EXHIBIT 10.12
SECOND AMENDMENT TO
FORMULA AGREEMENT
This Second Amendment to Formula Agreement (the "Second Amendment") is
effective the 21st day of March, 1989.
WHEREAS, on July 2, 1979, X. Xxxxxxxx Enterprises, Inc., a Louisiana
corporation ("ACE"), Popeyes Famous Fried Chicken, Inc., a Louisiana corporation
("Popeyes"), Xxxxx X. Xxxxxxxx ("Xxxxxxxx"), and certain other individuals (the
"Other Parties") entered an agreement providing for the licensing to ACE and
Popeyes of certain secret recipes, formulated and processes (the "Formula") used
in the preparation of food products sold by Popeyes Famous Fried Chicken
restaurants owned and operated by ACE and franchised by Popeyes (the "Formula
Agreement");
WHEREAS, subsequent to July 2, 1979, Xxxxxxxx and ACE acquired all of
the rights of the Other Parties in the Formula;
WHEREAS, subsequent to July 2, 1979, ACE and Popeyes each were merged
with and into Biscuit Investments, Inc., a Louisiana corporation
("Investments");
WHEREAS, subsequent to July 2, 1979, the facilities of ACE used to
manufacture spices, batter and other food products and ingredients prepared with
the Formula for use by Popeyes restaurants were conveyed to New Orleans Spice
Company, Inc., a Louisiana corporation ("Spice"), along with ACE's ownership
interest in the Formula;
WHEREAS, on March 21, 1989, Spice and Investments entered into a Supply
Contract whereby Spice agreed to sell and Investments agreed to purchase all of
Investments' requirements of spices, batter and other food products and
ingredients prepared with the Formula;
WHEREAS, on March 21, 1989, Xxxxxxxx, Investments and Spice entered into
an amendment to the Formula Agreement providing for, among other things, the
payment by Investments to Xxxxxxxx and Spice of certain royalties for the use of
the Formula; and
WHEREAS, pursuant to an amended and Restated Agreement and Plan of
Merger, and effective September 21, 1989, Investments will be merged with and
into Church's Fried Chicken, Inc., which will be the survivor of such merger and
will be renamed "Xx Xxxxxxxx Enterprises, Inc." at the effective time thereof;
and
WHEREAS, pursuant to the Amended and Restated Merger Loan Agreement
dated September 21, 1989, among Investments, Canadian Imperial Bank of Commerce,
New York Agency, as Agent (the "Agent"), and the financial institutions that are
parties thereto (the "Merger Loan Agreement"), Biscuit is required to deliver to
the
Agent, as a condition to the making of the loans provided for under the Merger
Loan Agreement (the "Loans"), this Second Amendment.
NOW THEREFORE, in consideration of the premises, the mutual covenants
set forth herein, and the individual and collective benefits to Xxxxxxxx,
Investments and Spice of the Merger Loan Agreement and the Loans, the parties
hereto agree as follows:
1. Xxxxxxxx warrants that the Formula, and detailed instructions
with respect thereto, have been committed to writing and have been deposited in
a safety deposit box at First National Bank of Commerce, New Orleans, Louisiana.
In the event of the unavailability, incapacity or death of Xxxxxxxx,
arrangements have been made that one of the senior officers of Spice will always
be in a position to gain access to the Formula so that it will always be
available to Spice.
2. The Formula Agreement, as amended, may not be amended after the
execution date of this Amendment without the written consent of the Agent for so
long as any of the Loans or any obligations (as such term is defined in the
Merger Loan Agreement) are unpaid.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be executed on this 21st day of September, 1989.
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
BISCUIT INVESTMENTS, INC.
BY: /s/
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Title: Executive Vice President
NEW ORLEANS SPICE COMPANY, INC.
BY: /s/
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Title: Secretary and Treasurer
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