EXHIBIT 10.4
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SUPPLEMENT TO STOCK PLEDGE AGREEMENT
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This SUPPLEMENT TO STOCK PLEDGE AGREEMENT is made as of June 29, 2001, by
and 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 the other lending
institutions (hereinafter, collectively, the "Banks") which are or may become
parties to the Credit Agreement (as hereinafter defined).
WHEREAS, 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") and provided financing in connection with the acquisition of Burger
King Restaurants pursuant to the 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"); and
WHEREAS, in connection with the Existing Credit Agreements, AmeriKing
granted to the Agent, for the benefit of the Banks and the Agent, an Amended and
Restated Stock Pledge Agreement dated as of December 24, 1998 (as amended and in
effect from time to time, the "Stock Pledge Agreement"); and
WHEREAS, the parties to the Existing Credit Agreements and National
Restaurant Enterprises Holdings, Inc. ("Holdings") agreed 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 Banks and the
Agent (as amended and in effect from time to time, the "Credit Agreement"); and
WHEREAS, it is a condition precedent to the Agent and the Banks entering
into the Credit Agreement, and 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, a supplement to the Stock
Pledge Agreement in substantially the form hereof; and
WHEREAS, each of AmeriKing and the Agent wishes to supplement the Stock
Pledge Agreement for the benefit of the Agent and the Banks as herein provided,
and the Stock Pledge Agreement shall remain in full force and effect as set
forth therein and as supplemented hereby; and
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);
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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. References. The parties hereto acknowledge and agree that (a) each
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reference to "Loan Documents" in the Stock Pledge Agreement shall be deemed to
include each of the "Revolver Loan Documents" as defined in the Credit
Agreement, and (b) each reference to the "Credit Agreements" in the Stock Pledge
Agreement shall be deemed to be a reference to the Credit Agreement.
2. Pledge of Stock. Holdings shall be one of the "Subsidiaries" under
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the Stock Pledge Agreement, and AmeriKing shall be bound by the terms thereof
with respect to Holdings. AmeriKing hereby pledges, assigns, grants a security
interest in, and delivers to the Agent, all of its shares of capital stock of
Holdings other than Voting Stock, as more fully described on Annex A hereto, to
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be held by the Agent, subject to the terms and conditions set forth in the Stock
Pledge Agreement.
3. Amendment to Annex A. Annex A of the Stock Pledge Agreement is hereby
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amended by deleting Annex A in its entirety and substituting in place thereof
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the Annex A attached hereto.
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4. Counterparts. This Supplement to Stock Pledge Agreement may be
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executed in one or more counterparts, each of which shall be deemed an original
but which together shall constitute one and the same instrument.
5. Governing Law. THIS SUPPLEMENT TO STOCK PLEDGE AGREEMENT SHALL BE
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GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICT OF LAWS).
6. Effectiveness. This Supplement to Stock Pledge Agreement shall become
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effective as of the date hereof upon receipt by the Agent of counterparts of
this Supplement to Stock Pledge Agreement duly executed by each of AmeriKing,
the Agent and Holdings.
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IN WITNESS WHEREOF, intending to be legally bound, AmeriKing and the Agent have
caused this Supplement to Stock Pledge Agreement to be executed as of the date
first above written.
AMERIKING, INC.
By: /s/ A. Xxxxxxx Xxxxxx, Xx.
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Title: Vice President
FLEET NATIONAL BANK (f/k/a
BankBoston, N.A.), as Agent
By: /s/ Xxxxx X. O'Xxxxx
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Title: Authorized Officer
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The undersigned Subsidiary hereby joins in the above Supplement to the
Stock Pledge Agreement and the Stock Pledge Agreement for the sole purpose of
consenting to and being bound by the provisions of (S)(S)4, 6 and 7 of the Stock
Pledge Agreement, the undersigned hereby agreeing to cooperate fully and in good
faith with the Agent and AmeriKing in carrying out such provisions.
NATIONAL RESTAURANT ENTERPRISES
HOLDINGS, INC.
By: /s/ A. Xxxxxxx Xxxxxx, Xx.
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Title: Vice President
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ANNEX A TO PLEDGE AGREEMENT
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None of the issuers has any authorized, issued or outstanding shares of its
capital stock of any class or any commitments to issue any shares of its capital
stock of any class or any securities convertible into or exchangeable for any
shares of its capital stock of any class except as otherwise stated in this
Annex A.
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Number
Number of of Number of Par or
Record Class of Authorized Issued Outstanding Liquidation
Issuer Owner Shares Shares Shares Shares Value
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Holdings AmeriKing Class B 190,100 190,100 190,100 $0.01
Common
