Exhibit 10.20
SECURITY AGREEMENT
This SECURITY AGREEMENT is made as of December 31,
1996 by and between The Quizno's Corporation a Colorado
corporation ("Debtor"), with an address at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Retail &
Restaurant Growth Capital, L.P., a Delaware limited
partnership with an address at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Secured Party").
Recitals
The following is a statement of facts underlying
this Agreement:
A. Debtor and the Secured Party are parties to an
Investment Agreement of even date herewith ("Investment
Agreement") whereby Secured Party loaned Debtor $2,000,000
(the "Loan") as evidenced by a Senior Subordinated
Convertible Promissory Note (the "Note").
B. As a condition to making the Loan Secured Party
requires that Debtor grant to it a security interest in the
Collateral, as described in Section 3 below, to secure
payment of the Loan and the Note and performance of the
other obligations contained in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the Secured
Party making the Loan to the Debtor and their mutual
promises set forth herein, Debtor and the Secured Party
hereby agree as follows:
1. Security Interest. Debtor hereby creates and
grants to the Secured Party a continuing security interest
in the Collateral described in Section 3 hereof, to secure
the payment of the Loan and the Note and performance of the
other obligations of Debtor described in this Agreement.
Such security interest shall be subordinate to certain other
liens and security interests granted by Debtor as provided
in Section 1.3 of the Investment Agreement.
2. Obligations Secured. The security interest
created and granted hereby secures (a) Debtor's obligation
to pay, perform and discharge all debts, liabilities and
obligations of Debtor to the Secured Party arising under or
by virtue of the Loan and the Note and any and all
extensions and increases thereof; and (b) other indebtedness
and obligations of Debtor arising pursuant to the provisions
of this Security Agreement (collectively, the
"Obligations"). This Agreement will automatically terminate
upon payment in full of the Note.
3. Collateral. The collateral (the
"Collateral")
shall mean and include all right, title, estate and interest
of Debtor in or to: all tangible and intangible personal
property and fixtures of Debtor which Debtor now or at any
time hereafter may acquire or in which Debtor now or any
time hereafter has any rights, including but not limited to
all accounts receivable, documents, instruments, chattel
paper, general intangibles, inventory, contract rights,
choses in action, insurance policies, insurance proceeds,
tax refunds, inventory, goods, merchandise, and other
personal property now owned or hereafter acquired by Debtor
which are held for sale or lease, or are raw materials, work-
in-process, supplies, or materials used or consumed in
Debtor's business, and all substitutions, replacements,
additions, or accessions therefore and thereto, all
intellectual property, trade copyrights, equipment,
trademarks, franchises, patents, trade names, licenses,
jingles, slogans and logotypes, related common law and
statutory copyrights owned or licensed to Debtor, cash and
short-term investments, vehicles, consumer goods of every
kind and description, including, without limitation, motor
vehicles, with all present and future proceeds and products
of, increases, replacements and accessions thereto.
The term "accounts receivable" shall include,
without limitation, all accounts and any other obligations
or indebtedness owed to Debtor from whatever source arising;
all rights of Debtor to receive any payments in money or
kind; all guarantees of receivables and security therefor;
all of the right, title and interest of Debtor in and with
respect to the goods, services or other property which gave
rise to or which secure any of the receivables and insurance
policies and proceeds relating thereto, and all of the
rights of Debtor as an unpaid seller of goods or services,
including, without limitation, the rights of stoppage in
transit, replevin, reclamation and resale; and all of the
foregoing, whether now existing or hereafter created or
acquired.
4. Perfection of Security Interest. Debtor
shall join with the Secured Party in executing and filing
and refiling under the Uniform Commercial Code such
financing statements and other documents, such recordings of
assignments of real estate interests and such patent,
trademark, copyright or other assignment forms and such
other writings in such offices as the Secured Party may deem
necessary or appropriate and wherever required or permitted
by law in order to perfect and preserve its security
interest in the Collateral, and Debtor hereby constitutes
and appoints the Secured Party as its attorney-infact for
the purpose of signing and filing such financing state ments
and other documents and writings and agrees to do such
further acts and things and to execute and deliver to the
Secured Party such additional conveyances, assignments,
agreements and instruments as the Secured Party may require
or deem advisable to carry into effect the purpose of this
Security Agreement or to better assure and confirm in the
Secured Party its rights, powers and remedies hereunder.
5. Right of Inspection. From the date hereof
until the payment in full, including interest, of the
Obligations, the Secured Party and any authorized agent of
the Secured Party shall be allowed to inspect any and all of
the premises, books and records of Debtor for any purpose
related to the Collateral, this Security Agreement or the
Obligations secured hereby. Each Secured Party will
endeavor to give Debtor reasonable notice of any such
inspection, but shall not be obligated to do so. Prior to
providing access to information, the Company reasonably
considers to be trade secret or similar confidential
information, the Company may request that the Secured Party
or its authorized agent sign a confidentiality agreement
reasonably acceptable to
the Company.
6. Representations and Warranties of Debtor.
Except
for "Permitted Encumbrances" as hereafter defined, Debtor
repre sents and warrants to the Secured Party that the
Collateral is free and clear of all security interests,
restrictions, liens and encumbrances, except the security
interests herein granted or permitted, and those described
in Section 3.10 of the Investment Agreement that Debtor has
the full right and power to transfer the Collateral to the
Secured Party under this Security Agreement and to enter
into this Security Agreement and carry out its terms, and
that Debtor is, or at the time each item of Collateral comes
into existence will be, the true and lawful owner of, and
has, or at the time it comes into existence will have, good
and clear title thereto subject only to the Secured Party's
security interests and Permitted Encumbrances. Debtor
further represents and warrants that (i) all Collateral is
located as set forth on Exhibit A, and (ii) its principal
place of business is located in the State of Colorado.
"Permitted Encumbrances" shall mean all of the
follow ing: (i) liens for taxes, assessments or governmental
charges or levies not yet due or delinquent, or which-can
thereafter be paid without penalty, or which are being
contested in good faith in accordance with the Investment
Agreement; (ii) unfiled inchoate mechanics' and
materialmen's liens for construction work in progress; (iii)
workmen's, repairmen's, warehousemen's and carriers' lien
and other similar liens, if any, arising in the ordinary
course of business; (iv) purchase money security interests;
and (v) security interests or liens in the Collateral
granted to the holders of Senior Indebtedness as defined in
the Investment Agreement.
7. Right of Possession. Unless otherwise
provided
herein and subject to the terms and conditions of this
Security Agreement, unless and until an Event of Default (as
hereinafter defined) shall occur, Debtor shall be entitled
to the use, pos session and quiet enjoyment of the
Collateral.
8. Covenants with Respect to Collateral. From
the
date hereof until payment in full, including interest, or
performance of all Obligations hereunder, Debtor shall:
(a) not sell, transfer, assign, dispose of,
hypothecate or subject to any lien or encumbrance any or all
of the Collateral except for sales of immaterial amounts of
equipment or Permitted Encumbrances or unless the Secured
Party has consented in advance and in writing; provided,
however, that this Section 8(a) shall not apply to bona fide
sales of items of Collateral in the ordinary course of
business and Debtor may grant purchase money security
interests as defined in the Colora do Uniform Commercial
Code in the ordinary course of business and Permitted
Encumbrances (as hereafter defined);
(b) maintain in full force and effect the
policy or policies of insurance issued by insurers of
recognized responsibility insuring the Collateral against
such losses and risks and in such amounts as are customary
in the case of corpora tions of established reputation
engaged in the same or a similar business and similarly
situated;
(c) keep all Collateral and its principal
place of business located in the locations listed on Exhibit
A unless Secured Party has received written notice of any
change at least twenty (20) days in advance of such change;
and
(d) properly maintain and care for the
Collateral in accordance with the highest standards
customary for businesses similar to the business of Debtor.
9. Rights of Secured Party. In addition to all
other
rights given the Secured Party herein, the Secured Party
may, but shall not be obligated to, (a) discharge any or all
taxes, liens, security interests or other encumbrances at
any time levied or placed upon the Collateral, (b) pay for
the insurance on the Collateral, and (c) pay for the
maintenance and preservation of the Collateral. Debtor
shall reimburse the Secured Party on demand for any payment
made, or any expense incurred, together with interest at the
lesser of an annual rate of fourteen percent (14%) or the
highest rate permitted by law, by the Secured Party pursuant
to the foregoing authorization. Any action which is
required to be taken or which may be taken or any document
which is required to be executed or which may be executed by
a Secured Party under this Security Agreement, including
without limitation, any modification, termination or
amendment of this Security Agreement, release of any or all
of the Collateral, waiver of the performance of any
obligations of Debtor hereunder, exercise of the remedies
provided herein upon default by the Debtor and application
of the proceeds of any sale of the Col lateral hereunder,
may be taken or executed by the Secured Party.
10. Events of Default. An Event of Default as
used in this Security Agreement shall be any or all of the
following:
(a) an Event of Default as defined in the
Invest ment Agreement;
(b) the failure of Debtor to perform,
observe or keep any covenant, agreement, condition or
obligation under this Security Agreement, which failure
shall continue after ten (10) days have elapsed from demand
by a Secured Party to Debtor for performance thereof; or
(c) if any representation or warranty made
herein by Debtor shall prove to have been false or
misleading in any material respect.
11. Remedies in the Event of Default.
(a) Upon the occurrence of an Event of
Default shall have occurred, the Secured Party shall be
entitled to proceed to enforce its rights, including,
without limitation, the right to exercise with respect to
the Collateral all the rights and remedies available to a
secured party upon default under the Colorado Uniform
Commercial Code at the time, including the right to sell,
lease or otherwise dispose of the Collateral or any portion
thereof at public or private sale upon such terms as the
Secured Party may determine. In addition, the Secured Party
shall have all other rights and remedies provided for herein
and in the Investment Agreement and such other rights and
remedies as may be provided by law, and may require Debtor
to assemble the Collateral and make it available to the
Secured Party at a place to be designated by Debtor which is
reasonably convenient to both parties. The Secured Party
shall have the right, without notice or demand or legal
process, to enter upon the premises of Debtor and take
possession of the Collateral, together with all additions
and accessions thereto. Further, upon the occurrence of an
Event of Default, the Secured Party may, without notice,
declare all obligations secured hereby immediately due and
payable.
(b) The Secured Party shall give Debtor
notice of
the time and place of any public sale of the Collateral or
of the time on or after which any private sale or other
intended dispo sition is to be consummated, which notice
shall be mailed to Debtor in the manner set forth in Section
16(c) hereof at least ten (10) days prior to the time of
such sale or other intended disposition, and such notice
shall be considered reasonable.
Each purchaser at any sale of the Collateral
(including the Secured Party) shall hold the property sold
absolutely free from any claim or right on the part of
Debtor, and Debtor hereby waives to the extent permitted by
law all rights of redemption, stay and/or appraisal which it
now has or may at any time in the future have under any rule
of law or statute now existing or hereafter enacted and, to
the extent permitted by law, any right which it may have to
demand a hearing or other judicial or ad ministrative
proceeding prior to the enforcement by the Secured Party of
any of their rights and remedies hereunder. Any public or
private sale of the Collateral or any party of it shall be
held at such time or times within ordinary business hours
and at such place or places as the Secured Party may fix in
the notice of sale, and at any such sale the Collateral, or
the portion thereof to be sold, may be sold in one lot as an
entirety or in separate parcels, as the Secured Party in its
sole and absolute discretion may determine. If permitted by
law, a Secured Party may bid (which bid may be, in whole or
in part, in the form of cancellation of indebtedness) for
the purchase of the Collateral.
The Secured Party shall not be obligated to make
any sale of the Collateral or any part of it if they
determine not to do so, regardless of the fact that notice
of sale of the Col lateral may have been given. The Secured
Party may, without notice or publication, adjourn a public
or private sale of the Collateral, or cause the same to be
adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further
notice, be made at the time and place to which the same was
so adjourned.
(c) All demands and presentments of any kind
or nature are hereby expressly waived by Debtor. Debtor
hereby waives the right to require the Secured Party to
proceed against any of the Collateral it may hold or against
any debtor of Debtor, or to pursue any other remedy. All of
the Secured Party's remedies are cumulative and may be
enforced successively or concurrently and no such action
shall estop or prevent the Secured Party from pursuing any
other remedies.
(d) Following an Event of Default, Debtor
hereby irrevocably appoints the Secured Party, or any person
designated by the Secured Party, its true and lawful
attorney-in-fact to receive, open and dispose of all mail
addressed to Debtor, to endorse the name of Debtor on any
notes, acceptances, drafts, money orders or other
remittances; to notify account debtors to direct payments
directly to Secured Party at such address as Secured Party
may designate; to endorse the name of Debtor on any invoice,
freight or expense ▇▇▇▇ or ▇▇▇▇ of lading, storage receipt,
warehouse receipt or other instrument or document in respect
to any Collateral; to sign the names of Debtor to drafts
against Debtor, assignments or verifications of accounts and
notices to Debtor; to station a representative of the
Secured Party on the premises of the Debtor for the purpose
of taking any of the actions described in this paragraph
including, without limitation, taking possession of books
and records; and to do all other acts and things necessary
to carry out the intent of this Security Agreement. The
foregoing appointment and authority shall remain in effect
until all obligations of Debtor to the Secured Party secured
hereby have been paid in full.
12. Application of Proceeds. All proceeds of any
sale of the Collateral by the Secured Party pursuant to
Section 11 hereof shall be applied in favor of the Secured
Party as follows:
(a) first, to the payment of all fees and
expenses incurred by the Secured Party in connection with
any such sale, including, but not limited to, the expenses
of taking, advertising, processing, preparing and storing
the Collateral to be sold, all court costs and reasonable
fees of counsel for the Secured Party in connection
therewith, and to the payment of all advances made by the
Secured Party hereunder to the account of Debtor and the
payment of all costs and expenses paid or incurred by the
Secured Party in connection with the exercise of any right
or remedy hereunder, to the extent that such advances, costs
and expenses shall not theretofore have been reimbursed to
the Secured Party by Debtor;
(b) second, to the payment of accrued
interest, if any, on the Note;
(c) third, to the payment of the outstanding
prin cipal balance of the Note;
(d) fourth, to the payment of accrued
interest, if any, on the Obligations, other than the Note;
and
(e) fifth, to the payment of the outstanding
principal of the Obligations, other than the Note.
Any surplus shall be delivered to Debtor. If
there is any deficiency, Debtor shall promptly pay the
deficiency to the Secured Party on demand.
13. Miscellaneous.
(a) Upon payment in full of the Note by
Debtor and any and all other obligations secured hereby, the
security interest in the Collateral granted to the Secured
Party in this Security Agreement shall terminate, and
Secured Party shall execute any required releases or
termination statements.
(b) The Secured Party may delay exercising,
or omit to exercise, any right or remedy under this Security
Agree ment without waiving that or any past, present or
future right or remedy.
(c) All notices, requests, demands and other
com munications hereunder shall be given as required in the
Investment Agreement.
(d) This Security Agreement shall bind and
inure to the benefit of the parties, their successors and
assigns; pro vided, however, that this Security Agreement
shall not be assigned by Debtor without the prior written
consent of the Se cured Party and any attempted assignment
by Debtor without such consent shall be null and void.
(e) This Security Agreement and its
performance shall be governed by the internal laws of the
State of Colorado.
(f) This Security Agreement and the security
interest created hereby are for the sole and exclusive
benefit of the parties hereto and shall not operate to the
benefit of any third party.
(g) If any term, covenant or condition of
this Security Agreement or the application thereof shall be
invalid or unenforceable, the remainder of this Security
Agreement or the application of such term, condition or
covenant to persons or circumstances other than those as to
which it is held invalid or unenforceable shall be
unaffected thereby and shall be valid and enforced to the
fullest extent permitted by law.
(h) This Agreement may be executed in
counterparts, each of which shall be deemed an original and
all of which, when taken together, shall constitute one and
the same instrument.
(i) This Agreement may be amended only by
the written consent of the Secured Party. The terms of this
Agreement may be waived only by a statement signed by the
party against whom enforcement of the waiver is sought.
IN WITNESS WHEREOF, the parties hereto have duly
exe cuted this Security Agreement on the date first above
written.
DEBTOR: THE QUIZNO'S CORPORATION
a Colorado corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ts: President
SECURED PARTY: RETAIL & RESTAURANT GROWTH
CAPITAL, L.P., a Delaware
limited partnership
By: Retail & Restaurant Growth
Partners, L.P., its
General Partner
By: Retail & Restaurant Growth
Management, Inc., its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: COB/CEO
