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HomeMy WebLinkAbout01-1125TRUD¥ WITZKOSKE LOCKE LIDDELL & SAPP LLP 3400 CHASE TOWEg 600 TRAVIS STREET HOUSTON, TEXAS 77OO2-~O95 1. Name and Address of Debtor: FINANCING STATEMENT Debtor's Taxpayer I.D. No.: 16-0958146 CARROLS CORPORATION 968 James Street Syracuse, New York 13203 Name and Address of Secured Party: Secured Party's Taxpayer I.D. No.: 13-4994650 THE CHASE MANHATTAN BANK, as Agent for the financial institutions which now or hereafter become parties to the Loan Agreement (hereinafter defined) 712 Main Street Houston, Texas 77002 Attention: Manager, Franchise and Trademark Finance Division 3. This Financing Statement covers all of Debtor's remedies, powers, privileges, rights, titles and interests (including all power of Debtor, if any, to pass greater title than it has itself) of every kind and character now owned or hereafter acquired, created or arising in and to the following types (or items) of property: Accounts (a) all accounts, receivables, accounts receivable, general intangibles regardless of form (including, to the extent assignable, all choses or things in action, trade names, trade- marks, patents, patents pending, infringement claims, service marks, licenses, copy- rights, blueprints, drawings, plans, diagrams, schematics, computer programs, computer tapes, computer discs, reports, catalogs, customer lists, purchase orders, goodwill, route lists, monies due or recoverable from pension funds, tax refunds and all rights to any of the foregoing), book debts, contract rights and rights to payment no matter how evidenced (including those accounts listed on the Schedule or Schedules which may from time to time be attached hereto); (b) all chattel paper, notes, drafts, acceptances, payments under leases of equipment or sales o f inventory, and other forms of obligations received by or belonging to Debtor for goods sold or leased and/or services rendered by Debtor; (c) all purchase orders, instruments and other documents (including all documents of title) evidencing obligations to Debtor, including those for or representing obligations for goods sold or leased and/or services rendered by Debtor; (d) all monies due or to become due to Debtor under all contracts, including those for the sale or lease of goods and/or perfomqance of services by Debtor no matter how evidenced and whether or not earned by performance; (e) all accounts, receivables, accounts receivable, contract rights, and general intangibles arising as a result of Debtor's having paid accounts payable (or having had goods sold or leased to Debtor or services performed for Debtor giving rise to accounts payable) which accounts payable were paid for or were incurred by Debtor on behalf of any third parties pursuant to an agreement or other,vise; (f) all goods, the sale and delivery of xvhich give rise to any of the foregoing, including any such goods which are returned to Debtor for credit; Inventory all goods, merchandise, raw materials, work in process, finished goods, and other tangible personal property of whatever nature now owned by Debtor or hereafter from time to time existing or acquired, wherever located and held for sale or lease, including those held for display or demonstration or out on lease or consignment, or furnished or to be furnished under contracts of service or used or usable or consumed or consumable in Debtor's business or which are finished or unfinished goods and all accessions and appurtenances thereto, together with all warehouse receipts and other documents evidencing any of the same and all containers, packing, packaging, shipping and similar materials. Equipment all goods, equipment, machinery, furnishings, fixtures, furniture, appliances, accessories, leasehold improvements, chattels and other articles of personal property of whatever nature (whether or not the same constitute fixtures) now owned by Debtor or hereafter acquired, and all component parts thereof and all appurtenances thereto; Trademarks to the extent assignable, all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, and other source or business identifiers, and all prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications, if any, in connection therewith including, registrations, recordings and applications, if any, in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof, or any other country or any political subdivision thereof and all reissues, continuations, continuations-in-part, extensions or renewals thereof (each of the foregoing items in this paragraph being herein referred to as a "Trademark") and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark; Houston 007002/03960 391806 v 2 2 (a) (b) (c) (i) (ii) (d) Contract Rights the franchise agreements to which Debtor is a party as franchisee and the lease agreements to which Debtor is a party as lessee or tenant, as any of the same may from time to time be amended, modified, supplemented or restated (all such instruments being herein collectively called the "Restaurant Documents"); all rights, powers, privileges, benefits and remedies of Debtor under the Restaurant Documents and under each and every instrument now or hereafter governing, evidencing, securing or guarantying or otherwise relating to or delivered in connection with the Restaurant Documents; and all instruments, documents, chattel paper, accounts, general intangibles, profits, income, money, credits, claims, demands and other property (real or personal) and revenues of any kind or character now or hereafter relating to, accruing or arising under or in respect of the Restaurant Documents or paid, payable or otherwise distributed or distributable or transferred or transferrable to Debtor under, in connection with or otherwise in respect of the Restaurant Documents; Stock all of the capital stock owned by Debtor listed on Exhibit B, hereto attached and hereby made a part hereof; all dividends (cash or otherwise), rights to receive dividends, stock dividends, dividends paid in stock, distributions upon redemption or liquidation, distributions as a result of split-ups, recapitalizations or rearrangements, stock rights, rights to subscribe, voting rights, rights to receive securities, and all new securities and other property which Debtor may hereafter become entitled to receive on account of the foregoing (Debtor hereby agreeing that in the event Debtor receives any such new securities, Debtor will immediately deliver the same to Secured Party to be held by Secured Party subject to the terms and provisions of this Agreement); Mortgages All of Debtor's interest (if any) in and to all fixtures, equipment and supplies (the "Fixtures and Equipment") now or hereafter attached to, used, intended or acquired for use for, or in connection xvith, the construction, maintenance, operation or repair of the Real Property (hereinafter defined) or Improvements (hereinafter defined), or for the present or fi~ture replacement or replenishment of used portions of it, and all related pans, filters and supplies, including, but not limited to, all heating, lighting, cooling, ventilating, air conditioning; environment control, refrigeration, plumbing, incinerating, water-heating, cooking, pollution control, gas, electric, solar, nuclear, computing, monitoring, measuring, controlling, distributing and other equipment and fixtures, and all renewals and replacements of them, all substitutions for them and all additions and accessions to them. (e) (g) (h) (i) (J) (k) All Leases (as such term is hereinafter defined). All wastewater, fresh water and other utilities capacity and facilities (the "Utilities Capacity") available or allocable to the Real Property and Improvements or dedicated to or reserved for them pursuant to any system, program, contract or other arrangement with any public or private utility, and all related or incidental licenses, rights and interests, whether considered to be real, personal or mixed property, including the right and authority to transfer or relinquish any or all such rights and the right to any credit, refund, reimbursement or rebate for utilities facilities construction or installation or for any reservation fee, standby fee or capital recovery charge promised, provided or paid for by Debtor or any of Debtor's predecessors or Affiliates (defined below), to the full extent now allocated or allocable to the Real Property or Improvements, plus all additional Utilities Capacity, if any, not dedicated or reserved to the Real Property or Improvements but which is now or hereafter owned or controlled by Debtor or by anyone (an "Affiliate", whether a natural person or an entity) who directly or through one or more intermediaries controls, is controlled by or is under common control with Debtor, to the full extent that such additional Utilities Capacity is necessary to allow development, marketing and use of the Real Property or Improvements for their highest and best use. All estate, right, title and interest acquired by Debtor in or to the Real Property, Improvements, Fixtures and Equipment, Leases, Rental and Utilities Capacity after execution of this Financing Statement (including any leasehold interests in and to any of the foregoing which Debtor may hereafter acquire by reason of any assignment to Debtor of any and all lease agreements now or hereafter affecting any of the property described on Exhibit A). Any and all rights and appurtenances (the "Appurtenances") belonging, incident or appertaining to the Real Property, Improvements, Fixtures and Equipment, Leases, Rental or Utilities Capacity or any part of them. All of Debtor's interest (if any) in and to all existing and future minerals, oil, gas, and other hydrocarbon substances in, upon, under or through the Real Property. Any and all rights and estates in reversion or remainder to the Real Property, Improvements, Fixtures and Equipment, Leases, Rental, Utilities Capacity or Appurtenances or any part of them. All of Debtor's interest (if any) in and to all contracts (including, without limitation, contracts for the sale or exchange of all or any portion of the Real Property or the Improvements ), franchises, licenses and permits whether executed, granted or issued by a private person or entity or a governmental or quasi-governmental agency, which are related to or connected with the development or sale of the Real Property or the Improvements, whether now or at any time hereafter existing, and all amendments and supplements thereto and renewals and extensions thereof at any time made, and all rebates, refunds, escrow accounts and funds, or deposits and all other sums due tlouston 007002:03900 591806 v 2 4 (l) (m) (n) (o) (P) or to become due under and pursuant thereto and all powers, privileges, options and other benefits of Debtor thereunder. All other estates, easements, interests, licenses, rights, titles, powers or privileges of every kind and character which Debtor now has, or at any time hereafter acquires, in and to any of the foregoing, including, without limitation, the proceeds from condemnation, or threatened condemnation, and the proceeds of any and all insurance covering any part of the foregoing; and all related parts, accessions and accessories to any of the foregoing and all replacements or substitutions therefor, as well as all other Improvements, Fixtures and Equipment, Leases, Utilities Capacity and Appurtenances now or hereafter placed thereon or accruing thereto. All equipment, accounts, general intangibles, fixtures, inventory, chattel paper, notes, documents and other personal property used, intended or acquired for use, on--or in connection with the use or operation of--the Real Property, the Improvements or the property described in (a) through (i) above (collectively, the "Property"), or otherwise related to the Property, and all products and proceeds of it, including, without limitation, all Rental (as such term is hereinafter defined) and all security deposits under Leases now or at any time hereafter held by or for Debtor's benefit, all mone- tary deposits which Debtor has been required to give to any public or private utility with respect to utility services furnished to the Property, all funds, accounts, instruments, accounts receivable, documents, trademarks, trade names and symbols used in connection therewith, and notes or chattel paper arising from or by virtue of any transactions related to the Property, all permits, licenses, franchises, certificates, and other rights and privileges obtained in connection with the Property (to the extent assignable), and all guaranties and warranties obtained with respect to all improvements, equipment, furniture, furnishings, personal property and components of any thereof located on or installed at the Property (to the extent assignable). All contracts now or hereafter entered into by and between Debtor and any person or entity, as well as all right, title and interest of Debtor under any subcontracts, providing for the construction (original, restorative or otherwise) of any improvements to or on any of the Property or the furnishing of any materials, supplies, equipment or labor in connection with any such construction. All of the plans, specifications and drawings (including, but not limited to, plot plans, foundation plans, floor plans, elevations, framing plans, cross-sections of walls, mechanical plans, electrical plans and architectural and engineering plans and architectural and engineering studies and analyses) heretofore or hereafter prepared by any architect, engineer or other design professional, in respect of any of the Property. All agreements now or hereafter entered into with any person or entity in respect of architectural, engineering, design, management, development or consulting services rendered or to be rendered in respect of planning, design, inspection or supervision of the construction, management or development of any of the Property. Houston 007002i03960 $91806 v 2 5 (q) (r) (s) Any commitment issued by any lender or investor other than any Bank to finance or invest in any of the Property. Any completion bond, performance bond and labor and material payment bond and any other bond relating to the Property or to any contract providing for construction of improvements to any of the Property. All substitutions for and proceeds of any of the foregoing received upon the rental, sale, exchange, transfer, collection or other disposition or substitution of it and all general intangibles now owned by Debtor or existing or hereafter acquired, created or arising related to any of the foregoing property. all accessions, appurtenances and additions to and substitutions for any of the foregoing; all products and proceeds of any of the foregoing; all renewals and replacements of any of the foregoing; and all accounts, instruments, notes, chattel paper, documents (including all documents of title), books, records, contract rights and general intangibles relating to or arising in connection with any of the foregoing (including all insurance and claims for insurance affected or held for the benefit of Debtor or Secured Party in respect of any of the foregoing, any claim for past, present or future infringement or dilution of any Trademark, or for injury to the good,viii associated with any Trademark) and together with all general intangibles now owned by Debtor or existing or hereafter acquired, created or arising (whether or not related to any of the foregoing property). Notwithstanding anything herein to the contrary, the Collateral shall not include any interest of Burger King Corporation with respect to any fixtures located at properties leased from Burger King Corporation and Secured Party's rights hereunder shall be subject to the rights of Burger King Corporation under the leases relating to such properties (except as Burger King Corporation may otherwise agree in writing). A portion of the property covered hereby is fixtures on the Real Property. Debtor is the record owner of a leasehold interest in and to the land described on Exhibit A hereto pursuant to the Lease Agreements. Products of the collateral are also covered. Certain Definitions: The term "Improvements" as used herein means all existing and all future buildings on the Real Property and other improvements to it, including, but not limited to, all water, sewage and drainage facilities, wells, treatment plants, supply, collection and distribution systems, paving, landscaping and other improvements. The term "Leases" as used herein means any oral or written agreement between Debtor and another person or entity to use or occupy all or any portion of the property covered hereby, together with any guaranties or security for the obligations of any tenant, lessee, sublessee or other person or entity having the right to occupy, use or manage any part of such property under a Lease. The term "Loan A~reement" as used herein means that certain Loan Agreement dated as of December __., 2000 executed among Carrols Corporation, a Delaware corporation, Secured Party and certain financial institutions therein set forth, as the same may from time to time be amended, modified, restated or supplemented. The term "Real Property" as used herein means all of the real estate, immovable property and premises described or referred to on Exhibit A, together with (i) all of Debtor's estate, right, title and interest in and to all easements and rights-of-way for utilities, ingress or egress to or from said property and (ii) all interests of Debtor in and to all streets, rights-of-way, alleys or strips of land adjoining said property. The term "Real Property" as used herein shall include Debtor's rights, titles and interests in and to the property covered by the leasehold interest created under and pursuant to each of the lease agreements described on Exhibit A, as the same may be amended, supplemented, restated or replaced from time to time (collectively, the "Lease A~reements"). The term "Rental" as used herein means all rents, revenues, income and profits payable under each Lease now or at any time hereinafter existing. Houston 007002/03960 591866 v 2 7 EXECUTED as of December [6~, 2000. "DEBTOR" CARROLS CORPORATION, a Delaw~ By: J~eph A~r~an, "SECURED PARTY" THE CHASE MANHATTAN BANK, as Agent Name: KAl:lA J. NORDSTROM Title: VICE PRESIDENT Exhibit A - Real Property Exhibit B - Stock Prepared by and after filing please return to: Locke Liddell & Sapp LLP 3400 Chase Tower Houston, Texas 77002 Attention: Mr. Stanley B. Haas (713) 226-1247 Houston 007602/03960 591806 v 2 9 EXHIBIT A The leasehold estates and interests created under each lease agreement to which Grantor is now or hereafter a party, other than lease agreements covering or affecting (or comprising) the Excluded Assets (as defined in the Loan Agreement). Such lease agreements cover and affect, among other properties, the property described on the following pages of this Exhibit. Iqot~ston 0070D2/03960 593323 SCHEDULE A All that certain tract or parcel of land situated in Lemoyne Borough, Cumberland County, Pennsylvania, lying at the intersection of Lowther Street (S.R. 2028) and Third Street (S.R. 2035), being more partic-lmrly descn'bed as follows: Bl~Ollq'NllqO at an iron pin set in the southerly linc of Third Street located South 56 desrees 14 minutes 00 seconds East a distance of 185.60 feet from/he intersection of the e~terly line of Lovaher Street and the southerly line of Third Street; thence South 33 degrees 46 minutes 00 seconds West a distance of 217.80 feet to an iron pipe found; thence North 36 de~'ecs 14 minutes 00 seconds West a distance of 185.60 feet to an iron pin found in the easterly line of Lowtber Street; thence along Lowther Street, North 133 degrees 46 minutes 00 seconds East a distance of 177.80 feet; thence by a curve to the right having a r~dius of 40 feet, an arc length of 62.83 feet (a chord bearing lqorth 78 degrees 46 minutes 00 seconds East a distence of S6.57 feet) to the southerly linc of Third Street; thence along the southerly line of Third Street, South 56 degrees 14 minutes 00 seconds East a distance of 145.60 feet to the point of beginning; Co~-~,,~-_~ 40,080 SQ. FT. or 0.92 acres. EXHIBIT B All of the issued and outstanding stock o fTaco Cabana, Inc., a Delaware corporation.