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Exhibit 10.21
MASTER SECURITY AGREEMENT
This Master Security Agreement provides a set of terms and conditions that the
parties hereto intend to be applicable to various loan transactions secured by
personal property. Each such loan and security agreement shall be evidenced by a
schedule of indebtedness and collateral ("Schedule") executed by Secured Party
and Debtor that explicitly incorporates the provisions of this Master Security
Agreement and that sets forth specific terms of that particular loan and
security contract. Where the provisions of a Schedule conflict with the terms
hereof, the provisions of the Schedule shall prevail. Each Schedule shall
constitute a complete and separate loan and security agreement, independent of
all other Schedules, and without any requirement of being accompanied by an
originally executed copy of this Master Security Agreement. The term "Security
Agreement' when used herein shall refer to an individual Schedule.
One originally executed copy of the Schedule shall be denominated "Originally
Executed Copy No. 1 of 1 originally executed copies" and such copy shall be
retained by Secured Party. If more than one copy of the Schedule is executed by
Secured Party and Debtor, all such other copies shall be numbered consecutively
with numbers greater than 1. Only transfer of possession by Secured Party of
Originally Executed Copy No. 1 shall be effective for purposes of perfecting an
interest in such Schedule by possession.
1. GRANT OF SECURITY INTEREST; DESCRIPTION OF COLLATERAL.
Debtor grants to Secured Party a security interest in the property described in
the Schedules now or hereafter executed by or pursuant to the authority of the
Debtor and accepted by Secured Party in writing, along with all present and
future attachments and accessories thereto and replacements and proceeds
thereof, including amounts payable under any insurance policy, all hereinafter
referred to collectively as "Collateral." Each Schedule shall be serially
numbered. Unless and only to the extent otherwise expressly provided in a
Schedule, no Schedule shall replace any previous Schedule but shall be
supplementary to all previous Schedules.
2. WHAT OBLIGATIONS THE COLLATERAL SECURES.
EACH ITEM OF COLLATERAL SHALL SECURE NOT ONLY THE SPECIFIC AMOUNT WHICH DEBTOR
PROMISES TO PAY IN EACH SCHEDULE, BUT ALSO ALL OTHER PRESENT AND FUTURE
INDEBTEDNESS OR OBLIGATIONS OF DEBTOR TO SECURED PARTY OF EVERY KIND AND NATURE
WHATSOEVER.
3. PROMISE TO PAY; TERMS AND PLACE OF PAYMENT.
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Debtor promises to pay Secured Party the amounts set forth on each Schedule at
the rate and upon such terms as provided therein.
4. USE AND LOCATION OF COLLATERAL.
Debtor warrants and agrees that the Collateral is to be used primarily for:
X business or commercial purposes (other than agricultural),
agricultural purposes (see definition on the final page), or both
agricultural and business or commercial purposes.
Location: See Exhibit "A" attached to Schedule No. I
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Address City County State Zip Code
Debtor and Secured Party agree that regardless of the manner of affixation, the
Collateral shall remain personal property and not become part of the real
estate. Debtor agrees to keep the Collateral at the location set forth above,
and will notify Secured Party promptly in writing of any change in the location
of the Collateral within such State, but will not remove the collateral from
such State without the prior written consent of Secured Party (except that in
the State of Pennsylvania, the Collateral will not be moved from the above
location without such prior written consent).
5. LATE CHARGES AND OTHER FEES.
Any payment not made within ten (10) days of when due shall, at the option of
Secured Party, bear late charges thereon calculated at the rate of 1% per month,
but in no event greater than the highest rate permitted by relevant law. Debtor
shall be responsible for and pay to Secured Party a returned check fee, not to
exceed the maximum permitted by law, which fee will be equal to the sum of (i)
the actual bank charges incurred by Secured Party plus (ii) all other actual
costs and expenses incurred by Secured Party. The returned check fee is payable
upon demand as indebtedness secured by the Collateral under this Security
Agreement.
6. DEBTOR'S WARRANTIES AND REPRESENTATIONS.
Debtor warrants and represents:
(a) that Debtor is justly indebted to Secured Party for the full amount of the
indebtedness set forth on each Schedule;
(b) that except for the security interest granted hereby, the Collateral is free
from and will be kept free from all liens, claims, security interests and
encumbrances;
(c) that no financing statement covering the Collateral or any proceeds thereof
is on file in favor of anyone other than Secured Party, but if such other
financing statement is on file, it will be terminated or subordinated;
(d) that all information supplied and statements made by Debtor in any
financial, credit or accounting statement or application for credit prior to,
contemporaneously with or subsequent to the execution of this Security Agreement
with respect to this transaction are and shall be true, correct, valid and
genuine; and
(e) that Debtor has full authority to enter into this agreement and in so doing
It is not violating its charter or by-laws, any law or regulation or agreement
with third parties, and it has taken all such action as may be necessary or
appropriate to make this Security Agreement binding upon it.
7. DEBTOR'S AGREEMENTS.
Debtor agrees:
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(a) to defend at Debtors own cost any action, proceeding, or claim affecting the
Collateral;
(b) to pay reasonable attorneys' fees and other expenses incurred by Secured
Party in enforcing its rights against Debtor under this Security Agreement;
(c) to pay promptly all taxes, assessments, license fees and other public or
private charges when levied or assessed against the Collateral or this Security
Agreement, and this obligation shall survive the termination of this Security
Agreement;
(d) that if a certificate of title be required or permitted by law, Debtor shall
obtain such certificate with respect to the Collateral, showing the security
interest of Secured Party thereon and in any event do everything necessary or
expedient to preserve or perfect the security interest of Secured Party;
(e) that Debtor will not misuse, fail to keep in good repair, secrete or without
the prior written consent of Secured Party, sell, rent, tend, encumber or
transfer any of the Collateral notwithstanding Secured Party's right to
proceeds;
(f) that Secured Party may enter upon Debtor's premises or wherever the
Collateral may be located at any reasonable time to inspect the Collateral and
Debtor's books and records pertaining to the Collateral, and Debtor shall assist
Secured Party in making such inspection; and
(g) that the security interest granted by Debtor to Secured Party shall continue
effective irrespective of any retaking or redelivery of any Collateral and
irrespective of the payment of the amount described in any Schedule so long as
there are any obligations of any kind, including obligations under guaranties or
assignments, owed by Debtor to Secured Party, provided, however, upon any
assignment of this Security Agreement the Assignee shall thereafter be deemed
for the purpose of this Paragraph the Secured Party under this Security
Agreement.
8. INSURANCE AND RISK OF LOSS.
All risk of loss, damage to or destruction of the Collateral shall at all times
be on Debtor. Debtor will procure forthwith and maintain at Debtor's expense
insurance against all risks of loss or physical damage to the Collateral for the
full insurable value thereof for the life of this Security Agreement plus breach
of warranty insurance and such other insurance thereon in amounts and against
such risks as Secured Party may specify, and shall promptly deliver each policy
to Secured Party with a standard long-form mortgagee endorsement attached
thereto showing loss payable to Secured Party; and providing Secured Party with
not less than 30 days written notice of cancellation; each such policy shall be
in form, terms and amount and with insurance carriers satisfactory to Secured
Party; Secured Party's acceptance of policies in lesser amounts or risks shall
not be a waiver of Debtor's foregoing obligations. As to Secured Party's
interest in such policy, no act or omission of Debtor or any of its officers,
agents, employees or representatives shall affect the obligations of the insurer
to pay the full amount of any loss.
Debtor hereby assigns to Secured Party any monies which may become payable under
any such policy of insurance and irrevocably constitutes and appoints Secured
Party as Debtor's attorney in fact (a) to hold each original insurance policy,
(b) to make, settle and adjust claims under each policy of insurance, (c) to
make claims for any monies which may become payable under such and other
insurance on the Collateral including returned or unearned premiums, and (d) to
endorse Debtor's name on any check, draft or other instrument received in
payment of claims or returned or unearned premiums under each policy and to
apply the funds to the payment of the indebtedness owing to Secured Party;
provided, however, Secured Party is under no obligation to do any of the
foregoing.
Should Debtor fail to furnish such insurance policy to Secured Party, or to
maintain such policy in full force, or to pay any Premium in whole or in part
relating thereto, then Secured Party, without waiving or releasing any default
or obligation by Debtor, may (but shall be under no obligation to) obtain and
maintain insurance and pay the premium therefor on behalf of Debtor and charge
the premium to Debtor's indebtedness under this Security Agreement. The full
amount of any such premium paid by Secured Party shall be payable by Debtor upon
demand, and failure to pay same shall constitute an event of default under this
Security Agreement.
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9. EVENTS OF DEFAULT; ACCELERATION.
A VERY IMPORTANT ELEMENT OF THIS SECURITY AGREEMENT IS THAT DEBTOR MAKE ALL ITS
PAYMENTS PROMPTLY AS AGREED UPON. IT IS ESSENTIAL THAT THE COLLATERAL REMAIN IN
GOOD CONDITION AND ADEQUATE SECURITY FOR THE INDEBTEDNESS. THE FOLLOWING ARE
EVENTS OF DEFAULT UNDER THIS SECURITY AGREEMENT WHICH WILL ALLOW SECURED PARTY
TO TAKE SUCH ACTION UNDER THIS PARAGRAPH AND UNDER PARAGRAPH 10 AS IT DEEMS
NECESSARY:
(a) any of Debtor's obligations to Secured Party under any agreement with
Secured Party is not paid promptly when due;
(b) Debtor breaches any warranty or provision hereof, or of any note or of any
other instrument or agreement delivered by Debtor to Secured Party in connection
with this or any other transaction;
(c) Debtor dies, becomes insolvent or ceases to do business as a going concern.
(d) it is determined that Debtor has given Secured Party materially misleading
information regarding its financial condition;
(e) any of the Collateral is lost or destroyed unless such loss or destruction
is covered by insurance pursuant to Section 8 hereof;
(f) a complaint in bankruptcy or for arrangement or reorganization or for relief
under any insolvency law is filed by Debtor or a complaint in bankruptcy or for
arrangement or reorganization or for relief under any insolvency law is filed
against Debtor and not dismissed within 75 days thereafter or Debtor admits its
inability to pay its debts as they mature;
(g) property of Debtor is attached or a receiver is appointed for Debtor and
such attachment or appointment is not dismissed or released within 30 days of
Debtor receiving notice of same;
(h) any guarantor, surety or endorser for Debtor dies or defaults in any
obligation or liability to Secured Party or any guaranty obtained in connection
with this transaction is terminated or breached.
IF DEBTOR SHALL BE IN DEFAULT HEREUNDER, THE INDEBTEDNESS DESCRIBED IN EACH
SCHEDULE AND ALL OTHER INDEBTEDNESS THEN OWING BY DEBTOR TO SECURED PARTY UNDER
THIS OR ANY OTHER PRESENT OR FUTURE AGREEMENT (COLLECTIVELY, THE "INDEBTEDNESS")
SHALL, IF SECURED PARTY SHALL SO ELECT, BECOME IMMEDIATELY DUE AND PAYABLE,
AFTER ACCELERATION:
(a) the unpaid principal balance of the indebtedness described in any Schedule
in which interest has been precomputed shall bear Interest at the rate of 12%
per annum (or, if less, the maximum rate permitted by law) until paid in full;
and
In no event shall the Debtor upon demand by Secured Party for payment of the
Indebtedness, by acceleration of the maturity thereof or otherwise, be obligated
to pay any interest in excess of the amount permitted by law. Any acceleration
of the Indebtedness, if elected by Secured Party, shall be subject to all
applicable laws, including laws relating to rebates and refunds of unearned
charges.
10. SECURED PARTY'S REMEDIES AFTER DEFAULT; CONSENT TO ENTER PROMISES.
Upon Debtor's default and at any time thereafter, Secured Party shall have all
the rights and remedies of a secured party under the Uniform Commercial Code and
any other applicable laws, including the right to any deficiency remaining after
disposition of the Collateral for which Debtor hereby agrees to remain fully
liable. Upon Debtor's default and at any time thereafter, Debtor agrees that
Secured Party, by itself or its agent, may either with the consent of Debtor or
with judicial process, enter into any premises or upon any land owned, leased or
otherwise under the real or apparent control of Debtor or any agent of Debtor
where the Collateral may be or where Secured Party believes the Collateral may
be, and disassemble, render unusable and/or repossess all or any item of the
Collateral, disconnecting and separating all Collateral from any other property
and using all force necessary. Debtor
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expressly waives all further rights to possession of the Collateral after
default and all claims for injuries suffered through or loss caused by such
entering and/or repossession. Secured Party may require Debtor to assemble the
Collateral and return it to Secured Party at a place to be designated by Secured
Party which is reasonably convenient to both parties.
Secured Party may sell or lease the Collateral at a time and location of its
choosing provided that the Secured Party acts in good faith and in a
commercially reasonable manner. Secured Party will give Debtor reasonable notice
of the time and place of any public sale of the Collateral or of the time after
which any private sale or any other intended disposition of the Collateral is to
be made. Unless otherwise provided by law, the requirement of reasonable notice
shall be met if such notice is mailed postage prepaid, to the address of Debtor
shown herein at least ten days before the time of the sale or disposition.
Expenses of retaking, holding, preparing for sale, selling and the like shall
include reasonable attorneys' and other legal expenses. Debtor understands that
Secured Party's rights are cumulative and not alternative.
11. WAIVER OF DEFAULTS; AGREEMENT INCLUSIVE.
Secured Party may in its sole discretion waive a default, or cure, at Debtor's
expense, a default. Any such waiver in a particular instance or of a particular
default shall not be a waiver of other defaults or the same kind of default at
another time. No modification or change in this Security Agreement or any
related note, instrument or agreement shall bind Secured Party unless in writing
signed by Secured Party. No oral agreement shall be binding.
12. FINANCING STATEMENTS; CERTAIN EXPENSES.
If permitted by law Debtor authorizes Secured Party to file a financing
statement with respect to the Collateral signed only by Secured Party, and to
file a carbon, photograph or other reproduction of this Security Agreement or of
a financing statement provided however, assuming Debtor delivers to Secured
Party properly executed financing statements, Secured Party agrees it will not
file a carbon, photograph or other reproduction of this Security Agreement in
the State of Florida or any county thereof. At the request of Secured Party,
Debtor will execute any financing statements, agreements or documents, in form
satisfaction to Secured Party which Secured Party may deem necessary or
advisable to establish and maintain a perfected security interest in the
Collateral and will pay the cost of filing or recording the same in all public
offices deemed necessary or advisable by Secured Party. Debtor also agrees to
pay all costs and expenses incurred by Secured Party in conducting UCC, tax or
other lien searches against the Debtor or the Collateral and such other fees as
may be agreed.
13. WAIVER OF DEFENSES ACKNOWLEDGMENT
If Secured Party assigns this Security Agreement to a third party ("Assignee"),
then after such assignment:
(a) Debtor will make all payments directly to such Assignee at such place as
Assignee may from time to time designate in writing;
(b) Debtor agrees that it will settle all claims, defenses, setoffs and
counterclaims it may have against Secured Party directly with Secured Party and
will not set up any such claim, defense, setoff or counterclaim against
Assignee, Secured Party hereby agreeing to remain responsible therefor;
(c) Secured Party shall not be Assignee's agent for any purpose and shall have
no authority to change or modify this Security Agreement or any related document
or instrument; and
(d)Assignee shall have all of the rights and remedies of Secured Party hereunder
but none of Secured Party's obligations.
14. MISCELLANEOUS.
Debtor waives all exemptions. Secured Party may correct patent errors herein and
fill in such blanks as serial numbers, date of first payment and the like. Any
provisions hereof contrary to, prohibited by or invalid under
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applicable laws or regulations shall be inapplicable and deemed omitted
herefrom, but shall not invalidate the remaining provisions hereof.
Debtor and Secured Party each hereby waive any right to a trial by jury in any
action or proceeding with respect to, in connection with, or arising out of this
Security Agreement or any note or document delivered pursuant to this Security
Agreement. Except as otherwise provided herein or by applicable law, the Debtor
shall have no right to prepay the indebtedness described in any Schedule. DEBTOR
ACKNOWLEDGES RECEIPT OF A TRUE COPY AND WAIVES ACCEPTANCE HEREOF.
If Debtor is a corporation, this Security Agreement is executed pursuant to
authority of its Board of Directors. Except where the context otherwise
requires, "Debtor" and "Secured Party include the heirs, executors or
administrators, successors or assigns of those parties; nothing herein shall
authorize Debtor to assign this Security Agreement or its rights in and to the
Collateral. If more than one Debtor executes this Security Agreement, their
obligations under this Security Agreement shall be joint and several.
If at any time this transaction would be usurious under applicable law, then
regardless of any provision contained in this Security Agreement or in any other
agreement made in connection with this transaction, it is agreed that:
(a) the total of all consideration which constitutes interest under applicable
law that is contracted for, charged or received upon this Security Agreement or
any such other agreement shall under no circumstances exceed the maximum rate of
interest authorized by applicable law and any excess shall be credited to the
Debtor; and
(b) If Secured Party elects to accelerate the maturity of, or if Secured Party
permits Debtor to prepay the indebtedness described in Paragraph 3, any amounts
which because of such action would constitute interest may never include more
than the maximum rate of interest authorized by applicable law and any excess
interest, if any, provided for in this Security Agreement or otherwise, shall be
credited to Debtor automatically as of the date of acceleration or prepayment.
15. SPECIAL PROVISIONS.
SEE SPECIAL PROVISION INSTRUCTIONS.
See Riders A, B, C and D attached hereto and made a part /s/ GAS (Debtor,
please initial) -----------
DATED: SEPTEMBER 24, 1998
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DEBTORS:
COOKER RESTAURANT CORPORATION, AN OHIO CORPORATION
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Name of individual, corporation or partnership
By /s/ G. Arthur Seelbinder Title Chairman
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If corporation, have signed by President, Vice President or Treasurer, and
give official title. If owner or partner, state which.
5500 Village Blvd.
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Address
West Palm Beach FL 33407
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City State Zip Code
CGR MANAGEMENT CORPORATION, A FLORIDA CORPORATION
- -----------------------------------------------------
Name of individual, corporation or partnership
By /s/ G. Arthur Seelbinder Title Chairman
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If corporation, have signed by President, Vice President or Treasurer, and
give official title. If owner or partner, state which.
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5500 Village Blvd.
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Address
West Palm Beach FL 33407
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City State Zip Code
SECURED PARTY:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
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Name of individual, corporation or partnership
By /s/ Joseph P. Cunningham Title Assistant Vice President
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If corporation, give official title. If owner or partner, state which.
900 Ashwood Parkway
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Address
Atlanta GA 30338
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City State Zip Code
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SCHEDULE No. 01.
Schedule of Indebtedness and Collateral
To Master Security Agreement dated September 24, 1998 between the undersigned
Secured Party and Debtor.
This Schedule of Indebtedness and Collateral incorporates the terms and
conditions of the above-referenced Master Security Agreement.
This is Originally Executed Copy No. 1 of 1 originally executed copies. Only
transfer of possession by Secured Party of Originally Executed Copy No. 1 shall
be effective for purposes of perfecting an interest in this Schedule by
possession.
The equipment listed on this Schedule will be located at:
See Exhibit A attached hereto
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Address City County State Zip Code
Debtor grants to Secured Party a security interest in the property described
below, along with all present and future attachments and accessories thereto and
replacements and proceeds thereof, including amounts payable under any insurance
policy, all hereinafter referred to collectively as "Collateral".
Collateral Description (Describe Collateral fully including make, kind of unit,
model and serial numbers and any other pertinent information.)
All present and hereafter acquired machinery, equipment, furnishings and
fixtures, and all additions, substitutions and replacements thereof, together
with all attachments, additions, components, parts, equipment and accessories
installed thereon or affixed thereto, and all proceeds of whatever sort, at the
locations more specifically set forth on Exhibit A attached hereto and made a
part hereof.
THE REMAINDER OF THIS PACE IS INTENTIONALLY LEFT BLANK
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Debtor promises to pay Secured Party the total sum of $22,063,981.40 which
represents principal and interest precomputed over the term hereof, payable in
59 COMBINED PRINCIPAL AND INTEREST PAYMENTS OF $267,638.57 each commencing on
_______________, 1998 and a 60TH COMBINED PRINCIPAL AND INTEREST PAYMENT OF
$6,273,305.77 on _______________, 2003. Payment shall be made at the address of
Secured Party shown on the Master Security Agreement or such other place as
Secured Party may designate from time to time.
ACCEPTED
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SECURED PARTY:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
BY /s/ Joseph P. Cunningham Title Assistant Vice President
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EXECUTED ON SEPTEMBER 24, 1998
DEBTOR:
COOKER RESTAURANT CORPORATION
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Name of individual, corporation or partnership
BY /s/ G. Arthur Seelbinder Title Chairman
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EXECUTED ON SEPTEMBER 24, 1998
DEBTOR:
CGR MANAGEMENT CORPORATION
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Name of individual, corporation or partnership
BY /s/ G. Arthur Seelbinder Title Chairman
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EXECUTED ON SEPTEMBER 24, 1998