Multiple Loans
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT dated as of July 18, 1996, (as it may
be amended from time to time, this "Agreement") is entered into by and between
AMERIKING TENNESSEE CORPORATION I, a Delaware corporation (hereinafter called
"Borrower") and FRANCHISE ACCEPTANCE CORPORATION LIMITED (herein, together with
any assignee thereof or successor thereto, called "Lender").
PRELIMINARY STATEMENT
Borrower wishes to borrow funds from Lender to finance various
activities of Borrower in connection with Borrower's Burger King(R) restaurant
or restaurants as more fully set forth herein, and Lender is willing to lend
such funds, on the terms and conditions set forth herein, and in connection
with the Franchisee Loan Program (as defined below) of Lender. The restaurants
subject to the terms of this Agreement are identified by Burger King
Corporation ("BKC") store number and address on Annex I hereto (the
"Restaurants"). Each of the Restaurants is operated by the Borrower pursuant to
a franchise agreement ("Franchise Agreement") issued by BKC. To induce Lender
to lend such funds, Borrower is granting to Lender a security interest in
property and rights of Borrower relating to the Restaurants as set forth below.
The parties hereto hereby agree as follows:
1. The Loan. Lender agrees, upon compliance by Borrower with the terms
and conditions hereof, to make a loan or loans (collectively the "Loan") to the
Borrower in the principal amounts and during the periods set forth in Schedule
1 hereto. Borrower agrees to pay the principal amount of the Loan and interest
thereon on the dates and in the amounts set forth in the promissory note(s)
substantially in the forms of Exhibits A and B which the Borrower signs and
delivers to Lender pursuant to Section 7 (each a "Note").
2. Business Loan; Franchisee Loan Program. Borrower agrees that
Borrower will use the proceeds of the Loan only for the business purpose(s)
specified in Annex I hereto. The proceeds of the Loan will not be used for
personal, family, household or consumer purposes. Borrower acknowledges that:
(a) the Loan is provided under a financing program (the "Franchisee Loan
Program") of Lender under which similar financing may be provided by Lender to
other persons for similar purposes; (b) Lender may finance its lending under
the Franchisee Loan Program by selling or granting interests in Lender's rights
under this Agreement and other similar loan documents to purchasers
("Purchasers") or to an agent, trustee or other representative for Purchasers
("Purchaser Agent"), and the Purchasers intend to finance their purchase and
holding of such interests on an aggregate basis and not on a basis solely
related to this Agreement; (c) Lender and/or Purchasers may grant a security
interest in their rights under this Agreement to a party or parties providing
financing or credit enhancement for the Franchisee Loan Program ("Credit
Enhancers"); (d) the interest rate applicable to the Loan will fluctuate from
time to time based on the costs of funding the Franchisee Loan Program; and (e)
the Purchasers, any Purchaser Agent, the Credit Enhancer(s) and their
respective successors and assigns are intended third-party beneficiaries of
this Agreement and the other
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documents provided in connection with this Agreement (each as it may be amended
from time to time, together with this Agreement, the "Loan Documents").
3. Interest. Borrower agrees to pay to Lender interest on the unpaid
balance of each Note outstanding from the date hereof until final maturity at
the rate per annum equal to the sum of (x) applicable margin specified in such
Note (the "Applicable Margin") plus (y) the Program Rate (as hereinafter
defined). Accrued interest shall be payable as provided in such Note. The
"Program Rate" shall be determined on each day by Lender as described in the
Program Rate Rider hereto. Each such determination by Lender shall be
conclusive absent manifest error. The unpaid principal amount of each Note
shall bear interest after final maturity, including maturity by acceleration,
at the rate per annum equal to the sum of (x) 2.0% plus (y) the Applicable
Margin plus (z) the Program Rate, which interest shall be payable upon demand
by Lender. All computations of interest shall be made on the basis of a year of
360 days for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is payable.
Lender, at the sole discretion of Lender, if requested by Borrower,
may agree to replace the Program Rate as determined pursuant to the Program
Rate Rider with respect to any Note with a fixed rate agreed upon between
Lender and Borrower pursuant to a Fixed Rate Supplement to this Agreement
substantially in the forms of Exhibits C and D hereto executed and delivered by
Lender and Borrower to each other. Upon the effective date set forth in such
Fixed Rate Supplement, any reference herein or in such Note to "Program Rate"
with respect to such Note shall thereafter refer to the fixed rate set forth in
such Fixed Rate Supplement (the "Fixed Rate").
In the event that any amounts due hereunder have not been paid to the
Lender within five (5) days after the date due, Borrower shall pay on demand as
a late charge, to the extent legally permitted, an amount equal to the lesser
of five percent (5%) of such overdue amounts or the maximum amount allowed by
law.
Borrower also agrees to pay to Lender or Purchaser Agent, upon its
written request providing reasonable detail, any increase in the cost to
Lender, any Purchaser or any Credit Enhancer in maintaining the Loan or any
reduction in any amount receivable by Lender, such Purchaser or such Credit
Enhancer arising by reason of (x) the introduction of or any change (including
any change by way of imposition or change of reserve requirements or tax laws)
in or in the interpretation of any law or regulation, in each case after June
2, 1994 or (y) compliance by Lender or its assignee with any guideline or
request from any governmental authority.
Notwithstanding anything to the contrary contained herein, interest
payable on the Loan shall at no time exceed the maximum amount permitted by
applicable law.
4. Fees. Borrower agrees to pay each of the fees described in Annex II
hereto, which fees shall be payable in immediately available funds on the date
of funding of the Loan or on such other day as is specified in such Annex.
5. Payments. Borrower shall make all payments hereunder not later than
11 a.m., Eastern time, on the date when due in U.S. dollars through the
Disbursing Account as provided in Section 11(e) for the account of Lender. All
payments, whenever made, shall apply first toward accrued interest, with the
remainder of any payment applying toward principal and other amounts due.
Lender, any Purchaser and
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any Purchaser Agent is authorized to record in its records and/or on the
related Note (as defined below) the principal amount of the portion of the Loan
evidenced thereby and each repayment thereof. The amount so recorded shall be
rebuttable presumptive evidence of the principal amount owing and unpaid on the
Loan, but any failure to make such a record or any error in the record shall
not affect Borrower's obligation to repay the Loan. Borrower agrees to pay to
Lender upon Lender's demand any amount required to compensate Lender for any
additional losses, costs or expenses Lender may incur (including without
limitation by reason of its funding through the Franchisee Loan Program) as a
result of any late payment, including any delay in payments from the Disbursing
Account.
6. Prepayments. Upon forty-five (45) days' prior written notice to
Lender, Borrower may prepay all or any part of the principal of, or interest
on, any Note on an interest payment date not more than once in any year. Any
partial prepayment of principal shall be in an amount of at least $25,000 and
shall be applied to the installments due on such Note in the inverse order of
maturity. Any partial prepayments shall not relieve or diminish any scheduled
subsequent payments of principal or interest until all obligations of Borrower
with respect to this Agreement are paid in full. Upon acceleration or any
prepayment of any portion of the Loan, Borrower shall pay to Lender and its
assignees (i) all losses, costs or expenses reasonably accrued as a result of
such payment, including any loss (including loss of anticipated profits), cost
or expense incurred by reason of liquidation or redeployment of deposits or
other funds acquired to maintain such portion of the Loan, (ii) all unpaid
Hedge Payments (as defined in the Program Rate Rider hereto and whether due or
to become due in the future) related to the amount prepaid, as determined by
Lender and (iii) if Lender and Borrower have agreed to a Fixed Rate with
respect to any Note pursuant to a Fixed Rate Supplement, the amount of any
termination payment that Lender would incur in then terminating early in whole
or in part any interest rate hedging arrangement which Lender has maintained in
connection with the provision of such Fixed Rate.
7. Conditions Precedent to Loan. The obligation of Lender to make the
Loan pursuant to Section 1 of this Agreement is subject to satisfaction of the
following conditions precedent (unless otherwise waived by Lender) on or before
the date of this Agreement, in each case in form and substance satisfactory to
Lender:
(a) Lender shall have received the Note(s) evidencing the
Loan, duly executed by Borrower, and the guaranty attached hereto shall have
been duly executed by the persons listed on Annex III hereto as guarantors (the
"Guarantors") (the attached guaranty is hereby incorporated into and made a
part of this Agreement).
(b) Lender shall have received the trust deed or mortgage (in
either case, the ("Mortgage"), duly recorded in all applicable filing and
recording offices granting Lender a valid first priority perfected lien on the
real property relating to the applicable Burger King Restaurants, together with
evidence of payment of all filing and recording taxes and fees.
(c) Lender shall have received complete copies of any lease
agreement covering the related real property, and such landlord consents,
issued or committed title insurance policies, surveys, environmental audits and
appraisals with respect to the related real property, as are satisfactory to
Lender and which also are for the benefit of Purchaser Agent.
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(d) Lender shall have received lien searches and evidence of
filing of Uniform Commercial Code financing statements in satisfactory form in
the appropriate offices and such other action required by Lender to perfect and
protect the security interest granted under this Agreement and the other Loan
Documents, and evidence of satisfactory insurance covering the Collateral (as
defined below) and the naming of Lender and Purchaser Agent as additional
insured, mortgagee and loss payee thereon.
(e) Lender shall have received a complete copy of the
Franchise Agreement(s).
(f) Lender shall have received the authorization(s) required
under Section 11(e) authorizing Lender to debit the Disbursing Account (as
defined below) for the payments of all amounts due under the Loan Documents in
form and content acceptable to Lender.
(g) Lender shall have received all fees payable pursuant
to Section 4.
(h) Lender shall have received such additional documents,
agreements and certificates as Lender shall reasonably require.
(i) The other conditions set forth in Annex III hereto, if
any, shall have been satisfied or waived by Lender.
8. Additional Conditions Precedent to Loan. The obligation of Lender
to make the Loan (or any portion thereof) pursuant to Section 1 of this
Agreement is subject to satisfaction of the following additional conditions
precedent (unless otherwise waived by Lender) on or before the date of the
Loan:
(a) The representations set forth in this Agreement and the
other Loan Documents shall be true and correct on the date of making of the
Loan (or portion thereof) as if made on such date. No Default (as defined
below) shall exist or will result from making the Loan. No material adverse
change affecting Borrower or any Guarantor shall have occurred.
(b) Lender shall have received such additional documents,
agreements and certificates as Lender shall from time to time reasonably
require.
The borrowing of the Loan (or any portion thereof) by Borrower shall be deemed
to constitute a representation by Borrower to Lender that the conditions
precedent to the Loan set forth in clause (a) of this Section 8 are satisfied.
9. Grant of Security Interest in Collateral. (a) To secure the Secured
Obligations (as defined below), Borrower hereby grants to Lender a security
interest in all of Borrower's right, title and interest in the following
described property and rights, whether now existing or hereafter arising and
wherever located, in each case to the extent such property or rights are used
or useful in the operation of a Restaurant, arise out of the operation of a
Restaurant or otherwise relate to a Restaurant (the "Collateral"):
(i) The Franchise Agreement(s); and
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(ii) All inventory, raw materials, work in process
and materials sold, used or consumed or to be sold, used or consumed in
Borrower's business; and
(iii) All equipment, including, but not limited to,
all present and future machinery, computer hardware and software, vehicles,
furniture, fixtures, office and record keeping equipment, parts and tools and
all other tangible personal property and all leases and licenses with respect
thereto; and
(iv) Each and every right to the payment of money,
whether such right to payment arises out of a sale, lease or other disposition
of goods or other property, out of a rendering of services, out of a loan, out
of the overpayment of taxes or other liabilities or otherwise arises under any
contract or agreement, whether such right to payment is or is not already
earned by performance, and howsoever such right to payment may be evidenced,
together with all of the rights and interest (including all liens and security
interest) which Borrower may at any time have by law or agreement against any
account debtor or other obligor obligated to make any such payment or against
any of the property of such account debtor or other obligor; all including but
not limited to all present and future debt instruments, chattel papers,
accounts, loans and obligations receivable and tax refunds; and
(v) All general intangibles of the Borrower, whether
now owned or hereafter acquired, including but not limited to, trademarks,
trade secrets, good will, trade names, customer lists, permits and franchises,
and the right to use Borrower's name; and
(vi) All certificates of title, instruments,
documents, chattel paper, deposits and credits (where necessary to perfect
Lender's security interest, a notation of Lender's security interest shall be
made on each Certificate of Title or other document, instrument or paper, as
appropriate); and
(vii) All other personal property of Borrower of
every kind and description which is now or hereafter comes into the possession
of Lender for any reason, including, but not limited to property delivered to
Lender for safekeeping, or for collection or exchange, and all dividends and
distributions on and other rights in connection with such property; and
(viii) In addition to any property generally
described above, the Collateral described on Annex IV hereto,
together with all parts, accessories, repairs, improvements and accessions
thereto and replacements and substitutions thereof; and proceeds (including,
but not limited to, insurance proceeds), products and issue therefrom now or
hereafter at any time made or acquired; and all books and records with respect
thereto and all equipment containing such books and records.
(b) Until terminated by Lender in writing, or until the Loan
is paid in full by Borrower and all of Borrower's obligations under this
Agreement and the Loan Documents have been fulfilled, the security interest
granted under this Agreement secures all performance and payment obligations of
Borrower under the Loan Documents, all extensions, modifications and renewals
thereof, and all prior, contemporaneous and future debts owed to Lender by
Borrower, whether originally owned or transferred to Lender (the "Secured
Obligations"). The Loan and the other Secured Obligations may be secured by
prior or subsequent security documents notwithstanding that such security is
not indicated hereon.
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(c) Borrower hereby irrevocably appoints Lender as Borrower's
attorney-in-fact (with power of substitution), which power of attorney is
coupled with an interest, with full authority in the place and name of
Borrower, Lender or otherwise, from time to time, to take any action and to
execute any instrument which Lender may deem necessary or advisable to
accomplish the purposes of the Loan Documents, including without limitation
with respect to perfection, collection, endorsement, filing claims, sale or
other disposition and insurance. Lender may, but shall not be obligated to,
perform any of Borrower's undertakings under this Agreement. Lender has no duty
to Borrower or any Guarantor as to any Collateral or the preservation of any
rights against other parties other than safe custody of Collateral in its
possession.
(d) The Secured Obligations are also secured by (and the term
"Collateral" shall include any property and rights in which Lender is granted a
security interest in under) the mortgages delivered contemporaneously to Lender
herewith and/or other separate collateral documents (if any) described in Annex
IV hereto.
(e) To induce Lender to extend credit to Borrower hereunder,
Borrower has requested BKC to (i) consent to the creation of liens on the
Franchise Agreements and certain leases on which BKC is lessor (the "Leases"),
and (ii) provide to Lender information with respect to the Franchise
Agreements, the Leases, the Restaurants, Borrower and its affiliates from time
to time (including without limitation notice of default by Borrower and its
affiliates in the performance of their obligations under any franchise
agreements, leases or other contracts with BKC). BKC has expressed its
willingness to permit such liens and to provide such information, subject to
certain conditions, including without limitation (i) Lender's agreement to
provide notice to BKC of Defaults and to provide other information to BKC from
time to time with respect to the transactions contemplated by the Loan
Documents and the parties thereto, and (ii) provisions with respect to Lender's
exercise of its rights and remedies with respect to the Collateral, and the
timing of such exercise. Borrower agrees that (x) BKC and Lender may give such
notices, and exchange such information, (y) BKC and Lender may from time to
time confer with respect to each such party's exercise of its respective rights
and remedies, and (z) Lender's exercise of its rights and remedies will be
subject to the terms of the BKC consent. BKC may rely on such agreement of
Borrower as if it were a party hereto.
10. Representations. To induce Lender to make the Loan, Borrower
represents and warrants to Lender as follows:
(a) Borrower (if a corporation or partnership) is duly
organized and in good standing under the laws of the State of its organization
and possesses all necessary licenses, permits, intellectual property rights,
franchises and qualifications (including without limitation in each
jurisdiction where Borrower does business) necessary to operate its business.
Borrower is an authorized franchisee under the Franchise Agreements and the
term of the Franchise Agreements extends beyond the final maturity of the Loan.
All BKC franchisees who are under common control with Borrower (or which
control Borrower or which are controlled by Borrower) are listed on Annex V
hereto (all such franchisees being collectively called ("Related Persons").
Neither Borrower nor any Related Person is in default of any obligations to
Lender, BKC or any of their respective affiliates.
(b) The entering into and performance by Borrower of the Loan
Documents do not violate or breach any provision of law, any constitutive
document of Borrower or any agreement or other obligation
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affecting Borrower. The Loan Documents have been duly authorized and entered
into by Borrower and constitute the legal, valid and binding obligations of
Borrower, enforceable in accordance with their respective terms. The Loan
Documents are not subject to any dispute, offset, counterclaim or defense.
Borrower acknowledges and agrees that no claim or defense which Borrower may at
any time have against BKC or any affiliate of BKC (other than Lender) shall
relieve Borrower of its obligations under the Loan Documents, and Borrower will
not assert any offset, counterclaim or defense to its obligations under the
Loan Documents as a result of any such claim or defense against BKC or its
affiliates. No approval or other action of any governmental authority is
required for the entering into and performance by Borrower of the Loan
Documents (including without limitation the grant of Collateral).
(c) All factual information provided by or on behalf of
Borrower to Lender is true and accurate as of the date on which it is dated or
certified and not incomplete by omitting to state any material facts necessary
to make such information not misleading. The financial statement described on
Annex V hereto delivered by Borrower to Lender is complete and correct, fairly
presents the financial condition of Borrower, and was prepared in accordance
with generally accepted accounting principles. Since the date of such financial
statement no material adverse change affecting the Borrower has occurred.
Borrower is not in default on any payment obligation or any material contract.
Borrower is not subject to any unusual or unduly burdensome agreement or
governmental order materially affecting it. There are no pending or threatened
claims or litigation which could materially adversely affect Borrower.
(d) Borrower, the Collateral and each Restaurant site are in
compliance in all material respects with all applicable law (including, but not
limited to, environmental, zoning, health, safety, pension and labor laws).
Borrower has no material unfunded pension liability with respect to any pension
or employee benefit plan for employees of Borrower or any affiliate of
Borrower. There are no hazardous waste materials, toxic materials, hazardous
waste dump sites or toxic or chemical waste clean-up requirements currently on
or being conducted on any Collateral or the site of any Restaurant. Borrower
has no knowledge that any Collateral or the site of any Restaurant has ever
been the site of any contamination by any hazardous or toxic waste materials,
or used in a manner making such contamination more likely than not or the
subject of any environmental inquiry by any authority. Borrower has filed all
applicable tax returns that are required to be filed by it, and has paid or has
caused to be paid all taxes to the extent that such taxes have become due. Such
tax returns properly reflect the applicable tax liability of Borrower for the
periods covered thereby.
(e) After giving effect to the Loan, (i) the assets of
Borrower, at fair valuation, exceed its liabilities, (ii) the capital of
Borrower is not unreasonably small to conduct its business, and (iii) Borrower
has not incurred debts, and does not intend to incur debts, beyond its ability
to pay such debts as they mature.
(f) Borrower is the owner of the Collateral free from any
security interest or encumbrance and the Collateral is not covered by any
financing statement, except for (i) liens for current taxes not delinquent,
(ii) the security interest granted herein, and (iii) liens shown on Annex V
hereto. This Agreement creates a valid perfected first priority security
interest in the Collateral. The chief place of business and chief executive
office of Borrower is described on Annex V hereto. If Borrower is an
individual, Borrower's residence is described on Annex V hereto. The office
where Borrower keeps its records concerning the Collateral, and the location(s)
of the Collateral are listed on Annex V hereto. None
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of the Collateral nor any site of any Restaurant is located in an area
identified by the Secretary of Housing and Urban Development or other
appropriate authority as an area having special flood hazards pursuant to the
National Flood Insurance Act of 1968, or the Flood Disaster Protection Act of
1973, as amended, or any successor law.
(g) Each Restaurant site (and the Collateral, as applicable)
is free of material damage and waste and, to the best of Borrower's knowledge,
there are no material mechanical or structural defects in any Restaurant or the
Collateral. To the best of Borrower's knowledge, there is no proceeding pending
for the total or partial condemnation of or affecting any Restaurant. Any
easement agreement benefitting any Restaurant or the Collateral (i) is in full
force and effect, (ii) has no default thereunder with respect to any party
thereto, (iii) contains no executory obligations with respect to Borrower other
than normal obligations standard in the industry, and (iv) has priority over,
or the recorded consent of, any mortgagee or holder of any other prior lien on
the burdened property.
11. Covenants. So long as any Secured Obligations remain unpaid or
unperformed or Lender has any commitment that could give rise to Secured
Obligations, Borrower agrees as follows:
(a) Borrower will maintain its existence in good standing
under applicable state law and regulations (if not an individual) and all
necessary licenses, permits, franchises and qualifications necessary to operate
its business. Borrower will comply with its organizational documents (if any)
and applicable law in all material respects. Borrower will maintain adequate
books and accounts in accordance with generally accepted accounting principles.
Borrower will pay state and local franchise fees, taxes (including intangible
taxes) and other liabilities when due. Borrower will maintain its status as a
franchisee under, and comply in all material respects with the terms of the
Franchise Agreement(s). Borrower will own or lease sufficient equipment for the
operation of its business. Borrower will maintain its business facilities in
good condition to permit its continuing operations. Borrower will comply with
all applicable environmental law (including without limitation all reporting
and notice requirements) and will remedy any release or spill of hazardous
substances on any Collateral or the site of any Restaurant in accordance with
applicable environmental law to the satisfaction of the applicable authorities.
(b) Borrower will maintain insurance (including flood plain
insurance, if applicable) of the types and in amounts customarily carried by
businesses similar to Borrower's, and keep the Collateral insured against such
risks, with such limits, and upon such additional terms and conditions as
Lender may reasonably require. Lender shall be named as additional insured,
mortgagee and loss payee under said policies. Unless prohibited by applicable
law, Lender is hereby authorized (but not required or obligated) to act as
attorney in fact for Borrower in making and settling claims under said policies
and endorsing Borrower's name on any drafts or checks paying losses under said
policies. Borrower will not carry separate or additional insurance concurrent
in form or contributing, in the event of loss, with that required under the
Loan Documents unless endorsed in favor of Lender as loss payee, mortgagee or
additional insured, as applicable, and otherwise acceptable to Lender in all
respects. Borrower will deliver to Lender, upon request, proof of payment and
Certificates of Insurance for all Insurance required of Borrower.
(c) Borrower will defend the Collateral against all claims
and demands at any time claiming the same or any interest therein. Borrower
will not sell or offer to sell or otherwise transfer or encumber the Collateral
or any interest therein (except for purchase money security interests, vehicle
leases and loans, and
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leasehold interests under capital leases, provided that such encumbrances,
liens and security interests (i) shall only attach to the assets so purchased,
mortgaged or leased and (ii) shall not exceed a total aggregate amount of
$100,000.00 at any time during the term of the Loan) without the prior written
consent of Lender, unless (i) said Collateral is the inventory of Borrower, or
(ii) said Collateral is equipment which is sold or traded in and the proceeds
of such sale or trade in are used to acquire replacement equipment of at least
comparable value. Borrower will immediately notify Lender in writing of any
change of address from that shown in this Agreement and also, upon demand,
furnish to Lender such further information and will execute and deliver to
Lender such financing statements, mortgages and other papers and will do all
such acts and things as Lender may at any time or from time to time reasonably
request and/or as may be necessary or appropriate to comply with or accomplish
the covenants and agreements contained in the Loan Documents, including without
limitation establishing and maintaining a valid perfected first priority
security interest in the Collateral as security for the Secured Obligations.
Borrower will not permanently remove any Collateral from the locations
specified herein without prior written notice to Lender of the location or
locations to which Borrower desires to remove the Collateral and written
consent of Lender. Borrower will keep the Collateral in good order and repair,
will not waste or destroy the Collateral or any part thereof, and will not use
or permit anyone else to use the Collateral in violation of any applicable law
or policy of insurance thereon. Borrower will permit Lender to examine and
inspect the Collateral and Borrower's books and records wherever located at any
reasonable time or times.
(d) Borrower will furnish Lender with the financial and tax
information with respect to Borrower and the Guarantors specified in Annex VI
hereto, in each case at the times specified in such annex. Borrower will notify
Lender promptly (but in no event more than five days after the occurrence of)
(i) any Default, (ii) any change in name, address or organizational structure
of Borrower, (iii) any notification from an insurer of its intention to
materially alter or cancel any insurance policy Borrower is required to
maintain, any material alteration, termination or cancellation of any insurance
policy Borrower is required to maintain, and any uninsured or partially
uninsured loss or any threatened or pending litigation claim in excess of
$25,000, any other matter which might materially adversely affect Borrower's or
any Guarantor's financial condition or affairs, (iv) any matured or unmatured
default by Borrower or any Related Person under a BKC franchise agreement, or
receipt by Borrower or any Related Person of a notice of default from BKC with
respect to any BKC franchise agreement, (v) any release or spill of hazardous
substances on any Collateral or the site of any Restaurant and any report to
any authority of any release or spill of hazardous substances on Collateral or
the site of any Restaurant, and (vi) any condition or occurrence that (A)
results in noncompliance with any applicable environmental law, or (B) could
reasonably be expected to result in liability to Borrower under environmental
law, or (C) could reasonably be expected to cause any Collateral or the site of
any Restaurant to become subject to restrictions on ownership, occupancy, use
or transfer under environmental law. Borrower will furnish Lender any other
information reasonably requested by Lender from time to time.
(e) Borrower will maintain (i) an account ("Disbursing
Account") with a commercial bank that shall be a member of the automated
clearing house system (the "ACH System") and (ii) such authorizations as may be
necessary to enable Lender or its designated collecting agent to obtain
payments due under this Agreement from the Disbursing Account through the ACH
System. Borrower shall not terminate the Disbursing Account or such
authorizations at any time during the term of this Agreement without having
provided 60 days' prior written notice thereof to Lender, which notice shall
specify the institution at which a substitute Disbursing Account has been
established and the account number of such
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substitute Disbursing Account, and certifying that all authorizations necessary
to enable Lender or its collection agent to obtain payments due under this
Agreement from such substitute Disbursing Account through the ACH System have
been given and are then in effect. By not later than the opening of business on
each day that any payment shall be due under this Agreement, Borrower shall
cause an amount, in immediately available funds, equal to such payment to be
present in the Disbursing Account.
(f) Borrower will not create or permit to exist any security
interest in the Collateral except for (i) liens for current taxes not then due
and payable and not then delinquent and the security interest granted herein
and in the other Loan Documents and/or (ii) purchase money security interests,
vehicle leases and loans, and leasehold interests under capital leases,
provided that such encumbrances, liens and security interests (x) shall only
attach to the assets so purchased, mortgaged or leased and (y) shall not exceed
a total aggregate amount of $100,000.00 at any time during the term of the
Loan.
(g) Borrower will maintain Fixed Charge Coverage Ratio(s) of
greater than 1.10:1, for each of (x) the Restaurants, and (y) Borrower's
consolidated restaurant operations. Fixed Charge Coverage Ratio(s) will be
measured at the end of each Borrower's fiscal quarter on a rolling twelve (12)
month basis. "Fixed Charge Coverage Ratio" means, with respect to any period,
Cash Flow (as hereinafter defined) divided by Total Fixed Charges (as
hereinafter defined). "Cash Flow" means, with respect to any period, the sum
of: (i) net income from the Restaurants before taxes for such period; plus,
(ii) depreciation and amortization used in calculating net income for such
period; minus (iii) compensation (advances, dividends, salaries, etc.) paid to
Borrower's direct or indirect owners for such period; minus (iv) principal
payments made or required to be made in respect of Borrower's long term debt
obligations and capital leases during such period; plus (v) Total Fixed Charges
for such period. "Total Fixed Charges" means, with respect to any period and
each Restaurant, the sum of: (i) rent, equipment rent, and Burger King(R)
advertising and royalties fees, paid or payable during such period; plus (ii)
the current portion of Borrower's long term debt and capital leases; plus (iii)
interest paid or payable by Borrower during such period.
(h) Borrower will not become a guarantor or surety of, or
otherwise become responsible in any manner with respect to, any undertaking of
any other person or entity, or make loans or advances to any other person or
entity, except for (i) the endorsement in the ordinary course of collection, of
instruments payable to Borrower's order, (ii) arrangements clearly reflected in
the financial statement described in Section 10(c) hereof, and (iii) other
advances so long as after making such advances Borrower is not in default of
the required minimum Fixed Charge Coverage Ratio under Section 11(g),
calculated on a pro forma basis as of the end of Borrower's last fiscal quarter
and as of the end of Borrower's next fiscal quarter.
(i) Borrower (if not an individual) will not be party to any
merger or consolidation, or acquire all or substantially all of the assets or
stock of, or any partnership or joint venture interest in, any other person or
entity; and Borrower will not sell, lease or otherwise transfer all or
substantially all of its assets.
(j) Borrower will not permit the stated term of any Franchise
Agreement relating to the Restaurants to end prior to the final maturity of the
Loan or agree to any amendment to any Franchisee Agreement that is materially
likely to impair Borrower's ability to repay the Loan; provided that changes in
the operations manual incorporated by reference in such Franchise Agreement
will not be considered an amendment for purposes of this covenant.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
10
(k) Borrower will pay all costs of preparation of the Loan
Documents as set forth in Annex II and all costs of (including without
limitation amendments thereto), enforcement or collection, including but not
limited to reasonable attorneys' fees if Lender is the prevailing party
("prevailing party" shall include a party who receives substantially the relief
desired whether by dismissal, summary judgment, judgment or otherwise), at any
time paid or incurred by Lender on account of such preparation, enforcement or
collection, whether or not suit is filed with respect thereto. Borrower will
pay all stamp, documentary, recording and other taxes and fees payable in
connection with the Loan Documents and save Lender harmless from and against
all liabilities with respect to such taxes and any late payment or nonpayment
of such taxes. To the fullest extent permitted by law, Borrower hereby agrees
to indemnify Lender and each Purchaser and Credit Enhancer on an after-tax
basis for any and all taxes arising out of the Loan and the Collateral and the
holding of any rights therein, other than income taxes and franchise taxes
imposed by the jurisdiction under which Lender or such other entity, as the
case may be, is qualified to do business or has an office or any political
subdivision thereof. To the fullest extent permitted by law, Borrower hereby
agrees to indemnify and defend Lender, each Purchaser, each Credit Enhancer and
each of their respective officers, directors, stockholders, employees,
attorneys, agents, trustees and representatives (each, an "Indemnitee") for any
costs, losses, expenses, liabilities or damages that such party may incur by
reason of the financing provided under this Agreement, any Collateral or any
transaction related hereto (including without limitation any liability imposed
under environmental law), other than those resulting solely from such
Indemnitee's gross negligence or willful misconduct. The provisions of this
paragraph shall survive termination of this Agreement.
12. Default. Borrower shall be in default upon the occurrence of any
one or more of any of the following events (each an "Event of Default"; a
"Default" is any Event of Default or any event, which with the lapse of time or
the giving of notice or both would be an Event of Default):
(a) Borrower shall fail to pay, when due, any amount required
hereunder, and such failure shall continue for five (5) days after notice of
such failure by Lender; or Borrower shall fail to pay, when due (but subject to
any applicable grace period) any other indebtedness of Borrower to Lender or
any third parties; or
(b) Any warranty or representation made by Borrower or any
Guarantor shall prove to be false or misleading in any material respect; or
(c) Borrower or any Guarantor shall liquidate, merge,
dissolve, terminate its existence, suspend business operations, die (if an
individual), generally wind up or readjust its debt, have a receiver or similar
official appointed for all or any part of its property, make an assignment for
the benefit of its creditors, admit in writing its inability to pay its debts
when due, generally fail to pay its obligations when due, or have any
bankruptcy or insolvency proceeding with respect to it or a substantial part of
its property instituted by or against it, or take any action to authorize any
of the foregoing; or
(d) Borrower or any Guarantor fails to perform or meet any
covenants or obligations under any Loan Document or any other agreement
intended to secure the repayment of the Secured Obligations, and such failure
shall continue for 30 days after notice from Lender of such failure; or
1.1 Document Reference: SDPC-7258-1
July 17, 1996
11
(e) Any material provision of any Loan Document shall for any
reason cease to be valid and binding on any party thereto and such invalidity
continues for ten days, or any Guarantor revokes or seeks to revoke its
guaranty or this Agreement and the other Loan Documents shall cease or fail to
create a valid perfected first priority security interest in the Collateral; or
(f) Borrower or a Related Person shall fail to perform any
obligation under any BKC franchise agreement, and such failure shall not have
been cured on or before the first date on which BKC may terminate such BKC
franchise agreement by reason of such failure; or any BKC franchise agreement
of Borrower or a Related Person is terminated or canceled; or Borrower or any
Related Person shall default in the performance of its obligations to Lender
under any loan or credit agreement (other than this Agreement), subject to
applicable grace periods; or
(g) Borrower shall fail to perform its obligations under any
lease or other material contract relating to the Restaurants (such as a common
area maintenance agreement), and such failure shall continue for thirty (30)
days after notice from Lender; or
(h) Enforcement shall have commenced of any judgment or final
order for the payment of money in an amount of $25,000 or more against Borrower
or any Guarantor without a stay of enforcement for a period of ten days, unless
contested in good faith by appropriate proceedings with adequate reserves set
aside therefor satisfactory to Lender; or
(i) Borrower or any Guarantor shall at any time suffer a
material adverse change in its business, condition (financial or otherwise),
operations, performance, properties or prospects.
13. Remedies. If any Event of Default occurs under Section 12(c), the
commitment of Lender to make the Loan shall terminate and the entire unpaid
balance of principal and interest on the Loan shall be immediately due and
payable without notice or demand. If any other Event of Default occurs, Lender
may, at its option, declare its commitment to make any Loan terminated and/or
the entire unpaid balance of principal and interest on the Loan immediately due
and payable without notice or demand at any time after such Event of Default.
If any Event of Default exists under this Agreement, Lender shall also have all
the rights under the Uniform Commercial Code to realize on the Collateral in
addition and cumulative with any other rights granted under the Loan Documents
or otherwise. These rights include without limitation the right to demand
payment from any Guarantor, to take possession of Collateral, to sell
Collateral at public or private sales and on such terms as Lender deems
advisable (and to be the purchaser in such sale), and to require Borrower to
make Collateral available to Lender at a place to be designated by Lender which
is reasonably convenient to both parties. Borrower and Lender agree that as to
any reasonable notice requirement under the Uniform Commercial Code, that such
reasonable notice requirements shall consist of five business days' written
notice mailed to the last known address of Borrower known to Lender. Expenses
of retaking, holding, preparing for sale, selling or the like will first be
paid from the proceeds before the balance will be applied toward the
indebtedness.
14. Setoff. Lender may at any time before or after Default exercise
its right to set-off all or any portion of the indebtedness evidenced hereby
against any liability or indebtedness of Lender to Borrower (whether owned by
the Borrower alone or in conjunction with any other person or entity, provided
that Borrower has a beneficial interest therein) without prior notice to
Borrower.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
12
15. Waiver. Borrower's obligation to pay the Secured Obligations is
absolute, unconditional and irrevocable under all circumstances whatsoever.
Presentment, protest, notice of non-payment (except for such notice as
contemplated under Section 12(a) above) and dishonor of this Agreement are
hereby waived. Borrower waives any claim or defense based on Lender's choice of
remedies, Lender's failure to perfect or protect its interest in any Collateral
or any requirement that Lender pursue any remedy or party instead of or before
another. Lender may release any party or security, make future loans to any
party or contractually change its relationship to or the obligation of any
party without waiving or affecting the obligation of any other party to this
Agreement. A party to this Agreement is any maker, surety, endorser or
guarantor. Waiver by Lender at any time or any delay by Lender in the exercise
of any right conferred by this Agreement or any other Loan Document will not
affect Lender's future exercise of said right or any other. Borrower agrees
that nothing shall discharge or satisfy the liability of Borrower hereunder
except the full payment and performance of all Secured Obligations. Lender
shall not be deemed to have received a payment under the Loan if Lender is
required to turn over any payment due to the actions or inactions of Borrower.
Any and all obligations of one Borrower or Guarantor to another Borrower or
Guarantor are hereby subordinated to the full payment and performance of the
Secured Obligations.
16. Governing Law; Jurisdiction. This Agreement and the other Loan
Documents will be governed by the internal laws of the State of New York,
except that the law of the jurisdiction in which Collateral is located may
govern the validity, perfection and enforcement of the security interest
granted hereunder in such Collateral. The fact that any part of any Loan
Document may not be enforced will not affect the enforceability of the rest of
such Loan Document. Borrower irrevocably submits to the nonexclusive
jurisdiction of any Federal or state court located in the State of New York or
Florida with respect to any proceedings relating to the Loan Documents, and
irrevocably agrees not to assert any objection to venue in such court or any
claim of inconvenient forum. Borrower irrevocably consents to service of
process by mailing of such process by registered or certified mail, postage
prepaid, at its address set forth below.
17. Assignment. BORROWER CONSENTS TO THE ASSIGNMENT BY LENDER OF ALL
OR ANY PORTION OF ITS RIGHTS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
INCLUDING, BUT NOT LIMITED TO, ASSIGNMENT(S) TO PURCHASERS AND CREDIT ENHANCERS
MADE IN CONNECTION WITH THE FRANCHISEE LOAN PROGRAM. BORROWER ACKNOWLEDGES AND
AGREES THAT ANY AND ALL RIGHTS OF LENDER UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS MAY BE EXERCISED FROM TIME TO TIME BY ANY ASSIGNEE OR SUCCESSOR
OF LENDER, INCLUDING, BUT NOT LIMITED TO, ANY PURCHASER, ANY PURCHASER AGENT,
ANY CREDIT ENHANCER OR ANY AGENT, TRUSTEE OR OTHER REPRESENTATIVE THEREFOR,
INCLUDING CITICORP NORTH AMERICA, INC., AS SERVICING AGENT. BORROWER FURTHER
ACKNOWLEDGES AND AGREES THAT LENDER MAY PROVIDE TO ANY SUCH ASSIGNEE OR
SUCCESSOR ANY AND ALL INFORMATION IN LENDER'S POSSESSION WITH REGARD TO
BORROWER, ANY GUARANTOR OR OWNER OF BORROWER, OR ANY TRANSACTION CONTEMPLATED
BY THE LOAN DOCUMENTS. Borrower may not assign its rights and obligations under
the Loan Documents without Lender's prior written consent. Lender may grant
participations in its rights under the Loan Documents.
18. Successors; Joint and Several Liability; Time is of the Essence;
Independent Parties. This Agreement and the other Loan Documents shall be
binding upon each Borrower and the Borrower's heirs,
1.1 Document Reference: SDPC-7258-1
July 17, 1996
13
executors, administrators, successors and assigns. If there is more than one
Borrower, the liability of each Borrower for the payment and performance of
each obligation under the Loan Documents is joint and several. For the payment
of any Secured Obligations, time is of the essence. Lender and Borrower are not
joint venturers, partners or agents of the other. Lender shall not be liable
for any of the debts or other liabilities contracted by or due from Borrower
and Borrower shall hold Lender free and harmless therefrom.
19. Notices. All notices and other communications relating to this
Agreement shall be made in writing and delivered to Borrower at its chief
executive office (or residence) as represented by Borrower herein and delivered
to Lender c/o Citicorp North America, 0000 Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000, Attention: Program Manager, Phone 800/000-0000, Facsimile
714/250-6990, or to either party at such other address as it gives written
notice of to the other party. Any such notice shall be deemed effective (i)
when delivered, if delivered personally or by receipted-for telex or facsimile
transmission, (ii) two days after delivered (properly addressed and all fees
paid) for overnight delivery service to a courier which regularly provides such
service and regularly obtains executed receipts evidencing delivery, or (iii)
five days after deposited (properly addressed and stamped for certified mail
delivery) in the United States mail.
20. Waiver of Trial by Jury. EXCEPT AS MAY BE PROHIBITED BY LAW,
BORROWER AND LENDER EACH HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION NOW EXISTING OR HEREAFTER ARISING RELATING TO THIS AGREEMENT, THE LOAN,
THE COLLATERAL, ANY OTHER LOAN DOCUMENT, THE FRANCHISEE LOAN PROGRAM, ANY
DEALINGS OR TRANSACTIONS RELATED THERETO, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. IF
THE SUBJECT MATTER OF ANY SUCH LITIGATION IS ONE IN WHICH THE WAIVER OF A JURY
TRIAL IS PROHIBITED, NEITHER BORROWER NOR LENDER SHALL PRESENT A NON-COMPULSORY
COUNTERCLAIM IN SUCH LITIGATION OR ANY CLAIM ARISING OUT OF OR IN CONNECTION
WITH ANY OF THE FOREGOING. FURTHERMORE, NEITHER LENDER NOR BORROWER SHALL SEEK
TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR LENDER'S EXTENSION OF CREDIT TO THE
BORROWER.
21. Final Agreement; Amendments; Construction. THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT OF BORROWER AND LENDER AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN BORROWER AND
LENDER. None of the terms and provisions of this Agreement or any other Loan
Document may be amended, waived or otherwise modified except in writing by the
party to be bound thereby. This Agreement may be executed in any number of
counterparts, all of which taken together will constitute one instrument.
Captions used in any Loan Document are for identification only and are not part
of such Loan Document. Accounting terms not specifically defined in any Loan
Document are to be construed in accordance with generally accepted accounting
principles consistently applied.
22. Severability. If the Lender chooses to waive any covenant,
paragraph, or provision of this Agreement, or if any covenant, paragraph, or
provision of this Agreement is construed by a court of
1.1 Document Reference: SDPC-7258-1
July 17, 1996
14
competent jurisdiction to be invalid or unenforceable, it shall not affect the
applicability, validity, or enforceability of the remaining covenants,
paragraphs, or provisions.
23. Additional Provisions. This Agreement is also subject to the
additional provisions, if any, set forth on Annex VII hereto.
24. Filing. A carbon, photographic or other reproduction of this
Agreement may be used and shall be as effective for filing as the original.
Description of Real Estate if above Collateral includes fixtures: See Annex IV
hereto.
[Remainder of Page Intentionally Left Blank]
1.1 Document Reference: SDPC-7258-1
July 17, 1996
15
If checked, this Agreement is to be filed (for record) in the real estate
records.
BORROWER:
AMERIKING TENNESSEE CORPORATION I, WITNESSES:
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxx /SEAL/ By: /s/ Xxxxxxx X. Xxxxxx /SEAL/
------------------------------- ---------------------------------
Name: Xxxxxxxx X. Xxxx, President Name: Xxxxxxx X. Xxxxxx
----------------------------- --------------------------------
By: /s/ Xxxx Xxxxxx /SEAL/ By: /s/ Xxxxxxx X. Xxxxxx /SEAL/
------------------------------ ----------------------------------
Name: Xxxx Xxxxxx, Secretary Name: Xxxxxxx X. Xxxxxx
---------------------------- --------------------------------
Address:
AmeriKing Tennessee Corporation I
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Federal Employer Identification Number: 00-0000000
FRANCHISE ACCEPTANCE CORPORATION LIMITED
By: /s/ X. XxXXXXXX /SEAL/
------------------------------------------
Title: DIRECTOR
---------------------------------------
By: /s/ X. XXXXXXXX /SEAL/
-----------------------------------------
Title: DIRECTOR
--------------------------------------
Address: Franchise Acceptance Corporation Limited
c/o Grand Metropolitan Finance Ireland
La Xxxxxx Xxxxx
Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
1.1 Document Reference: SDPC-7258-1
July 17, 1996
16
INDEX OF DEFINED TERMS
ACH System.................................................................9
Agreement..................................................................1
Applicable Margin..........................................................2
BKC........................................................................1
Borrower...................................................................1
Cash Flow.................................................................10
Collateral.................................................................4
Credit Enhancers...........................................................1
Default...................................................................11
Disbursing Account.........................................................9
Event of Default..........................................................11
Fixed Charge Coverage Ratio...............................................10
Fixed Rate.................................................................2
Franchise Agreement........................................................1
Franchisee Loan Program....................................................1
Guarantors.................................................................3
Indemnitee................................................................11
Lender.....................................................................1
Loan.......................................................................1
Loan Documents.............................................................2
Mortgage...................................................................3
Note.......................................................................1
Program Rate...............................................................2
Purchaser Agent............................................................1
Purchasers.................................................................1
Related Persons............................................................6
Restaurants................................................................1
Secured Obligations........................................................5
Total Fixed Charges.......................................................10
1.1 Document Reference: SDPC-7258-1
July 17, 1996
17
SCHEDULE, ANNEXES, RIDERS AND EXHIBITS
Schedule 1 - Loans
Annex I - Restaurants and Business Purpose(s) of Loan(s)
Annex II - Fees
Annex III - Additional Conditions Precedent
Annex IV - Additional Collateral; Separate Collateral
Documents; Description of Real Estate
Annex V - Related Persons; Borrower's Financial Statement;
Borrower's Chief Place of Business and Chief
Executive Office; Offices Where Borrower Keeps
Records Concerning Collateral; Locations of
Collateral; Exceptions to Lien Representation
Annex VI - Financial and Tax Reporting Requirements
Annex VII - Additional Provisions
Program Rate Rider
Guaranty Rider
Exhibit A - Form of Term Note
Exhibit B - Form of Construction Note
Exhibit C - Form of Fixed Rate Supplement - Term Loan
Exhibit D - Form of Fixed Rate Supplement - Construction Loan
1.1 Document Reference: SDPC-7258-1
July 17, 1996
18
SCHEDULE 1
to Loan and Security Agreement dated July 18, 1996
between AmeriKing Tennessee Corporation I, a Delaware corporation,
and Franchise Acceptance Corporation Limited
LOANS
($6,100,000.00)
Applicable To Be Disbursed Number of
Principal Amount Margin on or before Disbursements
---------------- ------ ------------ -------------
$6,100,000.00 See Note(s) See Note(s) As defined in the
for Applicable for availability Promissory Note
Margin of funding
LOANS
($900,000.00)
Applicable To Be Disbursed Number of
Principal Amount Margin on or before Disbursements
---------------- ------ ------------ -------------
$900,000.00 See Note(s) See Note(s) As defined in the
for Applicable for availability Promissory Note
Margin of funding
A portion of the Loan will be disbursed in payment of interest accruing on the
Loan prior to the Completion Date, as provided in the related Note.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
S-1
ANNEX I
to Loan and Security Agreement dated July 18, 1996.
between AmeriKing Tennessee Corporation I, a Delaware corporation,
and Franchise Acceptance Corporation Limited
RESTAURANTS
BK #0000 - 000 Xxxxxxxxxxx Xxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
BK #0000 - 000 Xxxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx
BK #4959 - 0000 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
BK #0000 - 0000 Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
BK #0000 - 0000 Xxxxxxx 00, Xxxxxxxxxxx, Xxxxxxxxx
BK #3964 - 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxx
BK #4195 - 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
BK #0000 - 0000 Xxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
BK #5355 - 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
BK #5873 - 0000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxx
BK #3351 - 000 Xxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
BK #4361 - 000 Xxxx 00xx Xxxxxx, Xxxxxxxx, Xxxxxxxx
BK #7885 - 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
BK #9334 - 0000 Xxxx Xxxxxxxxxx Xxxx., Xxxxxxxx, Xxxxxxxx
BK #4690 - 0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx
BK #2942 - 0000 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx
BUSINESS PURPOSE(S) OF LOAN(S)
The proceeds of the Loans will be used only for the following business
purpose(s):
_X__ acquisition of sites for one or more Restaurants approved by BKC,
_X__ upgrades, construction or remodeling of Restaurants,
____ purchase of a Restaurant from BKC or another BKC franchisee,
____ in connection with the development of one or more Restaurants,
refinancing of an existing loan made to the Borrower,
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AI-1
ANNEX II
to Loan and Security Agreement dated July 18, 1996
between AmeriKing Tennessee Corporation I, a Delaware corporation,
and Franchise Acceptance Corporation Limited
FEES
Amount Type Payment Date
------ ---- ------------
$ None Origination Fee at closing
$ 6,000.00* Title, Search and Recording Fees at closing
$30,685.45* Legal Expenses at closing
$13,978.00* UCC Costs/Recording Fees at closing
Any fees denoted with an asterisk indicates that fees are an estimate
only.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AII-1
ANNEX III
to Loan and Security Agreement dated July 18, 1996
between AmeriKing Tennessee Corporation I, a Delaware corporation,
and Franchise Acceptance Corporation Limited
GUARANTORS
AmeriKing Colorado Corporation I, a Delaware Corporation
ADDITIONAL CONDITIONS PRECEDENT
A. TO THE INITIAL INSTALLMENT ON A NOTE
Borrower shall provide Lender, in a form reasonably acceptable to
Lender, evidence of the following documents (as applicable):
(a) Landlord Consent;
(b) Borrower's Certificate of Good Standing from the States
of Delaware, Tennessee and Georgia;
(c) Secretary's Certificate relating to Incumbency and
Corporate Resolutions (Borrower); and
(d) Secretary's Certificate relating to Incumbency and
Corporate Resolutions (Guarantor); and
(e) With respect to a Loan (or portion thereof) for original
construction of any new Restaurant(s), certified survey
of real property;
(f) [Intentionally Omitted];
(g) [Intentionally Omitted]; and
(h) Opinion of counsel for Borrower and the Guarantors, to be
provided on or before August 18, 1996.
B. TO SUBSEQUENT INSTALLMENTS ON A NOTE
Borrower shall provide Lender, in a form reasonably acceptable to
Lender, evidence of the following documents (as applicable):
(a) All material invoices, bills, construction contracts and
other agreements relating to construction;
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIII-1
(b) Lien waivers;
(c) Certificates of Occupancy; and
(d) Building Permits
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIII-2
ANNEX IV
to Loan and Security Agreement dated July 18, 1996
between AmeriKing Tennessee Corporation I, a Delaware corporation,
and Franchise Acceptance Corporation Limited
ADDITIONAL COLLATERAL
None.
SEPARATE COLLATERAL DOCUMENTS
(a) Eight (8) UCC-1 Financing Statements with attachment, to be filed with
the clerk and recorder of the counties of Catoosa and Xxxxxx, State of
Georgia, and the counties of Xxxxxxx, Xxxxxxxx and XxXxxx, State of
Tennessee and the Tennessee and Georgia Secretary of State,
respectively.
(b) One (1) Conditional Assignment of Franchise Agreements.
(c) One (1) Conditional Assignment of Leases.
(d) Three (3) First Amendment to Leasehold Deed of Trust, Assignment of
Leases and Rents, Security Agreement and Financing Statement to be
filed with the clerk and recorder of Boulder, Larimer and Weld
Counties, respectively.
(e) Three (3)Leasehold Deeds of Trust, Assignments of Leases and Rents,
Security Agreement and Financing Statement to be filed with the
Register of Deeds of the counties of Xxxxxxx, Xxxxxxxx and XxXxxx,
Tennessee.
(f) Two (2) Leasehold Deeds to Secure Debt, Assignment of Leases and Rents
and Security Agreement to be filed with the clerk of the Superior
Court of the counties of Catoosa and Xxxxxx, State of Georgia.
DESCRIPTION OF REAL ESTATE
1. BK #4361
Owner: White II Investments, LLC, a Colorado limited liability company
Property: Xxx Xxx, Xxxxx Xxx, Xxx Xxxxxx Xxxxxxx, Xxxxxx of Larimer,
State of Colorado, known and identified as 000 Xxxx 00xx Xxxxxx,
Xxxxxxxx, Xxxxxxxx.
2. BK #7885
Owner: White III Investments, LLC, a Colorado limited liability
company
Property: Xxx 0, Xxxx Xxxxxx Xxxxxx Xxxxxxxxxxx, Xxxxxx X, Xxxx 0 and
7, County of Boulder, State of Colorado, known and identified as 0000
Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-1
3. BK #9334
Owner: White I Investments, LLC, a Colorado limited liability company
Property: Xxx 0 Xxxxxxxx Xxxxxxxxxxx, Xxxx xx Xxxxxxxx, Xxxxxx of
Larimer, State of Colorado, known and identified as 0000 Xxxx
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx.
4. BK #4690
Owner: Longs Peak BK, a Colorado general partnership Property: Xxx
00X, Xxxx Xxxxx Xxxx Subdivision Replat "A", County of Boulder, State
of Colorado, known and identified as 0000 Xxxxx Xxxxx, Xxxxxxxx,
Colorado.
5. BK# 2942
Owner: The Estate of Xxxx X. X. Xxxxxxx
Property: Known and identified as 0000 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx
PARCEL A That part of the Southwest 1/4 of Section 17, Township 5
North, Range 65 West of the 6th Principal Meridian, Greeley, Weld
County, Colorado, more particularly described as follows: Commencing
at the Southwest corner of Section 17, Township 5 North, Range 65 West
of the 6th Principal Meridian; thence North 00(degree) 33' 00" West,
297.04 feet along the West line of Section 17, said line also being
the center line of 11th Avenue; thence North 89(degree) 27' 00" East,
50.00 feet to the True Point of Beginning, said point being on the
Eastern Right-of- Way of 11th Avenue; thence North 00(degree) 33' 00"
West, along said Eastern Right-of-Way of 11th Avenue, 70.00 feet;
thence North 89(degree) 27' 00" East, 175.00 feet; thence South
00(degree) 33' 00" East, 70.00 feet; thence South 89(degree) 27' 00"
West, 175.00 feet to the True Point of Beginning. PARCEL B - An
Exclusive Sign Easement over the following: That part of the Southwest
1/4 of Section 17, Township 5 North, Range 65 West of the 6th
Principal Meridian, Greeley, Weld County, Colorado, more particularly
described as follows: Commencing at the Southwest corner of Section
17, Township 5 North, Range 65 West of the 6th Principal Meridian;
North 00(degree) 33' 00" West, 117.70 feet along the West line of
Section 17, said line also being the center line of 11th Avenue;
thence North 89(degree) 27' 00"East, 50.00 feet to the True Point of
Beginning, said point being the intersection of Easterly Right-of-Way
line of said 00xx Xxxxxx and the Northerly Right-of-Way line of U.S.
34 By-Pass; thence along said Easterly Right-of-Way line of 11th
Avenue North 00(degree) 33' 00" West, 20.00 feet; thence North
89(degree) 27' 00" East, 15.00 feet; thence South 00(degree) 33' 00"
East, 21.88 feet to a point on the aforementioned Northerly
Right-of-Way line of U.S. 34 By-Pass; thence along said Northerly
Right-of-Way line of U.S. 34 By-Pass North 83(degree) 24' 10" West,
15.12 feet to the True Point of Beginning. PARCEL C - An Exclusive
Utility Easement over the following: That part of the Southwest 1/4 of
Section 17, Township 5 North, Range 65 West of the 6th Principal
Meridian, Greeley, Weld County, Colorado, more particularly described
as follows: Commencing at the Southwest corner of Section 17, Township
5 North, Range 65 West of the 6th Principal Meridian; North 00(degree)
33' 00" West 297.04 feet along the West line of Section 17, said line
also being the center line of 11th Avenue; thence North 89(degree) 27'
00" East, 50.00 feet to the True Point of Beginning, said point being
on the Eastern Right-of- Way of 11th Avenue; thence continuing North
89(degree) 27' 00" East, 10.00 feet; thence South 00(degree)
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-2
33' 00" East, 159.34 feet; thence South 89(degree) 27' 00" West, 10.00
feet to a point on the aforementioned Easterly Right-of-Way line of
00xx Xxxxxx; thence along said Easterly Right-of-Way line North
00(degree) 33' 00" West, 159.34 feet to the True Point of Beginning.
PARCEL D - A non-exclusive easement for ingress, egress, parking and
utilities over the unconstructed portions of the following: A tract of
land located in the Southwest Quarter (SW1/4) of Section 17, Township
5 North, Range 65 West of the Sixth Principal Meridian, Weld County,
Colorado, and being more particularly described as follows: Commencing
at the Southwest corner of said Section 17, and considering the West
line of said Section 17 to bear North 00(degree) 33' 00" West and with
all other bearings contained herein being relative thereto; thence
North 00(degree) 33' 00" West, along the West line of said Section 17
and also the centerline of 11th Avenue, City of Greeley, 117.70 feet;
thence North 89(degree) 27' 00" East, 50.00 feet to the intersection
of the East right-of-way line of said 00xx Xxxxxx and the North
right-of-way line of U.S. Highway No. 34 Bypass, said intersection
being the True Point of Beginning; thence North 00(degree) 33' 00"
West, along the East right-of-way line of said 11th Avenue, 861.76
feet; thence North 89(degree) 57' 30" East, 214.7 feet; thence North
00(degree) 33' 00" West, 244 feet to the South right-of-way line of
00xx Xxxxxx, Xxxx of Greeley; thence North 89(degree) 57' 30" East,
along the South right-of-way line of said 00xx Xxxxxx 790.3 feet to a
point on the West right-of-way line of 9th Avenue, City of Greeley;
thence South 00(degree) 01' 10" East, along the West right-of-way line
of said 0xx Xxxxxx 699.8 feet; thence South 89(degree) 57' 30" West,
190.5 feet; thence South 00(degree) 01' 10" East, 300 feet; thence
North 89(degree) 57' 30" East, 190.5 feet to the West right-of-way
line of said 0xx Xxxxxx; thence South 00(degree) 01' 10" East, along
said West right-of-way line, 217.33 feet to the North right-of-way
line of U.S. Highway No. 34 Bypass; thence along the North
right-of-way of said U.S. Highway No 34 Bypass by the following three
(3) courses and distances:
South 89(degree) 30' 25" West, 305 feet; North 73(degree) 09'
30" West, 209.3 feet;
North 82(degree) 10' 00" West, 482.2 feet to the True Point
of Beginning, LESS AND EXCEPT Parcels A, B and C above.
6. BK# 2585
Owner: Burger King Operating Limited Partnership Property: Known and
identified as 000 Xxxxxxxxxxx Xxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
Legal Description
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx
0xx Xxxxxxxx, 0xx Section of Catoosa County, Georgia and being more
particularly described as follows:
Beginning at a concrete right of way marker at the
intersection of the westerly right of way of Van Xxxxx Street
(50 foot right of way) and the northerly right of way of
Battlefield Parkway a/k/a Georgia Highway No. 2 (100 foot
right of way) and running thence North 76(degree) 02' 14"
West along the northerly right of way of Battlefield Parkway
a distance of 190 feet to a point; running thence North
01(degree) 08' 07" East a distance of 180 feet to a point;
running thence South 89(degree) 44' 14" East a distance of
185 feet to a point on the westerly right of way of Van Xxxxx
Street; running thence South 01(degree) 03' 51"
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-3
West along the westerly right of way of Van Xxxxx Street a
distance of 225 feet to a concrete right of way marker and
the point of beginning.
Together with a non-exclusive easement for ingress, egress and parking
on, over and across those portions of the property described
hereinbelow devoted to such purposes for so long as said property is
used as a commercial shopping center: All that certain tract or parcel
of land lying and being in Land Xxx 00 xx xxx 0xx Xxxxxxxx, 0xx
Section of Catoosa County, Georgia and being more particularly
described as follows:
Beginning at a point on the northerly right of way of
Battlefield Parkway a/k/a Georgia Highway No. 2 (100 foot
right of way) a distance of 190 feet as measured along said
right of way from the intersection of said right of way and
the westerly right of way of Van Xxxxx Street (50 foot right
of way) running thence North 76(degree) 02' 14" West along
the northerly right of way of Battlefield Parkway a distance
of 260.47 feet to a point; running thence North 00(degree)
39' 00" West a distance of 174 feet to a point; running
thence North 76(degree) 02' 14" West a distance of 150 feet
to a point; running thence North 00(degree) 39' 00" West a
distance of 455.77 feet to a point; running thence North
89(degree) 21' 00" East a distance of 604.43 feet to an iron
pin located on the westerly right of way of Van Xxxxx Street;
running thence South 01(degree) 03' 51" West along the
westerly right of way of Van Xxxxx Street a distance of
556.61 feet to a point; running thence North 89(degree) 44'
14" West a distance of 185 feet to a point; running thence
South 01(degree) 08' 07" West a distance of 180 feet to a
point on the northerly right of way of Battlefield Parkway
and the point of beginning.
7. BK# 2769
Owner: Burger King Corporation
Property: Known and identified as 000 Xxxxx Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxx
Legal Description
All that tract or parcel of land lying and being in Land Xxx Xx. 000
of the 14th District and 3rd Section of Xxxxxx County, Georgia, and
being more particularly described as follows: BEGINNING at the point
formed by the prolongation of the Northwesterly right of way of U.S.
Highway 41/Georgia 53 Connector (60 ft. right of way) and the
Southwestern existing right of way of South Wall Street - U.S. 41 (60
ft. right of way); thence running along the West right of way of South
Wall Street following the curvature to the right an arc distance of
75.75 feet; said arc subtending a chord bearing North 36 degrees 43
minutes 56 seconds West for 75.75 feet to a point and the TRUE POINT
OF BEGINNING. Thence continuing along said right of way an arc
distance of 152.25 feet, said arc subtending a chord bearing North 34
degrees 17 minutes 02 seconds West for 152.23 feet to a point, said
point being 144.02 feet Southeasterly along the right xx xxx xx Xxxxx
Xxxx Xxxxxx from the centerline of May Street; thence departing said
right of way and running South 40 degrees 32 minutes 09 seconds West
for 185.00 feet to a point; thence running South 33 degrees 20 minutes
39 seconds East for 187.00 feet to the right of way of U.S. 41/Georgia
53 Connector; thence running North 53 degrees 23 minutes 22 seconds
East along the right of way for 163.01 feet to a point; thence
continuing along said right of way following the curvature to the left
of an arc distance of 14.12 feet, said arc subtending a chord bearing
North 08 degrees 06 minutes 52 seconds East for 13.99 feet to a point;
thence continuing North 37 degrees 09 minutes 38
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-4
seconds West for 15.73 feet to a point; thence running North 53
degrees 00 minutes 27 seconds East for 5.00 feet to a point; thence
continuing North 28 degrees 29 minutes 48 seconds West for 50.55 feet
to a point and the point of beginning. There being a plat of survey of
the above described property entitled "Survey for Burger King
Corporation" prepared by Xxxxxxx X. Xxxxxx, Surveyor, Xxxxxxx &
Associates, dated June 6, 1979, recorded in the Office of the Clerk of
the Superior Court of Xxxxxx County, Georgia in Plat Book No. 11, Page
20, to which said plat and record thereof reference is hereby made for
a full and complete description of said lands. Said tract containing
0.845 acres according to said plat of survey. Subject to any and all
reservations, restrictions, easements, rights of way, limitations and
conditions of record.
8. BK# 4959
Owner: Evealyn Little Xxxxxxx
Property: Known and identified as 0000 00xx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx
Legal Description
BEING all of Lot 3 and Part of Lot 4 as laid out in the Revised
Addition to the XXXXXXX IV ADDITION, which plat is duly of record in
Plat Book 3, page 158, in the Register's Office of Xxxxxxx County,
Tennessee: Said Lot 3 is more particularly described as follows:
BEGINNING at an iron post in the Northwest corner of Lot 3, which
point is in the East right of way of Little Street and the South right
xx xxx xx 00xx Xxxxxx; thence extending in an easterly direction with
and along the right of way of 00xx Xxxxxx 79.3 feet to a right of way
marker; thence South 51(degree) 14' East with and along the right of
way of 00xx Xxxxxx 222.4 feet to a right of way marker; thence South
78(degree) 56' West 218.1 feet to an iron post; thence North
50(degree) 13' West 131.5 feet to an iron post in the right of way of
Little Street; thence extending North 27(degree) 15' East with said
right of way 150 feet to the point of BEGINNING. Part of Lot 4 is more
particularly described as follows: BEGINNING at an iron post in the
East right of way of Little Street, which point is in the Northwest
corner of Lot 4 and the Southwest corner of Lot 3; thence South
27(degree) 15' West with and along the right of way of Xxxxxx Xxxxxx
000 feet to an iron post in the Northwest corner of a 30 foot common
drive to be hereinafter described; thence extending in an easterly
direction with and along the North line of said common drive 130 feet,
more or less, to an iron post; thence North 27(degree) 15' East 75
feet, more or less, to an iron post in the most southern point of Lot
3; thence North 50(degree) 13' West with and along the South line of
Lot 3, 131.5 feet to the point of BEGINNING. ALSO included is a common
drive 30 feet in width BEGINNING at an iron post in the Southwest
corner of part of Xxx 0 xxx xxx Xxxx xxxxx xx xxx xx Xxxxxx Xxxxxx;
thence extending in an easterly direction with the South line of part
of Lot 4, 130 feet, more or less, to an iron post; thence extending in
a southern direction 30 feet to an iron post; thence extending in a
westerly direction 130 feet, more or less, to an iron post in the
right of way of Little Street; thence extending in a northerly
direction with and along Xxxxxx Xxxxxx 00 feet to the point of
BEGINNING. IN CONSIDERATION of the common drive, the Lessee agrees to
pave and maintain said drive for the use and benefit of both the
Lessors and Lessee.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-5
BEING part of the real estate conveyed to Xxxxxxx Xxxxxxx Xxxxxx by
deed duly of record in Deed Book 194, page 235, and by deed of Xxxx
Xxxxxxx dated January 3, 1985, duly of record in Deed Book 290, page
461, both of record in the Register's Office of Xxxxxxx County,
Tennessee.
9. BK# 2657
Owner: Xxxx X. Xxxxx
Property: Known and identified as 0000 Xxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxx
Legal Description
This property is located in East Ridge, Tennessee in Xxxxxxxx County
and is described as Xxxx 0 xxxx 0 Xxxxx "X", X. E. Smiths P.B. 9 Pg
45, and located on the Xxxxxxxxx Tax Map #169-L Block M lots 13 & 14.
Subject to any and all reservations, restrictions, easements, rights
of way, limitations and conditions of record.
10. BK# 2995
Owner: Burger King Operating Limited Partnership
Property: Known and identified as 0000 Xxxxxxx 00, Xxxxxxxxxxx,
Xxxxxxxxx
Legal Description
All that tract or parcel of land lying and being in the Second Civil
District of Xxxxxxxx County, Tennessee and being more particularly
described as follows: Commencing at a concrete monument that marks the
northern most corner of Xxxxxx Xxxxx Shopping Center Property; thence
running S 73(degree) 04' W along the southern line of a 60' Access
Road, also known as Oak Hill Road, 100.00' to an iron pin and the TRUE
POINT OF BEGINNING; thence departing the southern line of said Access
Road and running S 18(degree) 04' E for 249.00' to a nail and cap at
the front of a curb line and on the northern Right-of-Way of Xxxxx
Xxxxxxx Xx. 00; thence running southwesterly along the Right-of-Way of
said highway following the curvature to the left an arc distance of
169.4' more or less, said arc subtending a chord bearing S 71(degree)
28' W for 169.15' to an iron pin; thence departing said R/W and
running N 17(degree) 04' W for 253.70' to a fence corner located on
the southern line of the 60' Access Road; thence running N 73(degree)
04' E along the southern line of said Access Road for 164.80' to an
iron pin and the POINT OF BEGINNING.
Said tract containing 41,963 square feet or 0.963 acres.
Subject to any and all reservations, restrictions, easements, rights
of way, limitations and conditions of record.
11. BK# 3964
Owner: Burger King Corporation
Property: Known and identified as 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxx
Legal Description
IN XXX XXXX XX XXXXXXXXXXX, XXXXXXXX XXXXXX, XXXXXXXXX: Lot No. One
(1), Burger Xxxx-Xxxxxx Xxxx Subdivision, as recorded in Plat Book 37,
Page 323, in the Register's Office of Xxxxxxxx County, Tennessee,
being a part of Tract Two (2), as described in Deed to Xxxxx X.
XxXxxxxx, as Trustee under Trust Agreement executed by Xxxxx Xxxxxx,
dated September 5, 1975, said Deed bearing date of December 30, 1977,
and being of record in Book 2473, Page 605, in the Register's Office
of Xxxxxxxx County, Tennessee,
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-6
and more particularly described as follows: Beginning on a point on
the Southeastern right-of-way line of Xxxxxx Pike (80-foot
right-of-way), said point being located South 50 degrees 49 minutes
West, a distance of 969.39 feet from the intersection of the Southern
right-of-way of Brunswick Lane (50-foot right-of-way), said point of
beginning being also in the most Western front corner of Lot One (1),
Chrysler Realty Corp. Subdivision, as shown by plat of record in Plat
Book 33, Page 261, in said Register's Office; thence along the
Southwestern line of said Lot No. 1, and being also along the
Southwestern line of property of Xxxxx- Xxxxxxx, Inc., as recorded in
Book 2684, Page 498, in said Register's Office, South 39 degrees 11
minutes East 230 feet to a corner of said Lot No. 1, Chrysler Realty
Corp. Subdivision, at an iron pin, and being the Eastern-most corner
of Tract 2, described in Deed recorded in Book 2473, Page 605,
aforesaid; thence along a Northwest line of said Lot No. 1, Chrysler
Realty Corp. Subdivision, the Xxxxx-Xxxxxxx, Inc. property, and being
the Southeast line of Tract No. 2, as described in Book 2473, Page
605, aforesaid, South 50 degrees 49 minutes West 155 feet to an iron
pin; thence North 39 degrees 11 minutes West, along the line dividing
Lots Nos. 1 and 2 of Burger Xxxx-Xxxxxx Xxxx Subdivision, a distance
of 230 feet to the Southeastern right-of-way line of Xxxxxx Pike;
thence North 50 degrees 49 minutes East along said Southeastern line
of Xxxxxx Xxxx 155 feet to the point of beginning.
Being a part of Tract Two (2) as described in Deed recorded in Book
2473, Page 605, in the Register's Office of Xxxxxxxx County, Tennessee.
TOGETHER WITH a perpetual Easement, as herein created and granted, to
be an Easement appurtenant to the above-described property, running
with the land, particularly described as follows: Beginning at the
Southeastern or extreme Eastern corner of Lot 2, of the Burger Xxxx-
Xxxxxx Xxxx Subdivision, as recorded in Plat Book 37, Page 323, in the
Register's Office of Xxxxxxxx County, Tennessee; thence along the
Southeast line of Lot No. 2, of said Subdivision, South 50 degrees 49
minutes West, a distance of 32.74 feet to a point, being the Southern-
most corner of said Lot 2; thence North 69 degrees 05 minutes West,
along the Southwestern line of said Lot No. 2, and being the
Northeastern line of Xxx Xx. 0, Xxxxxxxxx Xxxx Subdivision, as recorded
in Plat Book 35, Page 365, in said Register's Office, a distance of
11.53 feet to a point; thence North 50 degrees 49 minutes East, a
distance of 38.49 feet to a point on the Southwestern line of Lot 1, of
said Burger Xxxx-Xxxxxx Xxxx Subdivision; thence along said line, South
39 degrees 11 minutes East a distance of 10.00 feet to the point of
beginning; and,
TOGETHER WITH right to share in the use of the 10-foot Drainage
Easement along the most Southwestern line of the property conveyed
from Xxxxx Xxxxx Austin and First Presbyterian Church of Chattanooga
to Chrysler Realty Corporation, recorded in Book 2196, Page 917, in
the Register's Office of Xxxxxxxx County, Tennessee, under the
provisions in said Deed, to-wit: "Subject to ten (10) foot Drainage
Easement along the most Southwestern line of the herein described
property, as shown on Survey No. E67 of X. X. Xxxxxx Surveying
Company, Inc., dated January 21, 1974, and revised April 13, 1974";
The aforesaid Drainage Easement being for the purpose of drainage of
surface waters from the hereinabove described lot, including the
waters flowing thereon through existing storm sewer facilities, as
shown on Plat of Burger Xxxx-Xxxxxx Xxxx Subdivision, recorded in Plat
Book 37, Page 323, in the Register's Office of Xxxxxxxx County,
Tennessee.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-7
The above described Real Estate is conveyed subject to a Storm Sewer
Easement now existent, located thereon, as shown in Plat Book 37, Page
323, in the Register's Office of Xxxxxxxx County, Tennessee, said
Storm Sewer Drainage Easement as located on Lot No. 1, being described
as follows: Beginning at a point on the Southeastern right-of-way line
of Xxxxxx Pike (80-foot right-of-way), said point being located South
50 degrees 49 minutes West, a distance of 969.39 feet from the
intersection of the Southern right-of-way of Brunswick Lane (50-foot
right-of-way)' thence South 39 degrees 11 minutes East along the
Northeastern line of Xxx 0, Xxxxxx Xxxx-Xxxxxx Xxxx Subdivision, as
recorded in Plat Book 37, Page 323, in the Register's Office of
Xxxxxxxx County, Tennessee, a distance of 5.04 feet to a point; thence
South 48 degrees 32 minutes West, a distance of 145.50 feet to a
point; thence South 45 degrees 44 minutes East, a distance of 220.62
feet to a point on the Southeastern line of said Lot No. 1; thence
South 50 degrees 49 minutes West a distance of 34.82 feet to a point,
being the Southern-most corner of said Lot No. 1; thence North 39
degrees 11 minutes West along the line between Lot No. 1 and Lot No.
2, of said Burger Xxxx-Xxxxxx Xxxx Subdivision, a distance of 10.00
feet to a point; thence North 50 degrees 49 minutes East a distance of
23.60 feet to a point; thence North 45 degrees 44 minutes West a
distance of 206.64 feet to a point located on said line between Xxx
Xx. 0 xxx Xxx Xx. 0; thence North 39 degrees 11 minutes West, along
said line, a distance of 14.71 feet to a point located on the
Southeastern right-of-way of Xxxxxx Pike; thence North 50 degrees 49
minutes East along said right-of-way, a distance of 155.00 feet to the
point of beginning; Said Drainage Easement is subject to drainage of
water from the extreme Northern corner of said Lot No. 1 into said
Storm Sewer Easement, and the waters extending from the Southeast line
of Xxxxxx Xxxx across the most Northern corner of Lot No. 2, of said
Burger Xxxx-Xxxxxx Pike Subdivision, and into said Storm Sewer. The
Easement is to constitute a burden on the herein conveyed lot (and
being specifically an Easement reserved for the use and benefit of Lot
No. 2, to be an Easement appurtenant thereto), and to run with the
Land. It is also stipulated and provided that City of Chattanooga,
Tennessee, shall have a vested interest in said Easement, with the
right to require the same to be kept and maintained, and to utilize
the same in drainage of surface waters, in the same form and manner as
the same is now being done, but with the express stipulation that the
maintenance of said Easement shall be the liability and obligation of
Burger King Corporation, its successors or assigns, and the City of
Chattanooga, Tennessee, shall have no obligation or liability relative
to the maintenance thereof.
It is further understood and agreed that Burger King Corporation, its
successors or assigns, shall have the full right and privilege of
paving over said Drainage Easement, at such places and locations as it
may from time to time determine, but with the further provision that if
it is required in the maintenance of the storm sewer pipeline to take
up any portion or portions of such pavement, this will also be the
obligation and liability of said Burger King Corporation, its
successors or assigns.
Subject to any and all restrictions, reservations, easements, rights of
way, limitations and conditions of record.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-8
12. BK# 4195
Owner: Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx
Property: Known and identified as 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxx
Legal Description
All those tracts or parcels of land lying and being in the City of
Chattanooga, Xxxxxxxx County, Tennessee, being more particularly
described as:
TRACT ONE: Xxxx 0 xxx 0, Xxxxx X, Xxxxxxxxx Xxxx of Block M, Brainerd
Park as shown by plat recorded in Plat Book 14, Page 85 in the
Register's Office, Xxxxxxxx County, Tennessee, AND Lot 1, Mission
Subdivision on Brainerd Road as shown by plat recorded in Plat
Book 9, Page 32, said Register's Office. Excepting the southern 10
feet of said Lot 1, Mission Subdivision taken in widening Brainerd
Road to a width of 80 feet. According to said plats, said three lots
form one parcel of land, particularly described according to said
plats, and according to said plats, and according to plat of survey by
G. B. Xxxxxx, Engineer, dated October 16, 1959, as follows: Beginning
at a concrete monument in the eastern line of North St. Marks Avenue,
being the northwest corner of Xxx 0, xx Xxxxx X, Xxxxxxxx Park; thence
along the eastern line of Xxxxx Xx. Xxxxx Xxxxxx, Xxxxx 00 degrees 45
minutes West a distance of 125.22 feet to the beginning of a curve
formed at the intersection of North St. Marks Avenue and Brainerd
Road; thence around said curve to the left, turned on a radius of 25
feet, the arc of the curve being 39.49 feet in length, to the end of
said curve in the northern line of Brainerd Road; thence along the
northern line of Brainerd Road South 65 degrees 45 minutes East a
distance of 176.57 feet to an iron pipe marking the present southeast
corner of Lot 1, Mission Subdivision; thence along the eastern line of
said Lot 1, Mission Subdivision, North 23 degrees 45 minutes East
133.7 feet to the southern line of what was formerly a 15-foot alley
(abandoned by Instrument of record in Book H, Vol. 22, Page 427, said
Register's Office); thence North 65 degrees 45 minutes West, along the
southern line of said abandoned alley, a distance of 51.35 feet to a
point in the line dividing Xxx 0, Xxxxx X, Xxxxxxxx Xxxx from Lot 1,
Mission Subdivision; thence along the eastern line of said Xxx 0,
Xxxxx X, Xxxxxxxx Xxxx, Xxxxx 23 degrees 45 minutes East a distance of
16.3 feet to a concrete monument marking the northeast corner of said
Lot 2; thence along the northern line of Lots Nos. 2 and 1, Block M,
said Brainerd Park, North 65 degrees 45 minutes West 150 feet to the
point of beginning.
TOGETHER with all rights, title and interest in and to the southern 7.5
feet of that portion of the abandoned alley hereinabove referred to,
becoming appurtenant to Lot 1, Mission Subdivision by reason of such
abandonment thereof, as will appear by reference to Book H, Vol. 22,
Page 427, said Register's Office, further by reference to Instrument
executed by W. A. XxXxxxx, dated January 2, 1960, and further under
Ordinance No. 5068, adopted by City of Chattanooga on April 12, 1960.
Being the same property conveyed by deed recorded in Book 2418, Page
755, said Register Office.
TRACT TWO: Parcel 1 of Payless Subdivision as shown on plat recorded in
Plat Book 37, Page 88, said Register's Office. According to said plat
said parcel fronts 25 feet on the north line of Brainerd Road and
extends back between parallel lines, on a bearing of North 23 degrees
07 minutes East, its west line 135.64 feet; its east line 136.21 feet
to the north line of the subdivision, on which it is shown to have a
footage of 25 feet. Being the same property conveyed by deed recorded
in Book 2887, Page 697, said Register's Office.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-9
13. BK# 4445
Owner: Burger King Limited Partnership III
Property: Known and identified as 0000 Xxx Xxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx
Legal Description
Located in the City of Chattanooga of Xxxxxxxx County, Tennessee.
Tract C, Xxxxxx, Xxxxxxx & Associates Subdivision, as shown by plat of
record in Plat Book 34, Page 54, Register's Office of Xxxxxxxx County,
Tennessee. According to said plat said lot is more particularly
described as follows: BEGINNING at a point in the Northwest
right-of-way line of Xxx Highway, said point being located North
fifty-two (52) degrees fourteen (14) minutes East along said
right-of-way line, seven hundred eight and nine-tenths (708.9) from
its intersection with the Northeast right-of-way line of Xxxxxx Xxxx;
thence leaving said right-of-way line, North forty-nine (49) degrees
eleven (11) minutes West ninety-five and forty-five hundredths (95.45)
feet to a point; thence North twenty-three (23) degrees twenty-four
(24) minutes East one hundred ninety (190) feet to a point; thence
South forty- seven (47) degrees forty-two (42) minutes East, one
hundred eighty-eight (188) feet to a point in the Northwest
right-of-way line of Xxx Highway; thence South fifty-two (52) degrees
fourteen (14) minutes West along said right-of-way line, one hundred
eighty (180) feet to the point of beginning.
The above described property contains 25,318 sq. ft. (0.581) ac).
Reference for prior title is made to Book 2721, page 848 in said
Register's Office.
14. BK# 5355
Owner: Xxxxxxx Xxxxxx
Property: Known and identified as 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx
Legal Description
Land lying and being in the City of Chattanooga, Xxxxxxxx County,
Tennessee, and being part of Xxx 00, Xxx 00, Xxx 00, and part of Lot
13, Xxxxxx and Xxxxxxxx'x Subdivision, as shown by plat of record in
Plat Book 5, Page 51, in the Register's Office of the aforesaid
county, and being more fully described as follows:
BEGINNING at a point in the northern right-of-way of East 23rd Street
(Palmetto) as widened by deed unto the City of Chattanooga, Tennessee,
as recorded in Deed Book 1935, Page 498 in the aforesaid Register's
Office, where said line is intersected by the western line of an unopen
ten (10) foot alley as shown on the aforedescribed plat; then thence
north sixty-six (66) degrees, nineteen (19) minutes west along the said
southern right-of-way of East 23rd Street, one hundred ten and
seven-tenths (110.7) feet to a point; thence northwardly and
northeastwardly in a curve to the right along a line forming the
rounding of the intersection of the northern line of East 23rd Street
with the eastern line of Willow Street, said curve having a radius of
thirty and no tenths (30.0) feet, an arc distance of forty-seven and
five- hundredths (47.05) feet to a point; thence north twenty-three
(23) degrees, thirty-three (33) minutes east along the eastern line of
Willow Street, one hundred twenty-five and seventy-one hundredths
(125.71) feet to a point; thence south sixty-six (66) degrees,
thirty-eight (38) minutes east, one hundred forty and
thirty-six-hundredths (140.36) feet to a point in the western line of
the aforedescribed ten (10) foot alley; thence south twenty-three (23)
degrees, twenty-seven (27) minutes west along the western line of said
alley one hundred fifty-six and forty-one-hundredths (156.41) feet to
the point of BEGINNING, containing twenty-one
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-10
thousand, seven hundred twenty-eight (21,728) square feet or
fifty-hundredths (0.50) acres, more or less.
15. BK# 3351
Owner: Burger King Corporation, a Florida corporation
Property: Known and identified as 000 Xxxxxx Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxx
Legal Description
IN XXX XXXX XX XXXXXXXXXXX, XXXXXXXX XXXXXX, XXXXXXXXX:
All that certain tract or parcel of land situated, lying and being in
Xxxxx, Xxxxxxxx County, Tennessee, and being Lot Two (2) as shown on
Corrective Plat of the Resubdivision of Lots 1 and 2, of the Final
Plat of K-Mart Subdivision on Mountain Creek Road, as shown by Plat
filed for record September 24, 1981, recorded in Plat Book 34, Page
80, in the Register's Office of Xxxxxxxx County, Tennessee, and being
more particularly described as follows: Commencing at an iron pin
located at the intersection of the Eastern right-of-way of Mountain
Creek Road (60' R/W) and the Eastern right-of-way of Signal Xxxxxxxx
Xxxxxxxxx, X.X. Xxxxxxx Xx. 000 (80' R/W); thence running
Southeasterly along the Eastern right-of-way of Signal Mountain
Boulevard following the curvature to the left an arc distance of
112.50', said arc subtending a chord bearing S 20(degree) 16' E for
112.40', said arc having a radius of 756.78'; thence continuing along
said right-of-way in a Southeasterly direction following the curvature
to the right an arc distance of 84.34', said arc subtending a chord
bearing S 13(degree) 21' E for 84.30', said arc having a radius of
756.78', to an iron pin and the TRUE POINT OF BEGINNING; thence
departing said right-of-way and running N 56(degree) 52' E for 176.05'
to a monument; thence running S 50(degree) 12' E for 205.0' to a
monument; thence running S 24(degree) 48' W for 88.30' to a point on
the Northern right-of-way of Xxxxx Street; thence running
Southwesterly along the Northern right-of-way of Xxxxx Street
following the curvature to the left an arc distance of 106.96', said
arc subtending a chord bearing S 88(degree) 45' W for 106.87' to a
point; thence continuing along said right-of-way S 84(degree) 45' W
for 80.34' to a point; thence continuing along said right-of-way N
89(degree) 42' W for 43.47' to a point; thence running Northwesterly
following the curvature to the right of the radiused intersection of
the Northern right-of-way of Xxxxx Street and the Eastern right-of-way
of Signal Mountain Boulevard, an arc distance of 36.32', said arc
subtending a chord bearing N 45(degree) 16' W for 35.36', said arc
having a radius of 45.5', to a point on the Eastern right-of-way of
Signal Mountain Boulevard; thence running Northwesterly along the
Eastern right-of-way of Signal Mountain Boulevard following the
curvature to the left an arc distance of 100.54', said arc subtending
a chord bearing N 07(degree) 07' W for 100.46' to an iron pin and the
POINT OF BEGINNING.
TOGETHER WITH all rights and privileges made appurtenant to the
hereinabove described premises by Instrument executed by Xxxxxx,
Xxxxxxx and Associates, Ltd., et al, recorded in Book 2717, Page 967,
as amended by instrument recorded in Book 2784, Page 544, both in the
Register's Office of Xxxxxxxx County, Tennessee; and,
SUBJECT TO the provisions of said instruments, as the same constitute
a burden on the herein described premises.
REFERENCE is made for prior title book 2716, Page 437, in the
Register's Office of Xxxxxxxx County, Tennessee.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-11
SUBJECT TO Governmental zoning and subdivision ordinances or
regulations in effect thereon, and taxes for the year 1982 and
thereafter.
SUBJECT TO City of Chattanooga Sanitary Sewer Easement recorded
in Book 1874, Page 241, in the Register's Office of Xxxxxxxx
County, Tennessee, as located within the boundaries of said lot.
SUBJECT TO Easement and right-of-way acquired by United States of
America, upon the relation and for the use of the Tennessee Valley
Authority, under Decree in cause No. 4113 in the United States
District Court for the Eastern District of Tennessee, Southern
Division, a certified copy of Declaration of Taking appearing of
record in Book 1536, Page 368, and a certified copy of the Final
Judgment in said case being of record in Book 1594, Page 250, in the
Register's Office of Xxxxxxxx County, Tennessee, with partial
abandonment by instrument recorded in Book 2775, Page 643, in said
Register's Office, and grant of additional transmission line easement
by instrument recorded in Book 2778, Page 135, in said Register's
Office.
Plat of Survey of the property by Xxxxxxx & Associates, File
No. 80175-S, last dated October 21, 1981, and also Subdivision Plat in
Plat Book 34, Page 80, in the Register's Office of Xxxxxxxx County,
Tennessee, show the following Easements and rights-of-way crossing the
Western portion of the property, subject to which this conveyance is
made, to-wit:
(a) Underground telephone cable line;
(b) Electric power service line; and
(c) Storm drainage facility.
SUBJECT TO any and all right, title and interest of the City of
Chattanooga in and to all that portion of the property described
herein lying within twenty-five (25) feet of the existing Easterly
right-of-way of Signal Mountain Boulevard, U.S. Highway No. 27
(80-foot right-of-way).
Subject to any and all reservations, restrictions, easements, rights of
way, limitations and conditions of record.
16. BK# 5873
Owner: FFCA Acquisition Corporation
Property: Known and identified as 0000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxx
Legal Description
BEING a certain tract of land located at 0000 Xxxxxxx Xxxx in the
First Civil District of Athens, XxXxxx County, Tennessee, and being
more particularly described as follows: BEGINNING at an iron pin
(old), said pin being the most northern point of the herein described
property, in the South right-of-way of Interstate 75 and in the West
right-of-way of Tennessee State Highway No. 30 (Decatur Pike);
THENCE with said right-of-way of Tennessee State Highway No. 30
(Decatur Pike) South 62(degree) 37' 11" East, 199.69 feet to an iron
pin (old), said pin being a corner to Xxxxxx, Xxxx, and Xxxxxx Co.,
Trustees as evidenced in Deed Book 12Y, page 000, Xxxxxxxx'x Xxxxxx xx
XxXxxx Xxxxxx, Xxxxxxxxx;
THENCE with the line of Xxxxx, Xxxx, and Xxxxxx Co., Trustees for the
next 2 calls: (1) South 33(degree) 20' 50" West, 115.35 feet to an iron
pin (old); and (2) South 38(degree) 59' 19" East, 262.46 feet to a
metal fence post in the South edge of Blue Springs Creek, said post
being
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-12
a corner to Xxxxx Xxxxxxxx and Sons, Inc. as evidenced in Deed Book
6V, page 000, Xxxxxxxx'x Xxxxxx xx XxXxxx Xxxxxx, Xxxxxxxxx;
THENCE with the line of Xxxxx Xxxxxxxx and Sons, Inc. South 34(degree)
30' 59" East, 208.40 feet to an iron pin (old), said pin being in the
North right-of-way of Rocky Mount Road; THENCE with said right-of-way
South 88(degree) 17' 47" West, 440.63 feet to an iron pin (old), said
pin being a corner to Xxxxx Xxxxx as evidenced in Deed Book 13J, page
000, Xxxxxxxx'x Xxxxxx xx XxXxxx Xxxxxx, Xxxxxxxxx;
THENCE with the line of Xxxxx for the next 2 calls: (1) North
01(degree) 23' 00" West, 332.24 feet to an iron pin (old); and (2)
North 23(degree) 32' 06" West, 198.06 feet to an iron pin (old),
said pin being in the South right-of-way of the aforementioned
Interstate 75;
THENCE with said right-of-way North 64(degree) 06' 50" East, 144.96
feet to the point of beginning and containing 158,973 square feet or
3.650 acres, more or less.
BEING the same property conveyed to QSC, Inc., a Tennessee Corporation,
by Deed of Record in Book 13K, page 421, Register's Office for XxXxxx
County, Tennessee.
TOGETHER with easements appurtenant thereto as set forth in Deed Book
10S, page 558, Register's Office for XxXxxx County, Tennessee.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AIV-13
ANNEX V
to Loan and Security Agreement dated July 18, 1996
between AmeriKing Tennessee Corporation I, a Delaware corporation,
and Franchise Acceptance Corporation Limited
RELATED PERSONS: AmeriKing Colorado Corporation I, a Delaware corporation
BORROWER'S FINANCIAL STATEMENT: Proforma Financial Statements as submitted
with the loan application dated November 30, 1995.
BORROWER'S CHIEF EXECUTIVE OFFICE:
AmeriKing Tennessee Corporation I
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
BORROWER'S CHIEF PLACE OF BUSINESS:
AmeriKing Tennessee Corporation I
0000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
OFFICE(S) WHERE BORROWER KEEPS RECORDS CONCERNING COLLATERAL:
AmeriKing Tennessee Corporation I
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
LOCATIONS OF COLLATERAL:
BK #0000 - 000 Xxxxxxxxxxx Xxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
BK #0000 - 000 Xxxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx
BK #4959 - 0000 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
BK #0000 - 0000 Xxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
BK #0000 - 0000 Xxxxxxx 00, Xxxxxxxxxxx, Xxxxxxxxx
BK #3964 - 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxx
BK #4195 - 0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
BK #0000 - 0000 Xxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
BK #5355 - 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
BK #3351 - 000 Xxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
BK #5873 - 0000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxx
BK #4361 - 000 Xxxx 00xx Xxxxxx, Xxxxxxxx, Xxxxxxxx
BK #7885 - 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
BK #9334 - 0000 Xxxx Xxxxxxxxxx Xxxx., Xxxxxxxx, Xxxxxxxx
BK #4690 - 0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx
BK #2942 - 0000 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx
EXCEPTIONS TO LIEN REPRESENTATION: NONE.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AV-1
ANNEX VI
to Loan and Security Agreement dated July 18, 1996
between AmeriKing Tennessee Corporation I, a Delaware corporation,
and Franchise Acceptance Corporation Limited
FINANCIAL AND TAX REPORTING REQUIREMENTS
Borrower shall furnish, or cause to be furnished, to Lender each of the
following:
(a) Quarterly Reports. As soon as available and in any event within
thirty-one (31) days after the end of each of the first three quarters of each
fiscal year of Borrower, balance sheets of Borrower as of the such quarter and
statements of income and retained earnings of Borrower for the period
commencing at the end of the previous fiscal year and ending with the end of
such quarter, certified by a representative of Borrower acceptable to Lender.
(b) Compliance Certificate. As soon as available and in any event
within thirty-one (31) days after the end of each of the second quarter and the
fourth quarter of each fiscal year of Borrower, a compliance certificate signed
by a representative of Borrower acceptable to Lender indicating that as of the
end of such quarter Borrower was in compliance with each of the covenants
contained in the Loan Documents.
(c) Annual Reports. As soon as available and in any event within 120
days after the end of each fiscal year of Borrower, (i) a copy of the annual
report for such year for Borrower containing financial statements for such year
certified in a manner acceptable to Lender by a representative of Borrower
acceptable to Lender, (ii) personal statements of each Guarantor, if such
Guarantor is an individual, or balance sheets and statements of income and
retained earnings, if such Guarantor is not an individual, for the most recent
fiscal year of such Guarantor certified in a manner acceptable to Lender by
such Guarantor or a representative of such Guarantor acceptable to Lender, and
(iii) annual financial projections for Borrower's following fiscal year.
(d) Tax Returns. Within thirty (30) days of filing any tax return for
Borrower or any Guarantor with the Internal Revenue Service, copies of such
returns.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AVI-1
ANNEX VII
to Loan and Security Agreement dated July 18, 1996
between AmeriKing Tennessee Corporation I, a Delaware corporation,
and Franchise Acceptance Corporation Limited
ADDITIONAL PROVISIONS
1. Borrower hereby agrees that it will, at any time and from time to
time after the closing of the Loan, upon the request of Lender, do, execute,
acknowledge and deliver or will cause to be done, executed, acknowledged and
delivered, all such further acts, deeds, assignments, transfers, conveyances,
powers of attorney and assurances as may be reasonably required for the
effective assigning, transferring, granting, conveying, assuring and confirming
to Lender, its heirs, legal representatives or assigns or for securing, aiding
and assisting in the collection and reducing to possession, any and all of the
assets or property to be assigned to it as provided herein, at the sole cost
and expenses of Borrower.
2. The provisions of Section 7(b) of the above-referenced Loan and
Security Agreement shall be amended to read in its entirety:
"Lender shall have received the Leasehold Deed of Trust,
Assignment of Leases and Rents, Security Agreement and
Financing Statement and Leasehold Deed to Secure Debt,
Assignment of Leases and Rents and Security Agreement, duly
executed by Borrower in order to grant Lender a valid first
priority perfected lien on the leasehold interests to the
applicable Burger King Restaurants as of the date of this
Agreement."
3. Notwithstanding anything in the Agreement to the contrary, all
computations of interest shall be made on the basis of a year of 360 days and a
month of 30 days for the actual number of days (including the first day but
excluding the last day) elapsed.
4. Cross Default. Lender and Borrower hereby acknowledge and agree
that an "Event of Default" as defined in Section 12 of the above-referenced
Loan and Security Agreement is hereby deemed to additionally include an "Event
of Default" as defined in Section 12 of that certain Loan and Security
Agreement dated November 29, 1995, by and between Lender and AmeriKing Colorado
Corporation I, a Delaware corporation ("Colorado Loan Agreement"). Lender and
Borrower further acknowledge and agree that a "Default" as defined in Section
12 of the above-referenced Loan and Security Agreement is hereby deemed to
additionally include any "Default" as defined in Section 12 of the Colorado
Loan Agreement.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
AVII-1
PROGRAM RATE RIDER
(To Be Distributed Separately)
to Loan and Security Agreement dated July 18, 1996
(as amended or modified from time to time, the "Agreement")
between AMERIKING TENNESSEE CORPORATION I, a Delaware corporation ("Borrower"),
and FRANCHISE ACCEPTANCE CORPORATION LIMITED ("Lender")
Part I of this Rider describes the method by which Lender determines
the Program Rate from time to time. Capitalized terms used but not defined in
Part I have the meanings set forth in the Agreement or in Part II of this
Rider.
Part I. Determination of Program Rate
During the term of the Agreement, Lender may use a variety of funding
sources ("Funding Sources") in connection with the Franchisee Loan Program.
These include:
A. Commercial Paper. Lender may sell or grant interests in Franchisee
Loans to a Purchaser that funds itself (wholly or partially) by issuing
commercial paper. Lender may also issue its own commercial paper. Lender or a
Purchaser, in each case to the extent it provides funds (directly or
indirectly) for the Franchisee Loan Program by issuing commercial paper, is
herein called a "CP Issuer". Lender's cost of using Funding Sources described
in this paragraph will be based on the weighted average of the CP Rates of the
applicable CP Issuers.
B. Term Notes. Lender may sell or grant interests in Franchisee Loans
to a Purchaser that funds itself (wholly or partially) by issuing term notes.
Lender may also issue its own term notes. Lender or a Purchaser or any assignee
of either, in each case to the extent it provides funds (directly or
indirectly) for the Franchisee Loan Program by issuing term notes, is herein
called an "MTN Issuer". Lender's cost of using Funding Sources described in
this paragraph will be based on the weighted average of the MTN Fixed Rates
and/or the MTN Floating Rates of the applicable MTN Issuers.
C. Other Funding Sources. Lender may sell or grant interests in
Franchisee Loans to a Purchaser that funds itself (wholly or partially) by
borrowing loans or obtaining other credit from banks, insurance companies or
other credit providers (such banks, insurance companies or other credit
providers or any assignees of the foregoing being herein called "Other Credit
Providers") or by selling assets (including Franchisee Loans or interests
therein) to Other Credit Providers. Lender may also borrow or obtain other
credit directly from Other Credit Providers or sell assets (including
Franchisee Loans or interests therein) to Other Credit Providers. Lender's cost
of using the Funding Sources described in this paragraph will be based on the
weighted average of the Alternate Base Rate and/or the OCP Rates of the
applicable Other Credit Providers.
The initial Funding Sources for the Franchisee Loan Program will be
Corporate Asset Funding Company, Inc. ("CAFCO"), Corporate Receivables
Corporation ("CRC") and Other Credit Providers that provide liquidity and
credit support for the commercial paper programs of CAFCO and CRC. Lender may
1.1 Document Reference: SDPC-7258-1
July 17, 1996
1
change the Funding Sources for the Franchisee Loan Program at any time.
Lender's current preferred Funding Sources are the issuance of commercial paper
and term notes (rather than obtaining credit, directly or indirectly, from
Other Credit Providers) and Lender will rely on such Funding Sources to the
extent reasonably practicable, taking into account requirements of Lender's
contracts with Purchasers and Other Credit Providers, market conditions, rating
agency concerns and the interests of Lender in connection with the Franchisee
Loan Program as a whole.
In connection with any Funding Source, Lender will be required to pay
certain fees ("Fees") including without limitation program fees to Purchasers,
commercial paper and term note placement agent or dealer fees, and commitment
or non-use fees to Other Credit Providers. In addition, under contracts
relating to Funding Sources, Purchasers and Other Credit Providers may be
entitled to recover certain costs and expenses ("Costs"), including increased
costs due to a change in law (such as changes in tax law and bank or insurance
company regulation) or otherwise, and costs and expenses relating to
redeployment of funds, administrative and enforcement expenses and indemnities.
Consistent with market practice, Lender, Purchasers and Other Credit Providers
reserve the right to renegotiate, from time to time, Fees and the circumstances
under which Costs will be recovered. Lender will pay Borrower's proportionate
share of the Fees currently applicable to the Franchisee Loan Program from the
"Applicable Margin" specified in the Loan Documents. However, if the amount of
Fees required to be paid by Lender in connection with the Franchisee Loan
Program increases, or if Purchasers or Other Credit Providers are entitled to
recover Costs, Borrower's proportionate share of such increases or Costs may be
included in the Program Rate payable by Borrower by adding an "Increased Cost
Factor".
Lender will hedge its interest rate exposure in connection with the
Loan by entering into an interest rate cap or collar or another interest rate
hedging arrangements (the "Hedge"). The term of the Hedge will be at least half
the term of the Loan. The Hedge may also relate to loans made by Lender to
other franchisees in the Franchisee Loan Program. At the election of Lender,
Borrower will either pay its proportionate share of the cost of the Hedge at
the closing of the Loan or pay such share in installments ("Hedge Payments")
over the term of the Loan. If Lender receives payments under the Hedge, it will
elect to either credit Borrower's proportionate share of such payments to
Borrower's obligation to pay interest on the Loan or refund such proportionate
share to Borrower.
Lender will calculate the "Program Rate" on each day by:
(i) determining the interest rate per annum equal to the weighted
average (adjusted to the next higher 1/8 of 1%) for such day of the rates
applicable to each Funding Source used to fund the Franchisee Loan Program on
such day (i.e., the applicable CP Rates, MTN Fixed Rates, MTN Floating Rates,
OCP Rates and Alternate Base Rates); provided that if any such rate is payable
to a Purchaser or Other Credit Provider, Lender may rely on such Purchaser or
Other Credit Provider's calculation of such rate (as communicated to Lender by
the applicable Investor Agent); and provided, further, that the Alternate Base
Rate shall be computed on the basis of a 365 or 366-day year and all such other
rates shall be computed on the basis of a 360-day year (consisting, in the case
of a computation of any MTN Fixed Rate, of twelve 30-day months); and provided,
further, that any such rate may be adjusted to take into account negative
carrying costs that arise as a result of Lender's receipt of funds under the
Franchisee Loan Documents at a time when no amounts are due in connection with
any Funding Source; and
1.1 Document Reference: SDPC-7258-1
July 17, 1996
2
(ii) adding to the rate determined pursuant to clause (i) above any
applicable Increased Cost Factor or Hedge Payments.
Any changes in the Program Rate shall become effective immediately.
Part II. Additional Definitions
"Alternate Base Rate" means, for any day and any Other Credit
Provider, the sum of (x) such Other Credit Provider's applicable Spread (if
any) plus (y) the interest rate per annum equal to the highest on such day of:
(a) the rate of interest announced publicly by its Reference Bank in
New York, New York, from time to time as such Reference Bank's base rate; or
(b) 1/2 of 1% per annum above the latest three-week moving average of
secondary market morning offering rates in the United States for three-month
certificates of deposit of major United States money market banks, such
three-week moving average being determined weekly on each Monday (or, if such
day is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by such Reference Bank on the
basis of such rates reported by certificate of deposit dealers to and published
by the Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates received by
such Reference Bank from three New York certificate of deposit dealers of
recognized standing selected by such Reference Bank, in either case adjusted to
the nearest 1/4 of 1% or, if there is no nearest 1/4 of 1%, to the next higher
1/4 of 1%; or
(c) 1/2 of 1% per annum above the fluctuating interest rate per annum
equal for such day to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such transactions
received by such Reference Bank from three Federal funds brokers of recognized
standing selected by it.
"Business Day" means any day on which banks are not authorized or
required to close in New York City and, if the applicable Business Day relates
to the LIBO Rate, on which dealings are carried on in the London interbank
market.
"Citibank" means Citibank, N.A., a national banking association.
"Citicorp" means Citicorp North America, Inc., a Delaware corporation.
"CP Rate" means, for any day and any CP Issuer, the interest rate per
annum equal to the rate (or if more than one rate, the weighted average of the
rates adjusted to the next higher 1/8 of 1%) at which all commercial paper
notes of such CP Issuer which are then outstanding or are to be issued on such
day to fund the Franchisee Loan Program were or may be sold by any placement
agent or commercial paper dealer selected by such CP Issuer, as agreed between
each such agent or dealer and such CP Issuer and notified by
1.1 Document Reference: SDPC-7258-1
July 17, 1996
3
such CP Issuer to Lender or the applicable Investor Agent, which rate or rates
shall reflect and give effect to the actual commission of placement agents and
dealers and other costs of issuance in respect of such commercial paper notes;
provided, however, if such rate (or rates) as agreed between any such agent or
dealer and any such CP Issuer with regard to any such commercial paper notes is
a discount rate (or rates), the "CP Rate" for such commercial paper notes shall
be the rate (or if more than one rate, the weighted average of the rates)
resulting from converting such discount rate (or rates) to an interest-bearing
equivalent rate per annum.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from time
to time.
"Eurodollar Rate Reserve Percentage" for any day means the reserve
percentage applicable on such day under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference to which the
LIBO Rate is determined).
"Fixed Period" means each period commencing on the date selected by
the applicable Investor Agent or Lender in its discretion and ending the number
of days from such date as selected by such Investor Agent or Lender in its
discretion; provided, however, that:
(i) any such Fixed Period (other than of one day) which would
otherwise end on a day which is not a Business Day shall be extended to the
next succeeding Business Day (provided, however, if the interest rate in
respect of such Fixed Period is computed by reference to the LIBO Rate, and
such Fixed Period would otherwise end on a day which is not a Business Day, and
there is no subsequent Business Day in the same calendar month as such day,
such Fixed Period shall end on the next preceding Business Day); and
(ii) in the case of Fixed Periods of one day, (A) if such Fixed Rate
is an initial Fixed Period, such Fixed Period shall be the day the OCP Rate is
first applicable; (B) any subsequently occurring Fixed Period which is one day
shall, if the immediately preceding Fixed Period is more than one day, be the
last day of such immediately preceding Fixed Period, and, if the immediately
preceding Fixed Period is one day, be the day next following such immediately
preceding Fixed Period; and (C) if such Fixed Period occurs on a day
immediately preceding a day which is not a Business Day, such Fixed Period
shall be extended to the next succeeding Business Day, provided, however, in
the case of fundings at the LIBO Rate, if such extension would cause the last
day of such Fixed Period to occur in the next following calendar month, the
last day of such Fixed Period shall occur on the next preceding Business Day.
"Franchisee Loan Documents" means the Agreement, the Loan Documents
and other similar loan documents pursuant to which Lender extends credit to
Burger King(R) franchisees.
"Franchisee Loans" means loans or other extensions of credit made by
Lender under Franchisee Loan Documents, together with all related rights of
Lender and its assigns (including rights in respect of collateral and
guarantees).
1.1 Document Reference: SDPC-7258-1
July 17, 1996
4
"Investor Agent" means any person or entity acting as agent for any
Purchasers or other Credit Providers, as notified by such Purchasers or Other
Credit Providers to Lender. Citicorp is the Investor Agent for CAFCO and CRC.
"LIBO Rate" has the meaning set forth in the definition of OCP Rate.
"MTN Fixed Rate" means, for any day and any MTN Issuer, an interest
rate per annum equal to the interest rate (or if more than one rate, the
weighted average of the rates adjusted to the next higher 1/8 of 1%) applicable
to all term notes which have been issued, or are to be issued on such day, by
such MTN Issuer at a fixed interest rate to fund the Franchisee Loan Program.
"MTN Floating Rate" means, for any day and any MTN Issuer, the
interest rate per annum equal to the interest rate (or if more than one rate,
the weighted average of the rates adjusted to the next higher 1/8 of 1%)
applicable to all term notes which have been issued, or are to be issued on
such day, by such MTN Issuer at a floating interest rate per annum (determined
by reference to an interest rate formula) in effect from time to time to fund
the Franchisee Loan Program.
"OCP Rate" means, for each day during any Fixed Period and with
respect to any Other Credit Provider, the sum of (x) such Other Credit
Provider's applicable Spread plus (y) an interest rate per annum obtained by
dividing (i) the rate (the "LIBO Rate") per annum at which deposits in U.S.
dollars are offered by the principal office of such Other Credit Provider's
Reference Bank in London, England, to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day of
such Fixed Period for an amount of at least $1 million and with a maturity
equal to such Fixed Period by (ii) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such day; provided, however, that in the
case of:
A. any Fixed Period on or prior to the first day of which such Other
Credit Provider shall have notified Lender or the applicable Investor Agent
that, after reasonable efforts by such Other Credit Provider (consistent with
its internal policy and legal and regulatory restrictions) to designate a
lending office that would allow such Other Credit Provider to fund the
Franchisee Loan Program at the LIBO Rate set forth above and which would not,
in the judgment of such Other Credit Provider, be otherwise disadvantageous to
such Other Credit Provider, the introduction of or any change occurring on or
after June 2, 1994 or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it
is unlawful, for such Other Credit Provider to fund the Franchisee Loan Program
at the LIBO Rate set forth above (and such Other Credit Provider shall not have
subsequently notified the Lender or applicable Investor Agent that such
circumstances no longer exist), or
B. any Fixed Period of 1 to (and including) 13 days;
the "OCP Rate" for such day shall be an interest rate per annum equal to the
Alternate Base Rate for such Other Credit Provider in effect on such day.
"Payment Date" means, with respect to any Franchisee Loan, each date
on which a payment is required to be made under the related promissory note.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
5
"Reference Bank" means, with respect to any Other Credit Provider, the
financial institution designated by such Other Credit Provider, as notified by
such Other Credit Provider to the related Purchaser (if any) and Lender.
Citibank is the Reference Bank for XXXXX'x and CBC's Other Credit Providers.
"Spread" means, at any time, with respect to any Other Credit
Provider, the number of basis points (if any) required to be added (under
applicable contracts) to the rates described in clause (y) of the definition of
Alternate Base Rate or O.P. Rate, as the case may be, in order to determine the
interest or yield payable to such Other Credit Provider.
BORROWER WITNESSES
AMERIKING TENNESSEE CORPORATION I,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxx /SEAL/ By: /s/ Xxxxxxx X. Xxxxxx
--------------------------- -----------------------------
Print Name: Xxxxxxxx X. Xxxx Print Name: Xxxxxxx X. Xxxxxx
------------------- ----------------------
Title: President
-------------------------
By: /s/ Xxxx Xxxxxx /SEAL/ By: /s/ Xxxxxxx X. Xxxxxx
--------------------------- -----------------------------
Print Name: Xxxx Xxxxxx Print Name: Xxxxxxx X. Xxxxxx
-------------------- ----------------------
Title: Secretary
-------------------------
By: /SEAL/ By:
--------------------------- -----------------------------
Print Name: Print Name:
-------------------- ----------------------
Title:
-------------------------
1.1 Document Reference: SDPC-7258-1
July 17, 1996
6
TO BE DISTRIBUTED SEPARATELY
GUARANTY RIDER
to Loan and Security Agreement dated July 18, 1996
between AMERIKING TENNESSEE CORPORATION I
and Franchise Acceptance Corporation Limited
This Guaranty is attached to, and constitutes a part of, the Loan as
of July 18, 1996 (as it may be amended from time to time, the "Agreement"), by
and between AMERIKING TENNESSEE CORPORATION I, a Delaware corporation, and
FRANCHISE ACCEPTANCE CORPORATION LIMITED (together with any assignee thereof or
successor thereto, the "Lender"). Capitalized terms used herein have the
meanings set forth in the Agreement.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and in order to induce the Lender to extend
credit to Borrower, the undersigned (if more than one, jointly and severally)
hereby unconditionally guarantees to Lender, its successors and assigns, as
primary obligor and not merely as a surety, the prompt payment and performance
of the Secured Obligations (and all extensions, modifications and renewals
thereof), all sums stated or agreed to be payable therein and all interest on
the Secured Obligations (whether accruing before or after any bankruptcy or
insolvency proceeding involving the Borrower, without regard to whether the
Borrower's obligation to pay such interest shall cease to accrue by operation
of law as a result of the commencement of such proceeding), in each case when
due, at maturity, by acceleration or otherwise, and hereby consents that from
time to time, without notice to the undersigned, that any Secured Obligations
may be extended or renewed in whole or in part for any period (whether or not
longer than the original period of this Agreement), additional credit separate
from the transaction described in the Agreement may be extended to the Borrower
by Lender, and Lender may at any time surrender, release, renew, extend or
exchange all or any part of the property securing any Secured Obligations, or
take any of the actions set forth in the Agreement all without affecting the
liability of the undersigned. Lender may, at its option, at any time after a
Default by Borrower, exercise its right of set-off of all or any portion of the
Secured Obligations against any liability or indebtedness of Lender to the
Guarantor (except a liability or indebtedness in which Guarantor, as a
fiduciary, has no beneficial interest or to Guarantor's XXX or other tax
deferred retirement account), without any prior notice. The release of any
party liable upon or in respect of the Agreement or the Secured Obligations
shall not release any other such party. Each of the undersigned hereby waives
presentment, demand of payment and notice of non-payment and of protest and any
and all other notices and demands whatsoever. This guaranty is a guaranty of
payment when due and not of collection. Guarantor waives any claim it or any of
its affiliates may have, by way of subrogation or otherwise, against Lender or
Borrower with respect to any payment made hereunder by or on behalf of
Guarantor or any cost, expense or loss of economic benefit incurred by
Guarantor pursuant hereto. Guarantor agrees that it is its responsibility to
keep informed of Borrower's financial status and that Lender is not obligated
to keep Guarantor informed of such circumstances. The death of any Guarantor
shall not terminate this Guaranty as to such deceased or as to any other
Guarantor. Guarantor makes the representations to Lender set forth in Sections
10(a)(first sentence) and 10(b) of the Agreement as if they referred to
Guarantor instead of Borrower, and Guarantor agrees to be bound by the
covenants and agreements and grants the indemnities and waivers set forth in
Sections 2, 11(k), and 14 through 22 of the Agreement as if they referred to
Guarantor instead of Borrower.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
1
Without limiting the foregoing, Guarantor agrees that:
(i) The Guarantor waives any anti-deficiency statute
which may be available to Borrower with respect to the
Secured Obligations.
(ii) Guarantor forever waives any rights of
appraisement with regard to the value of any collateral which
Lender may apply as a credit to the Secured Obligations of
Borrower, through foreclosure or otherwise, and agrees that
the determination by an independent appraiser appointed by
Lender of the value of such collateral shall be binding upon
Guarantor for all purposes.
(iii) The obligations, covenants, agreements and
duties of Guarantor shall not be released, affected, or
impaired, without the written consent of Lender, by (a) any
assignment, endorsement or transfer, in whole or in part of
any Note, although made without notice to or the consent of
Guarantor; or (b) the addition of a new Guarantor.
This Guaranty shall continue in full force and effect with respect to
each Guarantor and may not be revoked until all existing Secured Obligations
and all Secured Obligations hereafter incurred or arising have been paid,
performed and satisfied in full. Notwithstanding the foregoing, any Guarantor
may, by written notice to the Lender, terminate its liability hereunder with
respect to Secured Obligations which are not Pre- Termination Secured
Obligations as hereinafter defined.
Pre-Termination Secured Obligations means any and all Secured
Obligations existing prior to the time of actual receipt of such notice by
Lender, any and all Secured Obligations created or acquired thereafter pursuant
to any previous commitments made by Lender, any and all extensions or renewals
of any of the foregoing, any and all interest on any of the foregoing and any
and all expenses paid or incurred by Lender in endeavoring to collect any of
the foregoing and in enforcing this Guaranty against such Guarantor; and all of
the agreements and obligations of such Guarantor under this Guaranty shall,
notwithstanding any such notice of discontinuance, remain fully in effect until
all such Secured Obligations (including any extensions or renewals of any
thereof) and all such interest and expenses shall have been paid in full. Any
such notice of discontinuance by or on behalf of any Guarantor shall not affect
or impair the obligations hereunder of any other Guarantor.
If any payment applied by Lender to any of the Secured Obligations
must be returned by Lender for any reason (including the insolvency of
Borrower), such Secured Obligations shall be deemed to have continued in
existence and this Guaranty shall continue to be effective or be reinstated (as
applicable) as to such Secured Obligations, as though such application by
Lender had not been made.
Guarantor agrees, without demand, to pay and reimburse Lender
for all costs, reasonable attorneys' fees and other expenses it expends or
incurs in collection from the Guarantor of any of Borrower's indebtedness or
the obligations hereby guaranteed or in the enforcement of this Guaranty
against Guarantor.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
2
This Guaranty is an absolute, irrevocable and unconditional guaranty
of payment and performance. Guarantor shall be liable for the payment and
performance of the Secured Obligations, as set forth in this Guaranty, as a
primary obligor. This Guaranty shall be effective as a waiver of, and Guarantor
hereby expressly waives, any and all rights to which Guarantor may otherwise
have been entitled under any suretyship laws in effect from time to time,
including without limitation the provisions of Section 10-7-24 of the Official
Code of Georgia Annotated. Guarantor hereby waives and agrees not to assert to
take advantage of any defense based upon: (a) any failure of Lender to commence
an action against Borrower or any other person or entity (including, without
limitation, other guarantors, if any), or to file or enforce a claim against
the estate (either in administration, bankruptcy, or any other proceeding) of
Borrower or any other person or entity, whether or not demand is made upon
Lender to file to enforce such claim; (b) any failure on the part of Lender to
ascertain the extent or nature of the Collateral or any insurance or other
rights with respect thereto, or the liability of any party liable for the Loan
Documents or the obligations evidenced or secured thereby, or any failure on
the part of Lender to disclose to Guarantor any facts it may now or hereafter
know regarding Borrower, the Collateral, or such other parties; (c) any lack of
acceptance or notice of acceptance of this Guaranty by Lender; (d) failure to
properly record any document or any other lack of due diligence by Lender in
creating or perfecting a security interest in or collection, protection or
realization upon any Collateral or in obtaining reimbursement or performance
from any person or entity now or hereafter liable for the Loan Documents or any
obligation secured thereby; (e) any invalidity, irregularity or
unenforceability, in whole or in part, of any one or more of the Loan
Documents; or (f) any deficiencies in the Collateral or any deficiency in the
ability of Lender to collect or obtain performance from any persons or entities
now or hereafter liable for the payment or performance of any obligation hereby
guaranteed.
GUARANTOR: WITNESSES
AMERIKING COLORADO CORPORATION I,
a Delaware corporation
By: ___________________________________ By:______________________________
Name: _________________________________ Print Name: _____________________
Title: ________________________________
By: ___________________________________ By:______________________________
Name: _________________________________ Print Name: _____________________
Title: ________________________________
1.1 Document Reference: SDPC-7258-1
July 17, 1996
3
Non-construction Term Loan
(Multiple Loans)
EXHIBIT A
TO THE LOAN AND SECURITY AGREEMENT
FORM OF PROMISSORY NOTE
$6,100,000.00 Date: July 18, 1996
FOR VALUE RECEIVED, the undersigned, AMERIKING TENNESSEE CORPORATION
I, a Delaware corporation (hereinafter referred to as "Borrower"), HEREBY
PROMISES TO PAY to the order of FRANCHISE ACCEPTANCE CORPORATION LIMITED
("Lender") in lawful money of the United States of America, the principal
amount of Six Million Xxx Xxxxxxx Xxxxxxxx xxx Xx/000xxx Xxxxxx Xxxxxx dollars
(U.S. $6,100,000.00), together with interest on the unpaid principal balance
outstanding from time to time at a rate equal to the Program Rate (as defined
in the Loan and Security Agreement dated July 18, 1996 between Lender and
Borrower (as amended or supplemented from time to time, the "Loan Agreement"))
as in effect from time to time, plus two and 75/100ths percent (2.75)% (such
percentage being referred to herein as the "Applicable Margin"). Accrued
interest shall be payable in arrears on the unpaid principal balance of this
Note on the twenty-fifth (25th) day of each month (each, a "Payment Date")
commencing on __________, 1996 and continuing until this Note is fully paid,
and principal on this Note shall be payable in one hundred twenty (120)
consecutive monthly installments on each Payment Date, commencing on
___________, 1996 until this Note is fully paid; provided, however, that the
final payment under this Note shall be in the amount of the balance of
principal, interest and all other charges remaining unpaid. The amount of each
monthly installment of principal is set forth in ANNEX A attached hereto and
made a part hereof. All advances, if any, shall be set forth on ANNEX B
attached hereto and made a part hereof. Capitalized terms used but not defined
in this Note are defined in the Loan Agreement.
Interest shall be calculated on the basis of a three hundred and sixty
(360) day year and charged on the actual number of days elapsed in each
calendar year by multiplying the actual number of days the debt is outstanding
in each calendar year by the rate of Interest, and dividing the product thereof
by three hundred and sixty (360).
In the event of the acceleration of this Note, and the mortgage by
which it is secured, by reason of any default thereunder, any prepaid and
unearned interest in excess of the highest rate allowable by law to date of
enforcement of payment, shall thereupon be refunded to the maker automatically
by crediting of same against the sums then due, but such credit shall not cure
or waive the occasioning default and acceleration. Under no circumstances shall
the total liability for payment in the nature of interest under this Note and
the mortgage by which it is secured exceed the highest rate allowed by law.
Borrower shall make each payment hereunder not later than 11 a.m.
(Eastern time) on the day when due in U.S. dollars through the Disbursing
Account as provided in the Loan Agreement for the account of the Lender.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
A-1
In the event of a partial prepayment of principal due and payable
hereunder, no such partial prepayment shall postpone or interrupt payments of
principal and interest, all of which shall continue to be due and payable at
the time and the manner set forth above.
If any payment of principal or interest on this Note shall become due
on a day which is not a business day, such payment shall be made on the next
succeeding business day.
Upon the maturity of any portion of this Note, whether by acceleration
or otherwise, Borrower further promises to pay interest at the rate per annum
equal to the sum of (x) 2.0%, plus (y) the Applicable Margin, plus (z) the
Program Rate in effect from time to time, on the then outstanding past-due
amount of principal, until such amount is paid in full. Such interest shall be
payable upon demand of the Lender.
In the event that any amounts due hereunder have not been paid to the
Lender within five (5) days after the date due, Borrower shall pay on demand as
a late charge, to the extent legally permitted, an amount equal to the lesser
of five percent (5%) of such overdue amounts or the maximum amount allowed by
law.
This Note is one of the Notes referred to in the Loan Agreement and
evidences indebtedness incurred under the Loan Agreement. The Loan Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events.
Not more than once a year, Borrower may prepay all or a portion of the
principal hereof, interest accrued but unpaid hereon and any other amounts as
may be due and payable hereunder at any time; provided that Borrower shall give
at least forty-five (45) days' prior written notice to Lender of the intended
date of prepayment, which date shall be a Payment Date and provided further
that any partial prepayment of principal shall be in an amount of at least
$25,000 and shall be applied to the installments due on this Note in the
inverse order of maturity.
Borrower hereby waives presentment, demand for payment (except for
such notice as contemplated under Section 12(a) of the Loan Agreement) and
notice of protest or dishonor in connection with the delivery, acceptance,
performance, default, acceleration or enforcement of this Note and hereby
consents to any extensions of time, renewals, releases of any party to this
Note, waivers or modifications that may be granted or consented to by the
holder of this Note in respect of the time of payment or any other provision of
this Note.
Each Borrower, endorser, and/or guarantor jointly and severally agrees
to pay all costs, reasonable attorneys' fees if Lender is the prevailing party
("prevailing party" shall include a party who receives substantially the relief
desired whether by dismissal, summary judgment, judgment or otherwise),
paralegal fees, and expenses incurred in the event it becomes necessary for
Lender to protect its security and in the event of collection, whether or not
Lender brings suit; and if suit is brought said parties agree to pay the
Lender's costs and reasonable attorneys' fees, paralegal fees and expenses
incurred therein including costs and reasonable attorneys' fees, paralegal
fees, and costs incurred on appeal, if any.
BORROWER CONSENTS TO THE ASSIGNMENT BY LENDER OF ALL OR ANY PORTION OF
ITS RIGHTS UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS, INCLUDING, BUT NOT
LIMITED TO, ASSIGNMENT(S) TO PURCHASERS AND CREDIT ENHANCERS MADE IN
1.1 Document Reference: SDPC-7258-1
July 17, 1996
A-2
CONNECTION WITH THE FRANCHISEE LOAN PROGRAM. BORROWER ACKNOWLEDGES AND AGREES
THAT ANY AND ALL RIGHTS OF LENDER UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS
MAY BE EXERCISED FROM TIME TO TIME BY ANY ASSIGNEE OR SUCCESSOR OF LENDER,
INCLUDING, BUT NOT LIMITED TO, ANY PURCHASER, ANY PURCHASER AGENT, ANY CREDIT
ENHANCER OR ANY AGENT, TRUSTEE OR OTHER REPRESENTATIVE THEREFOR, INCLUDING
CITICORP NORTH AMERICA, INC., AS SERVICING AGENT. BORROWER AGREES THAT ANY
ASSIGNEE'S RIGHTS SHALL BE FREE OF ALL DEFENSES, SET-OFFS OR COUNTERCLAIMS
WHICH BORROWER MAY HAVE AGAINST LENDER.
Notwithstanding any other provision set forth in this Note, any holder
of this Note may at any time create a security interest in all or any portion
of its rights under this Note in favor of any Federal Reserve Bank in
connection with Regulation A of the Board of Governors of the Federal Reserve
System.
This Note shall be binding upon Borrower and its successors and
assigns.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York, United States.
Except as may be prohibited by law, Lender and Borrower hereby
knowingly, voluntarily, intentionally and unconditionally waive the right
either may have to a jury trial in respect to any litigation based hereon, or
arising out of, under or in connection with this Note, or any agreement or
instrument contemplated to be executed in conjunction herewith, or any course
of conduct, course of dealing, statements (whether oral or written) or actions
of either party. If the subject matter of any such litigation is one in which
the waiver of a jury trial is prohibited, neither the Borrower nor the Lender
shall present a non-compulsory counterclaim in such litigation or any claim
arising out of this Note. Furthermore, neither the Lender nor Borrower shall
seek to consolidate any such action in which a jury trial has not been waived.
This provision is a material inducement for the Lender's extension of credit to
the Borrower.
If Lender chooses to waive any provision of this Note, or if any
provision of this Note is construed by a court of competent jurisdiction to be
invalid or unenforceable, it shall not affect the applicability, validity, or
enforceability of the remaining provisions of this Note.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
A-3
BORROWER: WITNESSES:
AMERIKING TENNESSEE CORPORATION I,
a Delaware corporation
By: _____________________________/SEAL/ By: _________________________/SEAL/
Name: ________________________________ Name: ____________________________
Title: _______________________________
By: _____________________________/SEAL/ By: _________________________/SEAL/
Name: ________________________________ Name: ____________________________
Title: _______________________________
Address:
AmeriKing Tennessee Corporation I
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
ENDORSEMENT
PAYABLE TO THE ORDER OF CITICORP NORTH AMERICA, INC., AS INVESTOR AGENT,
WITHOUT RECOURSE, EXCEPT AS PROVIDED IN THE FRANCHISE LOAN PURCHASE AND SALE
AGREEMENT BETWEEN LENDER, THE INVESTOR AGENT AND CERTAIN OTHER PARTIES
FRANCHISE ACCEPTANCE CORPORATION LIMITED
By: _________________________________________/SEAL/
Name: _______________________________________
Title: ______________________________________
By: _________________________________________/SEAL/
Name: _______________________________________
Title: ______________________________________
1.1 Document Reference: SDPC-7258-1
July 17, 1996
A-4
ANNEX A
TO THE PROMISSORY NOTE
AMORTIZATION SCHEDULE
[To Be Supplied]
1.1 Document Reference: SDPC-7258-1
July 17, 1996
A-1
ANNEX B
TO THE PROMISSORY NOTE
ADVANCES OF PRINCIPAL
Date Amount of Advance Balance Notation by
---- ----------------- ------- -----------
1.1 Document Reference: SDPC-7258-1
July 17, 1996
B-1
CONSTRUCTION LOAN
EXHIBIT B
TO THE LOAN AND SECURITY AGREEMENT
FORM OF PROMISSORY NOTE
$900,000.00 Date: July 18, 1996
FOR VALUE RECEIVED, the undersigned, AMERIKING TENNESSEE CORPORATION
I, a Delaware corporation, (hereinafter referred to as "Borrower"), HEREBY
PROMISES TO PAY to the order of FRANCHISE ACCEPTANCE CORPORATION LIMITED
("Lender") in lawful money of the United States of America, the principal
amount of the lesser of (a) Nine Hundred Thousand and No/100ths Dollars
($900,000.00) United States dollars and (b) the aggregate unpaid principal
amount of all advances made by Lender to Borrower pursuant to the Loan and
Security Agreement dated of even date herewith between Lender and Borrower (as
amended or supplemented from time to time, the "Agreement"), together with
interest on the unpaid principal balance outstanding from time to time at a
rate equal to the applicable Program Rate (as defined in the Agreement) dated
July 18, 1996, plus three and 41/100ths percent (3.41%) prior to the Completion
Date (as defined below) and the applicable Program Rate plus two and 91/100ths
percent (2.91%) thereafter (such percentage being referred to herein as the
"Applicable Margin"). Prior to the Completion Date, interest shall accrue and
be added to the outstanding principal balance of this Note and become part of
it and shall bear interest at the same rate as principal. On and after the
Completion Date, accrued interest shall be payable in arrears on the unpaid
principal balance of this Note on the twenty-fifth (25th) day of each month
(each, a "Payment Date") commencing on __________, 19__ and continuing until
this Note is fully paid, and principal on this Note shall be payable in
eighty-four (84) consecutive monthly installments on each Payment Date,
commencing on the first Payment Date after the Completion Date until this Note
is fully paid; provided, however, that the final payment under this Note shall
be in the amount of the balance of principal, interest and all other charges
remaining unpaid. "Completion Date" means the earlier of __________, 19__ or
the date on which the construction or remodeling of the Restaurant being
financed by this Note is completed. The amount of each monthly installment of
principal is set forth in Annex A attached hereto and made a part hereof.
Capitalized terms used but not defined in this Note are defined in the
Agreement.
Interest shall be calculated on the basis of a three hundred and sixty
(360) day year and charged on the actual number of days elapsed in each
calendar year by multiplying the actual number of days the debt is outstanding
in each calendar year by the rate of Interest, and dividing the product thereof
by three hundred and sixty (360).
In the event of the acceleration of this Note, and the mortgage, if
any, by which it is secured, by reason of any default thereunder, any prepaid
and unearned interest in excess of the highest rate allowable by law to date of
enforcement of payment, shall thereupon be refunded to the maker automatically
by crediting of same against the sums then due, but such credit shall not cure
or waive the occasioning default
1.1 Document Reference: SDPC-7258-1
July 17, 1996
B-1
and acceleration. Under no circumstances shall the total liability for payment
in the nature of interest under this Note and the mortgage by which it is
secured exceed the highest rate allowed by law.
All advances hereunder may be endorsed by the holder of this Note on
Annex B attached hereto. Each recordation of any advance shall be presumptive
evidence that such advance was made by Lender to Borrower in the amount and on
the date indicated.
Borrower shall make each payment hereunder not later than 11:00 a.m.
(Eastern time) on the day when due in U.S. dollars through the Disbursing
Account as provided in the Agreement for the account of the Lender.
In the event of a partial prepayment of principal due and payable
hereunder, no such partial prepayment shall postpone or interrupt payments of
principal and interest, all of which shall continue to be due and payable at
the time and the manner set forth above.
If any payment of principal or interest on this Note shall become due
on a day which is not a business day, such payment shall be made on the next
succeeding business day.
Upon the maturity of any portion of this Note, whether by acceleration
or otherwise, Borrower further promises to pay interest at the rate per annum
equal to the sum of (x) 2.0%, plus (y) the Applicable Margin, plus (z) the
Program Rate in effect from time to time, on the then outstanding past-due
amount of principal, until such amount is paid in full. Such interest shall be
payable upon demand of the Lender.
In the event that any amounts due hereunder have not been paid to the
Lender within five (5) days after the date due, Borrower shall pay on demand as
a late charge, to the extent legally permitted, an amount equal to the lesser
of five percent (5%) of such overdue amounts or the maximum amount allowed by
law.
This Note is one of the Notes referred to in the Agreement and
evidences indebtedness incurred under the Agreement. The Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events.
Not more than once a year, Borrower may prepay all or a portion of the
principal hereof, interest accrued but unpaid hereon and any other amounts as
may be due and payable hereunder at any time; provided that Borrower shall give
at least forty-five (45) days' prior written notice to Lender of the intended
date of prepayment, which date shall be a Payment Date and provided further
that any partial prepayment of principal shall be in an amount of at least
$25,000 and shall be applied to the installments due on this Note in the
inverse order of maturity.
Borrower hereby waives presentment, demand for payment, notice of
protest, or dishonor and all other notices or demands in connection with the
delivery, acceptance, performance, default, acceleration or enforcement of this
Note and hereby consents to any extensions of time, renewals, releases of any
party to this Note, waivers or modifications that may be granted or consented
to by the holder of this Note in respect of the time of payment or any other
provision of this Note.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
B-2
Each Borrower, endorser, and/or guarantor jointly and severally agrees
to pay all costs, reasonable attorneys' fees, paralegal fees, and expenses
incurred in the event it becomes necessary for Lender to protect its security
and in the event of collection, whether or not Lender brings suit; and if suit
is brought said parties agree to pay the Lender's costs and reasonable
attorneys' fees, paralegal fees and expenses incurred therein including costs
and reasonable attorneys' fees, paralegal fees, and expenses incurred on
appeal, if any.
BORROWER CONSENTS TO THE ASSIGNMENT BY LENDER OF ALL OR ANY PORTION OF
ITS RIGHTS UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS, INCLUDING, BUT NOT
LIMITED TO, ASSIGNMENT(S) TO PURCHASERS AND CREDIT ENHANCERS MADE IN CONNECTION
WITH THE FRANCHISEE LOAN PROGRAM. BORROWER ACKNOWLEDGES AND AGREES THAT ANY AND
ALL RIGHTS OF LENDER UNDER THIS NOTE AND THE OTHER LOAN DOCUMENTS MAY BE
EXERCISED FROM TIME TO TIME BY ANY ASSIGNEE OR SUCCESSOR OF LENDER, INCLUDING,
BUT NOT LIMITED TO, ANY PURCHASER, ANY PURCHASER AGENT, ANY CREDIT ENHANCER OR
ANY AGENT, TRUSTEE OR OTHER REPRESENTATIVE THEREFOR, INCLUDING CITICORP NORTH
AMERICA, INC., AS SERVICING AGENT. BORROWER AGREES THAT ANY ASSIGNEE'S RIGHTS
SHALL BE FREE OF ALL DEFENSES, SET-OFFS OR COUNTERCLAIMS WHICH BORROWER MAY
HAVE AGAINST LENDER.
Notwithstanding any other provision set forth in this Note, any holder
of this Note may at any time create a security interest in all or any portion
of its rights under this Note in favor of any Federal Reserve Bank in
connection with Regulation A of the Board of Governors of the Federal Reserve
System.
This Note shall be binding upon Borrower and the Borrower's personal
representatives, estate, heirs, devisees, legatees, its successors and assigns,
as applicable.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York, United States.
Except as may be prohibited by law, Lender and Borrower hereby
knowingly, voluntarily, intentionally and unconditionally waive the right
either may have to a jury trial in respect to any litigation based hereon, or
arising out of, under or in connection with this Note, or any agreement or
instrument contemplated to be executed in conjunction herewith, or any course
of conduct, course of dealing, statements (whether oral or written) or actions
of either party. If the subject matter of any such litigation is one in which
the waiver of a jury trial is prohibited, neither the Borrower nor the Lender
shall present a non-compulsory counterclaim in such litigation or any claim
arising out of this Note. Furthermore, neither the Lender nor Borrower shall
seek to consolidate any such action in which a jury trial has not been waived.
This provision is a material inducement for the Lender's extension of credit to
the Borrower.
(THE REMAINDER OF PAGE LEFT INTENTIONALLY BLANK)
1.1 Document Reference: SDPC-7258-1
July 17, 1996
B-3
If Lender chooses to waive any provision of this Note, or if any
provision of this Note is construed by a court of competent jurisdiction to be
invalid or unenforceable, it shall not affect the applicability, validity, or
enforceability of the remaining provisions of this Note.
BORROWER WITNESSES:
AMERIKING TENNESSEE CORPORATION I,
a Delaware corporation
By:_________________________________ By: ____________________________
Name: ______________________________ Name: __________________________
By:_________________________________ By: ____________________________
Name: ______________________________ Name: __________________________
ENDORSEMENT
PAYABLE TO THE ORDER OF CITICORP NORTH AMERICA, INC. AS INVESTOR AGENT,
WITHOUT RECOURSE, EXCEPT AS PROVIDED IN THE FRANCHISE LOAN PURCHASE AND
SALE AGREEMENT BETWEEN LENDER, THE INVESTOR AGENT AND CERTAIN OTHER
PARTIES
FRANCHISE ACCEPTANCE CORPORATION
LIMITED
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
1.1 Document Reference: SDPC-7258-1
July 17, 1996
B-4
ANNEX A
TO THE PROMISSORY NOTE
AMORTIZATION SCHEDULE
[To be supplied]
1.1 Document Reference: SDPC-7258-1
July 17, 1996
A-1
ANNEX B
TO THE PROMISSORY NOTE
ADVANCES OF PRINCIPAL
Date Amount of Advance Balance Notation by
---- ----------------- ------- -----------
1.1 Document Reference: SDPC-7258-1
July 17, 1996
B-1
EXHIBIT C
TO LOAN AND SECURITY AGREEMENT DATED AS OF JULY 18, 0000
XXXXXXX XXXXXXXXX XXXXXXXXX CORPORATION I, A DELAWARE CORPORATION
AND FRANCHISE ACCEPTANCE CORPORATION LIMITED
FIXED RATE SUPPLEMENT
(TERM LOAN)
This Fixed Rate Supplement dated as of July 18, 1996 is entered into
by and between AMERIKING TENNESSEE CORPORATION I, a Delaware corporation,
hereinafter, whether one or more, called "Borrower") and FRANCHISE ACCEPTANCE
CORPORATION LIMITED (together with any assignee thereof or successor thereto,
the "Lender") with respect to the Loan and Security Agreement dated as of July
18, 1996 between Borrower and Lender (as amended, supplemented or otherwise
modified from time to time, the "Loan Agreement"). Capitalized terms used
herein have the meanings set forth in the Loan Agreement.
Reference is hereby made to the Promissory Note dated July 18, 1996
(as amended, supplemented or otherwise modified from time to time, the "Note")
of Borrower in favor of Lender in the maximum principal amount of
$6,100,000.00.
Borrower and Lender hereby agree that effective as of _______________,
1996 all references to the Program Rate in the Note and in the Loan Agreement
(to the extent pertaining to the Note) shall be references to the fixed rate
per annum of _________% (with respect to such Note, the "Fixed Rate").
By Borrower's signature hereto, Borrower hereby remakes and confirms
the representations made in Section 10 of the Loan Agreement with respect to
the Loan Agreement and the Note as modified hereby.
Except as expressly modified hereby, the Loan Agreement and the Note
remain in full force and effect and are hereby ratified and confirmed.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
C-1
Dated effective the date and year first set forth above.
BORROWER WITNESS(ES):
AMERIKING TENNESSEE CORPORATION I,
a Delaware corporation
By:____________________________ (SEAL) _____________________
Title:_________________________ Print Name
Address:_______________________
By:____________________________ (SEAL) _____________________
Title:_________________________ Print Name
Address:_______________________
FRANCHISE ACCEPTANCE
CORPORATION LIMITED
By:____________________________ (SEAL)
Title:_________________________
Address: Franchise Acceptance Corporation Limited
c/o Grand Metropolitan Finance Ireland
La Xxxxxx Xxxxx
Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
1.1 Document Reference: SDPC-7258-1
July 17, 1996
C-2
EXHIBIT D
TO LOAN AND SECURITY AGREEMENT DATED AS OF JULY 18, 0000
XXXXXXX XXXXXXXXX XXXXXXXXX CORPORATION I, A DELAWARE CORPORATION
AND FRANCHISE ACCEPTANCE CORPORATION LIMITED
FIXED RATE SUPPLEMENT
(CONSTRUCTION LOAN)
This Fixed Rate Supplement dated as of July 18, 1996 is entered into
by and between AMERIKING TENNESSEE CORPORATION I, a Delaware corporation,
hereinafter, whether one or more, called "Borrower") and FRANCHISE ACCEPTANCE
CORPORATION LIMITED (together with any assignee thereof or successor thereto,
the "Lender") with respect to the Loan and Security Agreement dated as of July
18, 1996 between Borrower and Lender (as amended, supplemented or otherwise
modified from time to time, the "Loan Agreement"). Capitalized terms used
herein have the meanings set forth in the Loan Agreement.
Reference is hereby made to the Promissory Note dated July 18, 1996
(as amended, supplemented or otherwise modified from time to time, the "Note")
of Borrower in favor of Lender in the maximum principal amount of $900,000.00.
Borrower and Lender hereby agree that effective as of _______________,
1996 all references to the Program Rate in the Note and in the Loan Agreement
(to the extent pertaining to the Note) shall be references to the fixed rate
per annum of _________% (with respect to such Note, the "Fixed Rate").
By Borrower's signature hereto, Borrower hereby remakes and confirms
the representations made in Section 10 of the Loan Agreement with respect to
the Loan Agreement and the Note as modified hereby.
Except as expressly modified hereby, the Loan Agreement and the Note
remain in full force and effect and are hereby ratified and confirmed.
1.1 Document Reference: SDPC-7258-1
July 17, 1996
D-1
Dated effective the day and year first set forth above.
BORROWER WITNESS(ES):
AMERIKING TENNESSEE CORPORATION I,
a Delaware corporation
By:____________________________ (SEAL) _____________________
Title:_________________________ Print Name
Address:_______________________
By:____________________________ (SEAL) _____________________
Title:_________________________ Print Name
Address:_______________________
FRANCHISE ACCEPTANCE
CORPORATION LIMITED
By:____________________________ (SEAL)
Title:_________________________
Address: Franchise Acceptance Corporation Limited
c/o Grand Metropolitan Finance Ireland
La Xxxxxx Xxxxx
Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
1.1 Document Reference: SDPC-7258-1
July 17, 1996
D-2
