EXHIBIT E
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FORM OF ASSIGNMENT OF CONTACTS
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ASSIGNMENT OF CONTRACTS, LICENSES,
PERMITS AND AGREEMENTS
This ASSIGNMENT OF CONTRACTS, LICENSES, PERMITS AND AGREEMENTS (the
"Assignment"), dated as of the ___ day of July, 1997 by and between AFC
ENTERPRISES, INC., a Minnesota corporation, having an xxxxxx xx Xxx Xxxxxxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000 ("Assignor") and BANCO POPULAR
DE PUERTO RICO, having an office at 0 Xxxx 00/xx/ Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Assignee"). All capitalized terms appearing herein and not defined
herein shall have the meanings set forth in that certain Credit Agreement, dated
as of the date hereof, between Assignor and Assignee (the "Credit Agreement").
RECITALS
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A. [Assignor is the actual, record and beneficial owner of the real
property more particularly described in Schedule A attached hereto and by this
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reference made a part hereof (the "Land"), together with the improvements
located thereon (the "Improvements"; the Land and the Improvements,
collectively, the "Premises")./Assignor is the actual and beneficial owner of
the leasehold interest in the real property more particularly described in
Schedule A attached hereto and by this reference made a part hereof (the
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"Property"), together with a leasehold interest in the improvements located
thereon (the "Improvements"; the Property and the Improvements, collectively,
the "Premises") pursuant to that certain lease dated __________, 199__ (the
"Lease") between ___________, as landlord, and Assignor, as tenant.]
B. Assignee has agreed to make a loan to Assignor in the maximum
principal amount of $_________ (the "Loan") to, among other things, finance
Assignor's acquisition of the Premises and construction of the Improvements.
C. The Loan will be evidenced by the Note and secured by, among other
things, the Mortgage.
D. Assignee is the owner and holder of the Note and the Mortgage.
E. Assignor will derive substantial benefit from the Loan.
F. Assignor may, from time to time, enter into written agreements
relating to or pertaining to services to the Premises or the management,
operation, sale, leasing, construction or renovation of the Premises
(hereinafter, the aforesaid agreements are collectively referred to as the
"Agreements").
G. To induce Assignee to make the Loan to Assignor, and as a precondition
thereof, Assignee requires that Assignor assign to Assignee all of its right,
title and interest in and to the Agreements as additional security for the Note
and the Mortgage on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, receipt of which is
hereby acknowledged, Assignor agrees as follows:
1. For the purpose set forth below and subject to the terms of this
Assignment, Assignor hereby assigns and transfers to Assignee, to the extent the
same are assignable, all of Assignor's rights, privileges, and interests under,
in and to (i) the Agreements, (ii) any existing or future licenses, operating
agreements or certificates Assignor may enter into with or receive from any
Governmental Authority (the "Licenses"), and (iii) any existing or future
permits, approvals or agreements Assignor may enter into with or receive from
any Governmental Authority (the "Permits"). Assignor agrees that it will timely
perform all of its obligations with respect to the Licenses and Permits and that
it will use its best efforts to keep the Licenses and Permits in full force and
effect to the extent such Licenses and Permits are required in connection with
the ownership, use, operation or occupancy of the Premises.
2. This Assignment is given for the purpose of further securing the
performance by Assignor of all of its obligations to Assignee under the Note,
the Credit Agreement, the Mortgage and the other Loan Documents executed by
Borrower to secure the Note to the extent of the outstanding principal balance
of the Note and all accrued interest thereon and all costs and expenses incurred
in connection with said Note, the Mortgage and the Premises, and accordingly,
upon the payment in full of all such indebtedness evidenced by the Note, and
satisfaction of all of Assignor's other obligations to Assignee under the Note
and the Mortgage, this Assignment shall automatically become null and void;
provided, however, that Assignee shall execute and deliver to Assignor such
documents as may be reasonably requested by Assignor to evidence such
termination. Further, upon satisfaction of the Mortgage securing the Note, this
Assignment shall automatically become null and void.
3. Prior to the earlier to occur of: (i) performance in full of the
Agreements by Assignor or (ii) Assignee's acquisition of title to the Premises,
by foreclosure or otherwise, Assignor agrees that it will timely perform all of
its obligations under the Agreements in accordance with the terms of the
Agreements unless Assignor shall then be contesting the same in good faith and
by appropriate proceedings.
4. For the purposes and subject to the terms set forth herein, this
Assignment is an absolute, unconditional and presently effective assignment from
Assignor to Assignee of all of Assignor's rights under, in and to the
Agreements, the Licenses and the Permits. Notwithstanding the foregoing, prior
to any Event of Default by Assignor under the Note, the Credit Agreement, the
Mortgage or any other Loan Document, Assignor shall, subject to the
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terms and conditions of this Assignment, have the right to use, employ and
enforce its rights under the Agreements, the Licenses and the Permits.
5. Upon the occurrence and during the continuance of any Event of Default
by Assignor under the Note, the Credit Agreement, the Mortgage or any other Loan
Document, Assignee shall be entitled to exercise all or any of its remedies
under the Note, the Credit Agreement, the Mortgage or under this Assignment, or
as may otherwise be available to Assignee at law or in equity, in such order as
Assignee may elect.
6. Notwithstanding any legal presumption to the contrary, it is not the
intent that Assignee shall be obligated by reason of acceptance of this
Assignment to perform any obligation of Assignor under the Agreements, the
Licenses or the Permits, and Assignor hereby agrees to indemnify Assignee and
save it harmless from and against any loss, liability or damage in connection
with any claim arising out of the said Agreements, the Licenses, the Permits or
this Assignment which arise or accrue during the period of Assignor's ownership
of the Premises and prior to the time, if any, that Assignee becomes a
mortgagee-in-possession, except for Assignee's gross negligence or willful
misconduct. However, Assignee may, at its option, and without releasing Assignor
from any obligation hereunder, discharge any obligation which Assignor fails to
discharge within any applicable cure period under said Agreements, Licenses or
Permits, including, without limitation, defending any legal action unless
Assignor shall then be contesting the same in good faith and by appropriate
proceedings, and Assignor agrees to pay immediately upon demand all reasonable
sums expended by Assignee in connection therewith, including reasonable counsel
fees, together with interest thereon at the Default Rate (as defined in the
Note), and the same shall be added to the indebtedness evidenced by the Note and
secured by the Mortgage.
7. Assignor hereby represents and warrants to Assignee that:
(a) Assignor has not executed any prior assignment of any of its
rights under the Agreements, the Licenses or the Permits, except to Assignee
pursuant to this Assignment.
(b) To the best of Assignor's knowledge, the Agreements now existing
are in full force and effect and unmodified, and there are no defaults, or
events which with the giving of notice or passage of time, or both, would
constitute a default under any Agreement except as heretofore disclosed to
Assignee;
(c) To the best of Assignor's knowledge, Assignor's interest in the
Agreements is not subject to any claims, setoffs, encumbrances or deductions;
(d) To the best of Assignor's knowledge, all material covenants,
conditions and agreements have been performed as required by the Agreements by
all parties thereto, except those which are not due to be performed until after
the date of this Assignment; and
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(e) To the best of Assignor's knowledge, the Licenses and Permits now
existing are in full force and effect and have not been rescinded or terminated.
8. This Assignment shall be binding upon Assignor and its successors and
assigns, including any subsequent owner of the Premises and shall inure to the
benefit of Assignee and its successors and assigns.
9. All notices or demands hereunder shall be in accordance with the
provisions of Section 9.2 of the Credit Agreement.
10. This Assignment shall be construed, interpreted, and enforced
according to the laws of the State of New York without regard to principles of
conflict of laws.
11. No term or condition of this Assignment may be waived, changed,
terminated, or modified orally, by course of conduct or in any manner other than
by an agreement in writing signed by the party against whom enforcement is
sought.
IN WITNESS WHEREOF, Assignor has duly executed this Assignment the day and
year first above written.
AFC ENTERPRISES, INC.,
a Minnesota corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
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SCHEDULE A
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[LEGAL DESCRIPTION]
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