, local or foreign
law) or by any political subdivision or taxing authority thereof or therein, and
all interest, penalties or similar liabilities, excluding taxes on the overall
net income of the Lender (such nonexcluded taxes are hereinafter collectively
referred to as the "Taxes"). If any Borrower shall be required by law to deduct
or to withhold any Taxes from or in respect of any amount payable hereunder, (i)
the amount so payable shall be increased to the extent necessary so that after
making all required deductions and withholdings (including Taxes on amounts
payable to the Lender pursuant to this sentence) the Lender receives an amount
equal to the sum it would have received had no such deductions or withholdings
been made, (ii) such Borrower shall make such deductions or withholdings, and
(iii) such Borrower shall pay the full amount deducted or withheld to the
relevant taxation authority in accordance with applicable law. Whenever any
Taxes are payable by any Borrower, as promptly as possible thereafter, such
Borrower shall send the Lender an official receipt showing payment. In addition,
each Borrower agrees to pay any present or future taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery, performance, recordation or filing of, or otherwise with respect to,
this Agreement, the Notes or any other Loan Document (hereinafter referred to as
"Other Taxes").
(b) Each Borrower shall jointly and severally
indemnify the Lender for the amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.15) paid by the Lender and any liability (including
penalties, interest and expenses for nonpayment, late payment or otherwise)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be paid
within thirty (30) days from the date on which the Lender makes written demand.
(c) If the Borrowers fail to perform their
obligations under this Section 2.15, the Borrowers shall jointly and severally
indemnify the Lender for any incremental taxes, interest or penalties that may
become payable as a result of any such failure.
2.16. Joint and Several Liability. In addition to the
Borrowers' joint and several indemnification of the Lender, as provided under
this Agreement and the Loan Documents, the Borrowers shall be jointly and
severally liable for the repayment in full of all Obligations. 2.17.
[intentionally omitted]
2.18. Equity Contributions. Additional contributions to
the Borrowers of equity may be utilized or employed by the Borrowers without
restriction hereunder.
ARTICLE III
[intentionally omitted]
ARTICLE IV
[intentionally omitted]
ARTICLE V
SECURITY
5.01. Collateral. As security for the full and timely
payment and performance of all of the Obligations, each Borrower hereby as of
the Closing Date, assigns, pledges, transfers, grants, bargains and sells,
conveys, releases, confirms and sets over unto the Lender, and hereby grants and
creates in favor of the Lender, a security interest in the Collateral, second in
priority only to the rights of the CIT Lenders arising under the CIT Agreement.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
5.02 Trademarks. Any Borrower shall have the right to
allow any trademark (other than the PH Trademarks) to lapse if such Borrower
determines to do so in its reasonable business judgment and there would be no
Material Adverse Effect.
ARTICLE VI
CONDITIONS OF EFFECTIVENESS
6.01. Conditions Precedent to Effectiveness. This Agreement
shall become effective as of the Business Day when each of the following
conditions precedent shall have been satisfied and the obligation of the Lender
to make the initial Loan hereunder shall be subject to the satisfaction of the
following conditions precedent (the "Closing Date"):
(a) [intentionally omitted]
(b) Payment of Fees, Etc. The Borrowers shall
have paid all fees, costs and expenses then payable by the Borrowers including,
without limitation, those due and payable pursuant to Sections 2.08 and 11.06
hereof. The Borrowers shall have paid to counsel to the Lender all reasonable
fees and other client charges due to such counsel on the Closing Date.
(c) Representations and Warranties; No Event of
Default. Except with respect to Inactive Guarantors, the representations and
warranties contained in Article VII of this Agreement and in each other Loan
Document and certificate or other writing delivered to the Lender pursuant
hereto or thereto or prior to the Closing Date shall be correct on and as of the
Closing Date as though made on and as of such date; and no Potential Default or
Event of Default shall have occurred and be continuing on the Closing Date or
would result from this Agreement becoming effective in accordance with its
terms.
(d) Legality. The making of the initial Loans
shall not contravene any law, rule or regulation applicable to the Lender.
(e) Delivery of Documents. The Lender (or its
agent) shall have received on or before the Closing Date the following, each in
form and substance satisfactory to the Lender and, unless indicated otherwise,
dated the Closing Date:
(i) a Note payable to the order of the
Lender, duly executed by the Borrowers and dated as of the Closing Date;
(ii) a copy of the resolutions adopted
by the Boards of Directors or governing bodies performing like functions of each
Borrower and each Guarantor (other than Inactive Guarantors), certified by
authorized officers thereof, authorizing (A) the transactions contemplated by
the Loan Documents to which such Borrower or such Guarantor is or will be a
party, and (B) the execution, delivery and performance by such Borrower or such
Guarantor of each Loan Document and the execution and delivery of the other
documents to be delivered by such Borrower or such Guarantor in connection
therewith;
(iii) a certificate of authorized officers
of each Borrower and each Guarantor (other than Inactive Guarantors), certifying
the names and true signatures of the officers of such Borrower or such Guarantor
authorized to sign each Loan Document to which such Borrower or such Guarantor
is or will be a party and the other documents to be executed and delivered by
such Borrower or such Guarantor in connection therewith, together with evidence
of the incumbency of such authorized officers;
(iv) a copy of the charter of Planet
Hollywood certified as of a date not more than ten (10) Business Days prior to
the Closing Date by the appropriate official of the state of incorporation of
Planet Hollywood and certified and by an authorized officer of Planet Hollywood;
(v) a copy of the by-laws of Planet
Hollywood, certified as of the Closing Date by an authorized officer of Planet
Hollywood;
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
(vi) an opinion of Stroock & Stroock &
Xxxxx LLP, counsel to the Borrowers and the Guarantors (other than Inactive
Guarantors) as to the authorized and permitted execution and delivery of the
Intercreditor Agreement, as amended, by the PIK Trustee______________.
(vii) a certificate of the Designated
Financial Officer certifying as to the matters set forth in subsection (c) of
this Section 6.01;
(viii) a copy of the financial statements
and projections of the Borrowers referred to in Section 7.08 hereof certified by
the Designated Financial Officer;
(ix) [intentionally omitted];
(x) a certificate of an authorized
officer of each Borrower certifying the names and true signatures of those
officers or agents of the Borrowers that are authorized to provide Notices of
Borrowing and all other notices under this Agreement and the Loan Documents;
(xi) [intentionally omitted];
(xii) upon request, a certificate of an
authorized officer of each Borrower and each Guarantor stating that it has no
Plans or any Multiemployer Plans other than the Planet Hollywood Employee
Savings Plan;
(xiii) upon request, a certificate of
insurance evidencing insurance on the property of such Borrower or such
Guarantor (other than Inactive Guarantors) as is required by Section 8.07 of
this Agreement, naming the Lender as additional insured or loss payee, for all
insurance maintained by such Borrower and such Guarantor;
(xiv) such other agreements, instruments,
approvals, opinions and other documents as the Lender may reasonably request;
(xv) upon request, evidence, including a
listing of all effective financing statements which name as debtor each Borrower
and each Guarantor, tax Liens and judgment Liens, establishing the absence of
any liens on Collateral (other than Permitted Liens), including Inventory or
Memorabilia, and upon the request of the Lender, the execution and delivery of
any public filings deemed necessary or desirable by the Lender;
(xvi) the Loan Documents duly executed by
the parties thereto;
(xvii) appropriate financing statements on
Form UCC-1, duly executed by each Borrower and each Guarantor and duly filed in
such office or offices as may be necessary or, in the opinion of the Lender,
desirable to perfect the security interests purported to be created by the Loan
Documents and evidence that all necessary filing fees and taxes or other
expenses related to such filings have been paid in full; and
(xviii) [intentionally omitted]
(f) Receipt of Documents. All Loan Documents
and all documents incidental thereto, shall be satisfactory to the Lender and
its counsel, and the Lender and such counsel shall have received all such
information and such counterpart originals or certified or other copies of such
documents, in form and substance reasonably satisfactory to the Lender, as the
Lender or such counsel may reasonably request.
(g) Cash Management System. The cash management
system of each Borrower and its Subsidiaries (other than Inactive Guarantors)
shall be satisfactory to the Lender.
(h) Lien Priority. The Liens in favor of the
Lender pursuant to the Loan Documents hereof shall be valid and perfected second
priority Liens on the Collateral, subordinated only to the priority Liens
created by the CIT Agreement, which Collateral shall be subject to no other
Liens except for Permitted Liens.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
(i) Compliance. The Lender shall be satisfied
as to each Borrower's and each Guarantor's (other than Inactive Guarantors)
compliance with all Environmental Laws, ERISA, tax, and labor matters.
(j) [intentionally omitted]
(k) [intentionally omitted]
(l) No Liens. There are no liens or
encumbrances of any kind on any Collateral other than those created by the CIT
Agreement and the Permitted Liens.
(m) [intentionally omitted]
(n) Due Diligence. The Lender shall have
completed its due diligence to its satisfaction, including, without limitation,
review of the Borrowers' books and records, systems and controls and analysis of
the Inventory and Memorabilia. The results of such review shall be in form and
substance satisfactory to the Lender. In connection with the Lender's due
diligence investigation of any Borrower or any Guarantor, reasonable
out-of-pocket travel expenses (including those incurred in connection with
periodic field audits by employees of the Lender), reasonable out-of-pocket fees
and expenses incurred by the Lender in connection with above shall be paid by
Borrowers. Any oral or written request by the Borrowers for any Credit Extension
hereunder shall constitute a representation and warranty by the Borrowers that
the conditions set forth in this Section 6.01 have been satisfied as of the date
of such request. Failure of the Lender to receive notice from the Borrowers to
the contrary before such Credit Extension is made shall constitute a further
representation and warranty by the Borrowers that the conditions set forth in
this Section 6.01 have been satisfied as of the date of such Credit Extension.
(o) Intercreditor Agreement. The Intercreditor
Agreement, as amended, shall be in form and substance satisfactory to the
Lender.
6.02. Conditions Precedent to Loans. In addition to the
requirements of Section 6.01, the obligation of Lender to make any Loan is
subject to the fulfillment, in a manner satisfactory to the Lender, of each of
the following conditions precedent:
(a) Payment of Fees, Etc. The Borrowers shall
have paid all fees, costs, expenses and taxes then payable by the Borrowers
pursuant to Sections 2.08 and 11.06 hereof.
(b) Representations and Warranties; No Event of
Default. The following statements shall be true, and the submission by the
Borrowers to the Lender of a Notice of Borrowing with respect to a Loan and the
Borrowers' acceptance of the proceeds of such Loan shall be deemed to be a
representation and warranty by the Borrowers on the date of such Loan that, (i)
the representations and warranties contained in Article VII of this Agreement
and in each other Loan Document and certificate or other writing delivered to
the Lender pursuant hereto on or prior to the date of such Loan are correct on
and as of such date as though made on and as of such date (except for
representations and warranties which relate to a specific date); and (ii) no
Potential Default or Event of Default has occurred and is continuing or would
result from the making of the Loan to be made on such date.
(c) Legality. The making of such shall not
contravene any law, rule or regulation applicable to the Lender.
(d) Borrowing Notice. The Lender shall have
received a Notice of Borrowing pursuant to Section 2.03 hereof no later than
12:00 noon (Orlando, FL time) on the date of a proposed borrowing of a Loan.
(e) Receipt of Documents. The Lender shall
have received such other agreements, instruments, approvals and other documents,
each in form and substance reasonably satisfactory to the Lender, as the Lender
may reasonably request.
(f) Proceedings; Receipt of Documents. All
proceedings in connection with the making of such Loan and the other
transactions contemplated by this Agreement, and all documents incidental
thereto, shall be reasonably
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
satisfactory to the Lender and its counsel, and the Lender and such counsel
shall have received all such information and such counterpart originals or
certified or other copies of such documents, in form and substance reasonably
satisfactory to the Lender, as the Lender or such counsel may reasonably
request.
(g) Commitment. The aggregate unpaid principal
amount of the Loans shall not exceed, and after giving effect to the requested
Credit Extension will not exceed, the Current Commitment.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
As of the Closing Date and any date a Loan is made hereunder,
the Borrowers hereby represent and warrant to the Lender as follows (but none of
the following representations and warranties shall apply to the Inactive
Guarantors):
7.01. Organization, Good Standing, Etc. Each Borrower and
each of its respective Subsidiaries (i) is a corporation, partnership or limited
liability company duly organized, validly existing and in good standing under
the laws of the state of its formation, (ii) has all requisite power and
authority to conduct its business as now conducted and as presently contemplated
and (in the case of such Borrower) to make the borrowings hereunder and to
consummate the transactions contemplated hereby, except in the case where
instances of failure to obtain such power and authority, individually or in the
aggregate, would not result in and could not reasonably be expected to result in
a Material Adverse Effect, and (iii) is duly qualified to do business and is in
good standing in each jurisdiction in which the character of the properties
owned or leased by it or in which the transaction of its business makes such
qualification necessary, except where instances of a failure to qualify or
remain in good standing or a failure to maintain rights and privileges,
individually or in the aggregate, would not result in and could not reasonably
be expected to result in a Material Adverse Effect.
7.02. Authority and Authorization. The execution, delivery
and performance by each Borrower and their Subsidiaries of each Loan Document to
which it is a party, (i) have been duly authorized by all necessary corporate
action, (ii) do not and will not contravene its charter or by-laws, any other
applicable law or any contractual restriction binding on or otherwise affecting
it or any of its properties or result in a default under any agreement or
instrument to which each Borrower or any of their Subsidiaries is a party or by
which they or their respective properties may be subject, except in the case of
contractual restrictions where instances of such contravention, individually or
in the aggregate, would not result in and could not reasonably be expected to
result in a Material Adverse Effect, (iii) do not and will not result in or
require the creation of any Lien (other than pursuant to any such Loan Document,
as modified by the Intercreditor Agreement or with respect to Inactive
Guarantors) upon or with respect to any of its properties, and (iv) do not and
will not result in any suspension, revocation, impairment, forfeiture or
nonrenewal of any permit, license, authorization or approval applicable to its
operations or any of its properties, except with respect to Inactive Guarantors
and where instances of such suspension, revocation, impairment, forfeiture or
nonrenewal, individually or in the aggregate, would not result in and could not
reasonably be expected to result in a Material Adverse Effect.
7.03. Execution and Binding Effect. As of the Closing Date,
this Agreement and each of the other Loan Documents required to be executed and
delivered on or prior to the date hereof has been duly and validly executed and
delivered by each such Borrower and Guarantor party thereto, and constitutes the
legal, valid and binding obligations of each Borrower and each Guarantor
enforceable in accordance with the terms hereof or thereof. Each Loan Document
that is not required to be executed and delivered by a Borrower or a Guarantor
prior to the Closing Date, when executed and delivered, will be validly executed
and delivered by such Borrower or Guarantor and will constitute legal, valid and
binding obligations of such Borrower or Guarantor enforceable against it in
accordance with the terms thereof, except as enforceability may be limited by
(a) applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent
transfer, reorganization, moratorium or similar laws from time to time in effect
affecting generally the enforcement of creditors' rights and remedies, and (b)
general principles of equity, including, without limitation, principles of
reasonableness, good faith and fair dealing and an implied covenant of good
faith and fair dealing (regardless of whether enforcement is sought in equity or
at law), principles requiring consideration of the impracticability or
impossibility of performance at any time, and principles affording defenses
based on unconscionability, and such principles may include a requirement that a
creditor act reasonably and in good faith.
7.04. Governmental Approvals. Other than as obtained
heretofore, or with respect to the filing of UCC-1 forms with the appropriate
filing officer, no authorization, consent, approval, license, exemption or other
action by, and no
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
registration, qualification, designation, declaration or filing with, any
Governmental Authority is or will be necessary in connection with the execution
and delivery by any Borrower or any of their respective Subsidiaries of each
Loan Document to which it is a party, consummation of the transactions therein
contemplated, performance of or compliance with the terms and conditions thereof
or to ensure the legality, validity, enforceability and admissibility in
evidence thereof.
7.05. Absence of Conflicts. Neither the execution and
delivery of this Agreement or the other Loan Documents to which the Borrowers or
the Guarantors are a party nor consummation of the transactions herein or
therein contemplated nor performance of or compliance with the terms and
conditions hereof or thereof will (a) violate any Law, (b) conflict with or
result in a breach of or default under its charter or by-laws, or any material
agreement or instrument to which the Borrowers or the Guarantors are a party or
by which it or any of their properties (now owned or hereafter acquired) may be
subject or bound, or (c) result in the creation or imposition of any Lien upon
any property (now owned or hereafter acquired) of the Borrowers and the
Guarantors, except the Liens in favor of the Lender with respect to the
Collateral, as modified by the Intercreditor Agreement, as amended, except where
instances of such violation of Law, conflict, or breach of any agreement or
instrument, individually or in the aggregate, would not result in and could not
reasonably be expected to result in a Material Adverse Effect.
7.06. Subsidiaries. Schedule 7.06 annexed hereto is a
complete and correct description of the name, jurisdiction of organization and
ownership of the outstanding equity interests of each Subsidiary of the
Borrowers in existence on the Closing Date. All shares of such stock owned by
the Borrowers or one or more of their Subsidiaries, as indicated in such
Schedule, are owned free and clear of all Liens.
7.07. Litigation. Except as set forth in the financial
statements referred to in Section 7.08 hereof, there is not, to the best
knowledge of any Borrowers, any pending or threatened proceeding by or before
any Governmental Authority, arbitrator or grand jury against or affecting any
Borrower or any ERISA Affiliate with respect to any Environmental Law or ERISA,
which, if adversely decided, can reasonably be expected to have a Material
Adverse Effect.
7.08. Financial Condition; Historical Statements. The
Borrowers have heretofore furnished to the Lender a balance sheet of Planet
Hollywood and its Consolidated Subsidiaries for the fiscal year ended December
31, 1999 and the related statements of operations and cash flows for the fiscal
year then ended, as examined and reported on by PricewaterhouseCoopers LLP,
independent certified public accountants, and a balance sheet and related
statements of operations and cash flows of Planet Hollywood and its Consolidated
Subsidiaries for and as of the end of the twelve (12) month period ended
December 31, 2000, as certified by the Designated Financial Officer. Such
financial statements present fairly, in all material respects, the financial
condition of Planet Hollywood and its Consolidated Subsidiaries as of the end of
such fiscal year and as of the end of such period, as applicable, and the
results of its operations and the cash flows for the fiscal year then ended and
for the period then ended, as applicable, all in conformity with GAAP applied on
a basis consistent with that of the preceding fiscal year, subject (in the case
of the interim financial statements) to year-end adjustments. Except as
disclosed therein the Borrowers and their Subsidiaries do not have any material
contingent liabilities (including liabilities for taxes), unusual forward or
long term commitments or unrealized or anticipated losses from unfavorable
commitments.
7.09. Compliance with Law, Etc. Each of the Borrowers and
each of the Guarantors is not in violation of its charter or by-laws, in
violation of any Law (including but not limited to violations pertaining to the
conduct of its business or the use, maintenance or operation of the real and
personal properties owned or possessed by it), or in breach of any material term
of any agreement or instrument binding on or otherwise affecting it or any of
its properties, except, in the case of such violations and breaches (other than
violations relating to the payment of Taxes which, if unpaid, could result in a
Lien on any Collateral or any other violation or breach that may result in a
Lien on any Collateral), where instances of violation or breach of any agreement
or instrument, individually or in the aggregate, would not result in and could
not reasonably be expected to result in a Material Adverse Effect.
7.10. ERISA. Each Plan is in substantial compliance with
ERISA and the Code, (ii) no Termination Event has occurred nor is reasonably
expected to occur with respect to any Plan, (iii) the most recent annual report
(Form 5500 Series) with respect to each Plan, including Schedule B (Actuarial
Information) thereto, copies of which have been filed with the Internal Revenue
Service, is complete and correct and fairly presents the funding status of such
Plan; and to the best of the Borrowers' knowledge, there has been no material
adverse change in such funding status since the date of such report; (iv) no
Plan has an Unfunded Current Liability (other than an Unfunded Current Liability
resulting from interest rate fluctuations) in excess of $100,000; (v) no Plan
had an accumulated or waived funding deficiency or permitted decreases which
would create a
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
deficiency in its funding standard account within the meaning of Section 412 of
the Code at any time during the previous sixty (60) months in excess of
$100,000, (vi) all contributions required to be made with respect to a Plan have
been timely made; (vii) neither the Borrowers nor any ERISA Affiliate has
incurred any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204, or 4212(c) of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code or reasonably expects to incur any
liability (including any indirect, contingent, or secondary liability) under any
of the foregoing Sections with respect to any Plan in excess of $100,000; (viii)
no proceedings have been instituted to terminate or appoint a trustee to
administer any Plan; (ix) no condition exists which presents a material risk to
any Borrower or any ERISA Affiliate of incurring a material liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the Code;
(x) no Lien imposed under the Code or ERISA exists or is likely to arise on
account of any Plan; and (xi) there are no pending or, to the knowledge of the
Borrowers, threatened claims, actions, proceedings, or lawsuits (other than
ordinary course claims for benefits) asserted against any Plan or its assets,
any fiduciary with respect to any Plan, any Borrower, or any ERISA Affiliate.
Neither any Borrower nor any ERISA Affiliate has incurred any withdrawal
liability under ERISA with respect to any Multiemployer Plan, and neither any
Borrower nor any ERISA Affiliate expects to incur a withdrawal liability. Except
as required by Section 4980B of the Code, or as otherwise disclosed on Schedule
7.10 annexed hereto, no Borrower nor any ERISA Affiliate maintains a welfare
plan (as defined in Section 3(1) of ERISA) which provides benefits or coverage
after a participant's termination of employment. All Plans in existence on the
Closing Date are set forth on Schedule 7.10.
7.11. Taxes, Etc. All Tax returns required to be filed by
the Borrowers and the Guarantors have been properly prepared, executed and
filed. All Taxes, assessments, fees and other governmental charges upon the
Borrowers and their Subsidiaries or upon any of their respective properties,
income, sales or franchises which are shown thereon as due and payable have been
paid. The reserves and provisions for Taxes, if any, on the books of the
Borrowers are adequate for all open years and for its current fiscal period. The
Borrowers do not know of any proposed additional assessment or basis for any
material assessment for additional Taxes (whether or not reserved against),
which, if assessed, would cause a violation of Sections 6.01 hereof. The federal
income Tax liabilities of the Borrowers have been finally determined by the
Internal Revenue Service, or the time for audit has expired, for all fiscal
periods ended on or prior to January 1, 1995, and all such liabilities
(including all deficiencies assessed following audit) have been satisfied.
7.12. Full Disclosure. No representation or warranty made
by any Borrower or any Guarantor under this Agreement or any other Loan Document
is false or misleading in any material respect and no Loan Document or schedule
or exhibit thereto and no certificate, report, statement or other document or
information furnished to the Lender in connection herewith or therewith or with
the consummation of the transactions contemplated hereby and thereby, contains,
taken as a whole, any material misstatement of fact or omits to state a material
fact or any fact necessary to make the statements contained herein or therein
not misleading. To the extent the Borrowers furnish any projections of the
financial position and results of operations of the Borrowers and their
respective Subsidiaries for, or as at the end of, certain future periods, such
projections are prepared in good faith on the basis of assumptions, methods and
tests stated therein which are reasonably believed by the Borrowers to have been
reasonable and information reasonably believed by the Borrowers to have been
accurate based upon the information available to the Borrowers at the time such
projections were furnished to the Lender. The Borrowers have disclosed to the
Lender all relevant information that, to the best of their knowledge, is
reasonably likely to result in a Material Adverse Effect.
7.13. Operating Lease Obligations; Existing Liens; Unpaid
Rent. On the Closing Date, the Borrowers and their Subsidiaries do not have any
obligations as lessee for the payment of rent for any real property. There are
no Liens on any assets of the Borrowers other than (i) the Liens created by the
CIT Agreement, the Note Purchase Agreement and the PIK Indenture, (ii) the Liens
created as of the Closing Date in favor of the Lender hereunder, (iii) Liens
securing Capitalized Lease Obligations of the Borrowers, and (iv) Permitted
Liens. As of the Closing Date, the outstanding rent for the leased distribution
centers, warehouses and retail stores of the Borrowers is current.
7.14. Environmental Matters. None of the operations of any
Borrower or its Subsidiaries are the subject of any federal, state or local
investigation to determine whether any Remedial Action is needed to address the
presence, disposal, Release or threatened Release which is reasonably likely to
result in Environmental Liabilities and Costs of $500,000 or more in the
aggregate together with other such Environmental Liabilities and Costs, (ii) the
Borrowers and their respective Subsidiaries do not have any contingent liability
in connection with any Release which is reasonably likely to result in
Environmental Liabilities and Costs of $500,000 or more in the aggregate
together with other such Environmental Liabilities and Costs, (iii) the
operations of the Borrowers and their respective Subsidiaries are in compliance
with all Environmental Laws, except those laws where a failure to comply is not
reasonably likely to result in Environmental Liabilities and Costs of $500,000
or more in the
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
aggregate together with such other Environmental Liabilities and Costs, (iv)
there has been no Release at any of the properties owned or operated by the
Borrowers, their respective Subsidiaries or any predecessor in interest or
title, or at any disposal or treatment facility which received Hazardous
Materials generated by the Borrowers or their Subsidiaries or any predecessor in
interest or title which is reasonably likely to result in Environmental
Liabilities and Costs of $500,000 or more in the aggregate together with other
such Environmental Liabilities and Costs; (v) no Environmental Actions have been
asserted against the Borrowers or their Subsidiaries or any predecessor in
interest or title nor do the Borrowers or their Subsidiaries have knowledge or
notice of any threatened or pending Environmental Action against the Borrowers
or their Subsidiaries or any predecessor in interest or title which, if
adversely determined, is reasonably likely to result in Environmental
Liabilities and Costs of $500,000 or more in the aggregate together with other
such Environmental Liabilities and Costs; (vi) the Borrowers and their
Subsidiaries have obtained all permits, approvals, authorizations and licenses
required by Environmental Laws necessary for their operations, and all such
permits, approvals, authorizations and licenses are in effect and the Borrowers
and their Subsidiaries are in compliance with all terms and conditions of such
permits, approvals, authorizations and licenses, (vii) no Environmental Actions
have been asserted against any facilities that may have received Hazardous
Materials generated by the Borrowers and their Subsidiaries or any predecessor
in interest or title which, if adversely determined, is reasonably likely to
result in Environmental Liabilities and Costs of $500,000 or more in the
aggregate together with other such Environmental Liabilities and Costs.
7.15. Schedules. All of the information which is required
to be scheduled to this Agreement is set forth on the Schedules attached hereto,
is correct and accurate (other inaccuracies of de minimus effect), and does not
omit to state any information material thereto.
7.16. Insurance. The Borrowers and their Subsidiaries keep
their properties adequately insured and maintain (i) insurance to such extent
and against such risks, including fire, as is customary with companies in the
same or similar businesses, (ii) workmen's compensation insurance in the amount
required by applicable law, (iii) public liability insurance in the amount
customary with companies in the same or similar business against claims for
personal injury or death on properties owned, occupied or controlled by it, and
(iv) such other insurance as may be required by law or by the Loan Documents.
7.17. Use of Proceeds. The proceeds of the Loans shall be
used for working capital purposes and for other general corporate purposes.
7.18. Financial Accounting Practices, Etc. The Borrowers
and their Subsidiaries make and keep books, records and accounts which, in
reasonable detail, accurately and fairly reflect their respective transactions
and dispositions of their respective assets and maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization, and (ii) transactions are recorded as necessary (A) to permit
preparation of financial statements in conformity with GAAP except as previously
disclosed to the Lender and (B) to maintain accountability for assets.
7.19. [intentionally omitted]
7.20. Real Property; Leases.
(a) Schedule 7.20(a) annexed hereto sets forth a
complete and accurate description and list as of the Closing Date of the
location, by state and street address, of all real property owned and leased by
the Borrowers and their respective Subsidiaries, together with, in the case of
real property that is owned, a statement as to whether such real property is the
subject of a contract of sale (and, if so, a statement as to the status of such
sale).
(b) As of the Closing Date, the Borrowers and
their Subsidiaries have valid leasehold interests in all the Leases. None of the
Leases is subject to any Lien except Liens granted to the Lender pursuant to the
Security Documents and Permitted Liens. Each Lease is valid and enforceable in
accordance with its terms in all material respects and is in full force and
effect. No consent or approval of any landlord or other third party in
connection with the Leases is necessary for the Borrowers or any of their
Subsidiaries to enter into and execute the Loan Documents. Neither the Borrowers
nor any of their Subsidiaries or, to the knowledge of the Borrowers or any of
their Subsidiaries, any other party to any Lease is in default of its
obligations thereunder and neither the Borrowers nor any of their Subsidiaries
nor any other party to any such Lease has at any time delivered or received any
notice of default which remains uncured under any such Lease and, as of the
Closing Date, no event has occurred which, with the giving of notice or the
passage of time, or both, would constitute a default under any such
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
Lease, except for such defaults the consequence of which, individually or in the
aggregate, would not result in and could not reasonably be expected to result in
a Material Adverse Effect.
(c) All permits required to have been issued to
the Borrowers or their Subsidiaries with respect to the real property owned or
leased by the Borrowers or any of their Subsidiaries to enable such property to
be lawfully occupied and used for all of the purposes for which it is currently
occupied and used (separate and apart from any other properties), have been
lawfully issued and are in full force and effect, and all such real property
complies in all material respects with all applicable legal and insurance
requirements, except where the failure to obtain such permits or instances of
non-compliance with applicable legal and insurance requirements, individually or
in the aggregate, would not result in and could not reasonably be expected to
result in a Material Adverse Effect.
(d) No portion of any real property owned or
leased by the Borrowers or any of their Subsidiaries has suffered any damage by
fire or other casualty loss which has not heretofore been completely repaired
and restored to its condition existing prior to such casualty or which if not
repaired or restored is not reasonably likely to result in a Material Adverse
Effect. Except as disclosed to the Lender in writing, no portion of any of the
real property owned or leased by the Borrowers or any of their Subsidiaries is
located in a special flood hazard area as designated by any Governmental
Authority.
7.21. Location of Bank Accounts. Schedule 7.21 annexed
hereto sets forth a complete and accurate list as of the Closing Date of all
deposit and other accounts, including the Cash Concentration Account and all
Depository Accounts, maintained by the Borrowers and their respective
Subsidiaries together with a description thereof (i.e., the bank at which such
deposit or other account is maintained and the account number and the purpose
thereof).
7.22. No Event of Default. No event has occurred and is
continuing and no condition exists which constitutes an Event of Default or
Potential Default.
7.23. Capitalized Leases. As of the Closing Date,
Capitalized Lease Obligations of the Borrowers and their respective Subsidiaries
(other than Inactive Guarantors) do not exceed $5,000,000 in the aggregate.
7.24. Inventory and Memorabilia. There is no location at which
the Borrowers and the Guarantors have any Inventory or Memorabilia (except for
Inventory and Memorabilia in transit) other than (i) those locations listed on
Schedule 1.01(B) annexed hereto, and (ii) any other locations approved in
writing by the Lender. Schedule 1.01(B) contains a true, correct and complete
list, as of the Closing Date, of the legal names and addresses of each warehouse
at which Inventory and Memorabilia of the Borrowers is stored. None of the
receipts received by the Borrowers from any warehouse states that the goods
covered thereby are to be delivered to bearer or to the order of a named Person
or to a named Person and such named Person's assigns.
7.25. Collateral. The Borrowers and the Guarantors have
good and marketable title to the Collateral.
7.26. Tradenames. Schedule 7.26 annexed hereto sets forth a
complete and accurate list as of the Closing Date of all tradenames used by the
Borrowers and their Subsidiaries.
7.27. Intellectual Property. Each of the Borrowers and
their Subsidiaries owns or licenses or otherwise has the right to use all
material licenses, permits, patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, copyright applications,
franchises, authorizations and other intellectual property rights that are
necessary for the operations of their respective businesses and the ownership
and sale of Memorabilia and, to the knowledge of each such Borrower or each such
U.S. Subsidiary, without infringement upon or conflict with the rights of any
other Person with respect thereto, except where the failure to obtain the right
to use licenses, permits, patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, copyright applications,
franchises, authorizations and other intellectual property rights that are
necessary for the operations of their respective businesses and the ownership
and sale of Memorabilia, and infringements upon and conflicts with respect
thereto which, individually or in the aggregate, would not result in and could
not reasonably be expected to result in a Material Adverse Effect. To the best
knowledge of the Borrowers and their Subsidiaries, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Borrowers or any of
their Subsidiaries infringes upon or conflicts with any rights owned by any
other Person, and no claim or litigation regarding any of the foregoing is
pending or threatened, except
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
where such infringements, conflicts and pending or threatened litigation,
individually or in the aggregate, would not result in and could not reasonably
be expected to result in a Material Adverse Effect. To the knowledge of the
Borrowers and their Subsidiaries, no patent, invention, device, application,
principle or any statute, law, rule, regulation, standard or code is pending or
proposed, which, individually or in the aggregate, would result in or could
reasonably be expected to result in a Material Adverse Effect.
7.28. Regulation T, U or X. The Borrowers are not and will
not be engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation T, U or X issued by
the Board), and no proceeds of any Loan will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock.
7.29. Nature of Business. The Borrowers are not engaged in
any business other than (i) the operation of restaurants and retail stores
selling Planet Hollywood-related and Official All-Star Cafe-related merchandise,
and (ii) the sale and licensing of intellectual property and merchandise related
thereto, and the operation of websites in connection therewith and other
reasonably related activities (subject to the restrictions contained in the Loan
Documents related to the Memorabilia (including without limitation, the minimum
sales price and application of Net Proceeds)).
7.30. Adverse Agreements, Etc. Neither the Borrowers nor
any of their Subsidiaries is a party to any agreement or instrument, or subject
to any charter or other corporate restriction or any judgment, order,
regulation, ruling or other requirement of a court or other Governmental
Authority or regulatory body, which would result in a Material Adverse Effect,
or, to the best knowledge of the Borrowers, could reasonably be expected to
result in a Material Adverse Effect.
7.31. Holding Company and Investment Company Acts. Neither
the Borrowers nor any of their Subsidiaries is (i) a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935, as amended, or (ii) an "investment company" or an "affiliated person" or
"promoter" of, or "principal underwriter" of or for, an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended.
7.32. Permits, Etc. The Borrowers and their Subsidiaries
have all material permits, licenses, authorizations and approvals required for
them lawfully to own and operate their business.
7.33. Priority; Title. The Liens granted under the Security
Documents constitute, and shall at all times constitute, perfected, second
priority Liens on the Collateral. The Collateral is subject to no other Liens
other than Permitted Liens, and the Borrowers are the sole and absolute owner of
all of the Collateral with full right to pledge, sell, consign, transfer and
create Liens therein. No Person has any right of first refusal, option or other
preferential right to purchase any Collateral. The Borrowers will at their
expense warrant and, at the Lender's request, defend the same from any and all
claims and demands of any other Person other than the Permitted Liens. The
Borrowers will not grant, create or permit to exist, any Lien upon the
Collateral, or any proceeds thereof, in favor of any other Person other than
Permitted Liens. The Borrowers and their Subsidiaries have good and marketable
title or a valid leasehold interest in all of their properties and assets, free
and clear of all Liens except Permitted Liens.
7.34. Labor Relations; Collective Bargaining Agreements.
(a) Set forth on Schedule 7.34 annexed hereto is
a list (including dates of termination) of all collective bargaining agreements
between or applicable to the Borrowers or any of their U.S. Subsidiaries and any
union, labor organization or other bargaining agent in respect of the employees
of the Borrowers or any of such U.S. Subsidiaries.
(b) Neither the Borrowers nor any of their U.S.
Subsidiaries is engaged in any unfair labor practice that would result in or
could reasonably be expected to result in a Material Adverse Effect. There is
(i) no significant unfair labor practice complaint pending against the Borrowers
or any of their U.S. Subsidiaries or, to the best knowledge of the Borrowers or
any of their U.S. Subsidiaries, threatened against any of them, before the
National Labor Relations Board, and no significant grievance or significant
arbitration proceeding arising out of or under any Collective Bargaining
Agreement is now pending against the Borrowers or any of their U.S. Subsidiaries
or, to the best knowledge of the Borrowers or any of their U.S. Subsidiaries,
threatened against any of them, (ii) no significant strike, labor dispute,
slowdown or stoppage is pending against the Borrowers or any of their U.S.
Subsidiaries or, to the best knowledge of the Borrowers or any of their U.S.
Subsidiaries,
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
threatened against the Borrowers or any of their U.S. Subsidiaries, and (iii) to
the best knowledge of the Borrowers or any of their U.S. Subsidiaries, no union
representation question existing with respect to the employees of the Borrowers
or any of their U.S. Subsidiaries, except (with respect to any matter specified
in clause (i), (ii) or (iii) above, either individually or in the aggregate)
where such actual or threatened complaint, grievance, or arbitration proceeding,
strike, labor dispute, slowdown or stoppage, or union representation question
would not result in and could not reasonably be expected to result in a Material
Adverse Effect.
7.35. Loan Documents. The Loan Documents create and grant
to the Lender, a legal, valid and perfected second priority Lien on the
Collateral, subject to no other Liens except for Permitted Liens.
7.36. Solvency. After giving effect to the transactions
contemplated by this Agreement and the Related Documents and each Credit
Extension, the Borrowers and the Guarantors are, on a consolidated basis,
Solvent.
7.37. Ownership of Planet Hollywood Memorabilia, Inc. and
the Memorabilia. As of the date hereof, (i) Planet Hollywood owns one hundred
percent (100%) of Planet Hollywood Memorabilia, Inc., (ii) Planet Hollywood
Memorabilia, Inc. owns one hundred percent (100%) of the Memorabilia, all of
which was duly and properly transferred from Planet Hollywood to it pursuant to
an order, dated December 13, 1999, of the United States District Court for the
District of Delaware, and (iii) prior to the transfer described in clause (ii)
hereof, Planet Hollywood was the sole owner of and had good and marketable title
to one hundred percent (100%) of the owned Memorabilia.
7.38. Corporate Structure. The corporate chart evidencing
the corporate structure of the Borrowers and the Guarantors annexed as Schedule
7.38 hereto accurately reflects as of the Closing Date the corporate structure
of the Borrowers and the Guarantors in all material respects.
7.39. Delivery of Authenticity Documents. Upon request,
copies of the Authenticity Documents shall be promptly delivered to the Lender
within ten (10) days of the Closing Date.
7.40. Material Contracts. Schedule 7.40 annexed hereto sets
forth a complete listing of all Material Contracts.
7.41. [intentionally omitted]
7.42. [intentionally omitted] ]
7.43. Additional Representations and Warranties. With
respect to advances subsequent to the initial advances, such other
representations and warranties as shall be satisfactory to the Lender in its
reasonable discretion and which are customary to transactions of this nature.
ARTICLE VIII
AFFIRMATIVE COVENANTS
So long as any principal of or interest on the Loans or any
other Obligations (whether or not due) shall remain unpaid or the Lender shall
have any credit commitment hereunder, the Borrowers will, upon request of the
Lender (there being no requirement under this Article VIII (except Section 8.09)
that encompasses or otherwise applies to the Inactive Guarantors):
8.01. Reporting Requirements. Furnish to the Lender:
(a) As soon as practicable and in any event
within ninety (90) days after the close of each fiscal year of Planet Hollywood,
a consolidated (and consolidating) statement of operations and cash flows of
Planet Hollywood and its Consolidated Subsidiaries for such fiscal year and a
consolidated (and consolidating) balance sheet of Planet Hollywood and its
Consolidated Subsidiaries as of the close of such fiscal year, and notes to
each, all in reasonable detail, setting forth in comparative form the
corresponding figures for the preceding fiscal year, which statements and
balance sheet shall be certified by PricewaterhouseCoopers or other independent
certified public accountants of recognized national standing selected by the
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
Borrowers and reasonably satisfactory to the Lender. The certificate or report
of such accountants (the "Accountant's Opinion") shall be without an exception
or qualification arising out of the scope of the audit with respect to such
statements and balance sheet being prepared in compliance with GAAP and shall in
any event contain a written statement of such accountants substantially to the
effect that (i) such accountants examined such statements and balance sheet in
accordance with generally accepted auditing standards and accordingly made such
tests of accounting records and such other auditing procedures as such
accountants considered necessary in the circumstances, and (ii) in the opinion
of such accountants such statements and balance sheet present fairly, in all
material respects, the financial position of Planet Hollywood and its
Consolidated Subsidiaries as of the end of such fiscal year and the results of
its operations and the changes in its financial position for such fiscal year,
in conformity with GAAP (except for changes in application in which such
accountants concur). A copy of the Accountant's Opinion shall be delivered to
the Lender and signed by such independent public accountants. Each set of
statements and balance sheets delivered pursuant to this Section 8.01(a) shall
be accompanied by a certificate dated the date of the delivery of such
statements and balance sheet by the Designated Financial Officer stating in
substance that he has reviewed this Agreement and that in making the examination
necessary for this certification, he did not become aware of any Event of
Default or Potential Default, or if he did become so aware, such certificate
shall state the nature and period of existence thereof if determinable.
(b) As soon as practicable and in any event
within forty-five (45) days after the close of each fiscal quarter of Planet
Hollywood, unaudited consolidated (and consolidating) statements of operations
and cash flows of Planet Hollywood and its Consolidated Subsidiaries and an
unaudited consolidated (and consolidating) balance sheet of Planet Hollywood and
its Consolidated Subsidiaries as of the close of such fiscal quarter, all in
reasonable detail setting forth in comparative form the corresponding figures
for the corresponding fiscal quarter for the preceding fiscal year, which
statements and balance sheet shall be certified by the Designated Financial
Officer as presenting fairly, in all material respects, the financial position
of Planet Hollywood and its Consolidated Subsidiaries as of the end of such
quarter and the results of its operations and the changes in its financial
position for such quarter, in conformity with GAAP applied in a manner
consistent except as otherwise disclosed therein with that of the most recent
audited financial statements furnished to the Lender, subject to year-end
adjustments. Each set of statements and balance sheets delivered pursuant to
this Section 8.01(b) shall be accompanied by a certificate of the Designated
Financial Officer dated the date of the delivery of such statements and balance
sheet stating that he has reviewed this Agreement and that to the best of his
knowledge he did not become aware of any Event of Default or Potential Default,
or if he did become so aware, such certificate shall state the nature and period
of existence thereof, if determinable.
(c) As soon as practicable and in any event
within thirty (30) days after the end of each fiscal month of Planet Hollywood
that is not the end of a fiscal quarter, unaudited consolidated (and
consolidating) statements of operations and cash flows for Planet Hollywood and
its Consolidated Subsidiaries for such fiscal month and for the period from the
beginning of such fiscal year to the end of such fiscal month, and an unaudited
consolidated (and consolidating) balance sheet of Planet Hollywood and its
Consolidated Subsidiaries as of the end of such fiscal month, all in reasonable
detail, setting forth in comparative form the corresponding figures for the
corresponding fiscal month during the preceding fiscal year (except for the
balance sheet, which shall set forth in comparative form the corresponding
balance sheet as of the prior fiscal year end), and accompanied by a certificate
of the Designated Financial Officer stating that (i) such statements present
fairly, in all material respects, the financial position of Planet Hollywood and
its Consolidated Subsidiaries as of the end of such fiscal month and the results
of its operations and cash flows for such fiscal month, in conformity with GAAP
applied in a manner consistent except as otherwise disclosed therein with that
of the most recent adjusted financial statements furnished to the Lender,
subject to year-end adjustments, and (ii) he has reviewed this Agreement and
that to the best of his knowledge he did not become aware of any Event of
Default or Potential Default, or if he did become so aware, such certificate
shall state the nature and period of existence thereof, if determinable.
(d) [intentionally omitted]
(e) As soon as possible, and in any event within
five (5) days, after the occurrence of a Potential Default or an Event of
Default or a Material Adverse Effect with respect to any Borrower, the written
statement of the Designated Financial Officer of such Borrower, setting forth
the details of such Potential Default or Event of Default, Material Adverse
Effect and the action which such Borrower proposes to take with respect thereto.
The Borrowers agree and acknowledge that they shall furnish any such notice
notwithstanding that they have not been requested by the Lender to deliver same.
(f) (i) By 12:00 noon Orlando, FL time three
(3) Business Days after Sunday of each week, or more often if requested by the
Lender, a report of all Memorabilia that was, during such week, (i) bought, sold
or
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
otherwise disposed of by the Borrowers and the Guarantors, or (ii) transferred
or moved by the Borrowers and the Guarantors, including, without limitation, the
old and the new location for each such item of Memorabilia so transferred or
moved, in each case, unless the aggregate of all such Memorabilia bought, sold,
transferred or moved has a Book Value at any time of less than $50,000 (the
"Memorabilia Change Report"); provided, however, that (x) any such purchases,
sales, transfers or movements must be made in accordance with the terms of this
Agreement and (y) in calculating the Book Value of Memorabilia aggregating
$50,000 as aforesaid, transfers and other movements of Memorabilia among
Borrowers and Guarantors to locations where the Lender has filed a UCC financing
statement are not required to be counted in the calculation of such $50,000
threshold.
(ii) On the last day of each fiscal
quarter (or such more frequent period as is required by the Lender), the
Memorabilia Report.
(g) Promptly after receipt by any Borrower,
copies of all accountants' management letters, business plans and other reports
which have direct or indirect bearing on the Collateral.
(h) Promptly upon becoming available, a copy of
(i) all reports, financial statements or other information delivered by any
Borrower to its shareholders, (ii) all reports, proxy statements, financial
statements and other information generally distributed by any Borrower to its
creditors or the financial community in general, and (iii) any audit or other
reports submitted to any Borrower by independent accountants in connection with
any annual, interim or special audit of such Borrower.
(i) On the last day of each fiscal month, a
certification of the Designated Financial Officer indicating that all rent and
other charges due and payable by the Borrowers with respect to the Leases are
current, and that no default has occurred or is continuing (after giving effect
to grace periods) pursuant to any of the Leases as of the date of such
certification; provided, however, that, in the event any of the foregoing
payments are due and payable (whether or not disputed) or a potential default
exists under one or more of the Leases, then such certification shall identify
all such outstanding payments and defaults.
(j) (i) As soon as possible and in any event
within ten (10) days after any Borrower or any ERISA Affiliate knows or has
reason to know that a Termination Event with respect to any Plan has occurred,
or that any Borrower or any ERISA Affiliate has failed to make a required
installment to a Plan within the meaning of Section 412(m) of the Code, a
statement of the Financial Officer of such Borrower describing such Termination
Event and the action, if any, which such Borrower or ERISA Affiliate proposes to
take with respect thereto, (ii) promptly and in any event within two (2)
Business Days after receipt thereof by any Borrower or any ERISA Affiliate from
the PBGC, copies of each notice received by such Borrower or any ERISA Affiliate
of the PBGC's intention to terminate any Plan or to have a trustee appointed to
administer any Plan, (iii) promptly and in any event within thirty (30) days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan and Multiemployer Plan, (iv) promptly and in any event
within five (5) Business Days after receipt thereof by any Borrower or any ERISA
Affiliate from a sponsor of a Multiemployer Plan or from the PBGC, a copy of
each notice received by such Borrower or any ERISA Affiliate concerning the
imposition or amount of withdrawal liability under Section 4202 of ERISA or
indicating that such Multiemployer Plan may enter reorganization status under
Section 4241 of ERISA, (v) promptly and in any event within ten (10) days after
any Borrower or any ERISA Affiliate takes action to establish an employee Plan
as defined in Section 3(3) of ERISA, a statement of the Financial Officer of
such Borrower describing such employee Plan and a copy of such employee Plan,
and (vi) promptly and in any event within five (5) days after any Borrower files
any notice with the PBGC under Section 4043(b) of ERISA, a copy of such notice.
(k) Promptly after, and in any event within five
(5) days after, an officer of any Borrower learns of any of the following,
notice thereof:
(i) the receipt by such Borrower or any
of its Subsidiaries of notification that any real or personal property of such
Borrower or its Subsidiaries is subject to any Environmental Lien;
(ii) notice of violation of any
Environmental Law which could reasonably be expected to subject such Borrower or
any of its Subsidiaries to Environmental Liabilities and Costs of $500,000 or
more; or
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
(iii) notice of the commencement of any
judicial or administrative proceeding or investigation alleging a violation by
such Borrower or any of its Subsidiaries of any Environmental Law, which if
adversely determined, could reasonably be expected to subject such Borrower or
any of its Subsidiaries to Environmental Liabilities and Costs of $500,000 or
more.
(l) Promptly after submission to any
Governmental Authority all documents and information furnished to such
Governmental Authority in connection with any investigation of any of the
Borrowers or any of their respective Subsidiaries which, if adversely
determined, could result in a Material Adverse Effect; provided, however, that
the Borrowers and their respective Subsidiaries shall not be required to
disclose any documents and information that counsel has advised the Borrowers
should not be disclosed under any applicable law.
(m) Promptly upon request, such other
information concerning the condition or operations, financial or otherwise, of
the Borrowers or any of their respective Subsidiaries as the Lender from time to
time may reasonably request.
(n) Promptly after the commencement thereof but
in any event not later than five (5) days after service of process with respect
thereto on, or the obtaining of knowledge thereof by, the Borrowers or any of
their Subsidiaries, notice of each action, suit or proceeding involving the
Borrowers or any of their Subsidiaries before any court or other Governmental
Authority or other regulatory body or any arbitrator which, if adversely
determined, could result in a Material Adverse Effect.
8.02. Compliance with Laws, Etc. Comply and cause each of
their respective Subsidiaries to comply, with all applicable Laws (including but
not limited to Environmental Laws and compliance in respect of products that
they sell or service they perform, conduct of their businesses, or use,
maintenance or operation of real and personal properties owned or possessed by
them), except, in the case of instances of non-compliance (other than
non-compliance in the payment of Taxes which, if unpaid, could result in a Lien
on any Collateral or any other non-compliance that may result in a Lien on any
Collateral), where such instances of non-compliance, individually or in the
aggregate, will not result in and could not reasonably be expected to result in
a Material Adverse Effect.
8.03. Preservation of Existence, Etc. Subject to Section
9.04(b) hereof, maintain and preserve, and cause each of their respective
Subsidiaries to maintain and preserve its existence, rights and privileges, and
become or remain duly qualified and in good standing in each jurisdiction in
which the character of the properties owned or leased by them or in which the
transaction of their business makes such qualification necessary, except where
instances of failure to qualify or remain in good standing or failure to
maintain rights and privileges, individually or in the aggregate, will not
result in and could not reasonably be expected to result in a Material Adverse
Effect.
8.04. Keeping of Records and Books of Account. Keep, and
cause each of their respective Subsidiaries (other than Inactive Guarantors) to
keep, adequate records and books of account, with complete entries made in
accordance with GAAP.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
8.05. Inspection Rights.
(a) Permit, and cause each of their respective
Subsidiaries to permit, the Lender, or any agents or representatives thereof or
such professionals or other Persons as the Lender may designate (i) to examine
and inspect the books and records of any of the Borrowers and their Subsidiaries
and take copies and extracts therefrom, (ii) to verify materials, leases, notes,
receivables, deposit accounts and other assets and liabilities of the Borrowers
and their Subsidiaries from time to time, and (iii) to conduct Inventory and
Memorabilia appraisals and/or valuations at the distribution centers and retail
stores of the Borrowers and their Subsidiaries; provided, however, that, in the
absence of a continuing Event of Default, (A) the Lender and its representatives
shall be limited to four (4) visits per calendar year to Planet Hollywood's
corporate headquarters (or such other locations if deemed necessary by the
Lender) for purposes of conducting any such actions described in clauses (i)
through (iv) above, with all expenses related to such visits to be borne by
Planet Hollywood in accordance with Section 8.05(c) hereof, and (B) all such
actions described in clauses (i) through (iv) above shall be conducted at
reasonable times and during normal business hours. The Lender will endeavor to
minimize the disruption of such Borrower's business in connection with the
exercise of its rights under this paragraph.
(b) Permit, and cause the Subsidiaries to
permit, the Lender, or any agents or representatives thereof or such
professionals or other Persons as the Lender may designate to examine and
re-evaluate the value of the Collateral, including, without limitation, the
Memorabilia.
(c) All reasonable out-of-pocket expenses of the
Lender in connection with the inspection rights set forth in subsections 8.05(a)
and 8.05(b) shall be payable by the Borrowers directly or at the option of the
Lender through direct charges to the Borrowers' Account; such expenses shall
include, without limitation, the (i) reasonable fees and expenses including with
respect to retaining a third party consultants, (ii) reasonable out-of-pocket
travel expenses (including those incurred in connection with periodic field
audits by employees of the Lender), (iii) reasonable out-of-pocket fees and
expenses incurred by the Lender in connection with the monitoring of the
Collateral, and (iv) out-of-pocket messenger and delivery expenses, and out-of
pocket duplicating expenses. So long as no Event of Default has occurred and is
continuing, the Lender agrees to advise the Borrowers of their respective
intention to retain third parties (other than legal counsel) at any time after
the Closing Date and to consult with the Borrowers regarding same. The Borrowers
shall also pay on demand directly or at the option of the Lender through direct
charges to the outstanding balance of the Loans all reasonable out-of-pocket
costs and expenses incurred by the Lender in connection with any litigation,
contest, dispute, suit or proceeding relating to the Loan Documents or the
transactions contemplated hereby. The Lender shall deliver to Planet Hollywood a
reasonably detailed statement of expenses in advance of the Lender charging the
Borrowers' Account.
8.06. Maintenance of Properties, Etc. Maintain and
preserve, and cause each of their respective Subsidiaries to maintain and
preserve, all of their properties (including all real properties leased or owned
by them) which are necessary or useful in the proper conduct of their business
in good working order and condition, ordinary wear and tear excepted, and
comply, and cause each of their respective Subsidiaries to comply, at all times
with the provisions of all Leases to which each of them is a party as lessee or
under which each of them occupies property, so as to prevent any loss or
forfeiture thereof or thereunder, except where any failure to maintain and
preserve their properties or failure to comply with the provisions of their
Leases, individually or in the aggregate, would not result in and could not
reasonably be expected to result in a Material Adverse Effect.
8.07. Maintenance of Insurance.
(a) Maintain, and cause each of their respective
Subsidiaries to maintain, with responsible and reputable insurance companies or
associations insurance (including, without limitation, comprehensive general
liability, hazard, rent and business interruption insurance) with respect to
their properties and business, in such amounts and covering such risks, as is
required by any Governmental Authority or other regulatory body having
jurisdiction with respect thereto or as is carried generally in accordance with
sound business practice by companies in similar businesses similarly situated
and in any event in amount, adequacy and scope reasonably satisfactory to the
Lender as of the Closing Date and with such deductibles or self-insured
retentions as are in accordance with normal industry practice and all applicable
laws, rules and regulations; provided, however, that in no event will any such
deductible or self-insured retention in respect of liability claims or in
respect of casualty damage exceed, in each such case, $250,000 per occurrence.
Subject to Article XII and only from and after the CIT Termination Date: (i)
eEach insurance policy referred to in this Section 8.07 shall specify the Lender
as loss payee thereof and contain a standard endorsement satisfactory to the
Lender effecting such specification; (ii) a. All policies covering the
Collateral are to be
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
made payable to the Lender, in case of loss, under a standard non-contributory
"lender" or "secured party" clause and are to contain such other provisions as
the Lender may require to fully protect the Lender's interest in the Collateral
and to any payments to be made under such policies; (iii). Uupon request, all
original policies or true copies thereof are to be delivered to the Lender,
premium prepaid, with the additional insured endorsement in the Lender's favor,
and shall provide for not less than thirty (30) days prior written notice to the
Lender of the exercise of any right of modification or cancellation; and (iv) at
the Borrowers' request, the Lender may arrange for such insurance, but at the
Borrowers' expense and without any responsibility on the Lender's part for
obtaining the insurance, the solvency of the insurance companies, the adequacy
of the coverage, or the collection of claims. . So long as no Event of Default
has occurred or is continuing, amounts received by the Lender as payee shall, if
in excess of $1,000,000, be credited to the borrowings and shall be available
for reborrowing, subject to the terms and conditions hereof. Insurance proceeds
of $1,000,000 or less may be reinvested in the replacement of items which were
the subject of the insurance recovery. At the Borrowers' request, the Lender may
arrange for such insurance, but at the Borrowers' expense and without any
responsibility on the Lender's part for obtaining the insurance, the solvency of
the insurance companies, the adequacy of the coverage, or the collection of
claims.
(b) After the Closing Date, Planet Hollywood
shall have the right to change insurance carriers to one or more other insurance
carriers having the same "Best" rating or to modify existing insurance policies
upon notice to the Lender without the Lender's consent; provided, however, that
on the effective date of such changes and modifications, (i) the Borrowers
remain insured in such amounts and covering such risks as is required by any
Governmental Authority or other regulatory body having jurisdiction with respect
thereto, (ii) such insurance is adequate in amount and scope as is carried
generally in accordance with sound business practice by companies in similar
businesses similarly situated, (iii) the amount, adequacy and scope of such
insurance is substantially similar to that in existence as of the Closing Date,
and (iv) a loss payee endorsement is delivered to the Lender simultaneously with
the effective date thereto (there being no grace period for any Event of Default
based on the requirements of this Section 8.07(b)).
(c) Subject to Article XII and only from and
after the CIT Termination Date, Uupon the occurrence and during the continuance
of an Event of Default, the Lender shall have the sole right, in the name of the
Lender and the Borrowers, to file claims under any insurance policies insuring
any of the Collateral, provided that the Lender gives prompt notice thereof to
the Borrowers, to receive, receipt and give acquittance for any payments that
may be payable thereunder, and to execute any and all endorsements, receipts,
releases, assignments, reassignments or other documents that may be necessary to
effect the collection, compromise or settlement of any claims under any such
insurance policies.
8.08. Environmental. Comply, and cause each of their
respective Subsidiaries to comply, with the requirements of all Environmental
Laws and provide to the Lender all documentation in connection with such
compliance that the Lender may reasonably request; and not cause or permit the
Collateral or any property or facility owned, operated or occupied by the
Borrowers or their Subsidiaries to be used for any activities involving,
directly or indirectly, the use, generation, treatment, storage, release or
disposal of any Hazardous Materials, except in compliance with applicable Laws
and except where instances of non-compliance with the requirements of all
Environmental Laws or the use of the Collateral or any property or facility
owned, operated or occupied by the Borrowers or their Subsidiaries for any
activities involving, directly or indirectly, the use, generation, treatment,
storage, release or disposal of any Hazardous Materials, individually or in the
aggregate, would not result in and could not reasonably be expected to result in
a Material Adverse Effect. On behalf of the Borrowers and their Subsidiaries,
the Borrowers hereby agree to defend, indemnify, and hold harmless the Lender,
its employees, agents, officers, and directors, from and against any claims,
demands, penalties, fines, liabilities (including strict liability),
settlements, damages, costs, or expenses (including, without limitation,
attorney and consultant fees, investigation and laboratory fees, court costs,
and litigation expenses) and Environmental Liabilities and Costs arising out of
(i) any Release, or threatened Release on any property presently or formerly
owned or occupied by any of the Borrowers or their Subsidiaries (or their
predecessors in interest or title) or at any disposal facility which received
Hazardous Materials generated by the Borrowers or their respective Subsidiaries,
(ii) any violation of Environmental Laws, (iii) any Environmental Actions, (iv)
any personal injury (including wrongful death) or property damage (real or
personal) arising out of or related to exposure to Hazardous Materials used,
handled, generated, transported or deposited by the Borrowers or their
respective Subsidiaries (or any predecessor in interest or title), and/or (v)
the breach of any representation or warranty made by the Borrowers in Section
7.14 hereof or the breach of any covenant made by any of the Borrowers or their
Subsidiaries in this Section 8.08. This Environmental Indemnity shall survive
the repayment of the Obligations and discharge or release of any security
interest granted under the Loan Documents.
8.09. Further Assurances. Do, execute, acknowledge, deliver,
record, file, register and perform and cause each of their respective U.S.
Subsidiaries (or any other entity as to which the Lender at any time has a Lien
on the assets or
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
ownership interest thereof) to do, execute, acknowledge, deliver, record, file,
register and perform at the sole cost and expense of the Borrowers all such
further acts, deeds, conveyances, mortgages, assignments, estoppel certificates,
financing statements, notices of assignment, transfers and assurances as the
Lender may reasonably require from time to time in order (a) to carry out more
effectively the purposes of this Agreement or any other Loan Document, (b) to
subject to valid and perfected second priority Liens all the Collateral, (c) to
perfect and maintain the validity, effectiveness and priority of any of the Loan
Documents and the Lien intended to be created thereby, and (d) to better assure,
convey, grant, assign, transfer and confirm unto the Lender the rights now or
hereafter intended to be granted to the Lender under this Agreement, any Loan
Document or any other instrument under which the Borrowers or the Subsidiaries
may be or may hereafter become bound to convey, mortgage or assign to the
Lender.
8.10. Financial Accounting Practices, Etc. Make and keep
books, records and accounts which, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of assets of the Borrowers and their
Subsidiaries and maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization, (ii) transactions are
recorded as necessary (A) to permit preparation of financial statements in
conformity with GAAP, and (B) to maintain accountability for assets, and (iii)
the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
8.11. Cash Management System. Subject to Article XII and
only from and after the CIT Termination Date, and in connection with the
Intercreditor Agreement, as amended of even date herewith, Lender shall be
entitled to all of the benefits and protections of the "Cash Management System"
provided in Section 8.11 of the CIT Agreement in order of priority as set forth
in the Intercreditor Agreement, and it is specifically understood that the
Lender shall be entitled to all such benefits and protections upon the
termination or maturity of the CIT Agreement. Subject to the foregoing, and in
connection therewith: (a)The Borrowers agree and covenant to (i) cause all cash
and all proceeds from Receivables, other accounts receivable, and the sale of
Inventory and Memorabilia or any other Collateral to be deposited into the
Depository Accounts in the ordinary course of business of each of the Borrowers
consistent with past practice but in any event not less than twice each week,
(ii) cause all remittances on credit card sales to be transferred from the
Depository Account into the Blocked Account on a daily basis (or to be sent
directly into the Blocked Account), (iii) cause all funds in the Depository
Accounts to be transferred into the Blocked Account in the ordinary course of
business of each of the Borrowers consistent with past practice but in any event
not less than twice each week except for the amounts needed to make the payments
to state taxing authorities in the amounts, to the states and with the periodicy
in the ordinary course of business, such funds transfer to be automatic and
under the control of CIT pursuant to notice letters to Depository Accounts Banks
(or Depository Account Agreements reflecting same) and Credit Card Obligors (iv)
deposit the Net Cash Proceeds of Asset Sales in the Blocked Account, (except to
the extent such Net Cash Proceeds are not required to be paid to the Lender
hereunder and are required to be paid to the Note Agent under the Note Purchase
Agreement), (v) instruct the Lender to cause all funds transferred to the
Blocked Account to be applied to reduce the Obligations outstanding from time to
time, with excess amounts to be credited to the Cash Concentration Account, (vi)
take all such actions as the Lender deems necessary or advisable to send all
cash, all proceeds from the sale of Inventory and Memorabilia, all remittances
or other proceeds of Collateral to the Blocked Account to be applied to the
Obligations and (vii) on or before the Closing Date, (A) execute and deliver to
the Lender an original notice letter for each Depository, and use its best
efforts to obtain the Depository Account Agreements, (B) deliver to the Lender a
credit card depository account agreement, satisfactory to the Lender, duly
executed by Planet Hollywood and each credit card servicer of Planet Hollywood,
and (C) take such other actions as the Lender deems necessary or advisable to
grant to the Lender dominion and control over the funds in the Blocked Account.
(b) The Borrowers shall promptly, and in any
event not later than five (5) days, after the opening of any new Depository
Account, notify the Lender in writing of the creation of such new Depository
Account and shall at the time of such notice execute and deliver to the Lender a
notice letter regarding same. Upon and during the continuance of an Event of
Default, the Borrowers shall, upon the request of the Lender, use their best
efforts to cause each Depository Bank maintaining a Depository Account (which
has not previously delivered the Depository Account Agreement as aforesaid) to
promptly, and in any event within twenty (20) days after the date of such
request, enter into a Depository Account Agreement. If, after any such request
by the Lender, any Borrower is unable to obtain a Depository Account Agreement
from any financial institution that receives remittances or other proceeds of
sales of Inventory or Memorabilia within such thirty (30) day period,
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
such Borrower shall promptly thereafter terminate such accounts and establish
new accounts at a financial institution that will enter into a Depository
Account Agreement.
(c) Each Borrower shall promptly, and in any
event not later than five (5) days after the establishment of any new credit
card relationship, notify the Lender in writing of the creation of such new
relationship, shall at the time of such notice execute and deliver to the Agent
a Payment Direction Notice and shall use its best efforts (but not requiring any
payment to be made by such Borrower) to deliver to the Lender a credit card bank
depository account agreement duly executed by such Borrower and such new credit
card servicer.
8.12. [intentionally omitted]
-
8.13. Memorabilia and Inventory. The Borrowers shall
maintain, hold for safe-keeping and preserve the Memorabilia and Inventory at
all locations in a manner consistent with maintaining its maximum value. Subject
to Section 8.14, the Memorabilia and Inventory shall not be moved to any
location outside the United States of America or to any other location other
than those locations listed on Schedule 8.13 annexed hereto without the prior
written consent of the Lender; provided, however, that no such consent shall be
required for Memorabilia moved outside the United States to franchisees pursuant
to contractual obligations with such franchisees so long as advance written
notification of same is provided to the Lender adequately describing the
Memorabilia so transferred.
8.14. Change in Collateral; Collateral Records. Upon
request, give the Lender (a) not less than twenty (20) days' prior written
notice of any change in the location of any Collateral, other than to locations,
that as of the date hereof, are known to the Lender and at which the Lender has
filed financing statements and otherwise fully perfected its Liens thereon, and
(b) prompt notice of any other change in the location of any Collateral.
Notwithstanding the foregoing, no Memorabilia can be moved outside the United
States or to franchisee locations (unless the aggregate amount of Memorabilia
moved from the date hereof to the date of determination is $300,000 or less
(based on Book Value), with exchanges of Memorabilia being permitted within such
limit) without prior written consent of the Lender (such consent not to be
unreasonably withheld). The Borrowers shall also advise the Lender promptly, in
sufficient detail, of any material adverse change relating to the type, quantity
or mix of the Collateral or the security interests granted therein. The
Borrowers agree to execute and deliver to the Lender for the benefit of the
Lender from time to time, the Memorabilia Report and such written statements and
schedules as the Lender may reasonably require, designating, identifying or
describing the Collateral. The Memorabilia Report shall be updated weekly to
reflect any sale or other movement of Memorabilia. The Borrowers' failure,
however, to promptly give the Lender such statements or schedules shall not
affect, diminish, modify or otherwise limit the Lender's security interest in
the Collateral.
8.15. Leases. The Borrowers shall, and shall cause each of
their respective Subsidiaries, to (i) comply in all material aspects with all of
their respective obligations under Leases, and (ii) not modify, amend, extend or
otherwise change any of the terms, covenants or conditions of any such Leases if
such modification, amendment, extension or other change could reasonably be
expected to result in a Material Adverse Effect.
8.16. [intentionally omitted]
8.17. Authenticity Documents. In addition to the
requirement that copies of the Authenticity Documents be delivered to the Lender
on or after the Closing CIT Termination Date, if requested, the Borrowers shall,
and shall cause each of their respective U.S. Subsidiaries to, deliver to the
Lender, if requested by the Lender on or after the CIT Termination Date, copies
of subsequently acquired Authenticity Documents, to the Lender within ten within
(10) days of receipt thereof with respect to each item of Memorabilia whether
now owned or hereafter acquired.
8.18 [intentionally omitted]
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
ARTICLE IX
NEGATIVE COVENANTS
So long as any principal of or interest on the Loans or any
Obligations (whether or not due) shall remain unpaid or the Lender shall have
any credit commitment hereunder, the Borrowers will not, without the prior
written consent of the Lender:
9.01. Liens, Etc. Create or suffer to exist, or permit any
of their respective Subsidiaries to create or suffer to exist, any Lien upon or
with respect to any of their properties, rights or other assets, whether now
owned or hereafter acquired, or assign or otherwise transfer, or permit any of
their respective Subsidiaries to assign or otherwise transfer, any right to
receive income, other than the following (the "Permitted Liens"):
(a) Liens created pursuant to the Loan Documents;
(b) Liens existing on the Closing Date and
extensions and renewals thereof provided that such extensions and renewals do
not change the principal, interest, or other financial terms or obligations
thereof;
(c) Liens in connection with any taxes,
assessments, governmental charges, levies, or claims that are not yet due and
payable or which any Borrower is contesting in good faith and by appropriate
proceedings diligently conducted so long as reserves or other appropriate
provisions as may be required by GAAP have been made therefor and so long as the
failure to pay the same would not result in and could not reasonably be expected
to result in a Material Adverse Effect;
(d) Liens created by operation of Law other than
Environmental Liens, such as materialmen's liens, mechanics' liens (not to
exceed $50,000 in the aggregate) and other similar Liens, arising in the
ordinary course of business which secure amounts not overdue for a period of
more than sixty (60) days or which are being contested in good faith by
appropriate proceedings and which have been bonded or with respect to which a
stay of enforcement is in effect;
(e) deposits (including utility security
deposits), pledges or Liens (other than Liens arising under ERISA), securing (1)
obligations incurred in respect of workers' compensation, unemployment insurance
or other forms of governmental insurance or benefits, (2) the performance of
bids, tenders, leases, contracts (other than for the payment of money) and
statutory obligations, or (3) obligations on surety or appeal bonds, but only to
the extent such deposits, pledges or Liens are incurred or otherwise arise in
the ordinary course of business and secure obligations which are not past due;
(f) Liens in favor of the Agent (on behalf of
the CIT Lenders, the Note Holders and the PIK Trustee, subject to the
Intercreditor Agreement;
(g) purchase money Liens solely on the asset
being acquired by the Borrowers, provided that each such Lien does not exceed
$3,000,000;
(h) [Intentionally Omitted];
(i) judgment Liens that do not constitute an
Event of Default;
(j) existing Liens on assets acquired after the
Closing Date;
(k) involuntary Liens in the case of the
Inactive Guarantors;
(l) precautionary UCC filings in connection with
property not constituting Collateral hereunder (e.g., leases of telecopier
machines);
(m) an encumbrance of a landlord with respect to
the interest of the Borrowers or Guarantors as a lessee or sublessee under a
Lease but not including any liens or encumbrances arising out of any default
thereunder; and
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
(n) Liens to secure any Indebtedness incurred to
refinance any Indebtedness secured by any Lien referred to in the foregoing
clauses (a) through (m).
9.02. Indebtedness. Create, incur or suffer to exist, or
permit any of their respective U.S. Subsidiaries to create, incur or suffer to
exist, any Indebtedness, other than:
(a) Indebtedness created hereunder or under the
Notes (including subsequent refinancings so long as such refinancings do not
increase the principal amount thereof);
(b) Indebtedness existing on the date hereof or
related to the Inactive Guarantors (to the extent in existence on the date
hereof) (including subsequent refinancings so long as all such refinancings do
not increase the principal amount thereof);
(c) Indebtedness in connection with Capitalized
Leases permitted by Section 9.07 of this Agreement (including subsequent
refinancings so long as all such refinancings do not increase the principal
amount thereof);
(d) Indebtedness secured by Liens or security
interests permitted by Section 9.01(f) (including subsequent refinancings so
long as all such refinancings do not increase the principal amount thereof);
(e) Indebtedness created under the CIT Agreement
in the original principal amount not to exceed $125,000,000, plus any additional
Liens or Indebtedness permitted under the CIT Agreement (including subsequent
refinancings so long as all such refinancings do not increase the original
principal amount thereof, and the Indebtedness and Liens created under the CIT
Agreement or such refinancings are subject to the Intercreditor Agreement);
(f) Indebtedness created under the PIK Indenture
in the original principal amount not to exceed $95,000,000 (including subsequent
refinancings so long as all such refinancings do not increase the original
principal amount thereof, and the indebtedness and liens created under the PIK
Indenture thereunder are subject to the Intercreditor Agreement);
(g) Indebtedness under the Note Purchase
Agreement in the original principal amount not to exceed $10,000,000 (plus all
interest and fees payable under the Note Purchase Agreement) (including
subsequent refinancings to the extent such refinancings are in an amount not
more than the greater of the then principal amount $10,000,000, and the lenders
thereunder are subject to the Intercreditor Agreement and the term thereof is no
shorter than the maturity date of the obligations under the Note Purchase
Agreement as (and to the extent) extended as provided in Section 9.20); and
(h) Indebtedness incurred pursuant to, and in
accordance with the requisites of, subsections 9.06(e) and (f) hereof.
9.03. Guarantees, Etc. Become liable, or permit any of
their respective Subsidiaries to become liable, under any guarantee in
connection with any Indebtedness of any other Person, other than:
(a) guaranties by endorsement of negotiable
instruments for deposit or collection in the ordinary course of business;
(b) guaranties existing on the date hereof,
including any renewal or other modification thereof to the extent such renewal
or modification does not increase Borrowers liability thereunder;
(c) guaranties of Indebtedness permitted by
Section 9.02; and
(d) guaranties of Indebtedness of non-wholly
owned Subsidiaries or joint ventures so long as such guaranties are unsecured
and expressly subordinated to the prior payment in full of the Obligations in
form and substance reasonably satisfactory to the Lender (such subordination to
be satisfactory if such subordination has the same level of subordination as
applicable to the PIK Holders under the Intercreditor Agreement).
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
9.04. Merger, Consolidation, Sale of Assets, Etc. Subject
to Article XII and only from and after the CIT Termination Date, Subject to
Article XII, and in connection with the Intercreditor Agreement, as amended of
even date herewith, the Lender shall be entitled to all of the benefits and
protections set forth in Section 9.04 of the CIT Agreement ("Merger,
Consolidation, Sale of Assets, Etc.") in order of priority as set forth in the
Intercreditor Agreement, and it is specifically understood that the Lender shall
be entitled to all such benefits and protections upon . the termination or
maturity of the CIT Agreement. Subject to the foregoing, and in connection
therewith:
(a) Merge or consolidate with any Person, or
permit any of their respective Subsidiaries to merge or consolidate with any
Person; provided, however, that any Borrower may merge with any other Borrower,
and Guarantors may merge with any Borrower or any Subsidiary so long as there is
no material impact on any Borrower or on the Collateral (as reasonably
determined by the Lender upon advance notice thereof); or
(b) Sell, assign, lease or otherwise transfer or
dispose of, or permit any of their respective Subsidiaries (other than Inactive
Guarantors) to sell, assign, lease, or otherwise transfer or dispose of, whether
in one transaction or in a series of related transactions, any of their
respective properties, rights or other assets, whether now owned or hereafter
acquired to any Person; provided, however, that (i) the Borrowers and their
respective Subsidiaries may sell Inventory in the ordinary course of business,
(ii) the Borrowers and their respective Subsidiaries may dispose of obsolete or
worn-out property (other than Inventory or Memorabilia) in the ordinary course
of business for fair market value, if the proceeds are used to promptly replace
such assets, (iii) so long as no Event of Default has occurred and is
continuing, the Borrowers may sell Memorabilia in accordance with the terms of
the CIT Agreement and so long as the Net Proceeds of such sale are applied to
the Loans, as applicable in order of priority under the Intercreditor Agreement;
(iv) so long as no Potential Default or Event of Default has occurred and is
continuing, sales or other dispositions of loans, advances and investments
permitted by Section 9.06 (other than 9.06(d)) hereof in each case for cash at
fair market value so long as the Net Proceeds of such sale are applied to the
Loans, as applicable in order of priority under the Intercreditor Agreement and
the Current Commitment is reduced in accordance with Section 2.04(a) hereof (to
the extent Net Proceeds are paid in part in cash and in part on a non-cash
basis, such non-cash portion shall only be permitted to the extent that the
aggregate of such non-cash proceeds do not exceed (when added together with any
other non-cash proceeds under this Section 9.04(b)) $500,000; (v) so long as no
Potential Default or Event of Default has occurred and is continuing, Asset
Sales among the Borrowers so long as such sales or other transfers are made in
exchange for adequate and fair consideration under applicable law; and (vi)
Asset Sales among the Guarantors or from any Guarantor to any Borrower so long
as such sales or other transfers are made in exchange for adequate and fair
consideration under applicable law (no such sales or other transfers shall be
permitted from any Borrower to any Guarantor) and all Liens created under the
Loan Documents are perfected and continue to be perfected (to the extent Net
Proceeds are paid in part in cash and in part on a non-cash basis, such non-cash
portion shall only be permitted to the extent that the aggregate of such
non-cash proceeds do not exceed (when added together with any other non-cash
proceeds under this Section 9.04(b)) $500,000; and provided, further, that so
long as no Potential Default or Event of Default has occurred and is continuing,
Asset Sales of Assets not otherwise described in this Section 9.04(b) may be
sold or otherwise disposed of so long as the proceeds of such sales are applied
as a Current Commitment reduction in accordance with Section 2.04(a) hereof and
a mandatory prepayment under Section 2.04(b)(ii) (the foregoing in no way
limiting the grant by the Borrowers and the Guarantors of a second priority
perfected security interest on all Collateral which attaches to proceeds
thereof) (to the extent Net Proceeds are paid in part in cash and in part on a
non-cash basis, such non-cash portion shall only be permitted to the extent that
the aggregate of such non-cash proceeds do not exceed (when added together with
any other non-cash proceeds under this Section 9.04(b)) $500,000.
9.05. Change in Nature of Business. Make, or permit any of
their respective Subsidiaries (other than Inactive Guarantors) to make, any
change in the nature of their business as carried on at the date hereof.
9.06. Loans, Advances and Investments, Etc. Make, or permit
any of their respective Subsidiaries to make, any loan or advance to any Person
or purchase or otherwise acquire, or permit any of their respective Subsidiaries
to purchase or otherwise acquire, any capital stock, properties, assets or
obligations of, or any interest in, any Person, other than:
(a) Permitted Investments;
(b) receivables for goods sold owing to any of
the Borrowers or any of their respective Subsidiaries if created or acquired in
the ordinary course of business and payable or dischargeable in accordance with
the customary trade terms of such Borrower or its respective Subsidiaries, as
the case may be (but not covered by subsections (e) or (f) of this Section
9.06);
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
(c) loans and advances to employees in the
ordinary course of business in an aggregate principal amount not to exceed
$150,000 (inclusive of relocation expenses) at any time outstanding;
(d) investments existing on the date hereof;
(e) loans and advances made (x) from any
Borrower to any other Borrower in an unlimited amount or (y) from any Borrower
to any Active Guarantors or any Foreign Entities in an aggregate amount not to
exceed $4,000,000 (minus all amounts set forth in subsection 9.06(f) below) so
long as (i) the Lender has been granted a second priority lien in the ownership
interest held by any such Borrower or Active Guarantor (limited in the case of
the stock of a Foreign Entity to sixty six and two thirds percent (66.67%) of
the voting shares and other voting interests) in the jurisdiction governing
perfection and such lien is perfected (and evidence of same has been delivered
to the Lender in form and substance reasonably satisfactory to it), (if the
interest pledged is of an entity formed outside of the United States the Lender
shall determine whether such perfection has occurred based on advice of
counsel), and (ii) all such loans and advances are evidenced by a note or other
ownership interest, pledged (and delivered) to the Lender hereunder and
subordinated to the prior payment in full of the Loans; or
(f) Loans and advances made by the Borrower or
any Active Guarantor to (or investments made with respect to) any joint venture
created after the date hereof in which a Borrower or Active Guarantor has an
interest in an aggregate amount not to exceed $4,000,000 (minus all amounts set
forth in subsection 9.06(e) above); provided, however, that no such amount shall
be permitted to be loaned or advanced or invested by Borrowers or Active
Guarantors in such joint ventures unless prior to such loan or advance, such
loans and advances are evidenced by a note or other ownership interest, pledged
and delivered to the Lender hereunder and subordinated to the prior payment in
full of the Loans.
9.07. Lease Obligations. Create, incur or suffer to exist,
or permit any of their respective Subsidiaries to create, incur or suffer to
exist, any obligations as lessee for the payment of rent for any real or
personal property in connection with any sale and leaseback transaction without
the prior written consent of the Lender.
9.08. Dividends, Prepayments, Etc. Declare or pay any
dividends, purchase or otherwise acquire, or purchase or otherwise acquire, for
value any of their respective capital stock now or hereafter outstanding, return
any capital to their respective stockholders as such, or make any other payment
or distribution of assets to their respective stockholders as such, or permit
any of their respective Subsidiaries to do any of the foregoing or to purchase
or otherwise acquire for value any stock of the Borrowers or make any payment or
prepayment of principal or, premium, if any, or interest on, or redeem, defease
or otherwise retire, any other Indebtedness of the Borrowers other than (i)
dividends or other distributions by any Guarantor to any Borrower or by any
Borrower to any other Borrower, (ii) so long as no Potential Default or Event of
Default has occurred or is continuing, the Borrowers may make payments pursuant
to the CIT Agreement, the Permitted BH Note Payments and the Permitted PIK Note
Payments, (iii) dividends or distributions payable in capital stock or other
equity interests, warrants to purchase capital stock or other equity interests,
or split-ups or reclassifications of its capital stock or other equity interests
into additional shares of its capital stock or other equity interests, (iv)
prepayments of Indebtedness not in excess of $500,000 in the aggregate, (v)
payments to the Note Holders but only at the times and in the amounts permitted
to be paid under the Intercreditor Agreement, and (vi) payments with respect to
Indebtedness permitted under Section 9.02 hereof.
9.09. Transactions with Affiliates. Enter into or be a
party to, or permit any of their respective Subsidiaries to enter into or be a
party to, any transaction with any Affiliate of the Borrowers except as
otherwise provided herein or in the ordinary course of business in a manner and
to an extent consistent with past practice and necessary or desirable for the
prudent operation of its business for fair consideration and on terms no less
favorable to the Borrowers or their Subsidiaries as are available from
unaffiliated third parties, or, subject to Section 9.06 hereof, engage in any
loan or capital investment (or any transaction which is the substantive
equivalent thereof) with Affiliates of any of the Borrowers.
9.10. Sale Policies. Engage in policies or procedures with
respect to the selling price of Inventory, which policies and procedures are
inconsistent in any material respect with the past practices of the Borrowers or
good retail practice absent the prior written consent of the Lender.
9.11. Environmental. Permit the use, handling, generation,
storage, treatment, Release or disposal of any Hazardous Material at property
owned or leased by any of the Borrowers except in compliance with Environmental
Laws and so long as such use, handling, generation, storage, treatment, Release
or disposal of Hazardous Materials would not result in
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
Environmental Liabilities and Costs in excess of $500,000 in the aggregate
together with such other Environmental Liabilities and Costs.
9.12. ERISA.
(a) Engage in any prohibited transaction
described in Section 406 of ERISA or 4975 of the Code for which a statutory or
class exemption is not available or a private exemption has not previously been
obtained from the Department of Labor;
(b) permit, or permit any ERISA Affiliate to
permit, any Lien from arising under ERISA or Section 412(n) of the Code;
(c) amend or permit any ERISA Affiliate to amend
any Plan in a manner that would require security under Section 307 of ERISA; or
(d) request or permit any ERISA Affiliate to
request a waiver of the minimum funding requirements under Section 412 of the
Code in respect of any Plan.
9.13. Subsidiaries. Create or acquire any Subsidiaries not
existing on the Closing Date; provided, however, that the Borrowers may create
or acquire (i) U.S. Subsidiaries after the Closing Date with the consent of the
Lender, provided that each such U.S. Subsidiary promptly, and in no event later
than ten (10) Business Days after creation or acquisition, as the case may be,
becomes a Guarantor and has entered into a Guarantor Security Agreement
including, without limitation, execution of all other necessary documentation
related thereto, pursuant to which all security interests granted thereunder may
be perfected by the Lender, or (ii) Foreign Entities so long as no assets
currently owned by a U.S. Subsidiary (other than Memorabilia transferred or
moved in accordance with Sections 8.13 and 8.14 hereof) are transferred to any
Foreign Entity and substantially all of such Foreign Entity's assets are located
outside of the United States.
9.14. Capital Expenditures. Make or be committed to make,
or permit any of its Subsidiaries to make or be committed to make, any
expenditure (by purchase or capitalized lease) for fixed or capital assets other
than expenditures (including obligations under Capitalized Leases) which would
cause the aggregate amount of all such expenditures to exceed $6,000,000 per
annum (on a cumulative basis such that amounts not used in any one (1) year may
be used in subsequent years); provided, however, that amounts permitted to be
expended pursuant to Sections 8.07 and 9.06 shall not be deemed to be capital
expenditures hereunder.
9.15. Federal Reserve Regulations. Permit any Loan or the
proceeds of any Loan under this Agreement to be used for any purpose which
violates or is inconsistent with the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.
9.16. [intentionally omitted]
9.17. Inactive Guarantors. Permit any Inactive Guarantor to
engage in business or other activity of any kind, other than that which is
directly related to the maintenance of its organizational existence.
9.18. Negative Pledge. Permit the mortgage, encumbrance,
pledge or hypothecation by any Borrower or any Guarantor (other than pursuant to
the Loan Documents) of any (i) Leases or other real property interests, (ii)
shares of or interest in any Guarantors or any Foreign Entity not pledged to the
Lender hereunder, (iii) any interest of any Borrower or any Guarantor in any
foreign or domestic joint venture, or (iv) any assets in any Foreign Entity or
any joint venture; provided, however, that the interests or assets described in
(iii) and (iv) may be subject to a pledge in favor of a third party if such
joint venture or Foreign Entity is not, and will not be, the recipient of any
loans or advances under subsections 9.06(e) or 9.06(f) hereof.
9.19. Foreign Entities. No Foreign Entity, now existing or
hereafter formed, shall own (by acquisition or transfer from any Borrower or
Guarantor) or otherwise take possession of any assets that are located within
the United States of America (other than assets having an aggregate value of not
more than $50,000 at any time); provided, however, that,
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
notwithstanding anything in this Section 9.19, the Borrowers and the Active
Guarantors shall be entitled to transfer or move Inventory and Memorabilia in
accordance with the terms of Sections 8.13 and 8.14 hereof.
9.20. Note Maturity Date. At least one (1) month prior to
the Maturity Date, the maturity date with respect to the BH Notes shall not be
earlier than six months after the Maturity Date unless the Lender agrees to a
shorter extension. The Borrowers hereby agree that the Lender may pay any fees
(and charge the loan account therefor) required under the Note Purchase
Agreement to be paid by the Borrowers and if it determines to do so, cause the
Borrower to pay, or pay on the Borrower's behalf as aforesaid, fees sufficient
for a five month, 28 day extension under such Note Purchase Agreement.
ARTICLE X
DEFAULTS
10.01. Events of Default. An Event of Default shall mean the
occurrence or existence of one or more of the following events or conditions
(whatever the reason for such Event of Default and whether voluntary,
involuntary or effected by operation of law):
(a) Any Borrower or any Guarantor shall (i) fail
to make any payment of principal under this Agreement on any Loan or any
Obligation when due, or (ii) except as set forth in clause (iii), fail to pay
when due any other amount payable under this Agreement or any other Related
Document or (iii) fail to pay fees, expenses and any other de minimus amounts
required hereunder and such failure shall have continued unremedied for a period
of two (2) days;
(b) Any representation or warranty made by any
Borrower or any Guarantor under this Agreement or any other Related Document or
any statement made by any Borrower in any financial statement, certificate,
report or document furnished to the Lender pursuant to or in connection with
this Agreement or any other Related Document (other than those related to an
Inactive Guarantor except with respect to its inactivity), shall prove to have
been false or misleading in any material respect as of the time when made
(including by omission of material information necessary to make such
representation, warranty or statement, in light of the circumstances under which
it was made, not misleading); or
(c) Any Borrower defaults in the performance or
observance of any covenant contained in Section 5.03 or Article VIII hereof
(subject to the grace periods applicable under this Agreement to the covenants
contained in Article VIII, including such grace periods contained in subsection
10.01(d) hereof) or Article IX hereof; or
(d) Any Borrower defaults in the performance or
observance of (i) the covenants contained in Section 8.01 (other than paragraphs
(e) and (f) thereof) and such default shall have continued unremedied for a
period of five (5) days, (ii) the covenants contained in paragraphs (e) and (f)
of Section 8.01 and such default shall have continued unremedied for a period of
three (3) days, and (iii) any other covenant, agreement or duty under this
Agreement or any other Related Document (to the extent not otherwise set forth
in this Section 10.01) and such default shall have continued unremedied for a
period of thirty (30) days; or
(e) There shall be an "event of default" under
the CIT Agreement, the Note Purchase Agreement or the PIK Indenture respectively
(after the expiration of applicable grace periods); or
(f) Any Borrower or any of its Subsidiaries
(other than Inactive Guarantors so long as no Borrower, Active Guarantor or
Foreign Entity is or may be liable thereon) shall have entered into any consent
or settlement decree or agreement or similar arrangement with a Governmental
Authority or any judgment, order, decree or similar action shall have been
entered against any such Person, in each case based on or arising from the
violation of or pursuant to any Environmental Law, or the generation, storage,
transportation, treatment, disposal or Release of any Hazardous Material and, in
connection with any of the foregoing, any such Person shall incur Environmental
Liabilities and Costs which are unstayed, due and owing in an amount in excess
of $500,000 in the aggregate together with other such Environmental Liabilities
and Costs; or
(g) Any material provision of any Loan Document
shall at any time for any reason be declared to be null and void, or the
validity or enforceability thereof shall be contested by any Borrower or any
Guarantor, or a proceeding shall be commenced by any Borrower or any Guarantor,
or by any Governmental Authority or other regulatory body
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
having jurisdiction over any Borrower, seeking to establish the invalidity or
unenforceability thereof, or any Borrower or any Guarantor shall deny in writing
that any Borrower or any Guarantor has any liability or obligation purported to
be created under any Loan Document; or
(h) Any Borrower or any of its ERISA Affiliates
shall have made a complete or partial withdrawal from a Multiemployer Plan, and,
as a result of such complete or partial withdrawal, such Borrower or such ERISA
Affiliate incurs a withdrawal liability in an annual amount exceeding $200,000;
or a Multiemployer Plan enters reorganization status under Section 4241 of
ERISA, and, as a result thereof, such Borrower's or such ERISA Affiliate's
annual contribution requirement with respect to such Multiemployer Plan
increases in an annual amount exceeding $500,000; or
(i) (i) Any Plan shall fail to satisfy the
minimum funding standard required for any plan year or part thereof or a waiver
of such standard or extension of any amortization period is sought or granted
under Section 412 of the Code, any Plan shall have had or is likely to have a
trustee appointed to administer such Plan, any Plan is, shall have been or is
likely to be terminated or to be the subject of termination proceedings under
ERISA, any Plan shall have an Unfunded Current Liability, a contribution
required to be made to a Plan has not been timely made, any Borrower or any
ERISA Affiliate has incurred or is likely to incur a liability to or on account
of a Plan under Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201,
4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code, or such
Borrower or any U.S. Subsidiary has incurred or is likely to incur liabilities
pursuant to one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) that provide benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA); and (ii) there shall
result from any such event or events the imposition of a Lien or the granting of
a security interest, or there shall result from any such event or events a
liability or a material risk of incurring a liability which would result in a
Material Adverse Effect; or
(j) Xxxxxx Xxxx shall cease to be Chairman of
the Board of Directors or Chief Executive Officer of Planet Hollywood; or
(k) Any Borrower shall use any Loan or advance
issued under this Agreement in a manner inconsistent with Sections 2.09 and 7.17
hereto; or
(l) Except as set forth in subsection 10.01(e)
hereof, any Borrower or any U.S. Subsidiary shall fail to pay any principal or
interest on any of its Indebtedness (excluding Indebtedness evidenced by the
Notes) in excess of $200,000 or any interest or premium thereon, when due
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to such Indebtedness, or
any other default under any agreement or instrument relating to any such
Indebtedness, or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness in
excess of such amount shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior to the
stated maturity thereof; or
(m) Any Borrower or any U.S. Subsidiary (other
than Inactive Guarantors) (i) shall institute any proceeding or voluntary case
seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for any Borrower or any U.S. Subsidiary or for any substantial
part of its property, (ii) shall be generally not paying its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
(iii) shall make a general assignment for the benefit of creditors, or (iv)
shall take any action to authorize or effect any of the actions set forth above
in this subsection (m); or
(n) Any proceeding shall be instituted against
any Borrower or any U.S. Subsidiary (other than Inactive Guarantors) seeking to
adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for any Borrower or any
U.S. Subsidiary or for any substantial part of its property, and either such
proceeding shall remain undismissed or unstayed for a period of forty-five (45)
days or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against it or
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
the appointment of a receiver, trustee, custodian or other similar official for
it or for any substantial part of its property) shall occur; or
(o) The Security Agreement or any other Security
Document, after delivery thereof pursuant hereto, shall for any reason fail or
cease to create a valid and perfected and, except to the extent permitted by the
terms hereof or thereof, second priority Lien on or security interest in any
Collateral purported to be covered thereby; or
(p) One or more judgments or orders (other than
a judgment described in subsections 10.01(f) or (g) hereof) for the payment of
money exceeding any applicable insurance or bond coverage by more than
$1,000,000 in the aggregate shall be rendered against any Borrower or any U.S.
Subsidiary (other than Inactive Guarantors, so long as no Borrower, Active
Guarantor or Foreign Entity is or may be liable thereon) and either (i)
enforcement proceedings shall have been commenced by any creditor upon any such
judgment or order, or (ii) there shall be any period of twenty (20) consecutive
days during which a stay of enforcement of any such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect.
10.02. Consequences of an Event of Default. If an Event of
Default shall occur and be continuing or shall exist the Lender may, by notice
to Planet Hollywood:
(a) declare the Current Commitment terminated,
whereupon the Current Commitment will terminate immediately, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived, and an action therefor shall immediately accrue; and/or
(b) declare the unpaid principal amount of the
Notes, interest accrued thereon, any fees due hereunder and all other amounts
owing by the Borrowers hereunder or under the Notes to be immediately due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived, and an action therefor shall immediately
accrue; and/or
(c) give notice to the Borrowers of the
occurrence and continuance of an Event of Default;
provided, however, that upon the occurrence of any Event of Default described in
subsections (n) or (o) of Section 10.01, the Loans and all Obligations, all
interest thereon, all fees hereunder and all other amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are expressly waived by the Borrowers.
10.03. [intentionally omitted]
10.04. Certain Remedies. If an Event of Default occurs, the
Lender may exercise all rights and remedies which it may have hereunder or under
any other Related Document or at law or in equity or otherwise. All such
remedies shall be cumulative and not exclusive.
ARTICLE XI
MISCELLANEOUS
11.01. Holidays. Except as otherwise provided herein,
whenever any payment or action to be made or taken hereunder or under the Notes
shall be stated to be due on a day which is not a Business Day, such payment or
action shall be made or taken on the next following Business Day and such
extension of time shall be included in computing interest or fees, if any, in
connection with such payment or action.
11.02. Records. The unpaid principal amount of the Notes,
the unpaid interest accrued thereon, the interest rate or rates applicable to
such unpaid principal amount, the duration of such applicability, the Current
Commitment and the accrued and unpaid Lender's fees shall at all times be
ascertained from the records of the Lender, which shall be conclusive and
binding absent manifest error.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
11.03. Amendments and Waivers. No amendment or modification
of any provision of this Agreement or of any of the Notes or of any other
Related Document shall be effective without the written agreement of the Lender
and the Borrowers and no termination or waiver of any provision of this
Agreement or of any of the Notes, or consent to any departure by the Borrowers
therefrom, shall in any event be effective without the written concurrence of
the Lender, whom shall have the right to grant or withhold at its sole
discretion. No amendment, modification, termination, or waiver of any provision
of Article XII or any other provision referring to the Lender shall be effective
without the written concurrence of the Lender. Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given. No notice to or demand on the Borrowers in any case shall entitle
the Borrowers to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, waiver or consent effected in
accordance with this Section 11.03 shall be binding on the Lender and, if signed
by the Borrowers, on the Borrowers.
11.04. No Implied Waiver; Cumulative Remedies. No course of
dealing and no delay or failure of the Lender in exercising any right, power or
privilege under this Agreement, the Notes or any other Related Document shall
affect any other or future exercise thereof or exercise of any other right,
power or privilege; nor shall any single or partial exercise of any such right,
power or privilege or any abandonment or discontinuance of steps to enforce such
a right, power or privilege preclude any further exercise thereof or of any
other right, power or privilege. The rights and remedies of the Lender under
this Agreement, the Notes and the other Related Documents are cumulative and not
exclusive of any rights or remedies which the Lender has thereunder or at law or
in equity or otherwise. The Lender may exercise its rights and remedies against
the Borrowers and the Collateral as the Lender may elect, and regardless of the
existence or adequacy of any other right or remedy.
11.05. Notices.
(a) All notices, requests, demands, directions
and other communications (collectively, the "Notices") under the provisions of
this Agreement or the Notes shall be in writing and shall be mailed (by
certified mail, postage prepaid and return receipt requested), telecopied, or
delivered by hand or overnight courier (Federal Express, United Parcel Service,
Airborne Express, etc.) and shall be effective (i) if mailed, three (3) days
after being deposited in the mails, (ii) if telecopied, when sent, confirmation
received, and (iii) if delivered by hand or overnight courier, upon delivery.
All notices shall be sent to the applicable party at the address stated on the
signature page hereof, or in accordance with the last unrevoked written
direction from such party to the other parties hereto.
(b) The Lender may rely, and shall be fully
protected in relying, on any notice purportedly made by or on behalf of the
Borrowers and the Lender shall have no duty to verify the identity or authority
of any Person giving such notice. The preceding sentence shall apply to all
notices whether or not made in a manner authorized or required by this Agreement
or any other Related Document.
11.06. Expenses; Taxes; Attorneys' Fees; Indemnification.
The Borrowers jointly and severally agree to pay or cause to be paid, on demand,
and to save the Lender harmless against liability for the payment of, all
reasonable out-of-pocket expenses, regardless of whether the transactions
contemplated hereby are consummated, including but not limited to reasonable
fees and expenses of counsel for the Lender, accounting, due diligence, periodic
field audits, appraisals, investigations, monitoring of assets, syndication,
miscellaneous disbursements, examination, travel, lodging and meals, incurred by
the Lender from time to time arising from or relating to: (a) the negotiation,
preparation, execution, delivery, performance and administration of this
Agreement, the Intercreditor Agreement and the Related Documents, (b) any
requested amendments, waivers or consents to this Agreement, the Intercreditor
Agreement or the Related Documents whether or not such documents become
effective or are given, (c) the preservation and protection of any of the
Lender's rights under this Agreement, the Intercreditor Agreement or the Related
Documents, (d) the defense of any claim or action asserted or brought against
the Lender by any Person that arises from or relates to this Agreement, the
Intercreditor Agreement, any Related Document, the Lender's claims against any
Borrower, or any and all matters in connection therewith, (e) the commencement
or defense of, or intervention in, any court proceeding arising from or related
to this Agreement, the Intercreditor Agreement or any Related Document, (f) the
filing of any petition, complaint, answer, motion or other pleading by the
Lender, or the taking of any action in respect of the Collateral or other
security, in connection with this Agreement, the Intercreditor Agreement or any
Related Document, (g) the protection, collection, lease, sale, taking possession
of or liquidation of, any Collateral or other security in connection with this
Agreement, the Intercreditor Agreement or any Related Document, (h) any attempt
to enforce any Lien in any Collateral or other security in connection with this
Agreement, the Intercreditor Agreement or any Related Document, (i) any attempt
to collect from any Borrower, (j) the receipt of any advice with respect to any
of the foregoing; (k) all Environmental Liabilities and Costs arising from or in
connection with the past, present or future operations of any Borrower or
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
any of its Subsidiaries involving any damage to real or personal property or
natural resources or harm or injury alleged to have resulted from any Release of
Hazardous Materials on, upon or into such property, (l) any costs or liabilities
incurred in connection with the investigation, removal, cleanup and/or
remediation of any Hazardous Materials present or arising out of the operations
of any facility of any Borrower or any Subsidiary, or (m) any costs or
liabilities incurred in connection with any Environmental Lien. Without
limitation of the foregoing or any other provision of any Related Document: (x)
the Borrowers agree to pay jointly and severally all stamp, document, transfer,
recording or filing taxes or fees (including, without limitation, mortgage
recording taxes) and similar impositions now or hereafter determined by the
Lender to be payable in connection with this Agreement or any other Related
Document, and the Borrowers agree to save the Lender harmless from and against
any and all present or future claims, liabilities or losses with respect to or
resulting from any omission to pay or delay in paying any such taxes, fees or
impositions, and (y) if the Borrowers fail to perform any covenant or agreement
contained herein or in any other Related Document, upon an Event of Default, the
Lender may itself perform or cause performance of such covenant or agreement,
and the expenses of the Lender incurred in connection therewith shall be
reimbursed on demand by the Borrowers; provided, however, if the Lender has
notice of a failure to pay insurance premiums Lender may make such payment and
be reimbursed hereunder whether or not an Event of Default has occurred. The
Borrowers jointly and severally agree to indemnify and defend the Lender and its
directors, officers, agents, employees and affiliates (collectively, the
"Indemnified Parties") from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages, costs or expenses of any nature whatsoever
(including reasonable attorneys' fees and amounts paid in settlement) incurred
by, imposed upon, or asserted against any of them arising out of or by reason of
any investigation, litigation or other proceeding or claim brought or threatened
relating to, or otherwise arising out of or relating to, the execution of this
Agreement or any other Related Document, the transactions contemplated hereby or
thereby or any Loan or proposed Loan hereunder (including, but without
limitation, any use made or proposed to be made by the Borrowers of the proceeds
of any thereof, or the delivery or use or transfer of or the payment or failure
to pay under any Loan) but excluding any such losses, liabilities, claims,
damages, costs or expenses to the extent finally judicially determined to have
resulted from the gross negligence or willful misconduct of the Indemnified
Party. So long as no Event of Default shall be in existence, the Lender agrees
to advise the Borrowers of its intention to retain third parties (other than
legal counsel) at any time after the Closing Date of the Facility and to consult
with the Borrowers regarding same.
11.07. Application. Except to the extent, if any, expressly
set forth in this Agreement, the Intercreditor Agreement or in the Related
Documents, the Lender shall have the right to apply any payment received or
applied by it in connection with the Obligations to such of the Obligations then
due and payable as it may elect.
11.08. Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
11.09. Governing Law. This Agreement and the Notes shall be
deemed to be contracts under the laws of the State of New York, without regard
to choice of law principles, and for all purposes shall be governed by and
construed and enforced in accordance with the laws of said State.
11.10. Prior Understandings. This Agreement supersedes all
prior understandings and agreements, whether written or oral, among the parties
hereto relating to the transactions provided for herein.
11.11. Duration; Survival. All representations and
warranties of the Borrowers contained herein or made in connection herewith
shall survive the making of the Loans and shall not be waived by the execution
and delivery of this Agreement, the Notes or any other Related Document, any
investigation by or knowledge of the Lender, the making of any Loan hereunder,
or any other event whatsoever. All covenants and agreements of the Borrowers
contained herein shall continue in full force and effect from and after the date
hereof so long as the Borrowers may borrow hereunder and until the Obligations
have been paid in full. Without limitation, it is understood that all
obligations of the Borrowers to make payments to or indemnify the Lender
(including, without limitation, obligations arising under Section 11.06 hereof)
shall survive the payment in full of the Notes and all Obligations and of all
other obligations of the Borrowers thereunder and hereunder, termination of this
Agreement and all other events whatsoever and whether or not any Loans are made
hereunder.
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
11.12. Counterparts. 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.
11.13. Assignments; Participations.
(a) The Lender may with the written consent of
Planet Hollywood, which such consents shall not be unreasonably delayed or
withheld, assign to one or more commercial banks or other entities a portion of
its rights and obligations under this agreement (including, without limitation,
a portion of its Current Commitment, the Loans owing to it and its rights and
obligations as a lender) and the other Related Documents; provided, however,
that no consent of Planet Hollywood is required for a transfer by the Lender to
an Affiliate of the Lender; and provided, further, that (i) each such assignment
shall be in a principal amount of not less than $1,000,000 and in multiples of
$500,000 in excess thereof (or the remainder of the Lender's Current
Commitment), (ii) the parties to each such assignment shall execute and deliver
to the Lender, for its acceptance and recording in the Register (as hereinafter
defined), an Assignment and Acceptance. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (A) the assignee thereunder, shall be a party hereto
and to the other Related Documents and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of the Lender hereunder and
thereunder and (B) the assigning Lender shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under
this Agreement.
(b) By executing and delivering an Assignment
and Acceptance, the assignor and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Related Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Related Document furnished pursuant hereto; (ii) the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any of the Borrowers or any of their respective
Subsidiaries or the performance or observance by the Borrowers of any of their
respective obligations under this Agreement, the Intercreditor Agreement or any
other Related Document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, the Intercreditor Agreement and
the other Related Documents, together with such other documents and information
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the assigning Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement, the
Intercreditor Agreement and the other Related Documents; (v) such assignee
appoints and authorizes the Lender to take such action as agent on its behalf
and to exercise such powers under this Agreement, the Intercreditor Agreement
and the other Related Documents as are delegated to the Lender by the terms
thereof, together with such powers as are reasonably incidental thereto; and
(vi) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement and the other
Related Documents are required to be performed by it as a lender.
(c) The Lender shall maintain at its address
referred to on the signature page hereto, a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation of
the names and addresses of the lenders and the Current Commitment of, and
principal amount of the Loans owing to each lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrowers, the Lender and the assignee
lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by any Borrower and any lender at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender, an assignee Lender, together with
the Note subject to such assignment, the Lender shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit I
hereto, (i) accept such Assignment and Acceptance, (ii) give prompt notice
thereof to Planet Hollywood and (iii) record the information contained therein
in the Register. Within five (5) Business Days after its receipt of such notice,
the Borrowers, at their own expense, shall execute and deliver to the assignee
lender in exchange for the surrendered Note a new Note to the order of such
assignee lender in an aggregate principal amount equal to the
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
Current Commitment assumed by it pursuant to such Assignment and Acceptance, and
a new Note to the order of the assigning lender in an aggregate principal amount
equal to the Current Commitment retained by it hereunder, in each case prepared
by the Lender. Such new Note shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Note, shall be dated the date
of the Lender's acceptance of such assignment and acceptance and shall otherwise
be in substantially the form of Exhibit A hereto.
(e) Each lender hereunder may sell
participations to one or more banks or other entities in or to all or a portion
of its rights and obligations under this Agreement and the other Related
Documents (including, without limitation, all or a portion of its Current
Commitment and the Loans owing to it); provided, however, that (i) such lender's
obligations under this Agreement (including, without limitation, its Current
Commitment hereunder) and the other Related Documents shall remain unchanged;
(ii) such lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, and the Borrowers shall continue to deal
solely and directly with such lender in connection with such lender's rights and
obligations under this Agreement and the other Related Documents; and (iii) a
participant shall not be entitled to require such lender to take or omit to take
any action hereunder except (A) action directly effecting an extension of the
maturity dates or decrease in the principal amount of the Loans, or (B) action
directly effecting an extension of the due dates of or a decrease in the rate of
interest payable on the Loans or the fees payable under this Agreement, or (C)
actions directly effecting a release of all or a substantial portion of the
Collateral (except as set forth in Section 12.08 of this Agreement or any
Related Document).
11.14. Successors and Assigns. This Agreement and the other
Related Documents shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns except that any of the
Borrowers may individually or jointly assign or transfer any of their rights
hereunder or thereunder without the prior written consent of the Lender.
11.15. Confidentiality. Upon delivering to the Lender, or
permitting the Lender to inspect, any written information pursuant to this
Agreement or the other Related Documents, the Lender shall treat such
information as confidential. The Lender agrees to hold such information in
confidence from the date of disclosure thereof. Subject to the other provisions
of this Section 11.15, the Lender may disclose confidential information to its
officers, directors, employees, attorneys, accountants or other professionals
engaged by the Lender only after determining that such third party has been
instructed to hold such information in confidence to the same extent as if it
were the Lender. Notwithstanding the foregoing, the provisions of this Section
11.15 shall not apply to information within any one of the following categories
or any combination thereof: (i) information the substance of which, at the time
of disclosure by the Lender has become publicly available or has been disclosed
to or is known to any creditor (other than information as to which such creditor
is then under an obligation of nondisclosure), or any Person other than (A) a
director, officer, employee or agent of any Borrower or a professional engaged
by any Borrower, or (B) a Person who is then under an obligation of
nondisclosure (otherwise than as a consequence of a wrongful act of the Lender),
(ii) non-confidential information which the Lender had in its possession prior
to receipt thereof from the disclosing party other than the Borrowers, or (iii)
information received by the Lender from a third party having no obligations of
nondisclosure with respect thereto. Nothing contained in this Section 11.15
shall prevent any disclosure: (x) believed in good faith by the Lender to be
required by any law or guideline or interpretation or application thereof by any
Governmental Authority, arbitrator or grand jury charged with the interpretation
or administration thereof or compliance with any request or directive of any
Governmental Authority, arbitrator or grand jury (whether or not having the
force of law), (y) determined by counsel for the Lender to be necessary or
advisable in connection with enforcement or preservation of rights under or in
connection with this Agreement or any other Related Document, or (z) of any
information which has been made public by a Person other than the Lender who, to
the Lender's actual knowledge, was then under an obligation of nondisclosure.
The Lender shall have the right to disclose any confidential information
described in this Section 11.15 to an assignee or prospective assignee of Loans
hereunder; provided, however, that the assigning or selling Lender shall have
obtained from such assignee or prospective assignee or participant or
prospective participant an agreement to hold such information in confidence to
the same extent as if it were the Lender.
11.16. Waiver of Jury Trial. BY ITS EXECUTION AND DELIVERY
OF THIS AGREEMENT, THE LENDER AND EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS AGREEMENT, THE NOTES OR ANY OTHER RELATED DOCUMENT, ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
OF THE LENDER OR ANY BORROWER IN CONNECTION HEREWITH OR THEREWITH. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS TO ENTER INTO
THIS AGREEMENT.
11.17. Right of Setoff. Upon the occurrence and during the
continuance of any Event of Default, the Lender is hereby authorized to, at any
time from time to time, without notice to any Borrower or Guarantor (any such
notice being expressly waived by such Borrower and Guarantor) and to the fullest
extent permitted by law, set off and apply any and all deposits (general or
special, time or demand, provision or final) at any time held and other
indebtedness at any time owing by the Lender to or for the credit or the account
of the Borrowers or Guarantor against any and all Obligations of the Borrowers
now or hereafter existing under the Loan Documents, irrespective of whether or
not the Lender shall have made any demand hereunder or thereunder and although
such Obligations may be contingent or unmatured. The Lender agrees promptly to
notify Planet Hollywood after any such setoff and application made by the
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of the Lender under this
Section 11.16 are in addition to the other rights and remedies (including,
without limitation, other rights of setoff under applicable law or otherwise)
which the Lender may have.
11.18. Headings. Section headings herein are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
11.19. Forum Selection and Consent to Jurisdiction. Any
litigation based hereon, or arising out of, under or in connection with, this
Agreement or any other Loan Document, or any course of conduct, course of
dealing, statement (whether verbal or written) or action of the Lender or the
Borrowers may be brought and maintained exclusively in the courts of the State
of New York located in the borough of Manhattan or the United States District
Court for the Southern District of New York; provided, however, that any suit
seeking enforcement against any Collateral or other property may be brought, at
the Lender's option, in the courts of any jurisdiction where such Collateral or
other property may be found. Each of the Borrowers hereby expressly and
irrevocably submits to the jurisdiction of the courts of the State of New York
located in the borough of Manhattan and of the United States District Court for
the Southern District of New York for the purpose of any such litigation and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with such litigation. Each of the Borrowers further irrevocably consents to the
service of process (i) by registered or certified mail, postage prepaid, to the
Borrowers at its address for notices contained in Section 10.05 hereof, such
service to become effective five (5) days after such mailing, or (ii) by
personal service within or without the State of New York. Nothing herein shall
affect the right of the Lender to service of process in any other manner
permitted by law. Each of the Borrowers 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 any Borrower 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
Borrower hereby irrevocably waives such immunity in respect of its obligations
under this Agreement and the other Loan Documents.
ARTICLE XII
SUBORDINATION AND PREFERENCES OF LENDER
Notwithstanding anything to the contrary in this Agreement,
the rights of the Lender arising hereunder and the other Loan Documents are
subject to the provisions of the Intercreditor Agreement. It is understood and
agreed that the Lender shall have substantially the same rights as the CIT
Lenders under the CIT Agreement; provided that the Lender shall be subordinated
to the CIT Lenders (and to the CIT Lenders only) and shall have a
second-in-priority security interest in the Collateral pursuant to the
Intercreditor Agreement. The Lender shall not be entitled to any rights or
protections greater than those granted to the CIT Lenders under the CIT
Agreement and nothing contained herein or the other Loan Documents shall limit
or otherwise interfere with the rights and protections arising in favor of the
CIT Lenders under the CIT Agreement. Furthermore, for the avoidance of doubt
(and subject always to the provisions of the Intercreditor Agreement), certain
rights granted hereunder shall not arise and be exercisable by the Lender until
the CIT Ttermination of the CIT Agreement in Date. accordance with its terms.
For example, and not by way of limitation, certain provisions relating to
prepayment (Section 2.04), naming the Lender as loss payee under certain
insurance policies (Section 8.07), granting rights to the Lender in connection
with the maintenance of the cash management system (Section 8.11) and the
merger, consolidation and sale of assets (Section 9.04), are "springing" rights
in favor of the Lender, having force and effect with respect to the Lender only
as of the CIT upon
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
the termination oTermination Date. f the CIT Agreement. Additionally, in the
event and to the extent this Agreement refers to or provides for the delivery to
the Lender of documents or instruments in connection with such springing rights
(e.g., delivery of original Authenticity Documents, or insurance certificates,
with all such documents the "Deferred Documents"), prior to the CIT Agreement
tTermination Ddate, such reference to or provision for delivery of the Deferred
Documents shall mean delivery to CIT or other appropriate party as provided in
the CIT Agreement. Following the CIT Agreement tTermination dDate, such
reference to or provision for delivery of the Deferred Documents shall mean
delivery of the Deferred Documents to the Lender.
Within five (5) days after the CIT Agreement tTermination
dDate, each Borrower and/or Guarantor, as applicable, shall deliver the Deferred
Documents to the Lender. Moreover, the parties agree to use their best efforts,
as soon as possible after the CIT Ttermination dDate of the CIT Agreement,, to
furnish to each other such further information, to execute and deliver such
other documents (e.g., the Blocked Account Agreement, Credit Card Agreement,
Depository Account Agreement), and to do such other acts and things for the
purpose of carrying out the intent of this Article XII and all other terms and
provisions of this Agreement and the Related Documents (including, but not
limited to, opening new accounts similar to the Blocked Account and Depository
Account, but for the benefit of Lender).
ARTICLE XIII
[intentionally omitted]
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this Agreement as of the
date first above written.
BORROWERS:
PLANET HOLLYWOOD
INTERNATIONAL, INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title: Vice President
PLANET HOLLYWOOD MEMORABILIA, INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
ALL STAR CAFE INTERNATIONAL, INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
ALL STAR CAFE (NEW YORK), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
COOL PLANET, INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
COOL PLANET II, INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
PLANET HOLLYWOOD
(ATLANTIC CITY), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD (HONOLULU), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD (LP), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD
(NEW YORK CITY), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD NEW YORK, LTD.
By: PLANET HOLLYWOOD
INTERNATIONAL, INC., its
General Partner
By:
-------------------------------------
Name: Xxxx Xxxx
Title: Vice President
PLANET HOLLYWOOD (ORLANDO), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
PLANET HOLLYWOOD (REGION II), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD (REGION III), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD (REGION IV), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD (REGION V), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD (REGION VI), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD (REGION VII), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD (TEXAS), LTD.
By: PLANET HOLLYWOOD
(REGION V), INC., its General
Partner
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD (WAREHOUSE), INC.
By:
-------------------------------------
Name: Xxxx Xxxx
Title:
Address for Notices:
-------------------
Planet Hollywood International, Inc.
Corporate Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
LENDER:
SOUTHTRUST BANK
By:
-------------------------------------
Name:
Title:
Address for Notices:
-------------------
SouthTrust Bank
000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention:
Telephone: (407)
Telecopier: (407)
ACKNOWLEDGED AND AGREED:
-----------------------
PLANET HOLLYWOOD (REGION III), INC.
By:
-----------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOSPITALITY HOLDINGS, INC.
By:
-----------------------------------
Name: Xxxx Xxxx
Title:
PLANET HOLLYWOOD INTERNATIONAL, INC.
Exhibit 10.8
ANNEX I
-------
PLANET HOLLYWOOD MEMORABILIA, INC.
ALL STAR CAFE INTERNATIONAL, INC.
ALL STAR CAFE (NEW YORK), INC.
COOL PLANET, INC.
COOL PLANET II, INC.
PLANET HOLLYWOOD (ATLANTIC CITY), INC.
PLANET HOLLYWOOD (HONOLULU), INC.
PLANET HOLLYWOOD (LP), INC.
PLANET HOLLYWOOD (NEW YORK CITY), INC.
PLANET HOLLYWOOD NEW YORK, LTD.
PLANET HOLLYWOOD (ORLANDO), INC.
PLANET HOLLYWOOD (REGION II), INC.
PLANET HOLLYWOOD (REGION III), INC.
PLANET HOLLYWOOD (REGION IV), INC.
PLANET HOLLYWOOD (REGION V), INC.
PLANET HOLLYWOOD (REGION VI), INC.
PLANET HOLLYWOOD (REGION VII), INC.
PLANET HOLLYWOOD (TEXAS), LTD.
PLANET HOLLYWOOD (WAREHOUSE), INC.
