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EXHIBIT (c)(3)
AMENDED AND RESTATED
COLLATERAL AGREEMENT
[Direct]
In consideration of one or more loans, letters of credit or other
financial accommodations extended by THE CHASE MANHATTAN BANK or any of its
subsidiaries or affiliates (the "Bank"), the undersigned and the Bank agree as
follows:
1. Definitions.
"COLLATERAL" means each of the following as identified in EXHIBIT A,
and includes all additions, proceeds, renewals, investments and reinvestments,
substitutions and any sums of money standing to the credit of any account opened
or maintained by any clearing system for the undersigned and under the direction
or control of the Bank, whether or not listed on EXHIBIT A: (a) the deposits of
the undersigned with the Bank (whether or not held in trust, or in any custody,
subcustody, safekeeping, investment management accounts or other accounts of the
undersigned with the Bank) (the "DEPOSITS"); (b) the stocks, bonds and other
instruments and securities (whether or not held in trust or in any custody,
subcustody, safekeeping, investment management accounts or other accounts of the
undersigned with the Bank or any other custodian or trustee or clearing system)
(the "SECURITIES"); (c) all Deposits, Securities and any other assets held in
trust, or in any custody, subcustody, safekeeping, investment management
accounts or other accounts of the undersigned with the Bank or any other
custodian or trustee or clearing system (the "ACCOUNT ASSETS"); and as to all of
the foregoing, all certificates, receipts and other instruments evidencing the
Deposits, Securities and Account Assets. "Clearing system" includes Cedel Bank,
Societe Anonyme, the Euroclear System, the Depository Trust Company ("DTC") and
such other clearing or safekeeping system that may from time to time be used in
connection with transactions relating to or the custody of any Securities, and
any depository for any of the foregoing.
THIS COLLATERAL AGREEMENT AMENDS AND RESTATES THE TERMS AND PROVISIONS OF THAT
CERTAIN STOCK PLEDGE AGREEMENT DATED JULY 8, 1992, BETWEEN G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
AND FIRST UNION NATIONAL BANK OF TENNESSEE, N.A. ("FIRST UNION"), AS AMENDED BY
A FIRST AMENDMENT TO STOCK PLEDGE AGREEMENT DATED DECEMBER 27, 1993, AND AS
ASSIGNED BY FIRST UNION TO NATIONSBANK OF TENNESSEE, N.A. ("NATIONSBANK") AND
THEREAFTER AMENDED BY A SECOND AMENDMENT TO STOCK PLEDGE AGREEMENT BETWEEN G.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND NATIONSBANK DATED AS OF MARCH 9, 1994,
A THIRD AMENDMENT TO STOCK PLEDGE AGREEMENT DATED JANUARY 27, 1995 AND A FOURTH
AMENDMENT TO STOCK PLEDGE AGREEMENT DATED JULY 24, 1995, AND AS ASSIGNED BY
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NATIONSBANK TO BANK PURSUANT TO THAT CERTAIN ASSIGNMENT OF NOTES, MORTGAGE AND
COLLATERAL DOCUMENTS DATED AS OF JANUARY 31, 1997.
"Liabilities" means indebtedness, obligations and liabilities of any
kind of the undersigned to the Bank, now or in the future, absolute or
contingent, direct or indirect, joint or several, due or not due, arising by
operation of law or otherwise, including, without limitation, indebtedness of
Borrower to Bank in the amount of $3,000,000 secured by a lien on Borrower's
real property located at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, and costs and
expenses incurred by the Bank in connection with the Collateral, this Agreement
or any Liability Document.
"Liability Document" means any instrument, agreement or document
evidencing or delivered in connection with the Liabilities.
2. Grant of Security Interest.
As security for the payment of all the Liabilities, the undersigned
pledges, transfers and assigns to the Bank and grants to the Bank a security
interest in and right of setoff against, the Collateral.
3. Agreements of the Undersigned and Rights of the Bank.
The undersigned agrees as follows and irrevocably authorizes the Bank
to exercise the rights listed below, at its option, for its own benefit, either
in its own name or in the name of the undersigned, and appoints the Bank as its
attorney-in-fact to take all action permitted under this Agreement.
a. Deposits: The Bank may: (i) renew the Deposits on terms and for
periods the Bank deems appropriate; (ii) demand, collect, and receive payment of
any monies or proceeds due or to become due under the Deposits; (iii) execute
any instruments required for the withdrawal or repayment of the Deposits; (iv)
in all respects deal with the Deposits as the owner; provided that, as to (ii)
through (iv), until the occurrence of a Default, the Bank will only take that
action if, in its judgment, failure to take that action would impair its rights
under this Agreement.
b. Securities: The Bank may: (i) transfer to the account of the Bank
any Securities whether in the possession of, or registered in the name of, the
DTC or other clearing system or held otherwise; (ii) transfer to the account of
the Bank with any Federal Reserve Bank any Securities held in book entry form
with any such Federal Reserve Bank; and (iii) transfer to the name of the Bank
or its nominee any Securities registered in the name of the undersigned and held
by the Bank and complete and deliver any necessary stock powers or other
transfer instruments; provided that until
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the occurrence of a Default, the Bank will only take that action if, in its
judgment, failure to take that action would impair its rights under this
Agreement.
The undersigned grants to the Bank an irrevocable proxy to vote any and
all Securities and give consents, waivers and ratifications in connection with
those Securities, provided that until the occurrence of a Default, the Bank
will only take that action if, in its judgment, failure to take that action
would impair its rights under this Agreement.
All payments, distributions and dividends in securities, property or
cash shall be paid directly to and, at the discretion of the Bank, retained by
the Bank and held by it, until applied as provided in this Agreement, as
additional Collateral; provided that until the occurrence of a Default,
interest on Deposits and cash dividends on Securities paid in the ordinary
course will be paid to the undersigned.
c. General: The Bank may, in its name, or in the name of the
undersigned: (i) execute and file financing statements under the Uniform
Commercial Code (the "UCC"), or any other filings necessary or desirable to
create, perfect or preserve its security interest, all without notice (except as
required by applicable law and not waivable) and without liability except to
account for property actually received by it; (ii) demand, ▇▇▇ for, collect or
receive any money or property at any time payable or receivable on account of or
in exchange for, or make any compromise or settlement deemed desirable with
respect to, any item of the Collateral (but shall be under no obligation to do
so); (iii) in its sole discretion, modify the terms of any Liability or release
any item of the Collateral, without incurring responsibility to, or affecting
any liability of, the undersigned; and (iv) make any notification (to the issuer
of any certificate or Security, or otherwise) or take any other action in
connection with the perfection or preservation of its security interest or any
enforcement of remedies, and retain any documents evidencing the title of the
undersigned to any item of the Collateral.
The undersigned agrees that it will not sell, assign, or otherwise
dispose of, grant any option with respect to, or pledge, or otherwise encumber
the Collateral, or file or permit to be filed any financing or like statement
with respect to the Collateral in which the Bank is not named as the sole
secured party. At the request of the Bank, the undersigned agrees to do all
other things which the Bank may deem necessary or advisable in order to perfect
and preserve the security interest and to give effect to the rights granted to
the Bank under this Agreement or enable the Bank to Comply with any applicable
laws or regulations. Notwithstanding the foregoing, the Bank does not assume any
duty with respect to the Collateral and is not required to take any action to
collect, preserve or protect its or the undersigned's rights in any item of the
Collateral. The undersigned releases the Bank and agrees to hold the Bank
harmless from any claims, causes of action and demands at any time arising with
respect to this Agreement, the use or disposition of any item of the Collateral
or any action taken or omitted to be taken by the Bank with respect thereto.
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The rights granted to the Bank pursuant to this Agreement are in
addition to the rights granted to the Bank in any custody, investment
management, trust or similar agreement. In case of conflict between the
provisions of this Agreement and of any other such agreement, the provisions of
this Agreement will prevail.
Unless the context otherwise requires, all terms used in this Agreement
which are defined in the UCC will have the meanings stated in the UCC.
4. Loan Value of the Collateral.
The undersigned agrees that at all times the amount of the Liabilities
may not exceed the aggregate Loan Value of the Collateral. The undersigned will,
at the Bank's option, either supplement the Collateral or make any payment under
the Liabielities to the extent necessary to ensure compliance with this
provision or the Bank may liquidate Collateral to the extent necessary to ensure
compliance with this provision. "Loan Value" means the value assigned by the
Bank from time to time, in its sole reasonable discretion, to each item of the
Collateral.
5. Currency Conversion.
For calculation purposes, any currency in which the Collateral is
denominated (the "Collateral Currency") will be converted into the currency of
the Liabilities (the "Liability Currency") at the spot rate of exchange for the
purchase of the Liability Currency with the Collateral Currency quoted by the
Bank at such place as the Bank deems appropriate (or, if no such rate is quoted
on any relevant date, estimated by the Bank on the basis of the Bank's last
quoted spot rate) or another prevailing rate that the Bank deems more
appropriate.
6. Representations and Warranties.
The undersigned represents and warrants: (a) the undersigned is the
sole owner of the Collateral; (b) the Collateral is free of all encumbrances
except for the security interest in favor of the Bank created by this Agreement;
(c) no authorizations, consents or approvals and no notice to or filing with any
governmental authority or regulatory body is required for the execution and
delivery of this Agreement or the exercise by the Bank of its rights and
remedies; (d) the execution, delivery and performance of this Agreement will not
violate any provisions of applicable law, regulation or order and will not
result in the breach of, or constitute a default, or require any consent, under
any agreement, instrument or document to which the undersigned is a party or by
which it or any of its property may be bound or affected; (e) as to Deposits and
Account Assets, the undersigned has not withdrawn, canceled, been repaid or
redeemed all or any part of any Deposits or Account Assets and there is no such
pending application; (f) as to Securities, the Securities have been duly
authorized and are fully paid and non-assessable and may be sold by the Bank
under the
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provisions of Rule 144(k) of the Securities Act of 1933 as amended; and the
undersigned understands that Securities held in or by any clearing system may be
held on a fungible basis and acknowledges the fungibility regimes pertaining to
the Cedel system and the Euroclear system.
7. Default.
Each of the following is a default ("Default"):
(i) the undersigned or other person liable on or for any of the
Liabilities ("Liability Party") fails to perform or observe any term, covenant,
or condition under this Agreement or under any Liability Document; (ii) any sum
payable on any of the Liabilities is not paid when due; (iii) any indebtedness
of the undersigned or of any Liability Party becomes due and payable by
acceleration of its maturity; (iv) any representation and warranty of the
undersigned or any Liability Party in this Agreement or in any Liability
Document is false or misleading at any time; (v) the undersigned or any
Liability Party (if a natural person) dies; (vi) the undersigned or any
Liability Party: (a) is generally not, or is unable to, or admits in writing its
inability to, pay its debts as its debts become due; (b) makes an assignment for
the benefit or creditors, or petitions or applies to any tribunal for the
appointment of a custodian, receiver or trustee for its or a substantial part of
its assets: (c) commences any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation; (d) has any such
petition filed, or any such proceeding has been commenced against it, in which
an adjudication is made or order for relief is entered or which remains
undismissed for a period of 30 days; (e) has a receiver, custodian or trustee
appointed for all or a substantial part of its property; or (f) takes any action
effectuating, approving or consenting to any of the events described in this
section (vi); and (vii) the undersigned or any Liability Party is involved in a
proceeding relating to, or which may result in, a forfeiture of part or all of
the undersigned's or any Liability Party's assets; then, unless and to the
extent that the Bank otherwise elects, the Bank will be entitled to exercise any
of the rights and remedies under this Agreement.
8. Remedies.
On a Default, the Bank will have the rights and remedies under the UCC
and the other rights granted to the Bank under this Agreement and may exercise
its rights without regard to any premium or penalty from liquidation of any
Collateral and without regard to the undersigned's basis or holding period for
any Collateral.
The Bank may sell in the Borough of Manhattan, New York City, or
elsewhere, in one or more sales or parcels, at the price as the Bank deems best,
for cash or on credit or for other property, for immediate or future delivery,
any item of the Collateral, at any broker's board or at public or private sale,
in any reasonable manner permissible under the UCC (except that, to the extent
permissible under the UCC, the undersigned waives any requirements of the UCC)
and the Bank
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or anyone else may be the purchaser of the Collateral and hold it free from any
claim or right including, without limitation, any equity of redemption of the
undersigned, which right the undersigned expressly waives.
The Bank may also, in its sole discretion: (i) convert any part of the
Collateral Currency into the Liability Currency; (ii) hold any monies or
proceeds representing the Collateral in a cash collateral account in the
Liability Currency or other currency that the Bank reasonably selects; (iii)
invest such monies or proceeds on behalf of the undersigned; and (iv) apply any
portion of the Collateral, first, to all costs and expenses of the Bank, second,
to the payment of interest on the Liabilities and any fees or commissions to
which the Bank may be entitled, third, to the payment of principal of the
Liabilities, whether or not then due, and fourth, to the undersigned.
The undersigned will pay to the Bank all expenses (including reasonable
attorneys' fees and legal expenses incurred by the Bank and the allocated costs
of its in-house counsel) in connection with the exercise of any of the Bank's
rights or obligations under this Agreement or the Liability Documents. The
undersigned will take any action requested by the Bank to allow it to sell or
dispose of the Collateral. Notwithstanding that the Bank may continue to hold
Collateral and regardless of the value of the Collateral, the undersigned will
remain liable for the payment in full of any unpaid balance of the Liabilities.
9. Jurisdiction.
The undersigned consents to the non-exclusive jurisdiction of the State
and Federal courts sitting in the City of New York and agrees that suit may be
brought against the undersigned in those courts or in any other jurisdiction
where the undersigned or any of its assets may be found, and the undersigned
irrevocably submits to the jurisdiction of those courts. The undersigned
consents to the service of process by mailing copies of process to the
undersigned at its most recent mailing address in the records of the Bank. The
undersigned further agrees that any action or proceeding brought against the
Bank may be brought only in a New York State or United States Federal court
sitting in New York County.
10. Notices.
Unless otherwise agreed in writing, notices may be given to the Bank
and the undersigned by ordinary mail addressed to the Bank or the undersigned at
their addresses on the signature page of this Agreement, or any other address
communicated in writing by either party to the other. Notices to the Bank are
effective on receipt.
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11. Miscellaneous.
(a.) The Bank may assign any of the Liabilities or Collateral and will
be fully discharged from all responsibility as to the assigned Collateral. That
assignee will have all the powers and rights of the Bank hereunder, but only as
to the assigned Collateral.
(b.) No amendment or waiver of any provision of this Agreement nor
consent to any departure by the undersigned will be effective unless it is in
writing and signed by the undersigned and the Bank and will be effective only in
that specific instance and for that specific purpose. No failure on the part of
the Bank to exercise, and no delay in exercising, any right will operate as a
waiver or preclude any other or further exercise or the exercise of any other
right.
(c.) The rights and remedies in this Agreement are cumulative and not
exclusive of any rights and remedies which the Bank may have under law or under
other agreements or arrangements with the undersigned or any Liability Party.
(d.) The provisions of this Agreement are intended to be severable. If
for any reason any provision of this Agreement is not valid or enforceable in
whole or in part in any jurisdiction, that provision will, as to that
jurisdiction, be ineffective to the extent of that invalidity or
unenforceability without in any manner affecting the validity or enforceability
in any other jurisdiction or the remaining provisions of this Agreement.
(e.) The term "undersigned" will include all signatories, if more than
one, and the terms, covenants and conditions and the representations and
warranties will be joint and several. The term "undersigned" will also include
the heirs, executors, administrators, assigns and successors of the undersigned.
(f.) The undersigned hereby waives presentment, notice of dishonor and
protest of all instruments included in or evidencing the Liabilities or the
Collateral and any other notices and demands, whether or not relating to those
instruments.
(g.) Unless otherwise agreed, Liabilities will be repayable at the
principal office of the Bank at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, on demand and will bear interest at the rate announced by the Bank from
time to time at its principal office as its prime commercial lending rate.
(h.) This Agreement is governed by and construed according to the laws
of the State of New York.
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12. WAIVER OF JURY TRIAL.
NEITHER THE UNDERSIGNED NOR BANK, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR
PERSONAL REPRESENTATIVE OF THE UNDERSIGNED OR BANK, SHALL SEEK A JURY TRIAL IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED
UPON OR ARISING OUT OF THIS AGREEMENT, ANY RELATED AGREEMENT OR INSTRUMENT, ANY
OTHER SECURITY FOR THE INDEBTEDNESS SECURED HEREBY OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN OR AMONG THE UNDERSIGNED AND BANK. NEITHER THE UNDERSIGNED
NOR BANK WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS
BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN
WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE
UNDERSIGNED AND BANK, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
NEITHER THE UNDERSIGNED NOR BANK HAS IN ANY WAY AGREED WITH OR REPRESENTED TO
ONE ANOTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
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IN WITNESS WHEREOF, the undersigned has signed this Agreement effective as of
the 31st day of January, 1997.
/s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ POA
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G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ACCEPTED:
Address for notices to the Bank
The Chase Manhattan Bank The Chase Manhattan Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: SVP
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EXHIBIT A
DESCRIPTION OF THE COLLATERAL
1. Deposits
Type of Location
Deposit (NY, IBF-NY, Contract or Issue or Maturity Principal
(CD, TD, etc.) etc.) Certificate No. Opening Date Date Amount
-------------- ----------- -------------- ------------ -------- ---------
2. Stocks, Bonds and Other Instruments and Securities
Nature of Security Number of Face Amount Certificate
or Obligation Name of Issuer Units (if Applicable) Number
--------------------- --------------------- --------- --------------- -----------
Stock Cooker Restaurant 570,000 40527
Corporation, an Ohio Shares
corporation
3. All Assets Held or to be Held in the Following Custody or Subcustody
Accounts, Safekeeping Accounts and/or Investment Management Accounts:
Type of Account Account Number Location
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