EXHIBIT 10.16
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AMENDED AND RESTATED SECURITY AGREEMENT
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AMENDED AND RESTATED SECURITY AGREEMENT, dated as of June 29, 2001,
between AMERIKING INDIANA HOLDINGS, INC., a Delaware corporation ("AmeriKing
Indiana Holdings"), and FLEET NATIONAL BANK (f/k/a BankBoston, N.A.), a national
banking association, as agent (hereinafter, in such capacity, the "Agent") for
itself and other lending institutions (hereinafter, collectively, the "Banks")
which are or may become parties to the Credit Agreement (as hereinafter
defined).
WHEREAS, National Restaurant Enterprises, Inc. (the "Borrower"), AmeriKing,
Inc. ("AmeriKing"), the Agent and the Banks entered into a Fourth Amended and
Restated Revolving Credit Agreement dated as of December 24, 1998 (as amended
and in effect from time to time, the "Revolver Credit Agreement"), pursuant to
which the Banks, subject to the terms and conditions contained therein, provided
certain financial accommodations to the Borrower; and
WHEREAS, the Borrower, AmeriKing, the Agent and the Banks entered into an
Acquisition Revolving Credit Agreement dated as of December 24, 1998 (as amended
and in effect from time to time, the "Acquisition Credit Agreement" and
collectively with the Revolver Credit Agreement, the "Existing Credit
Agreements") pursuant to which the Banks, subject to the terms and conditions,
contained therein, provided further financial accommodations to the Borrower;
and
WHEREAS, in connection with the Existing Credit Agreements, AmeriKing
Indiana Holdings executed and delivered to the Agent, for the benefit of the
Agent and the Banks, a Guaranty dated as of December 24, 1998 (as amended and in
effect from time to time, the "Guaranty"), pursuant to which AmeriKing Indiana
Holdings guaranteed to the Agent and the Banks the payment and performance of
the Borrower's Obligations to the Banks and the Agent under or in respect to the
Existing Credit Agreements; and
WHEREAS, the parties to the Existing Credit Agreements and National
Restaurant Enterprises Holdings, Inc. ("Holdings") wish to consolidate, amend
and restate the Existing Credit Agreements in their entirety by entering into a
Consolidated Amended and Restated Revolving Credit Agreement, dated as of the
date hereof by and among the Borrower, AmeriKing, Holdings, the Banks and the
Agent (as amended and in effect from time to time, the "Credit Agreement"); and
WHEREAS, AmeriKing Indiana Holdings and the Borrower are members of a group
of related entities, the success of either of which is dependent in part on the
success of the other members of such group; and
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WHEREAS, AmeriKing Indiana Holdings is expected to receive substantial
direct and indirect benefits from the making of loans and other extensions of
credit to the Borrower by the Banks pursuant to the Credit Agreement (which
benefits are hereby acknowledged); and
WHEREAS, AmeriKing Indiana Holdings has executed and delivered to the
Agent, for the benefit of the Agent and the Banks, an Amended and Restated
Guaranty dated as of the date hereof (as amended and in effect from time to
time, the "AmeriKing Indiana Holdings Guaranty"), pursuant to which AmeriKing
Indiana Holdings guaranteed to the Agent and the Banks the payment and
performance of the Borrower's Obligations to the Banks and the Agent under or in
respect to the Credit Agreement; and
WHEREAS, each of AmeriKing Indiana Holdings and the Agent wishes to
continue and reaffirm the grants of liens and security interests by AmeriKing
Indiana Holdings in favor of the Agent for the benefit of the Banks and the
Agent; and
WHEREAS, it is a condition precedent to the Agent and the Banks making
loans or otherwise extending credit to the Borrower under the Credit Agreement
that AmeriKing Indiana Holdings execute and deliver to the Agent, for the
benefit of the Banks and the Agent, an amended and restated security agreement
in substantially the form hereof; and
WHEREAS, AmeriKing Indiana Holdings and the Agent now wish to amend
and restate in its entirety the Existing Security Agreement, for the benefit of
the Agent and the Banks as herein provided, which shall amend and restate in its
entirety the Existing Security Agreement, and the Existing Security Agreement
shall remain in force and effect only as set forth herein;
NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein without definitions
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shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Uniform Commercial Code of the Commonwealth of
Massachusetts and used herein shall have the same definitions herein as
specified therein; provided, however, that the term "instrument" shall be such
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term as defined in Article 9 of the Uniform Commercial Code of such jurisdiction
rather than Article 3.
2. Grant of Security Interest.
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2.1. Collateral Granted. AmeriKing Indiana Holdings (a) hereby
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ratifies and affirms the grants of security interests made pursuant to the
Existing Security Agreement, and (b) to the extent not covered by clause (a),
further grants to the Agent, for the benefit of the Banks and the Agent, to
secure the payment and performance in full of all of the Obligations and of
AmeriKing Indiana Holdings' obligations set forth in the AmeriKing Indiana
Holdings Guaranty, a security interest in and so pledges and assigns to the
Agent, for the benefit of the Banks and the Agent, the following properties,
assets and rights of AmeriKing Indiana
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Holdings, wherever located, whether now owned or hereafter acquired or arising,
and all proceeds and products thereof (all of the same being hereinafter called
the "Collateral"):
All personal and fixture property of every kind and nature including
without limitation all furniture, fixtures, equipment, raw materials,
inventory, other goods, accounts, contract rights, rights to the
payment of money, insurance refund claims and all other insurance
claims and proceeds, tort claims, chattel paper, documents,
instruments, securities and other investment property, deposit
accounts, rights to proceeds of letters of credit and all general
intangibles including, without limitation, all tax refund claims,
license fees, patents, patent applications, trademarks, trademark
applications, trade names (other than trademarks and trade names owned
by Burger King Corporation and licensed to AmeriKing Indiana
Holdings), copyrights, copyright applications, rights to ▇▇▇ and
recover for past infringement of patents, trademarks and copyrights,
computer programs, computer software, engineering drawings, service
marks, customer lists, goodwill, and all licenses, permits, franchise
agreements, agreements of any kind or nature pursuant to which
AmeriKing Indiana Holdings possesses, uses or has authority to possess
or use property (whether tangible or intangible) of others or others
possess, use or have authority to possess or use property (whether
tangible or intangible) of AmeriKing Indiana Holdings, and all
recorded data of any kind or nature, regardless of the medium of
recording including, without limitation, all software, writings,
plans, specifications and schematics.
2.2. Delivery of Instruments, etc.
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(a) Pursuant to the terms hereof, AmeriKing Indiana Holdings has
endorsed, assigned and delivered to the Agent all negotiable or non-
negotiable instruments, certificated securities and chattel paper
pledged by it hereunder, together with instruments of transfer or
assignment duly executed in blank as the Agent may have specified. In
the event that AmeriKing Indiana Holdings shall, after the date of
this Agreement, acquire any other negotiable or non-negotiable
instruments, certificated securities or chattel paper to be pledged by
it hereunder, AmeriKing Indiana Holdings shall forthwith endorse,
assign and deliver the same to the Agent, accompanied by such
instruments of transfer or assignment duly executed in blank as the
Agent may from time to time specify.
(b) To the extent that any securities now or hereafter acquired
by AmeriKing Indiana Holdings are uncertificated and are issued to
AmeriKing Indiana Holdings or its nominee directly by the issuer
thereof, AmeriKing Indiana Holdings shall cause the issuer to note on
its books the security interest of the Agent in such securities and
shall cause the issuer, pursuant to an agreement in form and substance
satisfactory to the Agent, to agree to comply with instructions from
the Agent as to such securities, without further consent of AmeriKing
Indiana Holdings or such nominee. To the
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extent that any securities, whether certificated or uncertificated, or
other investment property now or hereafter acquired by AmeriKing
Indiana Holdings are held by AmeriKing Indiana Holdings or its nominee
through a securities intermediary or commodity intermediary, AmeriKing
Indiana Holdings shall, at the request of the Agent, use reasonable
efforts to cause such securities intermediary or (as the case may be)
commodity intermediary, pursuant to an agreement in form and substance
satisfactory to the Agent, to agree to comply with entitlement orders
or other instructions from the Agent to such securities intermediary
as to such securities or other investment property, or (as the case
may be) to apply any value distributed on account of any commodity
contract as directed by the Agent to such commodity intermediary,
without further consent of AmeriKing Indiana Holdings or such nominee.
The Agent agrees with AmeriKing Indiana Holdings that the Agent shall
not give any such entitlement orders or instructions or directions to
any such issuer, securities intermediary or commodity intermediary
unless an Event of Default has occurred and is continuing and the
Agent has elected to exercise its rights and remedies as contemplated
by (S)14.
(c) To the extent that AmeriKing Indiana Holdings is a
beneficiary under any written letter of credit now or hereafter issued
in favor of AmeriKing Indiana Holdings, AmeriKing Indiana Holdings
shall deliver such letter of credit to the Agent. The Agent shall
from time to time, at the request and expense of AmeriKing Indiana
Holdings, make such arrangements with AmeriKing Indiana Holdings as
are in the Agent's reasonable judgment necessary and appropriate so
that AmeriKing Indiana Holdings may make any drawing to which
AmeriKing Indiana Holdings is entitled under such letter of credit,
without impairment of the Agent's perfected security interest in
AmeriKing Indiana Holdings' rights to proceeds of such letter of
credit or in the actual proceeds of such drawing. At the Agent's
request, AmeriKing Indiana Holdings shall, for any letter of credit,
whether or not written, now or hereafter issued in favor of AmeriKing
Indiana Holdings as beneficiary, execute and deliver to the issuer and
any confirmer of such letter of credit an assignment of proceeds form,
in favor of the Agent and satisfactory to the Agent and such issuer or
(as the case may be) such confirmer, requiring the proceeds of any
drawing under such letter of credit to be paid directly to the Agent
for application as provided in the Credit Agreement.
2.3. Excluded Collateral. Notwithstanding the foregoing provisions of
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this (S)2, such grant of security interest shall not extend to, and the
term "Collateral" shall not include, any chattel paper and general
intangibles which are now or hereafter held by AmeriKing Indiana Holdings
as licensee, lessee or otherwise, to the extent that (a) such chattel paper
and general intangibles are not assignable or capable of being encumbered
as a matter of law or under the terms of the license, lease or other
agreement applicable thereto (but solely to the extent that any such
restriction shall be enforceable under applicable law), without the consent
of the licensor or lessor thereof or other applicable party thereto and (b)
such consent has not been obtained; provided, however, that the foregoing
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grant of security interest shall extend to, and
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the term "Collateral" shall include, (i) any and all proceeds of such
chattel paper and general intangibles to the extent that the assignment or
encumbering of such proceeds is not so restricted and (ii) upon any such
licensor, lessor or other applicable party's consent with respect to any
such otherwise excluded chattel paper or general intangibles being
obtained, thereafter such chattel paper or general intangibles as well as
any and all proceeds thereof that might have theretofore have been excluded
from such grant of a security interest and the term "Collateral".
3. Title to Collateral, etc. AmeriKing Indiana Holdings is the owner of
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the Collateral free from any adverse lien, security interest or other
encumbrance, except for the security interest created by this Agreement and
other liens permitted by the Credit Agreement. None of the Collateral
constitutes, or is the proceeds of, "farm products" as defined in (S)9-109(3) of
the Uniform Commercial Code of the Commonwealth of Massachusetts. None of the
account debtors in respect of any accounts, chattel paper or general intangibles
and none of the obligors in respect of any instruments included in the
Collateral is a governmental authority subject to the Federal Assignment of
Claims Act.
4. Continuous Perfection. AmeriKing Indiana Holdings' place of business
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or, if more than one, chief executive offices are indicated on the Perfection
Certificate delivered to the Agent herewith (the "Perfection Certificate").
AmeriKing Indiana Holdings will not change the same, or the name, identity or
corporate structure of AmeriKing Indiana Holdings in any manner, without
providing at least thirty (30) days prior written notice to the Agent. The
Collateral, to the extent not delivered to the Agent pursuant to (S)2.2, will be
kept at those locations listed on the Perfection Certificate and AmeriKing
Indiana Holdings will not remove the Collateral from such locations, without
providing at least thirty (30) days prior written notice to the Agent.
5. No Liens. Except for the security interest herein granted and liens
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permitted by the Credit Agreement, AmeriKing Indiana Holdings shall be the owner
of the Collateral free from any lien, security interest or other encumbrance,
and AmeriKing Indiana Holdings shall defend the same against all claims and
demands of all persons at any time claiming the same or any interests therein
adverse to the Agent or any of the Banks. AmeriKing Indiana Holdings shall not
pledge, mortgage or create, or suffer to exist a security interest in the
Collateral in favor of any person other than the Agent, for the benefit of the
Banks and the Agent, except for liens permitted by the Credit Agreement.
6. No Transfers. AmeriKing Indiana Holdings will not sell or offer to
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sell or otherwise transfer the Collateral or any interest therein except for (a)
sales and leases of inventory and licenses of general intangibles in the
ordinary course of business and (b) sales or other dispositions of obsolescent
items of equipment in the ordinary course of business consistent with past
practices.
7. Insurance.
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7.1. Maintenance of Insurance. AmeriKing Indiana Holdings will
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maintain with financially sound and reputable insurers insurance with
respect to its properties and business against such casualties and
contingencies as shall be in accordance with general practices of
businesses engaged in similar activities in
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similar geographic areas. Such insurance shall be in such minimum amounts
that AmeriKing Indiana Holdings will not be deemed a co-insurer under
applicable insurance laws, regulations and policies and otherwise shall be
in such amounts, contain such terms, be in such forms and be for such
periods as may be reasonably satisfactory to the Agent. In addition, all
such insurance shall be payable to the Agent as loss payee under a
"standard" or "New York" loss payee clause for the benefit of the Banks and
the Agent. Without limiting the foregoing, AmeriKing Indiana Holdings will
(a) keep all of its physical property insured with casualty or physical
hazard insurance on an "all risks" basis, with broad form flood and
earthquake coverages and electronic data processing coverage, with a full
replacement cost endorsement and an "agreed amount" clause in an amount
equal to 100% of the full replacement cost of such property, (b) maintain
all such workers' compensation or similar insurance as may be required by
law and (c) maintain, in amounts and with deductibles equal to those
generally maintained by businesses engaged in similar activities in similar
geographic areas, general public liability insurance against claims of
bodily injury, death or property damage occurring, on, in or about the
properties of AmeriKing Indiana Holdings; business interruption insurance;
and product liability insurance.
7.2. Insurance Proceeds. The proceeds of any casualty insurance in
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respect of any casualty loss of any of the Collateral shall, subject to the
rights, if any, of other parties with a prior interest in the property
covered thereby, (i) so long as no Default or Event of Default has occurred
and is continuing and to the extent that the amount of such proceeds is
less than $50,000.00, be disbursed to AmeriKing Indiana Holdings for direct
application by AmeriKing Indiana Holdings solely to the repair or
replacement of AmeriKing Indiana Holdings' property so damaged or destroyed
and (ii) in all other circumstances, be held by the Agent as cash
collateral for the Obligations. The Agent may, at its sole option, disburse
from time to time all or any part of such proceeds so held as cash
collateral, upon such terms and conditions as the Agent may reasonably
prescribe, for direct application by AmeriKing Indiana Holdings solely to
the repair or replacement of AmeriKing Indiana Holdings' property so
damaged or destroyed, or the Agent may apply all or any part of such
proceeds to the Obligations with the Total Revolver Commitment (if not then
terminated) being reduced by the amount so applied to the Obligations.
7.3. Notice of Cancellation, etc. All policies of insurance shall
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provide for at least thirty (30) days prior written cancellation notice to
the Agent. In the event of failure by AmeriKing Indiana Holdings to provide
and maintain insurance as herein provided, the Agent may, at its option,
provide such insurance and charge the amount thereof to AmeriKing Indiana
Holdings. AmeriKing Indiana Holdings shall furnish the Agent with
certificates of insurance and policies evidencing compliance with the
foregoing insurance provision.
8. Maintenance of Collateral; Compliance with Law. AmeriKing Indiana
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Holdings will keep the Collateral in good order and repair and will not use the
same in violation of law or any policy of insurance thereon. The Agent, or its
designee, may inspect the Collateral at any reasonable time, wherever located.
AmeriKing Indiana Holdings will pay promptly when due all taxes (except as
expressly set forth in (S)8.8 of the Credit
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Agreement), assessments, governmental charges and levies upon the Collateral or
incurred in connection with the use or operation of such Collateral or incurred
in connection with this Agreement. AmeriKing Indiana Holdings has at all times
operated, and AmeriKing Indiana Holdings will continue to operate, its business
in compliance with all applicable provisions of the federal Fair Labor Standards
Act, as amended, and with all applicable provisions of federal, state and local
statutes and ordinances dealing with the control, shipment, storage or disposal
of hazardous materials or substances.
9. Collateral Protection Expenses; Preservation of Collateral.
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9.1. Expenses Incurred by Agent. In its discretion, the Agent may
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discharge taxes (except as expressly set forth in (S)8.8 of the Credit
Agreement) and other encumbrances at any time levied or placed on any of
the Collateral, make repairs thereto and pay any necessary filing fees.
AmeriKing Indiana Holdings agrees to reimburse the Agent on demand for any
and all expenditures so made. The Agent shall have no obligation to
AmeriKing Indiana Holdings to make any such expenditures, nor shall the
making thereof relieve AmeriKing Indiana Holdings of any default.
9.2. Agent's Obligations and Duties. Anything herein to the
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contrary notwithstanding, AmeriKing Indiana Holdings shall remain liable
under each contract or agreement comprised in the Collateral to be observed
or performed by AmeriKing Indiana Holdings thereunder. Neither the Agent
nor any Bank shall have any obligation or liability under any such contract
or agreement by reason of or arising out of this Agreement or the receipt
by the Agent or any Bank of any payment relating to any of the Collateral,
nor shall the Agent or any Bank be obligated in any manner to perform any
of the obligations of AmeriKing Indiana Holdings under or pursuant to any
such contract or agreement, to make inquiry as to the nature or sufficiency
of any payment received by the Agent or any Bank in respect of the
Collateral or as to the sufficiency of any performance by any party under
any such contract or agreement, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts
which may have been assigned to the Agent or to which the Agent or any Bank
may be entitled at any time or times. The Agent's sole duty with respect to
the custody, safe keeping and physical preservation of the Collateral in
its possession, under (S)9-207 of the Uniform Commercial Code of the
Commonwealth of Massachusetts or otherwise, shall be to deal with such
Collateral in the same manner as the Agent deals with similar property for
its own account.
10. Securities and Deposits. The Agent may at any time, at its option,
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transfer to itself or any nominee any securities constituting Collateral,
receive any income thereon and hold such income as additional Collateral or
apply it to the Obligations. Whether or not any Obligations are due, the Agent
may demand, ▇▇▇ for, collect, or make any settlement or compromise which it
deems desirable with respect to the Collateral. Regardless of the adequacy of
Collateral or any other security for the Obligations, any deposits or other sums
at any time credited by or due from the Agent or any Bank to AmeriKing Indiana
Holdings may at any time be applied to or set off against any of the
Obligations.
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11. Notification to Account Debtors and Other Obligors. If a Default or
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an Event of Default shall have occurred and be continuing, AmeriKing Indiana
Holdings shall, at the request of the Agent, notify account debtors on accounts,
chattel paper and general intangibles of AmeriKing Indiana Holdings and obligors
on instruments for which AmeriKing Indiana Holdings is an obligee of the
security interest of the Agent in any account, chattel paper, general intangible
or instrument and that payment thereof is to be made directly to the Agent or to
any financial institution designated by the Agent as the Agent's agent therefor,
and the Agent may itself, if a Default or an Event of Default shall have
occurred and be continuing, without notice to or demand upon AmeriKing Indiana
Holdings, so notify account debtors and obligors. After the making of such a
request or the giving of any such notification, AmeriKing Indiana Holdings shall
hold any proceeds of collection of accounts, chattel paper, general intangibles
and instruments received by AmeriKing Indiana Holdings as trustee for the Agent,
for the benefit of the Banks and the Agent, without commingling the same with
other funds of AmeriKing Indiana Holdings and shall turn the same over to the
Agent in the identical form received, together with any necessary endorsements
or assignments. The Agent shall apply the proceeds of collection of accounts,
chattel paper, general intangibles and instruments received by the Agent to the
Obligations, such proceeds to be immediately entered after final payment in cash
or solvent credits of the items giving rise to them.
12. Further Assurances. AmeriKing Indiana Holdings, at its own expense,
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shall do, make, execute and deliver all such additional and further acts,
things, deeds, assurances and instruments as the Agent may require more
completely to vest in and assure to the Agent and the Banks their respective
rights hereunder or in any of the Collateral, including, without limitation, (a)
executing, delivering and, where appropriate, filing financing statements and
continuation statements under the Uniform Commercial Code, (b) obtaining
governmental and other third party consents and approvals, including without
limitation any consent of any licensor, lessor or other applicable party
referred to in (S)2.3, (c) obtaining waivers from mortgagees and landlords and
(d) taking all actions required by Sections 8-313 and 8-321 of the Uniform
Commercial Code (1990) or Sections 8-106 and 9-115 of the Uniform Commercial
Code (1994), as applicable in each relevant jurisdiction, with respect to
certificated and uncertificated securities.
13. Power of Attorney.
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13.1. Appointment and Powers of Agent. AmeriKing Indiana Holdings
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hereby irrevocably constitutes and appoints the Agent and any officer or
agent thereof, with full power of substitution, as its true and lawful
attorneys-in-fact with full irrevocable power and authority in the place
and stead of AmeriKing Indiana Holdings or in the Agent's own name, for the
purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments
that may be necessary or desirable to accomplish the purposes of this
Agreement and, without limiting the generality of the foregoing, hereby
gives said attorneys the power and right, on behalf of AmeriKing Indiana
Holdings, without notice to or assent by AmeriKing Indiana Holdings, to do
the following:
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(a) upon the occurrence and during the continuance of a Default
or an Event of Default, generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral
in such manner as is consistent with the Uniform Commercial Code of
the Commonwealth of Massachusetts and as fully and completely as
though the Agent were the absolute owner thereof for all purposes, and
to do at AmeriKing Indiana Holdings' expense, at any time, or from
time to time, all acts and things which the Agent deems necessary to
protect, preserve or realize upon the Collateral and the Agent's
security interest therein, in order to effect the intent of this
Agreement, all as fully and effectively as AmeriKing Indiana Holdings
might do, including, without limitation, (i) the filing and
prosecuting of registration and transfer applications with the
appropriate federal or local agencies or authorities with respect to
trademarks, copyrights and patentable inventions and processes, (ii)
upon written notice to AmeriKing Indiana Holdings, the exercise of
voting rights with respect to voting securities, which rights may be
exercised, if the Agent so elects, with a view to causing the
liquidation in a commercially reasonable manner of assets of the
issuer of any such securities and (iii) the execution, delivery and
recording, in connection with any sale or other disposition of any
Collateral, of the endorsements, assignments or other instruments of
conveyance or transfer with respect to such Collateral; and
(b) to file such financing statements with respect hereto, with
or without AmeriKing Indiana Holdings' signature, or a photocopy of
this Agreement in substitution for a financing statement, as the Agent
may deem appropriate and to execute in AmeriKing Indiana Holdings'
name such financing statements and amendments thereto and continuation
statements which may require AmeriKing Indiana Holdings' signature.
13.2. Ratification by AmeriKing Indiana Holdings. To the extent
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permitted by law, AmeriKing Indiana Holdings hereby ratifies all that said
attorneys shall lawfully do or cause to be done by virtue hereof. This
power of attorney is a power coupled with an interest and shall be
irrevocable.
13.3. No Duty on Agent. The powers conferred on the Agent hereunder
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are solely to protect the interests of the Agent and the Banks in the
Collateral and shall not impose any duty upon the Agent to exercise any
such powers. The Agent shall be accountable only for the amounts that it
actually receives as a result of the exercise of such powers and neither it
nor any of its officers, directors, employees or agents shall be
responsible to AmeriKing Indiana Holdings for any act or failure to act,
except for the Agent's own gross negligence or willful misconduct.
14. Remedies. If an Event of Default shall have occurred and be
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continuing, the Agent may, without notice to or demand upon AmeriKing Indiana
Holdings, declare this Agreement to be in default, and the Agent shall
thereafter have in any jurisdiction in which enforcement hereof is sought, in
addition to all other rights and remedies, the rights and remedies of a secured
party under the Uniform Commercial Code, including, without limitation, the
right to take possession of the Collateral, and for that purpose the Agent
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may, so far as AmeriKing Indiana Holdings can give authority therefor, enter
upon any premises on which the Collateral may be situated and remove the same
therefrom. The Agent may in its discretion require AmeriKing Indiana Holdings to
assemble all or any part of the Collateral at such location or locations within
the state(s) of AmeriKing Indiana Holdings' principal office(s) or at such other
locations as the Agent may designate. Unless the Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, the Agent shall give to AmeriKing Indiana Holdings at least
five Business Days prior written notice of the time and place of any public sale
of Collateral or of the time after which any private sale or any other intended
disposition is to be made. AmeriKing Indiana Holdings hereby acknowledges that
five Business Days prior written notice of such sale or sales shall be
reasonable notice. In addition, AmeriKing Indiana Holdings waives any and all
rights that it may have to a judicial hearing in advance of the enforcement of
any of the Agent's rights hereunder, including, without limitation, its right
following an Event of Default to take immediate possession of the Collateral and
to exercise its rights with respect thereto. To the extent that any of the
Obligations are to be paid or performed by a person other than AmeriKing Indiana
Holdings, AmeriKing Indiana Holdings waives and agrees not to assert any rights
or privileges which it may have under (S)9-112 of the Uniform Commercial Code of
the Commonwealth of Massachusetts.
15. No Waiver, etc. AmeriKing Indiana Holdings waives demand, notice,
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protest, notice of acceptance of this Agreement, notice of loans made, credit
extended, Collateral received or delivered or other action taken in reliance
hereon and all other demands and notices of any description. With respect to
both the Obligations and the Collateral, AmeriKing Indiana Holdings assents to
any extension or postponement of the time of payment or any other indulgence, to
any substitution, exchange or release of or failure to perfect any security
interest in any Collateral, to the addition or release of any party or person
primarily or secondarily liable, to the acceptance of partial payment thereon
and the settlement, compromising or adjusting of any thereof, all in such manner
and at such time or times as the Agent may deem advisable. The Agent shall have
no duty as to the collection or protection of the Collateral or any income
thereon, nor as to the preservation of rights against prior parties, nor as to
the preservation of any rights pertaining thereto beyond the safe custody
thereof as set forth in (S)9.2. The Agent shall not be deemed to have waived any
of its rights upon or under the Obligations or the Collateral unless such waiver
shall be in writing and signed by the Agent with the consent of the Majority
Banks. No delay or omission on the part of the Agent in exercising any right
shall operate as a waiver of such right or any other right. A waiver on any one
occasion shall not be construed as a bar to or waiver of any right on any future
occasion. All rights and remedies of the Agent with respect to the Obligations
or the Collateral, whether evidenced hereby or by any other instrument or
papers, shall be cumulative and may be exercised singularly, alternatively,
successively or concurrently at such time or at such times as the Agent deems
expedient.
16. Marshalling. Neither the Agent nor any Bank shall be required to
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marshal any present or future collateral security (including but not limited to
this Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
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all other rights, however existing or arising. To the extent that it lawfully
may, AmeriKing Indiana Holdings hereby agrees that it will not invoke any law
relating to the marshalling of collateral which might cause delay in or impede
the enforcement of the Agent's rights under this Agreement or under any other
instrument creating or evidencing any of the Obligations or under which any of
the Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
AmeriKing Indiana Holdings hereby irrevocably waives the benefits of all such
laws.
17. Proceeds of Dispositions; Expenses. AmeriKing Indiana Holdings shall
----------------------------------
pay to the Agent on demand any and all expenses, including reasonable attorneys'
fees and disbursements, incurred or paid by the Agent in protecting, preserving
or enforcing the Agent's rights under or in respect of any of the Obligations or
any of the Collateral. After deducting all of said expenses, the residue of any
proceeds of collection or sale of the Obligations or Collateral shall, to the
extent actually received in cash, be applied to the payment of the Obligations
in such order or preference as the Bank may determine or in such order or
--
preference as is provided in the Credit Agreement, proper allowance and
provision being made for any Obligations not then due. Upon the final payment
and satisfaction in full of all of the Obligations and after making any payments
required by Section 9-504(1)(c) of the Uniform Commercial Code of the
Commonwealth of Massachusetts, any excess shall be returned to AmeriKing Indiana
Holdings, and AmeriKing Indiana Holdings shall remain liable for any deficiency
in the payment of the Obligations.
18. Overdue Amounts. Until paid, all amounts due and payable by AmeriKing
---------------
Indiana Holdings hereunder shall be a debt secured by the Collateral and shall
bear, whether before or after judgment, interest at the rate of interest for
overdue principal set forth in the Credit Agreement.
19. Governing Law; Consent to Jurisdiction. THIS AGREEMENT IS INTENDED TO
--------------------------------------
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. AmeriKing
Indiana Holdings agrees that any suit for the enforcement of this Agreement may
be brought in the courts of the Commonwealth of Massachusetts or any federal
court sitting therein and consents to the non-exclusive jurisdiction of such
court and to service of process in any such suit being made upon AmeriKing
Indiana Holdings by mail at the address for AmeriKing Indiana Holdings specified
in (S)20 of the Credit Agreement. AmeriKing Indiana Holdings hereby waives any
objection that it may now or hereafter have to the venue of any such suit or any
such court or that such suit is brought in an inconvenient court.
20. Waiver of Jury Trial. AMERIKING INDIANA HOLDINGS WAIVES ITS RIGHT TO
--------------------
A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
AmeriKing Indiana Holdings waives any right which it may have to claim or
recover in any litigation referred to in the preceding sentence any special,
exemplary, punitive or consequential damages or any damages other
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than, or in addition to, actual damages. AmeriKing Indiana Holdings (i)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that, in entering into the Credit
Agreement and the other Revolver Loan Documents to which the Agent or any Bank
is a party, the Agent and the Banks are relying upon, among other things, the
waivers and certifications contained in this (S)20.
21. Concerning Revised Article 9 of the Uniform Commercial Code. The
-----------------------------------------------------------
parties acknowledge and agree to the following provisions of this Agreement in
anticipation of the possible application, in one or more jurisdictions to the
transactions contemplated hereby, of the revised Article 9 of the Uniform
Commercial Code in the form or substantially in the form approved by the
American Law Institute and the National Conference of Commissioners on Uniform
State Law and contained in the 1999 official text of Revised Article 9 ("Revised
Article 9").
21.1. Attachment. In applying the law of any jurisdiction in which
----------
Revised Article 9 is in effect, the Collateral is all assets of AmeriKing
Indiana Holdings, whether or not within the scope of Revised Article 9. The
Collateral shall include, without limitation, the following categories of
assets as defined in Revised Article 9: goods (including inventory,
equipment and any accessions thereto), instruments (including promissory
notes), documents, accounts (including health-care-insurance receivables),
chattel paper (whether tangible or electronic), deposit accounts,
letter-of-credit rights (whether or not the letter of credit is evidenced
by a writing), commercial tort claims, securities and all other investment
property, general intangibles (including payment intangibles and software),
supporting obligations and any and all proceeds of any thereof, wherever
located, whether now owned and hereafter acquired. If AmeriKing Indiana
Holdings shall at any time, whether or not Revised Article 9 is in effect
in any particular jurisdiction, acquire a commercial tort claim, as defined
in Revised Article 9, AmeriKing Indiana Holdings shall immediately notify
the Agent in a writing signed by AmeriKing Indiana Holdings of the brief
details thereof and grant to the Agent in such writing a security interest
therein and in the proceeds thereof, all upon the terms of this Agreement,
with such writing to be in form and substance satisfactory to the Agent.
21.2. Perfection by Filing. The Agent may at any time and from time
--------------------
to time, pursuant to the provisions of (S)13, file financing statements,
continuation statements and amendments thereto that describe the Collateral
as all assets of AmeriKing Indiana Holdings or words of similar effect and
which contain any other information required by Part 5 of Revised Article 9
for the sufficiency or filing office acceptance of any financing statement,
continuation statement or amendment, including whether AmeriKing Indiana
Holdings is an organization, the type of organization and any organization
identification number issued to AmeriKing Indiana Holdings. AmeriKing
Indiana Holdings agrees to furnish any such information to the Agent
promptly upon request. Any such financing statements, continuation
statements or amendments may be signed by the Agent on behalf of AmeriKing
Indiana Holdings, as provided in (S)13, and may be filed at any time in any
jurisdiction whether or not Revised Article 9 is then in effect in that
jurisdiction.
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21.3. Other Perfection, etc. AmeriKing Indiana Holdings shall at any
---------------------
time and from time to time, whether or not Revised Article 9 is in effect
in any particular jurisdiction, take such steps as the Agent may reasonably
request for the Agent (a) to obtain an acknowledgement, in form and
substance satisfactory to the Agent, of any bailee having possession of any
of the Collateral that the bailee holds such Collateral for the Agent, (b)
to obtain "control" of any investment property, deposit accounts,
letter-of-credit rights or electronic chattel paper (as such terms are
defined in Revised Article 9 with corresponding provisions in Rev. (S)(S)
9-104, 9-105, 9-106 and 9-107 relating to what constitutes "control" for
such items of Collateral), with any agreements establishing control to be
in form and substance satisfactory to the Agent, and (c) otherwise to
insure the continued perfection and priority of the Agent's security
interest in any of the Collateral and of the preservation of its rights
therein, whether in anticipation and following the effectiveness of Revised
Article 9 in any jurisdiction.
21.4. Other Provisions. In applying the law of any jurisdiction in
----------------
which Revised Article 9 is in effect, the following references to sections
in this Agreement to existing Article 9 of that jurisdiction shall be to
the Revised Article 9 Section of that jurisdiction indicated below:
-----------------------------------------------------------------------------------------------------
Agreement Section Existing Article 9 Revised Article 9
-----------------------------------------------------------------------------------------------------
3 (S) 9-109(3) Rev. (S) 9-102(a)(34)
-----------------------------------------------------------------------------------------------------
9.2 (S) ▇-▇▇▇ ▇▇▇. (▇)▇-▇▇▇
-----------------------------------------------------------------------------------------------------
12 (S)(S) 8-106 and 9-115 (1994) Rev. (S)(S) 8-106 and 9-106
-----------------------------------------------------------------------------------------------------
17 (S)9-504(1)(c) Rev. (S)(S) 9-608(a)(1)(C) and
9-615(a)(3)
-----------------------------------------------------------------------------------------------------
21.5. Savings Clause. Nothing contained in this (S)21 shall be
--------------
construed to narrow the scope of the Agent's security interest in any of
the Collateral or the perfection or priority thereof or to impair or
otherwise limit any of the rights, powers, privileges or remedies of the
Agent or any Bank hereunder except (and then only to the extent) mandated
by Revised Article 9 to the extent then applicable.
22. Miscellaneous. The headings of each section of this Agreement are for
-------------
convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon
AmeriKing Indiana Holdings and its respective successors and assigns, and shall
inure to the benefit of the Agent, the Banks and their respective successors and
assigns. If any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein.
AmeriKing Indiana Holdings acknowledges receipt of a copy of this Agreement.
23. Transitional Arrangements. This Security Agreement shall amend and
-------------------------
restate in its entirety the Existing Security Agreement on the Closing Date. On
the Closing Date, the rights and obligations of the respective parties under the
Existing Security Agreement shall be subsumed within and governed by this
Security Agreement, provided
--------
-14-
that, the provisions of the Existing Security Agreement shall remain in full
----
force and effect prior to the Closing Date, and that the liens granted pursuant
to the Existing Security Agreement shall continue to be in effect hereunder as
set forth in (S)2.1.
-15-
IN WITNESS WHEREOF, intending to be legally bound, AmeriKing Indiana
Holdings has caused this Agreement to be duly executed as of the date first
above written.
AMERIKING INDIANA HOLDINGS, INC.
By: /s/ A ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Title: Vice President
Accepted:
FLEET NATIONAL BANK,
as Agent
By: /s/ ▇▇▇▇▇ ▇. O'▇▇▇▇▇
-----------------------------
Title: Authorized Officer
-16-
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF New York )
) ss.
COUNTY OF New York )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 29th day of June, 2001, personally appeared A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
to me known personally, and who, being by me duly sworn, deposes and says that
he is the Vice President of AmeriKing Indiana Holdings, and that said
instrument was signed and sealed on behalf of said corporation by authority of
its Board of Directors, and said A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ acknowledged said instrument
to be the free act and deed of said corporation.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Notary Public
My commission expires: