RESIGNATION, APPOINTMENT AND ACCEPTANCE AGREEMENT
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THIS AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this
"Agreement") dated as of October 31, 2000, by and among First Union
National Bank (formally known as First Union National Bank of North
Carolina), a national banking association and trust company duly
organized and existing under the laws of the United States of America
(the "Prior Trustee"), Bank One, N.A., a national banking association
duly organized and existing under the laws of the United States of
America (the "Successor"), and Cooker Restaurant Corporation (the
"Company"). This instrument shall be governed by and construed in
accordance with the laws of the State of Ohio.
WHEREAS, the Company issued its $23,000,000 6.75% Convertible
Subordinated Debentures Due 2002 of which $12,533,000 are outstanding
(the "Notes"), under an Indenture dated as of October 26, 1992 (the
"Indenture"), between the Company and the Prior Trustee; and
WHEREAS, the Successor following the execution and delivery of this
instrument, will cause the notice required pursuant to the Indenture, a
form of which is annexed hereto marked as Exhibit A, to be mailed to the
registered Holders of the Notes as required by the Indenture; and
WHEREAS, the Indenture further provides that, if the Trustee shall
resign, the Company, by a Resolution of its Board of Directors, shall
promptly appoint a successor Trustee; and
WHEREAS, the Company by a Board Resolution, of its Board of
Directors (Exhibit B-1), a true copy of which is annexed to a Certificate
of its Secretary annexed hereto as marked Exhibit B, accepted the
resignation of First Union National Bank as Trustee, and appointed Bank
One, N.A., as successor trustee; and
WHEREAS, the Prior Trustee desires to resign as Trustee and the
Company desires to appoint Successor as successor Trustee under the
Indenture, and Successor desires to serve as successor Trustee subject
to the terms and conditions of the Indenture and this Agreement; and
NOW THEREFORE, in consideration of the mutual covenants and
agreement herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
Exhibit 10.28 - Pg. 1
ARTICLE I
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RESIGNATION
Section 1.01 Resignation of Prior Trustee. Prior Trustee hereby
resigns as Trustee under the Indenture and related legal documents; such
resignation to become effective immediately prior to the opening of
business on the Effective Date (as hereinafter defined). Notwithstanding
the resignation of the Prior Trustee as Trustee under the Indenture, the
Company shall remain obligated to indemnify the Prior Trustee in
accordance with Section 9.05 of the Indenture.
Section 1.02 Notice of Resignation to Company. The Prior Trustee
has given written notice of its desire to resign to the Company pursuant
to the Indenture, attached as Exhibit C.
ARTICLE II
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APPOINTMENT OF SUCCESSOR TRUSTEE
Section 2.01 Appointment. The Company hereby appoints Successor
to serve as successor Trustee with all the authority, rights and powers
which are vested in, and all duties and obligations which are binding on,
the Trustee under the Indenture and related documents, effective at the
opening of business on the first Business Day following the date upon
which Prior Trustee receives a fully executed counterpart of this
Agreement (the "Effective Date"). As used herein, Business Day means a
day on which banks in the city where the principal corporate trust office
of the Successor is located, are not required or authorized to remain
closed and on which the New York Stock Exchange is not closed.
Section 2.02 Acceptance. Successor is qualified to serve as
successor Trustee and hereby accepts the appointment by the Company and
agrees to serve as successor Trustee under the Indenture and to perform
the duties and obligations of the Trustee under the Indenture, effective
at the opening of business on the Effective Date.
Section 2.03 Vesting of Rights, Powers and Duties. In accordance
with the provisions of the Indenture, all rights, powers and duties of
the Trustee under the Indenture shall be vested in and undertaken by
Successor, effective at the opening of business on the Effective Date.
Section 2.04 Notice to Holders. Successor agrees to notify all
registered Holders of its appointment as successor Trustee in accordance
with the terms of the Indenture and in substantially the same form and
content as Exhibit A.
Exhibit 10.28 - Pg. 2
Section 2.05 Assignment of Powers and Property. Prior Trustee
hereby confirms, assigns, transfers and sets over to Successor, its
successors and assigns in trust under the Indenture, all property,
rights, powers, duties, trusts, immunities and obligations of Prior
Trustee as Trustee.
Section 2.06 Further Assurances. Prior Trustee hereby agrees,
upon reasonable request of Successor, to execute, acknowledge and deliver
such further instruments of transfer and further assurances and to do
such other things as may reasonably be required for more fully and
certainly vesting and confirming in Successor all the property, rights,
powers, duties, trusts, immunities and obligations of Prior Trustee as
Trustee under the Indenture and related documents.
Section 2.07 Conversion. Prior Trustee shall transfer the following items
to Successor on or prior to the Effective Date:
a. Original executed copies of the Indenture, and closing
transcripts;
b. Registered holder lists (including name, address, tax
identification number and detailed holdings for each holder)
certified to be accurate by the Prior Trustee;
c. Note debt service and loan payment records;
d. Trust account statements for a one-year period preceding the
Effective Date;
e. All securities and moneys held by Prior Trustee pursuant to
the Indenture;
f. All Notices sent to Holders and Company regarding any current
or continuing defaults;
g. All unissued Note inventory or DTC FAST held global
certificates; and
h. Such other documentation as Successor may reasonably require
in order to transfer the appointment to it.
ARTICLE III
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MISCELLANEOUS
Section 3.01 Definitions. Terms not otherwise defined in this
Agreement shall have the meanings given thereto in the Indenture.
Exhibit 10.28 - Pg. 3
Section 3.02 Compensation. The Company agrees to pay to Successor
reasonable compensation for the services it provides as successor Trustee
and in such other capacities as to which it may be appointed with respect
to the Notes. The Company and Successor may from time to time enter into
agreements specifying the amount, or containing provisions for
determining the amount, of compensation payable to Successor.
Section 3.03 Counterparts. This Agreement may be executed in a
number of counterparts, each of which shall constitute and original, but
such counterparts shall together constitute but one and the same
instrument.
Section 3.04 Preservation of Rights. Except as expressly
provided herein, nothing contained in this Agreement shall in any way
affect the obligations or rights of the Company, the Trustee, or any
Holder under the Indenture and related documents.
Section 3.05 Severability. In the event any provision of this
Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof
Section 3.06 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of Prior Trustee, Successor and
their respective successors and assigns.
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Prior Trustee,
a. Prior Trustee is a national banking association duly organized
and existing under the laws of the United States, is
authorized to conduct a general banking business with trust
powers and is subject to the supervision of the Comptroller of
the Currency of the United States as provided in the National
Bank Act.
b. Prior Trustee has the corporate power and authority to enter
into this Agreement. Upon execution and delivery, this
Agreement shall constitute a valid and binding obligation of
Prior Trustee.
c. Prior Trustee is a duly appointed, authorized and acting
trustee and/or paying agent for the Notes. To the best
knowledge of the Prior Trustee, such appointment has been
administered by Prior Trustee consistent with the authority
granted to it by the governing instrument and by applicable
law. The Indenture has not been amended or modified and is in
full force and effect except as noted.
Exhibit 10.28 - Pg. 4
d. No covenant or condition contained in the Indenture has been
waived by the Prior Trustee, or to the best knowledge of the
Prior Tr6stee, by the Noteholders of the percentage in
aggregate principal amount of the securities required by the
Indenture to effect any such waiver.
e. There is no action, suit or proceeding pending or, to the best
knowledge of the Prior Trustee, threatened against the Prior
Trustee before any court or governmental authority arising out
of any action or omission by the Prior Trustee as Trustee
under the Indenture.
f. Prior Trustee retains continued responsibility for its actions
or omissions during its term as Trustee under the Indenture.
g. To the best of the Prior Trustee's knowledge, no default or
Event of Default currently exists under the Indenture except
for the following:
(i) Prior Trustee is in receipt of a notice dated September
19, 2000 from Bank of America that, pursuant to Section
17.02 of the Indenture, no payment on account of
principal or Change of Control Purchase Price of (or
premium, if any) or interest on the Debentures may be
made.
(ii) As a result, Prior Trustee did not receive the interest
payment scheduled for October 1, 2000 from Cooker. This
will result in an Event of Default on the Debenutures
under Section 8.01(a) of the Indenture, unless cured no
later than 21 business days from October 1, 2000.
(iii) Additionally, Prior Trustee did not receive from Cooker
the payment necessary to redeem Debenutures under
Section 4.05(b) of the Indenture for a deceased
Debentureholder. This has resulted in an Event of
Default under Section 8.01(b) of the Indenture and will
also result in an Event of Default under Section 8.01(c)
of the Indenture if such redemption is not accomplished
within ten business days from October 1, 2000.
Section 4.02 Representations and Warranties of Successor.
a. Successor is a banking corporation and trust company duly organized
and existing under the laws of the United States of America with
trust powers and is subject to the supervision of the Office of the
Comptroller of the Currency.
b. Successor has the corporate power and authority to enter into this
Agreement. Upon execution and delivery, this Agreement will
constitute a valid and binding obligation of Successor.
Exhibit 10.28 - Pg. 5
c. Successor is qualified and eligible to serve as Trustee, in
accordance with provisions of the Indenture, including but not
limited to, Section 9.08 of the Indenture.
Section 4.03 Representations and Warranties of Company.
a. Company is a duly organized and validly existing corporation
pursuant to the laws of the State of Ohio.
b. Company has not entered into any amendment or supplement to the
Indenture, except as noted, and therefore, the Indenture is in full
force and effect.
c. To the best and actual knowledge of Company, the execution of this
Agreement and the consummation of the transactions contemplated
hereby do not and will not conflict with, or result in a breach of,
any of the terms or provisions of, or constitute a default under,
any contract, agreement, indenture, or other instrument,
(including, without limitation, the Company's certificate of
incorporation and by-laws) to which Company is a party, or by which
Company or its property is bound, or any judgment, decree, or order
of any court, governmental agency, or regulatory body or any law,
rule, or regulation applicable to Company or its property.
d. To the best and actual knowledge of Company, the Notes were validly
issued by Company.
ARTICLE V
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NOTICES
Section 5.01 Notices. All notices, demands and other
communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered in person or by first class United States
mail, as follows:
a. If to Prior Trustee:
First Union National Bank
401 South Tryon Street
12th Floor Charlotte
North Carolina 28288-1179
Attn: Staci Marino
Exhibit 10.28 - Pg. 6
b. If to Successor:
Bank One, N.A.
100 East Broad Street, 8th Floor
Columbus, OH 43271-0181
Attention: Jeffery Ayres
c. If to Company:
Cooker Restaurant Corporation
5500 Villace Blvd.
West Palm Beach, FL 33458
Attn: Chief Financial Officer
Intending to be legally bound, the parties hereto have executed this
Agreement by their duly authorized corporate officers as of the dates
provided below.
FIRST UNION NATIONAL BANK,
as Prior Trustee
By: _______/s/[illegible]____________
Title: Vice President
Date: 10/23/00
BANK ONE, N.A.
as Successor Trustee
By: ________/s/Joseph C. Ludes_______
Title: Joseph C. Ludes
Date: 10/24/00
COOKER RESTAURANT
CORPORATION
as Company
By: _____/s/[illegible]_______________
Title: V.P. CFO
Date: 11-1-00
Exhibit 10.28 - Pg. 7
EXHIBIT A
NOTICE TO THE HOLDERS OF COOKER RESTAURANT CORPORATION
6.75% NOTES DUE 2002
(THE "NOTES")
CUSIP NO.: 216284AA7
NOTE: THIS NOTICE CONTAINS IMPORTANT INFORMATION THAT IS OF INTEREST TO
THE REGISTERED AND BENEFICIAL OWNERS OF THE SUBJECT SECURITIES. IF
APPLICABLE, ALL DEPOSITORIES, CUSTODIANS, AND OTHER INTERMEDIARIES
RECEIVING THIS NOTICE ARE REQUESTED TO EXPEDITE RE-TRANSMITTAL TO
BENEFICIAL OWNERS OF THE SECURITIES IN A TIMELY MANNER.
Bank One, N.A., as successor Trustee hereby notifies you of the
resignation of First Union National Bank., as Trustee under the
Indenture, dated as of October 26, 1992, pursuant to which your Notes
were issued and are outstanding.
Cooker Restaurant Corporation has appointed Bank One, N.A. whose
Corporate Trust Office is located at 100 East Broad Street, 8th Floor,
Columbus, Ohio 43271-0181, as successor Trustee under the Indenture,
which appointment has been accepted and became effective as of October
___, 2000.
Dated as of this October ___, 2000
By: Bank One, N.A.,
as Successor Trustee
Exhibit 10.28 - Pg. 8
EXHIBIT B
CERTIFICATE OF SECRETARY
I, Margaret A. Epperson do hereby certify that I am the duly
appointed qualified and acting Secretary of Cooker Restaurant
Corporation, an Ohio corporation; I further certify that the resolution
attached hereto as Exhibit B-1 and incorporated herein by this reference,
is a true and correct copy of a resolution duly adopted by the Board of
Directors of said corporation on October 16, 2000; and I further certify
that said resolution remains in full force and effect as of the date of
this certificate.
Dated this day of Nov. 3, 2000
/s/Margaret A. Epperson
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Secretary
Exhibit 10.28 - Pg. 9
EXHIBIT B.1
RESOLVED, that the resignation of First Union National Bank, a
national banking association and trust company, under an Indenture dated
as of October 26, 1992, entered into between the Company and First Union
National Bank, in connection with the issuance of the Company's 6.75%
Notes due 2002 is hereby accepted and Bank One, N.A., a national banking
association duly organized and existing under the laws on the United
States of America, is hereby appointed as Successor Trustee under said
Indenture; and FURTHER RESOLVED, that any officer of the Company is
hereby authorized to enter into such agreements as may be necessary to
effectuate such appointment of Bank One, N.A., successor-by-merger to NBD
Bank, a national banking association duly organized and existing under
the laws of the United States of America, as Successor Trustee under
said Indenture.
Exhibit 10.28 - Pg. 10
FIRST UNION [LOGO]
NC1179
Bond Administration
401 South Tyron Street, 12th Floor
Charlotte, NC 28288-1179
Tel 704 383-1643
October 12, 2000
Cooker Restaurant Corporation
XXXXXXXXX 550 Villace Blvd.
XXXXXXXXX West Palm Beach, FL 33458
Attn: Chief Financial Officer
Gentlemen:
NOTICE IS HEREBY GIVEN THAT, pursuant to Section 9.09 of the Indenture,
dated as of October 26, 1992 (the "Indenture") between Cooker Restaurant
Corporation (the "Company") and First Union National Bank, First Union
National Bank hereby resigns as Trustee under the Indenture, such
resignation to be effective upon the appointment, pursuant to Section
9.09 of the Indenture, of a successor Trustee, and the acceptance of such
appointment by such successor Trustee, pursuant to Section 9.10 of the
Indenture.
Please acknowledge receipt of this notice by signing two copies and
returning them to us.
Very truly yours,
First Union National Bank,
as Trustee
By:____/s/ Staci Egan Marino________
Staci Egan Marino, Vice President
ACKNOWLEDGED:
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Name: /s/ [illegible]
Title: V.P. CFO
Exhibit 10.28 - Pg. 11