Exhibit 10.31
GUARANTY AND COLLATERAL
AGREEMENT
(APPLEBEE’S FRANCHISING
LLC)
THIS GUARANTY AND
COLLATERAL AGREEMENT (this “ Agreement ”) is
made and entered into as of November 29, 2007, by and among
APPLEBEE’S FRANCHISING LLC, a Delaware limited liability
company (the “ Guarantor ”), APPLEBEE’S
ENTERPRISES LLC, a Delaware limited liability company (the “
Master Issuer ”) and WELLS FARGO BANK, NATIONAL
ASSOCIATION (the “ Indenture Trustee
”).
This Agreement
constitutes the entire and full agreement of the parties with
respect to the subject matter hereof. Capitalized terms used but
not defined herein are defined in (or incorporated by reference
into) the Base Indenture (the “ Base Indenture
”), dated as of the date hereof, by and among
APPLEBEE’S RESTAURANTS NORTH LLC, a Delaware limited
liability company, APPLEBEE’S RESTAURANTS MID-ATLANTIC LLC, a
Delaware limited liability company, APPLEBEE’S RESTAURANTS
WEST LLC, a Delaware limited liability company, APPLEBEE’S
RESTAURANTS VERMONT, INC., a Vermont corporation,
APPLEBEE’S RESTAURANTS TEXAS LLC, a Texas limited liability
company, APPLEBEE’S RESTAURANTS INC., a Kansas corporation,
APPLEBEE’S RESTAURANTS KANSAS LLC, a Kansas limited liability
company (collectively, the “ Restaurant Holders
”), the Master Issuer, APPLEBEE’S IP LLC, a Delaware
limited liability company (the “ IP Holder ”)
(each of the Master Issuer, the IP Holder and the Restaurant
Holders is a “ Co-Issuer ” and are,
collectively, the “ Co-Issuers ”), and the
Indenture Trustee, as amended and supplemented by the
series supplement relating to the Series 2007-1 Notes and
any other Series of Notes issued pursuant thereto (each, a
“ Series Supplement ”, and together with
the Base Indenture, the “ Indenture
”).
PRELIMINARY
STATEMENT
WHEREAS, the
Co-Issuers may issue one or more Series of Notes pursuant
to the Indenture on and after the Closing Date; and
WHEREAS, the issuance of any Series of
Notes pursuant to the Indenture is conditioned upon, among other
things, the Guarantor’s guaranty of the Co-Issuers’
obligations under the Indenture, the Notes and the other
Transaction Documents (other than the Leases) to which the
Co-Issuers are parties as provided herein.
NOW, THEREFORE, in
consideration of the foregoing preliminary statement, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, it is hereby
agreed as follows:
ARTICLE I
GUARANTY
Section 1.1
Guaranty . The Guarantor hereby unconditionally and
irrevocably guarantees (the “ Guaranty ”) the
obligations of each of the Co-Issuers under the Indenture, all
Notes issued thereunder and the other Transaction Documents (other
than the Leases) to which the Co-Issuers are parties (the “
Guaranteed Obligations ”). The Guaranty shall be a
continuing and irrevocable guaranty of payment of all amounts due
by each of the Co-Issuers of the Guaranteed Obligations, and the
Guarantor shall remain liable on its obligations hereunder until
the payment in full of any amounts due thereunder. The Guarantor
hereby represents that it has all requisite limited liability
company power and authority to
undertake its obligations set forth in this
Section 1.1 and to guaranty the full and prompt payment
of any of the Co-Issuers in respect of the Guaranteed
Obligations.
Section 1.2
Liability of Guarantor Absolute . The Guarantor agrees that
its obligations under the Guaranty are irrevocable, absolute,
independent and unconditional and shall not be affected by any
circumstance that constitutes a legal or equitable discharge of a
guarantor or surety. In furtherance of the foregoing and without
limiting the generality thereof, the Guarantor agrees as
follows: (a) the obligations of the Guarantor hereunder
are independent of the obligations of the Co-Issuers under the
Indenture, the Notes or any other Transaction Documents; and
(b) the obligations of the Guarantor hereunder shall be valid
and enforceable and shall not be subject to any reduction,
limitation, impairment, discharge or termination for any reason,
including without limitation, the occurrence of any of the
following, whether or not the Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to
assert or enforce or agreement or election not to assert or
enforce, or the stay or enjoining, by order of court, by operation
of law or otherwise, of the exercise or enforcement of, any claim
or demand or any right, power or remedy (whether arising at law, in
equity or otherwise) with respect to any failure of any of the
Co-Issuers under the Indenture or under any of the other
Transaction Documents; (ii) any rescission, waiver, amendment
or modification of, or any consent to departure from any of the
terms or provisions (including, without limitation, provisions
relating to events of default) of the Transaction Documents;
(iii) any amendment to the documents governing the formation
or organization and operation of the Securitization Entities or the
consent of any Co-Issuer to any such amendment; or (iv) any
other act or thing or omission, or delay to do any other act or
thing, which may or might in any manner or to any extent vary
the risk of the Guarantor as an obligor in respect of the
Guaranteed Obligations.
Section 1.3
Waivers by the Guarantor . The Guarantor agrees not to
assert, and hereby waives, all rights (whether by counterclaim,
set-off or otherwise) and defenses (including, without limitation,
the defense of fraud), whether acquired by subrogation, assignment
or otherwise, to the extent that such rights and defenses
may be used by the Guarantor to avoid performance hereunder,
including but not limited to: (a) any defense arising by
reason of the incapacity, lack of authority or any disability or
other defense of any Co-Issuer including, without limitation, any
defense based on or arising out of the lack of validity or the
unenforceability of the Transaction Documents or by cessation of
liability of any Co-Issuer for any cause other than the full
performance of all obligations of such Co-Issuer set forth in the
Transaction Documents and payment in full of all amounts due
thereunder; (b) any defense based on any Co-Issuer’s
errors or omissions in the performance of its obligations or
payment of amounts due under the Transaction Documents;
(c) any defenses or benefits that may be derived from or
afforded by law that would limit the liability of or exonerate the
Guarantor, (d) any legal or equitable discharge of the
Guarantor’s obligations hereunder; (e) the benefit of
any statute of limitations affecting the Guarantor’s
liability hereunder or the enforcement hereof;
(f) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or inaction,
including acceptance of this Agreement, notices of default under
any of the other Transaction Documents; and (g) any rights to
set-offs, recoupments and counterclaims.
Section 1.4
Payments, Etc . No payment made by any of the Co-Issuers,
the Guarantor, any other guarantor or any other Person or received
or collected by the Indenture Trustee or any other Secured Party
from any of the Co-Issuers, the Guarantor, any other guarantor or
any other Person by virtue of any action or proceeding or any set
off or appropriation or application at any time or from time to
time in reduction of or in payment of the Guaranteed Obligations
shall be deemed to modify, reduce, release or otherwise affect the
liability of the Guarantor which shall, notwithstanding any such
payment (other than any payment made by the Guarantor in respect of
the Guaranteed Obligations or any payment received or collected
from the Guarantor in respect of the Guaranteed Obligations),
remain liable
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hereunder for the Guaranteed Obligations up to
the maximum liability of the Guarantor hereunder until all of the
Notes and other Guaranteed Obligations have been indefeasibly paid
in full.
Section 1.5
No Subrogation . Notwithstanding any payment made by the
Guarantor hereunder or any set off or application of funds of the
Guarantor by the Indenture Trustee or any other Secured Party, the
Guarantor shall not be entitled to be subrogated to any of the
rights of the Indenture Trustee or any other Secured Party against
the Co-Issuers or any other guarantor or any collateral security or
guarantee or right of offset held by the Indenture Trustee or any
other Secured Party for the payment of the Guaranteed Obligations,
nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Co-Issuers or any other
guarantor in respect of payments made by the Guarantor hereunder,
until all of the Notes and other Guaranteed Obligations have been
indefeasibly paid in full. If any amount shall be paid to the
Guarantor on account of such subrogation, contribution or
reimbursement rights at any time when all of the Guaranteed
Obligations shall not have been paid in full, such amount shall be
held by the Guarantor in trust for the Indenture Trustee and the
other Secured Parties, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be
turned over to the Indenture Trustee in the exact
form received by the Guarantor (duly endorsed by the Guarantor
to the Indenture Trustee, if required), to be applied against the
Guaranteed Obligations, whether matured or unmatured, in such order
as the Indenture Trustee may determine in accordance with the
Indenture.
Section 1.6
Reinstatement . The guarantee contained in this
ARTICLE I shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Guaranteed Obligations is
rescinded or must otherwise be restored or returned by the
Indenture Trustee or any other Secured Party upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any of
the Co-Issuers, the Guarantor or any other guarantor, or upon or as
a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any of the
Co-Issuers, the Guarantor or any other guarantor or any substantial
part of their respective property, or otherwise, all as though
such payments had not been made.
ARTICLE II
PLEDGE
Section 2.1
Pledge .
To secure its obligations under the Guaranty above, the Guarantor
hereby pledges and collaterally grants and assigns to the Indenture
Trustee (the “ Pledge ”) a continuing security
interest in all of Guarantor’s assets, including its right,
title and interest in, to and under, in each case, whether now
owned or existing, or hereafter acquired or arising, in all
securities, loans, investments, accounts, chattel paper, money,
deposit accounts, instruments, financial assets, documents,
investment property, general intangibles, letter of credit rights,
and other supporting obligations (in each case, as defined in the
UCC), and other property of any type or nature in which the
Guarantor has an interest, relating thereto and all proceeds with
respect to the foregoing (the “ Pledged Collateral
”). Such Pledged Collateral shall include, but is not limited
to:
(a)
the Existing U.S. Development Agreements and the Development
Payments thereon;
(b)
the New U.S. Franchise Agreements and the Franchise Payments
thereon;
(c)
all rights to enter into New U.S. Franchise Agreements and New U.S.
Development Agreements;
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(d)
all Franchise Assets acquired following the Closing Date;
(e)
the books and records (whether in physical, electronic or other
form) of the Franchise Holder, including those books and records
maintained by the Servicer on behalf of the Franchise Holder
relating to the New Franchise Assets;
(f)
the rights, powers, remedies and authorities of the Franchise
Holder under (i) each of the Transaction Documents (other than
the Franchise Holder Guaranty and Collateral Agreement) to which it
is a party and (ii) each of the documents relating to the
Franchise Assets acquired following the Closing Date to which it is
a party;
(g)
any and all other property of the Franchise Holder now or hereafter
acquired other than certain de minimis excepted property;
(h)
the inter-company loans from the Franchise Holder to the Master
Issuer and any deposit account held in the name of the Franchise
Holder for purposes of maintaining a minimum net worth; and
(i)
all payments, proceeds and accrued and future rights to payment
with respect to the foregoing.
Section 2.2
Further Assurances . Prior to or concurrently with the
execution of this Agreement, and thereafter at any time and from
time to time, the Guarantor shall execute and deliver to the
Indenture Trustee all financing statements, continuation financing
statements, assignments, certificates and documents of title,
affidavits, reports, notices, schedules of account, letters of
authority, further pledges, powers of attorney and all other
documents (collectively, the “ Perfection Documents
”) in form and substance reasonably satisfactory to the
Indenture Trustee, and take such other action which the Indenture
Trustee may request, to perfect and continue perfected and to
create and maintain the first priority status of the Indenture
Trustee’s security interest hereunder in the Pledged
Collateral. The Guarantor hereby authorizes the Indenture Trustee
to file any financing statement it reasonably deems necessary or
advisable to perfect the security interests granted herein and such
financing statements may describe the collateral in any manner
Indenture Trustee reasonably deems necessary or advisable. Such
power, being coupled with an interest, is irrevocable until all of
the Guaranteed Obligations have been indefeasibly paid in full or
otherwise terminated in accordance with the Indenture and/or the
Notes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Guarantor makes
the following representations and warranties to the Indenture
Trustee which shall be continuing representations and warranties so
long as any Guaranteed Obligation shall remain outstanding and
unsatisfied or could become due or unsatisfied:
Section 3.1
Organization and Good Standing . The Guarantor (i) is a
limited liability company, duly formed and organized, validly
existing and in good standing under the laws of the State of
Delaware, (ii) is duly qualified to do business as a foreign
limited liability company or corporation and in good standing under
the laws of each jurisdiction where the character of its property,
the nature of its business or the performance of its obligations
hereunder make such qualification necessary, except where the
failure to be so qualified could not reasonably be expected to have
a Material Adverse Effect and (iii) has the power and
authority to own its properties and to conduct its business as such
properties are
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currently owned and such business is currently
conducted and to perform its obligations under this Agreement
and any other Transaction Document to which it is a
party.
Section 3.2
Power and Authority; No Conflicts . The execution and delivery by the
Guarantor of this Agreement and any other Transaction Document to
which it is a party and its performance of, and compliance with,
the terms hereof and any other Transaction Document to which it is
a party are within the power of the Guarantor and have been duly
authorized by all necessary limited liability company action on the
part of the Guarantor. Neither the execution and delivery of
this Agreement, nor the consummation of the transactions herein
contemplated to be consummated by the Guarantor, nor compliance
with the provisions hereof, will conflict with or result in a
breach of, or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a breach or default)
under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Guarantor or
its properties, or the organizational documents and agreements of
the Guarantor, or any of the provisions of any material indenture,
mortgage, lease, contract or other instrument to which the
Guarantor is a party or by which it or its property is bound or
result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any
such indenture, mortgage, leases, contract or other instrument.
Section 3.3
Consents . The Guarantor is not required to obtain the
consent of any other party or the consent, license, approval or
authorization of, or, except for filings of financing statements
and recording of mortgages or deeds of trust, registration or
declaration with, any Governmental Authority in connection with the
execution, delivery or performance by the Guarantor of this
Agreement and any other Transaction Document to which it is a
party, or the validity or enforceability of this Agreement and any
other Transaction Document to which it is a party.
Section 3.4
Due Execution and Delivery . This Agreement and any other
Transaction Document to which it is a party has been duly executed
and delivered by the Guarantor and constitutes a legal, valid and
binding instrument enforceable against the Guarantor in accordance
with its terms (subject to applicable insolvency laws and to
general principles of equity).
Section 3.5
Due Qualification . The Guarantor has obtained or made all
material licenses, registrations, consents, approvals, waivers and
notifications of creditors, lessors and other Persons, in each
case, in connection with the execution and delivery of this
Agreement and any other Transaction Document to which it is a party
by the Guarantor, and the consummation by the Guarantor of all the
transactions herein contemplated to be consummated by the Guarantor
and the performance of its obligations hereunder and under any
other Transaction Document to which it is a party.
Section 3.6
Good Title . The Guarantor has good title to the Pledged
Collateral pledged by it, free and clear of all Liens and
contractual restrictions other than Permitted Liens and those in
favor of the Indenture Trustee. None of the Pledged Collateral
shall be subject to any option to purchase or similar right of any
Person, expect as permitted under the Indenture, the Notes or any
other Transaction Documents. The security interest in the Pledged
Collateral granted to the Indenture Trustee pursuant to this
Agreement constitutes a valid perfected first priority security
interest and Lien subject to the Lien of no other Person other than
Permitted Liens.
Section 3.7
No Restriction . There are no restrictions upon the creation
and perfection of a security interest on the Pledged Collateral as
of the Closing Date that have not been duly waived and the
Guarantor has the power and authority and right to create and
perfect such security interest the Pledged Collateral owned by the
Guarantor free of any encumbrances other than Permitted Liens and
without obtaining the consent of any other Person which consent has
not been duly obtained.
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ARTICLE IV
COVENANTS
Section 4.1
No Adverse Action . The Guarantor shall not take or permit
to be taken any action which could reasonably be expected to have a
material adverse effect on the aggregate value of the Pledged
Collateral or on the security interests created hereby.
Section 4.2
Defense . The Guarantor shall defend the Pledged Collateral
against all Persons at any time claiming any interest therein.
Section 4.3
Compliance with Law . The Guarantor shall comply with all
applicable law in respect of the Pledged
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