Exhibit 10.65
INDEMNITY AGREEMENT
THIS INDEMNITY
AGREEMENT (this “Agreement”) is executed on the 5th day
of February 2004, by AFC ENTERPRISES, INC., a Minnesota
corporation (“AFC”), and CAJUN OPERATING COMPANY, a
Delaware corporation, (“Indemnitor”), to and in favor
of SUPPLY MANAGEMENT SERVICES. INC., a Georgia non-profit
corporation (“Indemnitee’).
A.
AFC and Indemnitee entered into that certain Indemnity Agreement
dated October 14, 2004 (the “Indemnity
Agreement”), pursuant to which AFC agreed to indemnify
Indemnitee with respect to the Poultry Supply Contracts identified
on Exhibit A (the “Contracts”) which commit
Indemnitee to purchase a minimum volume of poultry over a five
(5) year period to help provide for the poultry needs of AFC
and franchisees of AFC in connection with the operation of certain
of their restaurants, (including those restaurants operated under
the “Church’s Chicken” and Texas Chicken”
trademarks (the “Church’s
Restaurants”)).
B.
AFC entered into that certain Asset Purchase Agreement dated
October 30, 2004 (the “Purchase Agreement”),
whereby AFC agreed to sell the assets related to the Church’s
Restaurants to Indemnitor.
C.
In accordance with the terms of the Purchase Agreement and in order
to induce AFC to consummate the transactions contemplated thereby,
Indemnitor has agreed to assume those liabilities and obligations
of AFC under the Indemnity Agreement that relate to the
Church’s Restaurants and 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 us follows:
Section 1.
Assumption . Indemnitor
hereby assumes, from and after the date hereof, all the liabilities
and obligations of AFC under the indemnity Agreement that relate to
the Church’s Restaurants, and Indemnitee hereby agrees to
such assumption by Indemnitor.
Section 2.
Indemnity . Indemnitor hereby
agrees, from and after the date hereof, 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 Church’s Restaurants to purchase, or place
orders to purchase, poultry from or through Indemnitee pursuant to
the Contracts 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 or
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 3.
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 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 4.
Payments . 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 he obligated
