SECOND AMENDED AND RESTATED SECURITY AGREEMENT
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THIS SECOND AMENDED AND RESTATED SECURITY AGREEMENT (this "Agreement") is
made as of the 22nd day of November, 1996, by and among CHECKERS DRIVE-IN
RESTAURANTS, INC., a Delaware corporation (the "Borrower") and CKE RESTAURANTS,
INC., as "Agent" for the ratable benefit of the "Lenders" under the Amended and
Restated Credit Agreement referred to below. Terms defined in the Amended and
Restated Credit Agreement shall have the same meaning under this assignment
except as otherwise provided.
RECITALS:
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A. The Borrower, certain banks (the "Initial Banks") and Wachovia Bank of
Georgia, N.A. (the "Initial Agent"), acting for itself and as agent for the
Initial Banks, executed and delivered that certain Credit Agreement, dated as of
October 28, 1993 (the "Original Credit Agreement").
B. The Borrower, the Initial Banks and the Initial Agent executed and
delivered that certain Security Agreement dated as of March 10, 1995 (the
"Original Security Agreement"), whereby the Borrower granted a security interest
in the Collateral (as defined in the Original Security Agreement) in order to
secure the Obligations (as defined in the Original Security
Agreement).
C. Concurrently with, and as a condition to, the execution and delivery of
amendments to the Original Credit Agreement, dated as of April 12, 1995 (the
Original Credit Agreement as so amended and as subsequently amended or otherwise
modified, the "Amended Credit Agreement"), the Borrower, the Initial Banks and
the Initial Agent agreed to amend and restate, as of April 12, 1995, the Amended
Security Agreement to grant a security interest in the Collateral (as defined
below) in order to secure certain additional Obligations (as defined below) of
the Borrower (such amended and restated Original Security Agreement is referred
to herein as the "Amended and Restated Security Agreement").
D. On November 12, 1996, pursuant to certain agreements, the Lenders and
the Agent acquired all right, title and interest of the Banks (as defined in the
original Credit Agreement), in, to and under the Amended Credit Agreement, the
Original Security Agreement and the other Loan Documents (as defined in the
Amended Credit Agreement).
E. Concurrently herewith, the Borrower, the Lenders and the Agent executed
and delivered that certain Amended and Restated Credit Agreement, dated as of
even date herewith (as amended, supplemented or otherwise modified from time to
time hereafter, the "Amended and Restated Credit Agreement") pursuant to which
the Lenders have restructured the Borrower's obligations under the Amended
Credit Agreement.
F. As a condition, among others, to the Agent and the Lenders executing
and delivering the Amended and Restated Credit Agreement, the Borrower has
agreed to execute and deliver this Agreement in order to secure (i) the
Syndicated Term Loan Notes (ii) the Revolving Participated Loan Note, and (iii)
all of the other Obligations.
AGREEMENTS:
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NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which the parties hereto
acknowledge, the parties hereto agree that the Amended and Restated Security
Agreement is amended and restated in its entirety as follows:
DEFINITIONS
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As used in this Agreement, the terms defined in the Preamble and Recitals
hereto shall have the respective meanings specified therein, and the following
terms shall have the following meanings (capitalized terms not otherwise defined
herein shall have the meaning set forth therefor in the Amended and Restated
Credit Agreement):
"Account" individually and "Accounts" collectively mean all of the
Borrower's right, title and interest in and to all presently existing or
hereafter acquired or created accounts, accounts receivable, contract rights,
documents of title, notes, drafts, instruments, acceptances, chattel paper,
securities, leases and writings evidencing a monetary obligation or a security
interest in or a lease of goods; all rights to receive the payment of money or
other consideration under present or future contracts (including, without
limitation, all rights to receive payments under presently existing or hereafter
acquired or created letters of credit), or by virtue of merchandise sold or
leased, services rendered, loans and advances made or other considerations
given, by or set forth in or arising out of any present or future chattel paper,
note, draft, lease, acceptance, writing, bond, insurance policy, instrument,
document or general intangible, and all extensions and renewals of any thereof;
all rights under or arising out of present or future contracts, agreements or
general interests in merchandise which gave rise to any or all of the foregoing,
including all goods; all claims or causes of action now existing or hereafter
arising in connection with or under any agreement or document or by operation of
law or otherwise; all collateral security of any kind (including real property)
given by any person with respect to any of the foregoing; all returned, rejected
or repossessed goods, the sale or lease of which shall have given or shall give
rise to an any of the foregoing and all cash and non-cash proceeds and products
of all such goods; and all proceeds (cash and non-cash) of the foregoing.
"Collateral" shall mean all of the Borrower's Accounts, Equipment,
General Intangibles, Inventory and other personal property, all whether now
owned or existing or hereafter acquired or created, together with any and all
cash and non-cash proceeds (including, without limitation, insurance proceeds)
and products thereof.
"Default Rate" has the meaning set forth therefor in the Amended and
Restated redit Agreement.
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"Enforcement Costs" mean all reasonable expenses, charges, costs and
fees whatsoever (including, without limitation, reasonable attorney's fees and
expenses) of any nature whatsoever paid or incurred by or on behalf of the Agent
in connection with (a) the collection or enforcement of any or all of the
Obligations or this Agreement (including, without limitation, attorneys fees
incurred prior to the institution of any suit or other proceeding), (b) the
creation, perfection, collection, maintenance, preservation, defense,
protection, realization upon, disposition, sale or enforcement of all or any
part of the Collateral, (c) the monitoring, inspection, administration,
processing, servicing of any or all of the Obligations and/or the Collateral,
(d) the preparation of this Agreement and the preparation and review of lien and
record searches, reports, certificates, appraisals, environmental surveys,
and/or other documents or information relating from time to time to the taking,
perfection, inspection, preservation, protection and/or release of a Lien on the
Collateral, the value of the Collateral, or otherwise relating to the Agent's
rights and remedies under this Agreement or with respect to the Collateral, and
(e) all filing and/or recording taxes or fees and all stamp and other taxes and
fees payable or determined to be payable in connection with the execution and
delivery of this Agreement and any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes or fees, the
Borrower hereby agreeing to indemnify and save the Agent harmless from and
against such liabilities.
"Equipment" shall mean all of the Borrower's right, title and
interest in and to all equipment, machinery, computers, chattels, tools, parts,
machine tools, moveable restaurant buildings and all related equipment and
moveable site improvements, furniture, furnishings, fixtures and supplies of
every nature, presently existing or hereafter acquired or created and wherever
located, together with all accessions, additions, fittings, accessories, special
tools, and improvements thereto and substitutions therefor and all parts and
equipment which may be attached to or which are necessary for the operation and
use of such personal property, whether or not the same shall be deemed to be
affixed to real property, and all rights under or arising out of present or
future contracts relating to the foregoing and all proceeds (cash and non-cash)
of the foregoing.
"Event of Default" has the meaning described in Article 4.
"Franchise Agreements" means the franchise agreements of the
Borrower as franchisor, with the franchisees, all as described on EXHIBIT A
attached hereto and made a part hereof and any such additional franchise
agreements executed from time to time.
"Franchise Rights of Payment" means all rights of payment the
Borrower may have from time to time under all of its Franchise Agreements in
effect from time to time.
"General Intangibles" shall mean all of the Borrower's right, title
and interest in and to all general intangibles, of every nature, whether
presently existing or hereafter acquired or created, including, without
limitation, all of the Franchise Agreements, all of the Franchise Rights of
Payment, all books, correspondence, credit files, records, computer programs,
computer tapes, cards and other papers and documents in the possession or
control of the Borrower, claims (including without limitation all claims for
income tax and other refunds), choses in action, judgments, patents, patent
licenses, trademarks, trademark licenses, licensing agreements, rights in
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intellectual property, goodwill (including all goodwill of the Borrower's
business symbolized by and associated with any and all trademarks, trademark
licenses, copyrights and/or service marks), franchises, royalty payments,
contractual rights, literary rights, copyrights, service names, service marks,
logos, trade secrets, all amounts received as an award in or settlement of a
suit in damages, deposit accounts, interests in joint ventures or general or
limited partnerships, and all proceeds (cash and non-cash) of the foregoing.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Inventory" means all of the Borrower's right, title and interest in
and to all now owned and hereafter acquired inventory, goods, merchandise and
other personal property furnished under any contract of service or intended for
sale or lease, including, without limitation, all raw materials,
work-in-progress, finished goods and materials and supplies of any kind, nature
or description which are used or consumed in the Borrower's business or are or
might be used in connection with the manufacture, packing, shipping,
advertising, selling or finishing of such goods, merchandise and other personal
property and all documents of title or documents representing the same and all
proceeds, (cash and non-cash) of the foregoing.
"Laws" means all ordinances, statutes, rules, regulations, orders,
injunctions, writs, or decrees of any Governmental Authority or political
subdivision or agency thereof, or any court or similar entity established by any
thereof.
"Lien" means any mortgage, deed of trust, deed to secure debt,
grant, pledge, security interest, assignment, encumbrance, judgment, financing
statement, lien or charge of any kind, whether perfected or unperfected,
avoidable or unavoidable, consensual or non-consensual including, without
limitation, any conditional sale or other title retention agreement, filed or
unfiled tax liens, any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction, excluding the precautionary filing of any financing statement
by any lessor in a true lease transaction, by any ▇▇▇▇▇▇ in a true bailment
transaction or by any consignor in a true consignment transaction under the
Uniform Commercial Code of any jurisdiction or the agreement to give any
financing statement by any lessee in a true lease transaction, by any bailee in
a true bailment transaction or by any consignee in a true consignment
transaction.
"Loan Documents" has the meaning set forth therefor in the Amended
and Restated Credit Agreement and as used herein, shall include the Amended and
Restated Credit Agreement.
"Loans" means (i) the Syndicated Term Loan Notes, and (ii) the
Revolving articipated Loan Note.
"Obligations" means all debts, obligations, and liabilities of the
Borrower to the Lenders of any nature whatsoever and whenever arising (whether
now or hereafter existing and whether before or after the commencement of a
proceeding under the Bankruptcy Code) relating to the Loans and pursuant to the
Loan Documents, regardless of whether such debts, obligations and liabilities be
direct, indirect, primary, secondary, joint, several, joint and several, fixed
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or contingent; and any and all renewals, restatements, amendments, replacements,
extensions and rearrangements of any such debts, obligations and liabilities
including, without limitation, the principal of, and interest on, loans and
advances and on each of the Notes.
"Person" shall mean and include an individual, a corporation, a
partnership, a joint venture, a trust, an unincorporated association, a
government or political subdivision or agency thereof or any other entity.
ARTICLE 1
COLLATERAL
SECTION 1.1 GRANT OF SECURITY INTEREST. As security for the Obligations,
the Borrower hereby assigns, pledges and grants to the Agent for the ratable
benefit of the Lenders (whether as a holder of Syndicated Term Loan Notes or
Revolving Participated Loan Note), and agrees that the Agent shall have a
perfected and continuing security interest in, all of the Borrower's Collateral,
whether now owned or existing or hereafter acquired or arising, together with
any and all cash and non-cash proceeds and products thereof. The Borrower
further agrees that the Agent shall have in respect thereof all of the rights
and remedies of a secured party under the Uniform Commercial Code of the State
of California as well as those provided in this Agreement.
SECTION 1.2 RELEASE. The Agent shall have no obligation to release and/or
terminate this Agreement, except upon both the performance of this Agreement and
the payment and/or performance of all Obligations and the expiration and
termination of any and all commitments or obligations (whether or not
conditional) of the Agent, on behalf of the Lenders, to re-advance amounts or
otherwise allow Obligations which would be secured thereby.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Agent, and shall be deemed to represent and warrant at the time
each of the Obligations not existing on the date of this Agreement is requested
and again at the time each of those Obligations is incurred, as follows:
2.1.1 PLACE(S) OF BUSINESS AND LOCATION OF COLLATERAL. The Borrower
warrants that the address of the Borrower's chief executive offices and the
address of all other locations of the Collateral are set forth on Exhibit B
attached hereto and made a part hereof.
2.1.2 BUSINESS NAMES AND ADDRESSES. The Borrower has not conducted
business under any name other than "CHECKERS DRIVE-IN RESTAURANTS, INC".
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2.1.3 GOOD STANDING. The Borrower is a corporation, duly organized
and existing, in good standing, under the laws of the jurisdiction of its
incorporation, and has the corporate power to own its property and to carry on
its business as now being conducted and is duly qualified to do business and is
in good standing in each jurisdiction in which the character of the properties
owned or leased by it therein or in which the transaction of its business makes
such qualification necessary, except where the failure to so qualify would not
have a material adverse effect on Borrower.
2.1.4 CORPORATE AUTHORITY. The Borrower has full power and authority
to enter into and to perform its obligations under this Agreement, all of which
have been duly authorized by all proper and necessary corporate action. No
consent or approval of shareholders of, or lenders to, the Borrower and no
consent, approval, filing or registration with or notice to any Governmental
Authority on the part of the Borrower is required as a condition to the validity
of this Agreement or the performance by the Borrower of its obligations under
this Agreement.
2.1.5 BINDING AGREEMENTS. This Agreement constitutes the valid and
legally binding agreement of the Borrower and is enforceable against the
Borrower in accordance with its terms, provided that the enforceability hereof
is subject to general principles of equity and to bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights generally,
and to standards of good faith and commercial reasonableness.
2.1.6 NO CONFLICTS. There is no statute, regulation, rule, order or
judgment, no charter, by-law or preference stock provision of the Borrower, and
except for permitted liens under Section 5.11 of the Amended and Restated Credit
Agreement, no provision of any mortgage, indenture, contract or other agreement
binding on the Borrower or affecting its properties, which would prohibit, or
cause a default under or in any way prevent the execution, delivery, or carrying
out of the terms of this Agreement.
2.1.7 TITLE TO COLLATERAL. The Borrower has good and marketable
title to its properties and assets which are included among the Collateral. Such
properties and assets are subject to no Lien of any kind, except for the Liens
in existence as of the date of this Agreement, Liens of the Agent pursuant to
this Agreement or as may be permitted otherwise by the Amended and Restated
Credit Agreement, and the Borrower has legal, enforceable and uncontested rights
to use freely such property and assets.
2.1.8 RECITALS. The Recitals to this Agreement are true, accurately
reflect the matters discussed and are hereby incorporated into and made a part
of this Agreement.
SECTION 2.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in or made under or in connection with
this Agreement shall survive the execution of this Agreement and the incurring
of any particular Obligation.
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ARTICLE 3
COVENANTS AND AGREEMENTS OF THE BORROWER
SECTION 3.1 COVENANTS. So long as any of the Obligations (or
commitments therefor) shall be outstanding hereunder, the Borrower agrees with
the Agent as follows:
3.1.1 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE, COMPLIANCE
WITH LAWS, ETC. The Borrower will (i) do or cause to be done all things
necessary to preserve and to keep in full force and effect its corporate
existence and material rights and its franchises, trade names, patents,
trademarks and permits which are necessary for the continuance of its business,
and (ii) comply with all applicable Laws and observe the valid requirements of
Governmental Authorities, the noncompliance with or the nonobservance of which
might materially interfere with the performance of its obligations hereunder, or
with the Agent's interest in the Collateral.
3.1.2 CERTAIN NOTICES. The Borrower will notify the Agent not less
than thirty (30) days prior to (i) any change in the name or corporate structure
under which the Borrower conducts its business the opening of any new place of
business or the closing of any existing place of business; and (ii) any change
in the location of the places where the Collateral, or any part thereof, or the
books and records concerning the Collateral, or any part thereof, are kept.
3.1.3 MAINTENANCE OF THE COLLATERAL; INSURANCE. The Borrower will
maintain the Collateral in good working order, saving and excepting ordinary
wear and tear, and will not permit anything to be done to the Collateral which
may materially impair the value thereof. The Agent, or agents designated by the
Agent, shall be permitted to enter the premises of the Borrower and examine,
audit and inspect the Collateral at any reasonable time and from time to time
without notice after an Event of Default. The Borrower will promptly furnish to
the Agent all such additional information regarding the Collateral as the Agent
may from time to time request in the exercise of its discretion. With respect to
the insurance required to be obtained by the Borrower under the Amended and
Restated Credit Agreement, the Borrower will obtain from such insurers a
certificate confirming that the Agent, for itself and the other Lenders, is an
additional insured with loss payable to the Agent as its respective interest may
appear on the Collateral and with a specific endorsement to each such insurance
policy pursuant to which the insurer agrees to give the Agent at least thirty
(30) days written notice before any alteration or cancellation of such insurance
policy.
3.1.4 DEFENSE OF TITLE AND FURTHER ASSURANCES. At its expense the
Borrower will defend the title to the Collateral (or any part thereof), and
promptly upon request execute, acknowledge and deliver any financing statement,
renewal, affidavit, deed, assignment, continuation statement, security
agreement, certificate, notice to financial intermediary, or other document the
Agent may require in order to perfect, preserve, maintain, continue, protect
and/or extend the Lien or security interest granted to the Agent under this
Agreement and its priority. The Borrower will from time to time do whatever the
Agent may request by way of obtaining, executing, delivering, and/or filing
financing statements, landlord's or mortgagee's waivers, and other notices and
amendments and renewals thereof and the Borrower will take any and all steps and
observe such formalities as the Agent may request, in order to create and
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maintain a valid Lien upon, pledge of, or security interest in, the Collateral
subject to no other liens or claims. The Borrower agrees that a copy of a fully
executed financing statement shall be sufficient to satisfy for all purposes the
requirements of a financing statement as set forth in Article 9 of the
applicable Uniform Commercial Code.
3.1.5 SECURITY, ETC. The Borrower agrees that the Agent may at any
time take such steps as the Agent deems reasonably necessary to protect the
Agent's interest in, and to preserve the Collateral, whether at the business
premises of the Borrower or elsewhere.
3.1.6 OTHER LIENS. The Borrower will not permit any Liens on or with
respect to all or any part of the Collateral, other than those Liens in favor of
the Agent, Liens for taxes not yet delinquent, and Liens permitted by the
Amended and Restated Credit Agreement.
3.1.7 LOCATION OF COLLATERAL. Except as expressly permitted
elsewhere in this Agreement or except as permitted by the Amended and Restated
Credit Agreement, without the prior written consent of the Agent, the Borrower
will not transfer, or permit the transfer, to another location of any of the
Collateral or the books and records related to any of the Collateral. Not
withstanding the foregoing, Borrower may from time to time transfer restaurant
units from one location to another without the prior consent of Agent.
3.1.8 DISPOSITION OF COLLATERAL. Without the prior written consent
of the Agent or except as permitted by the Amended and Restated Credit
Agreement, the Borrower will not sell, discount, allow credits or allowances,
transfer, assign, extend the time for payment on, convey, lease, assign,
transfer or otherwise dispose of the Collateral. Unless, with respect to any of
the foregoing actions which are not permitted (and not prohibited) by the
Amended and Restated Credit Agreement, such action is in the ordinary course of
business consistent with past practices.
3.1.9 FRANCHISE AGREEMENTS. Without the prior written consent of the
Agent, the Borrower will not amend or otherwise modify the Franchise Agreements,
other than amendments or modifications made in the ordinary course of business
which would not have a material adverse effect on the Borrower. The Borrower
shall enforce its rights and remedies against its franchisees in accordance with
the terms of the Franchise Agreements in the ordinary course of business. The
Borrower shall maintain at all times all of its franchises, Franchise Agreements
and other General Intangibles relating thereto in full force and effect.
ARTICLE 4
DEFAULT AND RIGHTS AND REMEDIES
SECTION 4.1 EVENTS OF DEFAULT. The occurrence of one or more of the
following events shall be "Events of Default" under this Agreement, and the
terms "Event of Default" or "default" shall mean, whenever they are used in this
Agreement, any one or more of the following events:
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4.1.1 The Borrower shall fail to make any payment when due and such
failure shall continue beyond any applicable grace period under any of the
Obligations.
4.1.2 Any representation or warranty made herein or in any report,
certificate, opinion (including any opinion of counsel for the Borrower),
financial statement or other instrument furnished in connection with the Loan
Documents or the Obligations, shall prove to have been false or misleading when
made in any material respect.
4.1.3 Other than failure to pay the Obligations as set forth in
4.1.1 above, the Borrower shall fail to duly and promptly perform, comply with
or observe the terms, covenants, conditions and agreements set forth in this
Agreement (and such failure shall continue uncured for 30 days after notice
thereof) or in any of the other Loan Documents, or an "Event of Default" shall
occur under any of the Loan Documents, and such "Event of Default" is not cured
within any applicable grace period provided therein.
SECTION 4.2 RIGHTS AND REMEDIES, ETC.
4.2.1 GENERAL RIGHTS AND REMEDIES. If any Event of Default shall
occur hereunder, then in each and every such case, the Agent may, at its option
exercised from time to time, at any time thereafter while such Event of Default
is continuing do any one or more of the following:
(a) declare without notice to the Borrower the unpaid
principal amount of all or any of the Obligations (with accrued interest
thereon) to be immediately due and payable, whereupon the same shall forthwith
become due and payable, without presentment, demand, protest or notice of any
kind, all of which the Borrower hereby expressly waives; and/or
(b) exercise any rights and remedies available to the Agent
under this Agreement and applicable Laws.
4.2.2 ENFORCEMENT COSTS; APPLICATION OF PROCEEDS. Subject to the
limitations on certain Enforcement Costs set forth in Section 2.13(c) of the
Amended and Restated Credit Agreement, the Borrower agrees to pay to the Agent
all Enforcement Costs paid or incurred by the Agent. All Enforcement Costs which
are required to be paid by the Borrower, together with interest thereon from the
date incurred or advanced until paid in full at a per annum rate of interest
equal at all times to the Default Rate and shall be paid by the Borrower to the
Agent whenever demanded by the Agent.
Any proceeds of the collection of the Obligations or of the sale or other
disposition of the Collateral will be applied by the Agent first to the payment
of the Enforcement Costs, second to the payment of the Syndicated Term Loans,
and third to the payment of the Revolving Participated Loan Note, and any
balance of such proceeds (if any) will be applied by the Agent to the payment of
the remaining Obligations (whether then due or not), if any, at such time or
times and in such order and manner of application as the Agent may from time to
time in its sole discretion determine. If the sale or other disposition of the
Collateral fails to satisfy all of the Obligations, the Borrower shall remain
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liable to the Agent for any deficiency. Any surplus from the sale or disposition
of the Collateral shall be paid to the Borrower or to any other party entitled
thereto or shall otherwise be paid over in a manner permitted by law, less all
Enforcement Costs related to any such payment.
4.2.3 SPECIFIC RIGHTS WITH REGARD TO COLLATERAL. In addition to all
other rights and remedies provided hereunder or as shall exist at law or in
equity from time to time, during the continuance of an Event of Default the
Agent may without notice to the Borrower (except to the extent required by
applicable Laws) endorse the name of the Borrower upon any items of payment
relating to the Collateral or on any proof of claim in any bankruptcy proceeding
against an account debtor and any other obligor with respect to the Collateral.
4.2.4 UNIFORM COMMERCIAL CODE AND OTHER REMEDIES. Upon the
occurrence of an Event of Default (and in addition to all of its rights, powers
and remedies under this Agreement), the Agent shall have all of the rights and
remedies of a secured party under the California Uniform Commercial Code and
other applicable laws. Upon demand by the Agent, the Borrower shall assemble the
Collateral and make it available to the Agent, at a place reasonably convenient
for such purpose as designated by the Agent. The Agent or its agents may enter
upon the Borrower's premises to take possession of the Collateral, to remove it,
to render it unusable, or to sell or otherwise dispose of it.
Any written notice of the sale, disposition or other intended action by
the Agent with respect to the Collateral which is sent by regular mail, postage
prepaid, to the Borrower at the address set forth for notices herein, or such
other address of the Borrower which may from time to time be shown on the
Agent's records, at least ten (10) days prior to such sale, disposition or other
action, shall constitute reasonable notice to the Borrower.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1 COURSE OF DEALING; AMENDMENT. No course of dealing between the
Borrower and the Agent shall be effective to amend, modify or change any
provision of this Agreement and this Agreement may not be amended, modified, or
changed in any respect except by an agreement in writing signed by the Agent and
the Borrower. The Agent shall have the right at all times to enforce the
provisions of this Agreement in strict accordance with the terms hereof and
thereof, notwithstanding any conduct or custom on the part of the Agent in
refraining from so doing at any time or times. The failure or delay of the Agent
at any time or times to enforce its rights under such provisions, strictly in
accordance with the same, shall not be construed as having created a custom in
any way or manner contrary to specific provisions of this Agreement or as having
in any way or manner modified or waived the same.
SECTION 5.2 WAIVER, CUMULATIVE REMEDIES. Subject to the rights of the
Lenders under the Amended and Restated Credit Agreement, the Agent may on behalf
of the Lenders:
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(a) at any time and from time to time, execute and deliver to
the Borrower a written instrument waiving, on such terms and conditions as the
Agent, may specify in such written instrument, any of the requirements of this
Agreement or any Event of Default and its consequences, provided, that any such
waiver shall be for such period and subject and limited to such conditions as
shall be specified in any such instrument and to the instance for which the
waiver is given. In the case of any such waiver, the Borrower and the Agent,
shall be restored to their former positions prior to such Event of Default and
shall have the same rights as they had hereunder. The rights, powers and
remedies provided in this Agreement are cumulative, may be exercised
concurrently or separately, may be exercised from time to time and in such order
as the Agent, shall determine, and are in addition to, and not exclusive of,
rights, powers and remedies provided by applicable Laws.
(b) after an Event of Default proceed against the Borrower
and/or the Collateral with or without proceeding against any Person obligated
under any of the Obligations.
(c) after an Event of Default proceed against the Borrower
with or without proceeding under any of the Loan Documents or any other
agreement.
(d) without reducing or impairing the obligation of the
Borrower and without notice, release or compromise with any guarantor or other
Person liable for all or any part of the Obligations.
(e) without reducing or impairing the obligations of the
Borrower and without notice thereof: (i) fail to perfect the Lien in any or all
Collateral or to release any or all of the Collateral or to accept substitute
Collateral, (ii) allow all or any Obligations to arise after the date of this
Agreement, (iii) waive any provision of this Agreement, (iv) exercise or fail to
exercise rights of set-off or other rights, (v) accept partial payments or
extend from time to time the maturity of all or any part of the Obligations, and
(vi) take or fail to take any action under this Agreement or against any one or
more Persons obligated under the Obligations.
The Borrower hereby waives and releases all claims and defenses against
the Agent and/or the Lenders, respectively, with respect to the payment of the
or enforcement of the Obligations and the Agent's rights in the Collateral on
account of any of the foregoing.
SECTION 5.3 NOTICES. All notices, requests and demands to or upon the
parties to this Agreement shall be deemed to have been given or made when so
given or made in accordance with Section 9.01 of the Amended and Restated Credit
Agreement.
SECTION 5.4 MANAGEMENT AND ADMINISTRATION BY AGENT. The Agent shall not
have any duty to the Borrower to pay for insurance, taxes, or other charges
incurred in the custody, preservation, use or operation of, or in connection
with the management of, any Collateral on which a Lien is granted in connection
with this Agreement; provided, however, that the Agent may (in its sole
discretion) pay such expenses. All such payments shall part of the Obligations
and shall bear interest payable on demand by the Borrower from the date paid or
incurred until paid in full at the Default Rate.
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SECTION 5.5 WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. The Borrower
(a) and each of the Lenders and the Agent irrevocably waives any and all right
to trial by jury in any legal proceeding arising out of this Agreement to the
extent permitted by law, (b) submits to the nonexclusive personal jurisdiction
in the State of California, the courts thereof and the United States District
Courts sitting therein, for the enforcement of this Agreement, (c) waives any
and all personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of California for the purpose of litigation to enforce this
Agreement, and (d) agrees that service of process may be made upon it in the
manner prescribed in Section 9.01 of the Amended and Restated Credit Agreement
for the giving of notice to the Borrower. Nothing herein contained, however,
shall prevent the Agent from bringing any action or exercising any rights
against any security and against the Borrower personally, and against any assets
of the Borrower, within any other state or jurisdiction.
SECTION 5.6 SEVERABILITY. In case one or more provisions contained in this
Agreement shall be invalid, illegal or unenforceable in any respect under any
law, the validity, legality and enforceability of the remaining provisions
contained herein shall remain effective and binding on the parties thereto and
shall not be affected or impaired thereby.
SECTION 5.7 ASSIGNMENT, ETC. The Agent shall have the right to divulge to
any actual or potential purchaser, assignee, transferee or participant of the
Collateral and/or the Obligations, or any part thereof all information, reports,
financial statements and documents obtained in connection with this Agreement or
otherwise as the same may be permitted under the
Amended and Restated Credit Agreement.
SECTION 5.8 BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the Borrower and the Agent and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the Agent.
SECTION 5.9 APPLICABLE LAW. THE BORROWER ACKNOWLEDGES AND AGREES THAT THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, AS IF THIS
AGREEMENT HAD EACH BEEN EXECUTED, DELIVERED, ADMINISTERED AND PERFORMED SOLELY
WITHIN THE STATE OF CALIFORNIA.
SECTION 5.10 DEFINITIONAL PROVISIONS. Unless otherwise defined herein, as
used in this Agreement and in any certificate, report or other document made or
delivered pursuant hereto, accounting terms not otherwise defined herein, and
accounting terms only partly defined herein, to the extent not defined, shall
have the respective meanings given to them under generally accepted United
States accounting principles consistently applied to the Borrower. Unless
otherwise defined herein, all terms used herein which are defined by the
California Uniform Commercial Code shall have the same meanings as assigned to
them by the California Uniform Commercial Code unless and to the extent varied
by this Agreement. The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and article,
section, subsection, schedule and exhibit references are references to articles,
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sections or subsections of, or schedules or exhibits to, as the case may be,
this Agreement unless otherwise specified. The captions, headings and titles to
this Agreement and its sections, subsections and other parts are only for the
convenience of the parties and are not part of this Agreement. As used herein,
the singular number shall include the plural, the plural the singular and the
use of the masculine, feminine or neuter gender shall include all genders, as
the context may require. Reference to this Agreement or to any one or more of
the instrument, agreement or document previously, simultaneously or hereafter
executed and delivered by the Borrower, any guarantor and/or any other Person,
singly or jointly with another Person or Persons, evidencing, securing,
guarantying or otherwise in connection with any of the Obligations and/or in
connection with this Agreement shall mean the same as the foregoing may from
time to time be amended, restated, substituted, extended, renewed, supplemented
or otherwise modified.
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IN WITNESS WHEREOF, the Borrower has executed and delivered this Agreement
under seal as of the day and year first written above.
CHECKERS DRIVE-IN RESTAURANTS, INC.
(BORROWER)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Seal)
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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ACCEPTED AND AGREED TO ON BEHALF OF THE LENDERS
AS OF THE DATE FIRST WRITTEN ABOVE:
CKE RESTAURANTS, INC.
for itself and as Agent for the Lenders
By: /s/ ▇. ▇. ▇▇▇▇▇ ▇▇ (Seal)
--------------------------
Name: ▇. ▇. ▇▇▇▇▇ ▇▇
Title:
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EXHIBIT B
---------
The Borrower's chief executive office is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
In addition to the Borrower's chief executive office listed above, the
Collateral is also located at the following addresses:
See Attached Schedule 1.
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EXHIBIT A
---------
Franchise Agreements:
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EXHIBIT A TO FINANCING STATEMENT
--------------------------------
Description of Collateral
-------------------------
This Financing Statement covers the following types (or items) of property
of the Debtor, including, without limitation, all proceeds of any insurance
policies covering all or any part of such property (as such terms are defined
below): all of the Debtor's Accounts, Equipment, General Intangibles, and
Inventory, all whether now owned or existing or hereafter acquired or created,
together with any and all cash and non-cash proceeds (including, without
limitation, insurance proceeds) and products thereof.
"Account" individually and "Accounts" collectively mean all of the
Debtor's right, title and interest in and to all presently existing or hereafter
acquired or created accounts, accounts receivable, contract rights, documents of
title, notes, drafts, instruments, acceptances, chattel paper, securities,
leases and writings evidencing a monetary obligation or a security interest in
or a lease of goods; all rights to receive the payment of money or other
consideration under present or future contracts (including, without limitation,
all rights to receive payments under presently existing or hereafter acquired or
created letters of credit), or by virtue of merchandise sold or leased, services
rendered, loans and advances made or other considerations given, by or set forth
in or arising out of any present or future chattel paper, note, draft, lease,
acceptance, writing, bond, insurance policy, instrument, document or general
intangible, and all extensions and renewals of any thereof; all rights under or
arising out of present or future contracts, agreements or general interests in
merchandise which gave rise to any or all of the foregoing, including all goods;
all claims or causes of action now existing or hereafter arising in connection
with or under any agreement or document or by operation of law or otherwise; all
collateral security of any kind (including real property) given by any person
with respect to any of the foregoing; all returned, rejected or repossessed
goods, the sale or lease of which shall have given or shall give rise to an any
of the foregoing and all cash and non-cash proceeds and products of all such
goods; and all proceeds (cash and non-cash) of the foregoing.
"Equipment" shall mean all of the Debtor's right, title and interest in
and to all equipment, machinery, computers, chattels, tools, parts, machine
tools, moveable restaurant buildings and all related equipment and moveable site
improvements, furniture, furnishings, fixtures and supplies of every nature,
presently existing or hereafter acquired or created and wherever located,
together with all accessions, additions, fittings, accessories, special tools,
and improvements thereto and substitutions therefor and all parts and equipment
which may be attached to or which are necessary for the operation and use of
such personal property, whether or not the same shall be deemed to be affixed to
real property, and all rights under or arising out of present or future
contracts relating to the foregoing and all proceeds (cash and non-cash) of the
foregoing.
"Franchise Agreements" means all franchise agreements of the Borrower as
franchisor, with the franchisees, executed from time to time.
"Franchise Rights of Payment" means all rights of payment the Debtor may
have from time to time under all of its Franchise Agreements in effect from time
to time.
"General Intangibles" shall mean all of the Debtor's right, title and
interest in and to all general intangibles, of every nature, whether presently
existing or hereafter acquired or created, including, without limitation, all of
the Franchise Agreements, all of the Franchise Rights of Payment, all books,
correspondence, credit files, records, computer programs, computer tapes, cards
and other papers and documents in the possession or control of the Debtor,
claims (including without limitation all claims for income tax and other
refunds), choses in action, judgments, patents, patent licenses, trademarks,
trademark licenses, licensing agreements, rights in intellectual property,
goodwill (including all goodwill of the Debtor's business symbolized by and
associated with any and all trademarks, trademark licenses, copyrights and/or
service marks), franchises, royalty payments, contractual rights, literary
rights, copyrights, service names, service marks, logos, trade secrets, all
amounts received as an award in or settlement of a suit in damages, deposit
accounts, interests in joint ventures or general or limited partnerships, and
all proceeds (cash and non-cash) of the foregoing.
"Inventory" means all of the Debtor's right, title and interest in and to
all now owned and hereafter acquired inventory, goods, merchandise and other
personal property furnished under any contract of service or intended for sale
or lease, including, without limitation, all raw materials, work-in-progress,
finished goods and materials and supplies of any kind, nature or description
which are used or consumed in the Debtor's business or are or might be used in
connection with the manufacture, packing, shipping, advertising, selling or
finishing of such goods, merchandise and other personal property and all
documents of title or documents representing the same and all proceeds, (cash
and non-cash) of the foregoing.
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