EXHIBIT B
TO INDENTURE
THIS AGREEMENT IS SUBJECT TO AN INTERCREDITOR AND SUBORDINATION
AGREEMENT DATED OF EVEN DATE HEREWITH BY AND AMONG THE CIT GROUP/BUSINESS
CREDIT, INC., AS AGENT FOR THE LENDERS UNDER THE REVOLVING CREDIT AGREEMENT,
WILMINGTON TRUST COMPANY, AS AGENT UNDER THE SENIOR NOTE PURCHASE AGREEMENT,
UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE UNDER THE INDENTURE, AND
CONSENTED TO BY THE PIK HOLDERS SIGNATORY THERETO, WHICH MATERIALLY AFFECTS
CERTAIN PAYMENT RIGHTS, SUBORDINATES CERTAIN OBLIGATIONS AND CERTAIN SECURITY
INTERESTS, AND LIMITS RIGHTS TO ENFORCEMENT. ALL PERSONS OR OTHER ENTITIES WHICH
AT ANY TIME HOLD INDEBTEDNESS UNDER THIS AGREEMENT ARE BOUND BY THE TERMS OF
SUCH INTERCREDITOR AGREEMENT WHICH WILL BE MADE AVAILABLE UPON REQUEST.
FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of March __, 2000, made by
PLANET HOLLYWOOD INTERNATIONAL, INC., ALL STAR CAFE INTERNATIONAL,
INC., a Florida corporation, ALL STAR CAFE (NEW YORK), INC., a Florida
corporation, COOL PLANET, INC., a Florida corporation, COOL PLANET II, INC., a
Florida corporation, PLANET HOLLYWOOD (ATLANTIC CITY), INC., a Florida
corporation, PLANET HOLLYWOOD (HONOLULU), INC., a Florida corporation, PLANET
HOLLYWOOD INTERNATIONAL, INC., a Delaware corporation, PLANET HOLLYWOOD (LP),
INC., a Nevada corporation, PLANET HOLLYWOOD MEMORABILIA INC., a Florida
corporation, PLANET HOLLYWOOD NEW YORK, LTD., a Florida corporation, PLANET
HOLLYWOOD (NEW YORK CITY), INC., a Florida corporation, PLANET HOLLYWOOD
(ORLANDO), INC., a Florida corporation, PLANET HOLLYWOOD (REGION II), INC., a
Florida corporation, Planet Hollywood (Region III), Inc., a Florida corporation,
PLANET HOLLYWOOD (REGION IV), INC., a Minnesota corporation, PLANET HOLLYWOOD
(REGION V), INC., a Texas corporation, PLANET HOLLYWOOD (REGION VI), INC., a
Nevada corporation, PLANET HOLLYWOOD (REGION VII), INC., a Florida corporation,
PLANET HOLLYWOOD (TEXAS), LTD., a Texas limited partnership, and PLANET
HOLLYWOOD (WAREHOUSE), INC., a Florida corporation, MEANT 2 BE, INC., a Nevada
corporation, OFFICIAL ALL STAR CAFE, INC., a Nevada corporation, PLANET
HOLLYWOOD (LONDON), INC., a Florida corporation, PLANET HOLLYWOOD (PARIS), INC.,
a Florida corporation, PLANET HOLLYWOOD (TEL AVIV), INC., a Florida corporation,
PLANET HOLLYWOOD (THEATRES), INC., a Florida corporation, SILVER BRACELETS,
INC., a Florida corporation, SOUND REPUBLIC, INC., a Florida corporation, 308
AVIATION, INC., a Florida corporation, 308-III AVIATION, INC., a Florida
corporation, ALL STAR CAFE (LP), INC., a Nevada corporation, ALL STAR CAFE
(REGION V), INC., a Texas corporation, ALL STAR CAFE (REGION VII), INC., a
Florida corporation, COOL PLANET I, INC., a Florida corporation, EBCO
MANAGEMENT, INC., a Florida corporation, KARMALANNE, INC., a Nevada corporation,
PLANET HOLLYWOOD (ASPEN), INC., a Florida corporation, PLANET HOLLYWOOD (CHEFS),
INC., a Florida corporation, PLANET HOLLYWOOD (COSTA MESA), INC., a Florida
corporation, PLANET HOLLYWOOD (CHICAGO), INC., a Florida corporation, PLANET
HOLLYWOOD (GAMING), INC., a Florida corporation, Planet Hospitality Holdings,
Inc., a Florida corporation, PLANET HOLLYWOOD (MAIL ORDER), INC., a Florida
corporation, PLANET HOLLYWOOD (ORLANDO DISTRIBUTION), INC., a Florida
corporation, PLANET HOLLYWOOD (PHOENIX), INC., a Florida corporation, PLANET
HOLLYWOOD (REGION I), INC., a Florida corporation, PLANET HOLLYWOOD
TRANSPORTATION, INC., a Florida corporation, ROCKY PIT, INC., a Nevada
corporation, SOUND REPUBLIC I, INC., a Florida corporation, TEN ALPS, INC., a
Nevada corporation, Coast Licensing, Inc., a Nevada corporation, PLANET
HOLLYWOOD (FRANCE), L.C., a Florida corporation, PLANET HOLLYWOOD (ISRAEL),
L.C., a Florida corporation, and PLANET HOLLYWOOD (TROCADERO), L.C., a Florida
corporation, (each a "GRANTOR", collectively, the "GRANTORS"), in favor of
UNITED STATES TRUST COMPANY OF NEW YORK, as trustee and collateral agent (the
"AGENT") under that certain Indenture (such Indenture, as amended or otherwise
modified from time to time, the "INDENTURE"), dated as of the date hereof, among
Planet Hollywood International, Inc., the parties whose names and signatures
appear on the signature pages thereto under the heading "Subsidiary Guarantors"
and the Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, each Grantor will receive substantial direct and indirect
benefits from the Company and the Agent entering into the Indenture and the
Holders accepting the Notes as contemplated thereby;
WHEREAS, it is a condition precedent to the effectiveness of the
Indenture that the Grantors shall have executed and delivered to the Agent a
security agreement providing for the grant to the Agent of a lien on and
security interest in all personal property of each Grantor, including, without
limitation, the Memorabilia (as defined in Section 2(b)(ii) hereof);
NOW, THEREFORE, in consideration of the premises and the agreements
herein and of other good and valuable consideration, each Grantor hereby agrees
with the Agent as follows:
SECTION 1. DEFINED TERMS. As used in this Agreement, capitalized terms
used herein without definition have the meanings specified in the Indenture or
if not defined in the Indenture, then in Article 9 of the Uniform Commercial
Code (the "CODE") currently in effect in the State of New York, and the
following terms have the following meanings:
"COLLATERAL" is defined in Section 2 hereof.
"ENVIRONMENTAL LAW" shall mean all federal, state and local laws,
statutes, ordinances and regulations, now or hereafter in effect relating to the
regulation and protection of human health, safety, the environment and natural
resources. Environmental Laws include but are not limited to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C.ss.9601 ET SEQ.) ("CERCLA"); the Hazardous Material Transportation Act, as
amended (49 U.S.C.ss.180 ET SEQ.); the Resource Conservation and Recovery Act,
as amended (42 U.S.C.ss.6901 ET SEQ.) ("RCRA"); the Toxic Substance Control Act,
as amended (15 U.S.C.ss.2601 ET SEQ.); the Clean Air Act, as amended (42
U.S.C.ss.7401 ET SEQ.); the Federal Water Pollution Control Act, as amended (33
U.S.C.ss.1251 ET SEQ.); and their state and local counterparts or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import. References to
sections of ERISA shall be construed also to refer to any successor sections.
"ERISA AFFILIATE" shall mean any (i) corporation which is a member of
the same controlled group of corporations (within the meaning of Section 414(b)
of the Code) as Planet Hollywood International, Inc., (ii) partnership or other
trade or business (whether or not incorporated) under common control (within the
meaning of Section 414(c) of the Code) with Planet Hollywood International,
Inc., or (iii) member of the same affiliated service group (within the meaning
of Section 414(m) of the Code) as Planet Hollywood International, Inc., any
corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"INTERCREDITOR AGREEMENT" shall mean that certain Intercreditor and
Subordination Agreement dated of even date herewith by and among The CIT
Group/Business Credit, Inc., as agent for the Lenders under the Revolving Credit
Agreement, Wilmington Trust Company, as agent under the Senior Note Purchase
Agreement, United States Trust Company of New York, as Trustee under the
Indenture, and consented to by the Holders signatory thereto.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect upon
(i) the business, operations, condition (financial or otherwise), properties of
the Company or Planet Hollywood Memorabilia, Inc. individually or the Company
and the Subsidiary Guarantors as a whole, (ii) the ability of the Company or
Planet Hollywood Memorabilia, Inc. individually or the Company and the
Subsidiary Guarantors as a whole to perform their obligations hereunder or under
the Indenture, (iii) the legality, validity or enforceability of this Agreement,
the Notes or the Indenture, or (iv) saleability or the value of the Memorabilia
taken as a whole, as determined by a third party appraiser acceptable to the
Agent in its sole discretion.
"PERSON" means and includes an individual, a partnership, a
corporation, a limited liability company, a business trust, a joint stock
company, a trust, an unincorporated association, a joint venture, a governmental
subdivision, agency or authority or any other entity of any nature.
"PROCEEDS" has the meaning assigned to it under the Code and, in any
event, shall include, but not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to Grantor from time to time
with respect to any of the Collateral, (ii) any and all payments (in any form
whatsoever) made or due and payable to any Grantor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any governmental body,
authority, bureau or agency or any other Person (whether or not acting under
color of governmental authority) and (iii) any and all other monies or other
property from time to time paid or payable or distributed or distributable under
or in connection with any of the Collateral.
SECTION 2. GRANT OF SECURITY INTEREST. As collateral security for the
payment and performance of all of the Obligations (as defined in Section 3
hereof), each Grantor hereby pledges and assigns to the Agent, and grants to the
Agent a continuing security interest in, all of its personal property and
fixtures, wherever located and whether now or hereafter existing and whether now
owned or hereafter acquired, of every kind and description, tangible or
intangible (collectively, the "COLLATERAL"), including, without limitation, all
right, title and interest in and to the following:
(a) all equipment of any kind including, without limitation, all
furniture, fixtures and machinery, wherever located (including, without
limitation, at those locations set forth on Schedule IV hereto) and whether now
or hereafter existing and whether now owned or hereafter acquired, together with
all substitutes, replacements, accessions and additions thereto, and all tools,
parts, accessories and attachments used in connection therewith (hereinafter
collectively referred to as the "EQUIPMENT");
(b) (i) all inventory of any kind, wherever located (including,
without limitation, at those locations set forth on Schedule IV hereto) and
whether now or hereafter existing and whether now owned or hereafter acquired
(including, without limitation, all types of goods, property and other assets,
raw, in process and finished, and all other inventory, merchandise, goods and
other tangible personal property that its holds for sale or lease), all
materials used or consumed in its business, goods returned to or repossessed by
it, and goods in which it has an interest in mass or a joint or other interest
or right of any kind (including consigned goods or goods being processed), all
accessions thereto and products thereof and all packing and shipping materials
(hereinafter collectively referred to as the "INVENTORY");
(ii) (A) all memorabilia, collectibles, souvenirs, keepsakes or any
other tangible personal property wherever located (including, without
limitation, at those locations set forth on Schedule IV hereto) the market value
of which is to any extent derived from any association with (1) a celebrity,
entertainer, athlete or any other person reasonably understood to be a
celebrity, entertainer or athlete, or (2) any motion picture, television
program, series of television programs or sports or entertainment event, (B) all
memorabilia, collectibles, souvenirs or keepsakes recognized as such by the
Agent, to or in which it has a right of ownership (including, without
limitation, all items at any time appearing on the Memorabilia Report and any
Memorabilia Change Report), and (C) all trademarks (and Authenticity Documents
related thereto), copyrights and other intellectual property with respect
thereto, and all reproduction, display and other exploitative merchandising
rights in any and all media (hereinafter collectively referred to as the
"MEMORABILIA");
(c) (i) all accounts, contract rights, chattel paper, instruments,
documents, general intangibles and other obligations of any kind, whether now or
hereafter existing and whether now owned or hereafter acquired, arising out of
or in connection with the sale or lease of goods or any of the foregoing
Collateral (including, without limitation, the Inventory and the Memorabilia) or
the rendering of services or otherwise; and (ii) all rights now or hereafter
existing in and to all credit insurance, guaranties, letters of credit, security
agreements, leases and other contracts now or hereafter existing and securing or
otherwise relating to any such accounts, contract rights, chattel paper,
instruments, general intangibles or obligations (any and all such accounts,
contract rights, chattel paper, instruments, general intangibles and obligations
being hereinafter referred to collectively as the "RECEIVABLES", and any and all
such credit insurance, guaranties, letters of credit, security agreements,
leases and other contracts being hereinafter referred to collectively as the
"RELATED CONTRACTS");
(d) (i) all trademarks, service marks, trade names, business names,
trade dress, trade styles, designs, logos and other source or business
identifiers and all general intangibles of like nature, now or hereafter owned,
adopted, acquired or used in connection with any Collateral, including, without
limitation, Inventory or Memorabilia, all applications, registrations and
recordings thereof (including, without limitation, applications, registrations
and recordings in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any of state thereof or of any
other country or of any political subdivision thereof (including, without
limitation, all registered trademarks and pending trademark applications
identified in the tables set forth in Schedule II hereto, which are being
granted hereby by such Grantor identified in the leftmost entry of the row
corresponding to such registered trademark or pending application identified
therein)), and all reissues, extensions or renewals thereof, together with all
goodwill of the business symbolized by such marks and all customer lists,
formulae and other records relating to the distribution of products and services
in connection with which any of such marks are used, and all income, royalties,
damages and payments now or hereafter due and/or payable under and with respect
thereto, including, without limitation, payments under all licenses entered into
in connection therewith and damages and payments for past and future
infringements or dilutions thereof and the right to xxx for past, present and
future infringements and dilutions thereof (hereinafter referred to collectively
as the "TRADEMARKS"), and (ii) all licenses, contracts or other agreements,
whether written or oral, naming it as licensor or licensee and providing for the
grant of any right to use any Trademark, including, without limitation, all
Trademark licenses identified in the table set forth in Schedule II hereto, such
license, contract or other agreement being granted hereby by such Grantor
identified in the column corresponding to such Trademark license, contract or
other contract, together with any goodwill connected with and symbolized by any
such Trademark licenses or agreements and the right to prepare for sale and sell
any and all Inventory or Memorabilia now or hereafter owned and now or hereafter
covered by such licenses (hereinafter referred to collectively as the "TRADEMARK
LICENSES");
(e) (i) all letters patent, design patents and utility patents, and
all copyrights, inventions, trade secrets, proprietary information and
technology, know-how, formulae and other general intangibles of like nature, now
existing or hereafter acquired, all applications, registrations and recordings
thereof (including, without limitation, applications, registrations and
recordings in the United States Patent and Trademark Office or in any similar
office or agency of the United States or of any other country or of any
political subdivision thereof (including, without limitation, all issued
patents, pending patent applications and patent applications in preparation
identified in the tables set forth in Schedule III hereto, which are being
granted hereby by such Grantor identified in the leftmost entry of the row
corresponding to such issued patents, pending patent applications and patent
applications in preparation identified therein)), and all reissues, divisions,
continuations, continuations in part and extensions or renewals thereof
(hereinafter referred to collectively as the "PATENTS"), and (ii) all licenses,
contracts or other agreements, whether written or oral, naming it as licensee or
licensor and providing for the grant of any right to manufacture, use or sell
any invention covered by any Patent, including, without limitation, all Patents
identified in the table set forth in Schedule III hereto, such license, contract
or other agreement being granted hereby by such Grantor identified in the row
corresponding to such Patent license (hereinafter referred to collectively as
the "PATENT LICENSES");
(f) (i) all domestic and foreign copyrights, including, without
limitation, all copyright rights throughout the world (whether now or hereafter
arising) in any and all media (whether now or hereafter developed), in and to
all original works of authorship fixed in any tangible medium of expression,
acquired or used, all applications, registrations and recordings thereof
(including, without limitation, applications, registrations and recordings in
the United States Copyright Office or in any similar office or agency of the
United States or any other country or any political subdivision thereof
(including, without limitation, all registered copyrights identified in the
tables set forth in Schedule IV hereto, which are being granted hereby by such
Grantor identified in the leftmost entry of the row corresponding to such
registered copyrights identified therein)), and all reissues, divisions,
continuations, continuations in part and extensions or renewals thereof
(hereinafter referred to collectively as the "COPYRIGHTS"), and (ii) all
licenses, contracts or other agreements, whether written or oral, naming it as
licensee or licensor and providing for the grant of any right to use or sell any
works covered by any Copyright, including, without limitation, all Copyrights
identified in the table set forth in Schedule IV hereto, such license, contract
or other agreement being granted hereby by such Grantor identified in the row
corresponding to such Copyright license (hereinafter referred to collectively as
the "COPYRIGHT LICENSES" and together with the Trademark Licenses and the Patent
Licenses, the "LICENSES");
(g) (i) all moneys, securities and other property, and the Proceeds
thereof, now or hereafter held or received by, or in transit to, the Agent from
or for it, whether for safekeeping, pledge, custody, transmission, collection or
otherwise, and all of its claims against the Agent at any time existing; (ii)
all rights relating to the sale or other transfer of property to, or the
construction, renovation or other improvement of property by or for, such
Grantor (other than the Retail Unit); (iii) all rights, interests, choses in
action, causes of actions, claims and all other intangible property of every
kind and nature, in each instance whether now owned or hereafter acquired,
including, without limitation, all corporate and other business records, all
loans, royalties, and all other forms of obligations receivable whatsoever
(other than Receivables); (iv) all computer programs, software, printouts and
other computer materials, customer lists, credit files, correspondence and
advertising materials; (v) all customer and supplier contracts, sale orders,
rights under license and franchise agreements, and other contracts and contract
rights; (vi) all interests in partnerships, joint ventures and other entities
including all moneys due from time to time in respect thereof; (vii) all
federal, state and local tax refunds and federal, state and local tax refund
claims; (viii) all right, title and interest under leases, subleases, licenses
and concessions and other agreements relating to personal property, including
all moneys due from time to time in respect thereof; (ix) all payments due or
made to such Grantor in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of any property by any Person, Governmental
Authority or regulatory body; (x) the Cash Concentration Account, the Letter of
Credit Cash Collateral Account, all Depository Accounts (each as defined in the
Revolving Credit Agreement) and all other deposit accounts (general or special)
with any bank or other financial institution, including, without limitation, all
depository or other accounts maintained by such Grantor at the Revolving Credit
Agent or any Lender and all funds on deposit therein and the balance from time
to time in all accounts described in Schedule VI hereto; (xi) all credits with
and other claims against third parties (including carriers and shippers); (xii)
all rights to indemnification; (xiii) all reversionary interests in pension and
profit sharing plans and reversionary, beneficial and residual interests in
trusts; (xiv) all letters of credit, guaranties, liens, security interests and
other security held by or granted to such Grantor; (xv) all instruments, files,
records, ledger sheets and documents covering or relating to any of the
Collateral; and (xvi) all general intangibles, whether or not similar to the
foregoing, in each instance, however and wherever arising;
(h) all books and records relating to any of the foregoing Collateral,
including, without limitation, (i) all customer contracts, sale orders, minute
books, ledgers, records, computer programs, software, printouts, Authenticity
Documents and other computer materials, customer lists, credit files,
correspondence and advertising materials, in each case indicating, summarizing
or evidencing any of the Collateral, and (ii) all right, title and interest in
and under any purchase agreements, bills of sale, invoices or similar documents
in respect of any of the Memorabilia, as such documents may be amended or
otherwise modified from time to time (hereinafter collectively referred to as
the "PURCHASE AGREEMENTS"); and
(i) all Proceeds of any and all of the foregoing Collateral
(including, without limitation, (i) damages and payments for past or future
infringements of the Trademarks, the Patents or the Copyrights, (ii) the right
to xxx for past, present and future infringements of the Trademarks, the Patents
or the Copyrights, (iii) all right, title and interest in and to all policies of
insurance covering any Collateral, including, without limitation, the Inventory
and the Memorabilia, and (iv) to the extent not otherwise included, all payments
under insurance (whether or not the Agent is the loss payee thereof) and any
indemnity, warranty or guaranty payable by reason of loss or damage to or
otherwise with respect to any of the foregoing Collateral, including, without
limitation, the Inventory and the Memorabilia, in each case howsoever such
interest therein may arise or appear (whether by ownership, security interest,
claim or otherwise)).
Notwithstanding anything herein to the contrary, in no event shall the
Collateral include, and no Grantor shall not be deemed to have granted a
security interest in, any rights or interests in any license, contract or
agreement to which it is a party or any of its rights or interests thereunder to
the extent that such a grant would, under the express terms of such license,
contract or agreement or otherwise, result in a breach of the terms of, or
constitute a default under such license, contract or agreement (other than to
the extent that any such term would be rendered ineffective pursuant to Section
9-318(4) of the Code of any relevant jurisdiction or any other applicable law
(including the Bankruptcy Code) or principles of equity); PROVIDED, HOWEVER,
that the Collateral shall include (x) any and all proceeds of Collateral to the
extent that the assignment or encumbering of such proceeds is not so restricted,
and (y) upon any such licensor or other applicable party's consent with respect
to any such otherwise excluded item of Collateral being obtained, thereafter
such item of Collateral as well as any Proceeds thereof that might theretofore
have been excluded from such grant, assignment, transfer, and conveyance of a
security interest and the term Collateral.
SECTION 3. SECURITY FOR OBLIGATIONS. The security interests created
hereby in the Collateral constitute continuing collateral security for all of
the following obligations, whether now existing or hereafter incurred (the
"OBLIGATIONS"):
(a) the due and punctual payment of the principal and premium, if any,
of, and interest on, the Notes when and as the same shall be due and payable, by
acceleration, repurchase, redemption or otherwise, interest on the overdue
principal of and interest (to the extent permitted by law), if any, on the Notes
and under the Indenture (including, without limitation, all interest that
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency or reorganization of any Grantor); and
(b) the due performance and observance by each Grantor of all of its
other obligations from time to time existing in respect of the Notes and the
Indenture.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each Grantor represents and
warrants as follows:
(a) Except as set forth in the financial statements referred to in
Section 7.08 of the Revolving Credit Agreement and on Schedule 7.07 thereto,
there is not, to its best knowledge, any pending or threatened (i) action, suit,
proceeding or claim before any court, Governmental Authority, arbitrator or
grand jury against or affecting any Grantor or any ERISA Affiliate with respect
to any Environmental Law or ERISA, that, if adversely decided, could reasonably
be expected to have a Material Adverse Effect, or (ii) any order, judgment or
award by any court, Governmental Authority or arbitrator, that may adversely
affect the grant, or the perfection, of the security interest purported to be
created hereby, or the exercise by the Agent of any of its rights or remedies
hereunder.
(b) All taxes, assessments and other governmental charges imposed upon
it or any of its property (including, without limitation, all federal income and
social security taxes on employees' wages) and which have become due and payable
on or prior to the date hereof have been paid, except to the extent contested in
good faith by proper proceedings which stay the imposition of any penalty, fine
and Lien resulting from the non-payment thereof and with respect to which
adequate reserves in accordance with GAAP have been established for the payment
thereof.
(c) All Equipment, Inventory and Memorabilia now existing is, and all
Equipment, Inventory and Memorabilia hereafter existing will be, located at the
addresses specified therefor in Schedule V hereto. Its chief place of business
and chief executive office, the place where it keeps its records concerning
Receivables and all originals of all chattel paper which constitute Receivables
are located at the addresses specified therefor in Schedule V hereto. None of
the Receivables is evidenced by a promissory note or other instrument. Set forth
in Schedule VII hereto is a complete and correct list of each trade name used by
each Grantor identified therein. Set forth in Schedule VI hereto is a complete
and correct list of each Depository Account and other bank and securities
account held and granted hereby by such Grantor identified in the leftmost entry
of the row corresponding to such Depository Account, the account number and the
type of account.
(d) It has delivered to the Agent complete and correct copies of each
Trademark License identified in Schedule II hereto and each Copyright License
identified in Schedule IV hereto, including all schedules and exhibits thereto.
Each such License sets forth the entire agreement and understanding of the
parties thereto relating to the subject matter thereof, and there are no other
agreements, arrangements or understandings, written or oral, relating to the
matters covered thereby or the rights in respect thereof. Each Related Contract
now existing is, and each other Related Contract will be, the legal, valid and
binding obligation of the parties thereto, enforceable against such parties in
accordance with its terms. No default thereunder by any such party has occurred,
nor does any defense, offset, deduction or counterclaim exist thereunder in
favor of any such party.
(e) It owns and controls, or otherwise possesses adequate rights to
use, all Trademarks, Patents and Copyrights, which are the only trademarks,
patents and copyrights necessary to conduct its business in substantially the
same manner as conducted as of the date hereof; PROVIDED, HOWEVER, that any
failure to own, control or possess such rights shall not make this subsection
(e) a Material Adverse Effect unless such failure could reasonably be expected
to result in a Material Adverse Effect. Schedule II hereto sets forth a true and
complete list of all Trademarks and Trademark Licenses owned or used by it as of
the date hereof. Schedule III hereto sets forth a true and complete list of all
Patents and Patent Licenses owned or used by it as of the date hereof. Schedule
IV hereto sets forth a true and complete list of all Copyrights and Copyright
Licenses owned or used by it as of the date hereof. All of such Trademarks,
Patents and Copyrights are subsisting and in full force and effect, have not
been adjudged invalid or unenforceable, are valid and enforceable and have not
been abandoned in whole or in part. Except as set forth in Schedule II, III or
IV hereto, none of such Trademarks, Patents or Copyrights is the subject of any
licensing or franchising agreement. It has no knowledge of any conflict with the
rights of others to any Trademark, Patent or Copyright and, to the best of its
knowledge, it is not now infringing or in conflict with any such rights of
others in any material respect, and to the best its knowledge, no other Person
is now infringing or in conflict in any material respect with any such
properties, assets and rights owned or used by it.
(f) Each item of Memorabilia is an original and authentic piece of
Memorabilia.
(g) Subject to the terms and conditions of the Intercreditor
Agreement, it is and will be at all times the sole and exclusive owner of the
Collateral free and clear of any Lien, except for Permitted Liens. No effective
financing statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any recording or filing office except such
as may have been filed in favor of the Agent relating to this Agreement.
(h) The exercise by the Agent of any of its rights and remedies
hereunder will not contravene law or any contractual restriction binding on or
otherwise affecting it or any of its properties and will not result in or
require the creation of any Lien upon or with respect to any of its properties.
(i) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority or other regulatory body, or any
other Person, is required for (i) the grant by it, or the perfection, of the
security interest purported to be created hereby in the Collateral or (ii) the
exercise by the Agent of any of its rights and remedies hereunder, except (A)
with respect to the perfection of the security interest created hereby in the
United States Trademarks or the United States Copyrights for the recording of
the Assignment for Security (Trademarks) in the United States Patent and
Trademark Office, the Assignment for Security (Copyrights) in the United States
Copyright Office and the filing under the Uniform Commercial Code as in effect
in the applicable jurisdiction of the financing statements described in Schedule
VIII hereto, all of which financing statements have been duly filed and are in
full force and effect, or (B) with respect to the perfection of the security
interest created hereby in foreign Trademarks, Patents and Copyrights, for
registrations and filings in jurisdictions located outside of the United States
and covering rights in such jurisdictions relating to Patents, Trademarks,
Copyrights, Patent Licenses, Trademark Licenses and Copyright Licenses.
(j) This Agreement creates valid security interests in favor of the
Agent in the Collateral, as security for the Obligations. The Revolving Credit
Agent's having possession of all instruments and cash constituting Collateral
from time to time, the recording of the Assignment for Security (Trademarks),
the Assignment for Security (Patents) and the Assignment for Security
(Copyrights), as applicable, executed pursuant hereto in the United States
Patent and Trademark Office, and the United States Copyright Office, as
applicable, and the filing of the financing statements described in Schedule
VIII hereto and, with respect to Patents, Trademarks and Copyrights hereafter
existing and not covered by such an Assignment for Security (Trademarks), an
Assignment for Security (Patents) or an Assignment for Security (Copyrights), as
applicable, the recording in the United States Patent and Trademark Office or
the United States Copyright Office, as applicable, of appropriate instruments of
assignment, result in the perfection of such security interests. Upon such
recordings and filings, such security interests are, or in the case of
Collateral in which it obtains rights after the date hereof, will be perfected
security interests having the priorities set forth in the Intercreditor
Agreement. Such recordings and filings and all other action necessary or
desirable to perfect and protect such security interest have been duly taken,
except for the Revolving Credit Agent's having possession of instruments and
cash constituting Collateral after the date hereof and the other filings and
recordations described in Section 4(i) hereof.
(k) No Memorabilia is subject to any restriction on pledge, transfer
or sale.
SECTION 5. COVENANTS AS TO THE COLLATERAL. So long as any of the
Obligations shall remain outstanding, unless the Agent shall otherwise consent
in writing:
(a) FURTHER ASSURANCES. Each Grantor will at its expense, at any time
and from time to time, promptly execute and deliver all further instruments and
documents and take all further action that may be reasonably necessary or
reasonably desirable or that the Agent may reasonably request in order (i) to
perfect and protect the security interest purported to be created hereby, (ii)
to enable the Agent to exercise and enforce its rights and remedies hereunder in
respect of the Collateral, or (iii) otherwise to effect the purposes of this
Agreement, including, without limitation (A) marking conspicuously each chattel
paper included in the Receivables and each License and Related Contract and, at
the request of the Agent, each of its records pertaining to the Collateral with
a legend, in form and substance satisfactory to the Agent, indicating that such
chattel paper, License, Related Contract or Collateral is subject to the
security interest created hereby, (B) if any Receivable shall be evidenced by a
promissory note or other instrument or chattel paper, delivering and pledging to
the Agent hereunder any such note, instrument or chattel paper duly endorsed and
accompanied by executed instruments of transfer or assignment, all in form and
substance satisfactory to the Agent, (C) executing and filing such financing or
continuation statements, or amendments thereto, as may be necessary or desirable
or that the Agent may request in order to perfect and preserve the security
interest purported to be created hereby, and (D) furnishing to the Agent from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the Agent
may reasonably request, all in reasonable detail.
(b) CONDITION OF EQUIPMENT. Each Grantor will maintain or cause to be
maintained in good repair, working order and condition, excepting ordinary wear
and tear and damage due to casualty, all of the Equipment and make or cause to
be made all of the appropriate repairs, renewals and replacements thereof which
are necessary or desirable and consistent with its past practice, as quickly as
practicable after the occurrence of any loss or damage thereto. Each Grantor
shall promptly furnish to the Agent a statement describing in reasonable detail
any loss or damage in excess of $500,000 to any Equipment, Inventory or
Memorabilia due to casualty.
(c) TAXES, ETC. Each Grantor will pay promptly when due all property
and other taxes, assessments and governmental charges or levies imposed upon,
and all claims (including claims for labor, materials and supplies) against, the
Equipment, the Inventory or the Memorabilia, except to the extent the validity
thereof is being contested in good faith by proper proceedings which stay the
imposition of any penalty, fine or lien resulting from the non-payment thereof
and with respect to which adequate reserves in accordance with GAAP have been
set aside for the payment thereof.
(d) INSURANCE.
(i) Each Grantor shall, at its own expense, maintain
insurance (including, without limitation, comprehensive general
liability and property insurance) with respect to the Equipment and
Inventory in such amounts, against such risks, in such form and with
such insurers as shall be satisfactory to the Agent from time to time
keep its properties adequately insured and maintain (i) insurance to
such extent and against such risks, including fire, as is customary
with companies in the same or similar businesses, (ii) workmen's
compensation insurance in the amount required by applicable law, (iii)
public liability insurance in the amount customary with companies in
the same or similar business against claims for personal injury or
death on properties owned, occupied or controlled by it, and (iv) such
other insurance as may be required by law or by the Indenture. With
respect to each Grantor, each policy for liability insurance shall
provide for all losses to be paid on behalf of the Agent and such
Grantor as their respective interests may appear. With respect to each
Grantor, each policy for property damage insurance shall (1) provide
for all losses to be paid directly to the Agent, (2) name such Grantor
and the Agent as insured parties thereunder (without any
representation or warranty by or obligation upon the Agent) as their
interests may appear, (3) contain the agreement by the insurer that
any loss thereunder shall be payable as provided above notwithstanding
any action, inaction or breach of representation or warranty by such
Grantor, (4) provide that there shall be no recourse against the Agent
for payment of premiums or other amounts with respect thereto, and (5)
provide that at least thirty (30) days' prior written notice of
cancellation or of lapse shall be given to the Agent by the insurer.
Each Grantor will, if so requested by the Agent, deliver to the Agent
original or duplicate policies of such insurance and will deliver on
the date hereof, and thereafter as often as the Agent may reasonably
request, a report of a reputable insurance broker with respect to
certifying such insurance to be adequate and customary. Each Grantor
will also, at the request of the Agent, execute and deliver
instruments of assignment of such insurance policies and cause the
respective insurers to acknowledge notice of such assignment.
(ii) Payment under any liability insurance maintained by any
Grantor pursuant to this Section 5(d) may be paid directly to the
Person who shall have incurred liability covered by such insurance. In
the case of any loss involving damage to Equipment, Inventory or
Memorabilia as to which paragraph (iii) of this Section 5(d) is not
applicable, the applicable Grantor will make or cause to be made the
necessary repairs to or replacements of such Equipment, Inventory or
Memorabilia, and, subject to Section 5(d)(i), any proceeds of
insurance maintained by such Grantor pursuant to this Section 5(d)
shall be paid by the Agent to such Grantor as reimbursement for the
costs of such repairs or replacements.
(iii) Without limiting the foregoing, upon the occurrence
and during the continuance of an Event of Default or upon the actual
or constructive total loss (in excess of $250,000 per occurrence) of
any Equipment, Inventory or Memorabilia, all insurance payments in
respect of such Equipment, Inventory or Memorabilia shall be paid and
applied as specified in Section 5(d)(i) hereof.
(e) PROVISIONS CONCERNING THE RECEIVABLES, THE RELATED CONTRACTS AND
THE LICENSES.
(i) Each Grantor will (A) give the Agent at least thirty
(30) days' prior written notice of any change in its name, identity or
organizational structure and, in the event of any such change, shall
take all actions necessary to preserve the Agent's rights in the
Collateral, including, without limitation, the existence, perfection
and priority of the security interest created hereby in such
Collateral, (B) keep its chief place of business and chief executive
office and all originals of all chattel paper that constitute
Receivables at the location(s) specified therefor in Schedule V hereof
or at such other locations of which it has given the Agent thirty (30)
days' prior written notice; PROVIDED, HOWEVER, in the event of any
such change, shall take all actions necessary to preserve the Agent's
rights in the Collateral, including, without limitation, the
existence, perfection and priority of the security interest created
hereby in such Collateral and (C) keep adequate records concerning the
Receivables and such chattel paper and permit representatives of the
Agent at any time during normal business hours to inspect and make
abstracts from such records and chattel paper.
(ii) Each Grantor will duly perform and observe all of its
obligations under each Related Contract and, except as otherwise
provided in this subsection (e), continue to collect, at its own
expense, all amounts due or to become due under the Receivables. In
connection with such collections, each Grantor may (and, at the
Agent's direction, will) take such action as it or the Agent may deem
necessary or advisable to enforce collection or performance of the
Receivables; PROVIDED, HOWEVER, that the Agent shall have the right at
any time, upon the occurrence and during the continuance of an Event
of Default, to notify the account debtors or obligors under any
Receivables of the assignment of such Receivables to the Agent and to
direct such account debtors or obligors to make payment of all amounts
due or to become due to it thereunder directly to the Agent or its
designated agent and, upon such notification and at the expense of
such Grantor and to the extent permitted by law, to enforce collection
of any such Receivables and to adjust, settle or compromise the amount
or payment thereof, in the same manner and to the same extent as such
Grantor might have done. After receipt of a notice from the Agent that
the Agent has notified or intends to notify the account debtors or
Obligors under any Receivables as referred to in the proviso to the
immediately preceding sentence, (A) all amounts and Proceeds
(including instruments) received by such Grantor in respect of the
Receivables shall be received in trust for the benefit of the Agent
hereunder, shall be segregated from other funds of such Grantor and
shall be forthwith paid over to the Agent in the same form as so
received (with any necessary endorsement) to be held as cash
collateral and either (1) released to such Grantor so long as no Event
of Default shall have occurred and be continuing or (2) if any
Potential Default or Event of Default shall have occurred and be
continuing, applied as specified in Section 7(b) hereof, and (B) such
Grantor will not adjust, settle or compromise the amount or payment of
any Receivable or release wholly or partly any account debtor or
obligor thereof or allow any credit or discount thereon. In addition,
upon the occurrence and during the continuance of an Event of Default,
the Agent shall have the right to notify the United States Postal
Service authorities to change the address for delivery of mail
addressed to any Grantor at such address as the Agent may designate
and to do all other acts and things necessary to carry out this
Agreement.
(iii) Upon the occurrence and during the continuance of any
breach or default under any Related Contract or any License referred
to in Schedule II, III or IV hereto by any party thereto other than a
Grantor, the Grantor party to such Related Contract or License (A)
will promptly after obtaining knowledge thereof, give the Agent
written notice of the nature and duration thereof, specifying what
action, if any, it has taken and proposes to take with respect
thereto, (B) will not, without the prior written consent of the Agent,
declare or waive any such breach or default or affirmatively consent
to the cure thereof or exercise any of its remedies in respect
thereof, and (C) will, upon written instructions from the Agent and at
such Grantor's expense, take such action as the Agent may deem
necessary or advisable in respect thereof.
(iv) Each Grantor will, at its expense, promptly deliver to
the Agent a copy of each notice or other communication received by it
by which any other party to any Related Contract or any License
referred to in Schedule II, III or IV hereto purports to exercise any
of its rights or affect any of its obligations thereunder, together
with a copy of any reply by it thereto.
(v) Except as set forth in Section 5.02 of the Revolving
Credit Agreement, each Grantor will exercise promptly and diligently
each and every right which it may have under each License (other than
any right of termination) and will duly perform and observe in all
respects all of its obligations under each License and will take all
action necessary to maintain all Licenses necessary for the operation
of its business in full force and effect. No Grantor will, without the
prior written consent of the Agent, cancel, terminate, amend or
otherwise modify in any respect, or waive any provision of, any
Related Contract or any License referred to in Schedule II, III or IV
hereto.
(f) TRANSFERS AND OTHER LIENS.
(i) No Grantor will sell, assign (by operation of law or
otherwise), lease, exchange or otherwise transfer or dispose of any of
the Collateral except to the extent expressly permitted under Section
10.3 of the Indenture.
(ii) No Grantor will create or suffer to exist any Lien upon
or with respect to any Collateral except for Permitted Liens under the
Indenture.
(g) TRADEMARKS, PATENTS AND COPYRIGHTS.
(i) Except as set forth in Section 5.02 of the Revolving
Credit Agreement, each Grantor (either itself or through licensees)
will, and will cause each licensee thereof to, take all action
necessary to maintain all of the Trademarks, Patents and Copyrights in
full force and effect, including, without limitation, using all proper
statutory notices and markings and using the Trademarks on each
applicable trademark class of goods or services in order to so
maintain the Trademarks in full force free from any claim of
abandonment for non-use, and will not (and will not permit any
licensee thereof to) do any act or knowingly omit to do any act
whereby any Trademark, Copyright or Patent may become invalidated;
PROVIDED, HOWEVER, that so long as no Event of Default has occurred
and is continuing, no Grantor shall have an obligation to use or to
maintain any Trademark or Copyright (A) that relates solely to any
product that has been, or is in the process of being, discontinued,
abandoned or terminated, (B) that is being replaced with a trademark
or copyright substantially similar to the Trademark or Copyright, as
the case may be, that may be abandoned or otherwise become invalid, so
long as such replacement Trademark or Copyright, as the case may be,
is subject to the security interest purported to be created by this
Agreement, or (C) that is substantially the same as another Trademark
or Copyright, as the case may be, that is in full force, so long as
such other Trademark or Copyright, as the case may be, is subject to
the lien and security interest created by this Agreement. Each Grantor
will cause to be, taken all necessary steps in any proceeding before
the United States Patent and Trademark Office and the United States
Copyright Office to maintain each registration of the Trademarks, the
Patents and the Copyrights (other than those Trademarks, Patents or
Copyrights described in the proviso to the immediately preceding
sentence), including, without limitation, filing of renewals,
affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings and payment of all requisite
fees and taxes. Each Grantor shall, if any Trademark, Patent or
Copyright is infringed, misappropriated or diluted in any material
respect by a third party, (x) upon learning of such infringement,
misappropriation or dilution, promptly notify the Agent and (y) to the
extent it shall deem appropriate under the circumstances, promptly xxx
for infringement, misappropriation or dilution, seek injunctive relief
where appropriate and recover any and all damages for such
infringement, misappropriation or dilution, or take such other actions
as it deems appropriate under the circumstances to protect such
Trademark, Patent or Copyright. Each Grantor shall furnish to the
Agent from time to time (but, unless an Event of Default has occurred
and is continuing, no more frequently than annually) statements and
schedules further identifying and describing the Patents, the
Trademarks and the Copyrights and such other reports in connection
with the Patents, the Trademarks and the Copyrights as the Agent may
reasonably request, all in reasonable detail and promptly upon request
of the Agent; following receipt by the Agent of any such statements,
schedules or reports, the Grantors shall modify this Agreement by
amending Schedules II or, III or IV hereto, as the case may be, to
include any Patent, Trademark or Copyright which becomes part of the
Collateral under this Agreement. Notwithstanding anything herein to
the contrary, upon the occurrence and during the continuance of an
Event of Default, no Grantor may abandon or otherwise permit a
Trademark, Patent or Copyright to become invalid without the prior
written consent of the Agent, and if any Trademark, Patent or
Copyright is infringed, misappropriated or diluted in any material
respect by a third party, each Grantor will take such action as the
Agent shall deem appropriate under the circumstances to protect such
Trademark, Patent or Copyright.
(ii) In no event shall any Grantor, either itself or through
any agent, employee, licensee or designee, file an application for the
registration of any Trademark or Copyright or the issuance of any
Patent with the United States Patent and Trademark Office or the
United States Copyright Office, as applicable, unless it gives the
Agent prior written notice thereof. Upon request of the Agent, any
such Grantor shall execute and deliver any and all assignments,
agreements, instruments, documents and papers as the Agent may
reasonably request to evidence the Agent's security interest hereunder
in such Trademark, Copyright or Patent and the general intangibles
relating thereto or represented thereby, and each Grantor hereby
constitutes the Agent its attorney-in-fact to execute and file all
such writings for the foregoing purposes, all acts of such attorney
being hereby ratified and confirmed, and such power (being coupled
with an interest) shall be irrevocable until the termination of all of
the Obligations in full.
(h) [Intentionally left blank]
(i) MEMORABILIA. Each Grantor shall (i) cause the Memorabilia to be
maintained and preserved in the same condition as when acquired; (ii) at its own
expense, defend its right, title and interest in and to the Memorabilia against
the claims of any Person; (iii) not cancel or terminate, or make or consent to
any cancellation, termination, amendment or other modification or waiver with
respect to, any Purchase Agreement; or (iv) not take or fail to take any action
that would in any manner impair the enforceability of any of the Purchase
Agreements against the seller that is a party thereto.
SECTION 6. ADDITIONAL PROVISIONS CONCERNING THE COLLATERAL.
(a) Each Grantor hereby authorizes the Agent to file, without its
signature where permitted by law, one or more financing or continuation
statements, and amendments thereto, relating to the Collateral.
(b) Each Grantor hereby irrevocably appoints the Agent its
attorney-in-fact and proxy, with full authority in its place and stead and in
its name or otherwise, from time to time in the Agent's discretion, to take any
action and to execute any instrument which the Agent may deem reasonably
necessary or reasonably advisable to accomplish the purposes of this Agreement
(subject to its rights under Section 5(e) hereof), including, without
limitation, (i) upon the occurrence and during the continuance of an Event of
Default, to obtain and adjust insurance required to be paid to the Agent
pursuant to Section 5(d) hereof, (ii) upon the occurrence and during the
continuance of an Event of Default, to ask, demand, collect, xxx for, recover,
compound, receive and give acquitance and receipts for moneys due and to become
due under or in respect of any Collateral, (iii) upon the occurrence and during
the continuance of an Event of Default, to receive, endorse, and collect any
drafts or other instruments, documents and chattel paper in connection with
clause (i) or (ii) above, and (iv) upon the occurrence of an Event of Default,
to file any claims or take any action or institute any proceedings which the
Agent may deem reasonably necessary or reasonably desirable for the collection
of any Collateral or otherwise to enforce the rights of the Agent with respect
to any Collateral.
(c) For the purpose of enabling the Agent to exercise rights and
remedies hereunder at such time as the Agent shall be lawfully entitled to
exercise such rights and remedies, and for no other purpose, each Grantor hereby
grants to the Agent, to the extent assignable, an irrevocable, non-exclusive
license (exercisable without payment of royalty or other compensation to any
Grantor) to use, assign, license or sublicense any of the Patents, Trademarks or
Copyrights now owned or hereafter acquired by such Grantor, wherever the same
may be located, including in such license reasonable access to all media in
which any of the licensed items may be recorded or stored and to all computer
programs used for the compilation or printout thereof. Notwithstanding anything
contained herein to the contrary, but subject to the provisions of the Indenture
that limits the right of the Grantors to dispose of property and Section 5(g)
hereof, so long as no Event of Default shall have occurred and be continuing,
each Grantor may exploit, use, enjoy, protect, license, sublicense, assign,
sell, dispose of or take other actions with respect to the Patents, Trademarks
or Copyrights in the ordinary course of its business. In furtherance of the
foregoing, unless an Event of Default shall have occurred and be continuing, the
Agent shall from time to time, upon the request of a Grantor, execute and
deliver any instruments, certificates or other documents, in the form so
requested, which such Grantor shall have certified are appropriate (in its
judgment) to allow it to take any action permitted above (including
relinquishment of the license provided pursuant to this clause (c) as to any
Patents, Trademarks or Copyrights). Further, upon the payment in full of all of
the Obligations, the Agent (subject to Section 10(e) hereof) shall transfer to
each Grantor all of the Agent's right, title and interest in and to the Patents,
Trademarks and Copyrights, and the Licenses, all without recourse,
representation or warranty whatsoever. The exercise of rights and remedies
hereunder by the Agent shall not terminate the rights of the holders of any
licenses or sublicenses material to the business of the Grantors taken as a
whole theretofore granted by the Grantors in accordance with the second sentence
of this clause (c). Each Grantor hereby releases the Agent from any claims,
causes of action and demands at any time arising out of or with respect to any
actions taken or omitted to be taken by the Agent under the powers of attorney
granted herein other than actions taken or omitted to be taken through the
Agent's gross negligence or willful misconduct.
(d) If any Grantor fails to perform any agreement contained herein,
the Agent may itself perform, or cause performance of, such agreement or
obligation, in the name of such Grantor or the Agent, and the expenses of the
Agent incurred in connection therewith shall be payable by any Grantor pursuant
to Section 8 hereof.
(e) The powers conferred on the Agent hereunder are solely to protect
its interest in the Collateral and shall not impose any duty upon it to exercise
any such powers. Except for the safe custody of any Collateral in its possession
and the accounting for moneys actually received by it hereunder, the Agent shall
have no duty as to any Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any
Collateral.
(f) Anything herein to the contrary notwithstanding, (i) each Grantor
shall remain liable under the Related Contracts and Licenses and otherwise with
respect to any of the Collateral to the extent set forth therein to perform all
of its obligations thereunder to the same extent as if this Agreement had not
been executed, (ii) the exercise by the Agent of any of its rights hereunder
shall not release any Grantor from any of its obligations under the Related
Contracts and Licenses or otherwise in respect of the Collateral, and (iii)
except as expressly provided herein or as required by applicable law, the Agent
shall not have any obligation or liability by reason of this Agreement under the
Related Contracts and Licenses or with respect to any of the other Collateral,
nor shall the Agent be obligated to perform any of the obligations or duties of
any Grantor thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
SECTION 7. REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
shall have occurred and be continuing:
(a) The Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to it,
all of the rights and remedies of a secured party upon default under the Code
(whether or not the Code applies to the affected Collateral), and also may (i)
require any Grantor to, and each Grantor hereby agrees that it will at its
expense and upon request of the Agent forthwith, assemble all or part of the
Collateral as directed by the Agent and make it available to the Agent at a
place or places to be designated by the Agent which is reasonably convenient to
both parties, and (ii) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any of the Agent's offices or elsewhere, for cash, on credit or for future
delivery, and at such price or prices and upon such other terms as the Agent may
deem commercially reasonable. Each Grantor agrees that, to the extent notice of
sale shall be required by law, at least ten (10) days' notice to it of the time
and place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Agent shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.
The Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned. Each
Grantor hereby waives any claims against the Agent and the Lenders arising by
reason of the fact that the price at which the Collateral may have been sold at
a private sale was less than the price which might have been obtained at a
public sale or was less than the aggregate amount of the Obligations, even if
the Agent accepts the first offer received and does not offer the Collateral to
more than one offeree and waives all rights which it may have to require that
all or any part of the Collateral be marshalled upon any sale (public or
private) thereof. In addition to the foregoing, (i) upon written notice from the
Agent, each Grantor shall cease any use of the Copyrights or the Trademarks or
any xxxx similar thereto for any purpose described in such notice; (ii) the
Agent may, at any time and from time to time, upon ten (10) days' prior notice
to any Grantor, license, whether general, special or otherwise, and whether on
an exclusive or non-exclusive basis, any of its Copyrights, Trademarks and
Patents, throughout the world for such term or terms, on such conditions, and in
such manner, as the Agent shall in its sole discretion determine; and (iii) the
Agent may, at any time, pursuant to the authority granted in Section 6 hereof
(such authority being effective upon the occurrence of an Event of Default),
execute and deliver on behalf of any Grantor, one or more instruments of
assignment of the Copyrights, Trademarks and Patents (or any application or
registration thereof), in form suitable for filing, recording or registration in
any country.
(b) Any cash held by the Agent as Collateral and all Proceeds received
by the Agent in respect of any sale or collection from, or other realization
upon, all or any part the Collateral, shall be promptly applied by the Agent
against all or any part of the Obligations as follows:
(i) first, to the payment of the costs and expenses of such
sale, collection or other realization, including the out-of-pocket
costs and expenses of the Agent and the reasonable fees, costs,
expenses and other client charges of counsel employed in connection
therewith, to the payment of all advances made by the Agent for the
account of any Grantor hereunder and to the payment of all costs and
expenses incurred by the Agent in connection with the administration
and enforcement of this Agreement;
(ii) second, at the option of the Agent, to the payment or
other satisfaction of any Liens and other encumbrances upon any of the
Collateral;
(iii) third, to the payment of all other Obligations then
due and payable under the Notes and the Indenture;
(iv) fourth, to the payment of any other amounts required by
applicable law (including, without limitation, Section 9-504(1)(c) of
the Code or any successor or similar, applicable statutory provision);
and
(v) fifth, to the Grantors or to whomsoever shall be
lawfully entitled to receive the same or as a court of competent
jurisdiction shall direct.
(c) In the event that the Proceeds of any such sale, collection or
realization are insufficient to pay all amounts to which the Agent is legally
entitled, the Grantors shall be jointly and severally liable for the deficiency,
together with interest thereon at the highest rate specified in the Notes for
interest on overdue principal thereof or such other rate as shall be fixed by
applicable law, together with the costs of collection and the reasonable fees,
costs, expenses and other client charges of any attorneys employed by the Agent
to collect such deficiency.
(d) Notwithstanding anything else in this Agreement, payment of all
Proceeds from Collateral is subject to the provisions of the Intercreditor
Agreement.
SECTION 8. INDEMNITY AND EXPENSES.
(a) Each Grantor agrees to indemnify and hold the Agent and each
Holder harmless from and against any and all claims, damages, losses,
liabilities, obligations, penalties, costs or expenses (including, without
limitation, legal fees, costs, expenses and other client charges) to the extent
that they arise out of or otherwise result from this Agreement (including,
without limitation, enforcement of this Agreement), except claims, losses or
liabilities resulting solely and directly from the Agent's gross negligence or
willful misconduct.
(b) Each Grantor will promptly pay to the Agent and each Holder (i)
the amount of any and all reasonable costs and expenses, including the
reasonable fees, costs, expenses and other client charges of counsel for the
Agent and each Holder and of any experts and agents (including, without
limitation, any Person which may act as agent of the Agent or any Holder), which
the Agent or any Holder may incur in connection with (A) the preparation,
negotiation, execution, delivery, recordation, administration, amendment, waiver
or other modification or termination of this Agreement, or (B) the custody,
preservation, use or operation of, the Collateral, and (ii) the amount of any
and all costs and expenses, including the fees, costs, expenses and other client
charges of counsel for the Agent and each Holder and of any experts and agents
(including, without limitation, any Person which may act as agent of the Agent
or any Holder), which the Agent or any Holder may incur in connection with (A)
the sale of, collection from, or other realization upon, any Collateral, (B) the
exercise or enforcement of any of the rights of the Agent and each Holder
hereunder, or (C) the failure by any Grantor to perform or observe any of the
provisions hereof. In connection with any demand for payment under this Section
8(b), the Agent shall deliver to any Grantor a certificate setting forth in
reasonable detail any amount or amounts that the Agent or any Holder is entitled
to receive pursuant to this Section 8(b) and shall be conclusive and binding
absent manifest error.
SECTION 9. NOTICES, ETC. Any notices hereunder shall be given and
shall be effective in the manner set forth in the Indenture.
SECTION 10. MISCELLANEOUS.
(a) No amendment of any provision of this Agreement shall be effective
unless it is in writing and signed by each Grantor and the Agent, and no waiver
of any provision of this Agreement, and no consent to any departure by any
Grantor therefrom, shall be effective unless it is in writing and signed by the
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
(b) No failure on the part of the Agent to exercise, and no delay in
exercising, any right hereunder or under the Indenture shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The rights
and remedies of the Agent provided herein and in the Indenture are cumulative
and are in addition to, and not exclusive of, any rights or remedies provided by
law. The rights of the Agent under the Indenture against any party thereto are
not conditional or contingent on any attempt by the Agent to exercise any of its
rights under the Indenture against such party or against any other Person.
(c) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or thereof or affecting the validity or enforceability
of such provision in any other jurisdiction.
(d) This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until the payment in
full or release of the Obligations and (ii) be binding on each Grantor and each
of its successors and assigns and shall inure, together with all rights and
remedies of the Agent hereunder, to the benefit of the Agent and its respective
permitted successors, transferees and assigns. Without limiting the generality
of clause (ii) of the immediately preceding sentence and subject to Sections 7.8
and 7.9 of the Indenture, the Agent may assign or otherwise transfer its rights
under this Agreement to any other Person and such other Person shall thereupon
become vested with all of the benefits in respect thereof granted to the Agent
herein or otherwise. None of the rights or obligations of any Grantor hereunder
may be assigned or otherwise transferred without the prior written consent of
the Agent, and any such assignment or transfer shall be null and void.
(e) Upon the satisfaction in full of the Obligations, (i) this
Agreement and the security interests created hereby shall terminate and all
rights to the Collateral shall revert to the Grantors, and (ii) the Agent will,
upon any Grantor's request and at such Grantor's expense, (A) return to such
Grantor such of the Collateral as shall not have been sold or otherwise disposed
of or applied pursuant to the terms hereof and (B) execute and deliver to such
Grantor such documents as such Grantor shall reasonably request to evidence such
termination, all without any representation, warranty or recourse whatsoever.
(f) This Agreement shall be governed by and construed in accordance
with the law of the State of New York, except as required by mandatory
provisions of law and except to the extent that the validity and perfection or
the perfection and the effect of perfection or non-perfection of the security
interest created hereby, or remedies hereunder, in respect of any particular
Collateral are governed by the law of a jurisdiction other than the State of New
York.
(g) Each Grantor hereby expressly and irrevocably submits to the
jurisdiction of the courts of the State of New York located in the borough of
Manhattan and of the United States District Court for the Southern District of
New York for the purpose of any litigation arising out of, under or in
connection with, this Agreement, or any course of conduct, course of dealing,
statement (whether verbal or written) or action of it or of the Agent, and each
Grantor irrevocably agrees to be bound by any judgment rendered thereby in
connection with such litigation; PROVIDED, HOWEVER, any suit seeking enforcement
against any Collateral may be brought, at the Agent's option, in the courts of
any jurisdiction where such Collateral or other property may be found. To the
extent that any Grantor has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution or
otherwise) with respect to itself or its property, each Grantor hereby
irrevocably waives such immunity in respect of its obligations under this
Agreement.
(h) Each Grantor hereby expressly and irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such litigation brought in any such court
referred to above and any claim that any such litigation has been brought in an
inconvenient forum.
(i) Each Grantor further irrevocably consents to the service of
process (i) by registered or certified mail, postage prepaid, to its address for
notices contained in the Indenture, such service to become effective five (5)
days after such mailing, or (ii) by personal service within or without the State
of New York. Nothing contained herein shall affect the right of the Agent to
serve process in any other manner permitted by law.
(j) BY ITS EXECUTION AND DELIVERY OF THIS AGREEMENT EACH GRANTOR AND
THE AGENT KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS EACH MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT, ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF IT OR THE AGENT IN CONNECTION HEREWITH
OR THEREWITH. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE
GRANTOR TO ENTER INTO THIS AGREEMENT.
(k) This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the signatories hereto have caused this
Agreement to be executed and delivered by its officer thereunto duly authorized
as of the date first above written.
ALL STAR CAFE INTERNATIONAL, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
ALL STAR CAFE (NEW YORK), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
COOL PLANET, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
COOL PLANET II, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (ATLANTIC CITY), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (HONOLULU), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD INTERNATIONAL, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (LP), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD MEMORABILIA INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD NEW YORK, LTD.
By: PLANET HOLLYWOOD INTERNATIONAL, INC.,
its General Partner
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial Officer
PLANET HOLLYWOOD (NEW YORK CITY), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (ORLANDO), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (REGION II), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (REGION III), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (REGION IV), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (REGION V), INC.
By:__________________________
Name: Xxxxx Xxxx
Title: President and Secretary
PLANET HOLLYWOOD (REGION VI), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (REGION VII), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (TEXAS), LTD.
By: PLANET HOLLYWOOD (REGION V), INC.,
its General Partner
By:__________________________
Name: Xxxxx Xxxx
Title: President and Secretary
PLANET HOLLYWOOD (WAREHOUSE), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
IN WITNESS WHEREOF, each of the signatories hereto have caused this
Agreement to be executed and delivered by its officer thereunto duly authorized
as of the date first above written.
MEANT 2 BE, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
OFFICIAL ALL STAR CAFE, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (LONDON), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (PARIS), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (TEL AVIV), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (THEATERS), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
SILVER BRACELETS, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
SOUND REPUBLIC, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
308 AVIATION, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
308-III AVIATION, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
ALL STAR CAFE (LP), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
ALL STAR CAFE (REGION V), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
ALL STAR CAFE (REGION VII), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
COOL PLANET I, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
EBCO MANAGEMENT, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
KARMALANNE, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (ASPEN), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (CHEFS), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (COSTA MESA), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (CHICAGO), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (GAMING), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOSPITALITY HOLDINGS, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (MAIL ORDER), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (ORLANDO DISTRIBUTION), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (PHOENIX), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (REGION I), INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD TRANSPORTATION, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
ROCKY PIT, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
SOUND REPUBLIC I, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
TEN ALPS, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
COAST LICENSING, INC.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (FRANCE), L.C.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (ISRAEL), L.C.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
PLANET HOLLYWOOD (TROCADERO), L.C.
By:__________________________
Name: Xxxxxx Xxxxxxxx
Title:
SCHEDULE I
RELATED CONTRACTS
SCHEDULE II
TRADEMARKS
AND
TRADEMARK LICENSES
SCHEDULE III
PATENTS AND PATENT LICENSES
SCHEDULE IV
COPYRIGHTS AND COPYRIGHT LICENSES
SCHEDULE V
I. Locations of Equipment, Inventory, Memorabilia and Other Assets
II. Addresses of Chief Executive Offices and Other Locations
SCHEDULE VI
BANK ACCOUNTS
SCHEDULE VII
TRADE NAMES
SCHEDULE VIII
UCC-1 FINANCING STATEMENTS
EXHIBIT A
ASSIGNMENT FOR SECURITY
(TRADEMARKS)
WHEREAS, [NAME OF ASSIGNOR] (the "ASSIGNOR") has adopted, used and is
using the trademarks and service marks listed on the annexed Schedule 1A, which
trademarks and service marks are registered or applied for in the United States
Patent and Trademark Office (the "TRADEMARKS");
WHEREAS, the Assignor has entered into a Security Agreement dated
March __, 0000 (xxx "XXXXXXXX XXXXXXXXX") xx xxxxx xx XXXXXX XXXXXX TRUST
COMPANY OF NEW YORK, as trustee and collateral agent (the "ASSIGNEE") under that
certain Indenture (such Indenture, as amended or otherwise modified from time to
time, the "Indenture"), dated as of the same date as the Security Agreement,
among Planet Hollywood International, Inc., the parties whose names and
signatures appear on the signature pages thereto under the heading "Subsidiary
Guarantors" and the Assignee; and
WHEREAS, pursuant to the Security Agreement, the Assignor has assigned
to the Assignee and granted to the Assignee a security interest in all right,
title and interest of the Assignor in, to and under the Trademarks together with
the goodwill of the business symbolized by the Trademarks and the applications
and registrations thereof, and all proceeds thereof, including, without
limitation, any and all causes of action which may exist by reason of
infringement thereof (the "COLLATERAL"), to secure the payment, performance and
observance of the Obligations (as defined in the Security Agreement).
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the Assignor does hereby convey, sell, assign, transfer
and set over unto the Assignee and grants to the Assignee a security interest in
the Collateral to secure the prompt payment, performance and observance of the
Obligations.
The Assignor does hereby further acknowledge and affirm that the
rights and remedies of the Assignee with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.
IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed by its officer thereunto duly authorized as of _____, ___, 200__.
[NAME OF ASSIGNOR]
By: __________________________
Name:
Title:
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this ____ day of _______________, 2000, before me personally came
________________, to me known to be the person who executed the foregoing
instrument, and who, being duly sworn by me, did depose and say that he is the
________________ of [NAME OF ASSIGNOR], and that he executed the foregoing
instrument and that he had authority to sign the same, and he acknowledged to me
that he executed the same as the act and deed of said firm for the uses and
purposes therein mentioned.
SCHEDULE 1A TO ASSIGNMENT FOR SECURITY
(TRADEMARKS AND TRADEMARK APPLICATIONS)
EXHIBIT B
ASSIGNMENT FOR SECURITY
(COPYRIGHTS)
WHEREAS, [NAME OF ASSIGNOR] (the "ASSIGNOR") holds all right, title
and interest in the copyrights listed on the annexed Schedule 1A, which
copyrights are registered in the United States Copyright Office (the
"COPYRIGHTS");
WHEREAS, the Assignor, has entered into a Security Agreement dated
March ___, 0000 (xxx "XXXXXXXX XXXXXXXXX") xx xxxxx xx XXXXXX XXXXXX TRUST
COMPANY OF NEW YORK, as trustee and collateral agent (the "ASSIGNEE") under that
certain Indenture (such Indenture, as amended or otherwise modified from time to
time, the "INDENTURE"), dated as of the same date as the Security Agreement,
among Planet Hollywood International, Inc., the parties whose names and
signatures appear on the signature pages thereto under the heading "Subsidiary
Guarantors" and the Assignee;
WHEREAS, pursuant to the Security Agreement, the Assignor has assigned
to the Assignee and granted to the Assignee a security interest in all right,
title and interest of the Assignor in, to and under the Copyrights and the
registrations thereof, and all proceeds thereof, including, without limitation,
any and all causes of action which may exist by reason of infringement thereof
(the "COLLATERAL"), to secure the payment, performance and observance of the
Obligations (as defined in the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the Assignor does hereby assign unto the Assignee and
grants to the Assignee a security interest in the Collateral to secure the
prompt payment, performance and observance of the Obligations.
The Assignor does hereby further acknowledge and affirm that the
rights and remedies of the Assignee with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.
IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed by its officer thereunto duly authorized as of __________ __, 200__.
[NAME OF ASSIGNOR]
By: __________________________
Name:
Title:
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this ____ day of _______________, 2000, before me personally came
________________, to me known to be the person who executed the foregoing
instrument, and who, being duly sworn by me, did depose and say that he is the
________________ of [NAME OF ASSIGNOR], and that he executed the foregoing
instrument and that he had authority to sign the same, and he acknowledged to me
that he executed the same as the act and deed of said firm for the uses and
purposes therein mentioned.
SCHEDULE 1A TO ASSIGNMENT FOR SECURITY
(COPYRIGHTS AND COPYRIGHT APPLICATIONS)
EXHIBIT C
ASSIGNMENT FOR SECURITY
(PATENTS)
WHEREAS, [NAME OF ASSIGNOR] (the "ASSIGNOR") holds all right, title
and interest in the letter patents, design patents and utility patents listed on
the annexed Schedule 1A, which patents are issued or applied for in the United
States Patent and Trademark Office (the "PATENTS");
WHEREAS, the Assignor has entered into a Security Agreement dated
March ___, 0000 (xxx "XXXXXXXX XXXXXXXXX") xx xxxxx xx XXXXXX XXXXXX TRUST
COMPANY OF NEW YORK, as trustee and collateral agent (the "ASSIGNEE") under that
certain Indenture (such Indenture, as amended or otherwise modified from time to
time, the "INDENTURE"), dated as of the same date as the Security Agreement,
among Planet Hollywood International, Inc., the parties whose names and
signatures appear on the signature pages thereto under the heading "Subsidiary
Guarantors" and the Assignee;
WHEREAS, pursuant to the Security Agreement, the Assignor has assigned
to the Assignee and granted to the Assignee a security interest in all right,
title and interest of the Assignor in, to and under the Patents and the
applications and registrations thereof, and all proceeds thereof, including,
without limitation, any and all causes of action which may exist by reason of
infringement thereof (the "COLLATERAL"), to secure the payment, performance and
observance of the Obligations (as defined in the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the Assignor does hereby assign unto the Assignee and
grants to the Assignee a security interest in the Collateral to secure the
prompt payment, performance and observance of the Obligations.
The Assignor does hereby further acknowledge and affirm that the
rights and remedies of the Assignee with respect to the Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.
IN WITNESS WHEREOF, the Assignor has caused this Assignment to be duly
executed by its officer thereunto duly authorized as of __________ __, 200__.
[NAME OF ASSIGNOR]
By: __________________________
Name:
Title:
STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK
On this ____ day of _______________, 2000, before me personally came
________________, to me known to be the person who executed the foregoing
instrument, and who, being duly sworn by me, did depose and say that he is the
________________ of [NAME OF ASSIGNOR], and that he executed the foregoing
instrument and that he had authority to sign the same, and he acknowledged to me
that he executed the same as the act and deed of said firm for the uses and
purposes therein mentioned.
SCHEDULE 1A TO ASSIGNMENT FOR SECURITY
(PATENTS AND PATENT APPLICATIONS)
-------------------------------
