EXHIBIT 99.1
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT ("Agreement") dated as of August 4, 2000
is made with reference to that certain Loan Agreement dated as of March 23,
1998 (as amended from time to time, the "Loan Agreement") by and among Hard
Rock Hotel, Inc., a Nevada corporation ("Borrower"), the Lenders therein
named, and Bank of America, N.A., as Administrative Agent and is entered into
between the "Assignor" described below, in its capacity as a Lender under the
Loan Agreement, and the "Assignee" described below.
Assignor and Assignee hereby represent, warrant and agree as
follows:
1. DEFINITIONS. Capitalized terms defined in the Loan Agreement are
used herein with the meanings set forth for such terms in the Loan Agreement.
As used in this Agreement, the following capitalized terms shall have the
meanings set forth below:
"ASSIGNEE" means Bank of America, N.A.
"ASSIGNED PRO-RATA SHARE" means 12.987013000% of the Commitment of the
Lenders under the Loan Agreement which equals $5,454,545.46 as of the date
hereof.
"ASSIGNOR" means PNC Bank, National Association.
"EFFECTIVE DATE" means August 4, 2000, the effective date of this
Agreement determined in accordance with Section 11.8 of the Loan Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR. The Assignor
represents and warrants to the Assignee as follows:
(a) As of the date hereof, the Pro-Rata Share of the Assignor
is 12.987013000% of the Commitment (without giving effect to assignments
thereof which have not yet become effective). The Assignor is the legal
and beneficial owner of the Assigned Pro-Rata Share and the Assigned
Pro-Rata Share is free and clear of any adverse claim.
(b) As of the date hereof, the outstanding principal balance
of Advances made by the Assignor under the Assignor's Note is
$4,870,129.88.
(c) The Assignor has full power and authority, and has taken
all action necessary, to execute and deliver this Agreement and any and
all other documents required or permitted to be executed or delivered by
it in connection with this Agreement and to fulfill its obligations
under, and to consummate the transactions contemplated by, this
Agreement, and no governmental authorizations or other authorizations
are required in connection therewith; and
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(d) This Agreement constitutes the legal, valid and binding
obligation of the Assignor.
The Assignor makes no representation or warranty and assumes no responsibility
with respect to the financial condition of Borrower or the performance by
Borrower of the Obligations, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Loan Agreement or the execution, legality, validity, enforceability,
genuineness, or sufficiency of the Loan Agreement or any Loan Document other
than as expressly set forth above.
3. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) The Assignee has full power and authority, and has taken
all action necessary, to execute and deliver this Agreement, and any and
all other documents required or permitted to be executed or delivered by
it in connection with this Agreement and to fulfill its obligations
under, and to consummate the transactions contemplated by, this
Agreement, and no governmental authorizations or other authorizations
are required in connection therewith;
(b) This Agreement constitutes the legal, valid and binding
obligation of the Assignee;
(c) The Assignee has independently and without reliance upon
the Administrative Agent or Assignor and based on such documents and
information as the Assignee has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. The Assignee will,
independently and without reliance upon the Administrative Agent or any
Lender, and based upon such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Agreement;
(d) The Assignee has received copies of such of the Loan
Documents delivered pursuant to Section 8.1 of the Loan Agreement as it
has requested, together with copies of the most recent financial
statements delivered pursuant to Section 7.1 of the Loan Agreement;
(e) The Assignee will perform in accordance with their
respective terms all of the obligations which by the terms of the Loan
Agreement are required to be performed by it as a Lender; and
(f) The Assignee is an Eligible Assignee.
4. ASSIGNMENT. On the terms set forth herein, the Assignor, as of
the Effective Date, hereby irrevocably sells, assigns and transfers to the
Assignee all of the rights
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and obligations of the Assignor under the Loan Agreement, the other Loan
Documents and the Assignor's Note to the extent of the Assigned Pro-Rata
Share, and the Assignee irrevocably accepts such assignment of rights and
assumes such obligations from the Assignor on such terms and effective as of
the Effective Date. As of the Effective Date, the Assignee shall have the
rights and obligations of a "Lender" under the Loan Documents, except to the
extent of any arrangements with respect to payments referred to Section 5
hereof. Assignee hereby appoints and authorizes the Administrative Agent to
take such action and to exercise such powers under the Loan Agreement as are
delegated to the Administrative Agent by the Loan Agreement.
5. PAYMENT. On the Effective Date, the Assignee shall pay to the
Assignor, in immediately available funds, an amount equal to the purchase
price of the Assigned Pro-Rata Share, as agreed between the Assignor and the
Assignee pursuant to a letter agreement of even date herewith. Such letter
agreement also sets forth the agreement between the Assignor and the Assignee
with respect to the amount of interest, fees, and other payments with respect
to the Assigned Pro-Rata Share which are to be retained by the Assignor.
The Assignor and the Assignee hereby agree that if either
receives any payment of interest, principal, fees or any other amount under
the Loan Agreement, their respective Notes or any other Loan Documents which
is for the account of the other, it shall hold the same in trust for such
party to the extent of such party's interest therein and shall promptly pay
the same to such party.
6. PRINCIPAL INTEREST, FEES, ETC. Any principal that would be
payable and any interest, fees and other amounts that would accrue from and
after the Effective Date to or for the account of the Assignor pursuant to the
Loan Agreement and the Note shall be payable to or for the account of the
Assignor and the Assignee, in accordance with their respective interests as
adjusted pursuant to this Agreement.
7. NOTES. The Assignor and the Assignee shall make appropriate
arrangements with the Borrower concurrently with the execution and delivery
hereof so that a replacement Note is issued to the Assignor and a new Note is
issued to the Assignee, in each case in principal amounts reflecting their
Pro Rata Shares of the Commitment or their outstanding Advances (as adjusted
pursuant to this Agreement).
8. FURTHER ASSURANCES. Concurrently with the execution of this
Agreement, the Assignor shall execute two counterpart original Requests for
Registration, in the form of Exhibit A to this Agreement, to be forwarded to
the Administrative Agent. The Assignor and the Assignee further agree to
execute and deliver such other instruments, and take such other action, as
either party may reasonably request in connection with the transactions
contemplated by this Agreement, and the Assignor specifically agrees to cause
the delivery of (i) two original counterparts of this Agreement and (ii) the
Request for Registration, to the Administrative Agent for the purpose of
registration of the Assignee as a "Lender" pursuant to Section 11.8 of the
Loan Agreement.
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9. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACTUAL OBLIGATION UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LOCAL LAWS OF THE STATE OF NEVADA, FOR
ANY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT, THE ASSIGNEE HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEVADA.
10. NOTICES. All communications among the parties or notices in
connection herewith shall be in writing, hand delivered or sent by registered
airmail, postage prepaid, or by telex, telegram or cable, addressed to the
appropriate party at its address set forth on the signature pages hereof. All
such communications and notices shall be effective upon receipt.
11. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns;
provided, however, that the Assignee shall not assign its rights or
obligations under this Agreement, without the prior written consent of the
Assignor and any purported assignment, absent such consent, shall be void.
Nothing contained in this Section shall restrict the assignment by Assignee
of its rights under the Loan Documents following the Effective Date.
12. INTERPRETATION. The headings of the various sections hereof
are for convenience of reference only and shall not affect the meaning or
construction of any provision hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officials, officers or agents
thereunto duly authorized as of the date first above written.
"Assignor"
PNC BANK, NATIONAL ASSOCIATION
By: /s/ [ILLEGIBLE]
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[ILLEGIBLE]
Title: S.V.P.
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Address:
PNC Bank, National Association
0 XXXXX XXXXXX XXXX.
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XXXX XXXXXXXXX, XX 00000
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Telecopier: 000-000-0000
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Telephone: 000-000-0000
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"Assignee"
BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXX
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XXXXX X. XXXXX
Title: MANAGING DIRECTOR
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Address:
Bank of America, N.A.
000 Xxxxx Xxxxxx Xxxxxx, #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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Exhibit A to Assignment Agreement
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REQUEST FOR REGISTRATION
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To: Bank of America, N.A., as Administrative Agent, and Hard Rock Hotel, Inc.
THIS REQUEST FOR REGISTRATION OF ASSIGNEE is made as of the date of
the enclosed Assignment Agreement with reference to that certain Amended and
Restated Loan Agreement of even date herewith by and among Hard Rock Hotel,
Inc., a Nevada corporation ("Borrower"), the Lenders therein named, and Bank
of America, N.A., as Administrative Agent (as amended as of the date hereof,
the "Loan Agreement").
The Assignor and Assignee described below hereby request that
Administrative Agent register the Assignee as a Lender pursuant to Section
11.8 of the Loan Agreement effective as of the Effective Date described in
the Assignment Agreement.
The Assignor and Assignee hereby jointly request that
Administrative Agent cause Borrower to issue a replacement Note, dated as of
the Effective Date, pursuant to Section 11.8 of the Loan Agreement in favor
of Assignor in the principal amount of the remainder of its Pro-Rata Share of
the Commitment and a new Note in favor of the Assignee in the amount of the
Assigned Pro-Rata Share.
The Assignee is concurrently making payment of the $3,500 fee
payable to the Administrative Agent pursuant to Section 11.8 of the Loan
Agreement.
IN WITNESS WHEREOF, the Assignor and Assignee have executed this
Request for Registration by their duly authorized officers as of even date
with the enclosed Assignment Agreement.
"Assignor" "Assignee"
PNC BANK, NATIONAL BANK OF AMERICA, N.A.
ASSOCIATION
By: /s/ [ILLEGIBLE] By: /s/ XXXXX X. XXXXX
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[ILLEGIBLE] XXXXX X. XXXXX
Title: Sr. V.P. Title: MANAGING DIRECTOR
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CONSENT OF ADMINISTRATIVE AGENT AND BORROWER
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[When Required Pursuant to Loan Agreement]
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To: The Assignor and Assignee referred to in the above Request for
Registration.
When countersigned by both Borrower and Administrative Agent below,
this document shall certify that:
1. Borrower has consented, pursuant to the terms of the Loan
Documents, to the assignment by the Assignor to the Assignee of the Assigned
Pro-Rata Share.
2. Administrative Agent has registered the Assignee as a Lender
under the Loan Agreement, effective as of the Effective Date described above,
with a Pro-Rata Share of the Commitment corresponding to the Assigned Pro-Rata
Share and has adjusted the registered Pro-Rata Share of the Commitment of the
Assignor to reflect the assignment of the Assigned Pro-Rata Share.
Approved:
HARD ROCK HOTEL, INC., BANK OF AMERICA, N.A.,
a Nevada corporation as Administrative Agent
By: /s/ XXXXX XXXXXX By: /s/ XXXXXX XXXXXXX
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XXXXX XXXXXX Xxxxxx Xxxxxxx
Its: PRESIDENT Its: Vice President
----------------------------- Agency Specialist
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