Exhibit 10.15
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SECURITY AGREEMENT
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SECURITY AGREEMENT, dated as of June 29, 2001, between NATIONAL RESTAURANT
ENTERPRISES HOLDINGS, INC., a Delaware corporation ("Holdings"), and FLEET
NATIONAL BANK (f/k/a BankBoston, N.A.), a national banking association, as agent
(hereinafter, in such capacity, the "Agent") for itself and other banking
institutions (hereinafter, collectively, the "Banks") which are or may become
parties to the Credit Agreement dated as of June 29, 2001 (as hereinafter
defined).
WHEREAS, National Restaurant Enterprises, Inc., a Delaware corporation (the
"Borrower"), AmeriKing, Inc., a Delaware corporation ("AmeriKing"), Holdings,
the Agent and the Banks have entered into a Consolidated, Amended and Restated
Revolving Credit Agreement dated as of the date hereof (as amended and in effect
from time to time, the "Credit Agreement"), pursuant to which the Banks, subject
to the terms and conditions contained therein, shall provide financial
accommodations to the Borrower; and
WHEREAS, Holdings and the Borrower are members of a group of related
entities, the success of either of which is dependent on the success of the
other members of such group; and
WHEREAS, Holdings is expected to receive substantial direct and indirect
benefits from the making of loans and other extensions of credit to the Borrower
by the Banks pursuant to the Credit Agreement (which benefits are hereby
acknowledged); and
WHEREAS, Holdings has executed and delivered to the Agent, for the benefit
of the Agent and the Banks, a Guaranty dated as of the date hereof (as amended
and in effect from time to time, the "Guaranty"), pursuant to which Holdings
guaranteed to the Agent and the Banks the payment and performance of the
Borrower's Obligations to the Banks and the Agent under or with respect to the
Credit Agreement; and
WHEREAS, it is a condition precedent to the Agent and the Banks making
loans or otherwise extending credit to the Borrower under the Credit Agreement
that Holdings execute and deliver to the Agent, for the benefit of the Banks and
the Agent, a security agreement in substantially the form hereof; and
WHEREAS, Holdings wishes to grant security interests in favor of the Agent,
for the benefit of the Banks and the Agent, as herein provided;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
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1. Definitions. All capitalized terms used herein without definitions
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shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Uniform Commercial Code of the Commonwealth of
Massachusetts and used herein shall have the same definitions herein as
specified therein; provided, however, that the term "instrument" shall be such
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term as defined in Article 9 of the Uniform Commercial Code of such jurisdiction
rather than Article 3.
2. Grant of Security Interest.
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2.1. Collateral Granted. Holdings hereby grants to the Agent, for
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the benefit of the Banks and the Agent, to secure the payment and
performance in full of all of the Obligations and of Holdings' obligations
set forth in the Guaranty, a security interest in and so pledges and
assigns to the Agent, for the benefit of the Banks and the Agent, the
following properties, assets and rights of Holdings, wherever located,
whether now owned or hereafter acquired or arising, and all proceeds and
products thereof (all of the same being hereinafter called the
"Collateral"):
All personal and fixture property of every kind and nature including
without limitation all furniture, fixtures, equipment, raw materials,
inventory, other goods, accounts, contract rights, rights to the
payment of money, insurance refund claims and all other insurance
claims and proceeds, tort claims, chattel paper, documents,
instruments, securities and other investment property, deposit
accounts, rights to proceeds of letters of credit and all general
intangibles including, without limitation, all tax refund claims,
license fees, patents, patent applications, trademarks, trademark
applications, trade names (other than trademarks and trade names
owned by Burger King Corporation and licensed to Holdings),
copyrights, copyright applications, rights to xxx and recover for
past infringement of patents, trademarks and copyrights, computer
programs, computer software, engineering drawings, service marks,
customer lists, goodwill, and all licenses, permits, franchise
agreements, agreements of any kind or nature pursuant to which
Holdings possesses, uses or has authority to possess or use property
(whether tangible or intangible) of others or others possess, use or
have authority to possess or use property (whether tangible or
intangible) of Holdings, and all recorded data of any kind or nature,
regardless of the medium of recording including, without limitation,
all software, writings, plans, specifications and schematics.
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2.2. Delivery of Instruments, etc.
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(a) Pursuant to the terms hereof, Holdings has endorsed,
assigned and delivered to the Agent all negotiable or non-negotiable
instruments, certificated securities and chattel paper pledged by it
hereunder, together with instruments of transfer or assignment duly
executed in blank as the Agent may have specified. In the event that
Holdings shall, after the date of this Agreement, acquire any other
negotiable or non-negotiable instruments, certificated securities or
chattel paper to be pledged by it hereunder, Holdings shall forthwith
endorse, assign and deliver the same to the Agent, accompanied by such
instruments of transfer or assignment duly executed in blank as the
Agent may from time to time specify.
(b) To the extent that any securities now or hereafter acquired
by Holdings are uncertificated and are issued to Holdings or its
nominee directly by the issuer thereof, Holdings shall cause the
issuer to note on its books the security interest of the Agent in such
securities and shall cause the issuer, pursuant to an agreement in
form and substance satisfactory to the Agent, to agree to comply with
instructions from the Agent as to such securities, without further
consent of Holdings or such nominee. To the extent that any
securities, whether certificated or uncertificated, or other
investment property now or hereafter acquired by Holdings are held by
Holdings or its nominee through a securities intermediary or commodity
intermediary, Holdings shall, at the request of the Agent, use
reasonable efforts to cause such securities intermediary or (as the
case may be) commodity intermediary, pursuant to an agreement in form
and substance satisfactory to the Agent, to agree to comply with
entitlement orders or other instructions from the Agent to such
securities intermediary as to such securities or other investment
property, or (as the case may be) to apply any value distributed on
account of any commodity contract as directed by the Agent to such
commodity intermediary, without further consent of Holdings or such
nominee. The Agent agrees with Holdings that the Agent shall not give
any such entitlement orders or instructions or directions to any such
issuer, securities intermediary or commodity intermediary unless an
Event of Default has occurred and is continuing and the Agent has
elected to exercise its rights and remedies as contemplated by (S)14.
(c) To the extent that Holdings is a beneficiary under any
written letter of credit now or hereafter issued in favor of Holdings,
Holdings shall deliver such letter of credit to the Agent. The Agent
shall from time to time, at the request and expense of Holdings, make
such arrangements with Holdings as are in the Agent's reasonable
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judgment necessary and appropriate so that Holdings may make any
drawing to which Holdings is entitled under such letter of credit,
without impairment of the Agent's perfected security interest in
Holdings' rights to proceeds of such letter of credit or in the actual
proceeds of such drawing. At the Agent's request, Holdings shall, for
any letter of credit, whether or not written, now or hereafter issued
in favor of Holdings as beneficiary, execute and deliver to the issuer
and any confirmer of such letter of credit an assignment of proceeds
form, in favor of the Agent and satisfactory to the Agent and such
issuer or (as the case may be) such confirmer, requiring the proceeds
of any drawing under such letter of credit to be paid directly to the
Agent for application as provided in the Credit Agreement.
2.3. Excluded Collateral. Notwithstanding the foregoing provisions of
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this (S)2, such grant of security interest shall not extend to, and the
term "Collateral" shall not include, any chattel paper and general
intangibles which are now or hereafter held by Holdings as licensee, lessee
or otherwise, to the extent that (i) such chattel paper and general
intangibles are not assignable or capable of being encumbered as a matter
of law or under the terms of the license, lease or other agreement
applicable thereto (but solely to the extent that any such restriction
shall be enforceable under applicable law), without the consent of the
licensor or lessor thereof or other applicable party thereto and (ii) such
consent has not been obtained; provided, however, that the foregoing grant
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of security interest shall extend to, and the term "Collateral" shall
include, (A) any and all proceeds of such chattel paper and general
intangibles to the extent that the assignment or encumbering of such
proceeds is not so restricted and (B) upon any such licensor, lessor or
other applicable party's consent with respect to any such otherwise
excluded chattel paper or general intangibles being obtained, thereafter
such chattel paper or general intangibles as well as any and all proceeds
thereof that might have theretofore have been excluded from such grant of a
security interest and the term "Collateral".
3. Title to Collateral, etc. Holdings is the owner of the Collateral free
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from any adverse lien, security interest or other encumbrance, except for the
security interest created by this Agreement and other liens permitted by the
Credit Agreement. None of the Collateral constitutes, or is the proceeds of,
"farm products" as defined in (S)9-109(3) of the Uniform Commercial Code of the
Commonwealth of Massachusetts. None of the account debtors in respect of any
accounts, chattel paper or general intangibles and none of the obligors in
respect of any instruments included in the Collateral is a governmental
authority subject to the Federal Assignment of Claims Act.
4. Continuous Perfection. Holdings' place of business or, if more than one,
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chief executive office is indicated on the Perfection Certificate delivered to
the Agent herewith (the "Perfection Certificate"). Holdings will not change the
same, or the name, identity or corporate structure of Holdings in any manner,
without providing at least thirty (30) days prior written notice to the Agent.
The Collateral,
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to the extent not delivered to the Agent pursuant to (S)2.2, will be kept at
those locations listed on the Perfection Certificate and Holdings will not
remove the Collateral from such locations, without providing at least thirty
(30) days prior written notice to the Agent.
5. No Liens. Except for the security interest herein granted and liens
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permitted by the Credit Agreement, Holdings shall be the owner of the Collateral
free from any lien, security interest or other encumbrance, and Holdings shall
defend the same against all claims and demands of all persons at any time
claiming the same or any interests therein adverse to the Agent or any of the
Banks. Holdings shall not pledge, mortgage or create, or suffer to exist a
security interest in the Collateral in favor of any person other than the Agent,
for the benefit of the Banks and the Agent, except for liens permitted by the
Credit Agreement.
6. No Transfers. Holdings will not sell or offer to sell or otherwise
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transfer the Collateral or any interest therein except for (i) sales and leases
of inventory and licenses of general intangibles in the ordinary course of
business and (ii) sales or other dispositions of obsolescent items of equipment
in the ordinary course of business consistent with past practices.
7. Insurance.
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7.1. Maintenance of Insurance. Holdings will maintain with
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financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies as shall
be in accordance with general practices of businesses engaged in similar
activities in similar geographic areas. Such insurance shall be in such
minimum amounts that Holdings will not be deemed a co-insurer under
applicable insurance laws, regulations and policies and otherwise shall be
in such amounts, contain such terms, be in such forms and be for such
periods as may be reasonably satisfactory to the Agent. In addition, all
such insurance shall be payable to the Agent as loss payee under a
"standard" or "New York" loss payee clause for the benefit of the Banks and
the Agent. Without limiting the foregoing, Holdings will (i) keep all of
its physical property insured with casualty or physical hazard insurance on
an "all risks" basis, with broad form flood and earthquake coverages and
electronic data processing coverage, with a full replacement cost
endorsement and an "agreed amount" clause in an amount equal to 100% of the
full replacement cost of such property, (ii) maintain all such workers'
compensation or similar insurance as may be required by law and (iii)
maintain, in amounts and with deductibles equal to those generally
maintained by businesses engaged in similar activities in similar
geographic areas, general public liability insurance against claims of
bodily injury, death or property damage occurring, on, in or about the
properties of Holdings; business interruption insurance; and product
liability insurance.
7.2. Insurance Proceeds. The proceeds of any casualty insurance in
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respect of any casualty loss of any of the Collateral shall, subject to the
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rights, if any, of other parties with a prior interest in the property
covered thereby, (i) so long as no Default or Event of Default has occurred
and is continuing and to the extent that the amount of such proceeds is
less than $50,000.00, be disbursed to Holdings for direct application by
Holdings solely to the repair or replacement of Holdings' property so
damaged or destroyed and (ii) in all other circumstances, be held by the
Agent as cash collateral for the Obligations. The Agent may, at its sole
option, disburse from time to time all or any part of such proceeds so held
as cash collateral, upon such terms and conditions as the Agent may
reasonably prescribe, for direct application by Holdings solely to the
repair or replacement of Holdings' property so damaged or destroyed, or the
Agent may apply all or any part of such proceeds to the Obligations with
the Total Revolver Commitment (if not then terminated) being reduced by the
amount so applied to the Obligations.
7.3. Notice of Cancellation, etc. All policies of insurance shall
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provide for at least thirty (30) days prior written cancellation notice to
the Agent. In the event of failure by Holdings to provide and maintain
insurance as herein provided, the Agent may, at its option, provide such
insurance and charge the amount thereof to Holdings. Holdings shall furnish
the Agent with certificates of insurance and policies evidencing compliance
with the foregoing insurance provision.
8. Maintenance of Collateral; Compliance with Law. Holdings will keep the
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Collateral in good order and repair and will not use the same in violation of
law or any policy of insurance thereon. The Agent, or its designee, may inspect
the Collateral at any reasonable time, wherever located. Holdings will pay
promptly when due all taxes (except as expressly set forth in (S)8.8 of the
Credit Agreement), assessments, governmental charges and levies upon the
Collateral or incurred in connection with the use or operation of such
Collateral or incurred in connection with this Agreement. Holdings has at all
times operated, and Holdings will continue to operate, its business in
compliance with all applicable provisions of the federal Fair Labor Standards
Act, as amended, and with all applicable provisions of federal, state and local
statutes and ordinances dealing with the control, shipment, storage or disposal
of hazardous materials or substances.
9. Collateral Protection Expenses; Preservation of Collateral.
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9.1. Expenses Incurred by Agent. In its discretion, the Agent may
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discharge taxes (except as expressly set forth in (S)8.8 of the Credit
Agreement) and other encumbrances at any time levied or placed on any of
the Collateral, make repairs thereto and pay any necessary filing fees.
Holdings agrees to reimburse the Agent on demand for any and all
expenditures so made. The Agent shall have no obligation to Holdings to
make any such expenditures, nor shall the making thereof relieve Holdings
of any default.
9.2. Agent's Obligations and Duties. Anything herein to the
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contrary notwithstanding, Holdings shall remain liable under each contract
or agreement comprised in the Collateral to be observed or performed by
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Holdings thereunder. Neither the Agent nor any Bank shall have any
obligation or liability under any such contract or agreement by reason of
or arising out of this Agreement or the receipt by the Agent or any Bank of
any payment relating to any of the Collateral, nor shall the Agent or any
Bank be obligated in any manner to perform any of the obligations of
Holdings under or pursuant to any such contract or agreement, to make
inquiry as to the nature or sufficiency of any payment received by the
Agent or any Bank in respect of the Collateral or as to the sufficiency of
any performance by any party under any such contract or agreement, to
present or file any claim, to take any action to enforce any performance or
to collect the payment of any amounts which may have been assigned to the
Agent or to which the Agent or any Bank may be entitled at any time or
times. The Agent's sole duty with respect to the custody, safe keeping and
physical preservation of the Collateral in its possession, under (S)9-207
of the Uniform Commercial Code of the Commonwealth of Massachusetts or
otherwise, shall be to deal with such Collateral in the same manner as the
Agent deals with similar property for its own account.
10. Securities and Deposits. The Agent may at any time, at its option,
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transfer to itself or any nominee any securities constituting Collateral,
receive any income thereon and hold such income as additional Collateral or
apply it to the Obligations. Whether or not any Obligations are due, the Agent
may demand, xxx for, collect, or make any settlement or compromise which it
deems desirable with respect to the Collateral. Regardless of the adequacy of
Collateral or any other security for the Obligations, any deposits or other sums
at any time credited by or due from the Agent or any Bank to Holdings may at any
time be applied to or set off against any of the Obligations.
11. Notification to Account Debtors and Other Obligors. If a Default or an
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Event of Default shall have occurred and be continuing, Holdings shall, at the
request of the Agent, notify account debtors on accounts, chattel paper and
general intangibles of Holdings and obligors on instruments for which Holdings
is an obligee of the security interest of the Agent in any account, chattel
paper, general intangible or instrument and that payment thereof is to be made
directly to the Agent or to any financial institution designated by the Agent as
the Agent's agent therefor, and the Agent may itself, if a Default or an Event
of Default shall have occurred and be continuing, without notice to or demand
upon Holdings, so notify account debtors and obligors. After the making of such
a request or the giving of any such notification, Holdings shall hold any
proceeds of collection of accounts, chattel paper, general intangibles and
instruments received by Holdings as trustee for the Agent, for the benefit of
the Banks and the Agent, without commingling the same with other funds of
Holdings and shall turn the same over to the Agent in the identical form
received, together with any necessary endorsements or assignments. The Agent
shall apply the proceeds of collection of accounts, chattel paper, general
intangibles and instruments received by the Agent to the Obligations, such
proceeds to be immediately entered after final payment in cash or solvent
credits of the items giving rise to them.
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12. Further Assurances. Holdings, at its own expense, shall do, make,
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execute and deliver all such additional and further acts, things, deeds,
assurances and instruments as the Agent may require more completely to vest in
and assure to the Agent and the Banks their respective rights hereunder or in
any of the Collateral, including, without limitation, (i) executing, delivering
and, where appropriate, filing financing statements and continuation statements
under the Uniform Commercial Code, (ii) obtaining governmental and other third
party consents and approvals, including without limitation any consent of any
licensor, lessor or other applicable party referred to in (S)2.3, (iii)
obtaining waivers from mortgagees and landlords and (iv) taking all actions
required by Sections 8-313 and 8-321 of the Uniform Commercial Code (1990) or
Sections 8-106 and 9-115 of the Uniform Commercial Code (1994), as applicable in
each relevant jurisdiction, with respect to certificated and uncertificated
securities.
13. Power of Attorney.
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13.1. Appointment and Powers of Agent. Holdings hereby irrevocably
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constitutes and appoints the Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorneys-in-fact with
full irrevocable power and authority in the place and stead of Holdings or
in the Agent's own name, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and
all documents and instruments that may be necessary or desirable to
accomplish the purposes of this Agreement and, without limiting the
generality of the foregoing, hereby gives said attorneys the power and
right, on behalf of Holdings, without notice to or assent by Holdings, to
do the following:
(a) upon the occurrence and during the continuance of a
Default or an Event of Default, generally to sell, transfer,
pledge, make any agreement with respect to or otherwise deal with
any of the Collateral in such manner as is consistent with the
Uniform Commercial Code of the Commonwealth of Massachusetts and as
fully and completely as though the Agent were the absolute owner
thereof for all purposes, and to do at Holdings' expense, at any
time, or from time to time, all acts and things which the Agent
deems necessary to protect, preserve or realize upon the Collateral
and the Agent's security interest therein, in order to effect the
intent of this Agreement, all as fully and effectively as Holdings
might do, including, without limitation, (i) the filing and
prosecuting of registration and transfer applications with the
appropriate federal or local agencies or authorities with respect
to trademarks, copyrights and patentable inventions and processes,
(ii) upon written notice to Holdings, the exercise of voting rights
with respect to voting securities, which rights may be exercised,
if the Agent so elects, with a view to causing the liquidation in a
commercially reasonable manner of assets of the issuer of any such
securities and (iii) the execution, delivery and recording, in
connection with any sale or other
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disposition of any Collateral, of the endorsements, assignments or
other instruments of conveyance or transfer with respect to such
Collateral; and
(b) to file such financing statements with respect hereto,
with or without Holdings' signature, or a photocopy of this
Agreement in substitution for a financing statement, as the Agent
may deem appropriate and to execute in Holdings' name such
financing statements and amendments thereto and continuation
statements which may require Holdings' signature.
13.2. Ratification by Holdings. To the extent permitted by law,
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Holdings hereby ratifies all that said attorneys shall lawfully do or
cause to be done by virtue hereof. This power of attorney is a power
coupled with an interest and shall be irrevocable.
13.3. No Duty on Agent. The powers conferred on the Agent
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hereunder are solely to protect the interests of the Agent and the Banks
in the Collateral and shall not impose any duty upon the Agent to
exercise any such powers. The Agent shall be accountable only for the
amounts that it actually receives as a result of the exercise of such
powers and neither it nor any of its officers, directors, employees or
agents shall be responsible to Holdings for any act or failure to act,
except for the Agent's own gross negligence or willful misconduct.
14. Remedies. If an Event of Default shall have occurred and be
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continuing, the Agent may, without notice to or demand upon Holdings, declare
this Agreement to be in default, and the Agent shall thereafter have in any
jurisdiction in which enforcement hereof is sought, in addition to all other
rights and remedies, the rights and remedies of a secured party under the
Uniform Commercial Code, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Agent may, so far as
Holdings can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Agent may in its
discretion require Holdings to assemble all or any part of the Collateral at
such location or locations within the state(s) of Holdings' principal office(s)
or at such other locations as the Agent may designate. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, the Agent shall give to Holdings at least five
Business Days prior written notice of the time and place of any public sale of
Collateral or of the time after which any private sale or any other intended
disposition is to be made. Holdings hereby acknowledges that five Business Days
prior written notice of such sale or sales shall be reasonable notice. In
addition, Holdings waives any and all rights that it may have to a judicial
hearing in advance of the enforcement of any of the Agent's rights hereunder,
including, without limitation, its right following an Event of Default to take
immediate possession of the Collateral and to exercise its rights with respect
thereto. To the extent that any of the Obligations are to be paid or performed
by a person other than Holdings, Holdings waives and agrees not to assert any
rights or privileges which it may have
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under (S)9-112 of the Uniform Commercial Code of the Commonwealth of
Massachusetts.
15. No Waiver, etc. Holdings waives demand, notice, protest, notice of
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acceptance of this Agreement, notice of loans made, credit extended, Collateral
received or delivered or other action taken in reliance hereon and all other
demands and notices of any description. With respect to both the Obligations and
the Collateral, Holdings assents to any extension or postponement of the time of
payment or any other indulgence, to any substitution, exchange or release of or
failure to perfect any security interest in any Collateral, to the addition or
release of any party or person primarily or secondarily liable, to the
acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Agent may deem advisable. The Agent shall have no duty as to the collection or
protection of the Collateral or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof as set forth in (S)9.2. The
Agent shall not be deemed to have waived any of its rights upon or under the
Obligations or the Collateral unless such waiver shall be in writing and signed
by the Agent with the consent of the Majority Banks. No delay or omission on the
part of the Agent in exercising any right shall operate as a waiver of such
right or any other right. A waiver on any one occasion shall not be construed as
a bar to or waiver of any right on any future occasion. All rights and remedies
of the Agent with respect to the Obligations or the Collateral, whether
evidenced hereby or by any other instrument or papers, shall be cumulative and
may be exercised singularly, alternatively, successively or concurrently at such
time or at such times as the Agent deems expedient.
16. Marshalling. Neither the Agent nor any Bank shall be required to
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marshal any present or future collateral security (including but not limited to
this Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, Holdings hereby agrees that it will not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement
of the Agent's rights under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
Holdings hereby irrevocably waives the benefits of all such laws.
17. Proceeds of Dispositions; Expenses. Holdings shall pay to the Agent on
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demand any and all expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by the Agent in protecting, preserving or
enforcing the Agent's rights under or in respect of any of the Obligations or
any of the Collateral. After deducting all of said expenses, the residue of any
proceeds of collection or sale of the Obligations or Collateral shall, to the
extent actually
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received in cash, be applied to the payment of the Obligations in such order or
preference as the Bank may determine or in such order or preference as is
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provided in the Credit Agreement, proper allowance and provision being made for
any Obligations not then due. Upon the final payment and satisfaction in full of
all of the Obligations and after making any payments required by Section 9-
504(1)(c) of the Uniform Commercial Code of the Commonwealth of Massachusetts,
any excess shall be returned to Holdings, and Holdings shall remain liable for
any deficiency in the payment of the Obligations.
18. Overdue Amounts. Until paid, all amounts due and payable by Holdings
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hereunder shall be a debt secured by the Collateral and shall bear, whether
before or after judgment, interest at the rate of interest for overdue principal
set forth in the Credit Agreement.
19. Governing Law; Consent to Jurisdiction. THIS AGREEMENT IS INTENDED TO
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TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. Holdings agrees
that any suit for the enforcement of this Agreement may be brought in the courts
of the Commonwealth of Massachusetts or any federal court sitting therein and
consents to the non-exclusive jurisdiction of such court and to service of
process in any such suit being made upon Holdings by mail at the address
specified in (S)20 of the Credit Agreement. Holdings hereby waives any objection
that it may now or hereafter have to the venue of any such suit or any such
court or that such suit is brought in an inconvenient court.
20. Waiver of Jury Trial. HOLDINGS WAIVES ITS RIGHT TO A JURY TRIAL WITH
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RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH
THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY
SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, Holdings waives any
right which it may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. Holdings (i)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers and (ii) acknowledges that, in entering into the Credit
Agreement and the other Revolver Loan Documents to which the Agent or any Bank
is a party, the Agent and the Banks are relying upon, among other things, the
waivers and certifications contained in this (S)20.
21. Concerning Revised Article 9 of the Uniform Commercial Code. The
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parties acknowledge and agree to the following provisions of this Agreement in
anticipation of the possible application, in one or more jurisdictions to the
transactions contemplated hereby, of the revised Article 9 of the Uniform
Commercial Code in the form or substantially in the form approved by the
American Law Institute and the National Conference of Commissioners on Uniform
State Law and contained in the 1999 official text of Revised Article 9 ("Revised
Article 9").
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21.1. Attachment. In applying the law of any jurisdiction in which
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Revised Article 9 is in effect, the Collateral is all assets of Holdings,
whether or not within the scope of Revised Article 9. The Collateral shall
include, without limitation, the following categories of assets as defined in
Revised Article 9: goods (including inventory, equipment and any accessions
thereto), instruments (including promissory notes), documents, accounts
(including health-care-insurance receivables), chattel paper (whether tangible
or electronic), deposit accounts, letter-of-credit rights (whether or not the
letter of credit is evidenced by a writing), commercial tort claims, securities
and all other investment property, general intangibles (including payment
intangibles and software), supporting obligations and any and all proceeds of
any thereof, wherever located, whether now owned and hereafter acquired. If
Holdings shall at any time, whether or not Revised Article 9 is in effect in any
particular jurisdiction, acquire a commercial tort claim, as defined in Revised
Article 9, Holdings shall immediately notify the Agent in a writing signed by
Holdings of the brief details thereof and grant to the Agent in such writing a
security interest therein and in the proceeds thereof, all upon the terms of
this Agreement, with such writing to be in form and substance satisfactory to
the Agent.
21.2. Perfection by Filing. The Agent may at any time and from time to
--------------------
time, pursuant to the provisions of (S)13, file financing statements,
continuation statements and amendments thereto that describe the Collateral as
all assets of Holdings or words of similar effect and which contain any other
information required by Part 5 of Revised Article 9 for the sufficiency or
filing office acceptance of any financing statement, continuation statement or
amendment, including whether Holdings is an organization, the type of
organization and any organization identification number issued to Holdings.
Holdings agrees to furnish any such information to the Agent promptly upon
request. Any such financing statements, continuation statements or amendments
may be signed by the Agent on behalf of Holdings, as provided in (S)13, and may
be filed at any time in any jurisdiction whether or not Revised Article 9 is
then in effect in that jurisdiction.
21.3. Other Perfection, etc. Holdings shall at any time and from time
----------------------
to time, whether or not Revised Article 9 is in effect in any particular
jurisdiction, take such steps as the Agent may reasonably request for the Agent
(a) to obtain an acknowledgement, in form and substance satisfactory to the
Agent, of any bailee having possession of any of the Collateral that the bailee
holds such Collateral for the Agent, (b) to obtain "control" of any investment
property, deposit accounts, letter-of-credit rights or electronic chattel paper
(as such terms are defined in Revised Article 9 with corresponding provisions in
Rev. (S)(S) 9-104, 9-105, 9-106 and 9-107 relating to what constitutes "control"
for such items of Collateral), with any agreements establishing control to be in
form and substance satisfactory to the Agent, and (c) otherwise to insure the
continued perfection and priority of the Agent's security interest in any of the
Collateral and of the preservation of its
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rights therein, whether in anticipation and following the effectiveness of
Revised Article 9 in any jurisdiction.
21.4. Other Provisions. In applying the law of any jurisdiction in
----------------
which Revised Article 9 is in effect, the following references to sections in
this Agreement to existing Article 9 of that jurisdiction shall be to the
Revised Article 9 Section of that jurisdiction indicated below:
------------------------------------------------------------------------------------------------------------
Agreement Section Existing Article 9 Revised Article 9
------------------------------------------------------------------------------------------------------------
3 (S) 9-109(3) Rev. (S) 9-102(a)(34)
------------------------------------------------------------------------------------------------------------
9.2 (S) 0-000 Xxx. (X)0-000
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12 (S)(S) 8-106 and 9-115 (1994) Rev. (S)(S) 8-106 and 9-106
------------------------------------------------------------------------------------------------------------
17 (S) 9-504(1)(c) Rev. (S)(S) 9-608(a)(1)(C) and
9-615(a)(3)
------------------------------------------------------------------------------------------------------------
21.5. Savings Clause. Nothing contained in this (S)21 shall be
--------------
construed to narrow the scope of the Agent's security interest in any of
the Collateral or the perfection or priority thereof or to impair or
otherwise limit any of the rights, powers, privileges or remedies of the
Agent or any Bank hereunder except (and then only to the extent) mandated
by Revised Article 9 to the extent then applicable.
22. Miscellaneous. The headings of each section of this Agreement are for
-------------
convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon
Holdings and its respective successors and assigns, and shall inure to the
benefit of the Agent, the Banks and their respective successors and assigns. If
any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein.
Holdings acknowledges receipt of a copy of this Agreement.
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IN WITNESS WHEREOF, intending to be legally bound, Holdings has caused this
Agreement to be duly executed as of the date first above written.
NATIONAL RESTAURANT
ENTERPRISES HOLDINGS, INC.
By: /s/ A. Xxxxxxx Xxxxxx, Xx.
------------------------------
Title: Vice President
Accepted:
FLEET NATIONAL BANK,
as Agent
By: /s/ Xxxxx X. O'Xxxxx
----------------------------
Title: Authorized Officer
-15-
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OR STATE OF New York )
) ss.
COUNTY OF New York )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 29th day of June, 2001, personally appeared A. Xxxxxxx Xxxxxx
to me known personally, and who, being by me duly sworn, deposes and says that
he is the Vice President of National Restaurant Enterprises Holdings, Inc., and
that said instrument was signed and sealed on behalf of said corporation by
authority of its Board of Directors, and said A. Xxxxxxx Xxxxxx acknowledged
said instrument to be the free act and deed of said corporation.
/s/ Xxxx X. Xxxxxxxx
------------------------------
Notary Public
My commission expires:
