Exhibit 10.8
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AMENDED AND RESTATED COLLATERAL ASSIGNMENT
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OF
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PARTNERSHIP INTEREST
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This COLLATERAL ASSIGNMENT OF PARTNERSHIP INTEREST (this "Assignment"),
dated as of June 29, 2001, from National Restaurant Enterprises, Inc. (the
"Assignor") in favor of Fleet National Bank (f/k/a BankBoston, N.A., the
"Assignee"), 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 dated as of the date hereof (as hereinafter defined).
WHEREAS, The Assignor, 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 Assignor; and
WHEREAS, the Assignor, 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 certain financial accommodations to the Assignor;
and
WHEREAS, the parties to the Existing Credit Agreements and National
Restaurant Enterprises Holdings, Inc. ("Holdings") have agreed to consolidate,
amend and restate the Existing Credit Agreements in their entirety by entering
into the Consolidated, Amended and Restated Revolving Credit Agreement dated as
of the date hereof, among the Assignor, AmeriKing, Holdings, the Agent and the
Banks (as amended and in effect from time to time, the "Credit Agreement"); and
WHEREAS, the Assignor is the legal and beneficial owner of a limited
partnership interest in AmeriKing Indiana, L.P., a Delaware limited partnership
(the "Partnership"); and
WHEREAS, in connection with the Existing Credit Agreements, the Assignor
and the Agent executed a Collateral Assignment of Partnership Interest dated as
of December 24, 1998 (as amended and in effect from time to time, the "Existing
Partnership Assignment Agreement"); and
WHEREAS, it is a condition precedent to the Agent and the Banks making
loans or otherwise extending credit to the Assignor under the Credit Agreement
that the Assignor execute and deliver to the Agent, for the benefit of the Banks
and the Agent, an amended and restated collateral assignment of partnership
interest in substantially the form hereof; and
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WHEREAS, each of the Assignor and the Agent wishes to amend and restate in
its entirety the Existing Partnership Assignment Agreement for the benefit of
the Agent and the Banks as herein provided, which shall amend and restate in its
entirety the Existing Partnership Assignment Agreement, and the Existing
Partnership Assignment Agreement shall remain in full force and effect only as
set forth herein; and
WHEREAS, the Assignor is expected to receive substantial direct and
indirect benefits from the making of loans and other extensions of credit to the
Assignor by the Banks pursuant to the Credit Agreement (which benefits are
hereby acknowledged); and
WHEREAS, the Assignor has executed a Security Agreement as of the date
hereof between the Assignor and the Agent (the "Security Agreement"); and
WHEREAS, the Assignor wishes to pledge its limited interest in the
Partnership in favor of the Agent, for the benefit of the Banks and the Agent,
as herein provided;
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.
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All capitalized terms used herein without definitions 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. The
following terms shall have the following meanings herein:
Acquisition Credit Agreement. See preamble.
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Assignee, Assignor. See preamble.
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Assigned Interests. See (S)2.1 hereof.
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Cash Collateral. See (S)4.2.
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Cash Collateral Account. See (S)4.2.
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Collateral. The Assigned Interests and all other property now or hereafter
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pledged or assigned to the Assignee by the Assignor hereunder, and all income
therefrom, increases therein and proceeds thereof.
Credit Agreement. See preamble.
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Event of Default. See (S)5.
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Existing Credit Agreements. See preamble.
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General Partner. As defined in the Partnership Agreement.
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Guaranty. See preamble.
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Partnership. See preamble.
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Partnership Agreement. The Agreement of Limited Partnership dated as of
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January 22, 1998, as amended, modified, supplemented or restated from time to
time.
Revolver Credit Agreement. See preamble.
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Security Agreement. See preamble.
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Time Deposits. See (S)4.2.
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2. ASSIGNMENT.
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2.1. Grant of Security Interest. The Assignor hereby pledges, grants a
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security interest in, mortgages, and collaterally assigns and transfers to the
Assignee, as security for the payment and performance in full when due of all of
the Obligations, all the right, title and interest of the Assignor in and to the
Assignor's limited partnership interest in the Partnership, wherever located and
whether now owned or hereafter acquired or arising, including, without
limitation, (a) all payments or distributions, whether in cash, property or
otherwise, at any time owing or payable to the Assignor on account of its
interest as a limited partner in the Partnership or in the nature of a
management, investment banking or other fee paid or payable by the Partnership
to the Assignor, (b) all of the Assignor's rights and interests as a limited
partner under the Partnership Agreement, including all voting and management
rights and all rights to grant or withhold consents or approvals, (c) all rights
of access and inspection to and use of all books and records, including computer
software and computer software programs, of the Partnership, (d) all other
rights, interests, property or claims to which the Assignor may be entitled in
its capacity as a limited partner of the Partnership, and (e) all proceeds and
products of any of the foregoing (all of the foregoing rights, title and
interest described in the foregoing clauses (a) through (e) being herein
referred to collectively as the "Assigned Interests").
2.2. Pledge of Cash Collateral Accounts. The Assignor also hereby pledges
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and assigns to the Assignee a security interest in, the Cash Collateral Account
and all of the Cash Collateral, subject to the terms of this Agreement.
2.3. Waiver of Certain Partnership Agreement Provisions. The Assignor
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irrevocably waives any and all provisions of the Partnership Agreement that (a)
prohibit, restrict, condition or otherwise affect the grant hereunder of any
lien, security interest or encumbrance on any of the Collateral or any
enforcement
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action which may be taken in respect of any such lien, security interest or
encumbrance, or (b) otherwise conflict with the terms of this Assignment.
2.4. Limitations. Notwithstanding the foregoing provisions of this (S)2,
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such grant of security interest shall not extend to, and the term "Collateral"
shall not include, any general intangibles, including, without limitation, a
partnership interest or right to a distribution by virtue of ownership of such
partnership interest, which is now or hereafter held by the Assignor as partner
in the Partnership, to the extent that (a) such general intangibles are not
assignable or capable of being encumbered as a matter of law or under the terms
of the Partnership Agreement or other agreement applicable thereto) or would
cause a default by the Assignor or the Partnership (but solely to the extent
that any such restriction referred to in this clause (a) shall be enforceable
under applicable law), without the consent of one or more of the other partners
thereof or other applicable party thereto and (b) such consent has not been
obtained; provided, however, that the foregoing grant of security interest shall
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extend to, and the term "Collateral" shall include, (i) any and all proceeds of
such general intangibles to the extent that the assignment or encumbering of
such proceeds is not so restricted and (ii) upon any such other partner's or
other applicable party's consent with respect to any such otherwise excluded
general intangibles being obtained, thereafter such general intangibles as well
as any and all proceeds thereof that might theretofore have been excluded from
such grant of a security interest and the term "Collateral".
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
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ASSIGNOR.
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3.1. Representations and Warranties. The Assignor hereby represents and
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warrants to, Assignee as follows:
(a) The Partnership is duly organized, validly existing, and in
good standing under the laws of the State of Delaware and all other
jurisdictions where the Partnership does business; the Partnership
Agreement is in full force and effect; the Assignor is a duly constituted
partner of the Partnership pursuant to the Partnership Agreement; the
persons and entities listed as partners in the Partnership Agreement are
the only partners of the Partnership; and the Assigned Interests are
validly issued, non-assessable and, except as set forth in (S)3.1(g)
hereof, fully paid partnership interests in the Partnership.
(b) The Assignor has full right, power and authority to make this
Assignment (including the provisions enabling the Assignee or its nominee,
upon the occurrence of an Event of Default, to exercise the rights provided
for herein), under the Partnership Agreement and under applicable law,
without the consent, approval or authorization of, or notice to, any other
person, including any regulatory authority or any person having any
interest in the Partnership, other than any consents to this Assignment
required to be given by the other partners under the Partnership Agreement,
which consents, if any, have been duly received.
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(c) The execution, delivery, and performance of this Assignment
and the transactions contemplated hereby (i) have been duly authorized by
all necessary corporate proceedings on behalf of the Assignor, (ii) do not
conflict with or result in any breach or contravention of any applicable
law, regulation, judicial order or decree to which such Assignor is
subject, (iii) do not conflict with or violate any provision of the
corporate charter or bylaws of the Assignor, and (iv) do not violate,
conflict with, constitute a default or event of default under, or result in
any rights to accelerate or modify any obligations under any material
agreement, instrument, lease, mortgage or indenture to which such Assignor
is party or subject, or to which any of its assets are subject.
(d) This Assignment has been duly executed and delivered by the
Assignor and is the legal, valid, and binding obligation of the Assignor
enforceable against it in accordance with the terms hereof except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium, or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that availability
of the remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any case or proceeding therefor
may be brought.
(e) The Assignor is the sole, direct, legal and beneficial owner
of all Assigned Interests, which Assigned Interests constitute the
Assignor's entire limited partnership interest in the Partnership
(reflecting a 94% interest in the Partnership), and has good and marketable
title thereto, free and clear of any lien, security interest, mortgage or
other encumbrance, other than the liens and security interest granted to
the Assignee hereunder or liens under the Securities Act of 1933, as
amended; and the liens and security interests hereunder constitute valid
and perfected first priority liens and security interests.
(f) The Assignor's principal place of business, chief executive
office, and the place where its records concerning the Collateral are kept
is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(g) Except as otherwise provided in (S)6 of the Partnership
Agreement, the Assignor has no obligation to make any contribution, capital
call or other payment to the Partnership with respect to the Assigned
Interests.
(h) The copy of the Partnership Agreement attached hereto as
Exhibit A is a true, correct, and complete copy thereof, and the
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Partnership Agreement has not been amended or modified in any respect,
except for such amendments or modifications as are attached to the copy
thereof delivered to the Assignee.
(i) The partnership interest of the Assignor in the Partnership is
not evidenced by any certificate issued by the Partnership.
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3.2. Covenants. The Assignor covenants to the Assignee as follows:
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(a) The Assignor will not permit or agree to any amendment or
modification of the Partnership Agreement (except for ministerial or other
non-substantive amendments or modifications) as in effect on the date
hereof (or other governing document with respect to the Assigned
Interests), or waive any rights or benefits under the Partnership Agreement
(or such other governing document), without the prior written consent of
the Assignee.
(b) Without the prior written consent of the Assignee, the
Assignor will not sell, dispose of or assign, beneficially or of record, or
grant, create, permit or suffer any lien or encumbrance on, any of the
Assigned Interests except for (i) the collateral assignment and security
interest provides herein and (ii) any sale or other disposition by Assignor
which is expressly permitted by or provided for in the provisions of
(S)9.5.2 of the Credit Agreement, or withdraw as a limited partner of the
Partnership.
(c) Without the prior written consent of the Assignee, the
Assignor shall not cast any vote or give or grant any consent, waiver or
ratification or take any other action which could reasonably be expected to
(i) directly or indirectly authorize or permit the dissolution, liquidation
or sale of the Partnership or the sale, lease, assignment, transfer or
other disposition of any of the assets of the Partnership (except for
personal property which is disposed of in the ordinary course of business
and so long as no Event of Default has occurred and is continuing), whether
by operation of law or otherwise, (ii) have the result of materially and
adversely affecting any of the Assignee's rights under this Assignment or
under any of the other Revolver Loan Documents, (iii) violate the terms of
this Assignment or any of the other Revolver Loan Documents, (iv) have the
effect of impairing the validity, perfection or priority of the security
interest of the Assignee in any manner whatsoever, or (v) cause an Event of
Default.
(d) The Assignor will comply with all laws, regulations, judicial
orders or decrees applicable to the Collateral or any portion thereof, and
perform and observe its duties under the Partnership Agreement or other
governing documents with respect to the Assigned Interests.
(e) The Assignor will (i) keep and maintain at its own cost and
expense at its principal place of business satisfactory and complete
records of the Collateral including a record of all payments received and
all other dealings of a material nature with the Collateral, and (ii) ▇▇▇▇
its books and records pertaining to the Collateral and its books and
records kept in its jurisdiction of organization to evidence this
Assignment and the liens and security interests granted hereby.
(f) The Assignor will pay promptly when due any taxes,
assessments, and governmental charges or levies imposed upon the Collateral
or in respect of its income or profits therefrom, as well as all claims
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of any kind except that no such charge need be paid if (i) the validity
thereof is being diligently contested in good faith by appropriate
proceedings; (ii) such proceedings do not involve any danger of the sale,
forfeiture, or loss of any of the Collateral or any interest therein; and
(iii) such charge is adequately reserved against in a manner reasonably
acceptable to the Assignee.
(g) The Assignor will advise the Assignee promptly, in reasonable
detail, of (i) any lien, charge, claim or other encumbrance made or
asserted against any of the Collateral; (ii) any adverse material change in
the composition of the Collateral; (iii) the occurrence of any other event
or condition which to its knowledge would have a material effect on the
validity, perfection or priority of the liens and security interests
granted hereunder; and (iv) any bankruptcy or litigation case or proceeding
relating to any of the Collateral.
(h) The Assignor will not (i) change its principal place of
business or chief executive office or the location of the records
concerning the Collateral without giving prior written notice to the
Assignee and taking such actions as may be necessary or appropriate in the
reasonable opinion of the Assignee duly to perfect and continue the
perfection of the Assignee's first priority lien and security interest in
the Collateral pursuant to the laws of any jurisdiction into which such
place of business, chief executive office, or records is or are
transferred, and (ii) change its name, identity, or organizational
structure in any matter that might make any financing statement filed
hereunder misleading or invalid unless the Assignor shall have notified the
Assignee thereof and taken all such actions as may be necessary or
appropriate in the reasonable opinion of the Assignee to make any financing
statement filed in favor of the Assignee not misleading or invalid.
(i) The Assignor shall do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence
and that of the Partnership, the power and authority of each of the
Assignor and the Partnership to own its property and carry on its business,
the qualification of each of the Assignor and the Partnership to do
business in its jurisdiction of organization, and the qualification of each
of the Assignor and the Partnership to do business in each other
jurisdiction where such qualification is necessary except where the failure
so to qualify would not have a material adverse effect on the rights and
interests of the Assignee hereunder.
(j) Within one hundred twenty (120) days after the end of each tax
year, the Assignor shall furnish to the Assignee complete copies of the
federal income tax returns of the Assignor and of the Partnership except
where such returns have already been delivered to the Assignee pursuant to
any of the Revolver Loan Documents.
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4. RIGHTS OF ASSIGNEE.
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4.1. Assignee Appointed Attorney-in-Fact. The Assignor hereby irrevocably
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constitutes and appoints the Assignee, its successors and assigns, its true and
lawful attorney-in-fact, with full power and authority and with full power of
substitution, at the expense of the Assignor, either in the Assignee's own name
or in the name of the Assignor, at any time and from time to time, in each case
as the Assignee in its sole discretion may determine (i) to execute, deliver and
file financing statements with respect hereof and to execute, deliver and file
amendments to and continuations of such financing statements as the Assignee may
deem necessary or appropriate, and (ii) upon the occurrence and during the
continuance of an Event of Default:
(A) to take any action and execute any instruments that such attorney-
in-fact may deem necessary or advisable to accomplish the purposes
hereof;
(B) to ask, demand, collect, receive, receipt for, ▇▇▇ for, compound,
and give acquittance for any and all sums or properties that may be
or become due, payable, or distributable in respect of the
Collateral or that constitute a part thereof, with full power to
settle, adjust, or compromise any claim thereunder or therefor as
fully as the Assignor could do;
(C) to endorse or sign the name of the Assignor on all instruments given
in payment or in part payment thereof and all documents of
satisfaction, discharge, or receipt required or requested in
connection therewith; and
(D) to file or take any action or institute any case or proceeding that
the Assignee may deem necessary or appropriate to collect or
otherwise realize upon any or all of the Collateral, or effect a
transfer thereof, or that may be necessary or appropriate to protect
and preserve the right, title, and interest of the Assignee in and
to the Collateral and the security intended to be afforded hereby.
4.2. Cash Collateral Account. Unless applied by the Assignee to
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Obligations then due and payable, all sums of money that are paid to the
Assignee pursuant to this Assignment shall be deposited into an interest bearing
account with the Assignee or another financial institution selected by the
Assignee in its sole discretion (the "Cash Collateral Account"). Some or all of
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the funds from time to time in the Cash Collateral Account may be invested in
time deposits, including certificates of deposit issued by the Assignee or
another financial institution selected by the Assignee in its sole discretion
(such certificates of deposit or other time deposits being hereinafter referred
to, collectively, as "Time Deposits") that are satisfactory to the Assignee
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after consultation with the Assignor, provided that nothing contained herein
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shall require the Assignor's consent to such Time Deposits, provided, in any
such case, arrangements satisfactory to the Assignee are made to
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perfect, and to ensure the first priority of, its lien and security interest in
such Time Deposits. Interest earned on the Cash Collateral Account and on the
Time Deposits, and the principal of the Time Deposits at maturity that is not
invested in new Time Deposits, shall be deposited in the Cash Collateral
Account. The Cash Collateral Account, all sums from time to time standing to the
credit of the Cash Collateral Account, any and all Time Deposits, any and all
instruments or other writings evidencing Time Deposits, and any and all proceeds
of any thereof are hereinafter referred to as the "Cash Collateral."
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4.3. Distributions, Conversion, Voting, etc. So long as no Event of
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Default shall have occurred and be continuing and to the extent permitted under
the Credit Agreements, the Assignor shall be entitled to:
(i) receive all cash and other distributions paid in respect of the
Assigned Interests not authorized or made in violation of the Credit
Agreement;
(ii) exercise any management or voting rights relating to the Assigned
Interests; and
(iii) give consents, waivers, approvals, and ratifications in respect of
the Assigned Interests.
All such rights of the Assignor to receive cash and other distributions shall
cease if an Event of Default shall have occurred and be continuing, and in each
such case the Assignor shall (A) at the request of the Assignee, issue
appropriate instructions that any such distributions be paid directly to the
Assignee or to such account as the Assignee may designate, and (B) hold in trust
for the Assignee and immediately pay over to the Assignee any such distributions
received by the Assignor. All such rights of the Assignor referred to in
clauses (ii) and (iii) shall, at the Assignee's sole option, as evidenced by the
Assignee's notifying the Assignor in writing of its exercise of such option,
cease in case an Event of Default shall have occurred and be continuing.
4.4. No Assignment of Duties. This Assignment constitutes an assignment of
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the Assigned Interests and the other Collateral only and not an assignment of
any duties or obligations of the Assignor with respect thereto, and by its
acceptance hereof and whether or not the Assignee shall have exercised any of
its rights or remedies hereunder, the Assignee does not undertake to perform or
discharge, and shall not be responsible or liable for the performance or
discharge of, any such duties or responsibilities, including, without
limitation, for capital calls. The Assignor agrees that, notwithstanding the
exercise by the Assignee of any of its rights hereunder, the Assignor shall
remain liable for the full and prompt performance of all of the Assignor's
obligations and liabilities under the Partnership Agreement. Under no
circumstances shall the Assignee or any holder of any of the Obligations as such
be deemed to be a partner of the Partnership by virtue of the provisions of this
Assignment unless expressly agreed to in writing by the Assignee. Without
limiting the generality of the foregoing, the Assignee shall have no partnership
fiduciary duty to the Assignor, whether by virtue of the security interests and
liens hereunder, or any enforcement action in respect of such security
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interests and liens, unless and until the Assignee is admitted to the
Partnership as a substitute partner after exercising enforcement rights under
(S)9-504 or (S)9-505 of the Uniform Commercial Code of the Commonwealth of
Massachusetts, or otherwise.
5. EVENTS OF DEFAULT.
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Any one or more of the following events shall constitute an "Event of
Default" hereunder:
(a) The Assignor shall fail to perform any of its obligations under
the Partnership Agreement;
(b) The occurrence of any "Event of Default" or other like occurrence
under the Credit Agreement, the other Revolver Loan Documents or any other
agreement between the Assignor and the Assignee or under any other
instrument executed by the Assignor in favor of the Assignee.
6. REMEDIES.
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6.1. Remedies. During the continuance of an Event of Default, the
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Assignee shall have, in addition to the rights, powers and authorizations to
collect the sums assigned hereunder, all rights and remedies of a secured party
under the Uniform Commercial Code of the Commonwealth of Massachusetts and under
other applicable law with respect to the Assigned Interests and any other
Collateral hereunder, including, without limitation, the following rights and
remedies:
(a) if the Assignee so elects and gives written notice of such
election to the Assignor, the Assignee may, in its sole discretion, (i)
exercise any management or voting rights relating to the Assigned Interests
(whether or not the same shall have been transferred into its name or the
name of its nominee or nominees) for any lawful purpose, including for the
amendment or modification of the Partnership Agreement or other governing
documents or the liquidation of the assets of the Partnership, (ii) give
all consents, waivers, approvals, and ratifications in respect of such
Assigned Interests, and (iii) otherwise act with respect thereto as though
it were the outright owner thereof (the Assignor hereby irrevocably
constituting and appointing the Assignee the proxy and attorney-in-fact of
the Assignor, with full power and authority of substitution, to do so);
(b) the Assignee may, in its sole discretion, demand, ▇▇▇ for,
collect, compromise, or settle any rights or claims in respect of any
Collateral, as attorney-in-fact pursuant to (S)4.1 or otherwise;
(c) (i) the Assignee may, in its sole discretion, sell, resell,
assign, deliver, or otherwise dispose of any or all of the Collateral, for
cash or credit or both and upon such terms, in such manner, at such place
or places, at such time or times, and to such persons or entities as the
Assignee thinks expedient, all without demand for performance by the
Assignor or any notice or advertisement whatsoever except as expressly
provided herein or as may
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otherwise be required by applicable law; and (ii) at the time of any such
sale or other disposition, the Assignee or its nominee or any purchaser of
the Collateral at a foreclosure sale may, in its sole discretion, cause the
Partnership to make an election under (S)754 of the Internal Revenue Code
as to the basis of any Assigned Interest being sold or otherwise disposed
of.
(d) the Assignee may, in its sole discretion, cause all or any part of
the Assigned Interests held by it to be transferred into its name or the
name of its nominee or nominees; and
(e) the Assignee may, in its sole discretion, set off against the
Obligations or place an administrative hold or freeze on any and all sums
deposited with it or held by it, including any sums standing to the credit
of the Cash Collateral Account and any Time Deposits issued by the
Assignee, with any withdrawal penalty relating to Time Deposits being an
expense of collection.
6.2. Remedies Not Exclusive. No single or partial exercise by the
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Assignee of any right, power or remedy hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
Each right, power and remedy herein specifically granted to the Assignee or
otherwise available to it shall be cumulative, and shall be in addition to every
other right, power, and remedy herein specifically given or now or hereafter
existing at law, in equity, or otherwise. Each such right, power and remedy,
whether specifically granted herein or otherwise existing, may be exercised at
any time and from time to time and as often and in such order as may be deemed
expedient by the Assignee in its sole discretion.
6.3. Public Sale. In the event of any disposition of the Collateral as
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provided in (S)6.1(c), the Assignee shall give to the Assignor at least ten (10)
Business Days prior written notice of the time and place of any public sale of
the Collateral or of the time after which any private sale or any other intended
disposition is to be made. The Assignor hereby acknowledges that ten (10)
Business Days prior written notice of such sale or sales shall be reasonable
notice. The Assignee may enforce its rights hereunder without any other notice
and without compliance with any other condition precedent now or hereafter
imposed by law, regulation, judicial order or decree or otherwise (all of which
are hereby expressly waived by the Assignor, to the fullest extent permitted by
law). The Assignee may buy any part or all of the Collateral at any public sale
and if any part or all of the Collateral is of a type customarily sold in a
recognized market or is of a type which is the subject of widely-distributed
standard price quotations, the Assignee may buy at private sale and may make
payments thereof by any means. The Assignee may apply the cash proceeds actually
received from any sale or other disposition to the reasonable expenses of
retaking, holding, preparing for sale, selling, and the like, to reasonable
attorneys' fees, travel, and all other expenses which may be incurred by the
Assignee in attempting to collect the Obligations or to enforce this Assignment
or in the prosecution or defense of any case or proceeding related to this
Assignment, and then to the Obligations in accordance with the requirements of
the Credit
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Agreement with any surplus being applied as set forth in (S)13.4 of the Credit
Agreement. To the extent that any of the Obligations are to be paid or performed
by a person or entity other than the Assignor, to the extent permitted by
applicable law, the Assignor 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.
6.4. Private Sale. The Assignor recognizes that the Assignee may be
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unable to effect a public sale of the Collateral by reason of the lack of a
ready market for the Collateral, of the limited number of potential buyers of
the Collateral or of certain prohibitions contained in the Securities Act of
1933, state securities laws, federal banking laws, and other applicable laws,
and that the Assignee may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers. The Assignor agrees that any such
private sales may be at prices and other terms less favorable to the seller than
if sold at public sales and that such private sales shall not solely by reason
thereof be deemed not to have been made in a commercially reasonable manner. The
Assignee shall be under no obligation hereunder or otherwise (except as provided
by applicable law) to delay a sale of any of the Collateral for the period of
time necessary to permit the registration of such securities for public sale
under the Securities Act of 1933 and applicable state securities laws. Any such
sale of all or a portion of the Collateral may be for cash or on credit or for
future delivery and may be conducted at a private sale where the Assignee or any
other person or entity may be the purchaser of all or part of the Assigned
Interests so sold. The Assignor agrees that to the extent notice of sale shall
be required by law, at least ten (10) Business Days prior notice to the Assignor
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. Subject to the
foregoing, the Assignee agrees that any sale of the Assigned Interests shall be
made in a commercially reasonable manner. The Assignee shall incur no liability
as a result of the sale of any of the Collateral, or any part thereof, at any
private sale which complies with the requirements of this (S)6.4. The Assignor
hereby waives, to the extent permitted by applicable law, any claims against the
Assignee arising by reason of the fact that the price at which any of the
Collateral, or any part thereof, may have been sold at such private sale was
less than the price that might have been obtained at a public sale, even if the
Assignee accepts the first offer deemed by the Assignee in good faith deemed to
be commercially reasonable under the circumstances and does not offer any of the
Collateral to more than one offeree.
6.5. Title. The Assignor further acknowledges its obligation for payment
-----
of any deficiency remaining beyond the amount of the sale price of the Assigned
Interests, or any of them, less any payment or expenses incurred by the Assignee
in connection with such sale, and the Assignor will promptly pay the amount of
any such deficiency to the Assignee. Nothing contained in this Assignment shall
be construed to require the Assignee to take any action with respect to the
Assigned Interests, whether by way of foreclosure or otherwise and except as
required by the Partnership Agreement, in order to permit the Assignee to become
a substitute limited partner of the Partnership under the Partnership Agreement.
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7. ASSIGNMENT NOT AFFECTED BY OTHER ACTS.
-------------------------------------
The Assignor acknowledges and agrees that the security interests and
collateral assignments herein provided for shall remain in full force and effect
and shall not be impaired by any acceptance by the Assignee of any other
collateral security for or guaranty of any of the Obligations, or by any failure
or neglect or omission on the part of the Assignee to realize upon, collect or
protect any Obligations or any Collateral. The security interests and
collateral assignments herein provided for shall not in any manner be affected
or impaired by any renewal, extension, modification, amendment, waiver, or
restatement of any of the Obligations or of any collateral security therefor, or
of any guaranty thereof. In order to sell, dispose or otherwise realize upon
the security interests and assignments herein granted and provided for, and
exercise the rights granted the Assignee hereunder and under applicable law,
there shall be no obligation on the part of the Assignee at any time to first
resort for payment to any guarantors of the Obligations or any part thereof or
to resort to any other collateral security, property, liens or other rights or
remedies whatsoever, and the Assignee shall have the right to enforce the
security interests and collateral assignments herein provided for irrespective
of whether or not other proceedings are pending for realization upon or from any
of the foregoing.
8. REGISTRATION AND FILING.
-----------------------
The Assignor (i) has caused the Partnership to duly register the security
interests granted hereby on the books of the Partnership as required by (S)(S)8-
108, 8-313 and 8-321 of the Uniform Commercial Code of the Commonwealth of
Massachusetts, and has furnished the Assignee with evidence thereof (including,
without limitation, appropriate initial transaction statements), in form and
substance satisfactory to the Assignee, (ii) has duly executed and caused any
financing statements with respect to the Assigned Interests to be filed in such
a manner and in such places as may be required by law in order to fully protect
the rights of the Assignee hereunder, and (iii) will cause any financing
statements with respect to the Assigned Interests at all times to be kept
recorded and filed at its own expense in such a manner and in such places as may
be required by law in order to fully perfect the interests and protect the
rights of the Assignee hereunder.
9. MISCELLANEOUS.
-------------
9.1. Additional Instruments and Assurances. The Assignor hereby agrees,
-------------------------------------
at its own expense, to execute and deliver, from time to time, any and all
further, or other, instruments, and to perform such acts, as the Assignee may
reasonably request to effect the purposes of this Assignment and to secure to
the Assignee the benefits of all rights and remedies conferred upon the Assignee
by the terms of this Assignment.
9.2. Release. If and only if all of the Obligations shall have been
-------
indefeasibly paid, performed, and discharged in full in cash, any commitments to
lend under the Credit Agreement shall have been canceled, the Assignee shall,
upon
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demand and at the sole expense of the Assignor, release this Assignment and the
lien hereof by proper instrument or instruments, at the request and expense of
the Assignor.
9.3. Assignee's Exoneration. Under no circumstances shall the Assignee
----------------------
be deemed to assume any responsibility for or obligation or duty with respect to
any part or all of the Collateral of any nature or kind or any matter or
proceeding arising out of or relating thereto, other than (i) to exercise
reasonable care in the physical custody of the Collateral and (ii) if an Event
of Default shall have occurred and be continuing, to act in a commercially
reasonable manner in exercising its rights and remedies with respect to the
Collateral. Subject to the foregoing, the Assignee shall not be required to take
any action of any kind to collect, preserve or protect its or the Assignor's
rights in the Collateral.
9.4. No Waiver, etc. Any term of this Assignment may be amended or
---------------
modified with, but only with, the written consent of the Assignor and the
Assignee. Any term of this Assignment may be waived by a writing executed by the
party to be charged with such waiver. No act, failure, or delay by the Assignee
shall constitute a waiver of its rights and remedies hereunder or otherwise. No
single or partial waiver by the Assignee of any default, right, or remedy that
it may have shall operate as a waiver of any other default, right, or remedy or
of the same default, right, or remedy on a future occasion.
9.5. Waiver By Assignor. The Assignor hereby waives presentment, notice
------------------
of dishonor, and protest of all instruments included in or evidencing any of the
Obligations or the Collateral, and any and all other notices and demands
whatsoever (except as expressly provided herein or in the Credit Agreement or
for notices required in connection with judicial proceedings).
9.6. Notice, etc. All notices, requests, and other communications
------------
hereunder shall be made and effective in the manner and at the address set forth
in (S)20 of the Credit Agreement or at such other address as may be set forth or
in a notice from the notifying party to the other parties hereto.
9.7. Overdue Amounts. Until paid, all amounts due and payable by the
---------------
Assignor 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.
9.8. Governing Law; Consent to Jurisdiction. THIS ASSIGNMENT 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. The
Assignor agrees that any proceeding for the enforcement of this Assignment 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 proceeding being made upon the
Assignor by mail at the address specified in (S)9.6. The Assignor hereby waives
any objection that it may now or hereafter have
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to the venue of any such proceeding or any such court or that such proceeding is
brought in an inconvenient court.
9.9. Waiver of Jury Trial. THE ASSIGNOR HEREBY WAIVES ITS RIGHT TO A JURY
--------------------
TRIAL WITH RESPECT TO ANY PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS ASSIGNMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE PERFORMANCE OF
ANY SUCH RIGHTS OR OBLIGATIONS.
9.10. Limitation of Liability. Except as prohibited by applicable law,
-----------------------
each of the Assignor and assignee waives any right which it may have to claim or
recover in any proceeding referred to in the preceding sentence any special,
exemplary, or punitive damages or any damages other than, or in addition to,
actual or consequential damages. The Assignor (i) certifies that neither the
Assignee nor any representative, agent, or attorney of the Assignee has
represented, expressly or otherwise, that the Assignee would not, in the event
of any proceeding, 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 Assignee is a party, the Assignee is relying upon, among
other things, the waivers and certifications contained in this (S)9.10.
9.11. Severability and Enforceability. All provisions hereof are
-------------------------------
severable and the invalidity or unenforceability of any of such provisions shall
in no manner affect or impair the validity and enforceability of the remaining
provisions hereof.
9.12. Successors and Assigns. This Assignment shall be binding upon the
----------------------
Assignor and upon the legal representatives, successors and assigns of the
Assignor and shall inure to the benefit of the Assignee and its successors and
assigns.
9.13. Counterparts. This Assignment may be executed in any number of
------------
counterparts, each constituting an original, but all together one and the same
instrument.
9.14. Entire Agreement. This Assignment and the Revolver Loan Documents
----------------
and any other document executed in connection herewith or therewith express the
entire understanding of the parties with respect to the transactions
contemplated hereby. Neither this Assignment nor any terms hereof may be
changed, waived or terminated except by a writing signed by each party hereto.
9.15. Transitional Arrangements. This Assignment shall amend and restate
-------------------------
in its entirety the Existing Partnership Assignment Agreement on the Closing
Date. On the Closing Date, the rights and obligations of the respective parties
under the Existing Partnership Assignment Agreement shall be subsumed within and
governed by this Assignment, provided that, the provisions of the Existing
-------- ----
Partnership Assignment Agreement shall remain in full force and effect prior to
the Closing Date.
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IN WITNESS WHEREOF, the Assignor and the Assignee have executed this
Assignment as of the date first above written, as an instrument under seal.
NATIONAL RESTAURANT
ENTERPRISES, INC.
By: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-------------------------
Title: Vice President
FLEET NATIONAL BANK, as
Agent
By: /s/ ▇▇▇▇▇ ▇. O'▇▇▇▇▇
-------------------------
Title: Authorized Officer
The undersigned, general partner of the Partnership, consents to the
assignment of the limited partnership interest set forth in this Assignment.
NATIONAL RESTAURANT
ENTERPRISES, INC.
By: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
--------------------------
Title: Vice President