MBP DRAFT - 11/12/96
EXHIBIT __
FORM OF INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT (this "Intercreditor Agreement"), dated as of
December __, 1996, between Burger King Corporation ("BKC"), AmeriKing, Inc.,
(the "Company") and its wholly owned subsidiaries, National Restaurant
Enterprises, Inc., AmeriKing Virginia Corporation I, AmeriKing Colorado
Corporation I, AmeriKing Illinois Corporation I, AmeriKing Tennessee
Corporation I and AmeriKing Cincinnati Corporation I, Xxxxxxxx X. Xxxx, Xxxxxxx
Xxxxxx and Xxxx Xxxxxx (each an "Obligor" and collectively, the "Obligors") and
Fleet National Bank, as trustee under the indenture referred to below (the
"Trustee").
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 Obligors;
WHEREAS, BKC has leased the premises on which the Restaurants are
located to certain Obligors pursuant to several Lease/Sublease Agreements (the
"Leases");
WHEREAS, BKC has required the execution and delivery of this Agreement
by the Obligors and Trustee;
WHEREAS, the Company is executing and delivering to the Trustee an
indenture (the "Indenture"), dated as of the date hereof, providing for the
issuance of an aggregate principal amount of $100,000,000 of ______% Senior
Notes due 2006 (the "Senior Notes");
WHEREAS, pursuant to Section 1.05 of the 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
Obligors, BKC and the Trustee mutually covenant and agree as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. No Recourse Against Others. No officer, employee, director or
stockholder of the Obligor shall have any liability for any Obligations of the
Company or any Obligor under the Senior Notes, the Indenture or this
Intercreditor Agreement or for any claim based on, in respect of, or by reason
of, such Obligations or their creation of any such Obligation. Each Holder by
accepting a Senior Note waives and releases all such liability, and such waiver
and release is part of the consideration for the issuance of the Senior Notes.
3. BKC Senior Indebtedness. The term "BKC Senior Indebtedness" shall
mean all indebtedness, liabilities and other obligations of the Obligors to BKC
payable under the Franchise Agreements, the Leases or any other indebtedness of
the Obligors to BKC, whenever and however arising, whether primary or
secondary, absolute or contingent, and including charges and costs of
collection (including reasonable counsel fees); provided, in the case of
indebtedness, that such indebtedness was permitted by the Indenture at the time
of incurrence.
4. Petition Date. The term "Petition Date" shall mean the date on
which any Obligor files a case under the Bankruptcy Law.
5. Subordination. Notwithstanding anything to the contrary contained
in the Senior Notes or the Indenture or any other agreement between the
Obligors and the holders of the Senior Notes or the Trustee to the contrary,
including without limitation any guarantees of such Obligors with respect to
the Senior Notes, payment of or on account of any obligation of the Obligors
with respect to the Senior Notes shall, on the terms and conditions hereof, be
subordinated and subject in right of payment to the prior payment in full of
BKC Senior Indebtedness, provided, however, that prior to the Petition Date,
payments of interest in the ordinary course of business and payments of
principal (including voluntary prepayments) may be made on account of the
Senior Notes in accordance with the terms of the 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 Senior Notes.
6. Insolvency Proceedings. In the event of any bankruptcy, insolvency,
reorganization, receivership, composition, assignment for benefit of creditors,
or other similar proceeding initiated by or against any Obligor or any
dissolution or winding up or total or partial liquidation or reorganization of
any Obligor, whether voluntary or involuntary (any of the events just described
in respect of the Obligors being hereinafter referred to as a "Proceeding"),
and upon payment or distribution of any assets of any Obligor in any
Proceeding, all BKC Senior Indebtedness shall first be paid in full before the
holders of the Senior Notes shall receive or retain any assets so paid or
distributed in respect of any obligation of any Obligor with respect to the
Senior Notes; and, in connection with any such Proceeding any payment or
distribution of assets of any Obligor to which the holders of the
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Senior Notes would be entitled, except for the provisions hereof, shall be paid
by the Obligor or by any receiver, trustee, assignee for benefit of creditors,
agent or other person making such payments or distribution, or by the holders
of the Senior Notes 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 Senior
Notes.
7. Intentionally Omitted.
8. No Waiver. No right of any present or future holder of, or trustee
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 any noncompliance by
the 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. Choice of Law; Jurisdiction and Venue. This Intercreditor Agreement
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
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.
10. Counterparts. The parties may sign any number of copies of this
Intercreditor Agreement. Each signed copy shall be an original, but all of them
together represent the same agreement.
11. Effect of Headings. The Section headings herein are for
convenience 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:
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AMERIKING, INC.
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By:
Title:
Attest:
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Name:
Title:
BURGER KING CORPORATION
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By:
Title:
Attest:
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Name:
Title:
AmeriKing Virginia Corporation I
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Attest:
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Name:
Title:
AmeriKing Colorado Corporation I
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Attest:
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Name:
Title:
AmeriKing Illinois Corporation I
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Attest:
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Name:
Title:
AmeriKing Tennessee Corporation I
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Attest:
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Name:
Title:
AmeriKing Cincinnati Corporation I
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Attest:
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Name:
Title:
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Xxxxxxxx X. Xxxx
Attest:
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Name:
Title:
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Xxxxxxx Xxxxxx
Attest:
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Name:
Title:
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Xxxx Xxxxxx
Attest:
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Name:
Title:
FLEET NATIONAL BANK, as Trustee
By:
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Name:
Title:
Attest:
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Name:
Title:
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