Collateral Repurchase Agreement - Krispy Kreme Doughnut Corp., Robert J. Simmons, Simac Inc. and First National Bank of Ohio
COLLATERAL REPURCHASE AGREEMENT
THIS COLLATERAL REPURCHASE AGREEMENT (the "Agreement") is made this the
7th day of July, 1995 by and among KRISPY KREME DOUGHNUT CORPORATION, a North
Carolina corporation, with its principal office and place of business at 1814
Ivy Avenue, Winston-Salem, NC 27105 ("Krispy Kreme"); ROBERT J. SIMMONS (the
"Associate") of Union Town, OH, whose business address is 354 South Maple
Street, Akron, OH 44302; SIMAC, INC. (the "Borrower"), an Ohio corporation,
whose address is the same as that of the Associate; and FIRST NATIONAL BANK OF
OHIO (the "Bank") whose address is 106 South Main Street, Akron, Ohio 44308.
RECITALS:
1. Krispy Kreme and the Associate entered into an Associate's License
Agreement and Addendum thereto dated July 11, 1993( the "License Agreement") for
Krispy Kreme Doughnut Shops in Akron and Cuyahoga Falls, Ohio;
2. In connection with the License Agreement, the Associate purchased
from Krispy Kreme the retail furniture and fixtures, machinery, equipment and
signage listed in Schedule A attached hereto (the "Equipment") for a new
doughnut store at 6907 Pearl Road, Middleburg Heights, OH;
3. The Bank has loaned to the Borrower $340,000 secured by a security
interest in the Equipment (the "Bank Loan") in the event of the Borrower's
Default on the Bank Loan; and
4. Therefore, the parties desire to enter into this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties do hereby agree as follows:
A. Default. In the event of a Default by the Borrower on the Bank Loan,
the Bank shall notify Krispy Kreme and the Borrower thereof in writing (the
"Notification") within thirty (30) days of the occurrence of the Default, in
which case Krispy Kreme shall have the first option to purchase, and if
exercised shall purchase the Equipment within forty (40) days from receipt of
the Notification. In such event, the Associate shall deliver to Krispy Kreme,
and Krispy Kreme shall repurchase from Associate, all of the Equipment at the
price which shall be the lessor of
(i) the Balance Due under the Bank Loan or
(ii) a purchase price of $340,000 through the date of June 27, 1995
and thereafter at a purchase price equal to the difference
between
(a) $340,000 (which is the cost thereof) less an amount
determined as follows:
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(b) $5,666.67 on July 27, 1995 and an additional
$5,667.67 on the 27th of each month thereafter
through June 27, 2000.
The effective date of such Notification shall be the date as of which
such purchase price is determined. At the closing of such purchase, Krispy Kreme
shall pay to the Bank such pur chase price in United States dollars and in
immediately available funds. At such closing, the Bank shall transfer title to
and release its security interest in the repurchased Equipment.
In such event, Krispy Kreme, at its sole discretion, may terminate the
License Agreement.
B. The Closing. The purchase of the Equipment shall take place within
40 days of such Notification at the offices of the Bank at 106 South Main
Street, Akron, Ohio 44308. Any surplus in such purchase price shall be remitted
to or for the account of the Borrower.
C. Rights of Krispy Kreme. Nothing herein shall prevent or restrict
Krispy Kreme from exercising any of its rights and privileges including, without
limitation, the right of amendment or termination, under and pursuant to the
License Agreement provided that, in such an event, Krispy Kreme shall either
(i) remain obligated to repurchase the Equipment as if the License
Agreement had not been so amended or terminated or its rights
and privileges had not been exercised thereunder; or
(ii) repurchase the Equipment and pay to the Bank the lesser of the
purchase price therefor or balance due on the Bank Loans.
D. Definitions. As used herein, the terms or phrases set forth below
are defined as follows:
(i) "Default" has the same meaning as it does in documentation
pertaining to the Bank Loan
(ii) "Balance Due under the Bank Loan" shall mean unpaid principal
and interest and fees and expenses due under the documentation
pertaining to the Bank Loan.
E. Term. The term of this Agreement shall be a period commencing on the
date hereof and expiring June 27, 2000.
F. Miscellaneous. The parties hereby acknowledge and agree that this
Agreement shall be governed by and construed in accordance with the laws of the
State of North Carolina. This Agreement may not be changed, amended or modified
orally or by implication but only by written agreement signed by each of the
parties hereto and no obligation of Krispy Kreme or the Borrower shall be
released, waived, or modified by the Bank or any officer or agent of the Bank
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except by a writing signed by duly authorized officer or agent of the Bank. Any
and all notices or demands permitted or required to be made under this Agreement
shall be made in writing, signed by the party giving the notice or demand, and
shall be delivered personally or by a nationally recognized courier service or
sent by registered or certified United States mail, postage prepaid, to the
other parties at the addresses set forth above or at such other address as may
have been designated in writing. The effective date of such notice or demand
shall be the date of delivery or the date on which notice or demand is deposited
in the mail. This Agreement shall be binding upon and shall insure to the
benefit of the parties hereto and their respective legal representatives,
heirs, successors and assigns.
IN WITNESS WHEREOF, Krispy Kreme, the Bank, and Simac, Inc. have caused
this Agreement to be executed on their behalf and the Associate has hereunto set
his hand and seal as of the day and year set forth above.
KRISPY KREME DOUGHNUT CORPORATION
by: /s/ John L. Barber
John L. Barber
General Counsel and Secretary
/s/ Robert J. Simmons (SEAL)
Robert J. Simmons
SIMAC, INC.
by: /s/ Robert J. Simmons
Robert J. Simmons, President
FIRST NATIONAL BANK OF OHIO
by: /s/ Nicholas V. Browning
Nicholas V. Browning
Vice President
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KRISPY KREME DOUGHNUT CORPORATION
BOB SIMMONS - COLLATERAL BUY-BACK ON EQUIPMENT
AMORTIZATION SCHEDULE
Reference Date Reducing Amount Balance
--------- ---- --------------- -------
Beginning Balance $340,000
1 27-Jul-95 5,667.67 $334,332
2 27-Aug-95 5,667.67 328,665
3 27-Sep-95 5,667.67 322,997
4 27-Oct-95 5,667.67 317,329
5 27-Nov-95 5,667.67 311,662
6 27-Dec-95 5,667.67 305,994
7 27-Jan-96 5,667.67 300,326
8 27-Feb-96 5,667.67 294,659
9 27-Mar-96 5,667.67 288,991
10 27-Apr-96 5,667.67 283,323
11 27-May-96 5,667.67 277,656
12 27-Jun-96 5,667.67 271,988
13 27-Jul-96 5,667.67 266,320
14 27-Aug-96 5,667.67 260,653
15 27-Sep-96 5,667.67 254,985
16 27-Oct-96 5,667.67 249,317
17 27-Nov-96 5,667.67 243,650
18 27-Dec-96 5,667.67 237,982
19 27-Jan-97 5,667.67 232,314
20 27-Feb-97 5,667.67 226,647
21 27-Mar-97 5,667.67 220,979
22 27-Apr-97 5,667.67 215,311
23 27-May-97 5,667.67 209,644
24 27-Jun-97 5,667.67 203,976
25 27-Jul-97 5,667.67 198,308
26 27-Aug-97 5,667.67 192,641
27 27-Sep-97 5,667.67 186,973
28 27-Oct-97 5,667.67 181,305
29 27-Nov-97 5,667.67 175,638
30 27-Dec-97 5,667.67 169,970
31 27-Jan-98 5,667.67 164,302
32 27-Feb-98 5,667.67 158,635
33 27-Mar-98 5,667.67 152,967
34 27-Apr-98 5,667.67 147,299
35 27-May-98 5,667.67 141,632
36 27-Jun-98 5,667.67 135,964
37 27-Jul-98 5,667.67 130,296
38 27-Aug-98 5,667.67 124,629
39 27-Sep-98 5,667.67 118,961
40 27-Oct-98 5,667.67 113,293
41 27-Nov-98 5,667.67 107,626
42 27-Dec-98 5,667.67 101,958
43 27-Jan-99 5,667.67 96,290
44 27-Feb-99 5,667.67 90,623
45 27-Mar-99 5,667.67 84,955
46 27-Apr-99 5,667.67 79,287
47 27-May-99 5,667.67 73,620
48 27-Jun-99 5,667.67 67,952
49 27-Jul-99 5,667.67 62,284
50 27-Aug-99 5,667.67 56,616
51 27-Sep-99 5,667.67 50,949
52 27-Oct-99 5,667.67 45,281
53 27-Nov-99 5,667.67 39,613
54 27-Dec-99 5,667.67 33,946
55 27-Jan-00 5,667.67 28,278
56 27-Feb-00 5,667.67 22,610
57 27-Mar-00 5,667.67 16,943
58 27-Apr-00 5,667.67 11,275
59 27-May-00 5,667.67 5,607
60 27-Jun-00 5,667.67 (60)
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