Exhibit 10.60
INTERCREDITOR AGREEMENT
(NRE HOLDINGS SENIOR NOTES
AND WARRANTS)
INTERCREDITOR AGREEMENT (this "Intercreditor Agreement"), dated as of June
29, 2001 among Burger King Corporation ("BKC"), AmeriKing, Inc. (the "Company"),
National Restaurant Enterprises Holdings, Inc. ("Holdings"), National Restaurant
Enterprises, Inc., AmeriKing Colorado Corporation I, AmeriKing Indiana Holdings,
Inc., AmeriKing Tennessee Corporation I and AmeriKing Indiana, L.P.
(collectively the "Franchisees"), and Xxxxxxxx X. Xxxx (the "Individual Owner")
and State Street Bank and Trust Company, as successor trustee under the
indenture referred to below (the "Trustee"). Holdings, the Company, the
Franchisees and the Individual Owner are collectively the "BKC Obligors" and
individually a "BKC Obligor."
W I T N E S S E T H
WHEREAS, BKC has issued certain franchise agreements for Burger King
restaurants (the "Franchise Agreements" and the "Restaurants," respectively) to
certain Franchisees;
WHEREAS, BKC has leased the premises on which certain of the Restaurants
are located to certain Franchisees pursuant to several Lease/Sublease Agreements
(the "Leases");
WHEREAS, the Company and the Individual Owner have, pursuant to various
guarantees and agreements (collectively, the "Guarantees"), guaranteed to BKC
the payment and performance of all of the Franchisees' respective obligations to
BKC under the Franchise Agreements, the Leases, and certain other agreements
(collectively, the "BKC Agreements");
WHEREAS, Holdings is a newly incorporated wholly owned subsidiary of the
Company;
WHEREAS, the Company and the Trustee have entered into an Indenture dated
as of December 3, 1996 with respect to the Company's 10 3/4% Senior Notes due
2006 (the "Senior Notes");
WHEREAS, Holdings is executing and delivering to the Trustee an Indenture,
dated as of the date hereof (the "Holdings Indenture"), providing for the
issuance of its 10 3/4% Senior Notes due 2007 ("Holdings' Senior Notes"), its
13% Senior PIK Notes due 2008 ("Holdings' Senior PIK Notes") (the Holdings'
Senior Notes and Holdings' Senior PIK Notes are collectively referred herein to
as the "Holdings' Senior Notes") and warrants ("Holdings' Warrants") to purchase
an aggregate of 50,000 shares of its common stock, par value $.01 per share (the
Holdings' Senior Notes, Holdings' Senior PIK Notes and Holdings' Warrants are
collectively referred to herein as the "Securities"), in exchange for all of the
outstanding Senior Notes (the "Exchange Offer");
WHEREAS, in connection with certain approvals that the BKC Obligors are
seeking from BKC, BKC has required the execution and delivery of this
Intercreditor Agreement by the BKC Obligors and the Trustee; and
WHEREAS, pursuant to Section 1.05 of the Holdings Indenture, the Trustee is
authorized to execute and deliver this Intercreditor Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the BKC
Obligors, BKC and the Trustee mutually covenant and agree as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
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shall have the meanings assigned to them in the Indenture.
2. No Recourse Against Franchisees or Others. None of the Franchisees,
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none of the Individual Owners, and no officer, employee, director or stockholder
of Holdings or the Company shall have any liability for any obligations of
Holdings or otherwise in favor of holders of any of the Securities (individually
a "Holder" and collectively, the "Holders") or the Trustee created by or under
any of the Securities or the Holdings Indenture (all such obligations are
collectively referred to as the "Obligations"). Each Holder, by accepting a
Holdings Senior Note or Holdings Warrant, as the case may be, waives and
releases all such liability, and such waiver and release is part of the
consideration for the issuance of such Holdings' Senior Note or Holdings'
Warrant.
3. BKC Senior Indebtedness. The term "BKC Senior Indebtedness" shall
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mean all indebtedness, liabilities and other obligations of the BKC Obligors or
any of them to BKC payable under the Guarantees or the BKC Agreements or
otherwise and any other indebtedness of the BKC Obligors to BKC, whenever and
however arising, whether primary or secondary, absolute or contingent, mature or
unmatured, and including charges and costs of collection (including reasonable
counsel fees); provided, in the case of indebtedness for Borrowed Money (as
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defined below) that such indebtedness was permitted by the Holdings Indentures
at the time of incurrence. "Borrowed Money" means funds advanced by BKC to a
BKC Obligor for new value, including purchase money obligations incurred by a
BKC Obligor, but expressly excluding any indebtedness to BKC now outstanding,
any obligations accruing pursuant to Franchise Agreements or Leases (including
accrued obligations that become evidenced by a promissory note or other
instrument), and any other obligations accruing to BKC in the ordinary course of
business.
4. Petition Date. The term "Petition Date" shall mean the date on which
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any BKC Obligor files a case, or has a case filed against it, under the
Bankruptcy Law. The term "Bankruptcy Law" shall mean the United States
Bankruptcy Code, 11 U.S.C. (S)101 et seq. or any similar insolvency or
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reorganization law affecting the rights of creditors generally.
5. Subordination. Notwithstanding anything to the contrary contained in
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any of the Securities, the Holdings Indenture, or any other agreement between
any BKC Obligor and the Holders or the Trustee to the contrary, payment of or on
account of any obligation of the BKC Obligors with respect to the Securities
shall, on the terms and conditions hereof, be subordinated and subject in the
right of payment to the prior payment in full of BKC Senior Indebtedness,
provided, however, that prior to any Petition Date, payments of interest and
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principal in the ordinary course of business and voluntary prepayments of
principal may be made on account of the Securities in accordance with the terms
of the Holdings Indenture so long as no default shall have occurred and be
continuing in the payment when due of any of the BKC Senior Indebtedness as to
which the Trustee shall have received written notice from BKC, which notice
shall be effective immediately upon receipt but shall expire and cease to be
effective for purposes of this clause not later than 179 days thereafter. The
Trustee will provide BKC notice of acceleration as a result of default in the
Holdings' Senior Notes or the Holdings' Warrants.
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6. Payment Upon Default. In the event (i) that any of the BKC Obligors
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shall be in default in respect of payment of any BKC Senior Indebtedness, or
(ii) that any event shall have occurred and be subsisting or any condition shall
exist which entitles, or which after notice or lapse of time or both would
entitle any holder of any BKC Senior Indebtedness to declare the same to be due
and payable prior to its express due date, subject to Section 5 hereof, then all
BKC Senior Indebtedness shall first be paid in full before any payment is made
on account of any obligation of any of the BKC Obligors to any of the Holders or
to the Trustee.
7. Insolvency Proceedings. In the event of any bankruptcy, insolvency,
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reorganization, receivership, assignment for benefit of creditors, or other
similar proceeding initiated by or against any BKC Obligor or any dissolution or
winding up or total or partial liquidation or reorganization of any BKC Obligor,
whether voluntary or involuntary (any of the events just described in respect of
the BKC Obligors being hereinafter referred to as a "Proceeding"), the Holders
and the Trustee hereby agree to use their best efforts to diligently prosecute
and collect their claims in such Proceeding, and shall be reimbursed by BKC for
that part of the reasonable fees and expenses incurred by them in such
prosecution and collection that is in proportion to BKC's distributed share of
the total amount collected by them. Upon payment or distribution of any assets
of any BKC Obligor in any Proceeding, all BKC Senior Indebtedness shall first be
paid in full before the holders of the Securities shall receive or retain any
assets so paid or distributed in respect of any obligation of any BKC Obligor
with respect to the Securities; and, in connection with any such Proceeding, any
payment or distribution of assets of any BKC Obligor to which the holders of the
Securities would be entitled, except for the provisions hereof, shall be paid by
the BKC Obligor or by any receiver, trustee, assignee for benefit of creditors,
agent or other person making such payments or distribution, or by any of the
Holders or the Trustee if received by them, to the then holder of BKC Senior
Indebtedness to the extent necessary to pay all BKC Senior Indebtedness in full
(after giving effect to any concurrent payment or distribution to or for the
account of the holders of BKC Senior Indebtedness or their representatives)
before any payment or distribution is made on the Securities.
8. No Waiver. No right of any present or future holder of, or trustee
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for, any BKC Senior Indebtedness to enforce the subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act, in good faith, by any such holder, or by a noncompliance by a BKC Obligor
with the terms, provisions and covenants hereof, regardless of any knowledge
thereof any such holder may have or with which any such holder may otherwise be
charged.
9. Continuing Offer. The provisions hereof shall constitute a continuing
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offer to BKC and to all other persons who, in reliance upon such provisions,
become holders of or continue to hold BKC Senior Indebtedness, and such
provisions are made for the benefit of the holders of BKC Senior Indebtedness,
and such holders are hereby made obligees hereunder the same as if their names
were written herein as such, and they and/or each of them may proceed to enforce
such provisions.
10. Choice of Law; Jurisdiction and Venue. This Intercreditor Agreement
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shall be governed by and construed in accordance with the laws of the State of
Florida. The parties hereto acknowledge and agree that the United States
District Court for the Southern District of Florida, or if such court lacks
jurisdiction, the 11th Judicial Court (or its successor) in and for Dade County,
Florida, shall be the venue and exclusive proper forum in which to adjudicate
any case or controversy arising, either directly or indirectly, under or in
connection with this Agreement, the BKC Agreements, or related documentation and
any other agreement between BKC and any party hereto, and the parties further
agree that, in the event of litigation arising out of or in
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connection with this Intercreditor Agreement, the BKC Agreements, or related
documentation or any other agreement between BKC and any party hereto in these
courts, they will not contest or challenge the jurisdiction or venue of these
courts.
11. Counterparts. The parties may sign any number of copies of this
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Intercreditor Agreement. Each signed copy shall be an original, but all of them
together represent the same agreement.
12. Effect of Heading. The Section headings herein are for convenience
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only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor
Agreement to be duly executed and attested, all as of the date first above
written.
Dated: June 29, 2001
BURGER KING CORPORATION
By: /s/ Xxxx Xxxxx-Xxxxx
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Print Name: Xxxx Xxxxx-Xxxxx
Title: Senior Attorney
AMERIKING, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Print Name: Xxxxxxxx X. Xxxx
Title: Chief Executive Officer
NATIONAL RESTAURANT
ENTERPRISES HOLDINGS, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Print Name: Xxxxxxxx X. Xxxx
Title: Chief Executive Officer
NATIONAL RESTAURANT
ENTERPRISES, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Print Name: Xxxxxxxx X. Xxxx
Title: Chief Executive Officer
AMERIKING COLORADO
CORPORATION I
By: /s/ Xxxxxxxx X. Xxxx
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Print Name: Xxxxxxxx X. Xxxx
Title: Chief Executive Officer
AMERIKING INDIANA HOLDINGS,
INC.
By: /s/ Xxxxxxxx X. Xxxx
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Print Name: Xxxxxxxx X. Xxxx
Title: Chief Executive Officer
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AMERIKING TENNESSEE
CORPORATION I
By: /s/ Xxxxxxxx X. Xxxx
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Print Name: Xxxxxxxx X. Xxxx
Title: Chief Executive Officer
AMERIKING INDIANA, L.P.
By: /s/ Xxxxxxxx X. Xxxx
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Print Name: Xxxxxxxx X. Xxxx
Title: Chief Executive Officer
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
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Print Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
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