Exhibit 4.5
PTC-6
3-24-98
================================================================================
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of March 25, 1998
By And Among
PLANET HOLLYWOOD INTERNATIONAL, INC.
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Administrative Agent,
THE BANK OF NOVA SCOTIA,
individually and as Syndication Agent,
(with all of the foregoing being referred to as Lenders)
(with the Administrative Agent and the Syndication Agent
being further referred to collectively as the Agents)
SUNTRUST EQUITABLE SECURITIES CORPORATION
and THE BANK OF NOVA SCOTIA, as the Co-Arrangers
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS; CONSTRUCTION...............................................2
Section 1.1 Definitions...........................................2
Section 1.2 Accounting Terms and Determination...................22
Section 1.3 Other Definitional Provisions........................22
Section 1.4 Exhibits and Schedules...............................22
ARTICLE II
REVOLVING LOANS; LETTERS OF CREDIT.....................................23
Section 2.1 Commitment; Use of Proceeds..........................23
Section 2.2 Notes; Repayment of Principal........................25
Section 2.3 Voluntary Reduction of Revolving
Loan Commitments....................................25
Section 2.4 Letters of Credit....................................26
Section 2.5 Manner of Issuance...................................26
Section 2.6 Drawings Under Letters of Credit.....................26
Section 2.7 General Provisions as to Letters
of Credit...........................................27
Section 2.8 Participation........................................29
ARTICLE III
......................................................................31
ARTICLE IV
GENERAL LOAN TERMS.....................................................31
Section 4.1 Funding Notices......................................31
Section 4.2 Disbursement of Funds................................33
Section 4.3 Interest.............................................36
Section 4.4 Interest Periods.....................................37
Section 4.5 Fees.................................................38
Section 4.6 Voluntary Prepayments of Borrowings..................39
Section 4.7 Payments, etc........................................40
Section 4.8 Interest Rate Not Ascertainable, etc.................43
Section 4.9 Illegality...........................................43
Section 4.10 Increased Costs......................................44
Section 4.11 Lending Offices......................................46
Section 4.12 Funding Losses.......................................47
Section 4.13 Assumptions Concerning Funding of
LIBOR Advances......................................48
Section 4.14 Apportionment of Payments............................48
Section 4.15 Sharing of Payments, Etc.............................48
Section 4.16 Capital Adequacy.....................................49
Section 4.17 Benefits to Guarantors...............................49
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Section 4.18 Limitations on Certain Payment
Obligations.........................................49
Section 4.19 Affected Lenders.....................................50
Section 4.20 Return of Payments...................................51
ARTICLE V
CONDITIONS TO BORROWINGS...............................................51
Section 5.1 Conditions Precedent to Initial Loans................52
Section 5.2 Conditions to All Loans..............................55
ARTICLE VI
REPRESENTATIONS AND WARRANTIES.........................................56
Section 6.1 Organization and Qualification.......................56
Section 6.2 Corporate Authority..................................56
Section 6.3 Financial Statements.................................57
Section 6.4 Tax Returns..........................................57
Section 6.5 Actions Pending......................................57
Section 6.6 Representations; No Defaults.........................58
Section 6.7 Title to Properties; Capitalized Leases..............58
Section 6.8 Enforceability of Agreement..........................58
Section 6.9 Consent..............................................59
Section 6.10 Use of Proceeds; Federal Reserve
Regulations.........................................59
Section 6.11 ERISA................................................59
Section 6.12 Subsidiaries.........................................60
Section 6.13 Outstanding Debt.....................................60
Section 6.14 Conflicting Agreements...............................60
Section 6.15 Environmental Matters................................61
Section 6.16 Possession of Franchises, Licenses, Etc..............62
Section 6.17 Patents, Trademarks, Etc.............................62
Section 6.18 Governmental Consent.................................63
Section 6.19 Disclosure...........................................63
Section 6.20 Insurance Coverage...................................63
Section 6.21 Labor Matters........................................63
Section 6.22 Intercompany Loans; Dividends........................64
Section 6.23 Securities Acts......................................64
Section 6.24 Investment Company Act; Holding Company..............64
Section 6.25 Regulation G, Etc....................................64
Section 6.26 Changes in Financial Condition;
Adverse Developments................................64
Section 6.27 Year 2000............................................65
Section 6.28 1998 Senior Subordinated Debt Issue..................65
Section 6.29 Collateral...........................................65
ARTICLE VII
AFFIRMATIVE COVENANTS..................................................66
Section 7.1 Corporate Existence, Etc.............................66
Section 7.2 Compliance with Laws, Etc............................66
Section 7.3 Payment of Taxes and Claims, Etc.....................66
Section 7.4 Keeping of Books.....................................66
Section 7.5 Visitation, Inspection, Etc..........................66
Section 7.6 Insurance; Maintenance of Properties.................67
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Section 7.7 Reporting Covenants..................................68
Section 7.8 Financial Covenants..................................72
Section 7.9 Notices Under Certain Other Indebtedness.............73
Section 7.10 Additional Guarantors................................74
Section 7.11 Fiscal Year..........................................74
Section 7.12 Ownership of Guarantors..............................74
Section 7.13 Subordination of Intercompany Loans..................75
ARTICLE VIII
NEGATIVE COVENANTS.....................................................75
Section 8.1 Liens................................................75
Section 8.2 Mergers, Acquisitions, Sales, Etc....................76
Section 8.3 Investments, Loans, Etc..............................77
Section 8.4 Sale and Leaseback Transactions......................79
Section 8.5 Transactions with Affiliates.........................79
Section 8.6 Optional Prepayments.................................80
Section 8.7 Changes in Business..................................80
Section 8.8 ERISA................................................80
Section 8.9 Additional Negative Pledges..........................80
Section 8.10 Limitation on Payment Restrictions
Affecting Consolidated Companies....................81
Section 8.11 Use of Proceeds......................................81
Section 8.12 Subsidiary Indebtedness..............................81
Section 8.13 Dividends............................................81
Section 8.14 Restrictions on Subordinated Debt....................81
ARTICLE IX
EVENTS OF DEFAULT......................................................81
Section 9.1 Payments.............................................81
Section 9.2 Covenants Without Notice.............................82
Section 9.3 Other Covenants......................................82
Section 9.4 Representations......................................82
Section 9.5 Non-Payments of Other Indebtedness...................82
Section 9.6 Defaults Under Other Agreements......................82
Section 9.7 Bankruptcy...........................................83
Section 9.8 ERISA................................................83
Section 9.9 Money Judgment.......................................84
Section 9.10 Ownership of Credit Parties..........................84
Section 9.11 Change in Control of Borrower........................84
Section 9.12 Default Under Other Credit Documents.................84
Section 9.13 Attachments..........................................85
Section 9.14 Default Under the Lease..............................85
Section 9.15 First Quarter Consolidated EBIT......................85
ARTICLE X
THE AGENTS.............................................................85
Section 10.1 Appointment of Agents................................85
Section 10.2 Nature of Duties of Administrative Agent.............86
Section 10.3 Lack of Reliance on the Administrative
Agent...............................................86
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Section 10.4 Certain Rights of the Administrative
Agent...............................................87
Section 10.5 Reliance by Agents...................................87
Section 10.6 Indemnification of Agents............................88
Section 10.7 The Administrative Agent in its
Individual Capacity.................................88
Section 10.8 Holders of Notes.....................................88
Section 10.9 Successor Administrative Agent.......................89
ARTICLE XI
MISCELLANEOUS..........................................................89
Section 11.1 Notices..............................................90
Section 11.2 Amendments, Etc......................................90
Section 11.3 No Waiver; Remedies Cumulative.......................91
Section 11.4 Payment of Expenses, Etc.............................91
Section 11.5 Right of Setoff......................................93
Section 11.6 Benefit of Agreement.................................93
Section 11.7 Governing Law; Submission to
Jurisdiction; Waiver of Jury Trial..................96
Section 11.8 Independent Nature of Lenders' Rights................97
Section 11.9 Counterparts.........................................97
Section 11.10 Effectiveness; Survival..............................98
Section 11.11 Severability.........................................98
Section 11.12 Independence of Covenants............................98
Section 11.13 Change in Accounting Principles,
Fiscal Year or Tax Laws.............................99
Section 11.14 Headings Descriptive; Entire Agreement...............99
Section 11.15 Time is of the Essence...............................99
Section 11.16 Usury................................................99
Section 11.17 Construction........................................100
Section 11.18 European Monetary Union.............................100
Section 11.19 Amendment and Restatement of Initial
Credit Agreement...................................100
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SCHEDULES
Schedule 6.1 Organization and Ownership of Subsidiaries
Schedule 6.4 Tax Filings and Payments
Schedule 6.5 Certain Pending and Threatened Litigation
Schedule 6.7 Capitalized Lease Obligations
Schedule 6.11 Employee Benefit Matters
Schedule 6.13(a) Outstanding Indebtedness
Schedule 6.13(b) Defaults Under Existing Indebtedness
Schedule 6.14 Conflicting Agreements
Schedule 6.15(a) Environmental Compliance
Schedule 6.15(b) Environmental Notices
Schedule 6.15(c) Environmental Permits
Schedule 6.15(d) Equal Employment and Employee Safety
Schedule 6.17 Patent, Trademark, License, and Other
Intellectual Property Matters
Schedule 6.21 Labor and Employment Matters
Schedule 6.22 Intercompany Loans
Schedule 7.10 Specific Subsidiaries who are not Guarantors
Schedule 8.1 Existing Liens
Schedule 8.3(c) Existing Investments
EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Subsidiary Guaranty Agreement
Exhibit C Form of Contribution Agreement
Exhibit D Form of Revolving Credit Note
Exhibit E Form of Pledge Agreement
Exhibit F Form of Closing Certificate
Exhibit G Form of Opinion of Borrower's Counsel
Exhibit H Form of Joinder to this Agreement
Exhibit I Form of Supplement to Subsidiary Guaranty
Agreement
Exhibit J Form of Supplement to Contribution Agreement
Exhibit K Description of Headquarters Real Property
Exhibit L Form of Security Agreement
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, dated as of March
25, 1998 (the "Agreement") by and among PLANET HOLLYWOOD INTERNATIONAL, INC.
("Borrower"), a Delaware corporation, SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION, ("SunTrust") a national banking association, THE BANK OF NOVA
SCOTIA ("Scotiabank"), a Canadian chartered bank, (collectively, the "Lenders"
and, individually, a "Lender"), and SunTrust as Administrative Agent for the
Lenders, Scotiabank as Syndication Agent for the Lenders, and SunTrust and
Scotiabank as Agents for the Lenders.
W I T N E S S E T H:
WHEREAS, on or about September 18, 1997, the Borrower and SunTrust,
AmSouth Bank, Scotiabank, Banque Paribas, Dai-Ichi Kangyo Bank, Limited, Atlanta
Agency, The Fuji Bank and Trust Company, Lloyds Bank PLC, National Westminster
Bank PLC, and the Sakura Bank, Limited(the "Initial Lenders") entered into that
certain Revolving Credit and Term Loan Agreement (the "Initial Credit
Agreement") dated September 18, 1997 providing for the extension to the Borrower
of various credit facilities as set forth therein; and
WHEREAS, on or about October 1, 1997, the Borrower and the Initial
Lenders, the Administrative Agent and the Syndication Agent entered into that
certain First Amendment to Revolving Credit and Term Loan Agreement, Consent and
Waiver (the "First Amendment") which amended the Initial Credit Agreement.
Hereafter, the term "Initial Credit Agreement" includes the First Amendment; and
WHEREAS, the parties have had discussions regarding the restructuring of
the credit facilities and the Initial Credit Agreement and wish to amend and
restate in its entirety the Initial Credit Agreement as set forth herein. This
Agreement will further provide for a restructuring of the Lenders, a
restructuring and reduction of the Total Revolving Loan Commitment to the
aggregate amount of $65,000,000.00 and the extension of the term of said credit
facility, the elimination of the Term Loan Commitment, the ability by the
Borrower to incur subordinate debt of $250,000,000.00 and other matters all as
set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants made
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions. As used in this Agreement, and in any instrument,
certificate, document or report delivered pursuant thereto, the following terms
shall have the following meanings (to be equally applicable to both the singular
and plural forms of the term defined):
"Administrative Agent" shall mean SunTrust Bank, Central Florida,
National Association as Administrative Agent for the Lenders hereunder and under
the other Credit Documents, and each successor Administrative Agent.
"Advance" shall mean any principal amount advanced and remaining
outstanding at any time under the Revolving Loans which Advance shall be made or
outstanding as a Base Rate Advance, a LIBOR Advance, or a Swing Line Advance.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"Agents" shall mean SunTrust Bank, Central Florida, National
Association and The Bank of Nova Scotia as agents for the Lenders hereunder and
under the other Credit Documents, and each successor Agent.
"Agreement" shall mean this Amended and Restated Revolving Credit
Agreement, either as originally executed or as it may be from time to time
supplemented, amended, restated, renewed or extended and in effect.
"Aladdin Letter of Intent" shall mean that certain Memorandum of
Understanding and Letter of Intent dated as of September 2, 1997 between the
Borrower and Aladdin Gaming, LLC, as joined in by Aladdin Holdings, LLC, as
amended by those two
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(2) letters dated October 15, 1997 and October ____, 1997, but not including any
further amendments or modifications thereto.
"Applicable Margin" shall mean 3.00% (i.e. 300 basis points).
"Asset Value" shall mean, with respect to any property or asset of
any Consolidated Company as of any particular date, an amount equal to the
greater of (i) the then book value of such property or asset as established in
accordance with GAAP, and (ii) the then fair market value of such property or
asset as determined in good faith by the board of directors of such Consolidated
Company.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an Eligible Assignee in accordance with the terms
of this Agreement and substantially in the form of Exhibit A.
"Available Foreign Currency" shall mean, individually or
collectively, as the context shall require, each of the following currencies, if
offered and subject to availability to all Lenders: (i) Japanese Yen, (ii)
French Francs, (iii) German Deutsche Marks, (iv) United Kingdom Pounds Sterling,
(v) Spanish Pesetas, (vi) Italian Lira, and (vii) at the option of all Lenders,
any other currency which is freely transferrable and convertible into U.S.
Dollars; provided, however, no such other currency shall be included as an
Available Foreign Currency hereunder unless (A) the Borrower has submitted a
written request to the Administrative Agent and Lenders that it be so included
and (B) the Administrative Agent and all Lenders have agreed to such request.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as amended
and in effect from time to time (11 U.S.C. ss.5101 et seq.).
"Base Rate" shall mean (with any change in the Base Rate to be
effective as of the date of change of either of the following rates):
with respect to the Revolving Loans the higher of (a) the rate which
SunTrust Banks of Florida, Inc., ("SunTrust Banks") announces from
time to time as its prime lending rate, as in effect from time to
time (the "Prime Rate") or (b) the Federal Funds Rate, as in effect
from time to time, plus one-half of one percent (0.50%) per annum.
The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate charged borrowing customers of any
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subsidiary bank of SunTrust Banks; any subsidiary of SunTrust Banks,
including the Administrative Agent, may make commercial loans or
other loans at rates of interest at, above or below the Prime Rate.
"Base Rate Advance" shall mean any Loan or Advance made or
outstanding hereunder and bearing interest based on the Base Rate.
"Base Rate Option" shall mean the option of the Borrower to select
an interest rate determined by reference to the Base Rate for any applicable
Interest Period for any Loan.
"Borrowing" shall mean the incurrence by Borrower under the Facility
of Advances of one Type concurrently having the same Interest Period or the
continuation or conversion of an existing Borrowing or Borrowings in whole or in
part.
"Business Day" shall mean any day other than Saturday, Sunday and a
day on which commercial banks are required or authorized to be closed for
business in Orlando, Florida, or the State of New York or London, England;
provided, that in the case of an Advance as a LIBOR Loan in U.S. Dollars or a
Multicurrency Loan in an Available Foreign Currency, such day is also a day on
which dealings between banks are carried on in U.S. Dollar and Available Foreign
Currency deposits in the London interbank market.
"Capitalized Lease Obligations" shall mean all lease obligations
which have been or are required to be, in accordance with GAAP, capitalized on
the books of the lessee.
"CERCLA" has the meaning set forth in Section 6.15 of this
Agreement.
"Closing Date" shall mean the date on or before March 31, 1998, on
which the initial Loans may be made and the conditions set forth in Section 5.1
are satisfied or waived in accordance with Section 11.2.
"Co-Arrangers" shall mean SunTrust Equitable Securities Corporation
and The Bank of Nova Scotia.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
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"Collateral" shall mean, except where otherwise directed by the
Administrative Agent, all tangible and intangible assets of the Borrower,
including, but not limited to, all Stock Collateral, notes from subsidiaries
referenced on Schedule 7.10, and general intangibles such as franchises,
trademarks, brands, licenses, patents and other rights necessary for the
operation of its business, and the Headquarters Facility. To the extent any
general intangibles such as franchises, trademarks, brands, licenses, patents
and other rights necessary for the operation of its business on a domestic basis
or located in a Subsidiary, then those assets in the Subsidiary will also be
included within the term "Collateral" unless otherwise set forth by the Required
Lenders.
"Commitment" shall mean, for any Lender at any time, its Revolving
Loan Commitment.
"Commitment Fee" shall mean the following fee payable by the
Borrower to the Administrative Agent for the account of and distribution to each
Lender with respect to the Commitments:
(i) for the period from the Closing through December 31, 1998, the
Commitment Fee shall be 0.75% (i.e. 75 basis points), as provided in
Section 4.5(b); and
(ii) for the period after December 31, 1998, the Commitment Fee
shall be 0.50% (i.e. 50 basis points).
For the purposes of determining the Commitment Fee, Swing Line Advances shall be
deemed to be outstanding solely in connection with the Revolving Loan Commitment
from the Swing Line Lender only. The Commitment Fee shall be paid as provided in
Section 4.5(b).
"Consolidated Companies" shall mean, collectively, Borrower and all
of its Subsidiaries.
"Consolidated EBIT" shall mean, for any fiscal period of the
Borrower, an amount equal to the sum of its Consolidated Net Income (Loss),
plus, to the extent deducted in determining Consolidated Net Income (Loss) (i)
Consolidated Interest Expense and (ii) Consolidated Income Tax Expense.
"Consolidated EBITDA" shall mean an amount equal to the sum of the
Consolidated Companies' Consolidated Net Income (Loss), plus, to the extent
deducted in determining Consolidated Net Income (Loss), (i) Consolidated Income
Tax Expense, (ii)
5
Consolidated Interest Expense, (iii) depreciation and amortization, and (iv)
non-cash charges of $68,200,000.00 which were included in determining the
Consolidated Companies' net income for its fiscal year ended December 28, 1997.
EBITDA shall be adjusted to include the audited trailing twelve months EBITDA of
any acquired entity.
"Consolidated EBITDAR" shall mean an amount equal to the sum of the
Consolidated Companies' Consolidated Net Income (Loss), plus, to the extent
deducted in determining Consolidated Net Income (Loss), (i) Consolidated Income
Tax Expense (ii) Consolidated Interest Expense, (iii) depreciation and
amortization, (iv) Consolidated Rental Expense, and (v) non-cash charges of
$68,200,000.00 which were included in determining the Consolidated Companies'
net income for its fiscal year ended December 28, 1997, all as determined in
accordance with GAAP.
"Consolidated IR" shall mean, for any fiscal period of the Borrower,
an amount equal to the sum of its Consolidated Interest Expense plus
Consolidated Rental Expense.
"Consolidated Interest Expense" shall mean, for any fiscal period of
Borrower, total interest expense (including without limitation, interest expense
attributable to capitalized leases in accordance with GAAP) of Borrower and its
Subsidiaries on a consolidated basis.
"Consolidated Income Tax Expense" shall mean, for any fiscal period
of the Borrower, the aggregate of (i) all taxes based upon or measured by the
income of the Borrower and its Subsidiaries on a consolidated basis and (ii)
franchise taxes payable by the Borrower and its Subsidiaries on a consolidated
basis, determined in accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any fiscal period
of Borrower, the consolidated net income (or loss) of Borrower and its
Subsidiaries for such period (taken as a single accounting period); provided
that (i) there shall be excluded therefrom (A) any items of gain or loss
resulting from the sale of assets other than in the ordinary course of business;
and (B) the income (or loss) of any party accrued prior to the date such party
becomes a Subsidiary of Borrower or is merged into or consolidated with Borrower
or any of its Subsidiaries, or such party's assets are acquired by the Borrower
or any of its Subsidiaries and (ii) there shall be included therein the income
(or loss) of any Non-Majority Owned Subsidiary but only to the extent of the
interest therein of the Borrower and, further, only to the extent that said
income is unrestricted and therefore may be withdrawn at any time by the
Borrower in its discretion without any conditions or approvals of any other
party.
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"Consolidated Net Worth" shall mean, for any period of
determination, the Borrower's consolidated total assets less consolidated total
liabilities determined in accordance with GAAP. The calculation of Consolidated
Net Worth shall exclude Subordinated Debt.
"Consolidated Rental Expense" shall mean for any fiscal GAAP period
of Borrower, total rental expense and operating lease expense of Borrower and
its Subsidiaries on a consolidated basis determined in accordance with GAAP.
"Contractual Obligation" of any Person shall mean any provision of
any security issued by such Person or of any agreement, instrument or
undertaking under which such Person is obligated or by which it or any of the
property owned by it is bound.
"Contribution Agreement" shall mean the Contribution Agreement
executed by each of the Guarantors in favor of the Lenders and the Agents,
substantially in the form of Exhibit C attached hereto, as the same may be
amended, restated or supplemented from time to time.
"Credit Documents" shall mean, collectively, the Agreement, as
amended from time to time, the Notes, the Pledge Agreement, the Security
Agreement, and all other Security Documents, the Guaranty Agreements, and all
other Guaranty Documents, together with all other documents, agreements,
certificates, schedules, notes, statements and opinions, however described,
referenced herein or delivered pursuant hereto or in connection with or arising
out of the Loans or the transactions contemplated by this Agreement.
"Credit Parties" shall mean, collectively, each of Borrower, the
Guarantors, and every other Person who from time to time executes a Credit
Document with respect to all or any portion of the Obligations.
"Default" shall mean any condition or event which, with notice or
lapse of time or both, would constitute an Event of Default.
"Default Rate" shall mean the higher of (i) Base Rate plus two
percent (2%), or (ii) the interest rate otherwise applicable to said amount
outstanding plus two percent (2%), but in no event shall such interest rate
exceed the highest lawful rate.
"Dollar" and the sign "$" shall mean lawful money of the United
States of America.
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"Eligible Assignee" shall mean (i) a commercial bank organized under
the laws of the United States, or any state thereof, having total assets in
excess of $1,000,000,000 or any commercial finance or asset based lending
Affiliate of any such commercial bank, (ii) any Lender or any Affiliate of any
Lender and (iii) any other financial institution approved in writing by the
Administrative Agent and the Borrower.
"Environmental Laws" shall mean all federal, state, local and
foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, and having the force of laws, now or
hereafter in effect (including, without limitation, those with respect to
asbestos or asbestos containing material or exposure to asbestos or asbestos
containing material), relating to pollution or protection of the environment and
relating to public health and safety, including, without limitation, those
imposing liability or standards of conduct concerning (i) emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals or
industrial toxic or hazardous materials, substances or wastes, including without
limitation, any Hazardous Substance, petroleum including crude oil or any
fraction thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law into the environment (including without
limitation, ambient air, surface water, ground water, land surface or subsurface
strata), or (ii) the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of any Hazardous Substance,
petroleum including crude oil or any fraction thereof, any petroleum product or
other waste, chemicals or substances regulated by any Environmental Law, and
(iii) underground storage tanks and related piping, and emissions, discharges
and releases or threatened releases therefrom, such Environmental Laws to
include, without limitation (i) the Clean Air Act (42 U.S.C. ss.7401 et seq.),
(ii) the Clean Water Act (33 U.S.C. ss.1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. ss.6901 et seq.), (iv) the Toxic
Substances Control Act (15 U.S.C. ss.2601 et seq.) and (v) the Comprehensive
Environmental Response Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (42 U.S.C. ss.9601 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person, each trade
or business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning of
the regulations promulgated under Section 414 of the Tax Code.
8
"Event of Default" shall have the meaning set forth in Article .
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"Executive Officer" shall mean with respect to any Person (other
than a Guarantor), the President, Vice Presidents, Chief Financial Officer,
Treasurer, Secretary and any Person holding comparable offices or duties, and
with respect to a Guarantor, the President, Chief Financial Officer or Treasurer
and any Person holding comparable offices or duties.
"Extension of Credit" shall mean the making of a Loan or the
conversion of a Loan of one Type into a Loan of another Type.
"Facility" or "Facilities" shall mean the Revolving Loan Commitments
and Revolving Loans and/or the Letters of Credit, as the context may indicate.
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of Atlanta, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the Administrative
Agent.
"Fee Letters" shall mean that (i) certain administrative agent fee
letter dated March 20, 1998, entered into by and among SunTrust Equitable
Securities Corporation, the Administrative Agent and the Borrower and, and (ii)
certain underwriting fee letter dated March 20, 1998 entered into by and among
SunTrust Equitable Securities Corporation, the Administrative Agent, the
Syndication Agent and the Borrower.
"Fixed Charge Coverage Ratio" shall mean, as at the end of any
fiscal period of the Borrower, the ratio of (A) Consolidated EBITDAR less
maintenance capital expenditures in an amount equal to at least $15,000,000.00
or actual maintenance capital expenditures, whichever is greater to (B)
Consolidated IR.
"Foreign Currency Business Day" shall mean any Business Day,
excluding a day on which trading is not carried on by banks
9
in deposits of the applicable Available Foreign Currency in the applicable
interbank market for such Available Foreign Currency.
"Foreign Currency Rate" shall mean the offered rate for deposits in
the applicable Available Foreign Currency for a one, two or three month period
with respect to any Multicurrency Loan as quoted on the Telerate System
subscribed to by the Administrative Agent, and which appears on Telerate Page
3750 of the Telerate System Incorporated Service for German Deutsche Marks,
Japanese Yen and United Kingdom Pounds Sterling, and Telerate Page 3740 of the
Telerate System Incorporated Service for Italian Lira, French Francs and Spanish
Pesetas (or such other page of the Telerate System on which any applicable
Available Foreign Currency then appears), as of 11:00 a.m., London time, two (2)
Business Days prior to the beginning of the applicable Interest Period. If the
one, two or three month Foreign Currency Rate pertaining to an Available Foreign
Currency is unavailable on the Telerate System, then such rate shall be
determined by and based on any other interest rate reporting service of
generally recognized standing designated by the Administrative Agent to the
Borrower. The Foreign Currency Rate may be adjusted by the Administrative Agent
for any applicable reserve requirements or withholding taxes.
"Foreign Subsidiary" shall mean a Subsidiary not organized under the
laws of any of the fifty (50) states of the United States of America or the
District of Columbia or the U.S. Virgin Islands or Puerto Rico, or that is
operating entirely outside of the United States.
"Funded Debt" shall mean, without duplication, all indebtedness for
money borrowed, purchase money mortgages, capitalized leases, outstandings under
asset securitization vehicles, conditional sales contracts and similar title
retention debt instruments, and any Guaranteed Indebtedness including any
current maturities of such indebtedness, which by its terms matures more than
one year from the date of any calculation thereof and/or which is renewable or
extendable at the option of the obligor to a date beyond one year from such
date. The calculation of Funded Debt shall include all Funded Debt of the
Borrower and its subsidiaries, plus all Funded Debt of other entities or
persons, other than subsidiaries, which has been guaranteed by the Borrower or
any subsidiary or which is supported by a letter of credit issued for the
account of the Borrower or any subsidiary, except the guaranties to be executed
by the Borrower in connection with the Lease. Funded Debt shall also include the
redemption amount with respect to any stock of the Borrower or its Subsidiaries
required to be redeemed within the next twelve months. Funded Debt shall however
exclude all Non-Recourse Debt.
10
"GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Guaranteed Indebtedness" shall mean, as to any Person, any
obligation of such Person guaranteeing any indebtedness, lease, dividend, or
other obligation ("primary obligation") of any other Person (the "primary
obligor") in any manner including, without limitation, any obligation or
arrangement of such Person (a) to purchase or repurchase any such primary
obligation, (b) to advance or supply funds (i) for the purchase or payment of
any such primary obligation or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet condition of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) to indemnify the owner of such
primary obligation against loss in respect thereof.
"Guarantors" shall mean each and all of the Borrower's Material
Subsidiaries other than (i)Foreign Subsidiaries, and (ii) those Subsidiaries
identified in Schedule 7.10.
"Guaranty Agreements" shall mean, collectively, the Subsidiary
Guaranty Agreement executed by each of the Guarantors in favor of the Lenders
and the Agents, substantially in the form of Exhibit B attached hereto as the
same may be amended, restated or supplemented from time to time, and the
Contribution Agreement executed by each of the Guarantors, substantially in the
form of Exhibit C, as the same may be amended, restated or supplemented from
time to time.
"Guaranty Documents" shall mean, collectively, the Guaranty
Agreements, and each other guaranty agreement, mortgage, deed of trust, security
agreement, pledge agreement, or other security or collateral document
guaranteeing or securing the Obligations, as the same may be amended, restated,
or supplemented from time to time, and the Contribution Agreements executed by
each of the Guarantors, as the same may be amended, restated or supplemented
from time to time.
"Hazardous Substances" has the meaning assigned to that term in
CERCLA.
"Headquarters Facility" shall mean the approximately 106,000 square
foot corporate headquarters building and the
11
approximately 80,000 square foot warehouse building located on the Headquarters
Real Property.
"Headquarters Real Property" shall mean the real property located in
Orange County, Florida, and more particularly described in Exhibit K attached
hereto.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all rental obligations under leases required to be
capitalized under GAAP; (iii) all Guaranteed Indebtedness of such Person
(including contingent reimbursement obligations under undrawn letters of
credit); (iv) Indebtedness of others secured by any Lien upon property owned by
such Person, whether or not assumed; and (v) obligations or other liabilities
under currency contracts, interest rate hedging contracts, or similar agreements
or combinations thereof.
"Intercompany Loans" shall mean, collectively, (i) the loans or
advances more particularly described on Schedule 6.22, (ii) those loans,
advances or other extensions of credit made by the Borrower or any Guarantor to
another Guarantor and (iii) those loans, advances or other extensions of credit
made by any Consolidated Company to another Consolidated Company as may be
approved in writing by the Administrative Agent and the Required Lenders.
"Interest Period" shall mean the period selected by the Borrower
from time to time and which shall be (i) with respect to LIBOR Advances, 1, 2, 3
or 6 months, and (ii) with respect to Multicurrency Loans, 1, 2 or 3 months;
provided, that (a) the first day of an Interest Period must be a Business Day,
(b) any Interest Period that would otherwise end on a day that is not a Business
Day for LIBOR Loans shall be extended to the next succeeding Business Day for
LIBOR Loans, unless such Business Day falls in the next calendar month, in which
case the Interest Period shall end on the next preceding Business Day for LIBOR
Loans, and (c) Borrower may not elect an Interest Period which would extend
beyond the Maturity Date.
"Investment" shall mean, when used with respect to any Person, any
direct or indirect advance, loan or other extension of credit (other than the
creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
12
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person.
"Lease" shall mean the lease to be entered into by and between
Atlantic Financial Group, Ltd., as the lessor, and the Borrower, as the lessee,
with respect to the New York Restaurant.
"Lender" or "Lenders" shall mean SunTrust, Scotiabank, and the other
banks and lending institutions listed on the signature pages hereof, and each
assignee thereof, if any, pursuant to Section 11.6.
"Lending Office" shall mean for each Lender the office such Lender
may designate in writing from time to time to Borrower and the Administrative
Agent with respect to each Type of Loan.
"Letter of Credit" means a Standby Letter of Credit.
"Letter of Credit Application" means an application to the Agent for
the issuance of a Letter of Credit in form and substance satisfactory to the
Administrative Agent.
"Letter of Credit Fees" shall mean the fees payable by the Borrower
with respect to each Letter of Credit issued hereunder, in the amounts and at
the times as set forth in Section 4.5(c) and (d).
"Letter of Credit Obligation" means, in respect of each Letter of
Credit, the undrawn face amount of such Letter of Credit, plus the aggregate
amount of all unreimbursed draws in respect of such Letter of Credit.
"Letter of Credit Obligations" means the sum of all Letter of Credit
Obligations.
"LIBOR" shall mean, for any Interest Period, the offered rates for
deposits in U.S. Dollars for a period comparable to the Interest Period
appearing on the Telerate System subscribed to by the Administrative Agent, and
which appears on Telerate Page 3750 as of 11:00 a.m., London time, on the day
that is two (2) Business Days prior to the first day of the Interest Period. If
at least two such rates appear on Telerate Page 3750, the rate for that Interest
Period will be the arithmetic mean of such rates, rounded, if necessary, to the
next higher 1/16 of 1.0%; and in either case as such rates may be adjusted for
any applicable reserve requirements. If the foregoing rate is unavailable from
the Telerate System for any reason, then such rate shall be determined by the
Administrative Agent from any other interest rate reporting service of
13
recognized standing designated in writing by the Administrative Agent to
Borrower and the Lenders; in any such case rounded, if necessary, to the next
higher 1/16 of 1.0%, if the rate is not such a multiple.
"LIBOR Advance" shall mean an Advance made or outstanding as a
Revolving Loan and bearing interest based on LIBOR.
"LIBOR Loan" shall mean any Loan hereunder which bears interest at a
rate based on LIBOR plus the Applicable Margin.
"LIBOR Option" shall mean the option of the Borrower to select an
interest rate determined by reference to LIBOR for any applicable Interest
Period for any Loan.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind or description and shall include,
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any capitalized lease in the nature
thereof including any lease or similar arrangement with a public authority
executed in connection with the issuance of industrial development revenue bonds
or pollution control revenue bonds, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction.
"Loans" shall mean, collectively, the Revolving Loans .
"Material Subsidiary" shall mean (i) each Credit Party other than
Borrower and (ii) each other Subsidiary of Borrower, now existing or hereafter
established or acquired, that at any time prior to the Final Maturity Date,
either has or acquires total assets having a book value equal to or greater than
five percent (5%) of the book value of the total assets of the Consolidated
Companies or that accounted for or produced more than 5% of the Consolidated
EBITDAR during any of the most recently completed immediately preceding four
quarterly periods of the Borrower.
"Materially Adverse Effect" shall mean a material adverse effect
upon, or a material adverse change in, any of the (i) business, results of
operations, properties, or financial condition or prospects of the Consolidated
Companies taken as a whole, (ii) legality, validity, binding effect or
enforceability of any Credit Document, or (iii) ability of the Credit Parties to
perform their obligations under the Credit Documents.
14
"Maturity Date" shall mean the earlier of (i) March 25, 2000,
provided, however, at either March 25, 1999 (i.e. the first anniversary date) or
March 25, 2000 (i.e. the second anniversary date), but not both, the Maturity
Date may be extended to March 25, 2001 at the Borrower's option provided that
the Fixed Charge Coverage Ratio as of the end of the then most recent fiscal
year of the Borrower, as the case may be, was no less than 2.50 to 1.00, or (ii)
the occurrence of an Event of Default; or such later date as may be approved by
the Agents and the Lenders, in their sole discretion.
"Maximum Letter of Credit Amount" shall mean $10,000,000.00.
"Maximum Multicurrency Loan Amount" shall mean the U.S. Dollar
Equivalent of $25,000,000.00.
"Maximum Swing Line Amount" shall mean $5,000,000.00.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors and assigns.
"Mortgage" shall mean the mortgage granted on the Headquarters
Facility to secure the Obligations.
"Multicurrency Loans" shall mean Revolving Loans made in an
Available Foreign Currency and bearing interest at the Foreign Currency Rate
plus the Applicable Margin.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"New York Restaurant" shall mean a restaurant site in New York City
at the corner of Broadway and ▇▇▇▇ ▇▇▇▇▇▇ in Times Square, consisting of a
condominium on the ground floor of a hotel building.
"Non-Majority Owned Subsidiary" shall mean, with respect to any
Person, any corporation or other entity (including, without limitation,
partnerships, joint ventures, limited liability companies and associations)
regardless of its jurisdiction of organization or formation, for which such
Person, either directly or indirectly through one or more Subsidiaries, owns
voting stock or other ownership interests but such voting stock or other
ownership interest does not constitute a majority of the total combined voting
power of all classes of voting stock or other ownership interests.
"Non-Recourse Debt" shall mean the debt incurred by Aladdin Gaming
in an amount not to exceed $200,000,000.00 and which debt is on a non-recourse
basis and for which none of the Consolidated Companies have any liability
provided, however any
15
liability arising by virtue of the Aladdin Letter of Intent shall, for the
purposes of this definition only, be on a non-recourse basis and shall not be
deemed to be a liability for any Consolidated Company.
"Note" or "Notes" shall mean, individually, or collectively, as the
context may require, any of the Revolving Credit Notes, either as originally
executed or as the same may be from time to time supplemented, modified,
amended, renewed, extended or replaced.
"Notice of Borrowing" shall have the meaning provided in Section
4.1.
"Notice of Conversion/Continuation" shall have the meaning provided
in Section 4.1.
"Obligations" shall mean all amounts owing to the Agents or any
Lender pursuant to the terms of this Agreement or any other Credit Document,
including without limitation, all Loans (including all principal and interest
payments due thereunder), interest rate cap agreements, interest rate swap
agreements, foreign currency exchange agreements and other hedging agreements or
arrangements, fees, expenses, indemnification and reimbursement payments,
indebtedness, liabilities, and obligations of the Credit Parties, direct or
indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising, together with all renewals, extensions, modifications or
refinancings thereof.
"Payment Office" shall mean the office of the Administrative Agent
located at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; or such other location as may
be designated by the Administrative Agent from time to time in writing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and any
successor thereto.
"Permitted Encumbrances" shall mean those encumbrances and other
matters described and set forth in Section 8.1 below.
"Person" shall mean and shall include an individual, a partnership,
a joint venture, a corporation, a limited liability company, a trust, an
unincorporated association, a government or any department or agency thereof and
any other entity whatsoever.
"Plan" shall mean any employee benefit plan, program, arrangement,
practice or contract, maintained by or on behalf of the Borrower or an ERISA
Affiliate, which provides benefits or compensation to or on behalf of employees
or former employees, whether formal or informal, whether or not written,
including but not limited to the following types of plans:
16
(i) Executive Arrangements - any bonus, incentive compensation,
stock option, deferred compensation, commission, severance, "golden
parachute", "rabbi trust", or other executive compensation plan, program,
contract, arrangement or practice;
(ii) ERISA Plans - any "employee benefit plan" (as defined in
Section 3(3) of ERISA), including, but not limited to, any defined benefit
pension plan, profit sharing plan, money purchase pension plan, savings or
thrift plan, stock bonus plan, employee stock ownership plan,
Multiemployer Plan, or any plan, fund, program, arrangement or practice
providing for medical (including post-retirement medical),
hospitalization, accident, sickness, disability, or life insurance
benefits;
(iii) Other Employee Fringe Benefits - any stock purchase, vacation,
scholarship, day care, prepaid legal services, severance pay or other
fringe benefit plan, program, arrangement, contract or practice.
"Pledge Agreement" shall mean a Pledge Agreement substantially in
the form of Exhibit "E" attached hereto.
"Pro Rata Share" shall mean, with respect to the Commitment of each
Lender, each Letter of Credit and each Loan to be made by and each payment
(including, without limitation, any payment of principal, interest or fees) to
be made to each Lender, the percentage designated as such Lender's Pro Rata
Share of such Commitment, such Loans, Letter of Credit or such payments, as
applicable, set forth under the name of such Lender on the respective signature
page for such Lender, in each case as such Pro Rata Share may change from time
to time as a result of assignments or amendments made pursuant to this
Agreement.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time.
"Required Lenders" shall mean, at any time, all of (i) Lenders
holding at least sixty-six and two-thirds percent (662/3%) of the then aggregate
amount of the Commitments, (ii) the Administrative Agent, and (iii) the
Syndication Agent, provided, however, the interest of the Administrative Agent
and the Syndication Agent shall be included for the purpose of determining the
aggregate amount of the Commitments for the Lenders under clause (i) herein.
"Requirement of Law" for any Person shall mean the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any
17
law, treaty, rule or regulation, or determination of an arbitrator or a court or
other governmental authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Revolving Credit Notes" shall mean, collectively, the promissory
notes evidencing the Revolving Loans in the form attached hereto as Exhibit D,
either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or replaced.
"Revolving Loans" shall mean, collectively, the revolving credit
loans made to Borrower by the Lenders pursuant to Section 2.1, including
Multicurrency Loans and Swing Line Loans. Revolving Loans shall include both
Revolving Loans A and Revolving Loans B.
"Revolving Loans A" shall mean, collectively, the revolving credit
loans made to the Borrower by the Lenders pursuant to Section 2.1, including
multicurrency loans and swing line loans, up to the aggregate principal amount
of $100,000.00.
"Revolving Loans B" shall mean, collectively, the revolving credit
loans made to the Borrower by the Lenders pursuant to Section 2.1, including
multicurrency loans and swing line loans, up to the aggregate amount of
$64,900,000.00.
"Revolving Loan Commitment" shall mean, at any time for any Lender,
the amount of such commitment set forth under such Lender's name on the
signature pages hereof, as the same may be increased or decreased from time to
time as a result of any reduction thereof pursuant to Section 2.3, any
assignment thereof pursuant to Section 11.6, or any amendment thereof pursuant
to Section 11.2, which amount shall include such Lender's Revolving Loans.
"S & P" shall mean the Standard & Poor's Ratings Services, a
division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, and its successors and assigns.
"Security Agreement" shall mean a Security Agreement substantially
in the form of Exhibit "L" attached hereto.
"Security Documents" shall mean the Mortgage, Pledge Agreement,
Security Agreement, financing statements and such other documents as may be
necessary or appropriate, in the reasonable opinion of the Administrative Agent
and its counsel, so as to grant to the Lenders as security for the Obligations a
first mortgage, security interest, or other lien, as the case may be, in and to
the Collateral, subject only to the Permitted Encumbrances.
18
"Security Interest" shall mean the mortgage, security interest or
other form of encumbrance granted and to be granted in the Collateral to the
Lenders as security for the Obligations.
"Senior Funded Debt" shall mean all Funded Debt other than
Subordinated Debt. Senior Funded Debt shall also include the redemption amount
with respect to any redeemable preferred stock of the Borrower or its
subsidiaries required to be redeemed within the next twelve months.
"Spot Rate" for an Available Foreign Currency shall mean the rate
quoted to the Administrative Agent as the Spot Rate for the purchase of such
currency with another currency through the Administrative Agent's foreign
exchange trading office at approximately 11:00 a.m. (New York time) on the date
when foreign exchange settlement between the two currencies would normally
occur.
"Standby Letter of Credit" means any letter of credit having terms
described in Section 2.4 and issued in response to a Letter of Credit
Application.
"Standby Letter of Credit Obligation" shall mean the sum of the
undrawn face amount of each Standby Letter of Credit plus the aggregate amount
of all drawings not paid pursuant to Section 2.6(b) in respect of each Standby
Letter of Credit.
"Stock Collateral" shall mean all the outstanding shares of capital
stock in each Guarantor owned by the Borrower or any Subsidiary.
"Subordinated Debt" shall mean Indebtedness of Borrower and its
Subsidiaries which is expressly subordinated to all obligations of Borrower and
its Subsidiaries or any other Credit Party arising under this Agreement, the
Notes, and the Guaranty Agreements on terms and conditions satisfactory in all
respects to the Agents and the Required Lenders, including without limitation,
with respect to interest rates, payment terms, maturities, amortization
schedules, covenants, defaults, remedies, and subordination provisions, as
evidenced by the written approval of the Agents and Required Lenders. The term
"Subordinated Debt" includes the 1998 Subordinated Debt.
"1998 Senior Subordinated Debt" shall mean the Subordinated Debt in
the aggregate amount of $250,000,000.00 and which constitutes the 1998
Subordinated Debt Issue. In the 1998 Senior Subordinated Loan Agreement, said
Debt is denominated as the 12% Series A Senior Subordinated Notes due 2005 and
the 12% Series B Senior Subordinated Notes due 2005.
19
"1998 Senior Subordinated Debt Issue" shall mean that certain
issuance of Subordinated Debt by the Borrower during the month of March, 1998 in
the amount not less than $250,000,000.00.
"1998 Senior Subordinated Loan Agreement" shall mean that certain
Indenture dated as of March 25, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Trust Company of New York, as the Trustee, providing for issuance of the 1998
Senior Subordinated Debt.
"Subsidiary" shall mean, with respect to any Person, any corporation
or other entity (including, without limitation, partnerships, joint ventures,
limited liability companies and associations) regardless of its jurisdiction of
organization or formation, at least a majority of the total combined voting
power of all classes of voting stock or other ownership interests of which
shall, at the time as of which any determination is being made, be owned by such
Person, either directly or indirectly through one or more other Subsidiaries.
"Swing Line Advance" shall mean any Loan or Advance made or
outstanding hereunder made as a Swing Line Loan and bearing interest based on
the Swing Line Rate.
"Swing Line Commitment" shall mean the amount of such commitment set
forth under the Administrative Agent's name on the signature page hereof, as the
same may be increased or decreased from time to time as a result of any
amendment thereof pursuant to Section 11.2.
"Swing Line Lender" shall mean the Administrative Agent subject,
however, to the provisions of Section 2.1(i) below, in which event, the term
"Swing Line Lender" shall mean all the Lenders.
"Swing Line Loan" shall mean those Revolving Loans which are
extended by the Swing Line Lender under the provisions of Section 2.1(i) below.
"Swing Line Rate" shall mean the absolute rate of interest offered
by the Swing Line Lender applicable to Swing Line Advances.
"Swing Line Loans" shall mean the revolving credit loans made to the
Borrower by the Administrative Agent pursuant to Section 2.1(i).
"Syndicate Revolving Loan" shall mean, collectively, the Revolving
Loans made to Borrower hereunder.
20
"Syndication Agent" shall mean The Bank of Nova Scotia as
Syndication Agent for the Lenders hereunder and under the other Credit
Documents.
"Taxes" shall mean any present or future taxes, levies, imposts,
duties, fees, assessments, deductions, withholdings or other charges of whatever
nature, including without limitation, income, receipts, excise, property, sales,
transfer, license, payroll, withholding, social security and franchise taxes now
or hereafter imposed or levied by the United States, or any state, local or
foreign government or by any department, agency or other political subdivision
or taxing authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any designated
page and LIBOR or Foreign Currency Rate, the pages so designated on the Telerate
System Incorporated Service for British Bankers Association LIBOR Rates for U.S.
Dollars or the applicable Available Foreign Currency (or such other page as may
replace that page on that service for the purpose of displaying the rates at
which U.S. Dollars or the applicable Available Foreign Currency are offered by
leading banks in the London interbank deposit market).
"Total Commitment" shall mean for any Lender at any time, such
Lender's Revolving Loan Commitment and "Total Commitments" shall mean for all
Lenders at any time, the sum of the Total Commitments of all Lenders as such
Total Commitments may be reduced by voluntary reduction, prepayment or
nonrenewal of a Lender's Commitment as provided herein.
"Total Funded Debt" shall mean the sum of (i) Senior Funded Debt and
(ii) Subordinated Debt.
"Total Revolving Loan Commitment" shall mean the sum of the
Revolving Loan Commitments of all the Lenders in the aggregate amount of
$65,000,000.00, as reduced from time to time as provided herein.
"Type" of Borrowing shall mean a Borrowing consisting of Base Rate
Advances, LIBOR Advances or Swing Line Advances.
"U.S. Dollar Equivalent" shall mean the equivalent in U.S. Dollars
of any Multicurrency Loan made in an Available Foreign Currency converted using
(i) the Spot Rate determined by the Administrative Agent on the date of the
fixing of the Foreign Currency Rate or (ii) with respect to Section 2.2(c), the
Spot Rate on the last Business Day of the calendar quarter.
"Wholly Owned Subsidiary" shall mean any Subsidiary, all the stock
or ownership interest of every class of which,
21
except directors' qualifying shares, shall, at the time as of which any
determination is being made, be owned by Borrower either directly or indirectly.
Section 1.2 Accounting Terms and Determination. Unless otherwise defined
or specified herein, all accounting terms shall be construed herein, all
accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with GAAP.
Section 1.3 Other Definitional Provisions.
(a) Except as otherwise specified herein, references herein to any
agreement or contract defined or referred to herein shall be deemed
a reference to any such agreement or contract (and in the case of
any instrument, any other instrument issued in substitution
therefor) as the terms thereof may have been or may be amended,
supplemented, waived or otherwise modified from time to time.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and
Article, Section, Schedule, Exhibit and like references are to this
Agreement unless otherwise specified.
(c) The singular pronoun, when used in this Agreement, shall include the
plural and neuter shall include the masculine and the feminine.
(d) All terms defined in this Agreement shall have the defined meanings
when used in any Note or, except as otherwise expressly stated
herein, any certificate, opinion, or other document delivered
pursuant hereto.
Section 1.4 Exhibits and Schedules. All Exhibits and Schedules attached
hereto are by reference made a part hereof.
ARTICLE II
REVOLVING LOANS; LETTERS OF CREDIT
Section 2.1 Commitment; Use of Proceeds.
(a) Subject to and upon the terms and conditions herein set forth,
each Lender severally agrees from time to time on and after the Closing
Date, but prior to the Maturity Date, (i) to make the Revolving Loans as
provided
22
in this Section 2.1, (ii) to purchase participations in Standby Letters of
Credit issued by the Administrative Agent for the account of the Borrower
as provided in Section 2.8, and (iii) to purchase participations in the
Swing Line Loans made by the Administrative Agent as provided in Section
2.1(i). Borrower shall be entitled to repay and reborrow Revolving Loans
in accordance with the provisions hereof.
(b) The sum of (i) the aggregate unpaid principal amount of any
Lender's Revolving Loans outstanding, plus (ii) the aggregate amount of
such Lender's participations in Letter of Credit Obligations, shall not
exceed at any time such Lender's Revolving Loan Commitment.
(c) The sum of (i) the aggregate unpaid principal amount of all
Revolving Loans, plus (ii) the aggregate amount of all Standby Letter of
Credit Obligations, shall not exceed at any time the Total Revolving Loan
Commitment.
(d) The aggregate amount of all Standby Letter of Credit Obligations
shall not exceed at any time the Maximum Letter of Credit Amount.
(e) The aggregate U.S. Dollar Equivalent amount of all Multicurrency
Loans shall not exceed at any time the Maximum Multicurrency Loan Amount.
(f) The aggregate amount of all Swing Loans shall not exceed at any
time the Maximum Swing Line Loan Amount.
(g) Subject to Subsection (i) below, each Revolving Loan shall, at
the option of Borrower, be made or continued as, or converted into, part
of one or more Borrowings that shall consist entirely of Syndicate
Revolving Loans (as Base Rate Advances or LIBOR Advances). The aggregate
principal amount of each Borrowing of Syndicate Revolving Loans comprised
of LIBOR Advances or Multicurrency Loans shall be not less than $2,000,000
or a greater integral multiple of $500,000 (Multicurrency Loans shall be
in an Available Foreign Currency of which the U.S. Dollar Equivalent is
equal to not less than such amount(s)) and the aggregate principal amount
of each Borrowing of Syndicated Revolving Loans comprised of Base Rate
Advances shall be not less than $1,000,000.00 or a greater integral
multiple of $100,000.00 and the aggregate principal amount of each
Borrowing of Swing Line Loans shall be no less than $500,000.00 or a
greater integral multiple of $100,000.00. At no time shall the number of
Borrowings of Syndicate Revolving Loans comprised of LIBOR Advances,
outstanding under
23
this Article exceed eight (8); provided that, for the purpose of
determining the minimum amount for Borrowings resulting from conversions
or continuations, all Borrowings of Base Rate Advances under this Facility
shall be considered as one Borrowing. At no time shall the number of
Multicurrency Loans outstanding under this Article II exceed six (6). The
parties hereto agree that (i) the aggregate principal balance of the
Revolving Loans of the Lenders as a group shall not exceed the sum of the
Revolving Loan Commitments for each Lender and (ii) no Lender shall be
obligated to make Syndicate Revolving Loans in excess of the Revolving
Loan Commitment of such Lender.
(h) The proceeds of Revolving Loans shall be used for the following
purposes:
(i) For working capital and for other general corporate
purposes, including acquisitions and capital expenditures of the
Consolidated Companies;
(ii) To pay all transaction fees and expenses incurred in
connection with this financing including costs and expenses,
including attorneys' fees of the Lenders, and, with the written
consent of the Administrative Agent, costs and expenses, including
attorneys' fees, of the Borrower; and
(iii) To pay other fees to the Administrative Agent or Lenders
from time to time under this Agreement including Commitment Fees,
Letter of Credit Fees and any other administrative fees due the
Administrative Agent.
(i) Subject to the further provisions of this Subsection, the Swing
Loans shall be made solely by the Administrative Agent. Upon the
occurrence of an Event of Default, each Lender shall purchase from the
Administrative Agent its Pro-Rata Share of the outstanding Swing Line
Loans. The Swing Line Lender shall not be required to extend any Swing
Line Loans to the extent, and the amount outstanding on Swing Line Loans
shall be reduced, to the extent that the sum of the Swing Line Loans
requested or made and the amount of Revolving Loans extended by the Swing
Line Lender exceed in the aggregate the Swing Line Lender's Revolving Loan
Commitment.
24
Section 2.2 Notes; Repayment of Principal.
(a) Borrower's obligations to pay the principal of, and interest on,
the Syndicate Revolving Loans to each Lender shall be evidenced by the
records of the Administrative Agent and such Lender and by the Revolving
Credit Note payable to such Lender (or the assignee of such Lender)
completed in conformity with this Agreement.
(b) All outstanding principal amounts under the Revolving Loans
shall be due and payable in full on the Maturity Date provided, however,
in connection with the Swing Line Advance, each Swing Line Advance shall
be due and payable in full one (1) Business Day after said Advance has
been made.
(c) If the aggregate U.S. Dollar Equivalent of Borrowings
outstanding under this Article II consisting of Multicurrency Loans
exceeds the Maximum Multicurrency Amount by more than ten percent (10%)
for any reason, including fluctuations in the value of the Available
Foreign Currency in which such Loans were made, the Borrower shall, within
three (3) Business Days of demand therefor by the Administrative Agent,
make a payment to the Administrative Agent of principal on the
Multicurrency Loans sufficient to bring the aggregate outstanding balance
of all Multicurrency Loans down to an amount which does not exceed the
Maximum Multicurrency Amount.
Section 2.3 Voluntary Reduction of Revolving Loan Commitments. Upon at
least three (3) Business Days' prior telephonic notice (promptly confirmed in
writing) to the Administrative Agent, Borrower shall have the right, without
premium or penalty, to terminate the Revolving Loan Commitments, in part or in
whole, provided that (i) any such termination shall apply to reduce
proportionately and permanently the Revolving Loan Commitments of each of the
Lenders, (ii) any partial termination pursuant to this Section 2.3 shall be in
an amount of at least $5,000,000 and integral multiples of $1,000,000, and (iii)
no such reduction shall be permitted if prohibited or without payment of all
costs required to be paid hereunder with respect to a prepayment. If the
aggregate outstanding amount of the Revolving Loans exceeds the amount of the
Revolving Loan Commitments as so reduced, Borrower shall immediately repay the
Revolving Loans for the ratable account of the Lenders by an amount equal to
such excess, together with all accrued but unpaid interest on such excess amount
and any amounts due under Section 4.12 hereof.
25
Section 2.4 Letters of Credit. Upon the terms and subject to the
conditions of this Agreement, from the Closing Date to but excluding the
Maturity Date, the Administrative Agent shall issue Standby Letters of Credit
for the account of the Borrower or the joint account of the Borrower and any
Guarantor, and each Lender shall thereupon be deemed to have purchased a
participation in each such Letter of Credit as provided in Section 2.8. Each
Standby Letter of Credit shall (i) have an expiration date not later than the
earlier of (A) 365 days after the date of issuance of such Letter of Credit
(which may include any provision providing for the automatic extension of the
term of such Letter of Credit for an additional period of time beyond 365 days
after the date of issuance), or (B) the Maturity Date, and (ii) be used for any
corporate purpose allowed under this Agreement including, without limitation, to
secure any surety bond or any self-insurance program of the Borrower.
Section 2.5 Manner of Issuance. The Borrower shall forward a Letter of
Credit Application in the appropriate form to the Administrative Agent at the
address specified on the Letter of Credit Application prior to noon (Orlando,
Florida time) at least two Business Days before the requested date of issuance
of a Letter of Credit. The Administrative Agent shall provide to each Lender
within ten (10) Business Days of its issuance a copy of each Letter of Credit
issued hereunder and shall give each Lender a written (which may be by
telecopier) report of all Letters of Credit outstanding hereunder on a monthly
basis. In the event there is a conflict between any provision in the Letter of
Credit Application and this Agreement, the terms and provisions of this
Agreement will prevail.
Section 2.6 Drawings Under Letters of Credit.
(a) Upon receipt by the Administrative Agent of any draft upon, or
other notice of drawing under, a Letter of Credit, the Administrative
Agent shall promptly give the Borrower written or telephone notice of the
amount of such draft, of the Letter of Credit against which it is drawn
and of the date upon which the Administrative Agent proposes to honor such
draft.
(b) Subject to the following sentence, the Borrower shall pay to the
Administrative Agent for the ratable account of the Lenders the amount of
each drawing under a Letter of Credit on the date of such drawing. Subject
to the requirement contained in Section 2.1, the Borrower may elect to
repay the amount of such drawing with the proceeds of a Revolving Loan by
delivering a Notice of Borrowing complying with Section 4.1 hereof.
26
(c) The amount of any drawing under a Letter of Credit that is not
paid on the date of drawing pursuant to subsection (b) of this Section 2.6
shall bear interest, payable on demand, from the date of such drawing
until paid, at a rate per annum equal to the Default Rate.
(d) The Borrower agrees that it shall be indebted to each Lender in
an amount equal to the amount of each drawing paid by the Administrative
Agent for the account of such Lender in accordance with the provisions of
this Section 2.6.
Section 2.7 General Provisions as to Letters of Credit.
(a) Limitation on Administrative Agent's Duty to Issue. The
Administrative Agent shall have no obligation to issue any Letter of
Credit if (i) the aggregate undrawn face amount of Letters of Credit
outstanding, after giving effect to the issuance of such Letter of Credit,
would exceed any limit imposed on the Administrative Agent or any Lender
by, or if the issuance of such Letter of Credit would otherwise cause a
violation of, applicable law or any regulatory directive, interpretation
or request, to which the Administrative Agent or such Lender is subject;
or (ii) such issuance would cause the Maximum Letter of Credit Amount to
be exceeded; or (iii) the issuance thereof would exceed the limits
provided in Section 2.1 above.
(b) Borrower's Obligations Absolute. The obligation of the Borrower
to reimburse the Administrative Agent for the account of the Lenders, for
each drawing under a Letter of Credit shall be irrevocable, shall not be
subject to any qualification or exception whatsoever and shall be binding
in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or right
which the Borrower may have at any time against a beneficiary of any
Letter of Credit or any transferee of any Letter of Credit (or any
person for whom any such transferee may be acting), the
Administrative Agent, the Lenders or any other Person, whether in
connection with this Agreement, or any Letter of Credit, the
27
transactions contemplated herein or any unrelated transactions;
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient (unless, in each case, manifestly so) in any respect
or any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of this Agreement or
the other Credit Documents;
(v) any failure of the Administrative Agent to provide notice
to the Borrower of any drawing under any Letter of Credit; or
(vi) the occurrence or continuance of any Default.
(c) Limitation of Liability With Respect to Letters of Credit. As
among the Borrower, any Guarantors, the Lenders, and the Administrative
Agent, the Borrower and the Guarantors assume all risks of the acts and
omissions of, or misuse of any Letter of Credit by the beneficiaries of
such Letter of Credit. Without limiting the foregoing, neither the
Administrative Agent nor the Lenders shall be responsible for:
(i) subject to clause (c)(iii), the form, validity,
sufficiency, accuracy, genuineness or legal effect of any draft,
demand, application or other documents submitted by any party in
connection with any Letter of Credit (but not including the Letter
of Credit itself), even if such document should in fact prove to be
in any and all respects invalid, insufficient, inaccurate,
fraudulent or forged;
(ii) the validity, genuineness or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part which may prove to be invalid
or ineffective for any reason;
(iii) failure of the beneficiary of a Letter of Credit to
comply fully with the conditions required in order to draw upon such
Letter of
28
Credit to the extent that the documents presented in connection with
a drawing manifestly comply with the terms of the Letter of Credit;
(iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher;
(v) errors in interpretations of technical terms;
(vi) any loss or delay in the transmission or otherwise of any
document required to make a drawing under any Letter of Credit or
with respect to the proceeds thereof;
(vii) the misapplication by the beneficiary of a Letter of
Credit or of the proceeds of any drawing under such Letter of
Credit; or
(viii) any consequences arising from causes beyond the control
of the Administrative Agent or the Lenders, including, without
limitation, any act or omission, rightfully or wrongfully of any
present or future governmental authority.
None of the above circumstances shall affect, impair or prevent the vesting of
any of the Administrative Agent's and the Lenders' rights or powers under this
Section.
Section 2.8 Participation.
(a) Simultaneously with the issuance by the Administrative Agent of
any Letter of Credit, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Administrative Agent
without recourse or warranty, an undivided interest and participation in
such Letter of Credit (including, without limitation, all obligations of
the Borrower with respect thereto) and any security therefor or guaranty
pertaining thereto, equal to such Lender's Pro Rata Share of such Letter
of Credit.
(b) Each Lender hereby agrees that it shall pay to the
Administrative Agent, prior to 11:00 a.m. (local time for the
Administrative Agent) on the date of each Letter of Credit drawing such
Lender's Pro Rata Share of such Letter of Credit drawing; provided, that
if the Borrower should pay in full or in part any Letter of Credit drawing
on the date thereof with the proceeds of a Revolving Loan, the obligation
of each Lender to pay
29
to the Administrative Agent pursuant to this Section with respect to such
drawing shall be reduced by an amount equal to such Lender's Pro Rata
Share of such payment by the Borrower that is received by the
Administrative Agent. Amounts paid in excess of the net amount so owed
shall promptly be refunded by the Administrative Agent to such Lender.
(c) The obligation of each Lender to pay to the Administrative Agent
its Pro Rata Share of each Letter of Credit drawing, or of the amount
thereof not repaid by the Borrower as described above, shall be
irrevocable, unconditional, shall not be subject to any qualification or
exception whatsoever and shall be binding in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement;
(ii) the existence of any claim, set-off, defense or other
right which the Borrower or any Lender may have at any time against
the other, the Administrative Agent, any Lender or any other Person,
whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transactions;
(iii) any draft or any other document presented under this
Agreement proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate
in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of this Agreement; or
(v) the occurrence or continuance of any Default.
(d) If any Lender shall fail to pay the amount of its participation
in a Letter of Credit drawing on the date such amount is due in accordance
with subparagraph (b) above, the Administrative Agent shall be deemed to
have advanced funds on behalf of such Lender. Each such advance shall be
secured by such Lender's participation interest, and the Administrative
Agent shall be subrogated to such Lender's rights hereunder in respect
thereof. Such advance may be repaid by application by the Administrative
Agent of
30
any payment which such Lender is otherwise entitled to receive under this
Agreement. Any amount not paid by such Lender to the Administrative Agent
hereunder shall bear interest for each day from the day such payment was
due until such payment shall be paid in full at a rate per annum equal to
the highest rate then payable by the Borrower under this Agreement.
ARTICLE III
This Article is not applicable.
ARTICLE IV
GENERAL LOAN TERMS
Section 4.1 Funding Notices.
(a) Whenever Borrower desires to make a Borrowing with respect to
the Syndicate Revolving Loan Commitments (other than one resulting from a
conversion or continuation pursuant to Section 4.1(c) or a Multicurrency
Loan, it shall give the Administrative Agent at its Payment Office prior
written notice (or telephonic notice promptly confirmed in writing) of
such Borrowing (a "Notice of Borrowing"), such Notice of Borrowing to be
given prior to (i) 11:00 a.m. (local time for the Administrative Agent)
the same Business Day of the requested date of such Borrowing in the case
of Revolving Loans comprised of Swing Line Advances, (ii) 11:00 a.m.
(local time for the Administrative Agent) one (1) Business Day prior to
the requested date of such Borrowing in the case of Base Rate Advances,
and (iii) 11:00 a.m. (local time for the Administrative Agent) three (3)
Business Days prior to the requested date of such Borrowing in the case of
LIBOR Advances. Notices received after the above times shall be deemed
received on the next Business Day. Each Notice of Borrowing shall be
irrevocable and shall specify the aggregate principal amount of the
Borrowing, the date of Borrowing (which shall be a Business Day), whether
the Borrowing is to consist of Base Rate Advances, LIBOR Advances, or
Swing Line Advances and (in the case of LIBOR Advances) the Interest
Period to be applicable thereto.
(b) Whenever Borrower desires to make a Borrowing consisting of one
or more Multicurrency Loans, it shall give the Administrative Agent at its
Payment Office prior written notice (or telephonic notice promptly
31
confirmed in writing) of such Borrowing (a "Notice of Multicurrency
Loan"), such Notice of Multicurrency Loan to be given prior to 11:00 a.m.
(local time for the Administrative Agent) four (4) Foreign Currency
Business Days prior to the requested date of such Borrowing. Notices
received after such time shall be deemed received on the next Foreign
Currency Business Day. Each Notice of Multicurrency Loan shall be
irrevocable and shall specify that such Borrowing will be a Multicurrency
Loan, the date of Borrowing (which shall be a Business Day), the foreign
currency in which the Borrowing is to be made (which must be an Available
Foreign Currency), the U.S. Dollar Equivalent amount of the Borrowing to
be made and the initial Interest Period to be applicable thereto.
(c) Whenever Borrower desires to convert all or a portion of an
outstanding Borrowing under the Syndicate Revolving Loans (other than a
Multicurrency Loan), which Borrowing consists of Base Rate Advances ,
LIBOR Advances, or a Swing Line Loan into one or more Borrowings
consisting of Advances of another Type, or to continue outstanding a
Borrowing consisting of LIBOR Advances for a new Interest Period, it shall
give the Administrative Agent at least three (3) Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of
each such Borrowing to be converted into or continued as LIBOR Advances.
Whenever Borrower desires to continue a Multicurrency Loan, it shall give
the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) thereof at least four (4) Foreign Currency Business
Days prior to the end of the applicable Interest Period. Such notice (a
"Notice of Conversion/ Continuation") shall be given (a) with respect to
LIBOR Advances, prior to 11:00 a.m. (local time for the Administrative
Agent) and (b) with respect to Multicurrency Loans, prior to 11:00 a.m.
(local time for the Administrative Agent), on the date specified at the
Payment Office of the Administrative Agent. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify the
aggregate principal amount of the Advances to be converted or continued,
or the amount of the Multicurrency Loan to be continued, as the case may
be, the date of such conversion or continuation, in respect of LIBOR
Advances, whether the Advances are being converted into or continued as
LIBOR Advances and (in the case of LIBOR Advances and Multicurrency Loans)
the Interest Period applicable thereto. If, upon the expiration of any
Interest Period in respect of any Borrowing, Borrower shall have failed to
deliver the Notice of Conversion/Continu-
32
ation, Borrower shall be deemed to have elected to convert or continue
such Borrowing to a Borrowing consisting of Base Rate Advances. So long as
any Default or Event of Default shall have occurred and be continuing, no
Borrowing may be converted into or continued (upon expiration of the
current Interest Period) as LIBOR Advances. No conversion of any Borrowing
of LIBOR Advances shall be permitted except on the last day of the
Interest Period in respect thereof.
(d) Any Multicurrency Loan which remains unpaid at the expiration of
the Interest Period applicable thereto shall be automatically continued
for an Interest Period of the same length.
(e) Without in any way limiting Borrower's obligation to confirm in
writing any telephonic notice, the Administrative Agent and the Lenders
may act without liability upon the basis of telephonic notice reasonably
believed by the Administrative Agent or the Lender in good faith to be
from Borrower prior to receipt of written confirmation.
(f) The Administrative Agent shall promptly give each Lender notice
by telephone (confirmed in writing) or by telex, telecopy or facsimile
transmission of the matters covered by the notices given to the
Administrative Agent pursuant to this Section 4.1 with respect to the
Revolving Credit Commitments.
(h) To the extent any Advance requires the payment of any
documentary, intangible or other taxes thereon under applicable law, said
Advance is not required to be made unless and until the Borrower has paid
to the Administrative Agent the documentary, intangible or other tax
required to be paid on said Advance, either directly or by a debit to the
account of the Borrower at the Administrative Agent. In this regard, the
Borrower is aware and understands that the Loans are to be secured by a
mortgage on the Headquarters Facility and that documentary tax and
intangible tax will be required to be paid under Florida law on advances
made under the Revolving Loans.
Section 4.2 Disbursement of Funds.
(a) No later than 1:00 p.m. (local time for the Administrative
Agent) for LIBOR Advances and as specified by the Administrative Agent
based upon standard settlement times applicable to the Available Foreign
Currency for Multicurrency Loans and 1:00 p.m.
33
(local time for the Administrative Agent) for Base Rate Advances on the
date of each Borrowing pursuant to the Revolving Loan Commitments (other
than one resulting from a conversion or continuation pursuant to Section
4.1(c)), each Lender will make available its Pro Rata Share of the amount
of such Borrowing in immediately available funds at the Payment Office of
the Administrative Agent. The Administrative Agent will make available to
Borrower the aggregate of the amounts (if any) so made available by the
Lenders to the Administrative Agent in a timely manner by crediting such
amounts to Borrower's demand deposit account maintained with the
Administrative Agent or at Borrower's option, to effect a wire transfer of
such amounts to Borrower's account specified by the Borrower, by the close
of business on such Business Day. In the event that the Lenders do not
make such amounts available to the Administrative Agent by the time
prescribed above, but such amount is received later that day, such amount
may be credited to Borrower in the manner described in the preceding
sentence on the next Business Day (with interest on such amount to begin
accruing hereunder on such next Business Day).
(b) In the event that at the time of receipt by any Lender of notice
from the Administrative Agent of the receipt of a Notice of Multicurrency
Loan such Lender shall determine that the Available Foreign Currency in
which such Multicurrency Loan is to be made is not available to that
Lender in a sufficient amount and for a sufficient term to enable it to
make its Pro Rata Share of the Multicurrency Loan requested, such Lender
shall notify the Administrative Agent no later than 3:00 p.m. (local time
for the Administrative Agent) on the same day it receives notice from the
Administrative Agent of such requested Multicurrency Loan and the
Administrative Agent shall promptly so notify the Borrower. If, after
being provided with such notice by the Administrative Agent, the Borrower
decides not to obtain such Multicurrency Loan, the Borrower must notify
the Administrative Agent by no later than 4:00 p.m. (local time for the
Administrative Agent) on such day. If the Administrative Agent does not
receive such notice from the Borrower by such time, the Borrower shall
automatically be deemed to have verified its request for such
Multicurrency Loan. If the Administrative Agent does receive such notice
of revocation from the Borrower by 4:00 p.m. (local time for the
Administrative Agent), the Administrative Agent shall promptly notify the
Lenders of such revocation. Such revocation shall not require any payment
under the funding indemnity set forth in Section 4.12 hereof. If
34
the Lenders do not receive from the Administrative Agent notice of
revocation of the request for such Multicurrency Loan, each Lender that
did not notify the Administrative Agent by 3:00 p.m. (local time for the
Administrative Agent) that the requested Available Foreign Currency is
unavailable to it to fund the requested Multicurrency Loan shall make its
Pro Rata Share of the requested Multicurrency Loan in the requested
Available Foreign Currency in accordance with Section 4.2(a) hereof. Each
Lender that did so notify the Administrative Agent by 3:00 p.m. (local
time for the Administrative Agent) that it would not be able to make its
Pro Rata Share of such Multicurrency Loan shall make its Pro Rata Share of
such Multicurrency Loan as a LIBOR Advance in the U.S. Dollar Equivalent
of its Pro Rata Share, and with the same Interest Period as requested for
such Multicurrency Loan. Such LIBOR Advance in U.S. Dollars shall be made
by such Lender on the same day as the other Lenders make their Pro Rata
Share of such Multicurrency Loan in the Available Foreign Currency as part
of the relevant Multicurrency Loan, but shall bear interest with reference
to LIBOR applicable to U.S. Dollars rather than the relevant Foreign
Currency Rate applicable to the relevant Available Foreign Currency for
the applicable Interest Period and shall be made available in accordance
with the procedures for disbursing LIBOR Advances in U.S. Dollars under
Section 4.2(a) hereof.
(c) Unless the Administrative Agent shall have been notified by any
Lender prior to the date of a Borrowing that such Lender does not intend
to make available to the Administrative Agent such Lender's portion of the
Borrowing to be made on such date, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative
Agent on such date and the Administrative Agent may make available to
Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent by such Lender on the date
of such Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together with
interest at the Federal Funds Rate. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify Borrower, and
Borrower shall immediately pay such corresponding amount to the
Administrative Agent together with interest at the rate specified for the
Borrowing. Nothing in this subsection shall be deemed to relieve any
Lender from its obligation to fund its Commitments hereunder or to
35
prejudice any rights which Borrower may have against any Lender as a
result of any default by such Lender hereunder.
(d) Except as set forth in Section 2.1(i) above in regard to Swing
Line Advances, all Borrowings under the Syndicate Revolving Loan shall be
loaned by the Lenders on the basis of their Pro Rata Share of the
Revolving Loan Commitments. No Lender shall be responsible for any default
by any other Lender in its obligations hereunder, and each Lender shall be
obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fund its Commitments
hereunder.
(e) In the case of Swing Line Advances, the Administrative Agent
will make available to the Borrower the amount of the Advance in the same
manner under this Section 4.2 as applied to Base Rate Advances.
Section 4.3 Interest.
(a) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Revolving Loans from the respective dates such
principal amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at rates per annum (on the basis of a
360-day year, except with respect to United Kingdom Pounds Sterling, in
which case interest shall be calculated on the basis of a 365-day year)
equal to the applicable rates indicated below:
(i) For Revolving Loans:
(A) For Base Rate Advances--The Base Rate in effect from
time to time;
(B) For Revolving Loan LIBOR Advances--The applicable
LIBOR plus the Applicable Margin;
(C) For Revolving Loans consisting of Multicurrency
Loans--The applicable Foreign Currency Rate plus the
Applicable Margin; and
(D) For Swing Line Advances--The Swing Line Rate.
36
(b) Overdue principal (whether by non-payment at scheduled due date,
acceleration, notice of prepayment or otherwise) and, to the extent not
prohibited by applicable law, overdue interest, in respect of the
Revolving Loans and all other overdue amounts owing hereunder, shall bear
interest from each date that such amounts are overdue at the Default Rate.
(c) Interest on each Loan shall accrue from and including the date
of such Loan to but excluding the date of any repayment thereof; provided
that, if a Loan is repaid on the same day made, one day's interest shall
be paid on such Loan. Interest shall be payable as follows:
(i) For Revolving Loans:
(A) For Base Rate Advances -- quarterly in arrears on
the last calendar day of each calendar quarter of Borrower's
fiscal year;
(B) For LIBOR Advances and Multicurrency Loans -- on the
last day of each Interest Period applicable thereto, and, in
the case of LIBOR Advances having an Interest Period in excess
of three months, on each day which occurs every 3 months after
the initial date of such Interest Period; and
(C) For Swing Line Advances -- quarterly in arrears on
the last calendar day of each calendar quarter of Borrower's
fiscal year.
Interest on all Revolving Loans shall be payable on any conversion
of any Advances comprising such Loans into Advances of another Type,
prepayment (on the amount prepaid), at maturity (whether by
acceleration, notice of prepayment or otherwise) and, after
maturity, on demand. Interest in regard to any draw under any Letter
of Credit issued hereunder shall accrue on and from the date of such
draw, which draw shall constitute an Advance hereunder.
Section 4.4 Interest Periods. In connection with the making or
continuation of, or conversion into, each Syndicate Revolving Loan comprised of
LIBOR Advances or each Multicurrency Loan , Borrower shall select an interest
period (each an
37
"Interest Period") to be applicable to such LIBOR Advances or Multicurrency
Loan, which Interest Period shall be either a 1, 2, 3 or 6 month period with
respect to LIBOR Advances for each Interest Period during which the LIBOR Option
is selected and either a 1, 2 or 3 month period with respect to Multicurrency
Loans; provided that:
(a) The initial Interest Period for any Borrowing of LIBOR Advances
or any Multicurrency Loans shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing consisting of
Advances of another Type) or Loan and each Interest Period occurring
thereafter in respect of such Borrowing or Loan shall commence on the day
on which the next preceding Interest Period expires;
(b) If any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period in respect
of LIBOR Advances would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business Day occurs
in such month, such Interest Period shall expire on the next preceding
Business Day;
(c) Any Interest Period in respect of LIBOR Advances or any
Multicurrency Loan which begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period
shall, subject to part (d) below, expire on the last Business Day of such
calendar month;
(d) No Interest Period shall extend beyond any date upon which any
principal payment is due with respect to the Revolving Loans .
Section 4.5 Fees.
(a) Administrative/Underwriting Fee. Borrower shall pay, or have
paid, (i) the administrative agency fee to SunTrust , and (ii) the
underwriting fee to SunTrust Equitable Securities Corporation and The Bank
of Nova Scotia, on the date that the conditions set forth in Section 5.1
are satisfied or waived in accordance with Section 11.2, all as required
by the Fee Letters.
(b) Commitment Fee. Borrower shall pay to the Administrative Agent,
for the account of and distribution to each Lender, a Commitment Fee for
the period commencing on the Closing Date to and including
38
the Maturity Date, measured quarterly, on the average daily unused
portions of the Revolving Loan Commitment of each Lender, such fee being
payable quarterly in arrears on the last calendar day of each fiscal
quarter of Borrower and on the Maturity Date.
(c) Standby Letter of Credit Fees. With respect to each Standby
Letter of Credit, the Borrower shall pay the Administrative Agent, (i) for
the account of each Lender, a non-refundable fee equal to the
LIBOR/Foreign Currency Rate Applicable Margin then in effect per annum on
such Lender's Pro Rata Share of the undrawn face amount of such Letter of
Credit and (ii) for the Administrative Agent's account, a facing fee of
0.125% (i.e. 12.5 basis points) on the total amount of outstanding Letters
of Credit. All fees due pursuant to this Section 4.5(d) shall be based on
a year of 360 days computed for the actual number of days elapsed, and
shall be payable in advance on the date of such Letter of Credit for the
period from the date of issuance to the first Business Day of such
calendar quarter and thereafter on the first Business Day of each calendar
quarter.
(d) Letter of Credit Administrative Fees. In addition to the
foregoing fees, the Borrower shall pay to the Administrative Agent, for
the Administrative Agent's account, such other administrative fees as the
Administrative Agent customarily charges in respect of Letter of Credit
transactions together with all telecommunication fees and other expenses
incurred by the Administrative Agent in connection with the issuance or
honoring of any Letter of Credit issued for the Borrower's account.
(e) Annual Administrative Fee. Borrower shall pay to the
Administrative Agent, for the Administrative Agent's own account, an
annual administrative agency fee as required by the Fee Letters.
Section 4.6 Voluntary Prepayments of Borrowings.
(a) Borrower may, at its option, prepay Borrowings consisting of
Base Rate Advances during any Interest Period in which the Base Rate
Option has been selected at any time in whole, or from time to time in
part, in amounts aggregating $1,000,000 or any greater integral multiple
of $100,000, by paying the principal amount to be prepaid together with
interest accrued and unpaid thereon to the date of prepayment. Those
Borrowings consisting of LIBOR Advances and
39
Multicurrency Loans during any Interest Period in which the LIBOR Option
has been selected may be prepaid, at Borrower's option, in whole, or from
time to time in part, in amounts aggregating $1,000,000 or any greater
integral multiple of $100,000, by paying the principal amount to be
prepaid, together with interest accrued and unpaid thereon to the date of
prepayment, and all compensation payments pursuant to Section 4.12 if such
prepayment is made on a date other than the last day of an Interest Period
applicable thereto. Each such optional prepayment shall be applied in
accordance with Section 4.6(c) below.
(b) Borrower shall give written notice (or telephonic notice
confirmed in writing) to the Administrative Agent of any intended
prepayment of the Revolving Loans (i) not less than one (1) Business Day
prior to any prepayment of Base Rate Advances, (ii) not less than three
(3) Business Days prior to any prepayment of LIBOR Advances, and (iii) not
less than three (3) Foreign Currency Business Days prior to any prepayment
of Multicurrency Loans. Such notice, once given, shall be irrevocable.
Upon receipt of such notice of prepayment pursuant to the first sentence
of this paragraph (b), the Administrative Agent shall promptly notify each
Lender of the contents of such notice, including the actual date on which
such prepayment shall occur, and of such Lender's share of such
prepayment.
(c) Borrower, when providing notice of prepayment pursuant to
Section 4.6(b) may designate the Types of Advances and the specific
Borrowing or Borrowings which are to be prepaid, provided that (i) if any
prepayment of LIBOR Advances made pursuant to a single Borrowing of the
Revolving Loans , shall reduce the outstanding Advances made pursuant to
such Borrowing or the outstanding amount of such Loan to an amount less
than $2,000,000, such Borrowing shall immediately be converted into Base
Rate Advances or the balance of such Loan shall immediately begin accruing
interest at the rate per annum determined with reference to the Base Rate,
as the case may be; and (ii) each prepayment made pursuant to a single
Borrowing shall be applied pro rata among the Loans comprising such
Borrowing. All voluntary prepayments shall be applied to the payment of
any unpaid interest before application to principal.
40
Section 4.7 Payments, etc.
(a) Except as otherwise specifically provided herein, all payments
under this Agreement and the other Credit Documents shall be made without
defense, set-off or counterclaim to the Administrative Agent, not later
than 11:00 a.m. (local time for the Administrative Agent) on the date when
due and shall be made in Dollars (except with respect to Multicurrency
Loans) in immediately available funds at the respective Payment Office.
Payments with respect to Multicurrency Loans shall be made in the currency
in which such Loans were made, in immediately available funds at the
respective Payment Office.
(b) (i) All such payments shall be made free and clear of and
without deduction or withholding for any Taxes in respect of this
Agreement, the Notes or other Credit Documents, or any payments of
principal, interest, fees or other amounts payable hereunder or thereunder
(but excluding any Taxes imposed on the overall net income of the Lenders
pursuant to the laws of the jurisdiction in which the principal executive
office or appropriate Lending Office of such Lender is located). If any
Taxes are so levied or imposed, Borrower agrees (A) to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that
every net payment of all amounts due hereunder and under the Notes and
other Credit Documents, after withholding or deduction for or on account
of any such Taxes (including additional sums payable under this Section
4.7), will not be less than the full amount provided for herein had no
such deduction or withholding been required, (B) to make such withholding
or deduction and (C) to pay the full amount deducted to the relevant
authority in accordance with applicable law. Borrower will furnish to the
Administrative Agent and each Lender, within 30 days after the date the
payment of any Taxes is due pursuant to applicable law, certified copies
of tax receipts evidencing such payment by Borrower. Borrower will
indemnify and hold harmless the Administrative Agent and each Lender and
reimburse the Administrative Agent and each Lender upon written request
for the amount of any Taxes so levied or imposed and paid by the
Administrative Agent or Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether
or not such Taxes were correctly or illegally asserted. A certificate as
to the amount of such payment by such Lender or the Administrative Agent,
absent manifest error, shall be final, conclusive and binding for all
purposes.
41
(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to Borrower and the
Administrative Agent, prior to the time it becomes a Lender hereunder, two
copies of either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 or any successor forms thereto (wherein such
Lender claims entitlement to complete exemption from or reduced rate of
U.S. Federal withholding tax on interest paid by Borrower hereunder) and
to provide to Borrower and the Administrative Agent a new Form 4224 or
Form 1001 or any successor forms thereto if any previously delivered form
is found to be incomplete or incorrect in any material respect or upon the
obsolescence of any previously delivered form; provided, however, that no
Lender shall be required to furnish a form under this paragraph (ii) if it
is not entitled to claim an exemption from or a reduced rate of
withholding under applicable law. A Lender that is not entitled to claim
an exemption from or a reduced rate of withholding under applicable law,
promptly upon written request of Borrower, shall so inform Borrower in
writing.
(c) Subject to Section 4.4(b), whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is
not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the applicable rate during such
extension.
(d) All computations of interest and fees shall be made on the basis
of a year of 360 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of days
elapsed), except in the case of the computation of interest on
Multicurrency Loans made in United Kingdom Pounds Sterling, in which case
interest shall be computed on the basis of a year containing 365 days for
the actual number of days (including the first day but excluding the last
day) occurring in the Interest Period for which such interest is payable.
Interest on Base Rate Advances for any Interest Period during which the
Base Rate Option has been selected shall be calculated based on the Base
Rate from and including the date of such Advance or Loan to but excluding
the date of the repayment or conversion thereof. Interest on LIBOR
Advances and Multicurrency Loans for any Interest
42
Period during which the LIBOR Option has been selected shall be calculated
as to each Interest Period from and including the first day thereof to but
excluding the last day thereof. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be made in good faith
and, except for manifest error, shall be final, conclusive and binding for
all purposes.
(e) All Swing Line Advances shall be paid without notice to the
Administrative Agent one (1) Business Day after the date made.
(f) Payment by Borrower to the Administrative Agent in accordance
with the terms of this Agreement shall, as to Borrower, constitute payment
to the Lenders under this Agreement.
Section 4.8 Interest Rate Not Ascertainable, etc. In the event that the
Administrative Agent shall have determined (which determination shall be made in
good faith and, absent manifest error, shall be final, conclusive and binding
upon all parties) that on any date for determining LIBOR Rate or Foreign
Currency Rate for any Interest Period, by reason of any changes arising after
the date of this Agreement, adequate and fair means do not exist for
ascertaining LIBOR Rate or Foreign Currency Rate then, and in any such event,
the Administrative Agent shall forthwith give notice (by telephone confirmed in
writing) to Borrower and to the Lenders of such determination and a summary of
the basis for such determination. Until the Administrative Agent notifies
Borrower that the circumstances giving rise to the suspension described herein
no longer exist, the obligations of the Lenders to make or permit portions of
the Revolving Loans to remain outstanding past the last day of the then current
Interest Periods as LIBOR Advances or Multicurrency Loans, shall be suspended,
and such affected Advances and/or Loans shall bear interest at the rate
determined by reference to the Base Rate.
Section 4.9 Illegality.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error,
shall be final, conclusive and binding upon all parties) at any time that
the making or continuance of any LIBOR Advance or Multicurrency Loan has
become unlawful or impractical by compliance by such Lender in good faith
with any applicable law, governmental rule, regulation, guideline or order
(whether or not having the force of law and whether or not failure to
comply therewith would be unlawful), then, in any such event, the Lender
shall give prompt notice (by telephone confirmed in
43
writing) to Borrower and to the Administrative Agent of such determination
and a summary of the basis for such determination (which notice the
Administrative Agent shall promptly transmit to the other Lenders).
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, (i) Borrower's right to request LIBOR Advances or
Multicurrency Loans and such Lender's obligation to make LIBOR Advances or
Multicurrency Loans shall be immediately suspended, and such Lender shall
make an Advance as part of the requested Borrowing of LIBOR Advances or
the requested Multicurrency Loan as a Base Rate Advance, which Base Rate
Advance shall, for all other purposes, be considered part of such
Borrowing, and (ii) if the affected LIBOR Advance or Advances or
Multicurrency Loan are then outstanding, Borrower shall immediately, or if
permitted by applicable law, no later than the date permitted thereby,
upon at least one (1) Business Day's written notice to the Administrative
Agent and the affected Lender, convert each such Advance into an Advance
or Advances of a different Type, with an Interest Period ending on the
date on which the Interest Period applicable to the affected LIBOR
Advances or Multicurrency Loan expires, provided that if more than one
Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 4.9(b).
(c) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error,
shall be final, conclusive and binding upon all parties) at any time that
the making of or continuance of or conversion to any Base Rate Advance has
become unlawful or impractical by compliance by such Lender in good faith
with any applicable law, governmental rule, regulation, guideline or order
(whether or not having the force of law and whether or not failure to
comply therewith would be unlawful), then, in any such event, the Lender
shall give prompt notice (by telephone confirmed in writing) to Borrower
and to the Administrative Agent of such determination and a summary of the
basis for such determination (which notice the Administrative Agent shall
promptly transmit to the other Lenders). The Borrower shall pay to the
Administrative Agent for the account of such Lender within thirty (30)
Days after the date of such notice and demand, a sufficient amount to
repay all of such Lender's Base Rate Advances or Loans or Advances subject
to conversion to Base Rate Advances.
44
Section 4.10 Increased Costs.
(a) If, by reason of (i) after the date hereof, the introduction of
or any change (including, without limitation, any change by way of
imposition or increase of reserve requirements) in, or in the
interpretation of, any law or regulation, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
or quasi-governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law):
(i) any Lender (or its applicable Lending Office) shall be
subject to any tax, duty or other charge with respect to its LIBOR
Advances, Base Rate Advances, Multicurrency Loans or Swing Line
Advances or its obligation to make LIBOR Advances, Base Rate
Advances, Multicurrency Loans or Swing Line Advances or the basis of
taxation of payments to any Lender of the principal of or interest
on its LIBOR Advances, Base Rate Advances, Multicurrency Loans or
Swing Line Advances or its obligation to make LIBOR Advances, Base
Rate Advances Multicurrency Loans or Swing Line Advances shall have
changed (except for changes in the tax on the overall net income of
such Lender or its applicable Lending Office imposed by the
jurisdiction in which such Lender's principal executive office or
applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any imposed
by the Board of Governors of the Federal Reserve System), special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender's applicable
Lending Office shall be imposed or deemed applicable or any other
condition affecting its LIBOR Advances, Base Rate Advances,
Multicurrency Loans or Swing Line Advances or its obligation to make
LIBOR Advances, Base Rate Advances, Multicurrency Loan or Swing Line
Advances shall be imposed on any Lender or its applicable Lending
Office or the London interbank market or the United States secondary
certificate of deposit market;
45
and as a result thereof there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining LIBOR
Advances, Base Rate Advances, Multicurrency Loans or Swing Line
Advances(except to the extent already included in the determination of the
applicable Base Rate for Base Rate Advances, LIBOR rate for LIBOR Advances
or Swing Line Advances or the applicable Foreign Currency Rate for
Multicurrency Loans), or there shall be a reduction in the amount received
or receivable by such Lender or its applicable Lending Office, then
Borrower shall from time to time (subject, in the case of certain Taxes,
to the applicable provisions of Section 4.7(b)), upon written notice from
and demand by such Lender on Borrower (with a copy of such notice and
demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender within five (5) Business Days after the date of
such notice and demand, additional amounts sufficient to indemnify such
Lender against such increased cost. A certificate as to the amount of such
increased cost, submitted to Borrower and the Administrative Agent by such
Lender in good faith and accompanied by a statement prepared by such
Lender describing in reasonable detail the basis for and calculation of
such increased cost, shall, except for manifest error, be final,
conclusive and binding for all purposes.
(b) If any Lender shall advise the Administrative Agent that at any
time, because of the circumstances described in clauses (i) or (ii) in
subsection 4.10(a) above or any other circumstances beyond such Lender's
control arising after the date of this Agreement affecting such Lender or
the London interbank market or such Lender's position in such market,
LIBOR or the Foreign Currency Rate as determined by the Administrative
Agent will not adequately and fairly reflect the cost to such Lender of
funding its LIBOR Advances or Multicurrency Loans or Swing Line Advances
then, and in any such event:
(i) the Administrative Agent shall forthwith give notice (by
telephone confirmed in writing) to Borrower and to the other Lenders
of such advice;
(ii) Borrower's right to request and such Lender's obligation
to make or permit portions of the Loans to remain outstanding past
the last day of the then current Interest Periods as LIBOR Advances,
46
Multicurrency Loans or Swing Line Advances, shall be immediately
suspended; and
(iii) such Lender shall make a Loan as part of the requested
Borrowing of LIBOR Advances or the requested Multicurrency Loan as a
Base Rate Advance, which such Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing .
Section 4.11 Lending Offices.
(a) Each Lender agrees that, if requested by Borrower, it will use
reasonable efforts (subject to overall policy considerations of such
Lender) to designate an alternate Lending Office with respect to any of
its LIBOR Advances, Multicurrency Loans or Swing Line Advances or
circumstances described in Sections 4.7(b), 4.8, 4.9 or 4.10 to reduce the
liability of Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by
such Lender, which determination if made in good faith, shall be
conclusive and binding on all parties hereto. Nothing in this Section 4.11
shall affect or postpone any of the obligations of Borrower or any right
of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) issues a public announcement with
respect to the closing of its lending offices in the United States such
that any withholdings or deductions and additional payments with respect
to Taxes may be required to be made by Borrower thereafter pursuant to
Section 4.7(b), such Lender shall use reasonable efforts to furnish
Borrower notice thereof as soon as practicable thereafter; provided,
however, that no delay or failure to furnish such notice shall in any
event release or discharge Borrower from its obligations to such Lender
pursuant to Section 4.7(b) or otherwise result in any liability of such
Lender.
Section 4.12 Funding Losses. Borrower shall compensate each Lender, upon
its written request to Borrower (which request shall set forth the basis for
requesting such amounts in reasonable detail and which request shall be made in
good faith and, absent manifest error, shall be final, conclusive and binding
upon all of the parties hereto), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or
47
carry its LIBOR Advances or Multicurrency Loans , in either case to the extent
not recovered by such Lender in connection with the reemployment of such funds
and including loss of anticipated profits), which the Lender may sustain: (i) if
for any reason (other than a default by such Lender) a borrowing of, or
conversion to or continuation of, LIBOR Advances or Multicurrency Loans does not
occur on the date specified therefor in a Notice of Borrowing or Notice of
Conversion/Continuation (whether or not withdrawn), (ii) if any repayment
(including mandatory prepayments and any conversions pursuant to Section 4.9(b)
of any LIBOR Advances or Multicurrency Loans occurs on a date which is not the
last day of an Interest Period applicable thereto, or (iii) if, for any reason,
Borrower defaults in its obligation to repay its LIBOR Advances or Multicurrency
Loans when required by the terms of this Agreement.
Section 4.13 Assumptions Concerning Funding of LIBOR Advances. Calculation
of all amounts payable to a Lender under this Article shall be made as though
that Lender had actually funded its relevant LIBOR Advances or Multicurrency
Loans through the purchase of deposits in the relevant market bearing interest
at the rate applicable to such LIBOR Advances or Multicurrency Loans in an
amount equal to the amount of the LIBOR Advances or Multicurrency Loans and
having a maturity comparable to the relevant Interest Period and through the
transfer of such LIBOR Advances or Multicurrency Loans from an offshore office
of that Lender to a domestic office of that Lender in the United States of
America; provided however, that each Lender may fund each of its LIBOR Advances
or Multicurrency Loans bearing interest at a rate determined with reference to
LIBOR in any manner it sees fit and the foregoing assumption shall be used only
for calculation of amounts payable under this Article .
Section 4.14 Apportionment of Payments. Except as otherwise expressly set
forth herein, aggregate principal and interest payments in respect of Loans and
payments in respect of Commitment Fees, Letter of Credit Fees and any other fees
hereunder shall be apportioned among all outstanding Commitments and Loans to
which such payments relate, proportionately to the Lenders' respective pro rata
portions of such Commitments and outstanding Loans. The Administrative Agent
shall promptly distribute to each Lender at its payment office set forth beside
its name on the appropriate signature page hereof or such other address as any
Lender may request its share of all such payments received by the Administrative
Agent.
Section 4.15 Sharing of Payments, Etc. If any Lender shall obtain any
payment or reduction (including, without limitation, any amounts received as
adequate protection of a deposit treated as cash collateral under the Bankruptcy
Code) of the Obligations (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its
48
pro rata portion of payments or reductions on account of such obligations
obtained by all the Lenders, such Lender shall forthwith (i) notify each of the
other Lenders and Administrative Agent of such receipt, and (ii) purchase from
the other Lenders such participations in the affected obligations as shall be
necessary to cause such purchasing Lender to share the excess payment or
reduction, net of costs incurred in connection therewith, ratably with each of
them, provided that if all or any portion of such excess payment or reduction is
thereafter recovered from such purchasing Lender or additional costs are
incurred, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery or such additional costs, but without interest unless
the Lender obligated to return such funds is required to pay interest on such
funds. Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section 4.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of Borrower in the amount of such participation.
Section 4.16 Capital Adequacy. Without limiting any other provision of
this Agreement, in the event that any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any request or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a central
bank or governmental authority or body having jurisdiction, does or shall have
the effect of reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder to a level below that which such Lender
could have achieved but for such law, treaty, rule, regulation, guideline or
order, or such change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then within ten (10) Business Days after written notice and demand
by such Lender (with copies thereof to the Administrative Agent), Borrower shall
from time to time pay to such Lender additional amounts sufficient to compensate
such Lender for such reduction (but, in the case of outstanding Base Rate
Advances or Swing Line Loans accruing interest at the Base Rate, without
duplication of any amounts already recovered by such Lender by reason of an
adjustment in the applicable Base Rate). Each certificate as to the amount
payable under this Section 4.16 (which certificate shall set forth the basis for
requesting such amounts in reasonable detail), submitted to Borrower by any
Lender in good
49
faith, shall, absent manifest error, be final, conclusive and binding for all
purposes.
Section 4.17 Benefits to Guarantors. In consideration for the execution
and delivery by the Guarantors of the Guaranty Agreement and the Contribution
Agreement, Borrower agrees to make the benefit of extensions of credit hereunder
available to the Guarantors.
Section 4.18 Limitations on Certain Payment Obligations.
(a) Each Lender or Administrative Agent shall make written demand on
Borrower for indemnification or compensation pursuant to Section 4.7 no
later than 90 days after the earlier of (i) the date on which such Lender
or Administrative Agent makes payment of such Taxes, and (ii) the date on
which the relevant taxing authority or other governmental authority makes
written demand upon such Lender or Administrative Agent for payment of
such Taxes.
(b) Each Lender or Administrative Agent shall make written demand on
Borrower for indemnification or compensation pursuant to Sections 4.10 and
4.12 no later than 90 days after the event giving rise to the claim for
indemnification or compensation occurs.
(c) Each Lender or Administrative Agent shall make written demand on
Borrower for indemnification or compensation pursuant to Sections 4.9 and
4.16 no later than 90 days after such Lender or Administrative Agent
receives actual notice or obtains actual knowledge of the promulgation of
a law, rule, order or interpretation or occurrence of another event giving
rise to a claim pursuant to such sections.
(d) In the event that the Lenders or Administrative Agent fail to
give Borrower notice within the time limitations prescribed in (a) or (b)
above, Borrower shall not have any obligation to pay such claim for
compensation or indemnification. In the event that the Lender or
Administrative Agent fail to give Borrower notice within the time
limitation prescribed in (c) above, Borrower shall not have any obligation
to pay any amount with respect to claims accruing prior to the ninetieth
(90th) day preceding such written demand.
Section 4.19 Affected Lenders. Unless the Required Lenders seek
indemnification or reimbursement pursuant to Sections 4.7, 4.10, 4.12 or 4.16 or
invoke the provisions of Section 4.9 hereof, if the Borrower is obligated to pay
to any
50
Lender any amount under Sections 4.7, 4.10, 4.12 or 4.16 or if the Lender
requests that its LIBOR Advances or Multicurrency Loans be converted into Base
Rate Advances, the Borrower may, so long as no Default or Event of Default then
exists, replace such Lender with another Lender acceptable to the Administrative
Agent, and such Lender hereby agrees to be so replaced subject to the following:
(a) The obligations of the Borrower hereunder to the Lender to be
replaced (including such increased or additional costs incurred from the
date of notice to the Borrower of such increase or additional costs
through the date such Lender is replaced hereunder) shall be paid in full
to such Lender concurrently with such replacement;
(b) The replacement Lender shall be a bank or other financial
institution that is not subject to the increased costs arising under such
Sections which may have effectuated the Borrower's election to replace any
Lender hereunder, and each such replacement Lender shall execute and
deliver to the Administrative Agent such documentation satisfactory to the
Administrative Agent pursuant to which such replacement Lender is to
become a party hereto with a Commitment equal to that of the Lender being
replaced and shall make a Loan or Loans in the aggregate principal amount
equal to the aggregate outstanding principal amount of the Loan or Loans
of the Lender being replaced;
(c) Upon such execution of such documents referred to in clause (b)
and repayment of the amounts referred to in clause (a), the replacement
Lender shall be a "Lender" with a Commitment as specified hereinabove and
the Lender being replaced shall cease to be a "Lender" hereunder, except
with respect to indemnification provisions under this Agreement, which
shall survive as to such replaced Lender;
(d) The Administrative Agent shall reasonably cooperate in
effectuating the replacement of any Lender under this Section 4.19, but at
no time shall the Administrative Agent be obligated to initiate any such
replacement; and
(e) Any Lender replaced under this Section 4.19 shall be replaced at
the Borrower's sole cost and expense and at no cost or expense to the
Administrative Agent. The replaced Lender shall not be obligated to pay
any assignment or processing fee required pursuant to Section 11.6(c) or
otherwise.
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Section 4.20 Return of Payments. If the Administrative Agent shall be
required by any court, trustee or debtor-in- possession or other person to
return any amount previously received by it in respect of the obligations under
this Agreement, upon receipt of notice from it, each Lender shall immediately
pay over to it, such Lender's Pro Rata Share of the amount to be returned.
ARTICLE V
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Borrower hereunder is
subject to the satisfaction of the following conditions:
Section 5.1 Conditions Precedent to Initial Loans. At the time of the
making of the initial Loans hereunder on the Closing Date, all obligations of
Borrower hereunder incurred prior to the initial Loans (including, without
limitation, Borrower's obligations to reimburse the reasonable fees and expenses
of counsel to the Administrative Agent and any fees and expenses payable to the
Administrative Agent and the Lenders as previously agreed with Borrower), shall
have been paid in full, and the Administrative Agent shall have received the
following, in form and substance reasonably satisfactory in all respects to the
Administrative Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Credit Notes evidencing the
Revolving Loan Commitments;
(c) the duly executed Guaranty Documents;
(d) the duly executed Security Documents;
(e) certificate of Borrower in substantially the form of Exhibit F
attached hereto and appropriately completed;
(f) certificates of the Secretary or Assistant Secretary of each of
the Credit Parties, attaching and certifying copies of the resolutions of
the boards of directors of the Credit Parties, authorizing as applicable
the execution, delivery and performance of the Credit Documents;
(g) certificates of the Secretary or an Assistant Secretary of each
of the Credit Parties certifying
52
(i) the name, title and true signature of each officer of such entities
executing the Credit Documents, and (ii) the bylaws or comparable
governing documents of such entities;
(h) certified copies of the Certificate or Articles of Incorporation
of each credit party, certified by the Secretary of State or the Secretary
or Assistant Secretary of such Credit Party, together with certificates of
good standing or existence, as may be available from the Secretary of
State of the jurisdiction of incorporation or organization of such Credit
Party;
(i) copies of all documents and instruments, including all consents,
authorizations and filings, required or advisable under any Requirement of
Law or by any material Contractual Obligation of the Credit Parties, in
connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be
executed and delivered hereunder, and such consents, authorizations,
filings and orders shall be in full force and effect and all applicable
waiting periods shall have expired;
(j) certified copies of indentures, credit agreements, capital
leases, instruments, and other documents evidencing or securing
Indebtedness of any Consolidated Company described on Schedule 6.13(a), in
any single case in an amount not less than $2,500,000;
(k) certificates, reports and other information as the
Administrative Agent may reasonably request from any Consolidated Company
in order to satisfy the Lenders as to the absence of any material
liabilities or obligations arising from matters relating to employees of
the Consolidated Companies, including employee relations, collective
bargaining agreements, Plans, and other compensation and employee benefit
plans;
(l) certificates, reports, environmental audits and investigations,
and other information as the Administrative Agent may reasonably request
from any Consolidated Company in order to satisfy the Lenders as to the
absence of any material liabilities or obligations under Environmental
Laws which could reasonably be expected to have a Materially Adverse
Effect;
(m) certificates, reports and other information as the
Administrative Agent may reasonably request from
53
any Consolidated Company in order to satisfy the Lenders as to the absence
of any material liabilities or obligations arising from litigation
(including without limitation, products liability, patent infringement and
malpractice claims) pending or threatened against the Consolidated
Companies;
(n) a summary, set forth in format and detail reasonably acceptable
to the Administrative Agent, of the types and amounts of insurance
(property and liability) maintained by the Consolidated Companies;
(o) the favorable opinion of Gray, Harris & ▇▇▇▇▇▇▇▇, P.A., counsel
to the Credit Parties, substantially in the form of Exhibit G attached
hereto, addressed to the Administrative Agent and each of the Lenders;
(p) financial statements of Borrower and its Subsidiaries, on a
consolidated basis, for the most recently completed fiscal quarter;
(q) successful completion of the 1998 Senior Subordinated Debt Issue
yielding gross proceeds of $250,000,000.00 at a maximum coupon of 12.0%,
with a minimum subordinated debt rating of B2 by ▇▇▇▇▇'▇ and CCC+ by S &
P, and a certificate to that effect from the chief financial officer of
the Borrower in form acceptable to the Administrative Agent;
(r) evidence that all principal, interest and other amounts
outstanding under the Initial Credit Agreement have been paid in full and
replaced by the Facilities pursuant to this Agreement; and
(s) the Mortgage has been recorded and otherwise implemented so that
the Lenders hold a first mortgage on the Headquarters Facility to secure
initially Revolving Loans A, as well as Revolving Loans B except as may be
otherwise determined by the Required Lenders.
In addition to the foregoing, the following conditions shall have been satisfied
or shall exist, all to the satisfaction of the Administrative Agent, as of the
time the initial Loans are made hereunder:
(s) payment in full and termination of all outstanding indebtedness
of the Borrower and its Material Subsidiaries and the release of any liens
securing the same; provided, however, the following indebtedness may
remain outstanding: (i) all Capitalized Lease Obligations described on
Schedule 6.7; (ii) installment notes and other Indebtedness
54
described on Schedule 6.13(a); and (iii) Intercompany Loans as described
on Schedule 6.22;
(t) the Loans to be made on the Closing Date and the use of proceeds
thereof shall not contravene, violate or conflict with, or involve the
Administrative Agent or any Lender in a violation of, any law, rule,
injunction, or regulation, or determination of any court of law or other
governmental authority;
(u) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and enforceability
of the Credit Documents shall be reasonably satisfactory in form and
substance to the Required Lenders;
(v) the status of all pending and threatened litigation (including
products liability, malpractice and patent claims) described on Schedule
6.5, including a description of any damages sought and the claims
constituting the basis therefor, shall have been reported in writing to
the Administrative Agent, the Administrative Agent shall have reported
such matters to the Lenders, and the Lenders shall be satisfied with such
status;
Section 5.2 Conditions to All Loans. At the time of the making of all
Loans (before as well as after giving effect to such Loans and to the proposed
use of the proceeds thereof), the following conditions shall have been satisfied
or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained herein
shall be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of the
date of such Loans;
(c) since the date of the most recent financial statements of the
Consolidated Companies described in Section 6.3, there shall have been no
change which has had or could reasonably be expected to have a Materially
Adverse Effect.
55
(d) there shall be no action or proceeding instituted or pending
before any court or other governmental authority or, to the knowledge of
Borrower, threatened (i) which reasonably could be expected to have a
Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or
more Credit Party's ownership or operation of any portion of its business
or assets, or to compel one or more Credit Party to dispose of or hold
separate all or any portion of its businesses or assets, where such
portion or portions of such business(es) or assets, as the case may be,
constitute a material portion of the total businesses or assets of the
Consolidated Companies;
(e) the Loans to be made and the use of proceeds thereof shall not
contravene, violate or conflict with, or involve the Administrative Agent
or any Lender in a violation of, any law, rule, injunction, or regulation,
or determination of any court of law or other governmental authority
applicable to Borrower; and
(f) the Administrative Agent shall have received such other
documents, including, but not limited to a properly completed Notice of
Borrowing, or legal opinions as the Administrative Agent or any Lender may
reasonably request, all in form and substance reasonably satisfactory to
the Administrative Agent.
Each request for a Borrowing and the acceptance by Borrower of the proceeds
thereof shall constitute a representation and warranty by Borrower, as of the
date of the Loans comprising such Borrowing, that the applicable conditions
specified in Sections 5.1 and 5.2 have been satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to Lenders that:
Section 6.1 Organization and Qualification. Borrower is a corporation duly
organized and existing in good standing under the laws of the State of Delaware.
Each Subsidiary of Borrower is a corporation duly organized and existing under
the laws of the jurisdiction of its incorporation. Borrower and each of its
Subsidiaries are duly qualified to do business as a foreign corporation and are
in good standing in each jurisdiction in which the character of their properties
or the nature of their business makes such qualification necessary, except for
such jurisdictions in which a failure to qualify to do business would not have a
Materially Adverse Effect. Borrower and each of its
56
Material Subsidiaries have the corporate power to own their respective
properties and to carry on their respective businesses as now being conducted.
The jurisdiction of incorporation or organization, and the ownership of all
issued and outstanding capital stock, for each Subsidiary as of the date of this
Agreement is accurately described on Schedule 6.1. Schedule 6.1 also designates
all Subsidiaries of the Borrower as of the Closing Date and specifies whether
each is a Material Subsidiary.
Section 6.2 Corporate Authority. The execution and delivery by Borrower
and the Guarantors of and the performance by Borrower and Guarantors of their
obligations under the Credit Documents have been duly authorized by all
requisite corporate action and all requisite shareholder action, if any, on the
part of Borrower and the Guarantors and do not and will not (i) violate any
provision of any law, rule or regulation, any judgment, order or ruling of any
court or governmental agency, the organizational papers or bylaws of Borrower or
the Guarantors, or any indenture, agreement or other instrument to which
Borrower or the Guarantors are a party or by which Borrower or the Guarantors or
any of their properties is bound, or (ii) be in conflict with, result in a
breach of, or constitute with notice or lapse of time or both a default under
any such indenture, agreement or other instrument.
Section 6.3 Financial Statements. Borrower has furnished Lenders with the
following financial statements, identified by the Chief Financial Officer of
Borrower: audited consolidated balance sheet of the Borrower and its
Subsidiaries as at December 28, 1997, and audited consolidated statement of
income and consolidated statement of stockholders' equity of Borrower and its
Subsidiaries for the fiscal year ended on such date certified by Price
Waterhouse, LLP, Certified Public Accountants . Such financial statements
(including any related schedules and notes) are true and correct in all material
respects, have been prepared in accordance with GAAP consistently applied
throughout the period or periods in question and show, in the case of audited
statements, all liabilities, direct or contingent, of Borrower and its
Subsidiaries, required to be shown in accordance with GAAP consistently applied
throughout the period or periods in question and fairly present the consolidated
financial position and the consolidated results of operations of Borrower and
its Subsidiaries for the periods indicated therein. There has been no material
adverse change in the business, condition or operations, financial or otherwise,
of Borrower and its Subsidiaries since December 28, 1997.
Section 6.4 Tax Returns. Except as set forth on Schedule 6.4, each of
Borrower and its Material Subsidiaries has filed all federal, state and other
tax returns and reports which, to the best knowledge of the Executive Officers
of Borrower and its Subsidiaries, are required to be filed, and each has paid
all
57
taxes as shown on said returns and all other taxes, assessments, fees and other
governmental charges upon Borrower or any of its Material Subsidiaries or upon
any of the properties, assets, incomes or franchises of Borrower or any of its
Material Subsidiaries, to the extent that such taxes, assessments, fees and
other governmental charges have become due or except such as are being contested
in good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP. The Borrower and its Material Subsidiaries
have and will establish all necessary reserves and make all payments required of
them to be set aside or made in regard to all F.I.C.A., withholding, sales or
excise and all other similar federal, state and local taxes.
Section 6.5 Actions Pending. Except as disclosed on Schedule 6.5 hereto,
there is no action, suit, investigation or proceeding pending or, to the
knowledge of Borrower, threatened against or affecting Borrower or any of its
Material Subsidiaries or any of their properties or rights, by or before any
court, arbitrator or administrative or governmental body, which might result in
any Materially Adverse Effect.
Section 6.6 Representations; No Defaults. At the time of each Extension of
Credit there shall exist no Default or Event of Default, and each Extension of
Credit shall be deemed a renewal by Borrower of the representations and
warranties contained in this Agreement and an affirmative statement by Borrower
that such representations and warranties are true and correct in all material
respects on and as of such time with the same effect as though such
representations and warranties had been made on and as of such time.
Section 6.7 Title to Properties; Capitalized Leases. Each of Borrower and
its Material Subsidiaries has (i) good and marketable fee simple title to its
respective real properties (other than real properties which it leases from
others), including such real properties reflected in the consolidated balance
sheet of Borrower and its Subsidiaries described in Section 6.3 above (other
than real properties disposed of in the ordinary course of business), subject to
no Lien of any kind except Liens permitted by Section 8.1 and (ii) good title to
all of its other respective properties and assets (other than properties and
assets which it leases from others), including the other properties and assets
reflected in the consolidated balance sheet of Borrower and its Subsidiaries
described in Section 6.3 above (other than properties and assets disposed of in
the ordinary course of business), subject to no Lien of any kind except Liens
permitted by Section 8.1. Each of Borrower and its Material Subsidiaries enjoys
peaceful and undisturbed possession under all leases necessary in any material
respect for the operation of its respective properties and assets, none of which
contains any unusual or burdensome provisions which might
58
materially affect or impair the operation of such properties and assets, and all
such leases are valid and subsisting and in full force and effect. There are no
Capitalized Lease Obligations except as disclosed on Schedule 6.7 hereto.
Section 6.8 Enforceability of Agreement. This Agreement is the legal,
valid and binding Agreement of Borrower enforceable against Borrower in
accordance with its terms, and the Notes, and all other Credit Documents, when
executed and delivered, will be similarly legal, valid, binding and enforceable,
except as the enforceability of the Notes and other Credit Documents may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditor's rights and remedies in general and by general principles of
equity, whether considered in a proceeding at law or in equity.
Section 6.9 Consent. No consent, permission, authorization, order or
license of or filing with any governmental authority or Person which has not
been obtained or made is necessary in connection with the execution, delivery,
performance or enforcement of the Credit Documents by the Credit Parties, or in
order to constitute the indebtedness to be incurred hereunder and under the
Notes and the other Credit Documents as "Senior Debt" or any similar term
defined within each of the 1998 Senior Subordinated Loan Agreement.
Section 6.10 Use of Proceeds; Federal Reserve Regulations. The proceeds of
the Notes will be used solely for the purposes specified in Section 2.1(g) and
Section 3.1(b) and none of such proceeds will be used, directly or indirectly,
for the purpose of purchasing or carrying any "margin security" or "margin
stock" or for the purpose of reducing or retiring any indebtedness that
originally was incurred to purchase or carry a "margin security" or "margin
stock" or for any other purpose that might constitute this transaction a
"purpose credit" within the meaning of the regulations of the Board of Governors
of the Federal Reserve System.
Section 6.11 ERISA.
(a) Identification of Certain Plans. Schedule 6.11 hereto sets forth
all Plans of Borrower and its Subsidiaries;
(b) Compliance. Each Plan is being maintained, by its terms and in
operation, in accordance with all applicable laws, except such
noncompliance (when taken as a whole) that will not have a Materially
Adverse Effect on the Borrower and its Subsidiaries taken as a whole, or
upon their financial condition, assets, business, operations, liabilities
or prospects;
59
(c) Liabilities. Neither the Borrower nor any Subsidiary is
currently or will become subject to any liability (including withdrawal
liability), tax or penalty whatsoever to any person whomsoever with
respect to any Plan including, but not limited to, any tax, penalty or
liability arising under Title I or Title IV or ERISA or Chapter 43 of the
Code, except such liabilities (when taken as a whole) as will not have a
Materially Adverse Effect on the Borrower and its Subsidiaries taken as a
whole, or upon their financial condition, assets, business, operations,
liabilities or prospects; and
(d) Funding. The Borrower and each ERISA Affiliate has made full and
timely payment of all amounts (i) required to be contributed under the
terms of each Plan and applicable law and (ii) required to be paid as
expenses of each Plan, except where such non-payment would not have a
Materially Adverse Effect. No Plan has an "amount of unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA) except as
disclosed on Schedule 6.11. No Plan is subject to a waiver or extension of
the minimum funding requirements under ERISA or the Code, and no request
for such waiver or extension is pending.
Section 6.12 Subsidiaries. As of the Closing Date, the only Subsidiaries
of the Borrower are those listed on Schedule 6.1. All the outstanding shares of
stock of each Subsidiary have been validly issued and are fully paid and
nonassessable and all such outstanding shares, except as noted on such Schedule
6.1, are owned by Borrower or a Wholly Owned Subsidiary of Borrower free of any
Lien or claim.
Section 6.13 Outstanding Debt.
(a) Except as set forth on Schedule 6.13(a) and the Intercompany
Loans set forth on Schedule 6.22 as of the Closing Date and the 1998
Senior Subordinated Debt Issue and after giving effect to the transactions
contemplated by this Agreement, neither Borrower nor any of its
Subsidiaries has outstanding any Indebtedness; and
(b) There exists no default, and, after giving effect to the
transactions contemplated in this Agreement, there will exist no default
under the provisions of any instrument evidencing such Debt or of any
Agreement relating thereto except as noted on Schedule 6.13(b).
Section 6.14 Conflicting Agreements. Neither Borrower nor any of its
Subsidiaries is a party to any contract or agreement
60
or subject to any charter, bylaw or other corporate restriction which materially
and adversely affects its business, property or assets, or financial condition.
Assuming the consummation of the transactions contemplated by this Agreement,
neither the execution or delivery of this Agreement or the Credit Documents, nor
fulfillment of or compliance with the terms and provisions hereof and thereof,
will conflict with, or result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in any violation of, or result in
the creation of any Lien upon any of the properties or assets of Borrower or any
of its Subsidiaries pursuant to, the charter or By-Laws of Borrower or any of
its Subsidiaries, any award of any arbitrator or any agreement (including any
agreement with stockholders), instrument, order, judgment, decree, statute, law,
rule or regulation to which Borrower or any of its Subsidiaries is subject, and
neither Borrower nor any of its Subsidiaries is a party to, or otherwise subject
to any provision contained in, any instrument evidencing Debt of Borrower or any
of its Subsidiaries, any agreement relating thereto or any other contract or
agreement (including its charter) which limits the amount of, or otherwise
imposes restrictions on the incurring of, Debt of the type to be evidenced by
the Notes or contains dividend or redemption limitations on Common Stock of
Borrower, except for this Agreement, Borrower's Certificate of Incorporation and
those matters listed on Schedule 6.14 attached hereto.
Section 6.15 Environmental Matters.
(a) Except as set forth on Schedule 6.15(a), each of the Borrower and its
Subsidiaries has complied in all material respects (except for instances of
noncompliance that have been resolved prior to the Closing Date) with all
applicable Environmental Laws, including without limitation, compliance with
permits, licenses, standards, schedules and timetables issued pursuant to
Environmental Laws, and is not in violation of, and does not presently have
outstanding any liability under, has not been notified that it is or may be
liable under and does not have knowledge of any liability or potential liability
under any applicable Environmental Law, including without limitation, the
Resource Conservation and Recovery Act of 1976, as amended ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"),
the Federal Water Pollution Control Act, as amended ("FWPCA"), the Federal Clean
Air Act, as amended ("FCAA"), and the Toxic Substance Control Act ("TSCA"),
which violation, liability or potential liability could reasonably be expected
to have a Materially Adverse Effect.
(b) Except as set forth on Schedule 6.15(b), neither the Borrower nor any
of its Subsidiaries has received a written request for information under CERCLA
or any analogous state law,
61
or written notice that any such entity has been identified as a potential
responsible party under CERCLA, or any analogous state law, nor has any such
entity received any written notification that any Hazardous Substance that it or
any of its respective predecessors in interest has generated, stored, treated,
handled, transported, or disposed of, has been released or is threatened to be
released at any site at which any Person intends to conduct or is conducting a
remedial investigation or other action pursuant to any applicable Environmental
Law, or any other Environmental Laws.
(c) Except as set forth on Schedule 6.15(c), each of the Borrower and its
Subsidiaries has obtained all permits, licenses or other authorizations which
are material for the conduct of their respective operations under all applicable
Environmental Laws and with respect to which each such authorization is in full
force and effect.
(d) Except as set forth in Schedule 6.15(d), each of Borrower and its
Subsidiaries complies in all material respects with all laws and regulations
relating to equal employment opportunity and employee safety in all
jurisdictions in which it is presently doing business.
Section 6.16 Possession of Franchises, Licenses, Etc. Each of Borrower and
its Material Subsidiaries possesses all franchises, certificates, licenses,
permits and other authorizations from governmental political subdivisions or
regulatory authorities, free from burdensome restrictions, that are necessary in
any material respect for the ownership, maintenance and operation of its
properties and assets, and neither Borrower nor any of its Subsidiaries is in
violation of any thereof in any material respect.
Section 6.17 Patents, Trademarks, Etc. Except as set forth on Schedule
6.17, each of Borrower and its Material Subsidiaries owns or has the right to
use all patents, trademarks, service marks, trade names, copyrights, licenses,
franchises and other rights, which are necessary for the operation of its
business as presently conducted or proposed to be conducted without any known
conflict with the rights of others, and, in each case, subject to no mortgage,
pledge, lien, lease, encumbrance, charge, security interest, title retention
agreement or option. Each such asset or agreement is in full force and effect,
and the holder thereof has fulfilled and performed all of its obligations with
respect thereto. No event has occurred or exists which permits, or after notice
or lapse of time or both would permit, revocation or termination, or which
materially, adversely affects or in the future may (to the knowledge of any
Executive Officer) materially adversely affect the rights of such holder thereof
with respect thereto. No other license or franchise is known by any Executive
Officer to be
62
necessary to the operations of the business of the Borrower and its Material
Subsidiaries as now conducted or proposed to be conducted. To the knowledge of
any Executive Officer (i) no product, process, method, substance, part, piece of
equipment or other material presently contemplated to be sold by or employed by
Borrower or any of its Material Subsidiaries in connection with its business may
infringe any patent, trademark, service ▇▇▇▇, trade name, copyright, license or
other right owned by any other Person, (ii) there are no pending or threatened
claims or litigation against or affecting Borrower or any of its Subsidiaries
contesting its right to sell or use any such product, process, method,
substance, part, piece of equipment or other material or (iii) there is no, or
there is no pending or proposed, patent, invention, device, application or
principle or any statute, law, rule, regulation, standard or code which would
prevent, inhibit or render obsolete the production or sale of any products of,
or substantially reduce the projected revenues of, or otherwise materially
adversely affect the Borrower or any of its Material Subsidiaries.
Section 6.18 Governmental Consent. Neither the nature of Borrower or any
of its Subsidiaries nor any of their respective businesses or properties, nor
any relationship between Borrower and any other Person, nor any circumstance in
connection with the execution and delivery of the Credit Documents and the
consummation of the transactions contemplated thereby is such as to require on
behalf of Borrower or any of its Material Subsidiaries any consent, approval or
other action by or any notice to or filing with any court or administrative or
governmental body in connection with the execution and delivery of this
Agreement and the Credit Documents.
Section 6.19 Disclosure. Neither this Agreement nor the Credit Documents
nor any other document, certificate or written statement furnished to Lenders by
or on behalf of Borrower in connection herewith contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There is no fact peculiar
to Borrower which materially adversely affects or in the future may (so far as
Borrower can now foresee) materially adversely affect the business, property or
assets, financial condition of Borrower which has not been set forth in this
Agreement or in the Credit Documents, certificates and written statements
furnished to Lenders by or on behalf of Borrower prior to the date hereof in
connection with the transactions contemplated hereby.
Section 6.20 Insurance Coverage. Each property of Borrower or any of its
Subsidiaries is insured within terms acceptable to Lenders for the benefit of
Borrower or a Subsidiary of Borrower in amounts deemed adequate by Borrower's
management and no less than those amounts customary in the industry in which
63
Borrower and its Subsidiaries operate against risks usually insured against by
Persons operating businesses similar to those of Borrower or its Subsidiaries in
the localities where such properties are located.
Section 6.21 Labor Matters. Except as set forth on Schedule 6.21, the
Borrower and the Borrower's Subsidiaries have experienced no strikes, labor
disputes, slow downs or work stoppages due to labor disagreements which have
had, or would reasonably be expected to have, a Materially Adverse Effect, and,
to the best knowledge of Borrower's Executive Officers, there are no such
strikes, disputes, slow downs or work stoppages threatened against any Borrower
or any of Borrower's Subsidiaries. The hours worked and payment made to
employees of the Borrower and Borrower's Subsidiaries have not been in violation
in any material respect of the Fair Labor Standards Act or any other applicable
law dealing with such matters. All payments due from the Borrower and Borrower's
Subsidiaries, or for which any claim may be made against the Consolidated
Companies, on account of wages and employee health and welfare insurance and
other benefits have been paid or accrued as liabilities on the books of the
Borrower and Borrower's Subsidiaries where the failure to pay or accrue such
liabilities would reasonably be expected to have a Materially Adverse Effect.
Section 6.22 Intercompany Loans; Dividends. There are no Intercompany
Loans as of the Closing Date except those set forth on Schedule 6.22. There are
no restrictions on the power of any Consolidated Company to repay any
Intercompany Loan or, except as provided in Section 8.13, to pay dividends on
capital stock.
Section 6.23 Securities Acts. Neither Borrower nor any of its Subsidiaries
nor any agent acting on their behalf has, directly or indirectly, taken or will
take any action which would subject the issuance of the Notes to the provisions
of Section 5 of the Securities Act of 1933, as amended, or to the provisions of
any securities or Blue Sky Law of any applicable jurisdiction.
Section 6.24 Investment Company Act; Holding Company. Neither Borrower nor
any of its Subsidiaries is an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of 1940
or is a "holding company," or a subsidiary or affiliate of a "holding company,"
or a "public utility," within the meaning of the Public Utility Holding Company
Act of 1935, as amended or a "public utility" within the meaning of the Federal
Power Act, as amended.
Section 6.25 Regulation G, Etc. Neither Borrower nor any of its
Subsidiaries nor any agent acting on their behalf has taken or will take any
action which might cause this Agreement or the Notes to violate Regulation G, T,
or X or any other regulation of the Board of Governors of the Federal Reserve
64
System or to violate the Securities Exchange Act of 1934, and each case in
effect now or as the same may hereafter be in effect.
Section 6.26 Changes in Financial Condition; Adverse Developments. From
the date of the annual statements described in Section 6.3 hereinabove, to the
date of this Agreement, there has been, and to the date of each Advance there
will be, no change in the properties, assets, liabilities, financial condition,
business operations, affairs or properties of the Borrower and its Subsidiaries
on an consolidated basis from that set forth or reflected in the year-end
financial statement described in Section 6.3, other than changes in the ordinary
course of business, including acquisitions, none of which either in any case or
in the aggregate will have a Materially Adverse Effect.
Section 6.27 Year 2000. (i) The Borrower has (A) undertaken a detailed
review and assessment of all areas within its and its Subsidiaries' business and
operations that could be adversely affected by the "Year 2000 problem" (that is,
the risk that computer applications used by the Borrower or its Subsidiaries,
may be unable to recognize and perform properly date sensitive functions
involving certain dates prior to and any date after December 31, 1999), (B)
developed a plan and time line for addressing any Year 2000 problem on a timely
basis, and (C) implemented such plan in accordance with such timetable. The
Borrower reasonably anticipates that all computer applications that are material
to its and its Subsidiaries' business and operations will on a timely basis be
able to perform property date-sensitive functions for all dates before and after
January 1, 2000 (i.e., be "Year 2000 compliant"); and (ii) the Borrower has
inquired of each of its and its Subsidiaries material suppliers, vendors and
customers as to whether such Persons will on a timely basis be Year 2000
compliant in all material respects and taken appropriate remedial action with
respect to any of such Persons who are not expected to be so compliant. For
purposes hereof "material suppliers, vendors and customers" refers to those
suppliers, vendors and customers of the Borrower or its Subsidiaries, the
business failure of which would with reasonable probability result in a Material
Adverse Effect.
Section 6.28 1998 Senior Subordinated Debt Issue. The Borrower has
successfully completed the 1998 Senior Subordinated Debt Issue yielding gross
proceeds of $250,000,000.00 at a maximum coupon of 12.0%, with a minimum
Subordinated Debt Rating of B2 by ▇▇▇▇▇'▇ and CCC+ by S&P.
Section 6.29 Collateral. That the Security Interest constitutes a first
mortgage, security interest or other encumbrance, as the case may be, in and to
the Collateral, subject only to the Permitted Encumbrances provided, however,
65
that the mortgage on the Headquarters Facility shall secure all Revolving Loans
unless otherwise determined by the Required Lenders.
ARTICLE VII
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as it may borrow under this
Agreement or so long as any indebtedness remains outstanding under the Notes
that it will:
Section 7.1 Corporate Existence, Etc. Preserve and maintain, and cause
each of its Subsidiaries to preserve and maintain, its corporate existence, its
material rights, franchises, and licenses, and its material patents and
copyrights (for the scheduled duration thereof), trademarks, trade names, and
service marks, necessary or desirable in the normal conduct of its business, and
its qualification to do business as a foreign corporation in all jurisdictions
where it conducts business or other activities making such qualification
necessary, where the failure to do so would reasonably be expected to have a
Materially Adverse Effect.
Section 7.2 Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws, subject to the exception set forth in
Section 7.7(f) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve amounts
in excess of $100,000 in the aggregate) and Contractual Obligations applicable
to or binding on any of them.
Section 7.3 Payment of Taxes and Claims, Etc. Pay, and cause each of its
Subsidiaries to pay, (i) all taxes, assessments and governmental charges imposed
upon it or upon its property, and (ii) all claims (including, without
limitation, claims for labor, materials, supplies or services) which might, if
unpaid, become a Lien upon its property, unless, in each case, the validity or
amount thereof is being contested in good faith by appropriate proceedings and
adequate reserves are maintained with respect thereto.
Section 7.4 Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, containing complete and accurate
entries of all their respective financial and business transactions.
Section 7.5 Visitation, Inspection, Etc. Permit, and cause each of its
Subsidiaries to permit, any representative of the Administrative Agent or any
Lender to visit and inspect any of its property and to discuss its affairs,
finances and accounts
66
with its officers, all at such reasonable times and as often as the
Administrative Agent or such Lender may reasonably request after reasonable
prior notice to Borrower; provided, however, that at any time following the
occurrence and during the continuance of a Default or an Event of Default, no
prior notice to Borrower shall be required and Borrower shall permit, and cause
each of its Subsidiaries to permit, any representative of the Administrative
Agent or any Lender to also examine its books and records and to make copies and
take extracts therefrom, and further, provided, that in the event any documents
and records are subject to any contractual confidentiality requirements with any
Person, the right to make copies or extracts therefrom shall be subject to the
prior written consent of the Borrower, which consent will not be unreasonably
withheld.
Section 7.6 Insurance; Maintenance of Properties.
(a) Maintain or cause to be maintained with financially sound and
reputable insurers, insurance with respect to its properties and business,
and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by reputable companies in
the same or similar businesses, such insurance to be of such types and in
such amounts, including such self-insurance and deductible provisions, as
is customary for such companies under similar circumstances; provided,
however, that in any event Borrower shall use its best efforts to
maintain, or cause to be maintained, insurance in amounts and with
coverages not materially less favorable to any Consolidated Company as in
effect on the date of this Agreement, except where the costs of
maintaining such insurance would, in the judgment of both Borrower and the
Administrative Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to cause,
all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, settlements and improvements
thereof, all as in the judgment of Borrower may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in
this subsection shall prevent Borrower from discontinuing the operation or
maintenance of any such properties if such discontinuance is, in the
judgment of Borrower, desirable in the conduct of its business or the
business of any Consolidated Company.
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Section 7.7 Reporting Covenants. Furnish to the Administrative Agent for
distribution to each Lender after the date that the conditions set forth in
Section 5.1 are satisfied or waived in accordance with Section 11.2:
(a) Annual Financial Statements. As soon as available and in any
event within 90 days after the end of each fiscal year of Borrower,
audited financial statements, consisting of balance sheets of the
Consolidated Companies as at the end of such year, presented on a
consolidated basis, and the related statements of income, shareholders'
equity, and cash flows of the Consolidated Companies for such fiscal year,
presented on a consolidated basis, setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail and accompanied by a report thereon of Price Waterhouse,
LLP, or other independent public accountants of comparable recognized
national standing, which such report shall be unqualified as to going
concern and scope of audit and shall state that such financial statements
present fairly in all material respects the financial condition as at the
end of such fiscal year on a consolidated basis, and the results of
operations and statements of cash flows of the Consolidated Companies for
such fiscal year in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements has
been made in accordance with GAAP;
(b) Quarterly Financial Statements. As soon as available and in any
event within 45 days after the end of each fiscal quarter of Borrower
(other than the fourth fiscal quarter), balance sheets of the Consolidated
Companies as at the end of such quarter presented on a consolidated basis
and the related statements of income, shareholders' equity, and cash flows
of the Consolidated Companies for such fiscal quarter and for the portion
of Borrower's fiscal year ended at the end of such quarter, presented on a
consolidated basis setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous fiscal year, all in reasonable detail and certified by
the Chief Financial Officer or other authorized financial officer of
Borrower acceptable to the Administrative Agent and the Required Lenders
that such financial statements fairly present in all material respects the
financial condition of the Consolidated Companies as at the end of such
fiscal quarter on a consolidated basis, and the results of operations and
statements of cash flows of the
68
Consolidated Companies for such fiscal quarter and such portion of
Borrower's fiscal year, in accordance with GAAP consistently applied
(subject to normal year end audit adjustments and the absence of certain
footnotes);
(c) No Default/Compliance Certificate. Together with the financial
statements required pursuant to subsections (a) and (b) above, a
certificate of the Treasurer, Chief Financial Officer or other authorized
financial officer of Borrower acceptable to the Administrative Agent and
the Required Lenders (i) to the effect that, based upon a review of the
activities of the Consolidated Companies and such financial statements
during the period covered thereby, there exists no Event of Default and no
Default under this Agreement, or if there exists an Event of Default or a
Default hereunder, specifying the nature thereof and the proposed response
thereto, (ii) demonstrating in reasonable detail compliance as at the end
of such fiscal year or such fiscal quarter with the covenants contained in
Section 7.8 and Sections 8.1 through 8.3 and (iii) demonstrating the Total
Funded Debt To Consolidated EBITDA ratio for the purposes of determining
the Applicable Margin;
(d) Notice of Default. Promptly after any Executive Officer of
Borrower has notice or knowledge of the occurrence of an Event of Default
or a Default, a certificate of the Chief Financial Officer or principal
accounting officer of Borrower specifying the nature thereof and the
proposed response thereto;
(e) Litigation. Promptly after (i) the occurrence thereof, notice of
the institution of or any adverse development in any action, suit or
proceeding or any governmental investigation or any arbitration, before
any court or arbitrator or any governmental or administrative body, agency
or official, against any Consolidated Company, or any material property
thereof which might have a Materially Adverse Effect, or (ii) actual
knowledge thereof, notice of the threat of any such action, suit,
proceeding, investigation or arbitration, together with any information
and documentation relating thereto, as may be requested; notwithstanding
anything to the contrary contained in this subsection, the Borrower shall
promptly advise the Lenders, in writing, of the threatened or actual
filing of any malpractice litigation against Borrower or any of its
Subsidiaries whether or not such litigation is expected to have a
Materially Adverse Effect;
69
(f) Environmental Notices. Promptly after receipt thereof, notice of
any actual or alleged violation, or notice of any action, claim or request
for information, either judicial or administrative, from any governmental
authority relating to any actual or alleged claim, notice of potential
responsibility under or violation of any Environmental Law, or any actual
or alleged spill, leak, disposal or other release of any waste, petroleum
product, or hazardous waste or Hazardous Substance by any Consolidated
Company which violation, action, claim, request, spill, leak, disposal, or
release could result in penalties, fines, claims or other liabilities to
any Consolidated Company in amounts in excess of $100,000 individually or
when aggregated with other then pending such matters;
(g) ERISA.
(i) Promptly after the occurrence thereof with respect to any
Plan of any Consolidated Company or any ERISA Affiliate thereof, or
any trust established thereunder, notice of (1) a "reportable event"
described in Section 4043 of ERISA and the regulations issued from
time to time thereunder (other than a "reportable event" not subject
to the provisions for 30 day notice to the PBGC under such
regulations), or (2) any other event which could subject any
Consolidated Company to any tax, penalty or liability under Title I
or Title IV of ERISA or Chapter 43 of the Tax Code, or any tax or
penalty resulting from a loss of deduction under Sections 162, 404
or 419 of the Tax Code, where any such taxes, penalties or
liabilities exceed or could exceed $250,000 in the aggregate;
(ii) Promptly after such notice must be provided to the PBGC,
or to a Plan participant, beneficiary or alternative payee, any
notice required under Section 101(d), 302(f)(4), 303, 307,
4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under Section 401(a)(29)
or 412 of the Tax Code with respect to any Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any
70
ERISA Affiliate thereof concerning the intent of the PBGC or any
other governmental authority to terminate a Plan of such Company or
ERISA Affiliate thereof which is subject to Title IV of ERISA, to
impose any liability on such Company or ERISA Affiliate under Title
IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Administrative Agent, promptly
upon the filing thereof with the Internal Revenue Service ("IRS") or
the Department of Labor ("DOL"), a copy of IRS Form 5500 or annual
report for each Plan of any Consolidated Company or ERISA Affiliate
thereof which is subject to Title IV of ERISA;
(v) Upon the request of the Administrative Agent, (A) true and
complete copies of any and all documents, government reports and IRS
determination or opinion letters or rulings for any Plan of any
Consolidated Company from the IRS, PBGC or DOL, (B) any reports
filed with the IRS, PBGC or DOL with respect to a Plan of the
Consolidated Companies or any ERISA Affiliate thereof, or (C) a
current statement of withdrawal liability for each Multiemployer
Plan of any Consolidated Company or any ERISA Affiliate thereof;
(h) Liens. Promptly upon any Consolidated Company becoming aware
thereof, notice of the filing of any federal statutory Lien, tax or other
state or local government Lien or any other Lien affecting their
respective properties, other than those Liens expressly permitted by
Section 8.1;
(i) Public Filings, Etc. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements, annual,
quarterly and special reports, proxy statements and notices sent or made
available generally by Borrower to its public security holders, of all
regular and periodic reports and all registration statements and
prospectuses, if any, filed by any of them with any securities exchange,
and of all press releases and other statements made available generally to
the public containing material developments in the business or financial
condition of Borrower and the other Consolidated Companies;
71
(j) Special Audit. Promptly upon receipt thereof, copies of all
financial statements of independent public accountants to Borrower in
connection with any special audit of Borrower's consolidated financial
statements;
(k) Trademarks; Labor Disputes, Etc. Promptly upon the existence or
occurrence thereof, notice of the existence or occurrence of (i) failure
of any Consolidated Company to hold in full force and effect those
material trademarks, service marks, patents, trade names, copyrights,
licenses, franchises and similar rights necessary in the normal conduct of
its business, and (ii) any strike, labor dispute, slow down or work
stoppage as described in Section 6.21;
(l) New Subsidiaries. Quarterly furnish the Administrative Agent
notice of the formation or acquisition of any Material Subsidiary or any
other event resulting in the creation of a new material Subsidiary,
including a description of the assets of such entity, the activities in
which it will be engaged, and such other information as the Administrative
Agent may request, together with the other documents required by Section
7.10;
(m) Intercompany Asset Transfers. Promptly upon the occurrence
thereof, notice of the transfer of any assets from Borrower or any
Guarantor to any other Consolidated Company that is not Borrower or a
Guarantor (in any transaction or series of related transactions),
excluding sales or other transfers of assets in the ordinary course of
business where the Asset Value of such assets is less than $1,000,000;
(n) Capitalized Lease Obligations. Promptly upon the occurrence
thereof, notice and a complete description of any Capitalized Lease
Obligations entered into by any Consolidated Company.
(o) Other Information. With reasonable promptness, such other
information about the Consolidated Companies as the Administrative Agent
may reasonably request from time to time.
Section 7.8 Financial Covenants.
(a) Fixed Charge Coverage Ratio. Maintain the following minimum
Fixed Charge Coverage Ratio on the last day of each calendar quarter,
calculated on a rolling four-quarter basis based on the Borrower's
financial statements for the immediately preceding four quarters:
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Calculation Period Minimum
------------------ -------
3/31/98 through 9/30/98 1.750:1.00
Quarter ending 12/31/98 2.00:1.00
3/31/99 through 12/31/99 2.25:1.00
Thereafter 2.50:1.00
(b) Total Funded Debt to Consolidated EBITDA. Maintain as of the
last day of each fiscal quarter, a maximum ratio of Total Funded Debt to
Consolidated EBITDA, of:
Calculation Period Maximum
------------------ -------
3/31/98 through 12/31/98 3.000:1.00
3/31/99 through 12/31/99 2.875:1.00
Thereafter 2.750:1.00
(c) Consolidated Net Worth. Maintain at all times, Consolidated Net
Worth of at least $300,000,000.00 plus seventy-five percent (75%) of
positive Consolidated Net Income earned after December 28, 1997 and one
hundred percent (100%) of the net proceeds of any equity issuance since
December 28, 1997, tested quarterly.
(d) Senior Funded Debt to Consolidated EBITDA. The Borrower shall
maintain a maximum ratio of Senior Funded Debt to Consolidated EBITDA,
calculated at the end of each fiscal quarter, of 1.50:1.00.
Calculations determining Borrower's compliance with the covenants set forth in
Section 7.8(a) and Section 7.8(d) shall be done on a pro forma basis and will
exclude Non-Recourse Debt. Further, to the extent there is a change in GAAP
after the date of this Agreement and said change would have a material effect on
the foregoing financial covenants, then, in that event, the Borrower may request
that the foregoing financial covenants be modified to take into account said
changes in GAAP, which request shall not be unreasonably approved by the
Required Lenders.
Section 7.9 Notices Under Certain Other Indebtedness. Immediately upon its
receipt thereof, Borrower shall furnish the Administrative Agent a copy of any
notice received by it or any other Consolidated Company from the holder(s) of
Indebtedness (or from any trustee, agent, attorney, or other party acting on
behalf of such holder(s)) in an amount which, in the aggregate, exceeds
$1,000,000, where such notice states or claims (i) the existence or occurrence
of any default or event of default with respect to such Indebtedness under the
terms of any indenture, loan or credit Agreement, debenture, note, or other
document evidencing or governing such Indebtedness, or (ii) the existence or
occurrence of any event or condition which requires or permits holder(s) of any
Indebtedness to exercise rights under any Change in Control Provision. Borrower
agrees to take such actions as
73
may be necessary to require the holder(s) of any Indebtedness (or any trustee or
agent acting on their behalf) incurred pursuant to documents executed or amended
and restated after the Closing Date, to furnish copies of all such notices
directly to the Administrative Agent simultaneously with the furnishing thereof
to Borrower, and that such requirement may not be altered or rescinded without
the prior written consent of the Administrative Agent.
Section 7.10 Additional Guarantors. Promptly after (i) the formation or
acquisition (provided that nothing in this Section shall be deemed to authorize
or prohibit the acquisition of any entity) of any Material Subsidiary not listed
on Schedule 6.1, (ii) the transfer of assets to any Consolidated Company if
notice thereof is required to be given pursuant to Section 7.7(m) and as a
result thereof the recipient of such assets becomes a Material Subsidiary, and
(iii) the occurrence of any other event creating a new Material Subsidiary, the
Borrower shall provide notice thereof to the Administrative Agent and, within
thirty (30) days thereafter, Borrower shall deliver to the Administrative Agent
copies of the Articles of Incorporation and bylaws of each such Subsidiary and
shall cause such Subsidiary to execute and deliver (a) a joinder to this
Agreement in the form of Exhibit H attached hereto; (b) a Supplement to
Subsidiary Guaranty Agreement in the form of Exhibit I attached hereto; and (c)
a Supplement to Contribution Agreement in the form of Exhibit J attached hereto,
and the Borrower shall further execute such Security Documents so as to grant to
the Lenders a Security Interest in all the outstanding stock of that Guarantor
owned by the Borrower, all in the prescribed form or such other form and
substance as may be satisfactory to the Administrative Agent and the Required
Lenders. As used in this Section, Material Subsidiary shall not include a
Foreign Subsidiary or those subsidiaries referenced in Schedule 7.10 attached
hereto.
Section 7.11 Fiscal Year. Borrower shall not change its fiscal year now
employed for accounting and reporting purposes without the prior written notice
to the Administrative Agent.
Section 7.12 Ownership of Guarantors. Borrower shall maintain at least
eighty percent (80%) ownership of all Guarantors, and shall not decrease its
ownership percentage in each Person which becomes a Guarantor after the date
hereof to less than eighty percent (80)%).
74
Section 7.13 Subordination of Intercompany Loans. All loans or fees owed
to any Guarantor or any other Consolidated Company, or any Affiliate of any
thereof, shall, at all times, be subordinate to the Loans and the Borrower shall
cause its Subsidiaries and/or Affiliates from time to time to execute and
deliver to the Administrative Agent and the Required Lenders subordination
agreements in form and content satisfactory to the Administrative Agent and the
Required Lenders.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note shall
remain unpaid, Borrower will not and will not permit any Subsidiary to:
Section 8.1 Liens. Create, incur, assume or suffer to exist any Lien on
any of its property now owned or hereafter acquired to secure any Indebtedness
other than:
(a) Liens existing on the date hereof disclosed on Schedule 8.1;
(b) any Lien on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition
cost of such property and any refinancing thereof, provided that such Lien
does not extend to any other property; and provided, further, that the
aggregate amount of all such Liens outstanding at any time shall not
exceed ten percent (10%) of the value of Borrower's total assets;
(c) Liens for taxes not yet due, and Liens for taxes or Liens
imposed by ERISA which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained;
(d) (i) Statutory Liens of landlords, (ii) existing contractual
Liens of landlords, (iii) future contractual Liens of landlords not to
exceed five percent (5%) of consolidated total assets and (iv) Liens of
carriers, warehousemen, mechanics, materialmen and other Liens imposed by
law created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained;
75
(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers, compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(f) Liens resulting from zoning, easements, and restrictions on the
use of such real estate, or rights reserved or vested in governmental
authority, which do not materially impair the use of such real estate;
(g) Liens arising under ERISA;
(h) Liens on stock owned in Subsidiaries to secure non-recourse debt
of that Subsidiary provided that said Subsidiary is not, and is not
required to be, a Guarantor hereunder;
(i) Liens arising in connection with the Lease in favor of the
Lenders; and
(j) Rights reserved or vested in a governmental authority which do
not materially impair the use of such property.
Section 8.2 Mergers, Acquisitions, Sales, Etc. Merge or consolidate with
any other Person, other than Borrower or another Subsidiary, or sell, lease, or
otherwise dispose of its accounts, property or other assets (including capital
stock of Subsidiaries), or, except for the purchase of capital stock as an
investment in a Subsidiary as permitted by subsections (a) and (b) in Section
8.3, below, purchase, lease or otherwise acquire all or any substantial portion
of the property or assets (including capital stock) of any Person; provided,
however, that the foregoing restrictions on asset sales shall not be applicable
to (i) sales of equipment or other personal property being replaced by other
equipment or other personal property purchased as a capital expenditure item
having comparable values, (ii) sale, lease or transfer of assets of the Borrower
or any Subsidiary to the Borrower or to any other Subsidiary, (iii) sales of
inventory in the ordinary course of business, and (iv) other asset sales
(including the stock of Subsidiaries) where, on the date of execution of a
binding obligation to make such asset sale (provided that if the asset sale is
not consummated within six (6) months of such execution, then on the date of
consummation of such asset sale rather than on the date of execution of such
binding obligation), the Asset Value of asset sales occurring after the Closing
Date, taking into account
76
the Asset Value of the proposed asset sale, would not exceed ten percent (10%)
of Borrower's assets, since the Closing Date; and, provided further, that the
foregoing restrictions on mergers shall not apply to mergers involving Borrower
and another entity, provided Borrower is the surviving entity, and mergers
between a Subsidiary of Borrower and Borrower or between Subsidiaries of
Borrower provided that, in either case, upon consummation of such mergers,
Borrower is in compliance with this Section 8.2; provided, however, that no
transaction pursuant to clauses (i), (ii), (iv) or the second proviso above
shall be permitted if any Default or Event of Default otherwise exists at the
time of such transaction or would otherwise exist as a result of such
transaction. Notwithstanding anything to the contrary set forth in this Section
8.2, in Section 8.3 below, or elsewhere in this Agreement, the Borrower shall
not be required to obtain the prior written consent of the Administrative Agent
and the Required Lenders for any acquisition except:
(a) For any single acquisition of or Investment in any other Person
(including joint ventures and other non-consolidated entities) for cash
consideration in excess of $10,000,000.00.
(b) For any acquisition in the event that previously completed
acquisitions aggregate at least $50,000,000.00 during the term of the
Facility.
provided that immediately after said acquisition no Default or Event of Default
would then exist. Further, for any acquisition described in Subsections (a) and
(b) above for which the Borrower would be required to obtain the prior written
consent of the Required Lenders, said consent shall not be unreasonably withheld
and the Lenders understand that time is of the essence. For the purposes of the
foregoing, the term "cash consideration" includes any assumption of
Indebtedness.
Section 8.3 Investments, Loans, Etc. Make or permit to remain outstanding
any loan or advance to, or guarantee, endorse, or otherwise be or become
contingently liable, directly or indirectly, or incur any Guaranteed
Indebtedness in connection with obligations (whether recourse or non-recourse),
stock or dividends of any other Person, or hold any Investments in any Person,
or otherwise acquire or hold any Subsidiaries, other than:
(a) Investments in Subsidiaries that are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date or
become Guarantors in accordance with Section 7.10 after the Closing Date;
provided, however, nothing in this Section 8.3 shall be deemed to
authorize or prohibit an investment pursuant to this subsection (a) in any
77
entity before that entity is a Subsidiary and a Guarantor ;
(b) Investments in Subsidiaries that are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date or
become Guarantors in accordance with Section 7.10 after the Closing Date,
for consideration of common stock of Borrower; provided, however, nothing
in this Section 8.3 shall be deemed to authorize or prohibit an investment
pursuant to this subsection (b) in any entity before that entity is a
Subsidiary and a Guarantor;
(c) Investments in Subsidiaries which are not Guarantors, joint
ventures and other non-consolidated entities existing as of the date of
this Agreement and as described on Schedule 8.3(c).
(d) Guarantee of the Lease and the notes to be issued in connection
therewith not to exceed eighty-two percent (82%) of the amount financed in
connection with the acquisition, buildout and equipping of the New York
Restaurant;
(e) Advances or guaranties of advances to officers, employees and
celebrities in the ordinary course of business of less than $25,000,000 in
the aggregate, including those existing on the Closing Date;
(f) Other investments or loans of less than $1,000,000;
(g) Direct obligations of the United States or any agency thereof,
or obligations guaranteed by the United States or any agency thereof, in
each case supported by the full faith and credit of the United States and
maturing within one year from the date of creation thereof;
(h) Commercial paper, bankers acceptances or corporate obligations
maturing within one year from the date of creation thereof having a rating
at the time as of which any determination is made of P-1 (or higher)
according to Moody's or as A-1 (or higher) according to Standard & Poor's
corporation or the equivalent thereof
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if by another nationally recognized credit rating agency;
(i) Time deposits maturing within one year from the date of creation
thereof, including certificates of deposit issued by any Lender and any
office located in the United States of any bank or trust company which is
organized under the laws of the United States or any state thereof and has
total assets aggregating at least $500,000,000, including without
limitation, any such deposits in Eurodollars issued by a foreign branch of
any such bank or trust company;
(j) Investments made by Plans;
(k) Intercompany Loans;
(l) Any obligations under the Aladdin Letter of Intent; and
(m) Any other Guaranteed Indebtedness if immediately after said
guaranty (which amount of Guaranteed Indebtedness shall be included in
Funded Debt), the Borrower would be in full compliance with the Financial
Covenants set forth in Section 7.8 above.
Section 8.4 Sale and Leaseback Transactions. Without the approval of the
Administrative Agent and the Required Lenders, sell or transfer any property,
real or personal, whether now owned or hereafter acquired, and thereafter rent
or lease such property or other property which any Consolidated Company intends
to use for substantially the same purpose or purposes as the property being sold
or transferred, other than sale/leaseback transactions not to exceed any
aggregate of $25,000,000.00 and with respect to which the proceeds of said
permitted sale/leaseback transactions must be used to reduce amounts outstanding
under the Facility.
Section 8.5 Transactions with Affiliates.
(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not in
the ordinary course of business, with any Affiliate of any Consolidated
Company (but excluding any Affiliate which is also a Consolidated
Company), other than on terms and conditions substantially as favorable to
such Consolidated Company as would be obtained by such Consolidated
Company at the time in a comparable arm's length transaction with a Person
other than an Affiliate.
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(b) Convey or transfer to any other Person (including any other
Consolidated Company) any real property, buildings, or fixtures used in
the manufacturing or production operations of any Consolidated Company, or
convey or transfer to any other Consolidated Company any other assets
(excluding conveyances or transfers in the ordinary course of business) if
at the time of such conveyance or transfer any Default or Event of Default
exists or would exist as a result of such conveyance or transfer.
Section 8.6 Optional Prepayments. Directly or indirectly, prepay,
purchase, redeem, retire, defease or otherwise acquire, or make any optional
payment on account of any principal of, interest on, or premium payable in
connection with the optional prepayment, redemption or retirement of, any of its
Indebtedness, or give a notice of redemption with respect to any such
Indebtedness, or make any payment in violation of the subordination provisions
of any Subordinated Debt, except with respect to (i) the Obligations under this
Agreement and the Notes, (ii) prepayments of Indebtedness outstanding pursuant
to revolving credit, overdraft and line of credit facilities set forth in
Schedule 6.13(a), and (iii) trade payables incurred in the ordinary course of
business.
Section 8.7 Changes in Business. Enter into any business other than
entertainment, lodging and gaming and related industries, leisure industry,
restaurant and related industries, retail industry and similar industries and
businesses.
Section 8.8 ERISA. Take or fail to take any action with respect to any
Plan of any Consolidated Company or, with respect to its ERISA Affiliates, any
Plans which are subject to Title IV of ERISA or to continuation health care
requirements for group health plans under the Tax Code, including without
limitation (i) establishing any such Plan, (ii) amending any such Plan (except
where required to comply with applicable law), (iii) terminating or withdrawing
from any such Plan, or (iv) incurring an amount of unfunded benefit liabilities,
as defined in Section 4001(a)(18) of ERISA, or any withdrawal liability under
Title IV of ERISA with respect to any such Plan, without first obtaining the
written approval of the Administrative Agent and the Required Lenders, where
such actions or failures could result in a Materially Adverse Effect.
Section 8.9 Additional Negative Pledges. Create or otherwise cause or
suffer to exist or become effective, directly or indirectly, any prohibition or
restriction on the creation or existence of any Lien upon any asset of any
Consolidated Company, other than pursuant to (i) the terms of any agreement,
instrument or other document pursuant to which any Indebtedness incurred in
connection with the Liens permitted by Section 8.1(b) is incurred by any
Consolidated Company, so long as such prohibition or
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restriction applies only to the property or asset being financed by such
Indebtedness, (ii) any requirement of applicable law or any regulatory authority
having jurisdiction over any of the Consolidated Companies, and (iii) the
Security Interest.
Section 8.10 Limitation on Payment Restrictions Affecting Consolidated
Companies. Create or otherwise cause or suffer to exist or become effective, any
consensual encumbrance or restriction on the ability of any Consolidated Company
to (i) pay dividends or make any other distributions on such Consolidated
Company's stock, or (ii) pay any indebtedness owed to Borrower or any other
Consolidated Company, or (iii) transfer any of its property or assets to
Borrower or any other Consolidated Company, except any consensual encumbrance or
restriction existing under the Credit Documents.
Section 8.11 Use of Proceeds. Use the proceeds of the Loans for any
purpose except those set forth herein.
Section 8.12 Subsidiary Indebtedness. Except for Intercompany Loans,
Borrower shall not permit its Subsidiaries to incur any indebtedness in excess
of $15,000,000.00 in the aggregate outstanding at any one time without the prior
written consent of the Administrative Agent and the Required Lenders.
Section 8.13 Dividends. Borrower shall not, without the prior written
consent of the Administrative Agent and the Required Lenders, pay dividends in
excess of ten percent (10%) of its Consolidated Net Income in any fiscal year,
provided that immediately after said payments, no Default or Event of Default
would then exist.
Section 8.14 Restrictions on Subordinated Debt. No payments of any nature,
whether principal, premium or interest, whatsoever may be made on any
Subordinated Debt, nor may any Subordinated Debt be repurchased , redeemed, or
otherwise retired, nor may any deposits be made pursuant to the provisions
described under "Defeasance" of the 1998 Senior Subordinated Loan Agreement,
without the prior written consent of the Agents and the Required Lenders during
any Payment Blockage Period (as defined in the 1998 Senior Subordinated Loan
Agreement .
ARTICLE IX
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
Section 9.1 Payments. Borrower shall fail to make promptly when due
(including, without limitation, by mandatory
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prepayment) any principal payment with respect to the Loans, or Borrower shall
fail to make (i) within three (3) Business Days after the due date therefore or
(ii) within one (1) Business Day after notice of such failure by Administrative
Agent, whichever is later, any payment of interest, fee or other amount payable
hereunder;
Section 9.2 Covenants Without Notice. Borrower shall fail to observe or
perform any covenant or Agreement contained in Sections 7.8, 8.1 (relating to
consensual liens), 8.2 through 8.13;
Section 9.3 Other Covenants. Borrower shall fail to observe or perform any
covenant or Agreement contained in this Agreement, other than those referred to
in Sections 9.1 and 9.2, and, if capable of being remedied, such failure shall
remain unremedied for 30 days after the earlier of (i) Borrower's obtaining
knowledge thereof, or (ii) written notice thereof shall have been given to
Borrower by Administrative Agent or any Lender;
Section 9.4 Representations. Any representation or warranty made or deemed
to be made by Borrower or any other Credit Party or by any of its officers under
this Agreement or any other Credit Document (including the Schedules attached
thereto), or any certificate or other document submitted to the Administrative
Agent or the Lenders by any such Person pursuant to the terms of this Agreement
or any other Credit Document, shall be incorrect in any material respect when
made or deemed to be made or submitted;
Section 9.5 Non-Payments of Other Indebtedness. Any Consolidated Company
shall fail to make when due (whether at stated maturity, by acceleration, on
demand or otherwise, and after giving effect to any applicable grace period) any
payment of principal of or interest on any Indebtedness in excess of $5,000,000
(other than the Obligations);
Section 9.6 Defaults Under Other Agreements. Any Consolidated Company
shall fail to observe or perform within any applicable grace period any
covenants or agreements (other than those referenced in Section 9.5) contained
in any agreements or instruments relating to any of its Indebtedness exceeding
$5,000,000 in the aggregate, or any other event shall occur if the effect of
such failure or other event is to accelerate, or to permit the holder of such
Indebtedness or any other Person to accelerate, the maturity of such
Indebtedness; or any such Indebtedness shall be required to be prepaid (other
than by a regularly scheduled required prepayment) in whole or in part prior to
its stated maturity;
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Section 9.7 Bankruptcy. Borrower or any other Consolidated Company shall
commence a voluntary case concerning itself under the Bankruptcy Code or an
involuntary case for bankruptcy is commenced against any Consolidated Company
and the petition is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or any substantial part of the property of any Consolidated
Company; or any Consolidated Company commences proceedings of its own bankruptcy
or to be granted a suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction, whether now or
hereafter in effect, relating to any Consolidated Company; or there is commenced
against any Consolidated Company any such proceeding which remains undismissed
for a Period of 60 days; or any Consolidated Company is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or any Consolidated Company suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or any Consolidated
Company makes a general assignment for the benefit of creditors; or any
Consolidated Company shall fail to pay, or shall state that it is unable to pay,
or shall be unable to pay, its debts generally as they become due; or any
Consolidated Company shall call a meeting of its creditors with a view to
arranging a composition or adjustment of its debts; or any Consolidated Company
shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action is taken by any
Consolidated Company for the purpose of effecting any of the foregoing;
Section 9.8 ERISA. A Plan of a Consolidated Company or a Plan subject to
Title IV of ERISA of any of its ERISA Affiliates:
(a) shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan, Section 412
of the Tax Code or Section 302 of ERISA for any plan year or a waiver of
such standard is sought or granted with respect to such Plan under
applicable law, the terms of such Plan or Section 412 of the Tax Code or
Section 303 of ERISA; or
(b) is being, or has been, terminated or the subject of termination
proceedings under applicable law or the terms of such Plan; or
(c) shall require a Consolidated Company to provide security under
applicable law, the terms of such Plan, Section 401 or 412 of the Tax Code
or Section 306 or 307 of ERISA; or
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(d) results in a liability to a Consolidated Company under
applicable law, the terms of such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC or a Plan that would have a Materially Adverse Effect;
Section 9.9 Money Judgment. A judgment or order for the payment of money
in excess of $5,000,000 or otherwise having a Materially Adverse Effect shall be
rendered against Borrower or any other Consolidated Company and such judgment or
order shall continue unsatisfied (in the case of a money judgment) and in effect
for a period of 30 days during which execution shall not be effectively stayed
or deferred (whether by action of a court, by Agreement or otherwise);
Section 9.10 Ownership of Credit Parties. If Borrower shall at any time
fail to own and control the required percentage of the voting stock of any
Guarantor, either directly or indirectly through a wholly-owned Subsidiary of
Borrower;
Section 9.11 Change in Control of Borrower.
(a) Any "person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Exchange Act) shall become the "beneficial owner(s)"
(as defined in said Rule 13d-3) of more than forty percent (40%) of the
shares of the outstanding common stock of Borrower entitled to vote for
members of Borrower's board of directors; or
(b) any event or condition shall occur or exist which, pursuant to
the terms of any change in control provision, requires or permits the
holder(s) of Indebtedness of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or repaid, in
whole or in part, or the maturity of such Indebtedness to be accelerated
in any respect;
Section 9.12 Default Under Other Credit Documents. There shall exist or
occur any "Event of Default" as provided under the terms of any other Credit
Document, or any Credit Document ceases to be in full force and effect or the
validity or enforceability thereof is disaffirmed by or on behalf of Borrower or
any other Credit Party, or any Credit Party seeks to cancel or terminate any
Credit Documents or to limit its liability thereunder, or at any time it is or
becomes unlawful for Borrower or any other Credit Party to perform or comply
with its obligations under any Credit Document, or the obligations of Borrower
or any other
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Credit Party under any Credit Document are not or cease to be legal, valid and
binding on Borrower or any such Credit Party;
Section 9.13 Attachments. An attachment or similar action shall be made on
or taken against any of the assets of any Consolidated Company and is not
removed, suspended or enjoined within 30 days of the same being made or any
suspension or injunction being lifted;
Section 9.14 Default Under the Lease. Any default shall occur under the
Lease or the other documents executed in connection therewith and remain uncured
beyond any applicable grace period; or
Section 9.15 First Quarter Consolidated EBIT. The Consolidated EBIT for
the Borrower's fiscal quarter ending March 31, 1998 is less than $1,500,000.00;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent may, and upon the written or
telex request of the Required Lenders, shall, by written notice to Borrower,
take any or all of the following actions, without prejudice to the rights of the
Administrative Agent, any Lender or the holder of any Note to enforce its claims
against Borrower or any other Credit Party: (i) declare all Commitments
terminated, whereupon the pro rata Commitments of each Lender shall terminate
immediately and any Commitment Fee shall forthwith become due and payable
without any other notice of any kind; and (ii) declare the principal of and any
accrued interest on the Loans, and all other obligations owing hereunder, to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
Borrower; provided, that, if an Event of Default specified in Section 9.7 shall
occur, the result which would occur upon the giving of written notice by the
Administrative Agent to any Credit Party, as specified in clauses (i) and (ii)
above, shall occur automatically without the giving of any such notice.
ARTICLE X
THE AGENTS
Section 10.1 Appointment of Agents. Each Lender hereby designates SunTrust
Bank, Central Florida, National Association as Administrative Agent
("Administrative Agent") to administer all matters concerning the Loans and to
act as herein specified and the Bank of Nova Scotia as Syndication Agent
("Syndication Agent"). Each Lender hereby irrevocably authorizes, and each
holder of any Note by the acceptance of a Note shall be deemed irrevocably to
authorize, the Administrative Agent to take such
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actions on its behalf under the provisions of this Agreement, the other Credit
Documents, and all other instruments and agreements referred to herein or
therein, and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder by or through their agents or employees. The provisions of this
Section 10.1 are solely for the benefit of the Administrative Agent, and
Borrower and the other Consolidated Companies shall not have any rights as third
party beneficiaries of any of the provisions hereof. In performing its functions
and duties under this Agreement, the Administrative Agent shall act solely as
agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligations towards or relationship of agency or trust with or for the
Borrower and the other Consolidated Companies.
Section 10.2 Nature of Duties of Administrative Agent. The Agent shall
have no duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. Neither the Administrative Agent nor
any of its respective officers, directors, employees or agents shall be liable
for any action taken or omitted by it as such hereunder or in connection
herewith, unless caused by its gross negligence or willful misconduct. The
duties of the Administrative Agent shall be ministerial and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement a
fiduciary relationship in respect of any Lender; and nothing in this Agreement,
express or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations, in respect of this Agreement or the
other Credit Documents except as expressly set forth herein.
Section 10.3 Lack of Reliance on the Administrative Agent.
(a) Independently and without reliance upon the Administrative
Agent, each Lender, to the extent it deems appropriate, has made and shall
continue to make (i) its own independent investigation of the financial
condition and affairs of the Credit Parties in connection with the taking
or not taking of any action in connection herewith, and (ii) its own
appraisal of the creditworthiness of the Credit Parties, and, except as
expressly provided in this Agreement, the Administrative Agent shall have
no duty or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans
or at any time or times thereafter.
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(b) The Administrative Agent shall not be responsible to any Lender
for any recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness,
validity, enforceability, collectability, priority or sufficiency of this
Agreement, the Notes, the Guaranty Agreements, or any other documents
contemplated hereby or thereby, or the financial condition of the Credit
Parties, or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of
this Agreement, the Notes, the Guaranty Agreements, or the other documents
contemplated hereby or thereby, or the financial condition of the Credit
Parties, or the existence or possible existence of any Default or Event of
Default; provided, however, to the extent that the Administrative Agent
has been advised that a Lender has not received any information delivered
to the Administrative Agent pursuant to Section 7.7, the Administrative
Agent shall deliver or cause to be delivered such information to such
Lender.
Section 10.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until the Administrative Agent shall
have received instructions from the Required Lenders; and the Administrative
Agent shall not incur liability in any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders.
Section 10.5 Reliance by Agents. The Agents shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cable gram,
radiogram, order or other documentary, teletransmission or telephone message
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person. The Agents may consult with legal counsel (including
counsel for any Credit Party), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
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Section 10.6 Indemnification of Agents. To the extent the Agents is not
reimbursed and indemnified by the Credit Parties, each Lender will reimburse and
indemnify the Agents, ratably according to the respective amounts of the Loans
outstanding under all Facilities (or if no amounts are outstanding, ratably in
accordance with the Total Commitments), in either case, for and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agents in performing its duties hereunder, in any way
relating to or arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable to the Agents for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agents' gross negligence or
willful misconduct.
Section 10.7 The Administrative Agent in its Individual Capacity. With
respect to its obligation to lend under this Agreement, the Loans made by it and
the Notes issued to it, the Administrative Agent shall have the same rights and
powers hereunder as any other Lender or holder of a Note and may exercise the
same as though it were not performing the duties specified herein; and the terms
"Lenders", "Required Lenders", "holders of Notes", or any similar terms shall,
unless the context clearly otherwise indicates, include the Administrative Agent
in its individual capacity. The Administrative Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust, financial
advisory or other business with the Consolidated Companies or any affiliate of
the Consolidated Companies as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Consolidated
Companies for services in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
Section 10.8 Holders of Notes. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
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Section 10.9 Successor Administrative Agent.
(a) The Agent may resign at any time by giving written notice
thereof to the Lenders and Borrower and may be removed at any time with or
without cause by the Required Lenders; provided, however, the
Administrative Agent may not resign or be removed until a successor
Administrative Agent has been appointed and shall have accepted such
appointment. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent subject
to Borrower's prior written approval, which approval will not be
unreasonably withheld. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's
giving of notice of resignation or the Required Lenders' removal of the
retiring Administrative Agent, then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent subject
to Borrower's prior written approval, which approval will not be
unreasonably withheld, which successor Administrative Agent shall be a
bank which maintains an office in the United States, or a commercial bank
organized under the laws of the United States of America or any State
thereof, or any Affiliate of such bank, having a combined capital and
surplus of at least $100,000,000. If at any time SunTrust Bank, Central
Florida, National Association is removed as a Lender, SunTrust Bank,
Central Florida, National Association, shall simultaneously resign as
Administrative Agent.
(b) Upon the acceptance of any appointment as the Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Administrative
Agent under this Agreement.
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ARTICLE XI
MISCELLANEOUS
Section 11.1 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, telecopy or
similar teletransmission or writing) and shall be given to such party at its
address or applicable teletransmission number set forth on the signature pages
hereof, or such other address or applicable teletransmission number as such
party may hereafter specify by notice to the Agent and Borrower. Each such
notice, request or other communication shall be effective (i) if given by telex,
when such telex is transmitted to the telex number specified in this Section
11.1 and the appropriate answerback is received, (ii) if given by mail, 72 hours
after such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid, (iii) if given by telecopy, when such telecopy
is transmitted to the telecopy number specified in this Section and the
appropriate confirmation is received, or (iv) if given by any other means
(including, without limitation, by air courier), when delivered or received at
the address specified in this Section; Provided that notices to the Agent shall
not be effective until received.
Section 11.2 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the other Credit Documents, nor consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (i)
waive any of the conditions specified in Section 5.1 or Section 5.2, (ii)
increase the Commitments or other contractual obligations to Borrower under this
Agreement, (iii) reduce the principal of, or interest on, the Notes or any fees
hereunder, (iv) postpone any date fixed for the payment in respect of principal
of, or interest on, the Notes or any fees hereunder, (v) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Notes, or
the number or identity of Lenders which shall be required for the Lenders or any
of them to take any action hereunder, (vi) release any Guarantor from its
obligations under any Guaranty Agreements, (vii) modify the definition of
"Required Lenders," or (viii) modify this Section 11.2. Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required hereinabove to take such
action, affect the rights or duties of the Agent under this Agreement or under
any other Credit Document. Lenders agree to use all reasonable efforts to
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respond to a request for a waiver or consent within the time requested by the
Agent.
Section 11.3 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Agent, any Lender or any holder of a Note in exercising any right or
remedy hereunder or under any other Credit Document, and no course of dealing
between any Credit Party and the Agent, any Lender or the holder of any Note
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right or remedy hereunder or under any other Credit Document preclude any
other or further exercise thereof or the exercise of any other right or remedy
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent, any Lender or the holder of any Note would otherwise have. No notice to
or demand on any Credit Party not required hereunder or under any other Credit
Document in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Administrative Agent, the Lenders or the holder of any Note to any
other or further action in any circumstances without notice or demand.
Section 11.4 Payment of Expenses, Etc. Borrower shall:
(a) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the
Agents in the administration (both before and after the execution hereof
and including reasonable expenses actually incurred relating to advice of
counsel as to the rights and duties of the Agents and the Lenders with
respect thereto) of, and in connection with the preparation, execution and
delivery of, preservation of rights under, enforcement of, and, after a
Default or Event of Default, refinancing, renegotiation or restructuring
of, this Agreement and the other Credit Documents and the documents and
instruments referred to therein, and any amendment, waiver or consent
relating thereto (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel for the Administrative
Agent), and in the case of enforcement of this Agreement or any Credit
Document after an Event of Default, all such reasonable, out-of-pocket
costs and expenses (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel in the amount as provided
in the Fee Letter, including without limitation in-house attorneys' fees),
for any of the Lenders;
(b) subject, in the case of certain Taxes, to the applicable
provisions of Section 4.7(b), pay and hold
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each of the Lenders harmless from and against any and all present and
future stamp, documentary, intangible and other similar Taxes with respect
to this Agreement, the Notes and any other Credit Documents, any
collateral described therein, or any payments due thereunder, and save
each Lender harmless from and against any and all liabilities with respect
to or resulting from any delay or omission to pay such Taxes; and
(c) indemnify the Agents and each Lender, and their respective
officers, directors, employees, representatives and agents from, and hold
each of them harmless against, any and all costs, losses, liabilities,
claims, damages or expenses incurred by any of them (whether or not any of
them is designated a party thereto) (an "Indemnitee") arising out of or by
reason of any investigation, litigation or other proceeding related to any
actual or proposed use of the proceeds of any of the Loans or any Credit
Party's entering into and performing of the Agreement, the Notes, or the
other Credit Documents, including, without limitation, the reasonable fees
actually incurred and disbursements of counsel (including foreign counsel)
incurred in connection with any such investigation, litigation or other
proceeding; provided, however, Borrower shall not be obligated to
indemnify any Indemnitee for any of the foregoing arising out of such
Indemnitee's gross negligence or willful misconduct;
(d) without limiting the indemnities set forth in subsection (c)
above, indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the cost of
investigating or defending any claim and whether or not such claim is
ultimately defeated, and whether such claim arose before, during or after
any Credit Party's ownership, operation, possession or control of its
business, property or facilities or before, on or after the date hereof,
and including also any amounts paid incidental to any compromise or
settlement by the Indemnitee or Indemnitees to the holders of any such
claim), lawsuits, liabilities, obligations, actions, judgments, suits,
disbursements, encumbrances, liens, damages (including without limitation
damages for contamination or destruction of natural resources), penalties
and fines of any kind or nature whatsoever (including without limitation
in all cases the reasonable fees
92
actually incurred, other charges and disbursements of counsel in
connection therewith) incurred, suffered or sustained by that Indemnitee
based upon, arising under or relating to Environmental Laws based on,
arising out of or relating to in whole or in part, the existence or
exercise of any rights or remedies by any Indemnitee under this Agreement,
any other Credit Document or any related documents (but excluding those
incurred, suffered or sustained by any Indemnitee as a result of any
action taken by or on behalf of the Lenders with respect to any Subsidiary
of Borrower (or the assets thereof) owned or controlled by the Lenders);
provided, however, Borrower shall not be obligated to indemnify any
Indemnitee for any of the foregoing arising out of such Indemnitee's gross
negligence or wilful misconduct.
If and to the extent that the obligations of Borrower under this Section 11.4
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
Section 11.5 Right of Setoff. In addition to and not in limitation of all
rights of offset that any Lender or other holder of a Note may have under
applicable law, each Lender or other holder of a Note shall, upon the occurrence
of any Event of Default and whether or not such Lender or such holder has made
any demand or any Credit Party's obligations are matured, have the right to
appropriate and apply to the payment of any Credit Party's obligations hereunder
and under the other Credit Documents, all deposits of any Credit Party (general
or special, time or demand, provisional or final) then or thereafter held by and
other indebtedness or property then or thereafter owing by such Lender or other
holder to any Credit Party, whether or not related to this Agreement or any
transaction hereunder. Each Lender shall promptly notify Borrower of any offset
hereunder.
Section 11.6 Benefit of Agreement.
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto, provided that Borrower may not assign or transfer any of its
interest hereunder without the prior written consent of all the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of
such Lender.
93
(c) Each Lender may assign all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of any of
its Commitments and the Loans at the time owing to it and the Notes held
by it) to any Eligible Assignee; provided, however, that (i) the
Administrative Agent and Borrower must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld or
delayed) unless such assignment is to an Affiliate of the assigning
Lender, (ii) the amount of the Commitments, in the case of the Revolving
Loan Commitments , or Loans, in the case of assignment of Loans, of the
assigning Lender subject to each assignment (determined as of the date the
assignment and acceptance with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $10,000,000, (iii) the
parties to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a Note or
Notes subject to such assignment and a processing and recordation fee of
$3,500 payable by the Assignee, provided, however, said fees shall not be
applicable in connection with any assignments by any of the Agents in
their capacity as Lenders. Borrower shall not be responsible for such
processing and recordation fee or any costs or expenses incurred by any
Lender or the Administrative Agent in connection with such assignment.
From and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business Days
after the execution thereof, the assignee thereunder shall be a party
hereto and to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this
Agreement. Within five (5) Business Days after receipt of the notice and
the Assignment and Acceptance, Borrower, at its own expense, shall execute
and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, a new Note or Notes to the order of such assignee in a
principal amount equal to the applicable Commitments or Loans assumed by
it pursuant to such Assignment and Acceptance and new Note or Notes to the
assigning Lender in the amount of its retained Commitment or Commitments
or amount of its retained Loans. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the date of the surrendered Note
or Notes which they replace, and shall otherwise be in substantially the
form attached hereto.
94
(d) Each Lender may, without the consent of Borrower and the
Administrative Agent, sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments in the Loans
owing to it and the Notes held by it), provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) the participating bank or
other entity shall not be entitled to the benefit (except through its
selling Lender) of the cost protection provisions contained in Article IV
of this Agreement, and (iv) Borrower and the Administrative Agent and
other Lenders shall continue to deal solely and directly with each Lender
in connection with such Lender's rights and obligations under this
Agreement and the other Credit Documents, and such Lender shall retain the
sole right to enforce the obligations of Borrower relating to the Loans
and to approve any amendment, modification or waiver of any provisions of
this Agreement. Any Lender selling a participation hereunder shall provide
prompt written notice to Borrower and the Administrative Agent of the name
of such participant.
(e) Any Lender or participant may, in connection with the assignment
or participation or proposed assignment or participation, pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to Borrower or the other Consolidated
Companies furnished to such Lender by or on behalf of Borrower or any
other Consolidated Company. With respect to any disclosure of
confidential, non-public, proprietary information, such proposed assignee
or participant shall agree to use the information only for the purpose of
making any necessary credit judgments with respect to this credit facility
and not to use the information in any manner prohibited by any law,
including without limitation, the securities laws of the United States.
The proposed participant or assignee shall agree in writing, a copy of
which shall be furnished to Borrower, not to disclose any of such
information except (i) to directors, employees, auditors or counsel to
whom it is necessary to show such information, each of whom shall be
informed of the confidential nature of the information, (ii) in any
statement or testimony pursuant to a subpoena or order by any court,
governmental body or other agency asserting jurisdiction over such entity,
or as otherwise required
95
by law (provided prior notice is given to Borrower and the Administrative
Agent unless otherwise prohibited by the subpoena, order or law), and
(iii) upon the request or demand of any regulatory agency or authority
with proper jurisdiction. The proposed participant or assignee shall
further agree to return all documents or other written material and copies
thereof received from any Lender, the Administrative Agent or Borrower
relating to such confidential information unless otherwise properly
disposed of by such entity.
(f) Any Lender may at any time assign all or any portion of its
rights in this Agreement and the Notes issued to it to a Federal Reserve
Bank; provided that no such assignment shall release the Lender from any
of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.7(b) have been levied
or imposed so as to require withholdings or deductions by Borrower and
payment by Borrower of additional amounts to any Lender as a result
thereof, (ii) any Lender shall make demand for payment of any material
additional amounts as compensation for increased costs pursuant to Section
4.10 or for its reduced rate of return pursuant to Section 4.16, or (iii)
any Lender shall decline to consent to a modification or waiver of the
terms of this Agreement or the other Credit Documents requested by
Borrower, then and in such event, upon request from Borrower delivered to
such Lender and the Administrative Agent, such Lender shall assign, in
accordance with the provisions of Section 11.6(c), all of its rights and
obligations under this Agreement and the other Credit Documents to another
Lender or an Eligible Assignee selected by Borrower, in consideration for
the payment by such assignee to the Lender of the principal of, and
interest on, the outstanding Loans accrued to the date of such assignment,
and the assumption of such Lender's Total Commitment hereunder, together
with any and all other amounts owing to such Lender under any provisions
of this Agreement or the other Credit Documents accrued to the date of
such assignment.
Section 11.7 Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF FLORIDA.
96
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT,
THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE CIRCUIT COURT
OF ORANGE COUNTY, FLORIDA, OR ANY OTHER COURT OF THE STATE OF FLORIDA OR
OF THE UNITED STATES OF AMERICA FOR THE MIDDLE DISTRICT OF FLORIDA, AND,
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY IN RESPECT OF ANY DISPUTE ARISING UNDER OR
IN CONNECTION WITH THIS AGREEMENT, OR ANY OTHER CREDIT DOCUMENT OR ANY
DOCUMENT RELATED THERETO.
(c) BORROWER AND GUARANTORS IRREVOCABLY CONSENT TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO BORROWER AND/OR EACH SUCH GUARANTOR AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE
BORROWER AND THE GUARANTORS HEREBY IRREVOCABLY WAIVE ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION EITHER OF THEM MAY HAVE TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING
IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS AGREEMENT, ANY OTHER
CREDIT DOCUMENT OR ANY DOCUMENT RELATED THERETO.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS, ANY LENDER,
ANY HOLDER OF A NOTE OR ANY CREDIT PARTY TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST BORROWER IN ANY OTHER JURISDICTION.
Section 11.8 Independent Nature of Lenders' Rights. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and
each Lender shall be entitled to protect and enforce its rights pursuant to this
Agreement and its Notes, and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such purpose.
Section 11.9 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 and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
97
Section 11.10 Effectiveness; Survival.
(a) This Agreement shall become effective on the date (the
"Effective Date") on which all of the following conditions have been met:
(i) Of the parties hereto shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have
delivered the same to the Administrative Agent pursuant to Section
5.1 or, in the case of the Lenders, shall have given to the
Administrative Agent written or telex notice (actually received)
that the same has been signed and mailed to them.
(ii) The offering of the 1998 Senior Subordinated Debt Issue
shall have been successful in the manner as set forth in Section
5.1(ii) and 6.2(a) above.
(b) The obligations of Borrower under Sections 4.7(b), 4.8, 4.10,
4.12, 4.16, and 11.4 hereof shall survive for one hundred twenty (120)
days after the payment in full of the Notes after the Final Maturity Date,
provided, however, in regard to the obligation of the Borrower to pay
documentary taxes and intangible taxes on all advances under the Revolving
Loans as set forth in Section 4.1(g) above, said obligation shall extend
and remain for a period of ninety (90) days after the expiration of the
applicable statute of limitations for the payment of said intangible
taxes. All representations and warranties made herein, in the
certificates, reports, notices, and other documents delivered pursuant to
this Agreement shall survive the execution and delivery of this Agreement,
the other Credit Documents, and such other agreements and documents, the
making of the Loans hereunder, and the execution and delivery of the
Notes.
Section 11.11 Severability. In case any provision in or obligation under
this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 11.12 Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception
98
to, or be otherwise within the limitation of, another covenant, shall not avoid
the occurrence of a Default or an Event of Default if such action is taken or
condition exists.
Section 11.13 Change in Accounting Principles, Fiscal Year or Tax Laws. If
(i) any preparation of the financial statements referred to in Section 7.7
hereafter occasioned by the promulgation of rules, regulations, pronouncements
and opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accounts (or successors thereto or
agencies with similar functions) (other than changes mandated by FASB 106)
result in a material change in the method of calculation of financial covenants,
standards or terms found in this Agreement, (ii) there is any change in
Borrower's fiscal quarter or fiscal year as provided herein, or (iii) there is a
material change in federal tax laws which materially affects any of the
Consolidated Companies' ability to comply with the financial covenants,
standards or terms found in this Agreement, Borrower and the Required Lenders
agree to enter into negotiations in order to amend such provisions so as to
equitably reflect such changes with the desired result that the criteria for
evaluating any of the Consolidated Companies, financial condition shall be the
same after such changes as if such changes had not been made. Unless and until
such provisions have been so amended, the provisions of this Agreement shall
govern.
Section 11.14 Headings Descriptive; Entire Agreement. The headings of the
several sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement. This Agreement, the other Credit Documents, and the
agreements and documents required to be delivered pursuant to the terms of this
Agreement constitute the entire Agreement among the parties hereto and thereto
regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
Section 11.15 Time is of the Essence. Time is of the essence in
interpreting and performing this Agreement and all other Credit Documents.
Section 11.16 Usury. It is the intent of the parties hereto not to violate
any federal or state law, rule or regulation pertaining either to usury or to
the contracting for or charging or collecting of interest, and Borrower and
Lenders agree that, should any provision of this Agreement or of the Notes, or
any act performed hereunder or thereunder, violate any such law, rule or
regulation, then the excess of interest contracted for or charged or collected
over the maximum lawful rate of interest shall be applied to the outstanding
principal indebtedness due to Lenders by Borrower under this Agreement.
99
Section 11.17 Construction. Should any provision of this Agreement require
judicial interpretation, the parties hereto agree that the court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction
that a document is to be more strictly construed against the party who itself or
through its agents prepared the same, it being agreed that Borrower,
Administrative Agent, Lenders and their respective agents have participated in
the preparation hereof.
Section 11.18 European Monetary Union. It is hereby acknowledged that
during the term of this Agreement certain European nations may adopt a single
European currency as their lawful currency in place of certain currencies that
are available hereunder as part of the anticipated European Economic and
Monetary Union. It is hereby acknowledged and agreed that "Available Foreign
Currency", as defined herein, including United Kingdom Pounds Sterling, shall
include any such successor currency and that conversion into such successor
currency shall be made at the official rate of conversion, as determined by the
Administrative Agent, on the date on which any such Available Foreign Currency
is so replaced, and that the denomination of the original currency shall be
retained hereunder for so long as it is legally permissible. It is hereby
further acknowledged and agreed that the provisions of this Agreement relating
to Multicurrency Loans shall remain in full force and effect upon such
conversion, and that neither the introduction of a single European currency, the
replacement of an Available Foreign Currency thereby, the fixing of the official
rate of conversion, nor any economic consequences resulting therefrom shall give
rise to any right to terminate, contest, cancel, modify or renegotiate the
provisions of this Agreement.
Section 11.19 Amendment and Restatement of Initial Credit Agreement.
Effective on the Effective Date, this Agreement amends and restates in its
entirety the Initial Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in Orlando, Florida, by their duly authorized
officers as of the day and year first above written.
[THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
100
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST AND SCOTIABANK, AS AGENTS,
AND PLANET HOLLYWOOD INTERNATIONAL, INC.]
BORROWER:
PLANET HOLLYWOOD
INTERNATIONAL, INC.
By:___________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Executive Vice President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇)▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
In the case of Notices to the Borrower, copies shall be sent to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇)▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇
101
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT
BETWEEN SUNTRUST AND SCOTIABANK, AS AGENTS,
AND PLANET HOLLYWOOD INTERNATIONAL, INC.]
Signed, sealed and delivered SUNTRUST BANK, CENTRAL
in the presence of: FLORIDA, NATIONAL ASSOCIATION,
individually and as
Administrative Agent and Agent
By:___________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇,
First Vice President
Address for Notices:
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
6th Floor - SOAB
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇,
First Vice President
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Payment Office:
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
Revolving Loan Commitment: $32,500,000.00
Pro Rata Share of Revolving Loan Commitment: 50.00%
102
[SIGNATURE PAGE TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
BETWEEN SUNTRUST AND SCOTIABANK, AS AGENTS,
AND PLANET HOLLYWOOD INTERNATIONAL, INC.]
Signed, sealed and delivered THE BANK OF NOVA SCOTIA
in the presence of: Individually and as
Syndication Agent and Agent
By:___________________________
Name:_________________________
Title:________________________
Address for Notices:
Atlanta Agency, Suite 2700
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Payment Office:
Atlanta Agency, Suite 2700
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Loan Administration
Revolving Loan Commitment: $32,500,000.00
Pro Rata Share of Revolving Loan Commitment: 50.00%
103
AFFIDAVIT REGARDING EXECUTION
OF LOAN DOCUMENTS
STATE OF GEORGIA
COUNTY OF _______________
I HEREBY CERTIFY, that on this, the 25th day of March, 1998, before me, an
officer duly authorized in the State and County aforesaid to take
acknowledgements, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the Executive Fice
President of PLANET HOLLYWOOD INTERNATIONAL, INC. (the "Maker") and ▇▇▇▇▇ ▇.
▇▇▇▇▇, a First Vice President of SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION (the "Administrative Agent"), to me known to be the persons who
executed the following described loan documents and they acknowledged before me
that they executed the same in the County and State aforesaid and the date
hereof:
1. Amended and Restated Credit Agreement dated March 25, 1998 between the
Maker and SunTrust Bank, Central Florida, National Association and the Bank of
Nova Scotia.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
25th day of March, 1998.
-----------------------------------
Signature of Notary Public -
State of Georgia
-----------------------------------
Print, type or stamp commissioned
name of Notary Personally known
______ OR Produced Identification____
Type of Identification
Produced:__________________________
104
AFFIDAVIT REGARDING OUT-OF-STATE
DELIVERY OF LOAN DOCUMENTS
STATE OF GEORGIA
COUNTY OF _______________
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇,being first duly sworn upon my oath, depose and say:
1. That I am a First Vice President of SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION (the "Administrative Agent").
2. That on the 25th day of March, 1998, I accepted delivery of the
following described loan documents:
(a) Amended and Restated Credit Agreement dated March 25, 1998
between the Maker and SunTrust Bank, Central Florida, National Association
and The Bank of Nova Scotia.
3. That the execution of the loan documents took place in the City of
Atlanta in the State of Georgia,
4. That I accepted delivery of the loan documents on behalf of SunTrust
Bank in Atlanta, Georgia.
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇,
First Vice President
Sworn and subscribed before me this 25th day of March, 1998.
-----------------------------------
Signature of Notary Public -
State of Georgia
-----------------------------------
Print, type or stamp commissioned
name of Notary Personally known
______ OR Produced Identification____
Type of Identification
Produced:__________________________
105
EXHIBIT "A"
Planet Hollywood (Aspen), Inc.
Planet Hollywood (Atlantic City), Inc.
Planet Hollywood (Chefs), Inc. [f/k/a Planet Hollywood
(Nashville), Inc.]
Planet Hollywood (Chicago), Inc.
Planet Hollywood (Honolulu), Inc.
Planet Hollywood (London), Inc. [f/k/a Planet Hollywood
(Seattle), Inc.]
Planet Hollywood (LP), Inc.
Planet Hollywood (Mail Order), Inc. [f/k/a Planet Hollywood
(Denver), Inc.]
Planet Hollywood (Maui), Inc.
Planet Hollywood (New Orleans), Inc.
Planet Hollywood (New York City), Inc.
Planet Hollywood (Orlando), Inc.
Planet Hollywood (Paris), Inc.
Planet Hollywood (Phoenix), Inc.
Planet Hollywood (Region I), Inc. [f/k/a Planet Hollywood
(Miami), Inc.]
Planet Hollywood (Region II), Inc. [f/k/a Planet Hollywood
(Atlanta), Inc.]
Planet Hollywood (Region III), Inc., [f/k/a Planet Hollywood
(Washington), Inc.]
Planet Hollywood (Region IV), Inc.
Planet Hollywood (Region VI), Inc.
Planet Hollywood (Region VII), Inc. [f/k/a Planet Hollywood (San
Diego), Inc.; successor by merger to Planet Hollywood (▇▇▇▇▇▇▇
Hills), Inc.]
Planet Hollywood (Tel Aviv), Inc.
Planet Hollywood (Theatres), Inc.
Planet Hollywood (Warehouse), Inc.
Planet Hospitality Holdings, Inc.
All Star Cafe International, Inc.
All Star Cafe (New York), Inc.
Authentic All Star, Inc.
Official All Star Cafe, Inc.
Corner Enterprises, Inc.
EBCO Management, Inc.
106
SCHEDULE OF EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Subsidiary Guaranty Agreement
Exhibit C Form of Contribution Agreement
Exhibit D Form of Revolving Credit Note
Exhibit E Form of Pledge Agreement
Exhibit F Form of Closing Certificate
Exhibit G Form of Opinion of Borrower's Counsel
Exhibit H Form of Joinder to this Agreement
Exhibit I Form of Supplement to Subsidiary
Guaranty Agreement
Exhibit J Form of Supplement to Contribution
Agreement
Exhibit K Description of Headquarters Real
Property
Exhibit L Form of Security Agreement
EXHIBIT "A"
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to that certain Amended and Restated Revolving Credit
Agreement dated as of March _____, 1998 (as may be amended, modified or
supplemented to the date hereof, the "Credit Agreement"), among PLANET HOLLYWOOD
INTERNATIONAL, INC., as Borrower, the lenders listed on the signature pages
thereof ("Lenders"), and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
as Administrative Agent. Terms defined in the Credit Agreement are used herein
with the same meanings.
1. Assignor (as identified below) hereby sells and assigns to Assignee
(as identified below), without recourse against Assignor, and
Assignee hereby purchases and assumes from Assignor, without
recourse against Assignor, effective as of the Effective Date
hereinafter set forth, the interests set forth below (collectively,
the "Assigned Interest"), in Assignor's rights and obligations under
the Credit Agreement, including without limitation, the below
specified Revolving Loan Commitment and/or Term Loan Commitment of
Assignor on the Effective Date, and the below specified Revolving
Loans and/or Term Loans owing to Assignor that are outstanding on
the Effective Date, together with unpaid interest accrued on the
assigned Loans to the Effective Date, and the amount (if any) set
forth below of the fees referred to in Section 2.8 and Section 4.5
of the Credit Agreement accrued to the Effective Date for the
account of Assignor. From and after the Effective Date, (a) Assignee
shall be a party to and be bound by the provisions of the Credit
Agreement, and to the extent of the interest assigned by this
Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and under the Credit Documents (except for any
such obligations that are due and payable on, or that become due and
payable before, the effectiveness of this Assignment and
Acceptance), and (b) Assignor shall, to the extent of its interest
assigned by this Assignment and Acceptance and otherwise to the
extent set forth in the foregoing clause (a), relinquish its rights
and be released from its obligations under the Credit Agreement and
the Credit Documents.
2. Each of the Assignor and the Assignee represents, warrants and
agrees to and with the other and the Agent as follows: (a) Assignor
warrants that it is the legal and beneficial owner of the interest
being assigned hereby free and clear of any adverse claim and that
its
2
Revolving Loan Commitment and/or Term Loan Commitment and the
outstanding balances of its Loans under such Facility(ies), without
giving effect to assignments thereof which have not become
effective, are as set forth below, (b) except as set forth in (a),
Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement,
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other Credit
Document or any instrument or documents furnished pursuant thereto,
or the financial condition of the Borrower or any other Credit Party
of any of its obligations under the Credit Documents; (c) the
Assignee represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance; (d) Assignee confirms
that it has received a copy of the Credit Agreement, such financial
statements and other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (e) Assignee agrees that it
will perform its obligations as a Lender under the Credit Documents
as required by the terms thereof; and (f) Assignee appoints and
authorizes the Agent to take such actions as agent on its behalf and
to exercise such powers under the Credit Agreement and the other
Credit Documents as are delegated to the Agent by the terms of the
Credit Documents and as are reasonably incidental thereto.
3. This Assignment and Acceptance is being delivered to the Agent,
together with (a) the Notes evidencing the Loans included in the
Assigned Interest, and (b) a copy of the Assignment and Acceptance
after it is duly executed by each of the Assignee and the Assignor.
4. This Assignment shall be governed by and construed in accordance
with the laws of the State of Florida, without regard to the
conflict of laws principles thereof.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address (Including Telex and Telecopy Numbers) for
3
Notices:
Assignee's Lending Office:
Effective Date of Assignment (may not be fewer than five (5) Business Days after
the date of the Assignment):
LOANS ASSIGNED:
Percentage of
Principal Amount Commitment
Facility Assigned Assigned
-------- -------- --------
Revolving Loan $ ______%
Facility
Immediately after giving effect to this Assignment:
The aggregate amount of the Revolving Loan Commitment of Assignor is
$_____________________.
The aggregate amount of the Revolving Loan Commitment of Assignee is
$_____________________.
[NAME OF ASSIGNOR]
By:_____________________________
Name:
Title:
As Assignor
[NAME OF ASSIGNEE]
By:_____________________________
Name:
Title:
As Assignee
4
CONSENTED TO:
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION
As Administrative Agent
By:_____________________________________
Name:________________________________
Title:_______________________________
PLANET HOLLYWOOD INTERNATIONAL, INC.
As Borrower
By:_____________________________________
Name:________________________________
Title:_______________________________
5
EXHIBIT "B"
FORM OF
SUBSIDIARY GUARANTY AGREEMENT
This SUBSIDIARY GUARANTY AGREEMENT (this "Guaranty"), dated as of March
_____, 1998, made by the entities listed on Exhibit "A" attached hereto, each of
which is a corporation organized and existing in the State set forth in Exhibit
"A" (the foregoing corporations individually a "Guarantor" and collectively the
"Guarantors"), in favor of SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
a national banking association, in its capacity as Administrative Agent for
Lenders at any time parties to the Credit Agreement (as hereinafter defined)
(the "Agent") and each assignee thereof becoming a "Lender" as provided therein
(the "Lenders"; the Lenders and the Agent being individually referred to herein
as a "Guaranteed Party" and collectively referred to herein as the "Guaranteed
Parties");
W I T N E S S E T H:
WHEREAS, PLANET HOLLYWOOD INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), the Lenders and the Agent have entered into that certain Amended
and Restated Revolving Credit Agreement dated as of March _____, 1998 (as the
same may hereafter be amended, restated, supplemented or otherwise modified from
time to time, and including all schedules, riders, and supplements thereto, the
"Credit Agreement"; terms defined therein and not otherwise defined herein being
used herein as therein defined);
WHEREAS, the Borrower owns, directly or indirectly, all of the outstanding
capital stock of each of the Guarantors;
WHEREAS, the Borrower and Guarantors share an identity of interest as
members of a consolidated group of companies engaged in substantially similar
businesses with the Borrower providing certain centralized financial, accounting
and management services to each of the Guarantors by virtue of intercompany
advances and loans such that financial accommodations to the Borrower under the
Credit Agreement shall inure to the direct and material benefit of each of the
Guarantors; and
WHEREAS, consummation of the transactions pursuant to the Credit Agreement
will facilitate expansion and enhance the overall financial strength and
stability of the Borrower's entire corporate group, including the Guarantors;
and
1
WHEREAS, it is a condition precedent to the Lender's obligations to enter
into the Credit Agreement and to make extensions of credit thereunder that the
Guarantors execute and deliver this Guaranty, and the Guarantors desire to
execute and deliver this Guaranty to satisfy such condition precedent;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to enter into and perform their obligations under the Credit
Agreement, the Guarantors hereby jointly and severally agree as follows:
SECTION 1. Guaranty. The Guarantors hereby jointly and severally,
irrevocably, absolutely and unconditionally, guarantee the punctual and full
payment when due, whether at stated maturity, by acceleration or otherwise, of
all Loans and all other Obligations owing by the Borrower to the Lenders and the
Agent, or any of them, jointly or severally under the Credit Agreement, the
Notes and the other Credit Documents, including all renewals, extensions,
modifications and refinancings thereof, now or hereafter owing, whether for
principal, interest, fees, expenses or otherwise, and any and all reasonable
out-of-pocket expenses (including reasonable attorneys' fees actually incurred
and expenses, whether suit be brought or not, including reasonable attorneys'
fees, costs and expenses if appeal is taken) incurred by the Agent in enforcing
any rights under this Guaranty (collectively, the "Guaranteed Obligations"),
including without limitation, all interest which, but for the filing of a
petition in bankruptcy with respect to the Borrower, would accrue on any
principal portion of the Guaranteed Obligations. Any and all payments by the
Guarantors hereunder shall be made free and clear of and without deduction for
any set-off, counterclaim, or withholding so that, in each case, each Guaranteed
Party will receive, after giving effect to any Taxes (as such term is defined in
the Credit Agreement, but excluding Taxes imposed on overall net income of the
Guaranteed Party to the same extent as excluded pursuant to the Credit
Agreement), the full amount that it would otherwise be entitled to receive with
respect to the Guaranteed Obligations (but without duplication of amounts for
Taxes already included in the Guaranteed Obligations). The Guarantors
acknowledge and agree that this is a guarantee of payment when due, and not of
collection, and that this Guaranty may be enforced up to the full amount of the
Guaranteed Obligations without proceeding against the Borrower, against any
security for the Guaranteed Obligations, against any other Guarantor or under
any other guaranty covering any portion of the Guaranteed Obligations.
SECTION 2. Guaranty Absolute. The Guarantors guarantee that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Credit
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Guaranteed
Party with respect thereto. The liability of each
2
Guarantor under this Guaranty shall be primary, absolute and unconditional in
accordance with its terms and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever, including,
without limitation, the following (whether or not such Guarantor consents
thereto or has notice thereof):
(a) any change in the time, place or manner of payment of, the amount of
or in any other term of, all or any of the Guaranteed Obligations, any
waiver, indulgence, renewal, extension, amendment or modification of or
addition, consent or supplement to or deletion from or any other action or
inaction under or in respect of the Credit Agreement, the other Credit
Documents, or any other documents, instruments or agreements relating to
the Guaranteed Obligations or any other instrument or agreement referred
to therein or any assignment or transfer of any thereof;
(b) any lack of validity or enforceability of the Credit Agreement, the
other Credit Documents, or any other document, instrument or agreement
referred to therein or any assignment or transfer of any thereof;
(c) any furnishing to the Guaranteed Parties of any additional security
for the Guaranteed Obligations, or any sale, exchange, release or
surrender of, or realization on, any security for the Guaranteed
Obligations;
(d) any release, adjustment, settlement or compromise of any of the
Guaranteed Obligations, any security therefor, or any liability of any
other party with respect to the Guaranteed Obligations, or any
subordination of the payment of the Guaranteed Obligations to the payment
of any other liability of the Borrower;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to any other
Guarantor or the Borrower, or any action taken with respect to this
Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(f) any non-perfection of any security interest or lien on any collateral,
or any amendment or waiver of or consent to departure from any guaranty or
security, for all or any of the Guaranteed Obligations;
(g) any application of sums paid by the Borrower or any other Person with
respect to the liabilities of the
3
Borrower to the Guaranteed Parties, regardless of what liabilities of the
Borrower remain unpaid;
(h) any act or failure to act by any Guaranteed Party which may adversely
affect a Guarantor's subrogation rights, if any, against the Borrower to
recover payments made under this Guaranty; and
(i) any other circumstance which might otherwise constitute a defense
available to, or a discharge or release of, any Guarantor.
If claim is ever made upon any Guaranteed Party for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guaranteed
Obligations, and any Guaranteed Party repays all or part of said amount by
reason of (a) any judgment, decree or order of any court or administrative body
having jurisdiction over the Guaranteed Party or any of its property, or (b) any
settlement or compromise of any such claim effected by the Guaranteed Party with
any such claimant (including the Borrower or a trustee in bankruptcy for the
Borrower), then and in such event the Guarantors agree that any such judgment,
decree, order, settlement or compromise shall be binding on it, notwithstanding
any revocation hereof or the cancellation of the Credit Agreement, the other
Credit Documents, or any other instrument evidencing any liability of the
Borrower, and the Guarantors shall be and remain liable to the Guaranteed Party
for the amounts so repaid or recovered to the same extent as if such amount had
never originally been paid to the Guaranteed Party.
SECTION 3. Waiver. The Guarantors hereby waive notice of acceptance of
this Guaranty, notice of any liability to which it may apply, and further waive
presentment, demand for payment, protest, notice of dishonor or nonpayment of
any such liabilities, suit or taking of other action by the Guaranteed Parties
against, and any other notice to, the Borrower or any other party liable with
respect to the Guaranteed Obligations (including the Guarantors or any other
Person executing a guaranty of the obligations of the Borrower) and all other
defenses, offsets and counterclaims which any Guarantor may at any time have to
any claim of any Guaranteed Party against the Borrower.
SECTION 4. Waiver of Subrogation. No Guarantor will exercise any rights
against the Borrower which it may acquire by way of subrogation or contribution,
by any payment made hereunder or otherwise. Each Guarantor hereby expressly
waives any claim, right or remedy which such Guarantor may now have or hereafter
acquire against the Borrower that arises hereunder and/or from the performance
by any Guarantor hereunder, including, without limitation, any claim, right or
remedy of the Guaranteed Parties against the Borrower or any security which the
Guaranteed Parties
4
now has or hereafter acquires, whether or not such claim, right or remedy arises
in equity, under contract, by statute, under color of law or otherwise.
SECTION 5. Severability. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 6. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by a Guarantor therefrom shall in any
event be effective unless the same shall be in writing executed by the Agent.
SECTION 7. Notices. All notices and other communications provided for
hereunder shall be given in the manner specified in the Credit Agreement (i) in
the case of the Agent, at the address specified for the Agent in the Credit
Agreement, and (ii) in the case of the Guarantors, at the respective addresses
specified for such Guarantors in this Guaranty.
SECTION 8. No Waiver: Remedies. No failure on the part of the Agent or
other Guaranteed Parties to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. No notice to or demand on any Guarantor in
any case shall entitle such Guarantor to any other further notice or demand in
any similar or other circumstances or constitute a waiver of the rights of the
Agent or other Guaranteed Parties to any other or further action in any
circumstances without notice or demand. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9. Right Of Set Off. In addition to and not in limitation of all
rights of offset that the Agent or other Guaranteed Parties may have under
applicable law, the Agent or other Guaranteed Parties shall, upon the occurrence
of any Event of Default and whether or not the Agent or other Guaranteed Parties
have made any demand or the Guaranteed Obligations are matured, have the right
to appropriate and apply to the payment of the Guaranteed Obligations, all
deposits of any Guarantor (general or special, time or demand, provisional or
final) then or thereafter held by and other indebtedness or property then or
thereafter owing by the Agent or other Guaranteed Parties to any Guarantor,
whether or not related to this Guaranty or any transaction hereunder. The
Guaranteed Parties shall promptly notify the relevant Guarantor of any offset
hereunder.
5
SECTION 10. Continuing Guaranty; Binding Effect; Inurement. This Guaranty
is a continuing guaranty and shall (i) remain in full force and effect until
payment in full of the Guaranteed Obligations and all other amounts payable
under this Guaranty and the termination of the Total Commitments, (ii) be
binding upon each Guarantor, its successors and assigns, and (iii) inure to the
benefit of and be enforceable by the Agent, its successors, transferees and
assigns, for the benefit of the Guaranteed Parties.
SECTION 11. Governing Law; Submission To Jurisdiction; Full Faith and
Credit; Waiver of Jury Trial.
(a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE
OF FLORIDA (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR
OTHERWISE RELATED HERETO MAY BE BROUGHT IN THE CIRCUIT COURT OF ORANGE COUNTY OF
THE STATE OF FLORIDA OR ANY OTHER COURT OF THE STATE OF FLORIDA OR OF THE UNITED
STATES OF AMERICA FOR THE MIDDLE DISTRICT OF FLORIDA, AND, BY EXECUTION AND
DELIVERY OF THIS GUARANTY, EACH GUARANTOR HEREBY CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE AFORESAID COURTS SOLELY FOR
THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE RIGHTS OF THE AGENT AND OTHER
GUARANTEED PARTIES WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT RELATED HERETO.
EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS
GUARANTY OR ANY DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF ANY LENDER OR THE AGENT TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST ANY GUARANTOR IN ANY OTHER JURISDICTION.
(c) TO THE EXTENT THAT ANY GUARANTEED PARTY OBTAINS ANY JUDGMENT AGAINST
ANY GUARANTOR UNDER THIS GUARANTY, THE GUARANTORS DO HEREBY AGREE THAT SUCH
JUDGMENT SHALL BE ENTITLED TO "FULL FAITH AND CREDIT" WITH THE SAME FORCE AND
EFFECT AS IF SUCH JUDGMENT WAS RENDERED AGAINST SUCH GUARANTOR BY A COURT OR
OTHER TRIBUNAL LOCATED IN THE DOMICILE OF SUCH GUARANTOR, IF DIFFERENT FROM THAT
IN WHICH SUCH JUDGMENT IS RENDERED. THE GUARANTORS HEREBY AGREE TO THE VALIDITY
AND ENFORCEABILITY OF ANY SUCH JUDGMENT AND SHALL NOT SEEK TO CHALLENGE OR "GO
BEHIND" THE FACE OF SUCH JUDGMENT.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ALL RIGHT OF TRIAL
BY JURY IN ANY ACTION,
6
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR
ANY OTHER CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR
THEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE GUARANTEED PARTIES
TO EXTEND CREDIT TO OR OTHERWISE BECOME OR REMAIN A CREDITOR OF THE BORROWER.
FURTHER, GUARANTORS HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF THE
GUARANTEED PARTIES NOR ANY COUNSEL FOR THE GUARANTEED PARTIES HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE GUARANTEED PARTIES WOULD NOT, IN THE EVENT OF
SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT OF JURY TRIAL PROVISION.
NO REPRESENTATIVE OR AGENT OF THE GUARANTEED PARTIES NOR COUNSEL FOR THE
GUARANTEED PARTIES HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS
PROVISION.
SECTION 12. Subordination Of the Borrower's Obligations To the Guarantors.
As an independent covenant, each Guarantor hereby expressly covenants and agrees
for the benefit of the Agent and other Guaranteed Parties that all obligations
and liabilities of the Borrower to such Guarantor of whatsoever description
including, without limitation, all intercompany receivables of such Guarantor
from the Borrower ("Junior Claims") shall be subordinate and junior in right of
payment to all obligations of the Borrower to the Agent and other Guaranteed
Parties under the terms of the Credit Agreement and the other Credit Documents
("Senior Claims").
If an Event of Default shall occur, then, unless and until such Event of
Default shall have been cured, waived, or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities by set-off or otherwise)
shall be made by the Borrower to any Guarantor on account of or in any manner in
respect of any Junior Claim except such payments and distributions the proceeds
of which shall be applied to the payment of Senior Claims.
In the event of a Proceeding (as hereinafter defined), all Senior Claims
shall first be paid in full before any direct or indirect payment or
distribution (in cash, property, securities by setoff or otherwise) shall be
made to any Guarantor on account of or in any manner in respect of any Junior
Claim except such payments and distributions the proceeds of which shall be
applied to the payment of Senior Claims. For the purposes of the previous
sentence, "Proceeding" means the Borrower or any Guarantor shall commence a
voluntary case concerning itself under the Bankruptcy Code or any other
applicable bankruptcy laws; or any involuntary case is commenced against the
Borrower or any Guarantor; or a custodian (as defined in the Bankruptcy Code or
any other applicable bankruptcy laws) is appointed for, or takes charge of, all
or any substantial part of the property of the Borrower or any Guarantor, or the
Borrower or any Guarantor commences any other proceedings under any
reorganization arrangement, adjustment of debt, relief of debtor, dissolution,
insolvency or liquidation or similar law of any
7
jurisdiction whether now or hereafter in effect relating to the Borrower or any
Guarantor, or any such proceeding is commenced against the Borrower or any
Guarantor, or the Borrower or any Guarantor is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any Guarantor suffers any appointment
of any custodian or the like for it or any substantial part of its property; or
the Borrower or any Guarantor makes a general assignment for the benefit of
creditors; or the Borrower or any Guarantor shall fail to pay, or shall state
that it is unable to pay, or shall be unable to pay, its debts generally as they
become due; or the Borrower or any Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts; or
the Borrower or any Guarantor shall by any act or failure to act indicate its
consent to, approval of or acquiescence in any of the foregoing; or any
corporate action shall be taken by the Borrower or any Guarantor for the purpose
of effecting any of the foregoing.
In the event any direct or indirect payment or distribution is made to a
Guarantor in contravention of this Section 12, such payment or distribution
shall be deemed received in trust for the benefit of the Agent and other
Guaranteed Parties and shall be immediately paid over to the Agent for
application against the Guaranteed Obligations in accordance with the terms of
the Credit Agreement.
Each Guarantor agrees to execute such additional documents as the Agent
may reasonably request to evidence the subordination provided for in this
Section 12.
SECTION 13. Judgment Currency.
(a) The Guarantors' obligations hereunder to make payments in a particular
currency (the "Obligation Currency") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
currency other than the Obligation Currency, except to the extent that such
tender or recovery results in the effective receipt by the Guaranteed Parties of
the full amount of the Obligation Currency expressed to be payable under this
Guaranty or the Credit Agreement. If for the purpose of obtaining or enforcing
judgment against any Guarantor in any court or in any jurisdiction, it becomes
necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the "Judgment
Currency") an amount due in the Obligation Currency, the conversion shall be
made at the currency equivalent determined, in each case, as on the day
immediately preceding the day on which the judgment is given (such Business Day
being hereafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange
8
prevailing between the Judgment Currency Conversion Date and the date of actual
payment of the amount due, the Guarantors covenant and agree to pay, or cause to
be paid, such additional amounts, if any (but in any event not a lesser amount),
as may be necessary to ensure that the amount paid in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the currency equivalent for this Section,
such amounts shall include any premium and costs payable in connection with the
purchase of the Obligation Currency.
(d) If the Obligation Currency is U.S. Dollars, the currency equivalent
shall be the Dollar Equivalent.
SECTION 14. Automatic Acceleration in Certain Events. Upon the occurrence
of an Event of Default specified in Article IX of the Credit Agreement, all
Guaranteed Obligations shall automatically become immediately due and payable by
the Guarantors, without notice or other action on the part of the Agent or other
Guaranteed Parties, and regardless of whether payment of the Guaranteed
Obligations by the Borrower has then been accelerated. In addition, if any event
of the types described in Article IX of the Credit Agreement should occur with
respect to any Guarantor, then the Guaranteed Obligations shall automatically
become immediately due and payable by such Guarantor, without notice or other
action on the part of the Agent or other Guaranteed Parties, and regardless of
whether payment of the Guaranteed Obligations by the Borrower has then been
accelerated.
SECTION 15. Savings Clause.
(a) It is the intent of each Guarantor and the Guaranteed Parties that
each Guarantor's maximum obligations hereunder shall be, but not in excess of:
(i) in a case or proceeding commenced by or against such Guarantor
under the Bankruptcy Code on or within one year from the date on which any
of the Guaranteed Obligations are incurred, the maximum amount which would
not otherwise cause the Guaranteed Obligations (or any other obligations
of such Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against such Guarantor under (A) Section 548 of the
Bankruptcy Code or (B) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or
9
(ii) in a case or proceeding commenced by or against such Guarantor
under the Bankruptcy Code subsequent to one year from the date on which
any of the Guaranteed Obligations are incurred, the maximum amount which
would not otherwise cause the Guaranteed Obligations (or any other
obligations of the Guarantor to the Guaranteed Parties) to be avoidable or
unenforceable against such Guarantor under any state fraudulent transfer
or fraudulent conveyance act or statute applied in any such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such Guarantor
under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws), the maximum amount which would not otherwise
cause the Guaranteed Obligations (or any other obligations of such
Guarantor to the Guaranteed Parties) to be avoidable or unenforceable
against such Guarantor under such law, statute or regulation including,
without limitation, any state fraudulent transfer or fraudulent conveyance
act or statute applied in any such case or proceeding.
(The substantive laws under which the possible avoidance or unenforceability of
the Guaranteed Obligations (or any other obligations of such Guarantor to the
Guaranteed Parties) shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions").
(b) To the end set forth in Section 15(a), but only to the extent that the
Guaranteed Obligations would otherwise be subject to avoidance under the
Avoidance Provisions if such Guarantor is not deemed to have received valuable
consideration, fair value or reasonably equivalent value for the Guaranteed
Obligations, or if the Guaranteed Obligations would render the Guarantor
insolvent, or leave the Guarantor with an unreasonably small capital to conduct
its business, or cause the Guarantor to have incurred debts (or to have intended
to have incurred debts) beyond its ability to pay such debts as they mature, in
each case as of the time any of the Guaranteed Obligations are deemed to have
been incurred under the Avoidance Provisions and after giving effect to
contribution as among Guarantors, the maximum Guaranteed obligations for which
such Guarantor shall be liable hereunder shall be reduced to that amount which,
after giving effect thereto, would not cause the Guaranteed Obligations (or any
other obligations of such Guarantor to the Guaranteed Parties), as so reduced,
to be subject to avoidance under the Avoidance Provisions. This Section 15(b) is
intended solely to preserve the rights of the Guaranteed Parties hereunder to
the maximum extent that would not cause the Guaranteed Obligations of any
Guarantor to be subject to avoidance under the Avoidance
10
Provisions, and neither such Guarantor nor any other Person shall have any right
or claim under this Section 15 as against the Guaranteed Parties that would not
otherwise be available to such Person under the Avoidance Provisions.
(c) None of the provisions of this Section 15 are intended in any manner
to alter the obligations of any holder of Subordinated Debt or the rights of the
holders of "senior indebtedness" as provided by the terms of the Subordinated
Debt. Accordingly, it is the intent of each of the Guarantors that, in the event
that any payment or distribution is made with respect to the Subordinated Debt
prior to the payment in full of the Guaranteed Obligations by virtue of the
provisions of this Section 15, in any case or proceeding of the kinds described
in clauses (i)-(iii) of Section 15(a), the holders of the Subordinated Debt
shall be obligated to pay or deliver such payment or distribution to or for the
benefit of the Guaranteed Parties. Furthermore, in respect of the Avoidance
Provisions, it is the intent of each Guarantor that the subrogation rights of
the holders of Subordinated Debt with respect to the obligations of the
Guarantor under this Guaranty, be subject in all respects to the provisions of
Section 15(b).
SECTION 16. Information. Each of the Guarantors assumes all responsibility
for being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
such Guarantor assumes and incurs hereunder, and agrees that none of the
Guaranteed Parties will have any duty to advise any of the Guarantors of
information known to it or any of them regarding such circumstances or risks.
SECTION 17. Representations and Warranties. Each Guarantor represents and
warrants as to itself that all representations and warranties relating to it
contained in Article VI of the Credit Agreement are true and correct.
SECTION 18. Survival of Agreement. All agreements, representations and
warranties made herein shall survive the execution and delivery of this Guaranty
and the Credit Agreement, the making of the Loans and the execution and delivery
of the Notes and the other Credit Documents.
SECTION 19. Counterparts. This Guaranty and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
SECTION 20. Currency of Payment. All payments to be made by the Guarantors
hereunder shall be made in the relevant
11
currency or currencies in which the Guaranteed Obligations are denominated in
immediately available funds. If any Guarantor is unable for any reason to effect
payment of any of the Guaranteed Obligations in the currency in which such
Guaranteed Obligations are denominated, the Guaranteed Parties may, at their
option, require such payment to be made in the Dollar Equivalent of such
currency. If in any case where any of the Guarantors shall make any such payment
in the Dollar Equivalent, the Guarantors agree to hold the Guaranteed Parties
harmless from any loss incurred by the Lenders arising from any change in the
value of Dollars in relation to such currency between the date such payment
became due and the date of payment thereof.
SECTION 21. Additional Guarantors. Upon execution and delivery by any
Subsidiary of the Borrower of an instrument in the form of Exhibit I to the
Credit Agreement, such Subsidiary of the Borrower shall become a Guarantor
hereunder with the same force and effect as if originally named a Guarantor
herein (each an "Additional Guarantor"). The execution and delivery of any such
instrument shall not require the consent of any Guarantor hereunder. The rights
and obligations of each Guarantor hereunder shall remain in full force and
effect notwithstanding the addition of any Additional Guarantor as a party to
this Guaranty.
IN WITNESS WHEREOF, each Guarantor and the Agent have caused this Guaranty
to be duly executed and delivered by their respective duly authorized officers
as of the date first above written.
GUARANTORS:
AS OFFICERS, DIRECTORS AND/OR
AUTHORIZED SIGNATORIES OF
EACH OF THE MATERIAL
SUBSIDIARIES SHOWN ON
EXHIBIT "A" ATTACHED HERETO
By:___________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Executive Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ADMINISTRATIVE AGENT:
SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION
12
By:___________________________
Name:_________________________
Title:________________________
SECTION 12 OF THE
FOREGOING GUARANTY
ACKNOWLEDGED AND
AGREED TO:
PLANET HOLLYWOOD INTERNATIONAL, INC.
By:___________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Executive Vice President
EXHIBIT "A"
Planet Hollywood (Aspen), Inc.
Planet Hollywood (Atlantic City), Inc.
Planet Hollywood (Chefs), Inc. [f/k/a Planet Hollywood
(Nashville), Inc.]
Planet Hollywood (Chicago), Inc.
Planet Hollywood (Honolulu), Inc.
Planet Hollywood (London), Inc. [f/k/a Planet Hollywood
(Seattle), Inc.]
Planet Hollywood (LP), Inc.
Planet Hollywood (Mail Order), Inc. [f/k/a Planet Hollywood
(Denver), Inc.]
Planet Hollywood (Maui), Inc.
Planet Hollywood (New Orleans), Inc.
Planet Hollywood (New York City), Inc.
Planet Hollywood (Orlando), Inc.
Planet Hollywood (Paris), Inc.
Planet Hollywood (Phoenix), Inc.
Planet Hollywood (Region I), Inc. [f/k/a Planet Hollywood
(Miami), Inc.]
Planet Hollywood (Region II), Inc. [f/k/a Planet Hollywood
(Atlanta), Inc.]
Planet Hollywood (Region III), Inc., [f/k/a Planet Hollywood
(Washington), Inc.]
Planet Hollywood (Region IV), Inc.
Planet Hollywood (Region VI), Inc.
Planet Hollywood (Region VII), Inc. [f/k/a Planet Hollywood (San
Diego), Inc.; successor by merger to Planet Hollywood (▇▇▇▇▇▇▇
Hills), Inc.]
Planet Hollywood (Tel Aviv), Inc.
Planet Hollywood (Theatres), Inc.
Planet Hollywood (Warehouse), Inc.
Planet Hospitality Holdings, Inc.
All Star Cafe International, Inc.
All Star Cafe (New York), Inc.
Authentic All Star, Inc.
Official All Star Cafe, Inc.
13
Corner Enterprises, Inc.
EBCO Management, Inc.
14
EXHIBIT "C"
FORM OF
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT dated as of March _____, 1998 (this
"Contribution Agreement") by and among PLANET HOLLYWOOD INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"), each of the Subsidiaries of the Borrower
listed on the signature pages hereof (collectively, and together with any
successors, referred to herein individually as a "Guarantor" and collectively as
"Guarantors") and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as
Administrative Agent (the "Agent"), in its capacity as Administrative Agent for
the Lenders identified on the signature pages to the Credit Agreement (as
defined below) and each assignee thereof becoming a "lender" as provided therein
(the "Lenders") for the purpose of establishing rights and obligations of
contribution among the Guarantors in connection with the Guaranty Agreement (as
such term is defined below).
R E C I T A L S
WHEREAS, the Borrower, the Lenders and the Agent have entered into that
certain Amended and Restated Revolving Credit Agreement dated as of March _____,
1998 (as it may hereafter be amended, restated, modified, or supplemented from
time to time, the "Credit Agreement"; capitalized terms used herein but not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement);
WHEREAS, the obligation of Lenders to lend under the Credit Agreement is
conditioned on, among other things, the provision of a Contribution Agreement in
the form hereof;
WHEREAS, Guarantors and Agent have entered into the Subsidiary Guaranty
Agreement dated as of even date herewith (the "Guaranty Agreement") pursuant to
which such Guarantors have agreed to guarantee all the obligations of the
Borrower pursuant to the Credit Agreement and all other Guaranteed Obligations
(as defined in the Guaranty Agreement);
WHEREAS, as a result of transactions contemplated by the Credit Agreement,
Guarantors will benefit from the Guaranteed Obligations and in consideration
thereof desire to enter into this Contribution Agreement to provide a fair and
equitable arrangement to make contributions in the event payments are made under
the Guaranty Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, each Guarantor and Agent hereby agree as follows:
1
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that (a) in the event a payment shall
be made by any Guarantor under the Guaranty Agreement in respect of the
obligations of the Borrower under the terms of the Credit Agreement, the
Borrower shall indemnify such Guarantor for the full amount of such payment and
(b) in the event any assets of any Guarantor shall be sold pursuant to any stock
pledge agreement or similar instrument or agreement to satisfy a claim of any
Guaranteed Party (as defined in the Guaranty Agreement), the Borrower shall
indemnify such Guarantor in an amount equal to the greater of the book value or
the fair market value of the assets so sold. Each Guarantor has waived its
rights to subrogation, pursuant to Section 4 of the Guaranty Agreement.
SECTION 2. Contribution and Subrogation. Each Guarantor agrees (subject to
Section 3) that in the event a payment shall be made by any Guarantor under the
Guaranty Agreement or assets of any Guarantor shall be sold pursuant to any
stock pledge agreement or similar instrument or agreement to satisfy a claim of
any Guaranteed Party, and such Guarantor (the "Claiming Guarantor") shall not
have been indemnified by the Borrower as provided in Section 1, each other
Guarantor (a "Contributing Guarantor") shall indemnify the Claiming Guarantor in
an amount equal to the amount of such payment or the greater of the book value
or the fair market value of such assets, as the case may be, multiplied by a
fraction, the numerator of which shall be the Consolidated Net Worth of the
Contributing Guarantor on the date hereof, and the denominator of which shall be
the sum of the Consolidated Net Worth of all the Guarantors on the date hereof.
Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant
to this Section 2 shall be subrogated to the rights of such Claiming Guarantor
under Section 1 to the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this Agreement
to the contrary, (i) all rights of the Guarantors under Sections 1 and 2 and all
other rights of indemnity or contribution under applicable law or otherwise
shall be fully subordinated to the indefeasible payment in full of the
Guaranteed Obligations (as defined in the Guaranty Agreement), and (ii) no such
rights shall be exercised until all of the Guaranteed Obligations shall have
been irrevocably paid in full and the Credit Agreement shall have been
irrevocably terminated. If any amount shall be paid to any Guarantor on account
of such indemnity or contribution rights at any time when all of the Guaranteed
Obligations shall not have been paid in full, such amount shall be held in trust
for the benefit of the Guaranteed Parties (as defined in the Guaranty Agreement)
and shall forthwith be paid to the Agent to be credited and applied upon the
Guaranteed Obligations, whether matured or unmatured, in accordance with the
terms of the Credit Agreement. No failure on the part of the Borrower or any
Guarantor to make the payments required by Sections 1 and 2 (or any other
payments required under applicable law or otherwise) shall in any respect limit
the
2
obligations and liabilities of any Guarantor with respect to the Guaranty
Agreement, and each Guarantor shall remain liable for the full amount of the
obligations of such Guarantor under such Guaranty Agreement.
SECTION 4. Allocation. If at any time there exists more than one Claiming
Guarantor with respect to the Guaranty Agreement, then payment from other
Guarantors pursuant to this Contribution Agreement shall be allocated among such
Claiming Guarantors in proportion to the total amount of money paid for or on
account of the Guaranteed Obligations by each such Claiming Guarantor pursuant
to the Guaranty Agreement.
SECTION 5. Preservation of Rights. This Contribution Agreement shall not
limit or affect any right which any Guarantor may have against any other Person
that is not a party hereto.
SECTION 6. Subsidiary Payment. The amount of contribution payable under
this Contribution Agreement by any Guarantor with respect to the Guaranty
Agreement shall be reduced by the amount of any contribution paid hereunder by a
Subsidiary of such Guarantor with respect to the Guaranty Agreement.
SECTION 7. Asset Sale. If all of the stock of any Guarantor shall be sold
or otherwise disposed of (including by merger or consolidation) in an asset sale
not prohibited by the Credit Agreement or otherwise consented to by the Agent
and the Required Lenders under the Credit Agreement, the agreements of such
Guarantor hereunder shall automatically be discharged and released without any
further action by such Guarantor and shall be assumed in full by the corporation
which prior to such asset sale or consent owned the stock of such Guarantor,
effective as of the time of such asset sale or consent. The Borrower shall cause
any such corporation which is not a Guarantor to become a party to this
Contribution Agreement and the Guaranty Agreement unless otherwise agreed in
writing by the Agent and the Required Lenders.
SECTION 8. Equitable Allocation. If as a result of any reorganization,
recapitalization or other corporate change in the Borrower or any of its
Subsidiaries, or as a result of any amendment, waiver or modification of the
terms and conditions governing the Guaranty Agreement or any of the Guaranteed
Obligations, or for any other reason, the contributions under this Contribution
Agreement become inequitable, the parties hereto shall promptly modify and amend
this Contribution Agreement to provide for an equitable allocation of
contributions. All such modifications and amendments shall be in writing and
signed by all parties hereto.
SECTION 9. Asset of Party to Which Contribution and Indemnification Are
Owing. The parties hereto acknowledge that the right to contribution and
indemnification hereunder shall each constitute an asset in favor of the party
to which such contribution or indemnification is owing.
3
SECTION 10. Successors and Assigns; Amendments. This Contribution
Agreement shall be binding upon each party hereto and its respective successors
and assigns and shall inure to the benefit of the parties hereto and their
respective successors and assigns. None of any Guarantor's rights or any
interest therein under this Contribution Agreement may be assigned or
transferred without the written consent of the Agent. In the event of any such
transfer or assignment of rights by any Guarantor, the rights and privileges
herein conferred upon that Guarantor shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions hereof.
This Contribution Agreement shall not be amended without the prior written
consent of the Agent.
SECTION 11. Termination. This Contribution Agreement, as it may be
modified or amended from time to time, shall remain in effect, and shall not be
terminated as to the Guaranty Agreement, until the Guaranty Agreement has been
discharged or otherwise satisfied in accordance with its terms.
SECTION 12. CHOICE OF LAW. THIS CONTRIBUTION AGREEMENT SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF FLORIDA WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 13. Counterparts. This Contribution Agreement and any amendments,
waivers, consents or supplements may be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all such counterparts
shall constitute but one and the same instrument.
SECTION 14. Additional Guarantors. Upon execution and delivery, after the
date hereof, by Agents and a Subsidiary of the Borrower of a Supplement to
Contribution Agreement in the form of Exhibit "I" to the Credit Agreement, such
Subsidiary of the Borrower shall become a Guarantor hereunder with the same
force and effect as if originally named as a Guarantor hereunder. The rights and
obligations of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Agreement.
SECTION 15. Severability. In case any provision in or obligation under
this Contribution Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality or enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 16. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic or telecopy
communication) and mailed, telegraphed, telecopied or delivered, if to any
Guarantor, addressed to it at the address set forth for such party in the
Guaranty Agreement, and if to any other party, at the address set
4
forth for such party in the Credit Agreement. All such notices and other
communications shall be given and deemed to have been received as provided by
the terms of the Credit Agreement.
IN WITNESS WHEREOF, the Borrower, the Guarantors, and the Agent have duly
executed this Contribution Agreement as of the day and year first above written.
BORROWER:
AS OFFICERS, DIRECTORS AND/OR
AUTHORIZED SIGNATORIES OF EACH
OF THE MATERIAL SUBSIDIARIES
SHOWN ON EXHIBIT "A" ATTACHED
HERETO
By:_______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Executive Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ADMINISTRATIVE AGENT:
SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION
By:___________________________
Name:_________________________
Title:________________________
EXHIBIT "D"
FORM OF REVOLVING CREDIT NOTE
March ____, 1998 $ ________________
____________, ______________
FOR VALUE RECEIVED, the undersigned, PLANET HOLLYWOOD INTERNATIONAL, INC.,
a Delaware corporation (the "Borrower"), promises to pay to the order of
___________________, a ______________, (the "Bank") at the office of the Bank at
__________________________________________, or at such other place as the holder
hereof may designate by notice in writing to Borrower, in immediately available
funds, in lawful money of the United States of America, except in the case of a
Multi-currency Loan, in which event payment shall be in the Available Foreign
Currency in which such Multicurrency Loan was made, on the sooner of (i) the
Termination Date (as defined in the Agreement hereinafter described), or (ii)
acceleration of this indebtedness as hereinafter provided, the lesser of (i) the
principal sum of ____________________________ AND 00/100 DOLLARS ($_________) or
(ii) so much thereof as shall have been from time to time disbursed hereunder by
the Bank in accordance with that certain Amended and Restated Revolving Credit
Agreement dated as of March _____, 1998 (as amended, modified or supplemented,
the "Agreement") by and among the Borrower, the Bank, and the other Lenders
which are parties thereto from time to time, and not theretofore repaid, as
shown on the grid schedule attached hereto (the "Grid Schedule").
In addition to principal, Borrower agrees to pay interest on the principal
amounts disbursed hereunder from time to time from the date of each disbursement
until paid at such simple rates of interest per annum and upon such dates and
calculated on such basis as provided for in the Agreement. Such interest is to
be paid to the Bank at its office set forth above.
This Revolving Credit Note ("Note") evidences a loan incurred pursuant to
the terms and conditions of the Agreement to which reference is hereby made for
a full and complete description of such terms and conditions. All capitalized
terms used in this Note shall have the same meanings as set forth in the
Agreement.
Bank shall at all times have a right of set-off against any deposit
balances of Borrower in the possession of the Bank and the Bank may apply the
same against payment of this Note or any other Obligations of Borrower to the
Bank. The payment of any indebtedness evidenced by this Note prior to the
Termination Date or demand shall not affect the enforceability of this Note as
to any future, different or other indebtedness incurred hereunder by the
Borrower. In the event the indebtedness evidenced by this Note is collected by
legal action or through an attorney-at-law, the Bank shall be entitled to
recover from Borrower all costs of collection, including, without limitation,
reasonable attorneys' fees if collected by or through an attorney-at-law.
Borrower acknowledges that the actual crediting of the amount of any
disbursement under the Agreement to an account of Borrower or recording such
amount in the Grid Schedule shall, in the absence of manifest error, constitute
presumptive evidence of such disbursement and that such advance was made and
borrowed under the Agreement. Such account records or Grid Schedule shall
constitute, in the absence of manifest error, presumptive evidence of principal
amounts outstanding and the payments made under the Agreement at any time and
from time to time, provided that the failure of Bank or any holder hereof to
record on the Grid Schedule or in such account the type or amount of any advance
shall not affect the obligation of the undersigned to repay such amount together
with interest thereon in accordance with this Note and the Agreement.
Upon the existence or occurrence of any Event of Default as defined in the
Agreement, the principal and all accrued interest hereof shall automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Agreement.
Prepayment of the Note in part or in whole is permitted subject to the
conditions set forth in the Agreement.
Failure or forbearance of Bank to exercise any right hereunder, or
otherwise granted by the Agreement or by law, shall not affect or release the
liability of Borrower hereunder, and shall not constitute a waiver of such right
unless so stated by Bank in writing. This Note shall be deemed to be made under,
and shall be construed in accordance with and governed by, the laws of the State
of Florida, without regard to conflict of law principles. Time is of the essence
of this Note.
PRESENTMENT FOR PAYMENT, NOTICE OF DISHONOR AND PROTEST ARE HEREBY WAIVED.
Executed under hand and seal of the Borrower as of the day and year first
above written on this ____ day of March, 1998.
PLANET HOLLYWOOD INTERNATIONAL,
INC.
By:________________________________
Name:___________________________
Title:__________________________
8
GRID SCHEDULE
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (1 MONTH)
================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
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10
GRID SCHEDULE
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (2 MONTHS)
================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
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11
GRID SCHEDULE
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (3 MONTHS)
================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
====== ========== ============= ============= ==================== =============
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12
GRID SCHEDULE
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT LIBOR (6 MONTHS)
================================================================================
Unpaid
Principal
Amount of Bearing Interest
Amount of Advance at the Above- Notation
Date Due Date Advance Repaid Referenced Rate Made by
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13
GRID SCHEDULE
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT FOREIGN CURRENCY RATE (1 MONTH)
================================================================================
Available Unpaid
Foreign Principal
Currency Amount of Bearing
Amount of in which Advance Interest at Notation
Date Due Date Advance Made Repaid Above Rate Made by
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14
GRID SCHEDULE
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT FOREIGN CURRENCY RATE (2 MONTHS)
================================================================================
Available Unpaid
Foreign Principal
Currency Amount of Bearing
Amount of in which Advance Interest at Notation
Date Due Date Advance Made Repaid Above Rate Made by
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15
GRID SCHEDULE
REVOLVING CREDIT NOTE
ADVANCES BEARING INTEREST
AT FOREIGN CURRENCY RATE (3 MONTHS)
================================================================================
Available Unpaid
Foreign Principal
Currency Amount of Bearing
Amount of in which Advance Interest at Notation
Date Due Date Advance Made Repaid Above Rate Made by
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16
EXHIBIT "E"
[Form of Pledge Agreement]
EXHIBIT "F"
FORM OF
CLOSING CERTIFICATE
Pursuant to Section 5.1 of the Amended and Restated Revolving Credit
Agreement dated as of March ____, 1998 (the "Credit Agreement") among PLANET
HOLLYWOOD INTERNATIONAL, INC., a Delaware corporation (the "Borrower"), SUNTRUST
BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, as Administrative Agent, and the
other banks and the lending institutions listed on the signature pages thereto,
the undersigned in their respective capacities as officers, directors, or
authorized signatories of the Borrower and each Material Subsidiary hereby
certify to the Lenders and the Administrative Agent as follows (capitalized
terms used herein having the same meanings as assigned to such terms in the
Credit Agreement):
1. All representations and warranties contained in the Credit Agreement
are true and correct in all material respects on and as of the date
hereof.
2. After giving effect to the Loans to be made to the Borrower pursuant
to the Credit Agreement on the date hereof, no Default or Event of
Default has occurred and is continuing and no condition, event, act
or omission which, with the giving of notice or the lapse of time or
both, would constitute a Default or Event of Default which under the
Credit Agreement or any other Credit Documents has occurred and is
continuing or exists as of the date hereof.
3. As of the date hereof, the Borrower and each Material Subsidiary has
complied with all its duties and obligations and all of the
conditions set forth in the Credit Agreement and each of the other
Credit Documents executed by each of them, in connection with the
Credit Document.
4. Since the date of the audited financial statements of the
Consolidated Companies described in Section 6.3 of the Credit
Agreement, there has been no change which has had or could
reasonably be expected to have a Materially Adverse Effect.
5. Except as may be described on Schedule 6.5 of the Credit Agreement,
no action or proceeding has been instituted or is pending before any
court or other governmental authority, or, to the knowledge of the
Borrower, threatened (i) which reasonably could be expected to have
a Materially Adverse Effect, or (ii) seeking to prohibit or restrict
one or more Credit
Party's ownership or operation of any portion of its businesses or
assets, where such portion or portions of such businesses or assets,
as the case may be, constitute a material portion of the total
businesses or assets of the Consolidated Companies.
6. The Loans to be made on the date hereof are being used solely for
the purposes provided in the Credit Agreement, and such Loans and
use of proceeds thereof will not contravene, violate or conflict
with, or involve the Administrative Agent or any Lender in a
violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental authority,
applicable to the Borrower.
7. The conditions precedent set forth in Sections 5.1 and 5.2 of the
Credit Agreement have been or will be satisfied (or have been waived
pursuant to the terms of the Credit Agreement) prior to or
concurrently with the making of the Loans under the Credit Agreement
on the date hereof.
8. As a follow-up to paragraph 7 above, the Borrower has successfully
completed the offering of the 1998 Senior Subordinated Debt Issue
and said offering has yielded to the Borrower gross proceeds of
$250,000,000.00, has been issued at a coupon of 12.0%, and has
received a subordinated debt rating of B2 by ▇▇▇▇▇'▇ and CCC+ by
S&P.
9. The execution, delivery and performance by the Credit Parties of the
Credit Documents will not violate any Requirement of Law or cause a
breach or default under any of their respective Contractual
Obligations.
10. Each of the Credit Parties has the corporate power and
authority to make, deliver and perform the Credit
Documents to which it is a party and has taken all
necessary corporate action to authorize the execution,
delivery and performance of such Credit Documents. No
consents or authorization of, or filing with, any
Person (including, without limitation, any governmental
authority), is required in connection with the
execution, delivery or performance by any Credit Party,
or the validity or enforceability against any Credit
Party, of the Credit Documents, other than such
consents, authorizations or filings which have been
made or obtained.
This Certificate executed and delivered on behalf of the Borrower and the
Material Subsidiaries this _______ day of March, 1998.
2
PLANET HOLLYWOOD
INTERNATIONAL, INC.
By:___________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Executive Vice President
AS OFFICERS, DIRECTORS AND/OR
AUTHORIZED SIGNATORIES OF EACH
OF THE MATERIAL SUBSIDIARIES
SHOWN ON EXHIBIT "A" ATTACHED
HERETO
By:___________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Executive Vice President
3
EXHIBIT "A"
Planet Hollywood (Aspen), Inc.
Planet Hollywood (Atlantic City), Inc.
Planet Hollywood (Chefs), Inc. [f/k/a Planet Hollywood
(Nashville), Inc.]
Planet Hollywood (Chicago), Inc.
Planet Hollywood (Honolulu), Inc.
Planet Hollywood (London), Inc. [f/k/a Planet Hollywood
(Seattle), Inc.]
Planet Hollywood (LP), Inc.
Planet Hollywood (Mail Order), Inc. [f/k/a Planet Hollywood
(Denver), Inc.]
Planet Hollywood (Maui), Inc.
Planet Hollywood (New Orleans), Inc.
Planet Hollywood (New York City), Inc.
Planet Hollywood (Orlando), Inc.
Planet Hollywood (Paris), Inc.
Planet Hollywood (Phoenix), Inc.
Planet Hollywood (Region I), Inc. [f/k/a Planet Hollywood
(Miami), Inc.]
Planet Hollywood (Region II), Inc. [f/k/a Planet Hollywood
(Atlanta), Inc.]
Planet Hollywood (Region III), Inc., [f/k/a Planet Hollywood
(Washington), Inc.]
Planet Hollywood (Region IV), Inc.
Planet Hollywood (Region VI), Inc.
Planet Hollywood (Region VII), Inc. [f/k/a Planet Hollywood (San
Diego), Inc.; successor by merger to Planet Hollywood (▇▇▇▇▇▇▇
Hills), Inc.]
Planet Hollywood (Tel Aviv), Inc.
Planet Hollywood (Theatres), Inc.
Planet Hollywood (Warehouse), Inc.
Planet Hospitality Holdings, Inc.
All Star Cafe International, Inc.
All Star Cafe (New York), Inc.
Authentic All Star, Inc.
Official All Star Cafe, Inc.
Corner Enterprises, Inc.
EBCO Management, Inc.
4
EXHIBIT "G"
FORM OF OPINION OF
BORROWER'S COUNSEL
March ____, 1998
The Lenders parties to the Credit Agreement hereinafter referred to
- and -
SunTrust Bank, Central Florida, National Association, and The Bank of Nova
Scotia as Agents for the Lenders
Re: Amended and Restated Revolving Credit Agreement dated as of March
_____, 1998, among Planet Hollywood International, Inc., SunTrust
Bank, Central Florida, National Association, and The Bank of Nova
Scotia, SunTrust Bank, Central Florida, National Association, as
Administrative Agent thereunder and The Bank of Nova Scotia as
Syndication Agent thereunder (the "Credit Agreement")
Ladies and Gentlemen:
We have acted as counsel for Planet Hollywood International, Inc., a
Delaware corporation ("Borrower"), and the entities referred to in Exhibit "A"
(collectively, together with Borrower, the "Credit Parties"), in connection with
the preparation, negotiation, execution and delivery of the following documents
(collectively, the "Credit Documents"):
1. The Credit Agreement
2. The Revolving Credit Notes
3. The Subsidiary Guaranty Agreement
4. The Contribution Agreement
5. The Assignment and Acceptance Agreement
6. The Pledge Agreement and documents related thereto
such as ________ stock powers
7. The Security Agreement and documents relating thereto such as
UCC-1 Financing Statements
8. The Mortgage Documents
This opinion is furnished pursuant to Section 5.1 of the Credit Agreement.
Capitalized terms used, and not otherwise defined herein, shall have the meaning
given such terms in the Credit Agreement.
You have requested our opinion on matters hereinafter set forth:
A. DOCUMENTS EXAMINED:
As counsel to the Credit Parties, we have examined the original or a copy,
certified or otherwise identified to our satisfaction as a true copy, of each of
the following certificates, instruments and documents:
1. The Credit Documents;
2. The representations and warranties given by the Credit Parties in
the Credit Documents and the certificates and other documents
delivered by the officers of the Credit Parties thereunder;
3. Articles of Incorporation or Charter of each of the Credit Parties,
in each case, certified by the Secretary of State of the State of
incorporation;
4. Certificates of Good Standing with respect to each of the Credit
Parties issued, in each case, by the Secretary of State of the State
of incorporation;
5. Copies of the By-Laws and of the corporate resolutions authorizing
the Credit Documents, in each case, certified by the Secretary or
Assistant Secretary of the respective Credit Parties;
6. The certificate of (a) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the Executive Vice President
of the Borrower and an officer of each of the other Credit Parties
except Planet Hollywood (Region V), Inc., Karmalanne, Inc., Meant 2
Be, Inc., Rocky Pit, Inc. and Ten Alps, Inc.; (b) ▇▇▇▇▇ ▇▇▇▇,
President of Planet Hollywood (Region V), Inc. and (c) ▇▇▇▇
▇▇▇▇▇▇▇▇▇, President of Karmalanne, Inc., Meant 2 Be, Inc., Rocky
Pit, Inc. and Ten Alps, Inc.
In our capacity as counsel to the Credit Parties, we have participated in
the negotiation and preparation of, and have assisted the Credit Parties in
their activities relative to, the transactions contemplated by, or referred to
in, the Credit Documents. Furthermore, we have examined such corporate documents
and records of the Credit Parties, and certificates and records of public
officials, and received such information and certificates from officers,
employees and representatives of the Credit Parties and have examined such other
documents, records and other instruments and made such investigations of law as
we have deemed necessary and relevant as the basis for this opinion.
B. OPINIONS:
Based solely upon the foregoing and subject to the assumptions,
limitations, qualifications and exceptions hereinafter set forth, we are of the
following opinions:
6
1. Each of the Credit Parties (a) is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation, (b) has the corporate power and authority to own and
operate its property and to conduct its business as now conducted, and (c)
is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where, to the best of our current actual
knowledge, the ownership of its property or the conduct of its business
requires such qualification and where, to the best of our current actual
knowledge, the failure so to qualify would have a Materially Adverse
Effect.
2. Each of the Credit Parties has the corporate power and authority
to conduct its business as now conducted and to make, deliver and perform
the Credit Documents to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance of
such Credit Documents.
3. No consent, approval or authorization of, or registration,
declaration or filing with, any United States federal, state, local or
other governmental authority is required to be obtained by the Credit
Parties in connection with the execution, delivery, performance, validity
or enforceability of the Credit Documents or the use of the proceeds of
the Revolving Loans made under the Credit Agreement.
4. The execution, delivery and performance by each of the Credit
Parties of the Credit Documents to which it is a party do not and will not
violate any existing Requirement of Law applicable to such Credit Party
(including without limitation its certificate or articles of incorporation
or its bylaws) or any of the listed Contractual Obligations (unless
appropriate waivers of such violations have been obtained by the
applicable Credit Party), or, to the best of our current actual knowledge,
any other existing Contractual Obligation of such Credit Party (unless
appropriate waivers of such violations have been obtained by the
applicable Credit Party), and do not and will not result in the creation
or imposition of any Lien on any of its properties or revenues pursuant to
any existing Requirement of Law applicable to such Credit Party (including
without limitation its certificate or articles of incorporation or its
bylaws) or any of the Listed Contractual Obligations or, to the best of
our current actual knowledge, any other existing Contractual Obligation of
such Credit Party.
5. Each of the Credit Parties has duly authorized, executed and
delivered each Credit Document to which it is a party. Each of the Credit
Documents constitutes the legal, valid and binding obligations of each of
the Credit Parties
7
that is a party thereto, enforceable against each such Credit Party in
accordance with its terms.
6. There is no litigation, investigation or proceeding of or before
any court, tribunal, arbitrator or governmental authority pending or, to
the best of our current actual knowledge, threatened by or against any of
the Credit Parties or against any of their respective properties or
revenues (a) with respect to the Credit Documents or any of the
transactions contemplated thereby or (b) which, if adversely determined,
would be reasonably expected to have a Materially Adverse Effect.
7. None of the Credit Parties is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, or a "subsidiary company" of a "holding
company" or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
8. The making of any Revolving Loans and/or Term Loans under the
Credit Agreement and the application of the proceeds thereof as provided
in the Credit Agreement do not violate Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
9. The Borrower owns the percentage of the issued and outstanding
common stock of the other Credit Parties as reflected on the attached
Exhibit "A".
10. We have counseled with the Credit Parties as to the matters in
the Credit Documents and, with regard to Credit Parties, the legal
significance of their representations and warranties contained therein,
and in the course thereof, or otherwise, nothing has come to our attention
which has caused us to conclude that any representation or warranty made
by Borrower or any other Credit Party in any of the Credit Documents is
inaccurate or incomplete.
C. ASSUMPTIONS:
The opinions set forth above are subject to the following assumptions:
1. That all documents submitted to us as originals are authentic and
contain genuine signatures, other than those of the Credit Parties, and
that all documents submitted to us as certified or photostatic copies
conform to the original counterparts of such documents. In making our
examination of the Credit Documents executed by individuals or entities
other than the Credit Parties, we
8
have assumed that each such individual or entity had the power to enter
into and perform all its obligations thereunder and have also assumed the
due authorization by each such entity of all requisite action and the due
execution and delivery of such documents by each such individual or
entity.
2. That the Lenders and the Administrative Agent and the Syndication
Agent, as the case may be, are qualified to enter into the Credit
Documents and that said Credit Documents have been duly authorized,
executed, and delivered by such parties to the extent required and
constitute legal, valid and binding obligations of such parties,
enforceable in accordance with their terms; and that the transactions
contemplated by the Credit Documents comply with all statutory and
regulatory provisions applicable to the Lenders and the Agent.
3. That all funds disbursed to Borrower pursuant to the terms of the
Credit Documents will be used by Borrower for the purposes provided in the
Credit Agreement.
4. That no addressees or their counsel are aware of any facts, laws,
rules, regulations or ordinances of any State, local or municipal
governmental or regulatory agencies that are contrary to, or cause them to
doubt, the opinions expressed herein.
D. QUALIFICATIONS:
The opinions expressed in this letter are based upon and subject to the
qualifications, limitations, and exceptions set forth below:
1. The enforceability of the rights and remedies of any party to any
instrument or document against any other party thereto may be subject to
any applicable bankruptcy, insolvency, reorganization, arrangement,
moratorium, fraudulent transfer or other similar laws affecting creditors'
rights generally at the time in effect in the event of bankruptcy or
insolvency of such other party or the applicability to such other party of
such other laws affecting creditors' rights generally.
2. We express no opinion that any particular provisions of any
Credit Document will be enforceable by decree of specific performance or
other equitable relief (including the availability of a deficiency
judgment), or that the enforcement thereof may not be limited by defenses
such as estoppel, waiver, and other equitable considerations (regardless
of whether enforceability is considered in a proceeding in equity or at
law).
9
3. We express no opinion with respect to provisions in the Credit
Documents authorizing unilateral or ex parte appointment of a receiver or
provisions in which any Credit Party purports to waive statutory rights,
the appointment of a receiver and the waiver of such rights being within
the discretion of the court.
4. Certain rights, remedies and waivers contained in the Credit
Documents may be limited or rendered ineffective by applicable Florida
laws or judicial decisions governing such provisions, but such laws and
judicial decisions do not render the Credit Documents invalid as a whole,
and, in the event of a material breach of a material covenant in the
Credit Documents, the Lenders may exercise remedies that would be normally
available to secured lenders.
5. In rendering this opinion, we advise you that a Florida court may
not strictly enforce certain covenants contained in the Credit Documents
or allow acceleration of the maturity of the indebtedness evidenced by the
Revolving Credit Notes if it concludes that such enforcement or
acceleration would be unreasonable under the then existing circumstances.
We do believe, however, that subject to the limitations expressed
elsewhere in this opinion, enforcement or acceleration would be available
if an event of default occurs as a result of a material breach of a
material covenant contained in the Credit Documents.
6. We express no opinion concerning the effect of emerging theories
of lender liability on the validity or enforceability of the Credit
Documents to the extent such validity or enforceability may be impaired or
affected by conduct of Lenders or Agent. We express no opinion concerning
the effect of a court recharacterizing the transactions contemplated by
the Credit Documents based upon the relationship of the Lenders and the
Credit Parties being other than debtor-creditor.
7. We express no opinion as to the specific enforceability in regard
to certain covenants and provisions of the Credit Documents where the
Lenders' or the Agent's enforcement of such covenants or provisions under
the circumstances, or in the manner, would violate the Lenders' or the
Agent's implied covenant of good faith and fair dealing, or would be
commercially unreasonably.
8. We express no opinion concerning the enforceability of any
provisions contained in the Credit Documents to the extent such
enforceability is dependent upon recording said documents with the Florida
Secretary of State or in any other jurisdiction. We have not verified such
recording or filing.
10
9. The effect of Florida law, which provides that when a contract
permits one party to a contract to recover attorneys' fees, the prevailing
party in any action to enforce any provision of the contract shall be
entitled to recover its reasonable attorneys' fees.
10. The enforceability under certain circumstances of provisions
releasing a party from, or indemnifying a party against, liability for its
own wrongful or negligent acts or where such release or indemnification is
contrary to public policy.
11. Limitations on the enforceability of a contract or any clause of
a contract which the court finds to have been unconscionable at the time
of enforcement or at the time it was made, or an unfair portion of an
adhesion contract.
12. We express no opinion as to the validity or enforceability of
any provision of the Credit Documents that permits the Lenders or the
Agent to collect a late charge or additional interest for late payment in
the event of delinquency or default.
13. We are licensed to practice law in the State of Florida. The
opinions set forth herein are based solely on and are limited in all
respects to the substantive laws of the State of Florida, the General
Corporation Law of the State of Delaware, the corporation laws applicable
to any of the Credit Parties organized and existing under the laws of
states other than Florida and Delaware and the federal law of the United
States in force and effect on the date hereof. Accordingly, we express no
opinion as to matters governed by the laws of any other state or
jurisdiction. We assume no obligation to supplement this opinion if any
applicable laws change after the date hereof or if we become aware of any
facts that might change the opinions expressed herein after the date
hereof.
14. Whenever an opinion with respect to existence or absence of
facts is qualified by the phrase "to the best of our current actual
knowledge," we have advised you only as to such knowledge as we have
obtained from (a) certificates or written representations of the Credit
Parties or their respective officers, directors or employees, (b)
interviews with responsible employees of the Credit Parties, and lawyers
presently in our firm whom we have determined are likely, in the ordinary
course of their respective duties, to have knowledge of the transactions
contemplated by the Credit Documents and the matters covered by this
opinion, and (c) such other investigation as we have deemed necessary as a
result of the preceding subparagraphs (a) and (b). Except as otherwise set
forth above, for purposes of this opinion, we have not made an independent
review of any
11
contract or agreement which may have been executed by or which may now be
binding upon the Credit Parties, nor have we undertaken to review our
internal files or any files of the Credit Parties, relating to
transactions to which the Credit Parties may be a party, or to discuss the
Credit Parties' transactions or business with any other lawyers in our
firm.
15. This opinion has been made solely for the benefit of the
Lenders, the Agent, and such parties' counsel, and is to be limited in its
use to reliance by the Agent and Lenders in consummating the transactions
contemplated by the Credit Documents and Agent's counsel in rendering its
legal opinion to the Agent. This opinion may not be relied upon by any
other party, nor may all or portions of this opinion be quoted, circulated
or referred to in any other document, nor may copies be delivered to any
other person, without the express prior written consent of this firm. The
opinions expressed herein are limited to the matters set forth in this
letter, and no other opinions should be inferred beyond the matters
expressly stated.
Credit Parties have authorized us to deliver this opinion to you as is
reflected in their letter to us which is attached hereto as Exhibit "B".
Very Truly Yours,
GRAY, HARRIS & ▇▇▇▇▇▇▇▇, P.A.
12
EXHIBIT "A"
MATERIAL SUBSIDIARIES
See Attached.
13
EXHIBIT "B"
AUTHORIZATION TO ISSUE LEGAL OPINION
See Attached.
14
EXHIBIT "H"
FORM OF JOINDER BY SUBSIDIARIES
JOINDER BY SUBSIDIARY
The undersigned, being and constituting a Subsidiary of Planet Hollywood
International, Inc. ("PHI, Inc."), does hereby join in and agree to be bound by
all provisions applicable to such Subsidiary of that certain Amended and
Restated Revolving Credit Agreement (the "Credit Agreement"), dated as of March
____, 1998, by and between SunTrust Bank, Central Florida, National Association,
and The Bank of Nova Scotia, each individually and as Agent (the "Agent"), and
the other Lenders from time to time parties thereto and PHI, Inc. with joinder
by all existing Subsidiaries of PHI, Inc.
The undersigned Subsidiary of PHI, Inc. hereby agrees to execute and
deliver to the Agent a Supplement to Guaranty Agreement in the form of Exhibit I
to the Credit Agreement and a Supplement to Contribution Agreement in the form
of Exhibit J to the Credit Agreement.
Dated this _____ day of March, 1998.
ATTEST: [NAME OF SUBSIDIARY]
______________________________ By:___________________________
Name:_________________________ Name:______________________
Title:________________________ Title:_____________________
15
EXHIBIT "I"
FORM OF
SUPPLEMENT TO
SUBSIDIARY GUARANTY AGREEMENT
THIS SUPPLEMENT TO SUBSIDIARY GUARANTY AGREEMENT (this "Supplement"),
dated as of _________________, 19__, made by _______________________, a
___________ corporation (whether one or more, collectively, the "Additional
Guarantor"), in favor of SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, a
national banking association, in its capacity as Administrative Agent for
Lenders at any time parties to the Credit Agreement (as hereinafter defined)
(the "Administrative Agent") and each assignee thereof becoming a "Lender" as
provided therein (the "Lenders"; the Lenders and the Administrative Agent being
collectively referred to herein as the "Guaranteed Parties").
W I T N E S S E T H:
WHEREAS, PLANET HOLLYWOOD INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), the Lenders and the Administrative Agent are parties to a Amended
and Restated Revolving Credit Agreement, dated as of March _____, 1998 (as the
same may hereafter be amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement") pursuant to which the Lenders have made
commitments to make loans to the Borrower;
WHEREAS, certain Subsidiaries (the "Subsidiary Guarantors") of the
Borrower have executed and delivered a Subsidiary Guaranty Agreement dated as of
March ____, 1998(the "Subsidiary Guaranty") pursuant to which the Subsidiary
Guarantors have agreed to guarantee all of the obligations of the Borrower under
the Credit Agreement and the other Credit Documents (as defined in the Credit
Agreement);
WHEREAS, the Borrower, the Subsidiary Guarantors and the Additional
Guarantor share an identity of interests as members of a consolidated group of
companies engaged in substantially similar businesses; the Borrower provides
certain centralized financial, accounting and management services to the
Additional Guarantor; the making of the loans will facilitate expansion and
enhance the overall financial strength and stability of the Borrower's corporate
group, including the Additional Guarantor; and by virtue of intercompany
advances and loans, the financial accommodations to the Borrower under the
Credit Agreement shall inure to the direct and material benefit of the
Additional Guarantor; and
WHEREAS, it is a condition subsequent to the Lenders', obligation to make
Loans to the Borrower under the Credit Agreement that the Additional Guarantor
execute and deliver to the Administrative Agent this Supplement, and the
Additional Guarantor desires to execute and deliver this Supplement to satisfy
such condition subsequent;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make the Loans to the Borrower under the Credit Agreement, the
Additional Guarantor hereby agrees as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein which are
used in the Subsidiary Guaranty are used herein with the meanings given to such
terms in the Subsidiary Guaranty and any capitalized terms not otherwise defined
herein which are used in the Credit Agreement are used herein with the meanings
given to such terms in the Credit Agreement.
2. Additional Guarantor. The Additional Guarantor agrees that it shall be
and become a Guarantor for all purposes of the Subsidiary Guaranty and shall be
fully liable thereunder to the Administrative Agent and the other Guaranteed
Parties to the same extent and with the same effect as though the Additional
Guarantor had been one of the Guarantors originally executing and delivering the
Subsidiary Guaranty. Without limiting the foregoing, the Additional Guarantor
hereby jointly and severally (with respect to the guaranties made by the
Subsidiary Guarantors under the Subsidiary Guaranty), irrevocably and
unconditionally, guarantees the punctual and full payment when due, whether at
stated maturity by acceleration or otherwise, of all Loans and all other
Obligations owing by the Borrower to the Lenders and the Administrative Agent,
or any of them, jointly or severally, under the Credit Agreement, the Notes and
the other Credit Documents, including all renewals, extensions, modifications
and refinancings thereof, now or hereafter owing, whether for principal,
interest, fees, expenses or otherwise, and any and all reasonable out-of-pocket
expenses (including reasonable attorneys' fees actually incurred and reasonable
out-of-pocket expenses whether suit be brought or not, including reasonable
attorneys' fees, costs and expenses if an appeal is taken) incurred by the
Administrative Agent or any other Guaranteed Party in enforcing any rights under
the Subsidiary Guaranty (as supplemented hereby), subject, however, to the
limitations expressly provided in the Subsidiary Guaranty in Section 15 thereof.
All references in the Subsidiary Guaranty to "Guarantors" or any "Guarantor",
shall be deemed to include and to refer to the Additional Guarantor.
17
3. Governing Law; Submission to Jurisdiction; Full Faith
and Credit; Waiver of Jury Trial.
(a) THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF FLORIDA (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SUPPLEMENT,
THE SUBSIDIARY GUARANTY OR OTHERWISE RELATED HERETO MAY BE BROUGHT IN THE
CIRCUIT COURT OF ORANGE COUNTY OF THE STATE OF FLORIDA OR IN THE DISTRICT COURT
OF THE UNITED STATES OF AMERICA FOR THE MIDDLE DISTRICT OF FLORIDA, AND, BY
EXECUTION AND DELIVERY OF THIS SUPPLEMENT, THE ADDITIONAL GUARANTOR HEREBY
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THE
AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE RIGHTS
OF THE AGENT OR OTHER GUARANTEED PARTIES WITH RESPECT TO THIS SUPPLEMENT, THE
SUBSIDIARY GUARANTY OR ANY DOCUMENT RELATED HERETO. THE ADDITIONAL GUARANTOR
HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS SUPPLEMENT, THE
SUBSIDIARY GUARANTY OR ANY DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF SUCH AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE ADDITIONAL
GUARANTOR IN ANY OTHER JURISDICTION.
(c) TO THE EXTENT THAT ANY GUARANTEED PARTY OBTAINS ANY JUDGMENT
AGAINST THE ADDITIONAL GUARANTOR UNDER THIS SUPPLEMENT AND THE SUBSIDIARY
GUARANTY, THE ADDITIONAL GUARANTOR DOES HEREBY AGREE THAT SUCH JUDGMENT SHALL BE
ENTITLED TO "FULL FAITH AND CREDIT" WITH THE SAME FORCE AND EFFECT AS IF SUCH
JUDGMENT WAS RENDERED AGAINST SUCH ADDITIONAL GUARANTOR BY A COURT OR OTHER
TRIBUNAL LOCATED IN THE DOMICILE OF SUCH ADDITIONAL GUARANTOR, IF DIFFERENT FROM
THAT IN WHICH SUCH JUDGMENT IS RENDERED. THE ADDITIONAL GUARANTOR HEREBY AGREES
TO THE VALIDITY AND ENFORCEABILITY OF ANY SUCH JUDGMENT AND SHALL NOT SEEK TO
CHALLENGE OR "GO BEHIND" THE FACE OF SUCH JUDGMENT.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ADDITIONAL
GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES
ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR IN CONNECTION WITH THIS SUPPLEMENT, THE SUBSIDIARY GUARANTY OR ANY OTHER
CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR THEREUNDER.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE GUARANTEED PARTIES TO EXTEND
CREDIT TO OR OTHERWISE BECOME OR REMAIN A CREDITOR OF THE BORROWER. FURTHER,
GUARANTORS HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF THE GUARANTEED
PARTIES NOR ANY COUNSEL FOR THE GUARANTEED PARTIES HAS REPRESENTED,
18
EXPRESSLY OR OTHERWISE, THAT THE GUARANTEED PARTIES WOULD NOT, IN THE EVENT OF
SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT OF JURY TRIAL PROVISION.
NO REPRESENTATIVE OR AGENT OF THE GUARANTEED PARTIES NOR COUNSEL FOR THE
GUARANTEED PARTIES HAS THE AUTHORITY TO WAIVE, CONDITION OR MODIFY THIS
PROVISION.
IN WITNESS WHEREOF, the Additional Guarantor has caused this Supplement to
be duly executed and delivered under seal by its duly authorized officers as of
the date first above written.
Address for Notices: ADDITIONAL GUARANTOR:
____________________________
_______________________
_______________________
_______________________ By:_______________________________
Name:__________________________
Title:_________________________
Attest:___________________________
Name:_____________________
Title:_____________________
19
EXHIBIT "J"
FORM OF
SUPPLEMENT TO CONTRIBUTION AGREEMENT
SUPPLEMENT NO. __ dated as of ____________________, 19__, to the
CONTRIBUTION AGREEMENT dated as of March ____, 1998(the "Contribution
Agreement") by and among PLANET HOLLYWOOD INTERNATIONAL, INC., a Delaware
corporation ("the Borrower"), each of the subsidiaries of the Borrower party
thereto (together with any successors, referred to herein individually as a
"Guarantor" and collectively as "Guarantors") and SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION, as Administrative Agent (the "Administrative
Agent") for the Lenders parties to the Amended and Restated Revolving Credit
Agreement dated as of March ____, 1998, among the Borrower, the Lenders and the
Administrative Agent (as amended, modified or supplemented from time to time,
the "Credit Agreement"; capitalized terms used herein but not otherwise defined
herein have the meanings assigned to such terms in the Credit Agreement or the
Contribution Agreement, as the case may be).
Guarantors have entered into the Contribution Agreement in order to
induce the Lenders to make the Loans. Pursuant to Section 7.10 of the Credit
Agreement, each Material Subsidiary incorporated in the United States that was
not in existence or not a Material Subsidiary or incorporated in the United
States on the date thereof is required to enter into the Contribution Agreement
as a Guarantor upon becoming a Material Subsidiary of the Borrower incorporated
in the United States. Section 14 of the Contribution Agreement provides that
additional Subsidiaries of the Borrower may become Guarantors under the
Contribution Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned ("New Guarantor") is a Subsidiary of the
Borrower incorporated in the United States and is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Guarantor
under the Contribution Agreement in order to induce the Lenders to make
additional Loans and as consideration for the Loans previously made.
Accordingly, Administrative Agent and New Guarantor agree as
follows:
SECTION 1. Joinder to Contribution Agreement. In accordance with Section
14 of the Contribution Agreement, New Guarantor by its signature below becomes a
Guarantor under the Contribution Agreement with the same force and effect as if
originally named therein as a Guarantor, and New Guarantor hereby agrees to all
the terms and provisions of the Contribution Agreement applicable to it as a
Guarantor thereunder. Each reference to a "Guarantor" in the Contribution
Agreement shall be deemed to include New Guarantor. The Contribution Agreement
is
hereby incorporated herein by reference.
SECTION 2. Enforceability. This Supplement has been duly authorized,
executed and delivered by New Guarantor and constitutes a legal, valid and
binding obligation of New Guarantor, enforceable against it in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting creditors
rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
SECTION 3. Counterparts. This Supplement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
shall constitute but one and the same instrument.
SECTION 4. Effective Date. This Supplement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto, and written or
telephonic notification of such execution and authorization of delivery thereof
has been received by New Guarantor and Administrative Agent.
SECTION 5. Ratification of Contribution Agreement. Except as expressly
supplemented hereby, the Contribution Agreement shall remain in full force and
effect.
SECTION 6. CHOICE OF LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 7. Severability. In case any provision in or obligation under this
Supplement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 8. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 16 of the Contribution Agreement. All
communications and notices hereunder to New Guarantor shall be given to it at
the address set forth under its signature.
SECTION 9. Fees and Expenses. New Guarantor agrees to reimburse
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including the reasonable fees, disbursements and other
charges of counsel for Administrative Agent, whether suit be brought or not, and
all reasonable attorneys' fees, costs and expenses if an appeal is
21
taken.
IN WITNESS WHEREOF, New Guarantor and Administrative Agent have duly
executed this Supplement to Contribution Agreement as of the day and year first
above written.
NEW GUARANTOR:
_________________________________
By:______________________________
Name:_________________________
Title:________________________
Address: _________________________
_________________________________
_________________________________
ADMINISTRATIVE AGENT:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, as
Administrative Agent
By:______________________________
Name:_________________________
Title:________________________
22
EXHIBIT K
LEGAL DESCRIPTION OF HEADQUARTERS REAL PROPERTY
BEGIN at the most Westerly corner of Block "A", as shown on SOUTHPARK UNIT FOUR,
as recorded in Plat Book 20, Page 137, Public Records of Orange County, Florida;
thence run North 44 degrees 32 minutes 05 seconds East 285.07 feet along the
Westerly boundary of said Block "A"; thence run North 14 degrees 31 minutes 46
seconds East 775.29 feet to the Northwest corner of said Block "A"; thence run
North 89 degrees 25 minutes 24 seconds East 163.55 feet along the Northerly
boundary of said Block "A" to the beginning of a tangent curve concave
Southwesterly, having a radius of 566.20 feet and an intersection angle of 79
degrees 32 minutes 29 seconds; thence run Southeasterly 786.03 feet along the
arc of said curve and said Northerly boundary to the end of said curve; thence
run South 11 degrees 02 minutes 07 seconds East 25.00 feet along the Easterly
boundary of said Block "A" to a 4" X 4" concrete monument with disc stamped "LS
1585 LS 1819" LS 3186"; thence run South 78 degrees 57 minutes 53 seconds West
466.65 feet to a 4" X 4" concrete monument with disc stamped "LS 1585 LS 1819"
LS 3186", said 4" X 4" concrete monument being on a nontangent curve concave
Westerly and having a radius of 1000.00 feet; thence from a tangent bearing of
South 00 degrees 11 minutes 01 seconds East, run Southerly 410.34 feet along the
arc of said curve through a central angle of 23 degrees 30 minutes 39 seconds to
a 4" X 4" concrete monument with disc stamped "LS 1585 LS 1819" LS 3186" at the
end of said curve; thence run South 11 degrees 30 minutes 00 seconds West 50.00
feet to a 4" X 4" concrete monument with disc stamped "LS 1585 LS 1819" LS 3186"
being on the Northerly right-of-way line of Commodity Circle as shown on the
aforesaid plat of SOUTHPARK UNIT FOUR, said Northerly right-of-way line being a
nontangent curve concave Southerly and having a radius of 450.04 feet; thence
from a tangent bearing of North 78 degrees 30 minutes 20 seconds West, run
Westerly 405.00 feet along the arc of said curve and said Northerly right-of-way
line though a central angle of 51 degrees 33 minutes 42 seconds to the most
Easterly corner of Block "B" as shown on said SOUTHPARK UNIT FOUR; thence run
North 45 degrees 27 minutes 55 seconds West 56.99 feet to the most Northerly
corner of said Block "B"; thence run South 44 degrees 32 minutes 05 seconds West
22.00 feet to the most Westerly corner of said Block "B"; thence run North 45
degrees 27 minutes 55 seconds West 195.06 feet to the Point of Beginning.
CONTAINING: 13.937 Acres, more or less.
23
EXHIBIT "L"
[Form of Security Agreement]