Exhibit 10.64
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this “Agreement”) is
executed on the 14th day of October, 2004, by AFC ENTERPRISES,
INC. , a Minnesota corporation, (“Indemnitor”), to
and in favor of SUPPLY MANAGEMENT SERVICES, INC. , a Georgia
non-profit corporation (“Indemnitee”).
A.
Indemnitee is a purchasing cooperative that serves Indemnitor and
franchisees of Indemnitor in connection with the operation of their
restaurants (hereinafter collectively referred to as the
“Restaurant Operators”).
B.
Indemnitee is or will become a party to certain Poultry Supply
Contracts (the “Contracts”) which commit Indemnitee to
purchase a minimum volume of poultry over a five (5) year
period. Entering into such Contracts will help provide for the
poultry needs of the Restaurant Operators over the next five years,
and such Contracts are acknowledged to be for the benefit of the
Restaurant Operators. The form of the proposed Contracts has been
reviewed and approved by Indemnitor.
C.
To induce Indemnitee to enter into the Contracts and to commit to
specified minimum volumes of poultry from each of the suppliers
identified in the Contracts, Indemnitor has agreed to enter into
this Agreement for the benefit and protection of
Indemnitee.
NOW, THEREFORE , in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is
hereby acknowledged, Indemnitor and Indemnitee hereby agree as
follows:
Section 1.
Indemnity . Indemnitor
hereby agrees to indemnify, save, defend (at Indemnitor’s
sole cost and expense) and hold harmless Indemnitee and the
officers, directors, agents, members and employees of Indemnitee,
and the heirs, successors and assigns of each of the foregoing (all
of such persons or entities being collectively referred to herein
as “Indemnified Persons” and each such reference shall
refer jointly and severally to each such person), from and against
the full amount of any and all “Losses” incurred by any
Indemnified Person by reason of the Restaurant Operators’
failure to purchase, or place orders to purchase, poultry from or
through Indemnitee pursuant to the Contacts at times and in
quantities sufficient to enable Indemnitee to satisfy the minimum
poultry volume requirements as set forth under the Contracts. As
used herein, “Losses” shall mean any and all
liabilities; obligations, losses, damages, penalties, claims,
actions, suits, judgments, costs, expenses and disbursements
(including, but not limited to, all reasonable attorneys’
fees and all other reasonable professional or consultants’
expenses incurred in investigating, preparing for, serving as a
witness in or defending against any action or proceeding actually
commenced against any Indemnified Person), whether or not caused by
the negligence of any of the Indemnified Persons (however, Losses
shall not include any liabilities, obligations, losses, damages,
penalties, claims, actions, suits, judgments, costs, expenses and
disbursements which are caused by an Indemnified Person’s
gross negligence or willful misconduct or by a material breach by
Indemnitee under the Contracts, or any of them, other than a breach
relating to failure to purchase the minimum poultry requirements
contained thereunder).
Section 2.
Obligations of Indemnitee
. As a condition of Indemnitor’s obligations hereunder,
Indemnitee and Indemnitor agree as follows:
(a)
Any Contract entered into by Indemnitee with a supplier of poultry
which contains a minimum volume requirement shall be approved as to
the volume requirement only by Indemnitor prior to execution by
Indemnitee, such approval not to be unreasonably withheld, delayed
or conditioned.
(b)
Any adjustments made by Indemnitee to the minimum volume
requirement under any Contract shall be approved, in advance, by
Indemnitor, such approval not to be unreasonably withheld, delayed
or conditioned.
(c)
Indemnitee shall use its commercially reasonable efforts to
mitigate the liability of Indemnitor hereunder.
Section 3.
Payments . Payments
under this Agreement with respect to all Losses shall be due and
payable as Losses are incurred. Within a reasonable time after any
Losses are incurred, the Indemnified Person shall give notice to
Indemnitor together with all reasonable documentation supporting
the claim for indemnity; provided, however, that failure by an
Indemnified Person to give such notice shall not relieve Indemnitor
from any liability, duty or obligation hereunder in the absence of
material prejudice to Indemnitor, but Indemnitor shall not be
obligated to pay for such Losses u
