PARENT PLEDGE AGREEMENT (Indenture)
This PARENT PLEDGE AGREEMENT (as amended, supplemented or otherwise modified from time to time, this " Agreement" ), made this 19th day of December 2003, by EPL INTERMEDIATE, INC., a Delaware corporation (" Pledgor" ), in favor of THE BANK OF NEW YORK, a New York banking corporation, as collateral agent for itself, the Trustee (as defined below) and the Holders (as defined below) (collectively, the " Secured Parties" ) (the " Note Collateral Agent" ).
W I T N E S S E T H :
WHEREAS, El Pollo Loco, Inc. (the " Company" ) and The Bank of New York, as trustee (in such capacity, the " Trustee" ) for the benefit of the holders of the Note Obligations (the " Holders" ), are parties to that certain indenture, dated of even date herewith (as the same may be amended, restated, modified, supplemented, renewed, refunded, replaced or refinanced from time to time, the " Indenture" ); and
WHEREAS, the Company is a direct Subsidiary of Pledgor, and Pledgor will realize substantial direct and indirect benefits as the issuance of Notes under the Indenture; and
WHEREAS, the Note Collateral Agent has required that Pledgor execute and deliver this Agreement pledging to the Note Collateral Agent the shares of capital stock identified on Exhibit A attached hereto (the " Stock" ) owned by Pledgor in the Subsidiaries listed on Exhibit A attached hereto (the " Pledged Subsidiaries" ) (i) in order to secure the prompt and complete payment, observance and performance of all of the Note Obligations (as defined in the Indenture) and (ii) as a condition to the issuance of Notes under the Indenture;
NOW, THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree that capitalized terms used herein shall have the meanings ascribed to them in the Indenture to the extent not otherwise defined or limited herein, and further agree as follows:
1. Warranty . Pledgor hereby represents and warrants to the Note Collateral Agent that (i) except for the security interest created hereby, Pledgor owns the Stock set forth opposite its name on Exhibit A , which stock constitutes the percentage of the issued and outstanding class of stock of the Pledged Subsidiaries shown on Exhibit A , free and clear of all Liens (other than Permitted Prior Liens), (ii) such Stock is duly authorized, validly issued, fully paid and nonassessable and (iii) Pledgor has the unencumbered right to pledge such Stock.
2. Security Interest . Pledgor hereby unconditionally pledges, transfers, conveys, grants and assigns to the Note Collateral Agent, a continuing security interest in the Stock owned by it and all substitutions therefor and replacements thereof, all proceeds and products thereof and all rights relating thereto, including, without limitation, the certificates representing the Stock, all warrants, options, share appreciation rights and other rights,
contractual or otherwise, in respect thereof and of all dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in addition to, in substitution of, on account of or in exchange for any or all of the Stock, whether now owned or hereafter acquired by Pledgor (collectively, the " Pledged Collateral" ), as security for the payment and performance of all Note Obligations, including, without limitation, any fees, indemnification or reimbursement obligations owing to the Note holders, the Trustee or the Note Collateral Agent, as applicable. Pledgor has delivered to and deposited with the Priority Lien Collateral Agent, as bailee for the Note Collateral Agent pursuant to the Intercreditor Agreement, certificates representing the Stock owned by it, and undated stock powers endorsed in blank. It is the intention of the parties hereto that record and beneficial ownership of the Stock, including, without limitation, all voting, consensual and dividend rights, shall remain in Pledgor until the occurrence of an Event of Default and until the Note Collateral Agent shall notify Pledgor of the Note Collateral Agent' s exercise of voting and consensual rights to the Stock pursuant to Section 9 hereof.
3. Additional Shares . In the event that, during the term of this Agreement:
(a) any stock dividend, stock split, reclassification, readjustment, or other change is declared or made in relation to the Stock, or any new common stock is issued by the Pledged Subsidiary, all new, substituted, and additional shares, or other securities, shall be issued to Pledgor and shall be promptly delivered to the Priority Lien Collateral Agent, as bailee for the Note Collateral Agent pursuant to the Intercreditor Agreement by Pledgor, together with undated stock powers endorsed in blank by Pledgor, and shall thereupon constitute additional Stock to be held by the Priority Lien Collateral Agent, as bailee for the Note Collateral Agent pursuant to the Intercreditor Agreement under the terms of this Agreement; and
(b) any subscriptions, warrants or any other rights or options shall be issued in connection with the Stock, all new common stock or other securities acquired through such subscriptions, warrants, rights or options, together with appropriate powers by Pledgor, shall be promptly delivered by Pledgor to the Priority Lien Collateral Agent, as bailee for the Note Collateral Agent pursuant to the Intercreditor Agreement, and shall thereupon constitute Stock to be held by the Priority Lien Collateral Agent, as bailee for the Note Collateral Agent pursuant to the Intercreditor Agreement under the terms of this Agreement.
4. Event of Default . Upon the occurrence of an Event of Default, subject to the Intercreditor Agreement, the Note Collateral Agent may sell or otherwise dispose of the Pledged Collateral at a public or private sale or make other commercially reasonable disposition of the Pledged Collateral or any portion thereof after ten (10) calendar days' notice to Pledgor and any Secured Party may purchase the Pledged Collateral or any portion thereof at any public sale. Except as otherwise required under the Intercreditor Agreement, the proceeds of the public or private sale or other disposition first shall be applied to the actual and costs of the Note Collateral Agent incurred in connection with the sale, expressly including, without limitation, any costs under Section 7 hereof, and then as provided in the Indenture. In the event the proceeds of the sale or other disposition of the Pledged Collateral are insufficient to satisfy the Note Obligations, Pledgor shall remain liable for any such deficiency to the extent provided in the Security Documents.
5. Additional Rights of Secured Party . In addition to its rights and privileges under this Agreement or any other Security Document, the Note Collateral Agent shall have all the rights, powers and privileges of a secured party under the Uniform Commercial Code as in effect in any applicable jurisdiction.
6. Return of Pledged Collateral to Pledgor . Upon the later of (x) payment in full in immediately available funds of the Note Obligations (other than Unasserted Contingent Obligations), full performance by Pledgor of all covenants, undertakings and obligations under the Indenture and the other Security Documents, satisfaction in full of any other Note Obligations (other than Unasserted Contingent Obligations) and termination of the Indenture and (x) release of all security interests in the Pledged Collateral pursuant to Section 19, this Agreement and the Note Collateral Agent' s security interest hereunder shall terminate, and, to the extent then in possession thereof, the Note Collateral Agent shall return the remaining Pledged Collateral together with the executed stock powers and all rights received by the Note Collateral Agent as a result of its possessory interest in the Pledged Collateral to Pledgors. For purposes of this Agreement, " Unasserted Contingent Obligations" means, at any time, Note Obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities (except (i) the principal of and interest and premium (if any) on, and fees relating to, any Indebtedness, and (ii) any such contingent claims or demands as to which the Note Collateral Agent or any holder of Note Obligations has then notified Pledgor or the Company) in respect of which no claim or demand for payment has been made at such time.
7. Disposition of Stock by the Note Collateral Agent . The Stock is not registered or qualified under the various Federal or state securities laws of the United States and