Exhibit 10.8

 

MASTER REAFFIRMATION AGREEMENT

 

This MASTER REAFFIRMATION AGREEMENT (this “Agreement”) is made as of this 23rd day of September, 2011, by and among ZOE’S KITCHEN USA, LLC, a Delaware limited liability company (“Borrower”), each of the other Credit Parties signatory hereto (together with Borrower, each an “Obligor” and collectively the “Obligors”) and GENERAL ELECTRIC CAPITAL CORPORATION, as agent (“Agent”) for the Lenders party to the Amended and Restated Credit Agreement described below and all other Secured Parties.  All capitalized terms used but not elsewhere defined herein shall have the respective meanings ascribed to such terms in the Amended and Restated Credit Agreement.

 

W I T N E S S E T H:

 

A.                                    The Borrower, certain Obligors, Agent and certain Lenders have entered into that certain Loan Agreement (Revolving Line of Credit) dated as of December 14, 2007 (as amended, restated, supplemented, or otherwise modified through but not including the date hereof, the “Initial Credit Agreement”), pursuant to which the Lenders made loans and other financial accommodations to the Borrower, subject to the terms and conditions set forth therein.

 

B.                                    The Obligors, Agent and the Lenders party thereto have agreed to amend and restate the Initial Credit Agreement in its entirety, without constituting a novation, pursuant to that certain Amended and Restated Credit Agreement of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Credit Agreement”) by and among Agent, the Lenders, the Borrower and the other Obligors party thereto.

 

C.                                    The Obligors have previously reviewed, consented to and executed various agreements, documents and instruments in connection with the Initial Credit Agreement including, without limitation, those agreements, documents and instruments described on Exhibit A hereto (collectively, the “Existing Collateral Documents”) and copies of which are attached hereto as Exhibit B.

 

D.                                    Each Obligor shall derive both direct and indirect benefits from the loans and other financial accommodations (collectively, the “Loans”) made pursuant to the provisions of the Amended and Restated Credit Agreement.

 

E.                                     One of the conditions precedent to Agent and the Lenders entering into the Amended and Restated Credit Agreement is that each Obligor execute and deliver this Agreement to acknowledge and agree that the Existing Collateral Documents, and the liens, security interests and guarantees granted and issued thereunder, secure and guaranty the Obligations and all other obligations, liabilities and indebtedness (collectively, the “Liabilities”) of the Obligors under the Amended and Restated Credit Agreement and the other Loan Documents.

 

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NOW, THEREFORE, in consideration of the premises set forth herein and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, each of the undersigned hereby agrees as follows:

 

1.                                      References Contained in the Existing Collateral Documents.  All references in the Existing Collateral Documents to the “Obligations” or any other obligations, liabilities or indebtedness of the Obligors owing from time to time and at any time to Agent and the Lenders shall be deemed to refer to, without limitation, the “Obligations” of the Credit Parties under, pursuant to and as defined in the Amended and Restated Credit Agreement.  All references in the Existing Collateral Documents to the “Credit Agreement” shall be deemed to refer to the Amended and Restated Credit Agreement.  All references in the Existing Collateral Documents to the “Loan Documents” shall be deemed to refer to and include, without limitation, the “Loan Documents” as defined in the Amended and Restated Credit Agreement.  All references in the Existing Collateral Documents to the “Borrower” or “Credit Parties” shall be deemed to refer to the “Borrower” or “Credit Parties” under, pursuant to and as defined in the Amended and Restated Credit Agreement.

 

2.                                      Reaffirmation.  In connection with the execution and delivery of the Amended and Restated Credit Agreement, each Obligor, as borrower, debtor, grantor, mortgagor, pledgor, guarantor or assignor, or in any other similar capacities in which such Person grants Liens or security interests in its Property or otherwise acts as an accommodation party or guarantor, as the case may be, in any case under the Existing Collateral Documents, hereby (i) ratifies and reaffirms all of its payment, performance and observance obligations and liabilities, whether contingent or otherwise, under each of such Existing Collateral Documents, as amended hereby, to which it is a party, and (ii) to the extent such Person granted Liens on or security interests in any of its Property pursuant to any such Existing Collateral Document as security for the Liabilities of such Person under or with respect to the Existing Collateral Documents or any of the other Loan Documents, ratifies and reaffirms such grant of security and confirms and agrees that such Liens and security interests hereafter secure all of the Liabilities of such Person and the other Obligors, as applicable, under the Existing Collateral Documents, as amended hereby, in each case including, without limitation, all additional obligations, indebtedness and liabilities resulting from the Amended and Restated Credit Agreement, and as if each reference in such Existing Collateral Documents, as amended hereby, to the obligations, indebtedness and liabilities secured thereby are construed hereafter to mean and refer to such obligations, indebtedness and liabilities under the Amended and Restated Credit Agreement and the other Loan Documents, including, without limitation, the Existing Collateral Documents, as amended hereby.

 

Each Obligor acknowledges receipt of a copy of the Amended and Restated Credit Agreement and the Loan Documents executed and delivered in connection therewith and acknowledges that each of the Existing Collateral Documents, as amended hereby, remains in full force and effect and hereby is ratified and confirmed.  The execution and delivery of this Agreement, and the performance of the Obligors’ obligations hereunder, shall not (i) operate as a waiver of any right, power or remedy of the Agent or the Lenders, (ii) constitute a waiver of any provision of any of the Existing Collateral Documents, or (iii) constitute a novation of any of the Liabilities or other obligations under the Initial Credit Agreement or the Loan Documents

 

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(including, without limitation, the Existing Collateral Documents).  Each Obligor agrees that this Agreement constitutes a “Loan Document” under the Amended and Restated Credit Agreement.

 

3.                                      Representations and Warranties.  (a)  Each Obligor hereby confirms to the Agent that the representations and warranties set forth in the Existing Collateral Documents, as amended by this Agreement, made by such Obligor are true and correct in all respects as of the date hereof and shall be deemed to be remade as of the date hereof.  Each Obligor hereby represents and warrants to the Agent that: (i) such Person has the corporate, limited liability company or limited partnership (as applicable) power and authority to execute and deliver this Agreement and to perform its obligations hereunder; (ii) upon the execution and delivery hereof, this Agreement shall be valid, binding and enforceable upon such Person in accordance with its terms; (iii) the execution and delivery of this Agreement do not and shall not (A) contravene the terms of any of such Person’s Organization Documents, (B) conflict with or result in any material breach or contravention of any document (1) evidencing any Contractual Obligation to which such Person is a party or (2) binding upon or applicable to all or any portion of such Person’s Property, or (C) violate any Requirement of Law or any order, injunction, writ or decree of any Governmental Authority to which such Person or its Property is subject except where such violation, individually or in the aggregate, could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect and (iv) no “Default” or “Event of Default” exists.

 

(b)                                 In connection herewith, the parties hereto desire to amend and restate the schedules to that certain Guaranty and Security Agreement dated as of December 14, 2007 among the Obligors and Agent (as amended, restated, supplemented or otherwise modified from time to time, the “Existing Security Agreement”) in their entirety without constituting a novation.  Obligors hereby represent and warrant to Agent that such schedules to the Existing Security Agreement attached hereto as Exhibit C are true, correct and complete in all respects as of the date hereof.

 

4.                                      No Further Amendments; Ratification of Liability; Effect.  Except as amended hereby, each of the Existing Collateral Documents shall remain in full force and effect in accordance with their respective terms.  Each Obligor hereby ratifies and confirms its liabilities, obligations and agreements under the Existing Collateral Documents, all as amended by this Agreement, and acknowledges that (i) the Obligors have no defenses, claims or set-offs to the enforcement by the Agent of such liabilities, obligations and agreements, and (ii) the Agent does not waive, diminish or limit any term, condition or covenant contained in the Existing Collateral Documents.

 

5.                                      Successors and Assigns.  This Agreement shall be binding upon each Obligor and its successors and assigns and shall inure to the benefit of the Agent and the Lenders and their respective successors and assigns; all references herein to the Obligors shall be deemed to include their respective successors and assigns.  The successors and assigns of such Persons shall include, without limitation, their respective receivers, trustees or debtors-in-possession.

 

6.                                      Definitions.  All references to the singular shall be deemed to include the plural and vice versa where the context so requires.

 

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7.                                      Governing Law.  THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN ALL MATTERS ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS VALIDITY, INTERPRETATION, CONSTRUCTION, PERFORMANCE AND ENFORCEMENT.

 

8.                                      Severability.  Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.

 

9.                                      Merger.  This Agreement represents the final agreement of each Obligor with respect to the matters contained herein and may not be contradicted by evidence of prior or contemporaneous agreements, or prior or subsequent oral agreements, between any of the Obligors and the Agent.

 

10.                               Execution in Counterparts.  This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

11.                               Section Headings.  The section headings herein are for convenience of reference only, and shall not affect in any way the interpretation of any of the provisions hereof.

 

12.                               Further Assurances.  Each Obligor hereby agrees from time to time, as and when requested by the Agent, to execute and deliver or cause to be executed and delivered (or otherwise authorized), all such documents, instruments and agreements, including, without limitation, any UCC financing statements (including, without limitation, any initial financing statements or in lieu financing statements), and to take or cause to be taken such further or other action as the Agent may deem necessary or desirable in order to carry out the intent and purposes of this Agreement, the Amended and Restated Credit Agreement and the Loan Documents, as amended hereby.

 

13.                               Release.  Each Obligor, on its own behalf and on behalf of its representatives, partners, agents, employees, servants, officers, directors, shareholders, subsidiaries, affiliated and related companies, successors and assigns (collectively, the “Obligor Group”), hereby releases and forever discharges the Agent, the Lenders, and their respective officers, directors, subsidiaries, affiliated and related companies, agents, servants, employees, shareholders, representatives, successors, assigns, attorneys, accountants, assets and properties, as the case may be (collectively, the “Lender Indemnified Group”), of and from all manner of actions, cause and causes of action, suits, debts, sums of money, accounts, reckonings, bonds, bills, specialities, covenants, contracts, controversies, agreements, promises, obligations, liabilities, costs, expenses, losses, damages, judgments, executions, claims and demands of whatsoever kind or nature, in law or in equity, whether known or unknown, concealed or hidden, foreseen or unforeseen, contingent or actual, liquidated or unliquidated, arising out of or relating to the

 

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Initial Credit Agreement or any of the agreements, documents and instruments executed and delivered in connection therewith or any related matter, cause or thing or any transaction contemplated thereby, that any of the Obligor Group, jointly or severally, has had, now has or hereafter can, shall or may have against the Lender Indemnified Group, or any member thereof, directly or indirectly, through the date hereof.

 

[Remainder of page intentionally left blank; signature pages follow]

 

5









 

IN WITNESS WHEREOF, this Agreement has been duly executed by each of the undersigned as of the day and year first set forth above.

 

	
 
    	
OBLIGORS:
    
	
 
    	
 
    
	
 
    	
ZOE’S   KITCHEN USA LLC, a Delaware limited liability company 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   KITCHEN, INC., a Delaware corporation 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
SOHO   FRANCHISING, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   ARIZONA, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   COLORADO, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   FLORIDA, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    


 

Master Reaffirmation

 











 

	
 
    	
ZOE’S   KITCHEN HOLDING COMPANY, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   LOUISIANA, LLC, a Delaware limited liability company 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   MARYLAND, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   RESTAURANTS NASHVILLE, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   NORTH CAROLINA, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   OKLAHOMA, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    


 

Master Reaffirmation

 











 

	
 
    	
ZOE’S   RESTAURANTS, L.L.C, an Alabama limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   SOUTH CAROLINA, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   TEXAS, LLC, a Delaware limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZK   TEXAS BEVERAGES, LLC, a Texas limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZK   TEXAS HOLDINGS, LLC, a Texas limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZK   TEXAS MANAGEMENT, LLC, a Texas limited liability company 
    
	
 
    	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    


 

Master Reaffirmation

 











 

	
 
    	
ZOE’S   VIRGINIA, LLC, a Delaware limited liability company 
    
	
 
    	
 
    
	
 
    	
By:   
    	
/s/   Jason Morgan 
    
	
 
    	
Name:   
    	
Jason   Morgan 
    
	
 
    	
Title:   
    	
CFO
    


 

Master Reaffirmation

 











 

IN WITNESS WHEREOF, this Agreement has been duly executed by the undersigned as of the day and year first set forth above.

 

	
 
    	
AGENT:
    
	
 
    	
 
    
	
 
    	
GENERAL ELECTRIC CAPITAL CORPORATION, as Agent
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Daniel Nunes
    
	
 
    	
Name:
    	
Daniel   Nunes
    
	
 
    	
Title:
    	
Duly   Authorized Signatory
    


 

Master Reaffirmation

 











 

EXHIBIT A

 

Existing Collateral Documents

 

All capitalized terms used but not elsewhere defined in this Exhibit A shall have the respective meanings ascribed to such terms in the foregoing Agreement.  Each of the following agreements, documents and instruments shall be deemed to include any and all amendments, modifications, supplements and restatements thereof.

 

1.              Guaranty and Security Agreement dated as of December 14, 2007 among Agent, Borrower, Zoe’s Kitchen, Inc., a Delaware corporation, Zoe’s Kitchen Holding Company, LLC, a Delaware limited liability company; Zoe’s Texas, LLC, a Delaware limited liability company; Zoe’s Florida, LLC, a Delaware limited liability company, Zoe’s Louisiana, LLC, a Delaware limited liability company, Zoe’s Arizona, LLC, a Delaware limited liability company, Zoe’s Restaurants, L.L.C., an Alabama limited liability company, Zoe’s Restaurants Nashville, LLC, a Delaware limited liability company and Zoe’s Tuscaloosa, LLC, an Alabama limited liability company.

 

2.              Joinder Agreement dated October 7, 2008 among Zoe’s North Carolina, LLC, a Delaware limited liability company, Zoe’s South Carolina, LLC, a Delaware limited liability company; Zoe’s Virginia, LLC, a Delaware limited liability company, Zoe’s Maryland, LLC, a Delaware limited liability company, Zoe’s Colorado, LLC, a Delaware limited liability company and Agent.

 

3.              Joinder Agreement dated July 10, 2008 between Soho Franchising, LLC, a Delaware limited liability company and Agent.

 

4.              Pledge Amendment dated as of December 14, 2007 by Zoe’s Kitchen, Inc., a Delaware corporation, together with any stock powers, assignment separate from certificates and irrevocable proxies executed in connection therewith

 

5.              Pledge Amendment dated as of December 14, 2007 by Borrower, together with any stock powers, assignment separate from certificates and irrevocable proxies executed in connection therewith.

 

6.              Pledge Amendment dated as of December 14, 2007 by Zoe’s Restaurants, L.L.C., an Alabama limited liability company, together with any stock powers, assignment separate from certificates and irrevocable proxies executed in connection therewith.

 

7.              Pledge Amendment dated as of October 7, 2008 by Borrower, together with any stock powers, assignment separate from certificates and irrevocable proxies executed in connection therewith.

 

8.              Pledge Amendment dated July 23, 2009 by Zoe’s Texas, LLC, a Delaware Limited liability company, together with any stock powers, assignment separate from certificates and irrevocable proxies executed in connection therewith.

 











 

9.              Pledge Amendment dated July 23, 2009 by ZK Texas Management, LLC, a Texas Limited liability company, together with any stock powers, assignment separate from certificates and irrevocable proxies executed in connection therewith.

 

10.       Trademark and Intellectual Property License Agreement dated as of December 14, 2007 between Borrower and Agent.

 

11.       Landlord Lien Subordination dated as of August 6, 2009 by and between Woodmont Plan, L.P., a Texas limited partnership and Agent.

 

12.       Landlord Lien Subordination dated as of July 10, 2009 by and between Midtown Redevelopment Partners, LLC, a North Carolina limited liability company and Agent.

 

13.       Landlord Lien Subordination Agreement dated as of December 31, 2010 by and between Jones Lang LaSalle Americas, Inc. and Agent.

 

14.       Blocked Account Agreement dated as of January 15, 2008 among Compass Bank, Borrower and Agent.

 











 

EXHIBIT B

 

Copies of Existing Collateral Documents

 

Attached

 









	
 
    


 

GUARANTY AND SECURITY AGREEMENT

 

Dated as of December 14, 2007

 

among

 

ZOE’S KITCHEN USA, LLC.

 

and

 

Each Grantor
 From Time to Time Party Hereto

 

and

 

GENERAL ELECTRIC CAPITAL CORPORATION,
 as Lender

	
 
    


 

Contract No.: 1427001

 

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TABLE OF CONTENTS

 

	
 
    	
 
    	
Page
    
	
 
    	
 
    
	
ARTICLE I DEFINED TERMS
    	
1
    
	
 
    	
 
    
	
Section 1.1
    	
Definitions
    	
1
    
	
Section 1.2
    	
Certain Other Terms
    	
5
    
	
 
    	
 
    	
 
    
	
ARTICLE II GUARANTY
    	
5
    
	
 
    	
 
    
	
Section 2.1
    	
Guaranty
    	
5
    
	
Section 2.2
    	
Limitation of Guaranty
    	
6
    
	
Section 2.3
    	
Contribution
    	
6
    
	
Section 2.4
    	
Authorization; Other Agreements
    	
6
    
	
Section 2.5
    	
Guaranty Absolute and Unconditional
    	
7
    
	
Section 2.6
    	
Waivers
    	
7
    
	
Section 2.7
    	
Reliance
    	
8
    
	
 
    	
 
    	
 
    
	
ARTICLE III GRANT OF SECURITY INTEREST
    	
8
    
	
 
    	
 
    
	
Section 3.1
    	
Collateral
    	
8
    
	
Section 3.2
    	
Grant of Security Interest in Collateral
    	
9
    
	
 
    	
 
    	
 
    
	
ARTICLE IV REPRESENTATIONS AND WARRANTIES
    	
9
    
	
 
    	
 
    
	
Section 4.1
    	
Title; No Other Liens
    	
9
    
	
Section 4.2
    	
Perfection and Priority
    	
9
    
	
Section 4.3
    	
Jurisdiction of Organization; Chief Executive Office
    	
10
    
	
Section 4.4
    	
Locations of Inventory, Equipment and Books and Records
    	
10
    
	
Section 4.5
    	
Pledged Collateral
    	
10
    
	
Section 4.6
    	
Instruments and Tangible Chattel Paper Formerly Accounts
    	
10
    
	
Section 4.7
    	
Intellectual Property
    	
11
    
	
Section 4.8
    	
Commercial Tort Claims
    	
11
    
	
Section 4.9
    	
Specific Collateral
    	
11
    
	
Section 4.10
    	
‘ Enforcement
    	
11
    
	
Section 4.11
    	
Representations and Warranties of the Credit Agreement
    	
11
    
	
 
    	
 
    	
 
    
	
ARTICLE V COVENANTS
    	
12
    
	
 
    	
 
    
	
Section 5.1
    	
Maintenance of Perfected Security Interest; Further   Documentation and Consents
    	
12
    
	
Section 5.2
    	
Changes in Locations, Name, Etc.
    	
12
    
	
Section 5.3
    	
Pledged Collateral
    	
13
    
	
Section 5.4
    	
Accounts
    	
13
    
	
Section 5.5
    	
Commodity Contracts
    	
13
    


 

3











 

	
Section 5.6
    	
Delivery of Instruments Tangible Paper and Control of   Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper
    	
13
    
	
Section 5.7
    	
Intellectual Property
    	
14
    
	
Section 5.8
    	
[Reserved]
    	
15
    
	
Section 5.9
    	
Notice of Commercial Tort Claims
    	
15
    
	
Section 5.10
    	
Compliance with Credit Agreement
    	
15
    
	
 
    	
 
    	
 
    
	
ARTICLE VI REMEDIAL PROVISIONS
    	
15
    
	
 
    	
 
    
	
Section 6.1
    	
Code and Other Remedies
    	
15
    
	
Section 6.2
    	
Accounts and Payments in Respect of General Intangibles
    	
18
    
	
Section 6.3
    	
Pledged Collateral
    	
18
    
	
Section 6.4
    	
Proceeds to be Turned over to and Held by Lender
    	
19
    
	
Section 6.5
    	
Certain Sales of Pledged Collateral
    	
20
    
	
Section 6.6
    	
Deficiency
    	
20
    
	
 
    	
 
    	
 
    
	
ARTICLE VII THE LENDER
    	
20
    
	
 
    	
 
    
	
Section 7.1
    	
Lender’s Appointment as Attorney-in-Fact
    	
20
    
	
Section 7.2
    	
Authorization to File Financing Statements
    	
22
    
	
Section 7.3
    	
Duty; Obligations and Liabilities
    	
22
    
	
 
    	
 
    	
 
    
	
ARTICLE VIII MISCELLANEOUS
    	
22
    
	
 
    	
 
    
	
Section 8.1
    	
Reinstatement
    	
22
    
	
Section 8.2
    	
Release of Collateral
    	
23
    
	
Section 8.3
    	
Independent Obligations
    	
23
    
	
Section 8.4
    	
No Waiver by Course of Conduct
    	
23
    
	
Section 8.5
    	
. Amendments in Writing
    	
24
    
	
Section 8.6
    	
Additional Grantors; Additional Pledged Collateral
    	
24
    
	
Section 8.7
    	
Notices
    	
24
    
	
Section 8.8
    	
Successors and Assigns
    	
24
    
	
Section 8.9
    	
Counterparts
    	
24
    
	
Section 8.10
    	
Severability
    	
24
    
	
Section 8.11
    	
Governing Law
    	
24
    
	
Section 8.12
    	
WAIVER OF JURY TRIAL
    	
25
    
	
Section 8.13
    	
Counterparts
    	
46
    


 

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TABLE OF CONTENTS

 

ANNEXES AND SCHEDULES

 

	
Annex   1
    	
 
    	
Form of   Pledge Amendment
    
	
Annex   2
    	
 
    	
Form of   Joiner Agreement
    
	
Annex   3
    	
 
    	
Form of   Intellectual Property Security
    
	
 
    	
 
    	
 
    
	
Schedule   1
    	
 
    	
Commercial   Tort Claims
    
	
Schedule   2
    	
 
    	
Filings
    
	
Schedule   3
    	
 
    	
Jurisdiction   of Organization; Chief Executive Office
    
	
Schedule   4
    	
 
    	
Location   of Inventory and Equipment
    
	
Schedule   5
    	
 
    	
Pledged   Collateral
    
	
Schedule   6
    	
 
    	
Intellectual   Property
    


 











 

GUARANTY AND SECURITY AGREEMENT, dated as of December 14, 2007, by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”), and each of the other entities listed on the signature pages hereof (together with the Borrower, the “Grantors”), in favor of General Electric Capital Corporation (“Lender”), as Lender.

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Credit Agreement dated as of December 14, 2007 (as the same may be modified from time to time, the “Credit Agreement”), by the Borrower and Lender, the Lender has agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

 

WHEREAS, each Grantor (other than the Borrower) has agreed to guaranty the Obligations (as defined in the Credit Agreement) of the Borrower;

 

WHEREAS, each Grantor will derive substantial direct and indirect benefits from the making of the extensions of credit under the Credit Agreement; and

 

WHEREAS, it is a condition precedent to the obligation of the Lender to make extensions of credit to the Borrower under the Credit Agreement that the Grantors shall have executed and delivered this Agreement to the Lender;

 

NOW, THEREFORE, in consideration of the premises and to induce the Lender to enter into the Credit Agreement and to make extensions of credit to the Borrower thereunder, each Grantor hereby agrees with the Lender as follows:

 

ARTICLE I

 

DEFINED TERMS

 

Section 1.1                                    Definitions.

 

(a)                                 Capital terms used herein without definition are used as defined in the Credit Agreement.

 

(b)                                 The following terms have the meanings given to .them in the UCC and terms used herein without definition that are defined in the UCC have the meanings given to them in the UCC (such meanings to be equally applicable to both the singular and plural forms of the terms defined): “account”, “account debtor”, “as-extracted collateral”, “certificated security”, “chattel paper”, “commercial tort claim”, “commodity contract”, “deposit account”, “electronic chattel paper”, “equipment”, “farm products”, “fixture”, “general intangible”, “goods”, “health-care-insurance receivable”, “instruments”, “inventory”, “investment property”, “letter-of-credit right”, “proceeds”, “record”, “securities account”, “security”, “supporting obligation” and “tangible chattel paper”.

 

(c)                                  The following terms shall have the following meanings:

 

(d)                                 “Agreement” means this Guaranty and Security Agreement.

 











 

“Applicable IP Office” means the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency within or outside the United States.

 

“Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within 1 year from the date of acquisition thereof, (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within 1 year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit or bankers’ acceptances maturing within 1 year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000, (e) deposit accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the amount maintained with any such other bank is less than or equal to $100,000 and is insured by the Federal Deposit Insurance Corporation, and (f) investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (e) above.

 

“Cash Collateral Account” means a deposit account or securities account in the name of a Grantor and subject, in each instance, to a Control Agreement.

 

“Charges” means all federal, state, county, city, municipal, local, foreign or other governmental taxes (including taxes owed to PBGC at the time due and payable), levies, customs or other duties, assessments, charges, liens, and all additional charges, interest, penalties, expenses, claims or encumbrances upon or relating to (a) the Collateral, (b) the Obligations, (c) the employees, payroll, income or gross receipts of any Credit Party, (d) the ownership or use of any assets by any Credit Party or (e) any other aspect of any Credit Party’s business.

 

“Collateral” has the meaning specified in Section 3.1.

 

“Constituent Documents” means, with respect to any Person, collectively and, in each case, together with any modification of any term thereof, (a) the articles of incorporation, certificate of incorporation, constitution or certificate of formation of such Person, (b) the bylaws, operating agreement or joint venture agreement of such Person, (c) any other constitutive, organizational or governing document of such Person, whether or not equivalent and (d) any other document setting forth the manner of election or duties of the directors, officers or managing members of such Person or the designation, amount or relative rights, limitations and preferences of any Stock of such Person.

 

“Excluded Equity” means any voting stock in excess of 66% of the outstanding voting stock of any Excluded Foreign Subsidiary.  For purposes of this definition “voting stock”

 

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means, with respect to any issuer, the issued and outstanding shares of each class of Stock of such Issuer entitled to vote (within the meaning of Treasury Regulations § 1.956-2(c)(2)).

 

“Excluded Property” means, collectively, (1) any permit or license or any Contractual Obligation entered into by any Grantor (A) that prohibits or requires the consent of any Person other than the Borrower and its Affiliates as a condition to the creation by such Grantor of a Lien on any right, title or interest in such permit, license or Contractual Agreement or any Stock or Stock Equivalent related thereto or (B) to the extent that any Requirement of Law applicable thereto prohibits the creation of a Lien thereon, but only, with respect to the prohibition in (A) and (B), to the extent, and for as long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Requirement of Law, (ii) fixed or capital assets owned by any Grantor that is subject to a purchase money Lien or a Capital Lease if the Contractual Obligation pursuant to which such Lien is granted (or in the document providing for such Capital Lease) prohibits or requires the consent of any Person other than the Borrower and its Affiliates as a condition to the creation of any other Lien on such equipment, (iii) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed); and (iv) Excluded Equity; provided, however, “Excluded Property” shall not include any proceeds, products, substitutions or replacements of Excluded Property (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property).

 

“Guaranteed Obligations” has the meaning set forth in Section 2.1.

 

“Guarantor” means each Grantor other than the Borrower.

 

“Guaranty” means the guaranty of the Guaranteed Obligations made by the Guarantors as set forth in this Agreement.

 

“Material Intellectual Property” means Intellectual Property that is owned by a Grantor and material to the conduct of any Grantor’s business.

 

“Permit” means, with respect to any Person, any permit, approval, authorization, license, registration, certificate, concession, grant, franchise, variance or permission from, and any other Contractual Obligations with, any Governmental Authority, in each case whether or not having the force of law and applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

“Permitted Lien” means Permitted Exceptions as defined in the Credit Agreement.

 

“Pledged Certificated Stock” means all certificated securities and any other Stock or Stock Equivalent of any Person evidenced by a certificate, instrument or other similar document (as defined in the UCC), in each case owned by any Grantor, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, including, without limitation, all Stock and Stock Equivalents listed on Schedule 5.  Pledged Certificated Stock excludes any Excluded Property.

 

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“Pledged Collateral” means, collectively, the Pledged Stock and the Pledged Debt Instruments.

 

“Pledged Debt Instruments” means all right, title and interest of any Grantor in instruments evidencing any Indebtedness owed to such Grantor or other obligations, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, exceeding $50,000 in the aggregate including all Indebtedness described on Schedule S (as such schedule may be amended or supplemented from time to time in accordance with the terms of this Agreement), issued by the obligors named therein. Pledged Debt Instruments excludes instruments evidencing any Indebtedness owed to such Grantor arising in the ordinary course of business of such Grantor.

 

“Pledged Investment Property” means any investment property of any Grantor, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, other than any Pledged Stock or Pledged Debt Instruments.

 

“Pledged Stock” means all Pledged Certificated Stock and all Pledged Uncertificated Stock.

 

“Pledged Uncertificated Stock” means any Stock or Stock Equivalent of any Person that is not Pledged Certificated Stock, including all right, title and interest of any Grantor as a limited or general partner in any partnership not constituting Pledged Certificated Stock or as a member of any limited liability company, all right, title and interest of any Grantor in, to and under any Constituent Document of any partnership or limited liability company to which it is a party, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, including, without limitation, in each case those interests set forth on Schedule 5, to the extent such interests are not certificated. Pledged Uncertificated Stock excludes any Excluded Property.

 

“Purchase Money Indebtedness” means (a) any Indebtedness incurred for the payment of all or any part of the purchase price of any fixed asset (including Capital Leases), (b) any Indebtedness incurred for the sole purpose of financing or refinancing all or any part of the purchase price of any fixed asset (including Capital Leases) and (c) any renewals, extensions or refinancings thereof (but not any increases in the principal amounts thereof outstanding at that time).

 

“Purchase Money Lien” means any Lien upon any fixed assets that secure the Purchase Money Indebtedness related thereto but only if such Lien shall at all times be confined solely to the asset the purchase price of which was financed or refinanced through the incurrence of the Purchase Money Indebtedness secured by such Lien (and the proceeds thereof) and only if such Lien secures only such Purchase Money Indebtedness.

 

“Security” means all Stock, Stock Equivalents, voting trust certificates, bonds, debentures, instruments and other evidence of Indebtedness, whether or not secured, convertible or subordinated, all certificates of interest, share or participation in, all certificates for the acquisition of, and all warrants, options and other rights to acquire, any Security.

 

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“Sell” means, with respect to any property, to sell, convey, transfer, assign, license, lease or otherwise dispose of, any interest therein or to permit any Person to acquire any such interest, including, in each case, through a sale and leaseback transaction or through a sale, factoring at maturity, collection of or other disposal, with or without recourse, of any notes or accounts receivable.  Conjugated forms thereof and the noun “Sale” have correlative meanings.

 

“Software” means (a) all computer programs, including source code and object code versions, (b) all data, databases and compilations of data, whether machine readable or otherwise, and (c) all documentation, training materials and configurations related to any of the foregoing.

 

“Stock Equivalents” means all Securities convertible into or exchangeable for Stock or any other Stock Equivalent and all warrants, options or other rights to purchase, subscribe for or otherwise acquire any Stock or any other Stock Equivalent, whether or not presently convertible, exchangeable or exercisable.

 

“UCC’ means the Uniform Commercial Code as from time to time in effect in the State of New York; provided, however, that, in the event that, by reason of mandatory provisions of any applicable Requirement of Law, any of the attachment, perfection or priority of the Lender’s or any other Secured Party’s security interest in any Collateral is governed by the Uniform Commercial Code of a jurisdiction other than the State of New York, “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of the definitions related to or otherwise used in such provisions.

 

“Vehicles” means all vehicles covered by a certificate of title law of any state.

 

Section 1.2                                    Certain Other Terms.  (a) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.  The terms “herein”, “hereof’ and similar terms refer to this Agreement as a whole and not to any particular Article, Section or clause in this Agreement.  References herein to an Annex, Schedule, Article, Section or clause refer to the appropriate Annex or Schedule to, or Article, Section or clause in this Agreement.  Where the context requires, provisions relating to any Collateral when used in relation to a Grantor shall refer to such Grantor’s Collateral or any relevant part thereof.

 

(b)                                 Article 8 of the Credit Agreement is applicable to this Agreement as and to the extent set forth therein.

 

ARTICLE II

 

GUARANTY

 

Section 2.1                                    Guaranty.  To induce the Lender to make the Loan, each Guarantor hereby, jointly and severally, absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance with any Loan Document, of all the Obligations of the Borrower whether existing on the date

 

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hereof or hereinafter incurred or created (the “Guaranteed Obligations”). This Guaranty by each Guarantor hereunder constitutes a guaranty of payment and not of collection.

 

Section 2.2                                    Limitation of Guaranty.  Any term or provision of this Guaranty or any other Loan Document to the contrary notwithstanding, the maximum aggregate amount for which any Subsidiary Guarantor shall be liable hereunder shall not exceed the maximum amount for which such Subsidiary Guarantor can be liable without rendering this Guaranty or any other Loan Document, as it relates to such Subsidiary Guarantor, subject to avoidance under applicable Requirements of Law relating to fraudulent conveyance or fraudulent transfer (including the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act and Section 548 of title 11 of the United States Code or any applicable provisions of comparable Requirements of Law) (collectively, “Fraudulent Transfer Laws”). Any analysis of the provisions of this Guaranty for purposes of Fraudulent Transfer Laws shall take into account the right of contribution established in Section 2.3 and, for purposes of such analysis, give effect to any discharge of intercompany debt as a result of any payment made under the Guaranty.

 

Section 2.3                                    Contribution.  To the extent that any Subsidiary Guarantor shall be required hereunder to pay any portion of any Guaranteed Obligation exceeding the greater of (a) the amount of the economic benefit actually received by such Subsidiary Guarantor from the Loans and other Obligations and (b) the amount such Subsidiary Guarantor would otherwise have paid if such Subsidiary Guarantor had paid the aggregate amount of the Guaranteed Obligations (excluding the amount thereof repaid by the Borrower) in the same proportion as such Subsidiary Guarantor’s net worth on the date enforcement is sought hereunder bears to the aggregate net worth of all the Subsidiary Guarantors on such date, then such Guarantor shall be reimbursed by such other Subsidiary Guarantors for the amount of such excess, pro rata, based on the respective net worth of such other Subsidiary Guarantors on such date.

 

Section 2.4                                    Authorization; Other Agreements.  The Lender is hereby authorized, without notice to or demand upon any Guarantor and without discharging or otherwise affecting the obligations of any Guarantor hereunder and without incurring any liability hereunder, from time to time, to do each of the following:

 

(a)                                 subject to the terms of the Credit Agreement, (i) modify, amend, supplement or otherwise change, (ii) accelerate or otherwise change the time of payment or (iii) waive or otherwise consent to noncompliance with, any Guaranteed Obligation or any Loan Document;

 

(b)                                 apply to the Guaranteed Obligations any sums by whomever paid or however realized to any Guaranteed Obligation in such order as provided in the Loan Documents;

 

(c)                                  refund at any time any payment received by Lender in respect of any Guaranteed Obligation;

 

(d)                                 (i) Sell, exchange, enforce, waive, substitute, liquidate, terminate, release, abandon, fail to perfect, subordinate, accept, substitute, surrender, exchange, affect, impair or otherwise alter or release any Collateral for any Guaranteed Obligation or any other guaranty therefor in any manner, (ii) receive, take and hold additional Collateral to secure any Guaranteed Obligation, (iii) add, release or substitute any one or more other Guarantors, makers or endorsers of any Guaranteed Obligation or any part thereof and (iv) otherwise deal in any manner with the Borrower and any other Guarantor, maker or endorser of any Guaranteed Obligation or any part thereof; and

 

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(e)                                  settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations.

 

Section 2.5                                    Guaranty Absolute and Unconditional.  Each Guarantor hereby waives, to the extent not prohibited by applicable law, and agrees not to assert any defense, whether arising in connection with or in respect of any of the following or otherwise, and hereby agrees that its obligations under this Guaranty are irrevocable, absolute and unconditional and shall not be discharged as a result of or otherwise affected by any of the following (which may not be pleaded and evidence of which may not be introduced in any proceeding with respect to this Guaranty, in each case except as otherwise agreed in writing by the Lender), other than payment in full of the Guaranteed Obligations (other than contingent obligations to the extent no claim giving rise thereto has been asserted):

 

(a)                                 the invalidity or unenforceability of any obligation of the Borrower or any other Guarantor under any Loan Document or any other agreement or instrument relating thereto (including any amendment, consent or waiver thereto), or any security for, or other guaranty of, any Guaranteed Obligation or any part thereof, or the lack of perfection or continuing perfection or failure of priority of any security for the Guaranteed Obligations or any part thereof;

 

(b)                                 the absence of (i) any attempt to collect any Guaranteed Obligation or any part thereof from the Borrower or any other Guarantor or other action to enforce the same or (ii) any action to enforce any Loan Document or any Lien thereunder;

 

(c)                                  the failure by any Person to take any steps to perfect and maintain any Lien on, or to preserve any rights with respect to, any Collateral;

 

(d)                                 any workout, insolvency, bankruptcy proceeding, reorganization, arrangement, liquidation or dissolution by or against the Borrower, any other Guarantor or any of the Borrower’s other Subsidiaries or any procedure, agreement, order, stipulation, election, action or omission thereunder, including any discharge or disallowance of, or bar or stay against collecting, any Guaranteed Obligation (or any interest thereon) in or as a result of any such proceeding;

 

(e)                                  any foreclosure, whether or not through judicial sale, and any other Sale of any Collateral or any election following the occurrence of an Event of Default by Lender to proceed separately against any Collateral in accordance with Lender’s rights under any applicable Requirement of Law; or

 

(f)                                   any other defense, setoff, counterclaim or any other circumstance that might otherwise constitute a legal or equitable discharge of the Borrower, any other Guarantor or any of the Borrower’s other Subsidiaries.

 

Section 2.6                                    Waivers.  Each Guarantor hereby unconditionally and irrevocably waives, to the extent not prohibited by applicable law, and agrees not to assert, until the Guaranteed Obligations (other than contingent indemnification obligations) shall have been paid in full, any claim, defense (other than defense of payment), setoff or counterclaim based on diligence, promptness, presentment, requirements for any demand or notice hereunder including any of the following: (a) any demand for payment or performance and protest and notice of protest, (b) any notice of acceptance, (c) any presentment, demand, protest or further notice or other requirements of any kind with respect to any Guaranteed Obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable, (d) any other notice in respect of any Guaranteed Obligation or any part thereof, and any defense arising by reason of any disability or other defense of the Borrower or any other Guarantor, and (e) the benefits of any

 

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statutory or common law provision limiting the right of Lender to recover a deficiency judgment, or to otherwise proceed, against any Person obligated for the payment of the Guaranteed Obligations, after any foreclosure or trustee’s sale of any collateral securing payment of the Guaranteed Obligations, including the benefits, if any, of Arizona Revised Statutes Section 33-814. Each Guarantor further unconditionally and irrevocably agrees, until the Guaranteed Obligations (other than contingent indemnification obligations) shall have been paid in full, not to (x) enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against the Borrower or any other Guarantor by reason of any Loan Document or any payment made thereunder, (y) assert any claim, defense, setoff or counterclaim it may have against any other Credit Party or set off any of its obligations to such other Credit Party against obligations of such Credit Party to such Guarantor, or (z) assert any and all rights, benefits and defenses which might otherwise be available under the provisions of Arizona Revised Statutes Sections 12-1641, 121642,44-141, 44-142 or 47-3605, or Arizona Rules of Civil Procedure Rule 17(f), or any other applicable statutes, rules or common law principles or provisions which might operate to limit Guarantor’s liability under, or the enforcement of, this Guaranty. No obligation of any Guarantor hereunder shall be discharged other than by complete performance.

 

Section 2.7                                    Reliance.  Each Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower, each other Guarantor and any other guarantor, maker or endorser of any Guaranteed Obligation or any part thereof, and of all other circumstances bearing upon the risk of nonpayment of any Guaranteed Obligation or any part thereof that diligent inquiry would reveal, and each Guarantor hereby agrees that Lender shall have no duty to advise any Guarantor of information known to it regarding such condition or any such circumstances. In the event Lender, in its sole discretion, undertakes at any time or from time to time to provide any such information to any Guarantor, Lender shall be under no obligation to (a) undertake any investigation not a part of its regular business routine, (b) disclose any information that Lender, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (c) make any future disclosures of such information or any other information to any Guarantor.

 

ARTICLE III

 

GRANT OF SECURITY INTEREST

 

Section 3.1                                    Collateral.  For the purposes of this Agreement, all of the following property now owned or at any time hereafter acquired by a Grantor or in which a Grantor now has or at any time in the future may acquire any right, title or interests is collectively referred to as the “Collateral”:

 

(a)                                 all accounts, chattel paper, deposit accounts, documents (as defined in the UCC), equipment, general intangibles, instruments, inventory, investment property and any supporting obligations related thereto;

 

(b)                                 the commercial tort claims- described on Schedule 1 and on any supplement thereto received by the Lender pursuant to Section 5.9;

 

(c)                                  all books and records pertaining to the other property described in this Section 3.1;

 

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(d)                                 all property of such Grantor held by Lender, including all property of every 
 description, in the custody of or in transit to Lender for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power, including but not limited to cash;

 

(e)                                  all other goods (including but not limited to fixtures) and personal property of such Grantor, whether tangible or intangible and wherever located; and

 

(f)                                   to the extent not otherwise included, all proceeds of the foregoing;

 

provided, however, that “Collateral” shall not include any Excluded Property; and provided, further, that if and when any property shall cease to be Excluded Property, such property shall be deemed at all times from and after the date hereof to constitute Collateral.

 

Section 3.2                                    Grant of Security Interest in Collateral.  Each Grantor, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations of such Grantor (the “Secured Obligations”), hereby mortgages, pledges and hypothecates to the Lender, and grants to the Lender a Lien on and security interest in, all of its right, title and interest in, to and under the Collateral of such Grantor.

 

ARTICLE IV

 

REPRESENTATIONS AND WARRANTIES

 

To induce the Lender to enter into the Loan Documents, each Grantor hereby represents and warrants each of the following to the Lender and the other Secured Parties:

 

Section 4.1                                    Title; No Other Liens.  Except for the Lien granted to the Lender pursuant to this Agreement and other Permitted Liens under any Loan Document (including Section 4.2), such Grantor owns each item of the Collateral free and clear of any and all Liens or claims of others.  Such Grantor (a) is the record and beneficial owner of the Collateral pledged by it hereunder constituting instruments or certificates and (b) has rights in or the power to transfer each other item of Collateral in which a Lien is granted by it hereunder, free and clear of any other Lien.

 

Section 4.2                                    Perfection and Priority.  Unless otherwise permitted herein, the security interest granted pursuant to this Agreement constitutes a valid and continuing perfected security interest under applicable law in favor of the Lender in all Collateral subject, for the following Collateral, to the occurrence of the following: (i) in the case of all Collateral in which a security interest may be perfected by filing a financing statement under the UCC, the completion of the filings and other actions specified on Schedule 2 (which, in the case of all filings and other documents referred to on such schedule, have been delivered to the Lender in completed and duly authorized form), (ii) with respect to any deposit account, the execution of Control Agreements as and to the extent required under the Credit Agreement, (iii) in the case of all Copyrights, Trademarks and Patents for which UCC filings are insufficient, all appropriate filings having been made with the Applicable IP Office, (iv) in the case of letter-of-credit rights that are not supporting obligations of Collateral, the execution of a Contractual Obligation granting control to the Lender over such letter-of-credit rights, (v) in the case of electronic chattel paper, the completion of all steps necessary to grant control to the Lender over such

 

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electronic chattel paper and (vi) in the case of Vehicles, the actions required under Section 5.1(e). Such security interest shall be prior to all other Liens on the Collateral except for Permitted Liens having priority over the Lender’s Lien by operation of law or unless otherwise permitted by any Loan Document upon (i) in the case of all Pledged Certificated Stock, Pledged Debt Instruments and Pledged Investment Property, the delivery thereof to the Lender of such Pledged Certificated Stock, Pledged Debt Instruments and Pledged Investment Property consisting of instruments and certificates, in each case properly endorsed for transfer to the Lender or in blank, (ii) in the case of all Pledged Investment Property not in certificated form, the execution of Control Agreements with respect to such investment property and (iii) in the case of all other instruments and tangible chattel paper that are not Pledged Certificated Stock, Pledged Debt Instruments or Pledged Investment Property, the delivery thereof to the Lender of such instruments and tangible chattel paper. Except as set forth in this Section 4.2, all actions by each Grantor necessary or desirable to protect and perfect the Lien granted hereunder on the Collateral have been duly taken.

 

Section 4.3                                    Jurisdiction of Organization; Chief Executive Office.  Such Grantor’s jurisdiction of organization, legal name and organizational identification number, if any, and the location of such Grantor’s chief executive office or sole place of business, in each case as of the date hereof, is specified on Schedule 3.

 

Section 4.4                                    Locations of Inventory, Equipment and Books and Records.  On the date hereof, such Grantor’s inventory and equipment (other than inventory or equipment in transit or located with customers or vendors of such Guarantor) and books and records concerning the Collateral are kept at the locations listed on Schedule 4 unless, within 30 days thereafter, such Grantor shall have given the Lender written notice describing such new location and providing such other information in connection therewith as the Lender may reasonably request.

 

Section 4.5                                    Pledged Collateral.  (a)  The Pledged Stock pledged by such Grantor hereunder (a) is listed on Schedule 5 and constitutes that percentage of the issued and outstanding equity of all classes of each issuer thereof as set forth on Schedule 5, (b) has been duly authorized, validly issued and is fully paid and nonassessable (other than Pledged Stock in limited liability companies and partnerships) and (c) constitutes the legal, valid and binding obligation of the obligor with respect thereto, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, liquidation, reorganization and other laws affecting the rights of creditors generally, and general principles of equity.

 

(b)                                 As of the Closing Date, all Pledged Collateral (other than Pledged Uncertificated Stock) and all Pledged Investment Property consisting of instruments and certificates has been delivered to the Lender in accordance with Section 5.3(a).

 

(c)                                  Upon the occurrence and during the continuance of an Event of Default, and upon five (5) Business Days’ prior written notice to the applicable Grantor of its intent to exercise its rights under this Section 4.5, the Lender shall be entitled to exercise all of the rights of the Grantor granting the security interest in any Pledged Stock, and a transferee or assignee of such Pledged Stock shall become a holder of such Pledged Stock to the same extent as such Grantor and, upon the transfer of the entire interest of such Grantor, such Grantor shall, by operation of law, cease to be a holder of such Pledged Stock.

 

Section 4.6                                    Instruments and Tangible Chattel Paper Formerly Accounts.  No amount payable to such Grantor under or in connection with any account having an aggregate value in

 

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excess of $50,000 is evidenced by any instrument or tangible chattel paper that has not been delivered to the Lender, properly endorsed for transfer, to the extent delivery is required by Section 5.6(a).

 

Section 4.7                                    Intellectual Property.  (a) Schedule 6 sets forth a true and complete list of the following Intellectual Property such Grantor owns: (i) Intellectual Property that is registered or subject to applications for registration, and (ii) Internet Domain Names and including for each of the foregoing items (1) the owner, (2) the title, (3) the jurisdiction in which such item has been registered or in which an application for registration has been filed, and (4) as applicable, the registration or application number and registration or application date.

 

(b)                                 Except as set forth on Schedule 6 or except where it would not reasonably be expected to result in a Material Adverse Effect, on the Closing Date, (i) to the knowledge of such Grantor, all registrations of Material Intellectual Property owned by such Grantor are valid, (ii) the consummation of the transactions contemplated by the Loan Documents shall not limit or impair the ownership, use, validity or enforceability of, or any rights of such Grantor in, any Material Intellectual Property (other than the terms or provisions of the Loan Documents themselves), (iii) there are no pending (or, to the knowledge of such Grantor, threatened) actions, suits, proceedings, claims, demands, or disputes received by the Grantor in writing challenging the ownership, use, validity, enforceability of, or such Grantor’s rights in, any Material Intellectual Property of such Grantor, and (iv) to the knowledge of such Grantor, no Person is infringing, misappropriating, diluting, violating or otherwise impairing any Material Intellectual Property of such Grantor.

 

Section 4.8                                    Commercial Tort Claims.  The only commercial tort claims of any Grantor having a principal aggregate amount in excess of $50,000 and existing on the date hereof are those listed on Schedule 1, which sets forth such information separately for each Grantor.

 

Section 4.9                                    Specific Collateral.  None of the Collateral is or is proceeds or products of farm products, as-extracted collateral, health-care-insurance receivables or timber to be cut.

 

Section 4.10                             Enforcement.  Except as set forth in Section 4.5 herein, or as would not reasonably be expected to result in a Material Adverse Effect, no Permit, notice to or filing with any Governmental Authority or any other Person or any consent from any Person is required for the exercise by the Lender of its rights (including voting rights) provided for in this Agreement or the enforcement of remedies in respect of the Collateral pursuant to this Agreement, including the transfer of any Collateral, except as may be required in connection with the disposition of any portion of the Pledged Collateral by laws affecting the offering and sale of securities generally or any approvals that may be required to be obtained from any bailees or landlords to collect the Collateral.

 

Section 4.11                             Representations and Warranties of the Credit Agreement.  The representations and warranties as to such Grantor and its Subsidiaries made by the Borrower in Article 3 (Representations and Warranties) of the Credit Agreement are true and correct in all material respects on each date as required by Article 3 of the Credit Agreement.

 

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ARTICLE V

 

COVENANTS

 

Each Grantor agrees with the Lender to the following, as long as any Obligation or Commitment remains outstanding and, in each case, unless the Lender otherwise consents in writing:

 

Section 5.1                                    Maintenance of Perfected Security Interest; Further Documentation and Consents.  (a)  Generally.  Such Grantor shall (i) not use or permit any Collateral to be used unlawfully or in violation of any Loan Document or any Requirement of Law, except where it would not reasonably be expected to result in a Material Adverse Effect, (ii) not use or permit any Collateral to be used in violation of any insurance covering the Collateral, except if it would not be reasonably expected to have a Material Adverse Effect, and (iii) not enter into any Contractual Obligation or undertaking restricting the right or ability of such Grantor or the Lender to Sell any Collateral if such restriction would reasonably be expected to have a Material Adverse Effect.

 

(b)                                 Such Grantor shall maintain the security interest created by this Agreement as a perfected security interest under applicable state or U.S. federal law having at least the priority described in Section 4.2 and shall defend such security interest and such priority against the claims and demands of all Persons.

 

(c)                                  Such Grantor shall furnish to the Lender from time to time updated schedules to this Agreement further identifying and describing the Collateral and such other documents in connection with the Collateral as the Lender may reasonably request (but in no event more often than once per six-month period), all in reasonable detail and in form and substance reasonably satisfactory to the Lender.

 

(d)                                 At any time and from time to time, upon the reasonable written request of the Lender, such Grantor shall, for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, (i) promptly and duly execute and deliver, and have recorded, such further documents, including an authorization to file (or, as applicable, the filing) of any financing statement or amendment under the UCC (or other filings under similar Requirements of Law) in effect in any jurisdiction with respect to the security interest created hereby and (ii) take such further action as the Lender may reasonably request, including (A) using its commercially reasonable efforts to secure all approvals necessary or appropriate for the assignment to or for the benefit of the Lender of any Contractual Obligation, including any IP License, held by such Grantor and to enforce the security interests granted hereunder and (B) executing and delivering any Control Agreements with respect to deposit accounts and securities accounts, with an individual average weekly balance in excess of $25,000, but in any event excluding accounts dedicated solely for tax, benefit and payroll purposes:

 

Section 5.2                                    Changes in Locations, Name, Etc.  Except upon 20 days’ prior written notice to the Lender and delivery to the Lender of (a) all documents reasonably requested by the Lender to maintain the validity, perfection and priority of the security interests provided for herein and (b) if applicable, a written supplement to Schedule 4 showing any additional locations at which inventory or equipment shall be kept, such Grantor shall not do any of the following:

 

(i)                                     permit any inventory or equipment to be kept at a location other than those listed on Schedule 4, except for inventory or equipment in transit;

 

(ii)                                  change its jurisdiction of organization or its location, in each case from that referred to in Section 4.3; or

 

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(iii)                               change its legal name or organizational identification number, if any, or corporation, limited liability company, partnership or other organizational structure to such an extent that any financing statement filed in connection with this Agreement would become misleading.

 

Section 5.3                                    Pledged Collateral.  (a)  Delivery of Pledged Collateral.  Such Grantor shall deliver to the Lender, in suitable form for transfer and in form and substance satisfactory to the Lender, (A) all Pledged Certificated Stock, (B) all Pledged Debt Instruments and (C) if certificated, all certificates and instruments evidencing Pledged Investment Property.

 

(b)                                 Event of Default.  During the continuance of an Event of Default, the Lender shall have the right, at any time in its discretion and, upon notice to the Grantor, to (i) transfer to or to register in its name or in the name of its nominees any Pledged Collateral or any Pledged Investment Property and (ii) exchange any certificate or instrument representing or evidencing any Pledged Collateral or any Pledged Investment Property for certificates or instruments of smaller or larger denominations.

 

(c)                                  Cash Distributions with respect to Pledged Collateral.  Except as provided in Article VI, such Grantor shall be entitled to receive all cash distributions paid in respect of the Pledged Collateral.

 

(d)                                 Voting Rights.  Except as provided in Article VI, such Grantor shall be entitled to exercise all voting, consent and corporate, partnership, limited liability company and similar rights with respect to the Pledged Collateral; provided, however, that no vote shall be cast, consent given or right exercised or other action taken by such Grantor that would impair the Collateral or be inconsistent with or result in any violation of any provision of any Loan Document.

 

Section 5.4                                    Accounts.  (a)  Such Grantor shall not, other than in the ordinary course of business, (i) grant any extension of the time of payment of any account, (ii) compromise or settle any account for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any account, (iv) allow any credit or discount on any account or (v) amend, supplement or modify any account in any manner that could adversely affect the value thereof.

 

(b)                                 So long as an Event of Default has occurred and is continuing, the Lender shall have the right to make test verifications of the accounts in any manner and through any medium that it reasonably considers advisable, and such Grantor shall furnish all such assistance and information as the Lender may reasonably require in connection therewith.  At any time and from time to time, upon the Lender’s request, such Grantor shall cause independent public accountants or others satisfactory to the Lender to furnish to the Lender reports showing reconciliations, aging and test verifications of, and trial balances-for, the accounts; provided, however, that unless an Event of Default shall be continuing, the Lender shall request no more than four such reports during any calendar year.

 

Section 5.5                                    Commodity Contracts.  Such Grantor shall not have any commodity contract having a value in excess of $50,000 other than with a Person approved by the Lender and subject to a Control Agreement.

 

Section 5.6                                    Delivery of Instruments Tangible Paper and Control of Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper.  (a)  If any amount in excess of $50,000 payable under or in connection with any Collateral owned by such Grantor shall be or become evidenced by an instrument or tangible chattel paper other than instruments and chattel paper issued in the ordinary course of business or such instrument delivered in accordance with Section 5.3(a) and in the possession of the Lender, such Grantor shall mark all such instruments and tangible chattel paper with the following legend: “This writing and the obligations evidenced

 

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or secured hereby are subject to the security interest of General Electric Capital Corporation” and, at the reasonable request of the Lender, shall immediately deliver such instrument or tangible chattel paper to the Lender, duly indorsed in a manner reasonably satisfactory to the Lender.

 

(b)                                 Such Grantor shall not grant “control” (within the meaning of such term under Article 9-106 of the UCC) over any investment property to any Person other than the Lender.

 

(c)                                  If such Grantor is or becomes the beneficiary of a letter of credit that is (i) not a supporting obligation of any Collateral and (ii) in excess of $50,000, such Grantor shall promptly, and in any event within 2 Business Days after becoming a beneficiary, notify the Lender thereof and enter into a Contractual Obligation with the Lender, the issuer of such letter of credit or any nominated person with respect to the letter-of-credit rights under such letter of credit.  Such Contractual Obligation shall assign such letter-of-credit rights to the Lender and such assignment shall be sufficient to grant control for the purposes of Section 9-107 of the UCC (or any similar section under any equivalent UCC).  The provisions of the Contractual Obligation shall be in form and substance reasonably satisfactory to the Lender.

 

(d)                                 If any amount in excess of $50,000 payable under or in connection with any Collateral owned by such Grantor shall be or become evidenced by electronic chattel paper, such Grantor shall take all steps necessary to grant the Lender control of all such electronic chattel paper for the purposes of Section 9-105 of the UCC (or any similar section under any equivalent UCC) and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.

 

Section 5.7                                    Intellectual Property.  Together with the delivery of the audited financial statements required in Section 4.11 of the Credit Agreement, such Grantor shall provide the Lender notification of any changes in Schedule 6 for such Grantor and the short-form intellectual property agreements and assignments as described in this Section 5.7 and other documents that the Lender reasonably requests with respect thereto.

 

(a)                                 Such Grantor shall, except as otherwise deemed appropriate by such Grantor in accordance with its commercially reasonable business judgment (i) (1) continue’ to use each Trademark included in the Material Intellectual Property in order to maintain such Trademark in full force and effect with respect to each class of goods for which such Trademark is currently used, free from any claim of abandonment for non-use, (2) maintain at least the same standards of quality of products and services offered under such Trademark as are currently maintained, (3) use such Trademark with the appropriate notice of registration and all other notices and legends, in each case, required by applicable Requirements of Law, and (ii) not knowingly do any act whereby (w) the registration of any such Trademark that is included in the Material Intellectual Property becomes abandoned, (x) any Patent included in the Material Intellectual Property becomes forfeited, abandoned or dedicated to the public, (y) any registration of the Copyrights included in the Material Intellectual Property becomes invalidated or falls into the public domain or (z) any Trade Secret that is included in the Material Intellectual Property becomes publicly available or otherwise unprotectable.

 

(b)                                 Such Grantor shall notify the Lender promptly if it knows that any application or registration relating to any Material Intellectual Property has been withdrawn, or of any adverse determination by any Governmental Authority with respect to such Grantor’s registered Material Intellectual Property regarding the validity or enforceability or such Grantor’s ownership of, interest in, right to use, register, own or maintain such Material Intellectual Property (including the institution of, or any such determination in, any proceeding relating to the foregoing in any Applicable IP Office). Such Grantor shall take all actions that are necessary, except as otherwise deemed appropriate by such Grantor in accordance with its commercially reasonable business judgment, or reasonably requested by the Lender to maintain and pursue each application (and to obtain the relevant registration or recordation) and to maintain each registration and recordation included in the Material Intellectual Property.

 

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(c)                                  Except as otherwise deemed appropriate by such Grantor in accordance with its commercially reasonable business judgment, or except as would not reasonably be expected to have a Material Adverse Effect, such Grantor shall not knowingly do any ad to infringe, misappropriate, or violate the Intellectual Property of any other Person.  In the event that any Material Intellectual Property of such Grantor is infringed, misappropriated, or violated by a third party, such Grantor shall, except as otherwise deemed appropriate by such Grantor in accordance with its commercially reasonable business judgment, take such action as it reasonably deems appropriate under the circumstances in response thereto, including promptly bringing suit and recovering all damages therefor.

 

(d)                                 Such Grantor shall execute and deliver to the Lender in form and substance reasonably acceptable to the Lender and suitable for filing in the Applicable IP Office the short-form intellectual property security agreements in the form attached hereto as Annex 3 for all registered Material Intellectual Property of such Grantor.

 

Section 5.8                                    [Reserved].

 

Section 5.9                                    Notice of Commercial Tort Claims.  Such Grantor agrees that, if it shall acquire any interest in any commercial tort claim (whether from another Person or because such commercial tort claim shall have come into existence), with an aggregate principal amount in excess of $50,000, (i) such Grantor shall, immediately upon such acquisition, deliver to the Lender, in each case in form and substance satisfactory to the Lender, a notice of the existence and nature of such commercial tort claim and a supplement to Schedule 1 containing a specific description of such commercial tort claim, (ii) Section 3.1 shall apply to such commercial tort claim and (iii) such Grantor shall execute and deliver to the Lender, in each case in form and substance satisfactory to the Lender, any document, and take all other action, deemed by the Lender to be reasonably necessary or appropriate for the Lender to obtain a perfected security interest having at least the priority set forth in Section 4.2 in all such commercial tort claims. Any supplement to Schedule 1 delivered pursuant to this Section 5.9 shall, after the receipt thereof by the Lender, become part of Schedule 1 for all purposes hereunder other than in respect of representations and warranties made prior to the date of such receipt.

 

Section 5.10                             Compliance with Credit Agreement.  Such Grantor agrees to comply with all covenants and other provisions applicable to it under the Credit Agreement and agrees to the same submission to jurisdiction as that agreed to by the Borrower in the Credit Agreement.

 

ARTICLE VI

 

REMEDIAL PROVISIONS

 

Section 6.1                                    Code and Other Remedies.  (a)  UCC Remedies.  During the continuance of an Event of Default, the Lender may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to any Secured Obligation, all rights and remedies of a secured party under the UCC or any other applicable law.

 

(b)                                 Disposition of Collateral.  Without limiting the generality of the foregoing, the Lender may, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), during the continuance of any Event of Default (personally or through its agents or attorneys), (i) enter upon the premises where any Collateral is located, without any obligation to pay rent, through self-help, without

 

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judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice or opportunity for a hearing on the Lender’s claim or action, (ii) collect, receive, appropriate and realize upon any Collateral and (iii) Sell, grant option or options to purchase and deliver any Collateral (enter into Contractual Obligations to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Grantor agrees that ten (10) calendar Business Days’ notice of any sale or disposition shall be reasonable notice thereof.  The Lender shall have the right, upon any such public sale or sales and, to the extent permitted by the UCC and other applicable Requirements of Law, upon any such private sale, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of any Grantor, which right or equity is hereby waived and released.

 

(c)                                  Management of the Collateral.  Each Grantor further agrees, that, during the continuance of any Event of Default, (1) at the Lender’s request, it shall assemble the Collateral and make it available to the Lender at places that the Lender shall reasonably select, whether at such Grantor’s premises or elsewhere, (ii) without limiting the foregoing, the Lender also has the right to require that each Grantor store and keep any Collateral pending further action by the Lender and, while any such Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain such Collateral in good condition, (iii) until the Lender is able to Sell any Collateral, the Lender shall have the right to hold or use such Collateral to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for. any other purpose deemed appropriate by the Lender and (iv) the Lender may, if it so elects, seek the appointment of a receiver or keeper to take possession of any Collateral and to enforce any of the Lender’s remedies with respect to such appointment without prior notice or hearing as to such appointment.  The Lender shall not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties with respect to any Collateral while such Collateral is in the possession of the Lender.

 

(d)                                 Application of Proceeds.  The Lender shall apply the cash proceeds of any action taken by it pursuant to this Section 6.1, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any Collateral or in any way relating ‘to the Collateral or the rights of the Lender hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations as set forth in the Credit Agreement, and only after such application and after the -payment by the Lender of any other amount required by any Requirement of Law, need the Lender account for the surplus, if any, to any Grantor.

 

(e)                                  Direct Obligation.  Lender shall not be required to make any demand upon, or pursue or exhaust any right or remedy against, any Grantor, any other Credit Party or any other Person with respect to the payment of the Obligations or to pursue or exhaust any right or remedy with respect to any Collateral therefor or any direct or indirect guaranty thereof.  All of the rights and remedies of the Lender under any Loan Document shall be cumulative, may be ,exercised individually or concurrently and not exclusive of any other rights or remedies provided by any Requirement of Law.  To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety, now or hereafter existing, arising out of the exercise by them of any rights hereunder.  If any notice of a proposed sale or other disposition of any Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.

 

(f)                                   Commercially Reasonable.  To the extent that applicable Requirements of Law impose duties on the Lender to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Lender to do any of the following:

 

(i)                                     fail to incur significant costs, expenses or other Liabilities reasonably deemed as such by the Lender to prepare any Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition;

 

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(ii)                                  fail to obtain Permits, or other consents, for access to any Collateral to Sell or for the collection or Sale of any Collateral, or, if not required by other Requirements of Law, fail to obtain Permits or other consents for the collection or disposition of any Collateral;

 

(iii)                               fail to exercise remedies against account debtors or other Persons obligated on any Collateral or to remove Liens on any Collateral or to remove any adverse claims against any Collateral;

 

(iv)                              advertise dispositions of any Collateral through publications or media of general circulation, whether or not such Collateral is of a specialized nature or to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring any such Collateral;

 

(v)                                 exercise collection remedies against account debtors and other Persons obligated on any Collateral, directly or through the use of collection agencies or other collection specialists, hire one or more professional auctioneers to assist in the disposition of any Collateral, whether or not such Collateral is of a specialized nature or, to the extent deemed appropriate by the Lender, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Lender in the collection or disposition of any Collateral, or utilize Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets to dispose of any Collateral;

 

(vi)                              dispose of assets in wholesale rather than retail markets;

 

(vii)                           disclaim disposition warranties, such as title, possession or quiet enjoyment; or

 

(viii)                        purchase insurance or credit enhancements to insure the Lender against risks of loss, collection or disposition of any Collateral or to provide to the Lender a guaranteed return from the collection or disposition of any Collateral.

 

Each Grantor acknowledges that the purpose of this Section 6.1 is to provide a non-exhaustive list of actions or omissions that are commercially reasonable when exercising remedies against any Collateral and that other actions or omissions by the Lender shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 6.1.  Without limitation upon the foregoing, nothing contained in this Section 6.1 shall be construed to grant any rights to any Grantor or to impose any duties on the Lender that would not have been granted or imposed by this Agreement or by applicable Requirements of Law in the absence of this Section 6.1.

 

(g)                                 Licenses.  For the purpose of enabling the Lender to exercise rights and remedies under this Section 6.1 during the continuance of an Event of Default (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, Sell or grant options to purchase any Collateral) at such time as the Lender shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants (provided that such Grantor has the right to grant such license) to the Lender (i) an irrevocable (until release or termination), nonexclusive, worldwide license (exercisable without payment of royalty or other compensation to such Grantor), including in such license the right to sublicense, use and practice any Intellectual Property now owned or hereafter acquired by such Grantor and access to all media in which any of the licensed items may be recorded or stored and to all Software and programs used for the compilation or printout thereof; provided that Lender (y) maintains a quality of the goods and services provided in connection with such Grantor’s Trademarks that is reasonable under the circumstances, and (z) maintains the confidentiality of such Grantor’s Trade Secrets in a manner that is reasonable under the circumstances, and (ii) an irrevocable (until release or termination) license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all real property owned, operated, leased, subleased or otherwise occupied by such Grantor, which licenses in clauses (i) and (ii) shall automatically terminate upon the termination and release provided in Section 8.2.

 

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Section 6.2                                    Accounts and Payments in Respect of General Intangibles.  (a)  In addition to, and not in substitution for, any similar requirement in the Credit Agreement, if required by the Lender at any time during the continuance of an Event of Default under Sections 6.1(e), (f) or (g) or upon acceleration of the Loans under the Credit Agreement, any payment of accounts or payment in respect of general intangibles having an aggregate value in excess of $10,000, when collected by any Grantor, shall be promptly (and, in any event, within two (2) Business Days) deposited by such Grantor in the exact form received, duly indorsed by such Grantor to the Lender, in a Cash Collateral Account, subject to withdrawal by the Lender as provided in Section 6.4. Until so turned over, such payment shall be held by such Grantor in trust for the Lender, segregated from other funds of such Grantor.  Each such deposit of proceeds of accounts and payments in respect of general intangibles shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.

 

(b)                                 At any time during the continuance of an Event of Default:

 

(i)                                     each Grantor shall, upon the Lender’s request, deliver to the Lender all original and other documents evidencing, and relating to, the Contractual Obligations and transactions that gave rise to any account or any payment in respect of general intangibles, including all original orders, invoices and shipping receipts and notify account debtors that the accounts or general intangibles have been collaterally assigned to the Lender and that payments in respect thereof shall be made directly to the Lender; and

 

(ii)                                  the Lender may, without notice, at any time during the continuance of an Event of Default, limit or terminate the authority of a Grantor to collect its accounts or amounts due under general intangibles or any thereof and, in its own name or in the name of others, communicate with account debtors to verify with them to the Lender’s satisfaction the existence, amount and terms of any account or amounts due under any general intangible.  In addition, the Lender may at any time enforce such Grantor’s rights against such account debtors and obligors of general intangibles.

 

(c)                                  Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each account and each payment in respect of general intangibles to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto.  Lender shall not have any obligation or liability under any agreement giving rise to an account or a payment in respect of a general intangible by reason of or arising out of any Loan Document or the receipt by Lender of any payment relating thereto, nor shall Lender be obligated in any manner to perform any obligation of any Grantor under or pursuant to any agreement giving rise to an account or a payment in respect of a general intangible, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts that may have been assigned to it or to which it may be entitled at any time or times.

 

Section 6.3                                    Pledged Collateral.  (a)  Voting Rights.  During the continuance of an Event of Default, upon at least five (5) Business Days’ notice by the Lender to the relevant Grantor or Grantors, the Lender or its nominee may exercise (A) any voting, consent, corporate and other right pertaining to the Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any right of conversion, exchange and subscription and any other right, privilege or option pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any Pledged Collateral upon the merger, amalgamation, consolidation, reorganization, recapitalization or other fundamental change in the corporate or 

 

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equivalent structure of any issuer of Pledged Stock, the right to deposit and deliver any Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Lender may determine), all without liability except to account for property actually received by it; provided, however, that the Lender shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing; provided, further, that the foregoing provision shall not apply with respect to (and this clause (a) shall not be construed as a restriction of) any voting and/or consensual rights such Grantor is entitled to exercise in connection with the approval, payment and/or accrual of dividend, distribution or other payment permitted under Section 5.7 of the Credit Agreement.

 

(b)                                 Proxies.  In order to permit the Lender to exercise the voting and other consensual rights that it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions that it may be entitled to receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Lender all such proxies, dividend payment orders and other instruments as the Lender may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, such Grantor hereby grants to the Lender an irrevocable proxy to vote all or any part of the Pledged Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Collateral on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Collateral or any officer or agent thereof) after the occurrence and during the continuance of an Event of Default and which proxy shall only terminate upon (x) the waiver of all Events of Default or (y) the payment in full of the Secured Obligations, at which time all such rights shall automatically revert to such Grantor; provided any waiver of an Event of Default shall not constitute a release of Lender’s rights under this Section to such proxy following the occurrence of any subsequent Event of Default; provided, further, that the foregoing provision shall not apply with respect to (and this clause (b) shall not be construed as a restriction of) any voting and/or consensual rights such Grantor is entitled to exercise in connection with the approval, payment and/or accrual of dividend, distribution or other payment permitted under Section 5.7 of the Credit Agreement.

 

(c)                                  Authorization of Issuers.  Each Grantor hereby expressly irrevocably authorizes and instructs, without any further instructions from such Grantor, each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with any instruction received by it from the Lender in writing that states that an Event of Default is continuing and is otherwise in accordance with the terms of this Agreement and each Grantor agrees that such issuer shall be fully protected from Liabilities to such Grantor in so complying and (ii) unless otherwise expressly permitted hereby, pay any dividend or make any other payment with respect to the Pledged Collateral directly to the Lender.

 

(d)                                 Return of Distributions.  Immediately following the waiver of all Events of Default, the Lender shall return to each Grantor all cash and funds that Lender has received pursuant to this Section 6.3 that such Grantor is otherwise entitled to retain pursuant to Section 5.7 of the Credit Agreement if such cash or funds have not been applied to repayment of the Secured Obligations in accordance with the Credit Agreement.

 

Section 6.4                                    Proceeds to be Turned over to and Held by Lender.  Unless otherwise expressly provided in the Credit Agreement or this Agreement during the continuation of an Event of Default under Sections 6.1(e), (f) or (g) of the Credit Agreement, or upon acceleration of the Loans under the Credit Agreement, all proceeds of any Collateral received by any Grantor hereunder in cash or Cash Equivalents shall be held by such Grantor in trust for the Lender, segregated from other funds of such Grantor, and shall, promptly upon receipt by any Grantor, be 

 

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turned over to the Lender in the exact form received (with any necessary endorsement). All such proceeds of Collateral and any other proceeds of any Collateral received by the Lender in cash or Cash Equivalents shall, if required by Lender, be held by the Lender in a Cash Collateral Account.  All proceeds being held by the Lender in a Cash Collateral Account (or by such Grantor in trust for the Lender) shall continue to be held as collateral security for the Secured Obligations and shall not constitute payment thereof until applied as provided in the Credit Agreement.

 

Section 6.5                                    Certain Sales of Pledged Collateral.

 

(a)                                 Each Grantor recognizes that the Lender may be unable to effect a public sale of any Pledged Collateral by reason of certain prohibitions contained in the Securities Act and applicable state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner.  The Lender shall be under no obligation to delay a sale of any Pledged Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the Securities Act or under applicable state securities laws even if such issuer would agree to do so.

 

(b)                                 Each Grantor agrees to use its best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of any portion of the Pledged Collateral pursuant to this Section 6.5 valid and binding and in compliance with all applicable Requirements of Law.  Each Grantor further agrees that a breach of any covenant contained in this Section 6.5 will cause irreparable injury to the Lender that the Lender has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 6.5 shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any defense against an action for specific performance of such covenants except for a defense that no Event of Default has occurred under the Credit Agreement.

 

Section 6.6                                    Deficiency.  Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of any Collateral are insufficient to pay the Secured Obligations and the fees and disbursements of any attorney employed by the Lender to collect such deficiency.

 

ARTICLE VII

 

THE LENDER

 

Section 7.1                                    Lender’s Appointment as Attorney-in-Fact.  (a)  Each Grantor hereby irrevocably constitutes and appoints the Lender and any Related Person thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of the Loan Documents, to take any appropriate action and to execute any document or instrument that may be necessary or desirable to accomplish the purposes of the Loan Documents, and, without limiting the generality of the foregoing, each Grantor hereby gives the Lender and its Related Persons the power and right, on behalf of such 

 

20











 

Grantor, without notice to or assent by such Grantor, to do any of the following when an Event of Default shall be continuing:

 

(i)                                     in the name of such Grantor, in its own name or otherwise, take possession of and indorse and collect any check, draft, note, acceptance or other instrument for the payment of moneys due under any account or general intangible or with respect to any other Collateral and file any claim or take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Lender, for the purpose of collecting any such moneys due under any account or general intangible or with respect to any other Collateral whenever payable;

 

(ii)                                  in the case of any Intellectual Property owned by or licensed to the Grantors, execute, deliver and have recorded any document that the Lender may reasonably request to evidence, effect, publicize or record the Lender’s security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;

 

(iii)                               pay or discharge taxes and Liens levied or placed on or threatened against any Collateral, effect any repair or pay any insurance called for by the terms of the Credit Agreement (including all or any part of the premiums therefor and the costs thereof);

 

(iv)                              execute, in connection with any sale provided for in Sections 6.1 and 6.5, any document to effect or otherwise necessary or appropriate in relation to evidence the Sale of any Collateral; or

 

(v)                                 (A) direct any party liable for any payment under ·any Collateral to make payment of any moneys due or to become due thereunder directly to the Lender or as the Lender shall direct, (B) ask or demand for, and collect and receive payment of and receipt for, any moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral, (C) sign and indorse any invoice, freight or express bill, bill of lading, storage or warehouse receipt, draft against debtors, assignment, verification, notice and other document in connection with any Collateral, (D) commence and prosecute any suit, action or proceeding at law or in equity in any court of competent jurisdiction to collect any Collateral and to enforce any other right in respect of any Collateral, (E) defend any actions, suits, proceedings, audits, claims, demands, orders or disputes brought against such Grantor with respect to any Collateral, (F) settle, compromise or adjust any such actions, suits, proceedings, audits, claims, demands, orders or · disputes and, in connection therewith, give such discharges or releases as the Lender may deem appropriate, (G) assign any Intellectual Property owned by the Grantors or any IP Licenses of the Grantors throughout the world on such terms and conditions and in such manner as the Lender shall in its sole discretion determine, including the execution and filing of any document necessary to effectuate or record such assignment and (I-I) generally, Sell, grant a Lien on, make any Contractual Obligation with respect to and otherwise deal with, any Collateral as fully and completely as though the Lender were the absolute owner thereof for all purposes and do, at the Lender’s option, at any time or from time to time, all acts and things that the Lender deems necessary to protect, preserve or realize upon any Collateral and the Lender’s security interests therein and to effect the intent of the Loan Documents, all as fully and effectively as such Grantor might do.

 

(b)                                 If any Grantor fails to perform or comply with any Contractual Obligation contained herein, the Lender, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such Contractual Obligation.

 

(c)                                  The expenses of the Lender incurred in connection with actions undertaken as provided in this Section 7.1, together with interest thereon at the Default Rate set forth in the Credit Agreement, from the date of payment by the Lender to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Lender on demand.  The Lender shall use reasonable efforts to notify each Grantor of any actions taken pursuant to this Section 7.1.

 

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(d)                                 Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue of this Section 7.1.  All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.

 

Section 7.2                                    Authorization to File Financing Statements.  Each Grantor authorizes the Lender and its Related Persons, at any time and from time to time, to file or record financing statements, amendments thereto, and other filing or recording documents or instruments with respect to any Collateral in such form and in such offices as the Lender reasonably determines appropriate to perfect the security interests of the Lender under this Agreement, and such financing statements and amendments may described the Collateral covered thereby as “all assets of the debtor”. A photographic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction.  Such Grantor also hereby ratifies its authorization for the Lender to have filed any initial financing statement or amendment thereto under the UCC (or other similar laws) in effect in any jurisdiction if filed prior to the date hereof.

 

Section 7.3                                    Duty; Obligations and Liabilities.  (a) Duty of Lender.  The Lender’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession shall be to deal with it in the same manner as the Lender deals with similar property for its own account. The powers conferred. on the Lender hereunder are solely to protect the Lender’s interest in the Collateral and shall not impose any duty upon the Lender to exercise any such powers. The Lender shall be accountable only for amounts that it receives as a result of the exercise of such powers, and neither it nor any of its Related Persons shall be responsible to any Grantor for any act or failure to act hereunder, except for their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. In addition, the Lender shall not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of the act or omission of any warehousemen, carrier, forwarding agency, consignee or other bailee if such Person has been selected by the Lender in good faith.

 

(b)                                 Obligations and Liabilities with respect to Collateral.  Neither Lender nor any Related Person thereof shall be liable for failure to demand, collect or realize upon any Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to any Collateral.  The powers conferred on the Lender hereunder shall not impose any duty upon Lender to exercise any such powers.  The Lender shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither it nor any of its officers, directors, employees or agents shall be responsible to any Grantor for any act or failure to act hereunder, except for its own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction.

 

ARTICLE VIII

 

MISCELLANEOUS

 

Section 8.1                                    Reinstatement.  Each Grantor agrees that, if any payment made by any Credit Party or other Person and applied to the Secured Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of any Collateral are required to be returned by Lender to such Credit Party, its estate, trustee, receiver or any other party, including any Grantor, under any bankruptcy law, state or federal law, common law or equitable cause, then, to the 

 

22











 

extent of such payment or repayment, any Lien or other Collateral securing such liability shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, (a) any Lien or other Collateral securing such Grantor’s liability hereunder shall have been released or terminated by virtue of the foregoing or (b) any provision of the Guaranty hereunder shall have been terminated, cancelled or surrendered, such Lien, other Collateral or provision shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect, the obligations of any such Grantor in respect of any Lien or other Collateral securing such obligation or the amount of such payment.

 

Section 8.2                                    Release of Collateral.  (a)  If a release of any Collateral is permitted under Section 7.2 of the Credit Agreement, such Collateral shall be automatically released from the Lien created hereby to the extent provided under, and, subject to the terms and conditions set forth in Section 7.2 of the Credit Agreement, all rights, licenses, liens and interests of the Lender hereunder with respect to such Collateral shall be released without delivery of any instrument or performance of any act by any party, and all rights to such Collateral shall revert to the applicable Grantor. In connection therewith, the Lender, at the request of any Grantor, shall execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such release at the sole cost and expense of Grantor.  Following written notice to Lender, each applicable Grantor is hereby authorized to file UCC amendments and to make filings with the Applicable IP Office at such time evidencing the termination of the Liens so released.

 

(b)                                 When all the Obligations (other than contingent obligations) have been irrevocably paid in full and the commitment of the Lender to make ‘any RLOC Advances or otherwise provide credit to Borrower shall have expired, this Agreement shall automatically terminate and all rights, liens and interests of the Lender and the other Secured Parties hereunder with respect to such Collateral shall be released without delivery of any instrument or performance of any act by any party, and all rights to such Collateral shall revert to the applicable Grantor. In connection therewith, the Lender, at the request of any Grantor, shall execute and deliver to such Grantor such documents as such Grantor shall reasonably request to evidence such release at the sole cost and expense of Grantor.

 

(c)                                  At the request of Borrower, a Grantor shall be automatically released from its obligations hereunder in the event that all the Stock and Stock Equivalents of such Grantor shall be sold to any Person that is not an Affiliate of ZKI, the Borrower or the Subsidiaries of the Borrower in a transaction expressly permitted by the Loan Agreement.

 

Section 8.3                                    Independent Obligations.  The obligations of each Grantor hereunder are independent of and separate from the Secured Obligations and the Guaranteed Obligations.  If any Secured Obligation or Guaranteed Obligation is not paid when due, or upon any Event of Default, the Lender may, at its sole election, proceed directly and at once, without notice, against any Grantor and any Collateral to collect and recover the full amount of any Secured Obligation or Guaranteed Obligation then due, without first proceeding against any other Grantor, any other Loan Party or any other Collateral and without first joining any other Grantor or any other Loan Party in any proceeding.

 

Section 8.4                                    No Waiver by Course of Conduct.  Lender shall not by any act delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default.  No failure to exercise, nor any delay in 

 

23











 

exercising, on the part of Lender, any right, power or privilege hereunder shall operate as a waiver thereof.  No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  A waiver by Lender of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that Lender would otherwise have on any future occasion.

 

Section 8.5                                    Amendments in Writing.  None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with the Credit Agreement; provided, however, that annexes to this Agreement may be supplemented (but no existing provisions may be modified and no Collateral may be released) through Pledge Amendments, in substantially the form of Annex 1 and Annex 3, respectively, in each case duly executed by the Lender and each Grantor directly affected thereby.

 

Section 8.6                                    Additional Grantors; Additional Pledged Collateral.  If, at the option of the Borrower or as required pursuant to Section 4.18 of the Credit Agreement, the Borrower shall cause any Subsidiary that is not a Grantor to become a Grantor hereunder, such Subsidiary shall execute and deliver to the Lender a Joinder Agreement substantially in the form of Annex 2 and shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as a Grantor party hereto on the Closing Date.

 

Section 8.7                                    Notices.  All notices, requests and demands to or upon the Lender or any Grantor hereunder shall be effected in the manner provided for in Section 8.10 of the Credit Agreement; provided, however, that any such notice, request or demand to or upon any Grantor shall be addressed to the Borrower’s notice address set forth in the Credit Agreement.

 

Section 8.8                                    Successors and Assigns.  This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of Lender and its successors and assigns; .provided, however, that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Lender.

 

Section 8.9                                    Counterparts.  This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.  .Delivery of an executed signature page of this Agreement by facsimile transmission or by Electronic Transmission shall be as effective as delivery of a manually executed counterpart hereof.

 

Section 8.10                             Severability.  Any provision of this Agreement being held illegal, invalid or unenforceable in any jurisdiction shall not affect any part of such provision not held illegal, invalid or unenforceable, any other provision of this Agreement or any part of such provision in any other jurisdiction.

 

Section 8.11                             Governing Law.  This Agreement and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

 

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Section 8.12                             WAIVER OF JURY TRIAL.  EACH PARTY HERETO, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO, THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ANY OTHER TRANSACTION CONTEMPLATED HEREBY AND THEREBY.  THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.

 

[SIGNATURE PAGES FOLLOW]

 

25











 

IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty and Security Agreement to be duly executed and delivered as of the date first above written.

 

	
 
    	
GRANTORS:
    
	
 
    	
 
    
	
 
    	
ZOE’S   KITCHEN USA, LLC, a Delaware limited liability company, as Grantor
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    
	
 
    	
ZOE’S   KITCHEN, INC., a Delaware corporation, as Grantor
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   KITCHEN HOLDING COMPANY, LLC, a Delaware limited liability company, as   Grantor
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   TEXAS, LLC, a Delaware limited liability company, as Grantor
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   FLORIDA, LLC, a Delaware limited liability company, as Grantor
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S   LOUISIANA, LLC, a Delaware limited liability company, as Grantor
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    


 









 

	
 
    	
ZOE’S   ARIZONA, LLC, a Delaware limited liability company, as Grantor
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    
	
 
    	
ZOE’S   RESTAURANTS, L.L.C., an Alabama limited liability company, as Grantor
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    
	
 
    	
ZOE’S   RESTAURANTS NASHVILLE, LLC, a Delaware limited liability company, as Grantor
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    
	
 
    	
 
    
	
 
    	
ZOE’S   KITCHEN TUSCALOOSA, LLC, An Alabama limited liability company, as Grantor
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    


 

27











 

ACCEPTED AND AGREED
 as of the date first above written:

 

	
GENERAL ELECTRIC CAPITAL CORPORATION
    
	
 
    
	
By:
    	
/s/Todd   V. Jones
    	
 
    
	
 
    	
Name:
    	
Todd   V. Jones
    
	
 
    	
Title:
    	
Authorized   Signatory
    
				


 











 

ANNEX I
 TO
 GUARANTY AND SECURITY AGREEMENT

 

PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of December 14, 2007, is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007 by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”), the undersigned Grantor and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of General Electric Capital Corporation (the “Guaranty and Security Agreement”).  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1, 4.2, 4.5 and 4.10 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date,

 

[Signature Page Follows]

 











 

	
 
    	
GRANTOR:
    
	
 
    	
 
    
	
 
    	
ZOE’S   KITCHEN, INC., a Delaware corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    


 











 

Annex 1-A

 

PLEDGED STOCK

 

Name of Issuer: Zoe’s Kitchen USA, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

[SIGNATURE PAGE FOLLOWS]

 











 

	
ACCEPTED AND AGREED
    
	
as of the date first above written:
    
	
 
    
	
GENERAL ELECTRIC CAPITAL CORPORATION
    
	
 
    
	
By:
    	
/s/Todd   V. Jones
    	
 
    
	
 
    	
Name:
    	
Todd   V. Jones
    
	
 
    	
Title:
    	
Authorized   Signatory
    
				


 











 

ANNEX I 
 TO
 GUARANTY AND SECURITY AGREEMENT

 

PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of December 14, 2007 is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007 by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”).  and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of General Electric Capital Corporation (the “Guaranty and Security Agreement”).  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1, 4.2, 4.5 and 4.10 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

 

[Signature Page Follows]

 











 

	
 
    	
Grantor:
    
	
 
    	
 
    
	
 
    	
ZOE’S   KITCHEN USA, LLC, a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    


 









 

Annex 1-A

 

PLEDGED STOCK

 

(a)                                 Name of Issuer: Zoe’s Kitchen Holding Company, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

(b)                                 Name of Issuer: Zoe’s Texas, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): N/A
 Certificate Number(s) (if any): N/A
 Percentage of Outstanding Interests in Issuer: 100%

 

(c)                                  Name of Issuer: Zoe’s Florida, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

(d)                                 Name of Issuer: Zoe’s Louisiana, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): N/A
 Certificate Number(s) (if any): N/A
 Percentage of Outstanding Interests in Issuer: 100%

 

(e)                                  Name of Issuer: Zoe’s Arizona, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): N/A
 Certificate Number(s) (if any): N/A
 Percentage of Outstanding Interests in Issuer: 100%

 

(f)                                   Name of Issuer: Zoe’s Restaurants, L.L.C.
 Jurisdiction of Organization: Alabama
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any):  1
 Percentage of Outstanding Interests in Issuer: 100%

 

(g)                                  Name of Issuer: Zoe’s Kitchen Tuscaloosa, LLC
 Jurisdiction of Organization: Alabama
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100













 

Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

[SIGNATURE PAGE FOLLOWS]

 

36











 

ACKNOWLEDGED AND AGREED
 as of the date first above written:

 

	
GENERAL ELECTRIC CAPITAL CORPORATION
    
	
 
    
	
By:
    	
/s/Todd   V. Jones
    	
 
    	
 
    
	
 
    	
Name:
    	
Todd   V. Jones
    	
 
    	
 
    
	
 
    	
title:
    	
Authorized   Signatory
    	
 
    	
 
    


 











 

ANNEX 1 
 TO
 GUARANTY AND SECURITY AGREEMENT

 

PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of December 14, 2007 is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007 by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”), the undersigned Grantor and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of General Electric Capital Corporation (the “Guaranty and Security Agreement”).  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shalt be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1, 4.2, 4.5 and 4.10 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

 

[Signature Page Follows]

 











 

	
 
    	
Grantor:
    
	
 
    	
 
    
	
 
    	
ZOE’S   RESTAURANTS, L.L.C., an Alabama limited liability company
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Rahul   Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul   Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice   President
    


 











 

Annex 1-A

 

PLEDGED STOCK

 

Name of Issuer: Zoe’s Restaurants Nashville, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

[SIGNATURE PAGE FOLLOWS]

 











 

ACKNOWLEDGED AND AGREED
 as of the date first above written:

 

	
GENERAL   ELECTRIC CAPITAL CORPORATION
    	
 
    
	
 
    	
 
    
	
By:
    	
/s/Todd   V. Jones
    	
 
    
	
 
    	
Name:
    	
Todd   V. Jones
    	
 
    
	
 
    	
title:
    	
Authorized   Signatory
    	
 
    


 











 

ANNEX 2 
 TO
 GUARANTY AND SECURITY AGREEMENT

 

FORM OF JOINDER AGREEMENT

 

This JOINDER AGREEMENT, dated as of                             , 20  , is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of                                  , 20    , by [Name of Borrower] (the “Borrower”) and the Affiliates of the Borrower from time to time party thereto as Grantors in favor of the General Electric Capital Corporation, as lender (the “Guaranty and Security Agreement”).  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

By executing and delivering this Joinder Agreement, the undersigned, as provided in Section 8.6 of the Guaranty and Security Agreement, hereby becomes a party to the Guaranty and Security Agreement as a Grantor thereunder with the same force and effect as if originally named as a Grantor therein and, without limiting the generality of the foregoing, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of the undersigned, hereby mortgages, pledges and hypothecates and grants to the Lender a lien on and security interest in, all of its right, title and interest in, to and under the Collateral of the undersigned and expressly assumes all obligations and liabilities of a Grantor thereunder. The undersigned hereby agrees to be bound as a Grantor for the purposes of the Guaranty and Security Agreement.

 

The information set forth in Annex 1-A is hereby added to the information set forth in Schedules 1 through 6 to the Guaranty and Security Agreement.  By acknowledging and agreeing to this Joinder Agreement, the undersigned hereby agree that this Joinder Agreement may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Joinder Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Secured Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Article IV of the Guaranty and Security Agreement applicable to it is true and correct on and as the date hereof as if made on and as of such date.

 

IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and delivered as of the date first above written.

 

	
 
    	
[ADDITIONAL   GRANTOR]
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 











 

Contract No.: 14727001

 

ACKNOWLEDGED AND AGREED
 as of the date first above written:

 

	
[EACH   GRANTOR PLEDGING
    	
 
    
	
ADDITIONAL   COLLATERAL]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
GENERAL   ELECTRIC CAPITAL CORPORATION 
    	
 
    
	
as Lender
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 











 

ANNEX 3

 

FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT

 

THIS [COPYRIGHT] [PATENT] [TRADEMARK].  SECURITY AGREEMENT, dated as of                                   , 20    , is made by each of the entities’ listed on the signature pages hereof (each a “Grantor” and, collectively, the “Grantors”), in favor of General Electric Capital Corporation (“Lender”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to the Credit Agreement, dated as of                               , 20     (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by the Borrower and Lender, the Lender has agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

 

WHEREAS, each Grantor (other than the Borrower) has agreed, pursuant to a Guaranty and Security Agreement of even date herewith in favor of the Lender (the “Guaranty and Security Agreement”), to guarantee the Obligations (as defined in the Credit Agreement) of the Borrower; and

 

WHEREAS, all of the Grantors are party to the Guaranty and Security Agreement pursuant to which the Grantors are required to execute and deliver this [Copyright] [Patent] [Trademark] Security Agreement;

 

NOW, THEREFORE, in consideration of the premises and to induce the Lender to enter into the Credit Agreement and to induce the Lender to make extensions of credit to the Borrower thereunder, each Grantor hereby agrees with the Lender as follows:

 

Section 2.              Defined Terms.  Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

Section 3.              Grant of Security Interest in [Copyright] [Trademark] [Patent] Collateral.  Each Grantor, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of such Grantor, hereby mortgages, pledges and hypothecates to the Lender and grants to the Lender a Lien on and security interest in, all of its right, title and interest in, to and under the following that are part of the Collateral of such Grantor (the “[Copyright] [Patent] [Trademark] Collateral”):

 

(a)           [all of its Copyrights and all IP Licenses providing for the grant by or to such  Grantor of any right under any Copyright, including, without limitation, those Copyright registrations and applications for registration referred to on Schedule 1 hereto;

 

(b)           all renewals, reversions and extensions of the foregoing; and

 

(c)           all income, royalties, proceeds and Liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including, without limitation, all rights to sue and recover at

 









 

law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

 

or

 

(a)           [all of its Patents and all IP Licenses providing for the grant by or to such Grantor of any right under any Patent, including, without limitation, those registrations of, and applications for, Patents referred to on Schedule 1 hereto;

 

(b)           all reissues, reexaminations, continuations, continuations-in-part, divisionals, renewals and extensions of the foregoing; and

 

(c)           all income, royalties, proceeds and Liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including, without limitation, all-rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

 

or

 

(d)           [all of its Trademarks and all IP Licenses providing for the grant by or to such Grantor of any right under any Trademark, including, without limitation, those Trademark registrations and applications for registration referred to on Schedule 1 hereto;

 

(e)           all renewals and extensions of the foregoing;

 

(f)            all goodwill of the business connected with the use of, and symbolized by, each such Trademark; and

 

(g)           all income, royalties, proceeds and Liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including, without limitation, all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.]

 

Section 3.              Guaranty and Security Agreement.  The security interest granted pursuant to this [Copyright] [Patent] [Trademark] Security Agreement is granted in accordance with the security interest granted to the Lender pursuant to the Guaranty and Security Agreement and each party to this [Copyright] [Patent] [Trademark] Security Agreement hereby acknowledges and agrees that the rights and remedies of the other parties with respect to the security interest in the [Copyright] [Patent] [Trademark] Collateral made and granted hereby are more fully set forth in the Guaranty and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event of any conflict between the terms of this [Copyright] [Patent] [Trademark] Security Agreement and the terms of the Guaranty and Security Agreement, the terms of the Guaranty and Security Agreement shall control.  Notwithstanding anything to the contrary in this [Copyright] [Patent] [Trademark] Security Agreement, this [Copyright] [Patent] [Trademark] Security Agreement shall not expand the rights, interests, or obligations of any party hereto that are set forth in the Guaranty and Security Agreement.

 

Section 4.              Grantor Remains Liable.  Each Grantor hereby agrees that, anything herein to the contrary notwithstanding, such Grantor shall assume full and complete responsibility for the prosecution, defense, enforcement or any other necessary or desirable

 

45











 

actions in connection with their [Copyrights] [Patents] [Trademarks] and IP Licenses subject to a security interest hereunder.

 

Section 8.13      Counterparts.  This [Copyright] [Patent] [Trademark] Security Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.

 

Section 1.           Governing Law.  This [Copyright] [Patent] [Trademark] Security Agreement and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

 

[SIGNATURE PAGES FOLLOW]

 

46











 

IN WITNESS WHEREOF, each Grantor has caused this [Copyright] [Patent] [Trademark] Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

 

	
 
    	
 
    	
Very   truly yours,
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
[GRANTOR]
    
	
 
    	
 
    	
as Grantor
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
 
    	
Title:
    
	
 
    	
 
    	
 
    
	
ACCEPTED   AND AGREED
    	
 
    	
 
    
	
as   of the date first above written:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
GENERAL   ELECTRIC CAPITAL CORPORATION
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
 
    	
 
    
	
 
    	
Title:
    	
 
    	
 
    


 











 

ACKNOWLEDGMENT OF GRANTOR

 

	
STATE OF
    	
)
    
	
 
    	
)ss.
    
	
COUNTY OF
    	
)
    


 

On this       day of                        , 20     before me personally appeared,                                                     , proved to me on the basis of satisfactory evidence to be the person who executed the foregoing instrument on behalf of                               , who being by me duly sworn did  depose and say that he is an authorized officer of said corporation, that the said instrument was signed on behalf of said corporation as authorized by its Board of Directors and that he acknowledged said instrument to be the free act and deed of said corporation.

 

	
 
    	
 
    	
 
    
	
 
    	
Notary Public
    	
 
    


 











 

SCHEDULE I 
 TO
 [COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT

 

[Copyright] [Patent] [Trademark] Registrations

 

A.                                                                                    REGISTERED [COPYRIGHTS] [PATENTS] [TRADEMARKS]

 

[Include Registration Number and Date]

 

B.                                                                                    [COPYRIGHT] [PATENT] [TRADEMARK] APPLICATIONS

 

[Include Application Number and Date]

 











 

Schedule 1
 Commercial Tort Claims

 

None

 









 

Schedule 2 
 Filings

 

1.                                      Zoe’s Kitchen, Inc.: File UCC-1 Financing Statement with the Secretary of State of Delaware.

 

2.                                      Zoe’s Kitchen USA, LLC: File UCC-1 Financing Statement with Secretary of State of Delaware.

 

3.                                      Zoe’s Kitchen Holding Company, LLC: File UCC-1 Financing Statement with Secretary of State of Delaware.

 

4.                                      Zoe’s Texas, LLC: File UCC-1 Financing Statement with Secretary of State of Delaware.

 

5.                                      Zoe’s Florida, LLC: File UCC-1 Financing Statement with Secretary of State of Delaware.

 

6.                                      Zoe’s Louisiana, LLC: File UCC- I Financing Statement with Secretary of State of Delaware.

 

7.                                      Zoe’s Arizona, LLC: File UCC-1 Financing Statement with Secretary of State of Delaware.

 

8.                                      Zoe’s Restaurants, L.L.C.: File UCC-I Financing Statement with Secretary of State of Alabama.

 

9.                                      Zoe’s Restaurants Nashville, LLC: File UCC-1 Financing Statement with Secretary of State of Delaware.

 

10.                               Zoe’s Kitchen Tuscaloosa, LLC: File UCC-1 Financing Statement with Secretary of State of Alabama

 











 

Schedule 3
 Jurisdiction of Organization; Chief Executive Office

 

1.                                      Zoe’s Kitchen, Inc.:

 

(a)                                 Jurisdiction of Organization: State of Delaware.

 

(b)                                 Chief Executive Office: c/o Brentwood Associates Private Equity IV, L.P., 11150 Santa Monica Blvd., Suite 1200, Los Angeles, CA 90025.

 

(c)                                  Organizational identification no: 4434270.

 

2.                                      Zoe’s Kitchen USA, LLC:

 

(a)                                 Jurisdiction of Organization: State of Delaware.

 

(b)                                 Chief Executive Office: 2901 2nd Ave S Ste 155, Birmingham, AL 35233.

 

(c)                                  Organizational identification no. 3823641.

 

3.                                      Zoe’s Kitchen Holding Company, LLC:

 

(a)                                 Jurisdiction of Organization: State of Delaware.

 

(b)                                 Chief Executive Office: 2901 2nd Ave S Ste 155, Birmingham, AL 35233.

 

(c)                                  Organizational identification no. 3558469.

 

4.                                      Zoe’s Texas, LLC:

 

(a)                                 Jurisdiction of Organization: State of Delaware.

 

(b)                                 Chief Executive Office: 2901 2nd Ave S Ste 155, Birmingham, AL 35233.

 

(c)                                  Organizational identification no, 4031671.

 

5.                                      Zoe’s Florida, LLC:

 

(a)                                 Jurisdiction of Organization: State of Delaware.

 

(b)                                 Chief Executive Office: 2901 2nd Ave S Ste 155, Birmingham, AL 35233.

 

(c)                                  Organizational identification no. 3996507.

 

6.                                      Zoe’s Louisiana, LLC:

 

(a)                                 Jurisdiction of Organization: State of Delaware.

 

(b)                                 Chief Executive Office: 2901 2nd Ave S Ste 155, Birmingham, AL 35233.

 











 

(c)                                  Organizational identification no. 3917111.

 

7.                                      Zoe’s Arizona, LLC:

 

(a)                                 Jurisdiction of Organization: State of Delaware.

 

(b)                                 Chief Executive Office: 2901 2nd Ave S Ste 155, Birmingham, AL 35233.

 

(c)                                  Organizational identification no. 4430187.

 

8.                                      Zoe’s Restaurants, L.L.C.:

 

(a)                                 Jurisdiction of Organization: State of Alabama.

 

(b)                                 Chief Executive Office: 2901 2nd Ave S Ste 155, Birmingham, AL 35233.

 

(c)                                  Organizational identification no: N/A (no organizational IDs in Alabama).

 

9.                                      Zoe’s Restaurants Nashville, LLC:

 

(a)                                 Jurisdiction of Organization: State of Delaware.

 

(b)                                 Chief Executive Office: 2901 2nd Ave S Ste 155, Birmingham, AL 35233.

 

(c)                                  Organizational identification no. 3479523.

 

10.                               Zoe’s Kitchen Tuscaloosa, LLC:

 

(a)                                 Jurisdiction of Organization: State of Alabama.

 

(b)                                 Chief Executive Office: 2901 2nd Ave S Ste 155, Birmingham, AL 35233.

 

(c)                                  Organizational identification no. N/A (no organizational IDs in Alabama).

 

53











 

Schedule 4
 Location of Inventory and Equipment

 

	
1.
    	
 
    	
Zoe’s   Kitchen, Inc.: N/A
    
	
 
    	
 
    	
 
    
	
2.
    	
 
    	
Zoe’s   Kitchen USA, LLC: 2901 2nd Ave S Ste 155, Birmingham, AL 35233
    
	
 
    	
 
    	
 
    
	
3.
    	
 
    	
Zoe’s   Kitchen Holding Company, LLC: N/A.
    
	
 
    	
 
    	
 
    
	
4.
    	
 
    	
Zoe’s   Texas, LLC:
    	
 
    	
6800   Snider Plaza, University Park, TX 75202
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
5710   West Lovers Lane, Suite 108, Dallas, TX 75209
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
5.
    	
 
    	
Zoe’s   Florida, LLC:
    	
 
    	
240   Highway Al A, Ponte Vedra Beach, FL 320821661
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
Riverside   Avenue, Jacksonville, FL 32204
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
6.
    	
 
    	
Zoe’s   Louisiana, LLC:
    	
 
    	
7415   Corporate Boulevard, Suite 950, Baton Rouge, LA 70809
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
7.
    	
 
    	
Zoe’s   Arizona, LLC:
    	
 
    	
1641   East Camelback Road, Phoenix, AZ 85016
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
521   West McDowell, Phoenix, AZ 85003
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
8.
    	
 
    	
Zoe’s   Restaurants, L.L.C.:
    	
 
    	
225   Country Club Park, Birmingham, AL 35213
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
1830   29th Ave S, Suite 115, Homewood, AL 35209
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
1819   5th Ave N., Birmingham, AL 35203
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
323   Summit Blvd, Birmingham, AL 35243
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
115   Grace Baker Rd. #B021, Birmingham, AL 35210
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Zoe’s   Restaurants Nashville, LLC:
    	
 
    	
101   Creekside Crossing, Suite 1200, Brentwood, TN 37027
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
4015   Hillsboro Road, Suite 110, Nashville, TN 37215
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
115   Grace Baker Rd., #A028, Birmingham, AL 35210
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Zoe’s   Kitchen Tuscaloosa, LLC:
    	
 
    	
312   Merchants Walk, Tuscaloosa, AL 35406
    


 











 

Schedule 5
 Pledged Collateral

 

1.                                      Grantor: Zoe’s Kitchen, Inc.:

 

(a)                                 Name of Issuer: Zoe’s Kitchen USA, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

2.                                      Grantor: Zoe’s Kitchen USA, LLC:

 

(a)                                 Name of Issuer: Zoe’s Kitchen Holding Company, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

(b)                                 Name of Issuer: Zoe’s Texas, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): N/A
 Certificate Number(s) (if any): N/A
 Percentage of Outstanding Interests in Issuer: 100%

 

(c)                                  Name of Issuer: Zoe’s Florida, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

(d)                                 Name of Issuer: Zoe’s Louisiana, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): N/A
 Certificate Number(s) (if any): N/A
 Percentage of Outstanding Interests in Issuer: 100%

 

(e)                                  Name of Issuer: Zoe’s Arizona, LLC
 Jurisdiction of Organization: Delaware
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): N/A
 Certificate Number(s) (if any): N/A
 Percentage of Outstanding Interests in Issuer: 100%

 

(f)                                   Name of Issuer: Zoe’s Restaurants, L.L.C.
 Jurisdiction of Organization: Alabama













 

Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

(g)                                  Name of Issuer: Zoe’s Kitchen Tuscaloosa, LLC
 Jurisdiction of Organization: Alabama
 Type of Interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

3.                                      Grantor: Zoe’s Restaurants, L.L.C., an Alabama limited liability company

 

(a)                                 Name of Issuer: Zoe’s Restaurants Nashville, LLC
 Jurisdiction of Organization: Delaware
 Type of interest: Membership Interest
 Number of Shares/Units (if applicable): 100
 Certificate Number(s) (if any): 1
 Percentage of Outstanding Interests in Issuer: 100%

 

56











 

Schedule 6
 Intellectual Property

 

Trademarks

 

	
OWNER
    	
 
    	
TRADEMARK
    	
 
    	
SERIAL
   NO.
    	
 
    	
FILING
   DATE
    	
 
    	
REGISTRATION
   NO.
    	
 
    	
DATE OF
   REGISTRATION
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
ZOE’S   KITCHEN
    	
 
    	
76/154679
    	
 
    	
10-23-2000
    	
 
    	
2,783,558
    	
 
    	
11-18-2003
    	
 
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
EAT   SMART. EAT FRESH.
    	
 
    	
76/492,522
    	
 
    	
02.26-2003
    	
 
    	
2,921,237
    	
 
    	
01-25.2005
    	
 
    


 

Internet Domain Names

 

	
Owner
    	
 
    	
Domain Name
    
	
 
    	
 
    	
 
    
	
Zoe’s   Kitchen USA, LLC
    	
 
    	
zoeskitchen.com
    
	
Zoe’s   Kitchen USA, LLC
    	
 
    	
zoeskitchencorporate.com
    
	
Zoe’s   Kitchen USA, LLC
    	
 
    	
addictivefood.com
    
	
Zoe’s   Kitchen USA, LLC
    	
 
    	
johncassimus.com
    
	
Zoe’s   Kitchen USA, LLC
    	
 
    	
eatsmarteatfresh.com
    
	
Zoe’s   Kitchen USA, LLC
    	
 
    	
babyburger.com
    


 









 

ORIGINAL

 

JOINDER AGREEMENT

 

This JOINDER AGREEMENT, dated as of October 7, 2008, is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007, by Zoe’s Kitchen USA, LLC (the “Borrower”) and the Affiliates of the Borrower from time to time a party thereto as Grantors in favor of the General Electric Capital Corporation, as lender (the “Guaranty and Security Agreement”). Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

By executing and delivering this Joinder Agreement, each of the undersigned, as provided in Section 8.6 of the Guaranty and Security Agreement, hereby becomes a party to the Guaranty and Security Agreement as a Grantor thereunder with the same force and effect as if originally named as a Grantor therein and, without limiting the generality of the foregoing, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of the undersigned, hereby mortgages, pledges and hypothecates and grants to the Lender a lien on and security interest in, all of its right, title and interest in, to and under the Collateral of the undersigned and expressly assumes all obligations and liabilities of a Grantor thereunder. Each of the undersigned hereby agrees to be bound as a Grantor for the purposes of the Guaranty and Security Agreement.

 

Each of the undersigned hereby represents and warrants that each of the representations and warranties contained in Article IV of the Guaranty and Security Agreement applicable to it is true and correct on and as of the date hereof as if made on and as of such date.

 











 

IN WITNESS WHEREOF, the undersigned have caused this Joinder Agreement to be duly executed and delivered as of the date first above written.

 

	
 
    	
ZOE’S NORTH CAROLINA, LLC
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Jason C Morgon
    
	
 
    	
Name: 
    	
JASON C MORGAN
    
	
 
    	
Its: 
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S SOUTH CAROLINA, LLC
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Jason C Morgon
    
	
 
    	
Name: 
    	
JASON C MORGAN
    
	
 
    	
Its: 
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S VIRGINIA, LLC
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Jason C Morgon
    
	
 
    	
Name: 
    	
JASON C MORGAN
    
	
 
    	
Its: 
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S MARYLAND, LLC
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Jason C Morgon
    
	
 
    	
Name: 
    	
JASON C MORGAN
    
	
 
    	
Its: 
    	
CFO
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S COLORADO, LLC
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Jason C Morgon
    
	
 
    	
Name: 
    	
JASON C MORGAN
    
	
 
    	
Its: 
    	
CFO
    


 

 

	
ACKNOWLEDGED AND AGREED
    	
 
    
	
as of the date first above written:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
GENERAL ELECTRIC CAPITAL CORPORATION as Lender
    	
 
    
	
 
    	
 
    
	
By: 
    	
/s/ Michelle Underwood
    	
 
    
	
Name: 
    	
Michelle Underwood
    	
 
    
	
Its: 
    	
Authorized signatory
    	
 
    


 

2











 

ORIGINAL

 

JOINDER AGREEMENT

 

This JOINDER AGREEMENT, dated as of July 10, 2008, is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007, by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”) and the Affiliates of the Borrower from time to time party thereto as Grantors in favor of the General Electric Capital Corporation, as lender (the “Guaranty and Security Agreement”). Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

By executing and delivering this Joinder Agreement, the undersigned, as provided in Section 8.6 of the Guaranty and Security Agreement, hereby becomes a party to the Guaranty and Security Agreement as a Grantor thereunder with the same force and effect as if originally named as a Grantor therein and, without limiting the generality of the foregoing, hereby, jointly and severally with the other Guarantors, absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance with any Loan Document, of all the Obligations of the Borrower whether existing on the date hereof or hereinafter incurred or created (the “Guaranteed Obligations”), and as collateral security for the prompt and complete payment and performance when due (whether at stated maturity by acceleration or otherwise) of the Guaranteed Obligations, hereby mortgages, pledges and hypothecates and grants to the Lender a lien on and security interest in, all of its right, title and interest in, to and under the Collateral of the undersigned and expressly assumes all obligations and liabilities of a Grantor thereunder. The undersigned hereby agrees to be bound as a Grantor for the purposes of the Guaranty and Security Agreement.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Article IV of the Guaranty and Security Agreement applicable to it is true and correct on and as the date hereof as if made on and as of such date.

 

IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and delivered as of the date first above written.

 

	
 
    	
SOHO FRANCHISING, LLC, a Delaware limited liability company, as   Grantor
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jason C Morgon
    
	
 
    	
Name:
    	
Jason C Morgon
    
	
 
    	
Title:
    	
CFO
    


 

 

	
ACKNOWLEDGED AND AGREED as of the date first above written:
    	
 
    
	
 
    	
 
    
	
GENERAL ELECTRIC CAPITAL CORPORATION as Lender
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By: 
    	
/s/ Kelly A. Hallford
    	
 
    
	
 
    	
Name: 
    	
Kelly A. Hallford
    	
 
    
	
 
    	
Title: 
    	
Authorized Signatory
    	
 
    


 











 

ORIGINAL

 

PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of July 10, 2008, is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007 by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”), the undersigned Grantor and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of General Electric Capital Corporation (the “Guaranty and Security Agreement”). Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1, 4.2, 4.5 and 4.10 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

 

[Signature Page Follows]

 











 

	
 
    	
GRANTOR:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ZOE’S KITCHEN, INC., a Delaware corporation
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Rahul Aggarwal
    
	
 
    	
 
    	
Name: 
    	
Rahul Aggarwal
    
	
 
    	
 
    	
Title: 
    	
Vice President
    


 











 

Annex 1-A

 

PLEDGED STOCK

 

Name of Issuer: Soho Franchising, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

[SIGNATURE PAGE FOLLOWS]

 











 

	
ACKNOWLEDGED AND AGREED as of the date first above written:
    	
 
    
	
 
    	
 
    
	
GENERAL ELECTRIC CAPITAL CORPORATION
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By: 
    	
/s/ Kelly A. Hallford
    	
 
    
	
 
    	
Name: 
    	
Kelly A. Hallford
    	
 
    
	
 
    	
Title: 
    	
Authorized Signatory
    	
 
    


 









 

PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of December 14, 2007, is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007 by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”), the undersigned Grantor and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of General Electric Capital Corporation (the “Guaranty and Security Agreement”). Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1, 4.2, 4.5 and 4.10 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

 

[Signature Page Follows]

 











 

	
 
    	
GRANTOR:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ZOE’S KITCHEN, INC., a Delaware corporation
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Rahul Aggarwal
    
	
 
    	
 
    	
Name: 
    	
Rahul Aggarwal
    
	
 
    	
 
    	
Title: 
    	
Vice president
    


 

[SIGNATURE PAGE TO PLEDGE AGREEMENT (ZOE’S KITCHEN, INC.)]

 











 

	
ACKNOWLEDGED AND AGREED
    	
 
    
	
as of the date first above   written:
    	
 
    
	
 
    	
 
    
	
GENERAL ELECTRIC CAPITAL   CORPORATION
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By: 
    	
/s/ Todd V. Jones
    	
 
    
	
 
    	
Name: 
    	
Todd V. Jones
    	
 
    
	
 
    	
Title: 
    	
Authorized Signatory
    	
 
    


 











 

Annex 1-A

 

PLEDGED STOCK

 

Name of Issuer: Zoe’s Kitchen USA, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

[SIGNATURE PAGE FOLLOWS]

 











 

PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of December 14, 2007, is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007 by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”), and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of General Electric Capital Corporation (the “Guaranty and Security Agreement”). Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1, 4.2, 4.5 and 4.10 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

 

[Signature Page Follows]

 











 

	
 
    	
Grantor:
    
	
 
    	
 
    
	
 
    	
ZOE’S KITCHEN USA, LLC, a Delaware limited liability company
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Rahul Aggarwal
    
	
 
    	
Name: 
    	
Rahul Aggarwal
    
	
 
    	
Title: 
    	
Vice President
    


 

[SIGNATURE PAGE TO PLEDGE AGREEMENT (ZOE’S KITCHEN USA, LLC)]

 











 

	
ACKNOWLEDGED AND AGREED
    	
 
    
	
as of the date first above written:
    	
 
    
	
 
    	
 
    
	
GENERAL ELECTRIC CAPITAL CORPORATION
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By: 
    	
/s/ Todd V. Jones
    	
 
    
	
 
    	
Name:
    	
Todd V. Jones
    	
 
    
	
 
    	
Title: 
    	
Authorized Signatory
    	
 
    


 









 

Annex 1-A

 

PLEDGED STOCK

 

(a)                            Name of Issuer: Zoe’s Kitchen Holding Company, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

(b)                            Name of Issuer: Zoe’s Texas, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): N/A

Certificate Number(s) (if any): N/A

Percentage of Outstanding Interests in Issuer: 100%

 

(c)                             Name of Issuer: Zoe’s Florida, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

(d)                            Name of Issuer: Zoe’s Louisiana, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): N/A

Certificate Number(s) (if any): N/A

Percentage of Outstanding Interests in Issuer: 100%

 

(e)                             Name of Issuer Zoe’s Arizona, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): N/A

Certificate Number(s) (if any): N/A

Percentage of Outstanding Interests in Issuer: 100%

 

(f)                              Name of Issuer: Zoe’s Restaurants, L.L.C.

Jurisdiction of Organization: Alabama

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

(g)                             Name of Issuer: Zoe’s Kitchen Tuscaloosa, LLC

Jurisdiction of Organization: Alabama

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

[SIGNATURE PAGE FOLLOWS]

 











 

PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of December 14, 2007, is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007 by Zoe’s Kitchen USA. LLC. a Delaware limited liability company (the “Borrower”). the undersigned Grantor and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of General Electric Capital Corporation (the “Guaranty and Security Agreement”). Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1,  4.2,  4.5 and 4.10 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

 

[Signature Page Follows]

 











 

	
 
    	
Grantor:
    
	
 
    	
 
    
	
 
    	
ZOE’S RESTAURANTS, L.L.C., an Alabama
    
	
 
    	
limited liability company
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Rahul Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice president
    


 

[SIGNATURE PAGE TO PLEDGE AGREEMENT (ZOE’S RESTAURANTS, L.L.C.)]

 











 

	
ACKNOWLEDGED AND AGREED
    	
 
    
	
as of the date first above written:
    	
 
    
	
 
    	
 
    
	
GENERAL ELECTRIC CAPITAL CORPORATION
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Todd V. Jones
    	
 
    
	
 
    	
Name:
    	
Todd V. Jones
    	
 
    
	
 
    	
Title:
    	
Authorized Signatory
    	
 
    


 











 

Annex 1-A

 

PLEDGED STOCK

 

Name of Issuer: Zoe’s Restaurants Nashville, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

[SIGNATURE PAGE FOLLOWS]

 









 

PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of October 7, 2008, is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007 by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”), the undersigned Grantor and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of General Electric Capital Corporation (the “Guaranty and Security Agreement”). Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1, 4.2, 4.5 and 4.10 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

 

[Signature Page Follows]

 











 

	
 
    	
GRANTOR:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ZOE’S KITCHEN USA, LLC, a Delaware limited
    
	
 
    	
liability company
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jason C Morgan
    
	
 
    	
 
    	
Name:
    	
Jason C Morgan
    
	
 
    	
 
    	
Title:
    	
CFO
    
					


 











 

Annex 1-A

 

PLEDGED STOCK

 

Name of Issuer: Zoe’s North Carolina, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

Name of Issuer: Zoe’s South Carolina, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

Name of Issuer: Zoe’s Virginia, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

Name of Issuer: Zoe’s Maryland, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

Name of Issuer: Zoe’s Colorado, LLC

Jurisdiction of Organization: Delaware

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

[SIGNATURE PAGE FOLLOWS]

 











 

	
ACKNOWLEDGED AND AGREED
    	
 
    
	
as of the date first above written:
    	
 
    
	
 
    	
 
    
	
GENERAL ELECTRIC CAPITAL CORPORATION
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
/s/ Jason C Morgan
    	
 
    
	
 
    	
Name:
    	
Jason C Morgan
    	
 
    
	
 
    	
Title:
    	
CFO
    	
 
    


 











 

PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of July 23rd, 2009, is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007 by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”), the undersigned Grantor and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of General Electric Capital Corporation (the “Guaranty and Security Agreement”). Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1, 4.2, 4.5 and 4.10 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

 

[Signature Page Follows]

 











 

	
 
    	
GRANTOR:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ZOE’S TEXAS, LLC, a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jason Morgan
    
	
 
    	
 
    	
Jason Morgan
    
	
 
    	
 
    	
Its CFO
    


 









 

Annex 1-A

 

PLEDGED STOCK

 

Name of Issuer: ZK Texas Holdings, LLC

Jurisdiction of Organization: Texas

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

[SIGNATURE PAGE FOLLOWS]

 











 

ACKNOWLEDGED AND AGREED

as of the date first above written:

 

GENERAL ELECTRIC CAPITAL CORPORATION

 

 

	
By:
    	
/s/ Kelly A. Hallford
    	
 
    
	
 
    	
Name:
    	
Kelly A. Hallford
    	
 
    
	
 
    	
Title:
    	
Authorized Signatory
    	
 
    


 











 

PLEDGE AMENDMENT

 

This PLEDGE AMENDMENT, dated as of July 23rd, 2009, is delivered pursuant to Section 8.6 of the Guaranty and Security Agreement, dated as of December 14, 2007 by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (the “Borrower”), the undersigned Grantor and the other Affiliates of the Borrower from time to time party thereto as Grantors in favor of General Electric Capital Corporation (the “Guaranty and Security Agreement”). Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge Amendment shall be and become part of the Collateral referred to in the Guaranty and Security Agreement and shall secure all Obligations of the undersigned.

 

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 4.1, 4.2,4.5 and 4.10 of the Guaranty and Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

 

[Signature Page Follows]

 











 

	
 
    	
GRANTOR:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ZK Texas Management, LLC, a Texas limited liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jason Morgan
    
	
 
    	
 
    	
Jason Morgan
    
	
 
    	
 
    	
Its CFO
    


 











 

Annex 1-A

 

PLEDGED STOCK

 

Name of Issuer: ZK Texas Beverages, LLC

Jurisdiction of Organization: Texas

Type of Interest: Membership Interest

Number of Shares/Units (if applicable): 100

Certificate Number(s) (if any): 1

Percentage of Outstanding Interests in Issuer: 100%

 

[SIGNATURE PAGE FOLLOWS]

 











 

	
ACKNOWLEDGED AND AGREED
    	
 
    
	
as of the date first above written:
    	
 
    
	
 
    	
 
    
	
GENERAL ELECTRIC CAPITAL CORPORATION
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
/s/ Kelly A. Hallford
    	
 
    
	
 
    	
Name:
    	
Kelly A. Hallford
    	
 
    
	
 
    	
Title:
    	
Authorized Signatory
    	
 
    


 









 

ORIGINAL

 

TRADEMARK SECURITY AGREEMENT

 

THIS TRADEMARK SECURITY AGREEMENT, dated as of December 14, 2007, is made by each of the entities listed on the signature pages hereof (each a “Grantor” and, collectively, the “Grantors”), in favor of General Electric Capital Corporation (“Lender”).

 

WITNESSETH:

 

WHEREAS, pursuant to the Credit Agreement, dated as of December 14, 2007 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by Zoe’s Kitchen USA, LLC, a Delaware limited liability company (“Borrower”) and Lender, the Lender has agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

 

WHEREAS, each Grantor (other than the Borrower) has agreed, pursuant to a Guaranty and Security Agreement of even date herewith in favor of the Lender (the “Guaranty and Security Agreement”), to guarantee the Obligations (as defined in the Credit Agreement) of the Borrower; and

 

WHEREAS, all of the Grantors are party to the Guaranty and Security Agreement pursuant to which the Grantors are required to execute and deliver this Trademark Security Agreement;

 

NOW, THEREFORE, in consideration of the premises and to induce the Lender to enter into the Credit Agreement and to induce the Lender to make extensions of credit to the Borrower thereunder, each Grantor hereby agrees with the Lender as follows:

 

Section 1.                                           Defined Terms. Capitalized terms used herein without definition are used as defined in the Guaranty and Security Agreement.

 

Section 2.                                           Grant of Security Interest in Trademark Collateral. Each Grantor, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of such Grantor, hereby mortgages, pledges and hypothecates to the Lender and grants to the Lender a Lien on and security interest in, all of its right, title and interest in, to and under the following that are part of the Collateral of such Grantor (the Trademark Collateral”):

 

(a)                                         all of its Trademarks and all IP Licenses providing for the grant by or to such Grantor of any right under any Trademark, including, without limitation, those Trademark registrations and applications for registration referred to on Schedule 1 hereto;

 

(b)                                         all renewals and extensions of the foregoing;

 

(c)                                          all goodwill of the business connected with the use of, and symbolized by, each such Trademark; and

 

(d)                                         all income, royalties, proceeds and Liabilities at any time due or payable or asserted under and with respect to any of the foregoing, including, without limitation, all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.

 

Section 3.                                           Guaranty and Security Agreement. The security interest granted pursuant to this Trademark Security Agreement is granted in accordance with the security interest granted to the Lender

 

1











 

pursuant to the Guaranty and Security Agreement and each party to this Trademark Security Agreement hereby acknowledges and agrees that the rights and remedies of the other parties with respect to the security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Guaranty and Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event of any conflict between the terms of this Trademark Security Agreement and the terms of the Guaranty and Security Agreement, the terms of the Guaranty and Security Agreement shall control. Notwithstanding anything to the contrary in this Trademark Security Agreement, this Trademark Security Agreement shall not expand the rights, interests, or obligations of any party hereto that are set forth in the Guaranty and Security Agreement.

 

Section 4.                                           Grantor Remains Liable. Each Grantor hereby agrees that, anything herein to the contrary notwithstanding, such Grantor shall assume full and complete responsibility for the prosecution, defense, enforcement or any other necessary or desirable actions in connection with their Trademarks and IP Licenses subject to a security interest hereunder.

 

Section 5.                                           Counterparts. This Trademark Security Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart.

 

Section 6.                                           Governing Law. This Trademark Security Agreement and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

 

[SIGNATURE PAGES FOLLOW]

 

2











 

IN WITNESS WHEREOF, each Grantor has caused this Trademark Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

 

	
 
    	
Very truly yours,
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ZOE’S KITCHEN USA, LLC, a Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Rahul Aggarwal
    
	
 
    	
 
    	
Name:
    	
Rahul Aggarwal
    
	
 
    	
 
    	
Title:
    	
Vice President
    
	
 
    	
 
    
	
 
    	
 
    
	
ACCEPTED AND AGREED
    	
 
    
	
as of the date first above written:
    	
 
    
	
 
    	
 
    
	
GENERAL ELECTRIC CAPITAL CORPORATION
    	
 
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Todd V. Jones
    	
 
    	
 
    
	
 
    	
Name:
    	
Todd V. Jones
    	
 
    
	
 
    	
Title:
    	
Authorized Signatory
    	
 
    
							


 

[SIGNATURE PAGE TO TRADEMARK SECURITY AGREEMENT]

 











 

SCHEDULE I

TO

TRADEMARK SECURITY AGREEMENT

 

Trademark Registrations

 

	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
REGISTRATION
    	
 
    	
DATE OF
    
	
OWNER
    	
 
    	
TRADEMARK
    	
 
    	
SERIAL NO.
    	
 
    	
FILING DATE
    	
 
    	
NO.
    	
 
    	
REGISTRATION
    
	
Zoe’s   Kitchen USA, LLC
    	
 
    	
ZOE’S   KITCHEN
    	
 
    	
76/151,679
    	
 
    	
10-23-2000
    	
 
    	
2,783,558
    	
 
    	
11-18-2003
    
	
Zoe’s   Kitchen USA, LLC
    	
 
    	
EAT   SMART, EAT FRESH.
    	
 
    	
76/492,522
    	
 
    	
02-26-2003
    	
 
    	
2,921,237
    	
 
    	
01-25-2005
    


 

2











 



 

UNITED STATES PATENT AND TRADEMARK OFFICE

 

UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND

DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE

 

	
JANUARY 02, 2008
    	

    


 

PTAS

SNELL & WILMER

400 E. VAN BUREN

IP — FRALEY

PHOENIX, AZ 85004

 

UNITED STATES PATENT AND TRADEMARK OFFICE

NOTICE OF RECORDATION OF ASSIGNMENT DOCUMENT

 

THE ENCLOSED DOCUMENT HAS BEEN RECORDED BY THE ASSIGNMENT DIVISION OF THE U.S. PATENT AND TRADEMARK OFFICE. A COMPLETE MICROFILM COPY IS AVAILABLE AT THE ASSIGNMENT SEARCH ROOM ON THE REEL AND FRAME NUMBER REFERENCED BELOW.

 

PLEASE REVIEW ALL INFORMATION CONTAINED ON THIS NOTICE. THE INFORMATION CONTAINED ON THIS RECORDATION NOTICE REFLECTS THE DATA PRESENT IN THE PATENT AND TRADEMARK ASSIGNMENT SYSTEM. IF YOU SHOULD FIND ANY ERRORS OR HAVE QUESTIONS CONCERNING THIS NOTICE, YOU MAY CONTACT THE EMPLOYEE WHOSE NAME APPEARS ON THIS NOTICE AT 571-272-3350. PLEASE SEND REQUEST FOR CORRECTION TO: U.S. PATENT AND TRADEMARK OFFICE, MAIL STOP: ASSIGNMENT SERVICES BRANCH, P.O. BOX 1450, ALEXANDRIA, VA 22313.

 

	
RECORDATION DATE:  12/28/2007
    	
REEL/FRAME:  003686/0507
    
	
 
    	
NUMBER OF PAGES:  7
    
	
 
    	
 
    
	
BRIEF:  SECURITY INTEREST
    	
 
    
	
DOCKET NUMBER:  46698.0315
    	
 
    
	
 
    	
 
    
	
ASSIGNOR:
    	
 
    
	
ZOE’S KITCHEN USA
    	
DOC DATE: 12/14/2007
    
	
 
    	
CITIZENSHIP:  DELAWARE
    
	
 
    	
ENTITY:
    	
LIMITED LIABILITY
    
	
 
    	
 
    	
COMPANY
    
	
 
    	
 
    
	
ASSIGNEE:
    	
 
    
	
GENERAL ELECTRIC CAPITAL
    	
CITIZENSHIP:  ARIZONA
    
	
CORPORATION
    	
ENTITY:  CORPORATION
    
	
8377 E. HARTFORD DR., #200
    	
 
    
	
SCOTTSDALE, ARIZONA 85255
    	
 
    
	
 
    	
 
    
	
APPLICATION NUMBER:  76151679
    	
FILING DATE:  10/23/2000
    
	
REGISTRATION NUMBER:  2783558
    	
ISSUE DATE:  11/18/2003
    


 

MARK: ZOE’S KITCHEN

DRAWING TYPE: WORDS, LETTERS, OR NUMBERS IN TYPED FORM

 

P.O. Box 1450, Alexandria, Virginia 22313—1450 -WWW.USPTO.GOV

 

REVIEWED BUT NOT DOCKETED

 

2











 

003686/0507 PAGE 2

 

	
APPLICATION NUMBER:  76492522
    	
FILING DATE:  02/26/2003
    
	
REGISTRATION NUMBER:  2921237
    	
ISSUE DATE:  01/25/2005
    


 

MARK: EAT SMART. EAT FRESH.

DRAWING TYPE: WORDS, LETTERS, OR NUMBERS IN TYPED FORM

 

PAULA MCCRAY-STANLEY, EXAMINER

ASSIGNMENT SERVICES BRANCH

PUBLIC RECORDS DIVISION

 

3









 

TRADEMARK ASSIGNMENT

 

	
Electronic   Version v1.1
    	
  12/28/2007
    
	
Stylesheet   Version v1.1
    	
  900095160
    
	
 
    	
 
    
	
SUBMISSION   TYPE:
    	
NEW   ASSIGNMENT
    
	
NATURE   OF CONVEYANCE:
    	
SECURITY   INTEREST
    


 

CONVEYING PARTY DATA

 


	
Name
    	
 
    	
Formerly
    	
 
    	
Execution Date
    	
 
    	
Entity Type
    
	
Zoe’s   Kitchen USA
    	
 
    	
 
    	
 
    	
12/14/2007
    	
 
    	
LIMITED LIABILITY
   COMPANY: DELAWARE
    




 

RECEIVING PARTY DATA

 

	
Name:
    	
 
    	
General   Electric Capital Corporation
    
	
Street   Address:
    	
 
    	
8377   E. Hartford Dr., #200
    
	
City:
    	
 
    	
Scottsdale
    
	
State/Country:
    	
 
    	
ARIZONA
    
	
Postal   Code:
    	
 
    	
85255
    
	
Entity   Type:
    	
 
    	
CORPORATION:   ARIZONA
    


 

PROPERTY NUMBERS Total: 2

 

	
Property Type
    	
 
    	
Number
    	
 
    	
Word Mark
    	
 
    
	
Registration   Number:
    	
 
    	
2783558
    	
 
    	
ZOE’S   KITCHEN
    	
 
    
	
Registration   Number:
    	
 
    	
2921237
    	
 
    	
EAT   SMART, EAT FRESH.
    	
 
    


 

CH $65.00  2783558

 

CORRESPONDENCE DATA

 

	
Fax   Number:
    	
(602)382-6070
    
	
Correspondence will be sent via   US Mail when the fax attempt is unsuccessful.
    
	
Email:
    	
pmattina@swlaw.com
    
	
Correspondent   Name:
    	
Snell &   Wilmer
    
	
Address   Line 1:
    	
400   E. Van Buren
    
	
Address   Line 2:
    	
IP   - Fraley
    
	
Address   Line 4:
    	
Phoenix,   ARIZONA 85004
    


 

	
ATTORNEY   DOCKET NUMBER:
    	
46698.0315
    	
 
    
	
NAME   OF SUBMITTER:
    	
R.   Lee Fraley
    	
 
    
	
Signature:
    	
/R.   Lee Fraley/
    	
 
    
	
Date:
    	
12/28/2007
    	
 
    


 

Total Attachments: 5

source=ZOE-S_Kitchen_TM_Security_Agreement#page 1.tif

source=ZOE-S_Kitchen_TM_Security_Agreement#page 2.tif

source=ZOE-S_Kitchen_TM_Security_Agreement#page 3.tif

source=ZOE-S_Kitchen_TM_Security_Agreement#page 4.tif

source=ZOE-S_Kitchen_TM_Security_Agreement#page 5.tif

 

4









 

UNITED STATES PATENT AND
 TRADEMARK OFFICE

 



 

Facsimile Transmission

 

	
 
    	
To:
    	
Name:
    	
SNELL &   WILMER
    
	
 
    	
 
    	
Company:
    	
400   E. VAN BUREN
    
	
 
    	
 
    	
Fax   Number:
    	
16023826070
    
	
 
    	
 
    	
Voice   Phone:
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
From:
    	
Name:
    	
ASSIGNMENT   SERVICES BRANCH
    
	
 
    	
 
    	
Voice   Phone:
    	
571-272-3350
    


 

37 C.F.R. 1.6 sets forth the types of correspondence that can be communicated to the Patent and Trademark Office via facsimile transmissions. Applicants are advised to use the certificate of facsimile transmission procedures when submitting a reply to a non-final or final Office action by facsimile (37 CFR 1.8(a)).

 

Fax Notes:

 

	
Pg#
    	
 
    	
Description
    
	
 
    	
 
    	
 
    
	
1
    	
 
    	
Cover   Page
    
	
 
    	
 
    	
 
    
	
2
    	
 
    	
217.   TXT
    
	
 
    	
 
    	
 
    
	
4
    	
 
    	
Document   1, Batch 1131376
    


 

USPTO ASSIGNMENT SYSTEM PROCESSING

 

Date and time of transmission: Wednesday, January 02, 2008 8:18:54 PM

Number of pages including this cover sheet: 05

 

1











 

LANDLORD LIEN SUBORDINATION

 

THIS LANDLORD LIEN SUBORDINATION (this “Agreement”) is entered into as of August 6th, 2009 by and between Woodmont Plano, L.P., a Texas limited partnership (“Landlord”), whose address is 2100 West 7th Street, Fort Worth, Texas 76107, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“Lender”), whose address is 8377 East Hartford Drive, Suite 200, Scottsdale, Arizona 85255, Attention: Collateral Management.

 

A.                                    Landlord is the landlord and Zoes Texas, LLC, a Delaware limited liability compnay (“Tenant”) is the tenant under the lease agreement described on Exhibit A (the “Lease”), whereby Landlord leased to Tenant the premises described in the Lease (the “Premises”).

 

B.                                    Tenant has executed or concurrently with the execution of this Agreement will execute security and/or guaranty agreements (including UCC-1 financing statements) (collectively , the “Loan Documents”), as guarantor and debtor, in favor of Lender pursuant to which Lender has or will obtain a lien (“Lender’s Lien ”) on Tenant’s interest in the equipment belonging to Tenant which are or may be located in the Premises during the term of the Lease, described on Exhibit B (collectively, the “Equipment”).

 

C.                                    Lender and Tenant have requested Landlord to subordinate any Landlord’s lien in the Equipment to Lender’s Lien.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

Lease.  Landlord represents to Lender that, as of the date of this Agreement: (a) the Lease is in full force and effect; (b) except as stated in Exhibit A, the Lease has not been modified, amended or changed in any material respect; and (c) the Lease and the documents and instruments referred to in the Lease are the entire agreement between Landlord and Tenant with respect to the Premises.

 

Subordination.  Landlord consents to Lender’s Lien, to the extent that such consent is required under the Lease. Landlord agrees that the following liens affecting any part of the Equipment are junior and subordinate to the Loan and Lender’s Lien to the extent of the loan amount: (a) any lien in favor of Landlord that has been granted by Tenant or is provided for in the Lease; and (b) any statutory or possessory lien now or in the future existing or arising in favor of Landlord, including any rights of levy or distraint for rent; provided, however, this subordination relates only to the Equipment and it is specifically understood and agreed that Landlord does not hereby subordinate, waive or disclaim any right or interest which Landlord now has or may hereafter acquire in and to any other properties of Tenant. Except as provided in Paragraph 3, Landlord will not take any action to exercise any rights it may have in the Equipment until such time as the Loan has been paid in full or otherwise discharged and Lender’s Lien has been released. As used in this Agreement, the term “Loan” includes all modifications, supplements, extensions, and refinancings with respect to the original Loan, as well as additional financing, provided to ZOE’S KITCHEN USA, LLC, a Delaware limited liability company, which is guaranteed by Tenant, by Lender from time to time that is secured by a security interest in the Equipment, and “Lender’s Lien” includes all security interests in the Equipment from time to time existing in favor of Lender.

 

Notwithstanding anything herein, the foregoing subordination shall not apply to: (i) any fixtures, improvements or machinery permanently installed in or affixed to the Premises, (ii) any other fixtures or improvements, the removal of which would result in material damage to the Premises; (iii) any items which, pursuant to the terms of the Lease, will become the property of Landlord upon installation; or (iv) any item that is a replacement of existing equipment owned by Landlord.

 

Lender’s Right to Remove Equipment: No Sale from Premises.  Lender may (i) subject to Lender’s compliance with all rules and regulations of the Shopping Center, and (ii) if accompanied by an employee of Landlord, enter the Premises for the sole purpose of removing the Equipment from the Premises during the term of the Lease after a Loan default by Tenant, so long as Lender has given Landlord at least 10 days prior written notice. Lender shall reimburse Landlord for the reasonable cost of repairing the damage caused by such removal. Under no

 


	
GEFF smartDocs Form 3014
    	
 
    	
Contract   No. 14727001
    
	
4/15/09
    	
 
    	
Asset   No(s): 061497
    




 











 

circumstances shall Lender hold any auction or sale of the Equipment at the Premises or Shopping Center nor shall any of the Equipment be sold, offered for sale, or auctioned from or on the Premises or elsewhere on the Shopping Center.

 

If Lender or a contractor employed by Lender enters the Premises to remove the Equipment, then Lender or such contractor, prior to such entry, shall furnish to Landlord evidence that it maintains comprehensive general liability insurance coverage, including personal injury, bodily injury and broad form property damage, naming Landlord and Landlord’s property manager as additional insureds, in an amount of not less $1,000,000.00 in respect of injuries to or death of any one person, and in an amount of not less than $2,000,000.00 in respect of any one accident or disaster, and in an amount not less than $500,000.00 in respect of property damaged or destroyed.

 

Lease Termination by Landlord.  If Landlord terminates the Lease or Tenant’s right to possession of the Premises or should Tenant vacate the Premises (a “Termination”), Lender, at Lender’s sole cost and expense, agrees to enter the Premises to remove the Equipment in a manner acceptable to Landlord within twenty (20) business days (the “Removal Period”) following receipt by Lender of a written notice of Termination (a “Termination Notice”) from Landlord. If Lender does not remove the Equipment within the Removal Period, the Equipment will be deemed abandoned by Lender, and Landlord may dispose of the Equipment, at no cost to Lender and without liability to Lender. A failure by Landlord to give Lender a Termination Notice will not affect the validity of any lease termination or default notice to Tenant but instead will only delay the commencement of the Removal Period until Landlord gives the Termination Notice to Lender.

 

Notices.  Notices shall be in writing, sent certified mail, return receipt requested or by express delivery service that maintains regular records of delivery and receipt. Notices shall be sent to the addresses set forth above or to such other address as a party may designate in a written notice to the other party.

 

Waiver of Jury Trial.  LENDER AND LANDLORD, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO, THIS AGREEMENT AND ANY OTHER TRANSACTION CONTEMPLATED HEREBY. THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.

 

Governing Law; Jurisdiction.  THE LAWS OF THE STATE WHERE THE PREMISES IS LOCATED (WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PRINCIPLES) SHALL GOVERN ALL MATTERS ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT. Any legal action or proceeding with respect to this Agreement shall be brought exclusively in the federal or state courts in the state where the Premises is located, and each party accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. Landlord and Lender hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, that either of them may now or hereafter have to the bringing of any such action or proceeding in such, jurisdictions.

 

No lmpairment of Obligations.  THIS AGREEMENT SHALL NOT IMPAIR OR OTHERWISE AFFECT TENANT’S OBLIGATIONS TO: (a) LANDLORD, PURSUANT TO THE LEASE; OR (b) LENDER, PURSUANT TO THE LOAN DOCUMENTS.

 

Nonliability of Landlord.  Landlord shall have no obligation or liability to Lender or Tenant in connection with: (a) the financing arrangement between Tenant and Lender; (b) the protection of Equipment; (c) any acts or omissions by Tenant or Lender in any way connected with the Equipment; and (d) Lender’s exercise of any rights Lender may have in and to the Equipment, or any part thereof.

 

Entire Agreement: Binding Effect.  This Agreement, which includes the recitals, embodies the entire agreement of the parties and supersedes all prior agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement is binding on each of the parties and their respective successors and assigns and shall continue in effect until all of Tenant’s obligations and liabilities to Lender are paid and satisfied in full and all financing arrangements between Lender and Tenant have been terminated. Lender shall advise Landlord in writing promptly after the obligations secured by the Equipment have been satisfied, discharged or released.

 

2











 

Executed as of the date first above written.

 

	
 
    	
LANDLORD:
    
	
 
    	
 
    
	
 
    	
WOODMONT PLANO, L.P. a Texas limited   partnership
    
	
 
    	
 
    
	
 
    	
By:   Woodmont P&P, GP, L.L.C., a   Texas limited liability
    
	
 
    	
company   to General partner
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Stephen Coslik
    
	
 
    	
 
    	
Stephen   Coslik, Managing Member
    
	
 
    	
 
    
	
 
    	
LENDER:
    
	
 
    	
 
    
	
 
    	
GENERAL ELECTRIC CAPITAL CORPORATION, a
    
	
 
    	
Delaware   corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Kelly A. Hallford
    
	
 
    	
 
    	
Printed   Name:
    	
Kelly   A. Hallford
    
	
 
    	
 
    	
Its   Authorized Signatory
    


 

By signing below, Tenant: (i) agrees with the terms and conditions of this Agreement; (ii) authorizes Landlord to rely on any notice given to Landlord by Lender (without any inquiry into the factual basis for such notice), asserting that Tenant is in default under the Loan Documents and that Lender desires to exercise its rights under this Agreement with respect to the Equipment, and releases Landlord from all liability to Tenant in connection with Landlord’s compliance with Lender’s written instructions; and (iii) agrees that (x) as between the Landlord and Tenant, nothing in this Agreement shall be deemed in any way to contradict or supersede any provision of the Lease, (y) as between the Lease and this Agreement, the Lease shall control, and (z) nothing in this Agreement shall be deemed to waive or diminish any of Landlord’s rights, privileges or remedies under the Lease.

 

 

	
 
    	
TENANT:
    
	
 
    	
 
    
	
 
    	
Zoes   Texas, LLC, a Delaware limited liabilty company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jason C Morgan
    
	
 
    	
 
    	
 
    
	
 
    	
Name:
    	
JASON   C MORGAN
    
	
 
    	
 
    	
 
    
	
 
    	
Title:
    	
CFO
    


 

3











 

EXHIBIT A

DESCRIPTION OF LEASE

 

Lease Agreement (“Lease”) dated July 17, 2009, by and between Woodmont Plano, L.P. a Texas limited partnership, as Landlord, and Zoes Texas, LLC, a Delaware limited liability company, as Tenant.

 











 

EXHIBIT B

THE EQUIPMENT

 

The “Equipment” consists of the following: All equipment, machinery, furniture, appliances, trade fixtures, goods, replacements, substitutions, additions, parts and accessories now owned or hereafter acquired by Tenant and located at the Premises, including, without limitation, fryers, grills, ovens, warmers, refrigerators, freezers, waste disposal units, dishwashers, beverage dispensers, ice cream makers, racks, display cases, light fixtures, decor, counters, cash registers, salad equipment, tables, seating, signs and similar property of Tenant, together with the proceeds thereof and income therefrom. However, the term “Equipment” does not include the HVAC, plumbing, or electrical systems, any walk-in coolers or freezers, supply and exhaust fans, air ducts, hoods, vents, built-in sinks, built-in countertops, sign poles or lighting pools, any fixtures, improvements or machinery permanently installed in or affixed to the Premises, any other fixtures or improvements, the removal of which would result in material damage to the Premises; any items which, pursuant to the terms of the Lease, will become the property of Landlord upon installation; or any item that is a replacement of existing equipment owned by Landlord, all of which are intended to be fixtures and part of the Premises.

 









 

LANDLORD LIEN SUBORDINATION

 

THIS LANDLORD LIEN SUBORDINATION (this “Agreement”) is entered into as of July 10, 2009, by and between MIDTOWN REDEVELOPMENT PARTNERS, LLC , a North Carolina limited liability company (“Landlord”), whose address is c/o Pappas Properties, LLC, 1111 Metropolitan Avenue, Suite 325, Charlotte, North Carolina 28204, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“Lender”), whose address is 8377 East Hartford Drive, Suite 200, Scottsdale, Arizona 85255, Attention: Collateral Management.

 

A.                                    Landlord is the landlord and Zoe’s North Carolina, LLC, a Delaware limited liability company (“Tenant”) is the tenant under the lease agreement described on Exhibit A (the “Lease”), whereby Landlord leased to Tenant the real property and improvements described in the Lease (the “Premises” ).

 

B.                                    Tenant has executed or concurrently with the execution of this Agreement will execute security and/or guaranty agreements (including UCC-1 financing statements) (collectively , the “Loan Documents”), as guarantor and debtor, in favor of Lender pursuant to which Lender has or will obtain a lien (“Lender’s Lien”) on Tenant’s interest in the equipment described on Exhibit B (collectively, the “Equipment”).

 

C.                                    Lender and Tenant have requested Landlord to subordinate any Landlord’s lien in the Equipment to Lender’s Lien.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.                                      Lease. Landlord represents and warrants to Lender that, as of the date of this Agreement: (a) the Lease is in full force and effect; (b) except as stated in Exhibit A, the Lease has not been modified, amended or changed in any material respect; (c) the Lease and the documents and instruments referred to in the Lease are the entire agreement between Landlord and Tenant with respect to the Premises; and (d) to the best of Landlord’s actual knowledge, there are no existing defaults by Tenant under the Lease nor has any event occurred nor does any condition exist that, in either case, is continuing and that, with the giving of notice or the lapse of time, or both, would constitute a default by Tenant under the Lease.

 

2.                                      Subordination. Landlord consents to Lender’s Lien on the Equipment, to the extent that such consent is required under the Lease. Landlord agrees that the following liens affecting any part of the Equipment are junior and subordinate to the Loan and Lender’s Lien: (a) any lien on the Equipment m favor of Landlord that has been granted by Tenant or is provided for in the Lease; and (b) any statutory or possessory lien on Equipment now or in the future existing or arising in favor of Landlord, including any rights of levy or distraint for rent. Except as provided in Paragraph 3 and Paragraph 4 of this Agreement, Landlord will not take any action to exercise any rights it may have in the Equipment until the earlier of (i) such time as the Loan has been paid in full or otherwise discharged and Lender’s Lien on the Equipment has been released, or (ii) the date upon which the Lease expires or is otherwise terminated. As used in this Agreement, the term “Loan” includes all modifications, supplements, extensions, and refinancings with respect to the original Loan, as well as additional financing, provided to ZOE’S KITCHEN USA, LLC, a Delaware limited liability company, which is guaranteed by Tenant, by Lender from time to time that is secured by a security interest in the Equipment, and “Lenders Lien” includes all security interests in the Equipment from time to time existing in favor of Lender.

 

3.                                      Lender’s Right to Remove Equipment: No Sale from Premises. Lender may remove the Equipment from the Premises at all reasonable times during the Lease Term (as defined in the Lease) after a Loan default by Tenant, so long as Lender has given Landlord at least ten (10) days’ prior written notice. Such notice shall not be required, however, if Landlord has given a Termination Notice (defined below). Lender, at Landlord’s option, will either repair any damage caused by such removal or reimburse Landlord for the reasonable cost of repairing the damage. Lender will not hold any auction or sale of the Equipment at the Premises.

 

	
GEFF smartDocs Form 3014
   4/15/09
    	
 
    	
Contract   No. 14727001
   Asset No: #061527
   Charlotte (Midtown), NC
    


 











 

4.                                      Lease Termination by Landlord. If Landlord terminates the Lease or Tenant’s right to possession of the Premises (a “Termination”). Lender may enter the Premises to remove the Equipment for a period of twenty (20) days (the “Removal Period”) following receipt by Lender of a written notice of Termination (a “Termination Notice”) from Landlord. If Lender does not remove the Equipment within the Removal Period, the Equipment will be deemed abandoned by Lender, and Landlord may dispose of the Equipment, at no cost to Lender and without liability to Lender, subject only to the rights, if any, of Tenant under the Lease. A failure by Landlord to give Lender a Termination Notice will not affect the validity of any lease termination or default notice to Tenant but instead will only delay the commencement of the Removal Period until Landlord gives the Termination Notice to Lender. Lender, at Landlord’s option, will either repair any damage caused by Lender’s removal of the Equipment or reimburse Landlord for the reasonable cost of repairing such damage.

 

5.                                      Notices. Notices shall be in writing, sent certified mail, return receipt requested or by express delivery service that maintains regular records of delivery and receipt. Notices shall be sent to the addresses set forth above or to such other address as a party may designate in a written notice to the other party.

 

6.                                      Waiver of Jury Trial. LENDER AND LANDLORD, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT AND ANY OTHER TRANSACTION CONTEMPLATED HEREBY. THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.

 

7.                                      Governing Law; Jurisdiction. THE LAWS OF THE STATE WHERE THE PREMISES IS LOCATED (WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PRINCIPLES) SHALL GOVERN ALL MATTERS ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT. Any legal action or proceeding with respect to this Agreement shall be brought exclusively in the federal or state courts in the state where the Premises is located, and each party accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. Landlord and Lender hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, that either of them may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions.

 

8.                                      No Impairment of Obligations. THIS AGREEMENT SHALL NOT IMPAIR OR OTHERWISE AFFECT TENANT’S OBLIGATIONS TO: (a) LANDLORD, PURSUANT TO THE LEASE; OR (b) LENDER, PURSUANT TO THE LOAN DOCUMENTS.

 

9.                                      Entire Agreement; Binding Effect. This Agreement, which includes the recitals, embodies the entire agreement of the parties and supersedes all prior agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement is binding on each of the parties and their respective successors and assigns and shall continue in effect until the earlier of (i) all of Tenant’s obligations and liabilities to Lender are paid and satisfied in full and all financing arrangements between Lender and Tenant have been terminated or (ii) the date upon which the Lease expires or is otherwise terminated.

 

2











 

Executed as of the date first above written.

 

	
 
    	
LANDLORD:
    
	
 
    	
 
    
	
 
    	
MIDTOWN REDEVELOPMENT PARTNERS, LLC, a
    
	
 
    	
North   Carolina limited liability company
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Peter A. Pappas
    
	
 
    	
Name:   Peter A. Pappas
    
	
 
    	
Its:   Manager
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Bryson K. Collins
    
	
 
    	
Name:   Bryson K. Collins
    
	
 
    	
Its:   Manager
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
LENDER:
    
	
 
    	
 
    
	
 
    	
GENERAL ELECTRIC CAPITAL CORPORATION, a
    
	
 
    	
Delaware   corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Daniel A. Nunes
    
	
 
    	
 
    	
Printed   Name:
    	
Daniel   A. Nunes
    
	
 
    	
 
    	
Its   Authorized Signatory
    
					


 

3











 

EXHIBIT A

DESCRIPTION OF LEASE

 

Lease Agreement, dated June 19, 2009, between Midtown Redevelopment Partners, LLC, a North Carolina limited liability company as landlord, and Zoe’s North Carolina, LLC, a Delaware limited liability company, as Tenant.

 











 

EXHIBIT B

THE EQUIPMENT

 

The “Equipment” consists of the following: All equipment, machinery, furniture, appliances, trade fixtures, goods, replacements, substitutions, additions, parts and accessories now owned or hereafter acquired by Tenant and located at the Premises, including, without limitation, fryers, grills, ovens, warmers, refrigerators, freezers, waste disposal units, dishwashers, beverage dispensers, ice cream makers, racks, display cases, light fixtures, decor, counters, cash registers, salad equipment, tables, seating, signs and similar property of Tenant, together with the proceeds thereof and income therefrom. However, the term “Equipment” does not include (i) the HVAC, plumbing, or electrical systems, any walk-in coolers or freezers, supply and exhaust fans, air ducts, hoods, vents, built-in sinks, built-in countertops, sign poles or lighting pools, or any other property permanently affixed to the Premises, all of which are intended to be fixtures and part of the Premises, (ii) any standard improvements within the Premises which are not unique to Tenant’s space (i.e., floor coverings, interior lighting, ceiling tiles, etc.) nor (iii) any property which was purchased by Landlord or purchased with any funds from the Upfit Allowance (as defined in the Lease).

 









 

LANDLORD LIEN SUBORDINATION AGREEMENT

 

This LANDLORD LIEN SUBORDINATION AGREEMENT (the “Agreement”) is made as of December 31, 2010 by JONES LANG LASALE AMERICAS, INC., in its capacity as Keeper of the Shopping Center, as (“Landlord”), whose address is 10202 Perkins Rows, Suite 195 Baton Rouge, LA 70810, and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“Lender”), whose address is 8377 East Hartford Drive, Suite 200, Scottsdale, Arizona 85255, Attention: Collateral Management, in connection with a loan (the “Loan”) being made by Lender to ZOE’S KITCHEN USA, LLC, a Delaware limited liability company (“Borrower”), which is guaranteed by ZOE’S LOUISIANA, LLC (“Tenant”), and secured, in part, by the Tenant’s interest in the collateral described on Schedule 1 hereto (the “Collateral”).

 

Some or all of the Collateral is or will be located on the property identified on Exhibit A attached hereto (the “Premises”), which is leased to Tenant by Landlord pursuant to the lease (the “Lease”) Identified on Exhibit A.

 

Landlord has been appointed “keeper” of the Property (as defined in the Lease) by the United States District Court for the Middle District of Louisiana by order dated July 29, 2009, in connection with Civil Action No. 09-497-JJB-SCR (the “order”).

 

Pursuant to the Order Landlord, in its capacity as “Keeper,” has the authority to enter into this Agreement on the terms and conditions set forth herein.

 

Landlord acknowledges that Lender would not make the Loan but for Landlord’s execution of this Agreement:

 

Landlord hereby certifies and agrees as follows:

 

1.             Tenant is not in default under the Lease and to the undersigned’s actual knowledge no event has occurred and no condition exists which, with the giving of notice or the lapse of time or both, would constitute a default by Tenant under the Lease. The Lease has not been amended, supplemented or otherwise modified other than as set forth on Exhibit A attached hereto. The Lease is in full force and effect and is enforceable against Landlord.

 

2.             Landlord consents to the financing by Lender (If such consent is required under the Lease). Pursuant to Section 15.01 of the Lease, Landlord hereby subordinates any contractual, statutory or common law landlord’s lien or security interest now existing or hereafter arising with respect to the Collateral, including any rights of levy or distraint for rent, to the security interest of Lender in the Collateral and Landlord agrees that notwithstanding the terms of the Lease or applicable law, the security interest of Lender in the Collateral shall be deemed senior to Landlord’s lien and security interest in the Collateral. Lender waives any right to recover from Landlord any rent paid by Tenant to Landlord, regardless of the source of the funds for the payment of such rent; however, this provision Shall not constitute a waiver by Lender of any claim against Landlord arising out of Landlord’s violation of this Agreement.

 

3.             Lender may remove the Collateral from the Premises at all reasonable times, as designated by Landlord in a manner which will minimize interference with other tenants in the shopping Center in which the Premises is located, and Landlord will give Lender not less than thirty (30) days prior written notice to remove the Collateral as a result of a termination of the Lease or Tenant’s right to possession of the Premises (such written notice, the “Notice”), provided such removal will be undertaken under the supervision of Landlord or its designee, in accordance with all applicable laws and in a manner which will not result in a safety or fire hazard or leave the Premises in a condition which is not in compliance with applicable law. Lender will repair any damage caused by such removal or upon failing to do so will reimburse Landlord for the actual cost thereof. Notwithstanding anything in this paragraph or

 











 

the Lease to the contrary, any failure on the part of the Landlord to provide the Notice to Lender will not affect the validity of any lease termination or default notice vis-a-vis Landlord and Tenant, but instead will only delay the commencement of the 30-day period referenced in the second sentence of this paragraph until such time as Lender has received the Notice. If Lender does not remove the Collateral after Notice and expiration of the thirty (30) day period, Landlord may deem the Collateral abandoned and dispose of the Collateral in accordance of the terms of the Lease.

 

4.             Landlord shall notify any purchaser of the Premises, and any subsequent mortgagee or other encumbrance holder or claimant, of the existence of this Agreement. This Agreement shall be binding upon the executors, administrators, successors, assigns and transferees of Landlord and shall inure to the benefit of the successors and assigns of Lender.

 

5.             LENDER AND LANDLORD UNCONDITIONALLY, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN LANDLORD AND LENDER HERETO. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY ALL DISPUTES THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

 

6.             This Agreement is made and entered into under, and shall be construed according to, the laws of the State and the jurisdiction where the Premises are located.

 

7.             Lender acknowledges and agrees that Landlord is acting solely in its capacity as a court-appointed keeper and that no personal liability, directly or indirectly, shall be asserted or enforceable against Landlord or any of its present of future affiliates, owners, directors, officers, employees, agents of representatives with respect to any matter in any way arising from or relating to this Lease and/or the Property. The limitations of liability contained in this paragraph shall survive the termination of the Lease and this Agreement and are in addition to, and not in limitation of, any limitation of liability provided elsewhere in this Lease, this Agreement or by law or by any other contract, agreement or instrument.

 

8.             This Agreement may be executed in any number of identical counterparts which, taken together, shall constitute collectively one (1) agreement: but in making proof of this Agreement it shall not be necessary to produce or account for more than one such counterpart executed by the party to be charged.

 

IN WITNESS WHEREOF, the undersigned parties have executed this Agreement this 31 day of December, 2010.

 

	
WITNESSES:
    	
 
    	
LANDLORD:
    
	
 
    	
 
    	
 
    
	
/s/
    	
 
    	
JONES   LANG LASALLE AMERICAS, INC., a
    
	
PRINT   NAME  
    	
 
    	
Maryland   corporation, in its capacity as keeper of
    
	
 
    	
 
    	
the   Property
    
	
 
    	
 
    	
 
    	
 
    
	
/s/   Melissa Lewis
    	
 
    	
 
    	
 
    
	
PRINT   NAME  Melissa Lewis
    	
 
    	
By:
    	
/s/   Richard Vita
    
	
 
    	
 
    	
Name:
    	
Richard   Vita
    
	
 
    	
 
    	
Title:
    	
Senior   Vice President
    


 

KeyCorp — Perkins Rowe Landlord Lien Subordination (Exhibit J)

 

2











 

 

	
WITNESSES:
    	
 
    	
LENDER:
    
	
 
    	
 
    	
 
    
	
/s/   Casey Crimmins 
    	
 
    	
GENERAL   ELECTRIC CAPITAL CORPORATION,
    
	
PRINT   NAME
    	
 
    	
a   Delaware corporation, as Lender
    
	
 
    	
 
    	
 
    	
 
    
	
/s/   Terri Ringstrom
    	
 
    	
By:
    	
/s/   Daniel Nunes
    
	
PRINT   NAME
    	
 
    	
Name:
    	
Daniel   Nunes
    
	
 
    	
 
    	
Title:
    	
Vice   President
    


 

Acknowledgment Pages Follow

 

3











 

Landlord’s Acknowledgment

 


	
STATE   OF LOUISIANA
    	
)
    
	
 
    	
)
    
	
Parish   OF East Baton Rouge 
    	
)
    




 

I the undersigned Notary Public in and for said County, in said State, hereby certify that Richard Vita, whose name as Senior Vice President of Landlord, is signed to the foregoing instrument, and who is known to ma, acknowledged before me on this day that, being informed of the contents of this instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said company.

 

Given under my hand and official seal, this 31 day of December, 2010

 

	
/s/ Leslie Davidson
    	
 
    
	
NOTARY   PUBLIC
    	
 
    


 

My Commission Expires:

	
 
    	
Upon Death
    	
 
    
	

    	
LESLIE DAVIDSON
    	
 
    
	
Notary Public
    	
 
    
	
State of Louisiana
    	
 
    
	
Notary ID # 89091
    	
 
    
	
Livingston Parish
    	
 
    
	
My Commission is for Life
    	
 
    
	
 
    	
 
    	
 
    


 

4











 

Lender’s Acknowledgment

 


	
STATE   OF ARIZONA
    	
)
    
	
 
    	
)
    
	
COUNTY   OF Maricopa
    	
)
    




 

I, the undersigned Notary Public in and for said County, in said State, hereby certify that Daniel Nunes, whose name as Authorized Signatory of Lender, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of this Instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said company

 

Given under my hand and official seal this 7 day of March, 2011

 

	
/s/   Joyce R. Thomas
    	
 
    
	
NOTARY   PUBLIC
    	
 
    


 

	
My   Commission Expires:
    	

    	
JOYCE R. THOMAS
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
NOTARY PUBLIC - ARIZONA
    	
 
    
	
 
    	
MARICOPA COUNTY
    	
 
    
	
 
    	
My Comm. Exp:   March 5, 2014
    	
 
    


 

5









 

Tenant executes this Agreement for the purpose of consenting to the terms thereof and consenting to all actions which Landlord has agreed to take for the benefit of Lender hereunder.

 

 

	
WITNESSES:
    	
 
    	
TENANT:
    
	
 
    	
 
    	
 
    
	
/s/ Jennifer Mims
    	
 
    	
ZOE’S LOUISIANA, LLC, a Delaware limited
    
	
PRINT NAME 
    	
 
    	
liability company, as Tenant
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By: 
    	
/s/ Jason C Morgan
    
	
/s/ George Balden
    	
 
    	
Name:
    	
Jason C Morgan
    
	
PRINT NAME
    	
 
    	
Title:
    	
CFO
    


 

Acknowledgment Page Follows

 











 

Borrower’s Acknowledgement

 

	
STATE OF Alabama 
    	
)
    
	
 
    	
)
    
	
COUNTY OF Jefferson 
    	
)
    


 

I, the undersigned Notary Public in and for said County, in said State, hereby certify that Jason C Morgan, whose name as CFO of Borrower, is signed to the foregoing instrument, and who is known to me, acknowledged before me on this day that, being informed of the contents of this instrument, he, as such officer and with full authority, executed the same voluntarily for and as the act of said company.

 

Given under my hand and official seal, this 29 day of December, 2010.

 

	
/s/ Natalie Stewart
    	
 
    
	
NOTARY PUBLIC
    	
 
    


 

My Commission Expires: 7/2/11

 

7











 

Schedule 1

 

The “Collateral”

 

The “Equipment” consists of the following: All equipment, machinery, furniture, appliances, trade fixtures, goods, replacements, substitutions, additions, parts and accessories now owned or hereafter acquired by Tenant and located at the Premises, Including, without limitation, fryers, grills, ovens, warmers, refrigerators, freezers, waste disposal units, dishwashers, beverage dispensers, ice cream makers, racks, display cases, light fixtures, decor, counters, cash registers, salad equipment, tables, seating, signs and similar property of Tenant, together with the proceeds thereof and income therefrom. However, the term “Equipment” does not include the HVAC, plumbing, or electrical systems, any walk-in coolers or freezers, supply and exhaust fans, air ducts, hoods, vents, built-in sinks, built-in countertops, sign poles or lighting poles, all of which are intended to be fixtures and part of the Premises.

 











 

ORIGINAL

 

BLOCKED ACCOUNT AGREEMENT

With Activation

 

THIS BLOCKED ACCOUNT AGREEMENT (“Agreement”) is made and entered into as of this 15th day of January, 2008, by and among COMPASS BANK (“Bank”), ZOE’S KITCHEN USA, LLC, a Delaware limited liability company (“Company”), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“Lender”).

 

A.                         Pursuant to that certain Loan Agreement, dated as of December 14, 2007, by Company and Lender (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”), Lender has agreed to make loans and extend other financial accommodations to Company.

 

B.                                    Company has established the deposit accounts at Bank as set forth on Schedule 1 attached hereto (individually and collectively, the “Blocked Account”).

 

C.                                    The parties hereto desire to enter into this Agreement in order to set forth their relative rights and duties with respect to the Blocked Account and all funds on deposit therein from time to time.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows:

 

1.                                      Effectiveness. This Agreement shall take effect immediately upon its execution by all parties hereto and shall supersede any blocked account or similar agreement in effect with respect to the Blocked Account.

 

2.                                      Security Interests; Agency. As collateral security for Company’s obligations to Lender under the Loan Agreement and the other loan documents described therein, Company hereby grants to Lender a present and continuing security interest in (a) the Blocked Account, (b) all contract rights, claims and privileges in respect of the Blocked Account, and (c) all cash, checks, money orders and other items of value of Company now or hereafter paid, deposited, credited or held (whether for collection, provisionally or otherwise) to or in the Blocked Account or otherwise in the possession or under the control of, or in transit to, Bank or any agent, bailee or custodian thereof for deposit in or credit to the Blocked Account (collectively, “Receipts”), and all proceeds of the foregoing. Bank acknowledges Lender’s security interest in such collateral and that this Agreement constitutes notice of such security interest and Bank further acknowledges and agrees that it does not and shall not object to or contest Lender’s security interest in such collateral. The parties hereto agree that Bank shall comply with the instructions originated by Lender pursuant to the Notice (as defined below) directing disposition of the Receipts in the Blocked Account, without further consent of the Company; provided that Lender shall not deliver any such notice unless an Event of Default under the Loan Agreement shall have occurred and be continuing.

 

3.                                   Control of Blocked Account. During the Activation Period (as defined below), the Blocked Account and any and all funds on deposit from time to time therein shall be under the sole dominion and control of Lender and neither Company, nor any other person or entity,

 











 

through or under the Company, shall have any control over the use of, or any right to withdraw any amount from the Blocked Account. At all times other than during an Activation Period, Company may operate and transact business through the Blocked Account in the ordinary course of business, including making withdrawals from the Blocked Account, but covenants to Lender it will not close the Blocked Account, except as permitted under the Loan Agreement. Bank shall have no liability in the event Company breaches this covenant to Lender. A reasonable period of time following the commencement of the Activation Period, and continuing on each Business Day thereafter, until the end of the Activation Period Bank shall transfer all collected and available balances in the Blocked Account to Lender at its account (the “Collection Account”) at:

 

	
 
    	
Bank: Deutsche Bank Trust Company Americas
    
	
 
    	
Address: One Bankers Trust Plaza New York, New York
    
	
 
    	
ABA No. 021-001-033
    
	
 
    	
Account No. 50-268-523
    
	
 
    	
Account Name: GE Commercial Finance, Franchise Finance
    
	
 
    	
Reference No.: Contract 14727001
    


 

The “Activation Period” means the period which commences as soon as possible but in any event within a reasonable period of time (not to exceed two Business Days) after Bank’s receipt of a written notice from Lender in the form of Exhibit A (the “Notice”) and ends the day Bank receives a Restore Notice (as defined below) from Lender. Bank hereby agrees to use its commercially reasonable efforts to commence the Activation Period as soon as possible as time is of the essence. A “Business Day” is each day except Saturdays, Sundays and Bank holidays. Funds are not available if, in the reasonable determination of Bank, they are subject to a hold, dispute or legal process preventing their withdrawal. Lender agrees not to deliver a Notice unless and until an Event of Default (as defined in the Loan Agreement) shall have occurred and be continuing. If the Event of Default giving rise to the Notice has been waived, Lender shall deliver a notice (a “Restore Notice”) to Bank directing that Company control over the Blocked Account be restored.

 

4.                               Statements and Other Information. On each Business Day, Bank will send any applicable Receipts not processed plus information regarding the deposit for the day to the address specified below for Company (except for during an Activation Period, where such items will be sent to the Lender), and will send a copy of the deposit advice to the address specified below for Lender. In addition to the original Bank statement provided to Company, Bank will provide Lender with a duplicate of such statement together with copies of all notices and statements sent to Company with respect to the Blocked Account.

 

5.                                   Offset Rights.

 

(a)                                 Bank agrees not to exercise or claim any right of offset, banker’s lien or other like right against the Blocked Account for so long as this Agreement is in effect except with respect to (i) returned or charged-back items, (ii) reversals or cancellations of payment orders and other electronic fund transfers, (iii) overdrafts resulting from adjustments or corrections of previous credits or other postings (together with clauses (i) and (ii), collectively, “Returned Items”) or (iv) Bank’s charges, fees and expenses with respect to the Blocked Account or the services provided in connection therewith or hereunder (collectively, “Charges”); and

 

2











 

(b)                                 In addition to the rights retained by Bank in subpart (a), Company hereby authorizes Bank, without prior notice, from time to time to debit any other account Company may have with Bank to the extent not already pledged to Lender for Returned Items and Charges due Bank under subsection 5(a).

 

6.                                      Limits of Bank’s Liability.

 

(a)                                 Bank will not be liable to Company or Lender for any expense, claim, loss, damage or cost (“Damages”) arising out of or relating to its performance under this Agreement other than those Damages which result directly from its acts or omissions constituting gross negligence or intentional misconduct.

 

(b)                                 In no event will Bank be liable for any special, indirect, exemplary or consequential damages, including but not limited to lost profits.

 

(c)                                 Bank will be excused from failing to act or delay in acting, and no such failure or delay shall constitute a breach of this Agreement or otherwise give rise to any liability of Bank, if (i) such failure or delay is caused by circumstances beyond Bank’s reasonable control, including but not limited to legal constraint, emergency conditions, action or inaction of governmental, civil or military authority, fire, strike, lockout or other labor dispute, war, riot, theft, flood, earthquake or other natural disaster, breakdown of public or private or common carrier communications or transmission facilities, equipment failure, or gross negligence or willful misconduct of Company or Lender or (ii) such failure or delay resulted from Bank’s reasonable belief based upon the advice of its counsel that the action would have violated any guideline, rule or regulation of any governmental authority.

 

(d)                                 Bank shall have no duty to inquire or determine whether Company’s obligations to Lender are in default or whether Lender is entitled to provide the Notice to Bank. Neither Bank nor Lender shall have any duty to inquire or determine whether either such party is authorized to execute this Agreement. Each of Bank and Lender may rely on notices and communications it believes in good faith to be genuine and given by the appropriate party.

 

(e)                                  Notwithstanding any of the other provisions in this Agreement, in the event of the commencement of a case pursuant to Title 11, United States Code, filed by or against Company, or in the event of the commencement of any similar case under then applicable federal or state law providing for the relief of debtors or the protection of creditors by or against Company, Bank may act as Bank deems necessary to comply with all applicable provisions of governing statutes (and shall use commercially reasonable efforts to inform Lender of such acts if allowed by law) and shall not be in violation of this Agreement as a result.

 

(f)                                   Bank shall be permitted to comply with any writ, levy order or other similar judicial or regulatory order or process concerning the Blocked Account or any Check and shall not be in violation of this Agreement for so doing.

 

7.                                   Indemnity. Company hereby agrees to indemnify, defend and save harmless Bank against any loss, liability or expense incurred in connection with this Agreement or the Blocked Account (except to the extent due to Bank’s or any of its related parties’ willful misconduct or

 

3











 

gross negligence) or incurred at Company’s direction or instruction, including without limitation any Returned Items or Charges.

 

8.                                      Returned Items. If any Returned Items are not paid by the Company within five (5) Business Days after written demand therefor by Bank to Company, then Lender shall pay to Bank within five (5) Business Days after receipt of written demand therefor from Bank the amount of such Returned Items; provided that the Lender shall have received such demand within one hundred (100) days after the funds attributable to such Returned Item have been wire transferred to the Collection Account as provided in Section 3 above.

 

9.                                      Charges. If the balances in the Blocked Account are not sufficient to compensate Bank for any Charges, Company agrees to pay Bank within five (5) Business Days after written demand therefor from Bank the amount of such Charges. Company acknowledges that failure to so pay Bank any such amount shall constitute a breach of this Agreement.

 

10.                               Termination. This Agreement may be terminated by Company only upon delivery to Bank of a written notification thereof jointly executed by Company and Lender. This Agreement may be terminated by Lender at any time, with or without cause, seven days following its delivery of written notice thereof to each of Company and Bank. This Agreement may be terminated by Bank at any time on not less than 30 days prior written notice delivered to each of Company and Lender. Notwithstanding the foregoing, Bank may terminate this Agreement at any time upon 10 days’ prior written notice to Company and Lender if either Company or Lender breaches any of the terms of this Agreement, or any other agreement with Bank involving the borrowing of money or extension of credit. All rights of Bank under Sections 6, 7, 8 and 9 shall survive any termination of this Agreement, Upon termination of this Agreement by Bank, any collected and available balances in the Blocked Account will be transferred in accordance with Company’s instructions (subject to any requirement under the Loan Agreement); provided that if termination of this Agreement occurs during an Activation Period, then any collected and available balances in the Blocked Account will be transferred in accordance with Lender’s instructions.

 

11.                               Irrevocable Agreements. Company acknowledges that the agreements made by it and the authorizations granted by it in Sections 2 and 3 hereof are irrevocable and that the authorizations granted in Sections 2 and 3 hereof are powers coupled with an interest.

 

12.                               Notices. All notices, requests or other communications given to Company, Lender or Bank shall be given in writing (including by facsimile) at the address specified below:

 

	
 
    	
Lender: 
    	
General Electric Capital Corporation
    
	
 
    	
 
    	
8377 East Hartford, Suite 200
    
	
 
    	
 
    	
Scottsdale, Arizona 85255
    
	
 
    	
 
    	
Attention: Collateral Management
    
	
 
    	
 
    	
Telephone Number:
    
	
 
    	
 
    	
Telecopy Number:
    
	
 
    	
 
    	
 
    


 

4











 

	
 
    	
Bank:
    	
Compass Bank
    
	
 
    	
 
    	
Corporate Banking
    
	
 
    	
 
    	
15 South 20th Street, Suite 201
    
	
 
    	
 
    	
Birmingham, Alabama 35233
    
	
 
    	
 
    	
Telephone Number: 205-297-3294
    
	
 
    	
 
    	
Telecopy Number: 205-297-3926
    
	
 
    	
 
    	
 
    
	
 
    	
Company: 
    	
Zoe’s Kitchen USA, LLC
    
	
 
    	
 
    	
11150 Santa Monica Boulevard, Suite 1200
    
	
 
    	
 
    	
Los Angeles, California 90025]
    
	
 
    	
 
    	
Attention: Rahul Aggarwal
    
	
 
    	
 
    	
Telephone Number: 310-477-6611
    
	
 
    	
 
    	
Telecopy Number: 310-477-1011
    


 

Any party may change its address for notices hereunder by notice to each other party hereunder given in accordance with this Section 12. Each notice, request or other communication shall be effective when given in accordance with this Section 12. Each notice, request or other communication shall be effective (a) if given by facsimile, when such facsimile is transmitted to the facsimile number specified in this Section 12 and confirmation of receipt is made by the appropriate party, and (b) if given by any other means, including overnight courier, when received at the address specified in this Section 12.

 

13.                               Miscellaneous.

 

(a)                                       This Agreement may be amended only by a written instrument executed by the parties hereto acting by their respective duly authorized representatives, except that Bank’s Charges are subject to change by Bank on 30 days’ prior written notice to Company.

 

(b)                                 This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, but neither Company nor Bank shall be entitled to assign or delegate any of its rights or duties hereunder without first obtaining the express prior written consent of Lender.

 

(c)                                  This Agreement may be executed in any number of several counterparts, each of which shall be deemed an original but all of which together shall constitute and the same instrument.

 

(d)                                 THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ALABAMA (WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES).

 

(e)                                  Nothing contained in the Agreement shall create any agency, fiduciary, joint venture or partnership relationship between Bank and Company or Lender.

 

(f)                                   Company represents and warrants to the other parties that (A) this Agreement constitutes its duly authorized, legal, valid, binding and enforceable obligation, except as enforceability may be limited by applicable bankruptcy, insolvency, liquidation, reorganization

 

5











 

and other laws affecting the rights of creditors generally, and general principles of equity; (B) except where it would not result in a material adverse effect, the performance of its obligations under this Agreement and the consummation of the transactions contemplated hereunder will not (i) conflict with or violate its certificate of formation or operating agreement, or (ii) result in a default under the material provisions of any material contract to which it is a party or by which it is bound or (iii) result in the violation of any law, regulation, judgment, decree or governmental order applicable to it; and (C) except where it would not result in a material adverse effect, all approvals and authorizations required to permit the execution, delivery, performance and consummation of this Agreement and the transactions contemplated hereunder have been obtained.

 

[SIGNATURE PAGE FOLLOWS]

 

6









 

IN WITNESS WHEREOF, each of the parties has executed and delivered this Blocked Account Agreement as of the day and year first above set forth.

 

	
 
    	
“Bank”
    
	
 
    	
 
    	
 
    
	
 
    	
COMPASS BANK
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By: 
    	
/s/ Alex Morton
    
	
 
    	
Name: 
    	
Alex Morton
    
	
 
    	
Title: 
    	
Senior Vice President
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
“Company”
    
	
 
    	
 
    	
 
    
	
 
    	
ZOE’S KITCHEN USA, LLC, a Delaware
    
	
 
    	
limited liability company
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Lindsey Miller
    
	
 
    	
Name: 
    	
VP & Treasurer, Lindsey Miller
    
	
 
    	
Title:
    	
VP & Treasurer
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
“Agent” 
    
	
 
    	
 
    	
 
    
	
 
    	
GENERAL ELECTRIC CAPITAL CORPORATION
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/ Todd V. Jones
    
	
 
    	
Name: 
    	
Todd V. Jones
    
	
 
    	
Title: 
    	
Duly Authorized Signatory
    


 

7











 

Schedule 1

 

Blocked Accounts

 

1.                                      Zoe’s Kitchen USA, LLC

Corporate Operating Account

DDA # 0072225945

 











 

EXHIBIT A

BLOCKED ACCOUNT AGREEMENT

 

[Letterhead of Lender]

 

To:

 

 

 

Re:                             Account No.

 

Ladies and Gentlemen:

 

Reference is made to the Blocked Account Agreement dated                , 200  (the “Agreement”) among                    , us and you regarding the above-described account (the “Blocked Account). In accordance with Section 3 of the Agreement, we hereby give you notice of our exercise of control of the Blocked Account and we hereby instruct you to immediately transfer funds to our account [insert account number and wire information] as reflected in the Agreement.

 

 

	
 
    	
Very truly yours,
    
	
 
    	
 
    
	
 
    	
GENERAL ELECTRIC CAPITAL CORPORATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name: 
    	
 
    
	
 
    	
Title: 
    	
Duly Authorized Signatory
    


 











 

EXHIBIT C

 

Amended and Restated Schedules to Existing Security Agreement

 

[See Attached.]

 











 

Schedule 1

 

Commercial Tort Claims

 

None

 

Master Reaffirmation Agreement

 











 

Schedule 2

 

Filings

 

1.                                                 Zoe’s Kitchen USA, LLC filing with the Secretary of State of Delaware.

 

2.                                                 Zoe’s Kitchen, Inc filing with the Secretary of State of Delaware.

 

3.                                                 Zoe’s Arizona, LLC filing with the Secretary of State of Delaware.

 

4.                                                 Zoe’s Colorado, LLC filing with the Secretary of State of Delaware.

 

5.                                                 Zoe’s Florida, LLC filing with the Secretary of State of Delaware.

 

6.                                                 Zoe’s Kitchen Holding Company, LLC filing with the Secretary of State of Delaware.

 

7.                                                 Zoe’s Louisiana, LLC filing with the Secretary of State of Delaware.

 

8.                                                 Zoe’s Maryland, LLC filing with the Secretary of State of Delaware.

 

9.                                                 Zoe’s North Carolina, LLC filing with the Secretary of State of Delaware.

 

10.                                          Zoe’s Oklahoma, LLC filing with the Secretary of State of Delaware.

 

11.                                          Zoe’s Restaurants Nashville, LLC filing with the Secretary of State of Delaware.

 

12.                                          Zoe’s Restaurants, L.L.C. filing with the Secretary of State of Alabama.

 

13.                                          Zoe’s South Carolina, LLC filing with the Secretary of State of Delaware.

 

14.                                          Zoe’s Texas, LLC filing with the Secretary of State of Delaware.

 

15.                                          ZK Texas Holdings, LLC filing with the Secretary of State of Texas.

 

16.                                          ZK Texas Management, LLC filing with the Secretary of State of Texas.

 

17.                                          ZK Texas Beverages, LLC filing with the Secretary of State of Texas.

 

18.                                          Zoe’s Virginia, LLC filing with the Secretary of State of Delaware.

 

2









 

Schedule 3

 

Jurisdiction of Organization; Chief Executive Office

 

	
Name of Entity /
    	
 
    	
Jurisdiction of
    	
 
    	
Organizational
    
	
Chief Executive Office
    	
 
    	
Organization
    	
 
    	
ID No.
    
	
Zoe’s   Kitchen USA LLC
    	
 
    	
Delaware
    	
 
    	
3823641
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Kitchen, Inc.
    	
 
    	
Delaware
    	
 
    	
4434270
    
	
c/o   Brentwood Associates Private
    	
 
    	
 
    	
 
    	
 
    
	
Equity   IV, L.P.
    	
 
    	
 
    	
 
    	
 
    
	
11150   Santa Monica Blvd.
    	
 
    	
 
    	
 
    	
 
    
	
Suite 1200
    	
 
    	
 
    	
 
    	
 
    
	
Los   Angeles, CA 90025
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Arizona, LLC
    	
 
    	
Delaware
    	
 
    	
4430187
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Colorado, LLC
    	
 
    	
Delaware
    	
 
    	
4609608
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Florida, LLC
    	
 
    	
Delaware
    	
 
    	
3996507
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Kitchen Holding Company, LLC
    	
 
    	
Delaware
    	
 
    	
3558469
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Louisiana, LLC
    	
 
    	
Delaware
    	
 
    	
3917111
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Maryland, LLC
    	
 
    	
Delaware
    	
 
    	
4609611
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   North Carolina, LLC
    	
 
    	
Delaware
    	
 
    	
4609606
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Oklahoma, LLC
    	
 
    	
Delaware
    	
 
    	
5032889
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Restaurants Nashville LLC
    	
 
    	
Delaware
    	
 
    	
3479523
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Alabama
    	
 
    	
665 - 626
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    


 

3











 

	
Name of Entity/
    	
 
    	
Jurisdiction of
    	
 
    	
Organizational
    
	
Chief Executive Office
    	
 
    	
Organization
    	
 
    	
ID No.
    
	
Zoe’s   South Carolina, LLC
    	
 
    	
Delaware
    	
 
    	
4609607
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Texas, LLC
    	
 
    	
Delaware
    	
 
    	
4031671
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
ZK   Texas Holdings, LLC
    	
 
    	
Texas
    	
 
    	
801144411
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
ZK   Texas Management, LLC
    	
 
    	
Texas
    	
 
    	
801144415
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
ZK   Texas Beverages, LLC
    	
 
    	
Texas
    	
 
    	
801144409
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Zoe’s   Virginia, LLC
    	
 
    	
Delaware
    	
 
    	
4609610
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    
	
Soho   Franchising, LLC
    	
 
    	
Delaware
    	
 
    	
4516713
    
	
2931   2nd Avenue South
    	
 
    	
 
    	
 
    	
 
    
	
Birmingham,   AL 35233
    	
 
    	
 
    	
 
    	
 
    


 

4











 

Schedule 4

 

Location of Inventory and Equipment

 

	
Name of Lessee
    	
 
    	
Name of Lessor
    	
 
    	
Address of Leased Property
    
	
Zoe’s   Kitchen USA, LLC
    	
 
    	
Scott   M. Bryant & Co., LLC
    	
 
    	
2931   2nd Avenue South
    
	
 
    	
 
    	
 
    	
 
    	
Birmingham,   AL 35233
    
	
Zoe’s   Arizona, LLC
    	
 
    	
LDR-Camelback,   L.L.C.
    	
 
    	
1641   East Camelback Rd.
    
	
 
    	
 
    	
 
    	
 
    	
Phoenix,   AZ 85016
    
	
Zoe’s   Arizona, LLC
    	
 
    	
5th &   McDowell Partners, LLC
    	
 
    	
521   West McDowell
    
	
 
    	
 
    	
 
    	
 
    	
Phoenix,   AZ 85003
    
	
Zoe’s   Arizona, LLC
    	
 
    	
Metzler   I Scottsdale Waterfront LP
    	
 
    	
7135   E Camelback Road
    
	
 
    	
 
    	
 
    	
 
    	
Suite 165
    
	
 
    	
 
    	
 
    	
 
    	
Scottsdale,   AZ 85251
    
	
Zoe’s   Florida, LLC
    	
 
    	
Merchant’s   Plaza at Ponte Vedra, LTD.
    	
 
    	
240   Highway A1A
    
	
 
    	
 
    	
 
    	
 
    	
Ponte   Vedra Beach, FL 32082
    
	
Zoe’s   Florida, LLC
    	
 
    	
Retail   Improvements, LLC
    	
 
    	
1661   Riverside Ave.
    
	
 
    	
 
    	
 
    	
 
    	
Jacksonville,   FL 32204
    
	
Zoe’s   Louisiana, LLC
    	
 
    	
Creekstone   Cedar Lodge I, L.L.C.
    	
 
    	
7415   Corporate Blvd., Suite 950
    
	
 
    	
 
    	
 
    	
 
    	
Baton   Rouge, LA 70809
    
	
Zoe’s   Louisiana, LLC
    	
 
    	
Jones   Lang LaSalle Americas, Inc.
    	
 
    	
7707   Bluebonnet Blvd.
    
	
 
    	
 
    	
 
    	
 
    	
Suite 120
    
	
 
    	
 
    	
 
    	
 
    	
Baton   Rouge, LA 70810
    
	
Zoe’s   Texas, LLC
    	
 
    	
Madison   Snider I Cotenancy, a
    	
 
    	
6800   Snider Plaza
    
	
 
    	
 
    	
TX   cotenancy consisting of John
    	
 
    	
University   Park, TX 75202
    
	
 
    	
 
    	
D.   Gourley, Robert W. Teeter &
    	
 
    	
 
    
	
 
    	
 
    	
Pamela   S. Gourley
    	
 
    	
 
    
	
Zoe’s   Texas, LLC
    	
 
    	
Corrigan   Investments, Inc.
    	
 
    	
5710   West Lovers Lane, Ste. 108
    
	
 
    	
 
    	
 
    	
 
    	
Dallas,   TX 75209
    
	
Zoe’s   Restaurants Nashville, LLC
    	
 
    	
Maryland   Commons, L.L.C.
    	
 
    	
101   Creekside Crossing, Ste. 1200
    
	
 
    	
 
    	
 
    	
 
    	
Brentwood,   TN 37027
    
	
Zoe’s   Restaurants Nashville, LLC
    	
 
    	
Hill   Center at Green Hills, LLC
    	
 
    	
4015   Hillsboro Rd., Ste. 110
    
	
 
    	
 
    	
 
    	
 
    	
Nashville,   TN 37215
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Mainstreet,   L.L.C.
    	
 
    	
312   Merchant’s Walk
    
	
 
    	
 
    	
 
    	
 
    	
Tuscaloosa,   AL 35406
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Scott &   Scott Inc.
    	
 
    	
225   Country Club Park
    
	
 
    	
 
    	
 
    	
 
    	
Birmingham,   AL 35213
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Soho   Partners, LLC
    	
 
    	
1830   29th Ave. So., Ste. 115
    
	
 
    	
 
    	
 
    	
 
    	
Homewood,   AL 35209
    


 

5











 

	
Name of Lessee
    	
 
    	
Name of Lessor
    	
 
    	
Address of Leased Property
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
35   Federal, L.P.
    	
 
    	
1819   5th Ave. No.
    
	
 
    	
 
    	
 
    	
 
    	
Birmingham,   AL 35203
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Bayer   Retail Company, L.L.C.
    	
 
    	
323   Summit Blvd.
    
	
 
    	
 
    	
 
    	
 
    	
Birmingham,   AL 35243
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Extra   Space Management, Inc.
    	
 
    	
115   Grace Baker Rd., #B0218
    
	
 
    	
 
    	
 
    	
 
    	
Birmingham,   AL 35210
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Patton   Creek Holdings, LLC
    	
 
    	
Patton   Creek Shopping Center
    
	
 
    	
 
    	
 
    	
 
    	
180   Main Street, Suite 140
    
	
 
    	
 
    	
 
    	
 
    	
Hoover,   AL 35244
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Excel   Vestavia, LLC
    	
 
    	
700   Montgomery Hwy., Ste. 190
    
	
 
    	
 
    	
 
    	
 
    	
Vestavia,   AL 35216
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Cannon   Family Properties LLC
    	
 
    	
234   C West Magnolia Ave.
    
	
 
    	
 
    	
 
    	
 
    	
Auburn,   AL 36830
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Zelda   Place Partners, Ltd.
    	
 
    	
2960   Zelda Road, Suite C
    
	
 
    	
 
    	
 
    	
 
    	
Montgomery,   AL 36106
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
The   Shoppes at East Chase, LLC
    	
 
    	
Shoppes   at East Chase
    
	
 
    	
 
    	
 
    	
 
    	
7218   Eastchase Parkway
    
	
 
    	
 
    	
 
    	
 
    	
Montgomery,   AL 36117
    
	
Zoe’s   Restaurants, L.L.C.
    	
 
    	
Board   of Trustees of the University of Alabama
    	
 
    	
Bryant-Denney   Stadium
    
	
 
    	
 
    	
 
    	
South   End Zone Marketplace
    
	
 
    	
 
    	
 
    	
 
    	
920   Bryant Drive, Suite 101
    
	
 
    	
 
    	
 
    	
 
    	
Tuscaloosa,   AL 35401
    
	
Zoe’s   Kitchen Holding Company, LLC
    	
 
    	
841   North Highland Avenue,

LLC   d/b/a The Mix
    	
 
    	
Tuxedo   Festival Shopping Center

3655   Roswell Road, Ste. 100

Atlanta,   GA 30342
    
	
Zoe’s   Kitchen Holding Company, LLC
    	
 
    	
Peachtree   Battle Immobilien- Anlage Gesellschaft, mbH
    	
 
    	
2333   Peachtree Road NE

Atlanta,   GA 30305
    
	
Zoe’s   North Carolina, LLC
    	
 
    	
CBL-Shops   at Friendly II, LLC
    	
 
    	
3352   West Friendly Ave., Ste. 115
    
	
 
    	
 
    	
 
    	
 
    	
Greensboro,   NC 27410
    
	
Zoe’s   North Carolina, LLC
    	
 
    	
Blakeney   Retail, LLC
    	
 
    	
9848   Rea Road, Suite G
    
	
 
    	
 
    	
 
    	
 
    	
Charlotte,   NC 28277
    
	
Zoe’s   North Carolina, LLC
    	
 
    	
DDTRC,   Birkdale Village LLC
    	
 
    	
Birkdale   Village
    
	
 
    	
 
    	
 
    	
 
    	
16735   Cranlyn Rd, Suite D
    
	
 
    	
 
    	
 
    	
 
    	
Huntersville,   NC 28078
    
	
Zoe’s   North Carolina, LLC
    	
 
    	
The   Northwestern Mutual Life Insurance Company

c/o   Crosland, LLC
    	
 
    	
1028   Oberlin Road, Suite 248

Raleigh,   NC 27605
    
	
Zoe’s   North Carolina, LLC
    	
 
    	
Morrisville   Partners, LLC
    	
 
    	
141-112   Park at North Hills St.
    
	
 
    	
 
    	
 
    	
 
    	
Raleigh,   NC 27609
    


 

6











 

	
Name of Lessee
    	
 
    	
Name of Lessor
    	
 
    	
Address of Leased Property
    
	
Zoe’s   North Carolina, LLC
    	
 
    	
Mayfair   Retail, LLC
    	
 
    	
Mayfair   Town Center
    
	
 
    	
 
    	
 
    	
 
    	
1011   International Drive
    
	
 
    	
 
    	
 
    	
 
    	
Wilmington,   NC 28405
    
	
Zoe’s   North Carolina, LLC
    	
 
    	
Midtown   Redevelopment Partners, LLC

c/o   Pappas Properties, LLC
    	
 
    	
1055   Metropolitan Ave., Ste. 110

Charlotte,   NC 28204
    
	
Zoe’s   Texas, LLC
    	
 
    	
Woodmont   Plano, L.P.
    	
 
    	
1901   Preston Road, Suite 1000
    
	
 
    	
 
    	
 
    	
 
    	
Plano,   TX 75093
    
	
Zoe’s   Texas, LLC
    	
 
    	
Alliance   Town Center I, L.P.
    	
 
    	
Alliance   Town Center
    
	
 
    	
 
    	
 
    	
 
    	
9574   Sage Meadow Trail
    
	
 
    	
 
    	
 
    	
 
    	
Fort   Worth, TX 76177
    
	
Zoe’s   Texas, LLC
    	
 
    	
FW   River Plaza, L.P.
    	
 
    	
West   Bend Shopping Center
    
	
 
    	
 
    	
 
    	
 
    	
1601   South University Dr.
    
	
 
    	
 
    	
 
    	
 
    	
Fort   Worth, TX 76107
    
	
Zoe’s   Texas, LLC
    	
 
    	
Preston   Royal Realty Company
    	
 
    	
6025   Royal Lane, Ste. 104
    
	
 
    	
 
    	
 
    	
 
    	
Dallas,   TX 75230
    
	
Zoe’s   Texas, LLC
    	
 
    	
Town &   Country Partnership
    	
 
    	
12850   Memorial Drive
    
	
 
    	
 
    	
 
    	
 
    	
Suite 1120
    
	
 
    	
 
    	
 
    	
 
    	
Houston,   TX 77024
    
	
Zoe’s   Texas, LLC
    	
 
    	
Reg8   Sterling Ridge, LLC
    	
 
    	
6700   Woodlands Parkway
    
	
 
    	
 
    	
 
    	
 
    	
Suite 170
    
	
 
    	
 
    	
 
    	
 
    	
The   Woodlands, TX 77382
    
	
Zoe’s   Texas, LLC
    	
 
    	
SPG   ARB Associates, L.P.
    	
 
    	
The   Arboretum at Great Hills
    
	
 
    	
 
    	
 
    	
 
    	
10000   Research Boulevard, Ste. 101
    
	
 
    	
 
    	
 
    	
 
    	
Austin,   TX 78759
    
	
Zoe’s   Maryland, LLC
    	
 
    	
Annapolis   Towne Centre at Parole LLC
    	
 
    	
1901   Towne Center Blvd., Ste. 105

Annapolis,   MD 21401
    
	
Zoe’s   Maryland, LLC
    	
 
    	
Park   Potomac Building E, LLC
    	
 
    	
12505   Park Potomac Avenue
    
	
 
    	
 
    	
c/o   Foulger-Pratt Companies
    	
 
    	
Suite 115
    
	
 
    	
 
    	
 
    	
 
    	
Potomac,   MD 20854
    
	
Zoe’s   Virginia, LLC
    	
 
    	
Diamond   Potomac Town Center LLC
    	
 
    	
14901   Potomac Town Place, Ste.100
    
	
 
    	
 
    	
 
    	
 
    	
Woodbridge,   VA 22191
    
	
Zoe’s   Virginia, LLC
    	
 
    	
JDC   Kamp Washington, LLC
    	
 
    	
10955   Fairfax Blvd., Ste. 100
    
	
 
    	
 
    	
 
    	
 
    	
Fairfax,   VA 22030
    
	
Zoe’s   Virginia, LLC
    	
 
    	
The   Nature Conservancy
    	
 
    	
4245   N. Fairfax Drive
    
	
 
    	
 
    	
 
    	
 
    	
Suite 150
    
	
 
    	
 
    	
 
    	
 
    	
Arlington,   VA 22203
    


 

7











 

Schedule 5

 

Pledged Collateral

 

	
Grantor
    	
 
    	
Issuer
    	
 
    	
Class of Stock or
   other Interests
    	
 
    	
Cert.
   No.
    	
 
    	
No. of
   Shares/
   Interests
    	
 
    	
% of Class of
   Shares or
   Interests
    
	
Zoe’s Kitchen, Inc.
    	
 
    	
Zoe’s Kitchen USA LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s Arizona, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s Colorado, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s Florida, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s Kitchen Holding Company, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s Louisiana, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s Maryland, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s North Carolina, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s Oklahoma, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Restaurants, L.L.C.
    	
 
    	
Zoe’s Restaurants Nashville, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s Restaurants, L.L.C.
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s South Carolina, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA, LLC
    	
 
    	
Zoe’s Texas, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Texas, LLC
    	
 
    	
ZK Texas Holdings, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
ZK Texas Holdings, LLC
    	
 
    	
ZK Texas Management, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
ZK Texas Management, LLC
    	
 
    	
ZK Texas Beverages, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen USA LLC
    	
 
    	
Zoe’s Virginia, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    
	
Zoe’s Kitchen, Inc.
    	
 
    	
Soho Franchising, LLC
    	
 
    	
Membership Interest
    	
 
    	
1
    	
 
    	
100
    	
 
    	
100%
    


 

8











 

Schedule 6

 

Intellectual Property

 

	
 
    	
 
    	
 
    	
 
    	
Application
    	
 
    	
Registration
    	
 
    	
Registration
    	
 
    	
 
    
	
Mark
    	
 
    	
Serial No.
    	
 
    	
Date
    	
 
    	
No.
    	
 
    	
Date
    	
 
    	
Owner/Applicant
    
	
SIMPLE. TASTY. FRESH!
    	
 
    	
85142372
    	
 
    	
9/30/10
    	
 
    	
Pending
    	
 
    	
Pending
    	
 
    	
Zoe’s Kitchen USA, LLC
    
	
ZOËS KITCHEN
    	
 
    	
77799575
    	
 
    	
8/7/09
    	
 
    	
3766828
    	
 
    	
3/30/10
    	
 
    	
Zoe’s Kitchen USA, LLC
    
	
ZOËS KITCHEN
    	
 
    	
77794798
    	
 
    	
7/31/09
    	
 
    	
3766722
    	
 
    	
3/30/10
    	
 
    	
Zoe’s Kitchen USA, LLC
    
	
ZOËS KITCHEN
    	
 
    	
77566946
    	
 
    	
9/10/08
    	
 
    	
3659252
    	
 
    	
7/21/09
    	
 
    	
Zoe’s Kitchen USA, LLC
    
	
EAT SMART. EAT FRESH
    	
 
    	
76492522
    	
 
    	
2/26/03
    	
 
    	
2921237
    	
 
    	
1/25/05
    	
 
    	
Zoe’s Kitchen USA, LLC
    
	
ZOE’S KITCHEN
    	
 
    	
76151679
    	
 
    	
10/23/00
    	
 
    	
2783558
    	
 
    	
11/18/03
    	
 
    	
Zoe’s Kitchen USA, LLC
    


 

Domain Names

 

All owned by Zoe’s Kitchen USA, LLC

 

zoeskitchen.com

zoeskitchen.us

zoeskitchen.tv

zoeskitchen.net — transfer happened this week

addictivefood.com

zoeskitchencorporate.com

johncassimus.com

eatsmarteatfresh.com

babyburger.com

zoesfresh.com

zoeskitchen.org

zoeskitchen.biz

 

9