Exhibit 10.13
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AMENDED AND RESTATED SECURITY AGREEMENT
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AMENDED AND RESTATED SECURITY AGREEMENT, dated as of June 29, 2001, between
AMERIKING, INC., a Delaware corporation ("AmeriKing"), 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 lending institutions
(hereinafter, collectively, the "Banks") which are or may become parties to the
Credit Agreement dated as of June __, 2001 (as hereinafter defined).
WHEREAS, National Restaurant Enterprises, Inc. (the "Borrower"), AmeriKing,
the Agent and the Banks entered into a Fourth Amended and Restated Revolving
Credit Agreement dated as of December 24, 1998 (as amended and in effect from
time to time, the "Revolver Credit Agreement"), pursuant to which the Banks,
subject to the terms and conditions contained therein, provided certain
financial accommodations to the Borrower; and
WHEREAS, the Borrower, AmeriKing, the Agent and the Banks entered into an
Acquisition Revolving Credit Agreement dated as of December 24, 1998 (as amended
and in effect from time to time, the "Acquisition Credit Agreement" and
collectively with the Revolver Credit Agreement, the "Existing Credit
Agreements") pursuant to which the Banks, subject to the terms and conditions,
contained therein, provided further financial accommodations to the Borrower;
and
WHEREAS, in connection with the Existing Credit Agreements, AmeriKing
granted to the Agent, for the benefit of the Agent and the Banks, a security
interest in and lien on all of its assets in order to secure the payment and
performance of all of the Obligations pursuant to a Security Agreement dated as
of December 24, 1998 (as amended and in effect from time to time, the "Existing
Security Agreement"); and
WHEREAS, in connection with the Existing Credit Agreements, AmeriKing
executed and delivered to the Agent, for the benefit of the Agent and the Banks,
an Amended and Restated Guaranty dated as of December 24, 1998 (as amended and
in effect from time to time, the "Guaranty"), pursuant to which AmeriKing
guaranteed to the Agent and the Banks the payment and performance of the
Borrower's Obligations to the Banks and the Agent under or in respect to the
Existing Credit Agreements; and
WHEREAS, the parties to the Existing Credit Agreements and National
Restaurant Enterprises Holdings, Inc. ("Holdings") wish to consolidate, amend
and restate the Existing Credit Agreements in their entirety by entering into a
Consolidated, Amended and Restated Revolving Credit Agreement dated as of the
date hereof, by and among the Borrower, AmeriKing, Holdings, the Agent and the
Banks (as amended and in effect from time to time, the "Credit Agreement"); and
WHEREAS, AmeriKing and the Borrower are members of a group of related
entities, the success of either of which is dependent in part on the success of
the other members of such group; and
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WHEREAS, AmeriKing 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, AmeriKing has executed and delivered to the Agent for the benefit
of the Agent and the Banks, a Second Amended and Restated Guaranty dated as of
the date hereof (as amended and in effect from time to time, the "AmeriKing
Guaranty"), pursuant to which AmeriKing guaranteed to the Agent and the Banks
the payment and performance of the Borrower's Obligations to the Agent and the
Banks under or in respect of the Credit Agreement; and
WHEREAS, each of AmeriKing and the Agent wishes to continue and reaffirm
the grants of liens and security interests by AmeriKing in favor of the Agent
for the benefit of the Banks and the Agent; 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 AmeriKing execute and deliver to the Agent, for the benefit of the Banks
and the Agent, an amended and restated security agreement in substantially the
form hereof; and
WHEREAS, AmeriKing and the Agent now wish to amend and restate in its
entirety the Existing Security Agreement, for the benefit of the Agent and the
Banks as herein provided, which shall amend and restate in its entirety the
Existing Security Agreement, and the Existing Security Agreement shall remain in
force and effect only as set forth herein;
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:
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. AmeriKing (a) hereby ratifies and affirms
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the grants of security interests made pursuant to the Existing Security
Agreement, and (b) to the extent not covered under clause (a), further
grants to the Agent, for the benefit of the Banks and the Agent, to secure
the payment and performance in full of all of the Obligations and of
AmeriKing's obligations set forth in the AmeriKing Guaranty, a security
interest in and so pledges and assigns to the Agent, for the benefit of the
Banks and the Agent,
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the following properties, assets and rights of AmeriKing, 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 AmeriKing), 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 AmeriKing
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 AmeriKing, 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.
2.2. Delivery of Instruments, etc.
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(a) Pursuant to the terms hereof, AmeriKing 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
AmeriKing 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, AmeriKing 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 AmeriKing are uncertificated and are issued to AmeriKing or its
nominee directly by the issuer thereof, AmeriKing 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
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further consent of AmeriKing or such nominee. To the extent that any
securities, whether certificated or uncertificated, or other
investment property now or hereafter acquired by AmeriKing are held by
AmeriKing or its nominee through a securities intermediary or
commodity intermediary, AmeriKing 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 AmeriKing or such
nominee. The Agent agrees with AmeriKing 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 AmeriKing is a beneficiary under any
written letter of credit now or hereafter issued in favor of
AmeriKing, AmeriKing shall deliver such letter of credit to the Agent.
The Agent shall from time to time, at the request and expense of
AmeriKing, make such arrangements with AmeriKing as are in the Agent's
reasonable judgment necessary and appropriate so that AmeriKing may
make any drawing to which AmeriKing is entitled under such letter of
credit, without impairment of the Agent's perfected security interest
in AmeriKing's rights to proceeds of such letter of credit or in the
actual proceeds of such drawing. At the Agent's request, AmeriKing
shall, for any letter of credit, whether or not written, now or
hereafter issued in favor of AmeriKing 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
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of 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 AmeriKing as licensee,
lessee or otherwise, to the extent that (a) 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
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applicable party thereto and (b) such consent has not been obtained;
provided, however, that the foregoing grant of security interest shall
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extend to, and the term "Collateral" shall include, (i) 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
(ii) 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. AmeriKing is the owner of the Collateral
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free 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. AmeriKing's place of business or, if more than
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one, chief executive offices are indicated on the Perfection Certificate
delivered to the Agent herewith (the "Perfection Certificate"). AmeriKing will
not change the same, or the name, identity or corporate structure of AmeriKing
in any manner, without providing at least thirty (30) days prior written notice
to the Agent. The Collateral, 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 AmeriKing will not remove the Collateral from such locations, without
providing at least 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, AmeriKing shall be the owner of the
Collateral free from any lien, security interest or other encumbrance, and
AmeriKing 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. AmeriKing 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. AmeriKing will not sell or offer to sell or otherwise
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transfer the Collateral or any interest therein except for (a) sales and leases
of inventory and licenses of general intangibles in the ordinary course of
business and (b) 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. AmeriKing will maintain with
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financially sound and reputable insurers insurance with respect to its
properties and businesses 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 AmeriKing 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, AmeriKing will (a) 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, (b) maintain all such workers'
compensation or similar insurance as may be required by law and (c)
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 AmeriKing; 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
rights, if any, of other parties with a prior interest in the property
covered thereby, (a) 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 AmeriKing for direct application by
AmeriKing solely to the repair or replacement of AmeriKing's property so
damaged or destroyed and (b) 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 AmeriKing solely to the
repair or replacement of AmeriKing's 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 AmeriKing to provide and maintain
insurance as herein provided, the Agent may, at its option, provide such
insurance and charge the amount thereof to AmeriKing. AmeriKing shall
furnish the Agent with certificates of insurance and policies evidencing
compliance with the foregoing insurance provision.
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8. Maintenance of Collateral; Compliance with Law. AmeriKing will keep
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the 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. AmeriKing 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. AmeriKing has at all
times operated, and AmeriKing 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.
AmeriKing agrees to reimburse the Agent on demand for any and all
expenditures so made. The Agent shall have no obligation to AmeriKing to
make any such expenditures, nor shall the making thereof relieve AmeriKing
of any default.
9.2. Agent's Obligations and Duties. Anything herein to the contrary
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notwithstanding, AmeriKing shall remain liable under each contract or
agreement comprised in the Collateral to be observed or performed by
AmeriKing 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
AmeriKing 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
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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 AmeriKing 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, AmeriKing shall, at the
request of the Agent, notify account debtors on accounts, chattel paper and
general intangibles of AmeriKing and obligors on instruments for which AmeriKing
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 AmeriKing, so notify account debtors and obligors. After the making of such
a request or the giving of any such notification, AmeriKing shall hold any
proceeds of collection of accounts, chattel paper, general intangibles and
instruments received by AmeriKing as trustee for the Agent, for the benefit of
the Banks and the Agent, without commingling the same with other funds of
AmeriKing 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.
12. Further Assurances. AmeriKing, 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, (a) executing, delivering
and, where appropriate, filing financing statements and continuation statements
under the Uniform Commercial Code, (b) 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, (c) obtaining
waivers from mortgagees and landlords and (d) 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. AmeriKing 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 AmeriKing 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
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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 AmeriKing, without notice to or assent by
AmeriKing, 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 AmeriKing's 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 AmeriKing 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 AmeriKing, 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 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 AmeriKing's signature, or a photocopy of this Agreement in
substitution for a financing statement, as the Agent may deem
appropriate and to execute in AmeriKing's name such financing
statements and amendments thereto and continuation statements which
may require AmeriKing's signature.
13.2. Ratification by AmeriKing. To the extent permitted by law,
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AmeriKing 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 hereunder
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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
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AmeriKing 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 AmeriKing, 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
AmeriKing 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 AmeriKing to assemble all or any part of the Collateral at
such location or locations within the state(s) of AmeriKing's 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 AmeriKing
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. AmeriKing hereby acknowledges that
five Business Days prior written notice of such sale or sales shall be
reasonable notice. In addition, AmeriKing 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 AmeriKing, AmeriKing waives and agrees
not to assert any rights or privileges which it may have under (S)9-112 of the
Uniform Commercial Code of the Commonwealth of Massachusetts.
15. No Waiver, etc. AmeriKing 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, AmeriKing 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
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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, AmeriKing 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,
AmeriKing hereby irrevocably waives the benefits of all such laws.
17. Proceeds of Dispositions; Expenses. AmeriKing shall pay to the Agent
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on 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 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
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preference as is 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 AmeriKing, and
AmeriKing shall remain liable for any deficiency in the payment of the
Obligations.
18. Overdue Amounts. Until paid, all amounts due and payable by AmeriKing
---------------
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
--------------------------------------
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. AmeriKing 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 AmeriKing by mail at the address
specified in (S)20 of the Credit
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Agreement. AmeriKing 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. AMERIKING WAIVES ITS RIGHT TO A JURY TRIAL WITH
--------------------
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, AmeriKing 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. AmeriKing (a)
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 (b) 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
-----------------------------------------------------------
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").
21.1. Attachment. In applying the law of any jurisdiction in which
----------
Revised Article 9 is in effect, the Collateral is all assets of AmeriKing,
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 AmeriKing 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, AmeriKing shall immediately notify the Agent in a writing signed
by AmeriKing 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.
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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 AmeriKing 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 AmeriKing is an
organization, the type of organization and any organization identification
number issued to AmeriKing. AmeriKing 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 AmeriKing, 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. AmeriKing 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 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
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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
AmeriKing 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.
AmeriKing acknowledges receipt of a copy of this Agreement.
23. Transitional Arrangements. This Security Agreement shall amend and
-------------------------
restate in its entirety the Existing Security Agreement on the Closing Date. On
the Closing Date, the rights and obligations of the respective parties under the
Existing Security Agreement shall be subsumed within and governed by this
Security Agreement, provided that, the provisions of the Existing Security
-------- ----
Agreement shall continue to be in effect hereunder as set forth in (S)2.1.
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IN WITNESS WHEREOF, intending to be legally bound, AmeriKing has caused
this Agreement to be duly executed as of the date first above written.
AMERIKING, 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
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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 AmeriKing, 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:
