AMENDED AND RESTATED INTERCREDITOR AND SUBORDINATION AGREEMENT
Exhibit
4.17
Amended
and Restated Intercreditor and Subordination Agreement
AMENDED
AND RESTATED INTERCREDITOR
AND
SUBORDINATION AGREEMENT
AMENDED
AND RESTATED INTERCREDITOR AND SUBORDINATION AGREEMENT, dated as of
November 17, 2006, (this “Agreement”), by and between JPMORGAN
CHASE BANK, N.A., in its capacity as administrative agent for itself and
the
other lenders party to the Integrated Credit Agreement (as defined below)
(in
such capacity, the “Integrated Agent”), and JPMORGAN CHASE BANK, N.A., in
its capacity as administrative agent for itself and the other lenders party
to
the Americana Credit Agreement (as defined below) (in such capacity, the
“Americana Agent”).
INTRODUCTORY
STATEMENT
A. All
capitalized terms used herein and not otherwise defined above or in this
Introductory Statement are used as defined in Section 1.
B. Integrated
Brands Inc., Eskimo Pie Frozen Distribution, Inc., Eskimo Pie Corporation
and
Coolbrands Dairy, Inc., as Borrowers (the “Integrated Borrowers”), the
Loan Guarantors party thereto (the “Integrated Loan Guarantors” and
together with the Integrated Borrowers, the “Integrated Loan Parties”),
the lenders party thereto (the “Integrated Lenders”) and the Integrated
Agent entered into that certain Credit Agreement, dated as of April 21, 2006
(as
amended, supplemented or otherwise modified from time to time, the
“Integrated Credit Agreement”).
C. Americana
Foods Limited Partnership, as Borrower (the “Americana Borrower”), the
lenders party thereto (the “Americana Lenders”) and the Americana Agent
entered into that certain Credit Agreement, dated as of April 21, 2006 (as
amended, supplemented or otherwise modified from time to time, the “Americana
Credit Agreement” and together with the Integrated Credit Agreement, the
“Credit Agreements”).
D. To
secure all present and future obligations of the Integrated Borrowers under
or
in connection with the Integrated Credit Agreement and the other Integrated
Loan
Documents, pursuant to the Integrated Collateral Documents the Integrated
Loan
Parties have granted and hereafter may grant to the Integrated Agent Liens
in
substantially all of such Integrated Loan Parties’ assets, real and personal,
tangible and intangible, now existing or hereafter arising or acquired and
the
proceeds thereof as more particularly set forth in their respective Integrated
Collateral Documents (the “Collateral”).
E. The
Integrated Loan Parties (the “Americana Guarantors”) have each executed a
Guarantee (collectively, the “Americana Guarantees”) in favor of the
Americana Agent pursuant to which the Americana Guarantors have guaranteed
the
timely payment and performance of the Secured Obligations (as defined in
the
Americana Credit Agreement).
F. To
secure all present and future obligations of the Americana Guarantors under
or
in connection with the Americana Guarantees, the Americana Guarantors have
granted and hereafter may grant to the Americana Agent Liens in the Collateral
owned by them.
G. In
order to confirm the relative priority of their respective Liens in the
Collateral and establish certain other matters relating thereto, the Integrated
Agent and the Americana Agent entered into that certain Intercreditor Agreement,
dated as of April 21, 2006, which is being amended and restated as this
Agreement.
H. Each
of the Integrated Loan Parties party thereto, the Integrated Lenders parties
thereto and the Integrated Agent, entered into that certain Forbearance,
Waiver
and First Amendment to Credit Agreement, dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the
“Forbearance and First Amendment”).
I. It
is a condition precedent to the effectiveness of the Forbearance and First
Amendment that the parties hereto shall have executed and delivered this
Agreement.
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Accordingly,
in consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Integrated
Agent on behalf of the Integrated Lenders and the Americana Agent on behalf
of
the Americana Lenders hereby agree as follows:
1. Defined
Terms.
(a) As
used in this Agreement, the following terms shall have the following
meanings:
“Alternate
Forum” has the meaning given to such term in Section 16 hereof.
“Americana
Collateral Documents” means the “Collateral Documents,” as defined in the
Americana Credit Agreement.
“Americana
Loan Documents” means the “Loan Documents,” as defined in the Americana
Credit Agreement.
“Americana
Obligations” means all obligations of the Americana Guarantors arising
under, with respect to or in connection with any Americana
Guarantee.
“Americana
Security Agreement” means that certain Pledge and Security Agreement, dated
as of April 21, 2006, among the Americana Guarantors and the Americana Agent,
for the benefit of the Americana Agent and the Americana Lenders, and any
other
pledge or security agreement entered into, after the date of this Agreement
by
any other Integrated Loan Party (as required by the Americana Credit Agreement
or any other Americana Loan Document), as the same may be amended, restated
or
otherwise modified from time to time.
“Avoidance
Action” has the meaning given to such term in Section 5 hereof.
“Bankruptcy
Code” means The Bankruptcy Reform Act of 1978, as heretofore and hereafter
amended, and codified as 11 U.S.C. Section 101 etseq.
“Business
Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain
closed.
“Holdings”
means CoolBrands International Inc., a Canadian federal
corporation.
“Indebtedness”
means any and all obligations and liabilities, principal, premiums, interest,
fees, reimbursement obligations and indemnities, whether now or hereafter
existing, absolute or contingent, secured or unsecured, due or not due, joint
or
several, and however arising (including interest, costs, fees and expenses
(including professional fees) and any other amounts accruing after maturity
and
interest and any other amounts accruing after the filing of any petition
in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding regardless of whether such interest, costs, fees or expenses,
including professional fees, is allowable, payable or accruable to the holders
of such indebtedness in any such bankruptcy case, proceeding or other
action).
“Integrated
Collateral Documents” means the “Collateral Documents,” as defined in the
Integrated Credit Agreement.
“Integrated
Credit Termination Date” shall mean the date upon which all of the
Integrated Obligations have been indefeasibly paid in full in cash, any
commitment to lend under the Integrated Credit Agreement shall have been
terminated in its entirety, and all letters of credit issued under or pursuant
to the Integrated Credit Agreement shall have expired or been terminated,
cancelled, surrendered or cash collateralized in accordance with the terms
of
the Integrated Credit Agreement.
“Integrated
Loan Documents” means the “Loan Documents,” as defined in the Integrated
Credit Agreement.
“Integrated
Obligations” means the “Secured Obligations,” as defined in the Integrated
Credit Agreement.
“Integrated
Security Agreement” means the “Security Agreement,” as defined in the
Integrated Credit Agreement.
“Liens”
has the meaning given to such term in the Integrated Credit
Agreement.
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“Loan
Guarantors” has the meaning given to such term in the Integrated Credit
Agreement.
“Obligors”
means, collectively, the Integrated Borrowers, Holdings and the other Integrated
Loan Parties.
“Person”
shall mean any natural person, corporation, division of a corporation,
partnership, limited liability partnership, limited liability company, trust,
joint venture, association, company, estate, unincorporated organization
or
government or any agency or political subdivision thereof.
“Uniform
Commercial Code” means the Uniform Commercial Code as in effect from time to
time in the applicable jurisdiction.
(b) Rules
of Construction. All references to “Sections,” “Exhibits,”
“Schedules” and “paragraphs” shall be to Sections, Exhibits, Schedules and
paragraphs, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms specified in this paragraph 1 may, unless
the context otherwise requires, be used in the singular or the plural depending
on the reference. All references to statutes and related regulations
shall include, unless otherwise specifically provided herein, any amendments
of
same and any successor statutes and regulations, as applicable. The
words “include,” “includes” and “including” shall be deemed to be followed by
the words “without limitation.”
2. Subordination.
(a) Payment. (i) The
Americana Agent and the Americana Lenders hereby irrevocably agree that any
and
all Americana Obligations shall be in all respects subordinate, junior and
inferior in right of payment and collection to the prior indefeasible payment
in
full in cash of any and all Integrated Obligations. In the event of any
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
readjustment of indebtedness, composition, reorganization (whether or not
pursuant to bankruptcy laws), sale of all or substantially all of the assets,
dissolution, winding up, liquidation, or any other marshalling of the assets
and
liabilities of any of the Obligors while any of the Integrated Obligations
remain outstanding, any payment or distribution of assets of any of the Obligors
of any kind or character, whether in cash, securities or other property,
which
would otherwise be payable to or deliverable to the Americana Agent or the
Americana Lenders upon or with respect to any or all of the Americana
Obligations or which would constitute the Collateral or the proceeds of the
Collateral shall be paid or delivered directly to the Integrated Agent for
application to the Integrated Obligations in accordance with this Agreement
until the Integrated Credit Termination Date has occurred. The
Integrated Lenders shall have the right to enforce, collect and receive every
such payment or distribution and give acquittance therefor.
(ii) The
Americana Agent and the Americana Lenders hereby irrevocably agree that no
payment of or on account of the Americana Obligations shall be made, including
by means of setoff, offset, recoupment or by any other means, whether or
not
there exists a Default or an Event of Default under and as defined in the
Integrated Credit Agreement, or any guaranty therefor enforced, unless and
until
the Integrated Credit Termination Date has occurred. Until the Integrated
Credit
Termination Date, all cash, cash equivalents or other property owned, leased
or
held by or on behalf of the Obligors shall be subject to this Agreement and
the
Americana Lenders hereby agree that their right to receive any payment or
distribution therefrom shall be expressly subordinate and junior in right
of
payment to the indefeasible payment in cash in full of the Integrated
Obligations. The Americana Agent and the Americana Lenders hereby
irrevocably further agree not to demand, receive or accept on account of
the
Americana Obligations any payment prior to the Integrated Credit Termination
Date.
(b) Lien. Notwithstanding
anything to the contrary contained in any Integrated Loan Document or Americana
Loan Document and irrespective of (i) the time, order or method of attachment
or
perfection of the security interests created by any Integrated Collateral
Document or Americana Collateral Document, (ii) the time or order of filing
or
recording of financing statements or other documents filed or recorded to
perfect security interests in any Collateral, (iii) anything contained in
any
filing or agreement to which the Integrated Agent, the Americana Agent, any
Integrated Lender or any Americana Lender may now or hereafter be a party,
(iv)
the rules for determining priority under the Uniform Commercial Code or any
other law governing the relative priority of secured creditors, (v) whether
the
security interest or lien of the Integrated Agent on behalf of the Integrated
Lenders has been perfected, or (vi) the validity, enforceability or avoidability
of any security interest or lien of the Integrated Agent on the Collateral,
any
security interest of the Americana Agent on behalf of the Americana Lenders
in
any of the Collateral is and shall be subordinate, junior and inferior in
priority, operation and effect to any security interest or lien on such
Collateral of the Integrated Agent on behalf of the Integrated
Lenders.
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Until
the Integrated Credit Termination Date, the Americana Agent and the Americana
Lenders agree that they shall not (i) except as permitted in paragraph 5
of this
Agreement, take any action or enforce any of their rights under the Americana
Credit Agreement, the Americana Collateral Documents or any other Americana
Loan
Documents in respect of the Americana Obligations or the Collateral; (ii)
take
any action or enforce any of their rights in respect of the Collateral,
including any action of foreclosure; (iii) contest, protest or object to
any
foreclosure proceeding or action brought by the Integrated Agent or any
Integrated Lender or any other exercise by the Integrated Agent or any
Integrated Lender of any rights or remedies under any Integrated Loan Document;
(iv) take any action to enforce any of their rights in respect of any other
property in or on which the Obligors have granted or may hereinafter grant
a
security interest or lien to secure the payment of the Americana Obligations;
or
(v) amend, modify or supplement those provisions of the Americana Credit
Agreement relating to the Collateral or which would affect, impact or alter
the
right to payment thereunder to the extent that any such amendment, modification
or supplement is adverse to the interests of the Integrated Agent or the
Integrated Lenders; provided that the Americana Agent and the Americana
Lenders may file any proof of claim or, subject to the restrictions and
limitations placed upon the Americana Agent and the Americana Lenders as
set
forth in this Agreement, take any action necessary to perfect, protect and
preserve their interests under the Americana Credit Agreement or the Americana
Loan Documents.
(c) Exercise
of Rights and Remedies. In exercising rights and remedies with
respect to the Collateral, the Integrated Agent and the Integrated Lenders
may
enforce the provisions of the Integrated Collateral Documents and exercise
remedies thereunder and under any other Integrated Loan Documents, all in
such
order and in such manner as they may determine in the exercise of their sole
business judgment. Such exercise and enforcement shall include the
rights to sell or otherwise dispose of the Collateral, to incur expenses
in
connection with such sale or disposition and to exercise all the rights and
remedies of a secured lender under the Uniform Commercial Code.
(d) Release
of Lien. The Integrated Agent’s and the Integrated Lenders’
rights with respect to the Collateral include the right to release any
or all of
the Collateral from the Lien of any Integrated Collateral Document or Americana
Collateral Document relating to any of the Obligors during the pendency of
any
Event of Default and/or the exercise of any of the Integrated Agent or the
Integrated Lenders’ remedies, including in connection with the sale or other
disposition of such Collateral, notwithstanding that the net proceeds of
any
such sale may not be used to permanently prepay any Integrated Obligations
or
Americana Obligations. If the Integrated Agent or the Integrated
Lenders shall determine that the release of the Lien of any Americana Collateral
Document relating to any of the Obligors on such Collateral is necessary
or
advisable, the Americana Agent or the Americana Lenders, as applicable, shall
execute such release documents and instruments and shall take such further
actions as the Integrated Agent or the Integrated Lenders shall
request. Each Americana Lender hereby irrevocably constitutes and
appoints the Integrated Agent and any officer or agent of the Integrated
Agent,
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 Americana
Lender and in the name of such Americana Lender or in the Integrated Agent’s own
name, from time to time in the Integrated Agent’s discretion, for the purpose of
carrying out the terms of this paragraph, to take any and all appropriate
action
and to execute any and all documents and instruments which may be necessary
or
desirable to accomplish the purposes of this paragraph, including any financing
statements, endorsements, assignments or other instruments of transfer or
release. Each Americana Lender hereby ratifies all that said
attorneys shall lawfully do or cause to be done pursuant to the power of
attorney granted in this paragraph.
(e) Notwithstanding
anything to the contrary, the obligations owing to the Americana Agent (i)
under
paragraph 6 of the Americana Guarantee executed by the Americana Guarantors
(other than Holdings); and (ii) under paragraph 20 of the Americana Guarantee
executed by Holdings shall be pari passu in all respects with the
Integrated Obligations to the extent that (x) JPMorgan Chase, N.A. remains
the
Administrative Agent under the Americana Credit Agreement and (y) JPMorgan
Chase, N.A. has asserted a claim under Section 6 or 20 of the above-referenced
Americana Guarantees. JPMorgan Chase, N.A., in its capacity as
Americana Agent, shall be authorized to realize and receive payment on such
obligations at the same time and on the basis that it receives payment in
respect of any Integrated Obligation. The rights provided to JPMorgan
Chase, N.A. hereunder, in its capacity as Americana Agent, are solely in
favor
of JPMorgan Chase, N.A. and are not assignable to any third party. No
party other than JPMorgan Chase, N.A. shall receive any benefit from these
provisions.
3. Turnover
of Payments. Should any payment, distribution or security or the
proceeds thereof (whether in cash, property or securities) be received by
the
Americana Agent or the Americana Lenders on or after
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the
date of this Agreement and prior to the Integrated Credit Termination Date
on
account of or with respect to any Americana Obligations, the Americana Agent
or
the Americana Lenders shall forthwith deliver the same to the Integrated
Agent
for distribution to the Integrated Lenders, in the form received (together
with
any endorsement or assignment by the Americana Agent or the Americana Lenders
where required by the Integrated Agent), for application on account of the
Integrated Obligations and, until so delivered, the same shall be held in
trust
by the Americana Agent or the Americana Lenders, as trustee for the Integrated
Agent, for the benefit of the Integrated Lenders.
4. Moratorium
on Exercise of Rights and Remedies.
(a) The
Americana Agent and the Americana Lenders agree that the Integrated Agent
and
the Integrated Lenders shall have the sole and exclusive right to enforce
rights
and exercise remedies with respect to the Collateral. Accordingly,
notwithstanding any other provisions hereof or of the Americana Credit Agreement
or the other Americana Loan Documents to the contrary, the Americana Agent
and
the Americana Lenders shall not exercise any remedies or rights whatsoever
with
respect to the Americana Obligations or the Collateral under the Americana
Loan
Documents or otherwise, including the right to accelerate or demand payment
of
or xxx for arrearage with respect to the Americana Obligations or commence
or
join with any other creditor in commencing any proceeding or action for
liquidation, dissolution, receivership, insolvency, reorganization or bankruptcy
of any Obligor, until the Integrated Credit Termination Date.
(b) Nothing
in this Agreement shall impose any duty, responsibility or obligation upon
the
Integrated Agent or the Integrated Lenders with respect to the Collateral,
the
Obligors, or with respect to amounts owed to the Americana Agent and the
Americana Lenders. All rights and interests of the Integrated Agent
and the Integrated Lenders, and all agreements and obligations of the Americana
Agent and the Americana Lenders, under this Agreement shall remain in full
force
and effect irrespective of any circumstance which might constitute a defense
available to, or a discharge of the Americana Agent, the Americana Lenders
or
the Obligors in respect of the Integrated Obligations or in respect of this
Agreement.
(c) The
Americana Agent and the Americana Lenders agree and acknowledge that, until
the
Integrated Credit Termination Date has occurred, the Americana Agent and
the
Americana Lenders shall not exercise any claims or rights by way of subrogation
or otherwise as a result of the payment of any amounts to the Integrated
Agent
or the Integrated Lenders on account of the Integrated
Obligations. This Agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any lien or security interest
asserted by the Integrated Agent or the Integrated Lenders is avoided or
payment
on or in respect of the Integrated Obligations shall be rescinded or must
otherwise be returned by the Integrated Agent or the Integrated Lenders upon
the
insolvency, bankruptcy, reorganization of the Obligors or otherwise, all
as
though such payment had not been made.
5. Agreements
Regarding Insolvency.
(a) The
Americana Agent and the Americana Lenders hereby irrevocably consent and
agree
to (i) the granting to the Integrated Agent or the Integrated Lenders of
any
replacement liens or other adequate protection to the Integrated Agent or
the
Integrated Lenders pursuant to 11 U.S.C. §§ 105, 361, 362, 363, 364, 365,
506 or 553; and (ii) any conditions, restrictions or limitations requested
by the Integrated Agent or the Integrated Lenders with respect to the use
by the
Obligors of the Integrated Agent’s or the Integrated Lenders’ Collateral,
including cash collateral. Until the Integrated Credit Termination
Date, the Americana Agent and the Americana Lenders agree that they will
not
extend credit or grant any financial accommodation to the Obligors or provide
or
participate in any debtor-in-possession financing or any exit financing under
a
plan of reorganization for the Obligors except (a) to the extent such financing
is junior to the Integrated Obligations and secured by Liens junior to the
Liens
securing the Integrated Obligations or (b) as part of a debtor-in-possession
or
exit financing arranged by the Integrated Agent. To the extent that
the Americana Agent or the Americana Lenders have or acquire any rights under
11
U.S.C. §§ 361, 363, 364 or 553 with respect to the Collateral, the Americana
Agent and the Americana Lenders hereby agree not to assert such rights without
the prior written consent of the Integrated Agent; provided, that if
requested by the Integrated Agent, the Americana Agent and the Americana
Lenders
shall seek to exercise such rights in the manner requested by the Integrated
Agent. Further, the Americana Agent and the Americana
Lenders agree that notwithstanding anything in 11 U.S.C. § 506 to the
contrary, the Americana Agent’s and the Americana Lenders’ rights or entitlement
to receive any payments in respect of the Americana Loan Documents
in
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connection
with the Americana Obligations and the Collateral shall in all respects be
junior and subordinate to the Integrated Agent’s and the Integrated Lenders’
right to receive interest, costs, fees or expenses, including professional
fees,
even to the extent the Integrated Agent or the Integrated Lenders are deemed
unsecured. In addition, the Americana Agent and the Americana Lenders
each irrevocably agrees that it shall not vote in favor of any plan
of reorganization or support or promote any such plan proposed under
11 U.S.C. § 1129 by, for or on behalf of the Obligors unless the
Integrated Agent and the Integrated Lenders vote in favor of such plan;
provided, however, that in any bankruptcy case filed by or against
the Obligors, the Americana Agent or the Americana Lenders may appear as
a
party-in-interest pursuant to 11 U.S.C. § 1109 for all purposes subject to
the restrictions and limitations contained herein.
(b) If
at any time any liens, security interests, guaranty, undertaking or promise
given by any of the Obligors to the Americana Agent or the Americana Lenders
is
challenged, avoided, voided, disallowed, recharacterized or subordinated
in
whole or in part (collectively, an “Avoidance Action”), the Americana
Lenders and the Obligors each hereby acknowledge and agree that such Avoidance
Action or its outcome shall not impair, affect, avoid, or limit the Integrated
Obligations, the Integrated Agent’s or the Integrated Lenders’ liens, security
interests or rights in and to the Collateral, or their respective rights
or
interests in, to or under this Agreement, the Integrated Credit Agreement
or the
other Integrated Loan Documents.
(c) The
provisions of this Agreement shall continue in full force and effect
notwithstanding any commencement of a proceeding under the Bankruptcy Code,
receivership, insolvency, assignment for the benefit of creditors, readjustment
of indebtedness, composition, reorganization (whether or not pursuant to
bankruptcy laws), sale of all or substantially all of the assets, dissolution,
winding up, liquidation, or any other marshalling of the assets and liabilities
of any of the Obligors.
6. Assignment
of Americana Obligations, etc. The Americana Agent and each
Americana Lender are prohibited from assigning or otherwise transferring
the
Americana Obligations, the Americana Loan Documents or their rights and claims
under the Americana Loan Documents, except to an assignee or other transferee
that has expressly acknowledged and assumed in writing all of the obligations
of
the Americana Lenders under this Agreement.
7. Continuing
Agreement; Modification of Terms of Integrated Obligations.
(a) This
Agreement shall constitute a continuing agreement of subordination, and the
Integrated Lenders may, without notice to the Americana Agent and the Americana
Lenders, lend additional monies, extend further credit and make other financial
accommodations to or for the account of the Obligors in reliance hereon or
sell,
assign or convey all or a portion of the Integrated Obligations and/or interest
in the Collateral securing such Integrated Obligations. The Americana
Agent and the Americana Lenders, in advance, hereby irrevocably waive, release
and disclaim any rights to direct, compel, request or assert claims against
the
Integrated Agent or the Integrated Lenders to xxxxxxxx, assemble, arrange,
sell,
use or dispose of the Collateral or any other property of the Obligors in
any
order, manner or fashion.
(b) The
Integrated Agent and the Integrated Lenders, at any time and from time to
time,
may enter into such agreement or agreements with the Obligors, as the Integrated
Agent and the Integrated Lenders may deem proper, granting additional collateral
to the Integrated Agent, extending the time of payment or renewing or otherwise
altering in any manner the terms of all or any of the Integrated Obligations
or
affecting in any manner any security underlying any or all of the Integrated
Obligations, or may exchange, sell or surrender or otherwise deal with any
of
the Collateral therefor, or may release any balance of funds of the Obligors
with the Integrated Agent or the Integrated Lenders without notice to the
Americana Agent and the Americana Lenders and without in any way impairing
or
affecting this Agreement.
(c) Any
amendment, supplement, modification, consent or waiver in respect of the
observance or performance of the covenants set forth in any Integrated Loan
Document or any Event of Default (as defined in the Integrated Credit Agreement)
thereunder shall be deemed to be an amendment, supplement, modification,
consent
or waiver in respect of the observance or performance of the covenants set
forth
in the Americana Loan Documents relating to the Americana Obligations or
any
breach or default thereunder arising from the same facts and shall be deemed
to
be binding on the Americana Agent and the Americana Lenders.
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(d) No
right of any present or future holders of any Integrated Obligations to enforce
any of the provisions of this Agreement shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Integrated Agent or the Integrated Lenders or any act or failure to act,
in good
faith, by any such holder, or by any noncompliance by the Obligors with the
terms of the Integrated Loan Documents, or the Americana Loan Documents relating
to the Americana Obligations, regardless of any knowledge thereof which any
such
holder may have or be otherwise charged with. The holders of the
Integrated Obligations may extend, renew, modify, or amend the terms of the
Integrated Obligations or any security therefor and release, sell or exchange
such security or otherwise deal freely with the Obligors, all without affecting
the liabilities and obligations of the Americana Agent and the Americana
Lenders
to the holders of the Integrated Obligations.
8. No
Modification of Americana Loan Documents. No rights, remedies,
claims or privileges created by or in favor of the Americana Agent and the
Americana Lenders arising under, with respect to or in connection with the
Americana Loan Documents or any documents executed in connection therewith
may
be expanded or enlarged in any respect unless they are not adverse to or
detrimental to interests of the Integrated Agent and the Integrated Lenders,
and
the Americana Loan Documents shall not be amended, modified or changed in
any
respect, in each case, without the express prior written consent of the
Integrated Agent if such amendment, modification or change is adverse to
or
detrimental to the interests of the Integrated Agent and the Integrated
Lenders.
9. Waiver
and Amendment. The Integrated Agent’s or the Integrated Lenders’
delay in or failure to exercise any right or remedy shall not be deemed
to
modify, alter, waive or amend any obligation of the Americana Agent and the
Americana Lenders under this Agreement. The terms of this agreement
may be waived, amended, supplemented or modified only by a written instrument
executed by the Integrated Borrowers, the other Obligors, the Integrated
Agent
and the Americana Agent.
10. Successors
and Assigns. This Agreement shall inure to the benefit of the
Integrated Agent’s or the Integrated Lenders’ successors and assigns and shall
bind the successors and assigns of the Americana Agent and the Americana
Lenders.
11. Application
of Payments and Proceeds of Collateral. Until the occurrence of
the Integrated Credit Termination Date, all payments received by the Integrated
Agent and the Integrated Lenders, or any of them, from the Obligors shall
be
applied as provided in the Integrated Credit Agreement. All proceeds
of the Collateral received by the Integrated Agent on behalf of the Integrated
Lenders shall be applied as provided in the Integrated Credit
Agreement. Upon the indefeasible payment in full in cash of all of
the Integrated Obligations and the occurrence of the Integrated Credit
Termination Date, the Integrated Agent and the Integrated Lenders shall turn
over to the Americana Agent all Collateral remaining in their
possession.
12. Conditions
Precedent. It shall be a condition precedent to the effectiveness
of this Agreement that the Obligors execute and deliver the Forbearance and
First Amendment and consent to this Agreement.
13. Governing
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York.
14. Notices. Notices
and other communications provided for herein shall be in writing and shall
be
delivered by hand, facsimile or mailed by overnight delivery as
follows:
(a) if
to the Integrated Agent:
Chase
Business Credit
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxx
X. Xxxxxxxxxx
Fax: (000)
000-0000
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(b) if
to the Americana Agent:
Chase
Business Credit
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxx
X. Xxxxxxxxxx
Fax: (000)
000-0000
All
notices and other communications given to any party hereto in accordance
with
the provisions of this Agreement shall be deemed to have been given (x) on
the
third Business Day after the date when sent, postage prepaid, return receipt
requested, if by certified or registered mail, (y) when delivered, if delivered
by hand or overnight courier service, or (z) when receipt is acknowledged,
if by
facsimile. The names to be used for notices to any party may be
changed at any time by such party by giving written notice of any change
thereto
to each other party entitled to receive notices hereunder.
15. Further
Assurances. The Americana Agent and the Americana Lenders agree
to execute, acknowledge and deliver to the Integrated Agent, upon its request,
any further instruments as may be reasonably requested by the Integrated
Agent
to carry out the intention of or facilitate the performance of this
Agreement. In addition, whenever in this Agreement a provision refers
to the Americana Agent and the Americana Lenders receiving no payment or
taking
no remedial action with respect to the Americana Obligations or from the
Collateral or proceeds of the Collateral prior to Integrated Credit Termination
Date, the parties intend that upon the Integrated Credit Termination Date,
the
Americana Agent and the Americana Lenders may receive payments or take remedial
action in respect of the Americana Obligations or from the Collateral or
proceeds of the Collateral, subject to the requirement that if any payment
received in respect of the Integrated Obligations must subsequently be
disgorged, any payments received in respect of the Americana Obligations
or from
the Collateral or proceeds of the Collateral will remain subject to the
requirements of this Agreement that they be paid over to the Integrated
Obligations to the extent of the payments disgorged and any remedial action
taken in respect of the Americana Obligations or from the Collateral or proceeds
of the Collateral shall be discontinued and, to the extent possible, shall
be
rescinded until the Integrated Obligations shall again have been paid in
full.
16. EACH
OF THE AMERICANA AGENT, THE AMERICANA LENDERS, THE INTEGRATED AGENT AND THE
INTEGRATED LENDERS HEREBY IRREVOCABLY SUBMITS ITSELF TO THE EXCLUSIVE
JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY,
AND
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, SITTING
IN NEW YORK COUNTY, FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, AND HEREBY
WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE,
IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF THE ABOVE-NAMED COURTS FOR ANY REASON WHATSOEVER,
OR THAT
SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM;
PROVIDED, HOWEVER, THAT IN THE EVENT THE OBLIGORS FILE A CASE
UNDER THE BANKRUPTCY CODE IN A JURISDICTION OTHER THAN IN NEW YORK STATE
(THE
“ALTERNATE FORUM”), THE PARTIES HERETO HEREBY AGREE THAT A SUIT OR ACTION
IN CONNECTION WITH ANY DISPUTE UNDER THIS AGREEMENT MAY ALSO BE BROUGHT IN
THE
UNITED STATES DISTRICT COURT LOCATED IN THAT ALTERNATE FORUM. EACH OF
THE AMERICANA AGENT, THE AMERICANA LENDERS, THE INTEGRATED AGENT AND THE
INTEGRATED LENDERS HEREBY WAIVES THE RIGHT TO TRIAL BY JURY AND SHALL NOT
SEEK A
JURY TRIAL IN ANY PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY RELATED
INSTRUMENT OR DOCUMENT. EACH OF THE AMERICANA AGENT, THE AMERICANA
LENDERS, THE INTEGRATED AGENT AND THE INTEGRATED LENDERS WILL NOT SEEK TO
CONSOLIDATE SUCH PROCEEDING INTO ANY ACTION IN WHICH A JURY TRIAL CANNOT
BE OR
HAS NOT BEEN WAIVED.
17. Miscellaneous. In
the event of an inconsistency between the provisions of this Agreement and
any
similar or related provision in the Americana Credit Agreement or the Americana
Loan Documents, including provisions with respect to governing law and
jurisdiction, the provisions of this Agreement shall govern. This
Agreement shall be an Integrated Loan Document pursuant to the Integrated
Credit
Agreement and shall (unless
8
expressly
indicated herein or therein) be construed, administered, and applied, in
accordance with all of the terms and provisions of the Integrated Credit
Agreement.
[SIGNATURES
ON FOLLOWING PAGE]
9
IN
WITNESS WHEREOF, the parties have executed this Agreement as of this 17th day of
November,
2006.
|
JPMORGAN
CHASE BANK, N.A., as Integrated Agent on behalf of the Integrated
Lenders
By: ___________________________________
Name:
Title:
JPMORGAN
CHASE BANK, N.A., as Americana Agent on behalf of the Americana
Lenders
By: ___________________________________
Name:
Title:
|
|
|
Each
of the undersigned acknowledges by its signature receipt of a copy
of this
Agreement and hereby consents to and agrees to honor the
Agreement:
By:
___________________________________
Name:
Title:
INTEGRATED
BRANDS INC.
By: ___________________________________
Name:
Title:
ESKIMO
PIE FROZEN DISTRIBUTION, INC.
By: ___________________________________
Name:
Title:
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|
ESKIMO
PIE CORPORATION
By: ___________________________________
Name:
Title:
COOLBRANDS
DAIRY, INC.
By: ___________________________________
Name:
Title:
SUGAR
CREEK FOODS, INC.
By: ___________________________________
Name:
Title:
INTEGRATED
BRANDS FRANCHISE CORP.
By: ___________________________________
Name:
Title:
COOLBRANDS
SMOOTHIES FRANCHISE LLC
By: INTEGRATED
BRANDS FRANCHISE CORP., its sole member
By: ___________________________________
Name:
Title:
|
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