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Exhibit 10.7
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT ("Agreement") is dated as of October 14,
1997, between CONGRESS FINANCIAL CORPORATION (SOUTHERN), a Georgia corporation
("Lender") and IBJ XXXXXXXX BANK & TRUST COMPANY, a New York banking
corporation, in its capacity as trustee under the Indenture referred to below
and as collateral agent under the General Security Agreement and Mortgages
referred to below (in such capacities, and together with any permitted
successors and assigns in such capacities, the "Senior Note Trustee").
WITNESSETH:
WHEREAS, Tom's Foods Inc., a Delaware corporation ("Borrower") and
Lender have entered or are about to enter into that certain Amended and
Restated Loan and Security Agreement dated on or about the date hereof (such
Amended and Restated Loan and Security Agreement, as amended, modified,
supplemented, renewed, extended, restated or replaced from time to time, the
"Loan Agreement"; together with all documents, agreements, guarantees and other
instruments now or hereafter evidencing or securing all or any portion of the
obligations of Borrower under the Loan Agreement or any other agreements or
documents executed pursuant thereto, as the same may now exist or may hereafter
be amended, modified, supplemented, renewed, extended, restated or replaced
from time to time, collectively, the "Financing Agreements"); and
WHEREAS, pursuant to the Loan Agreement, Borrower has, among other
things, granted to Lender a security interest in and lien upon certain personal
property as more particularly described in Exhibit A annexed hereto
(collectively, the "Lender Collateral"); and
WHEREAS, Borrower and the Senior Note Trustee have entered into that
certain Indenture, dated as of October 14, 1997 (as amended, modified,
supplemented, renewed, extended, exchanged, restated or replaced from time to
time, the "Indenture") pursuant to which Borrower is issuing its 10 1/2% Senior
Secured Notes due 2004 (the "Senior Notes"; together with the Indenture and all
documents, agreements, guarantees and other instruments now or hereafter
evidencing or securing all or any portion of the obligations of Borrower under
the Indenture and the Senior Notes or any other agreements or documents
executed pursuant thereto, as the same may now exist or may hereafter be
amended, modified, supplemented, renewed, extended, restated or replaced from
time to time, the "Senior Note Agreements"); and
WHEREAS, pursuant to that certain General Security Agreement, dated as
of October 14, 1997, Borrower has, among other things, granted to the Senior
Note Trustee, for its benefit
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and the ratable benefit of the holders of Senior Notes, a security interest in
and lien upon certain real and personal property as more particularly described
in Exhibit B annexed hereto (collectively, the "Senior Note Collateral"); and
WHEREAS, Borrower has also executed and delivered, in each case in
favor of the Senior Note Trustee, as mortgagee, beneficiary or grantee, for its
benefit and the ratable benefit of the holders of Senior Notes, certain
mortgages, deeds of trust and deeds to secure debt, covering, among other real
property, Borrower's real property located in Columbus, Georgia, Corsicana,
Texas and Fresno, California (collectively, and together with any additional
mortgages, deeds of trust, deeds to secure debt or other instruments now or
hereafter creating or evidencing a lien in favor of the Senior Note Trustee, as
mortgagee, beneficiary or grantee, for its benefit and the ratable benefit of
the holders of Senior Notes, covering any real property now owned or hereafter
acquired by Borrower, in each case, as amended, modified, supplemented,
renewed, extended, restated or replaced from time to time, the "Mortgages");
and
WHEREAS, certain of the Lender Collateral, including, without
limitation, Inventory and Records (each as defined in Exhibit A annexed hereto)
relating thereto, may from time to time be located on the Premises (as defined
in Exhibit B annexed hereto) including any after-acquired real property that
may from time to time be covered by the Mortgages (such real property,
including all improvements and fixtures located thereon, collectively, the
"Mortgaged Premises");
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. ACKNOWLEDGMENT OF LIENS; INTELLECTUAL PROPERTY
1.1 Lender hereby acknowledges that, pursuant to the Senior Note
Agreements, the Senior Note Trustee has been granted (for its benefit and for
the ratable benefit of the holders of the Senior Notes) security interests in
and liens upon all of the Senior Note Collateral, including, without
limitation, the Intellectual Property (as defined in Exhibit B annexed hereto)
and further acknowledges and agrees that Lender has not been granted and will
not acquire any security interests in or liens upon any of the Senior Note
Collateral, other than the Intellectual Property for the limited purposes set
forth in Exhibit A annexed hereto. The Senior Note Trustee hereby acknowledges
that Lender has been granted security interests in and liens upon all of the
Lender Collateral, including, without limitation, the Intellectual Property for
the limited purpose set forth in Exhibit A annexed hereto pursuant to the
Financing Agreements, and further acknowledges and agrees that Lender shall
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have the right, and the Senior Note Trustee hereby recognizes and agrees not to
oppose or disturb Lender's rights to use, without charge, the Intellectual
Property for so long as Lender in good xxxxx xxxxx necessary in order for
Lender to exercise its rights or remedies under the Financing Agreements with
respect to the other Lender Collateral;
1.2 Notwithstanding the order or time of attachment, or the order, time
or manner of perfection, or the order or time of filing or recordation of any
document or instrument, or other method of perfecting a security interest in
favor of the Senior Note Trustee or Lender in the Lender Collateral and/or the
Senior Note Collateral, as the case may be, and notwithstanding any conflicting
terms or conditions contained in any of the Senior Note Agreements or Financing
Agreements:
(a) Lender shall have security interests in and liens upon the
Lender Collateral and the Senior Note Trustee shall in no event have any lien
upon or security interest in or any other rights or claims with respect to all
or any portion thereof, except as specifically provided in Section 1.2(c) of
this Agreement;
(b) the Senior Note Trustee shall have security interests and
liens upon the Senior Note Collateral and Lender shall in no event have any
lien upon or security interest in or any other rights or claims with respect to
all or any portion thereof, except as specifically provided in Section 1.2(c)
and elsewhere in this Agreement;
(c) until all of the obligations, liabilities and indebtedness
of Borrower to the Senior Note Trustee arising under or in connection with the
Senior Note Agreements (the "Senior Note Debt") are paid in full, and except
for Lender's rights under this Agreement with respect to the Intellectual
Property, the security interests and liens granted to the Senior Note Trustee
under the Senior Note Agreements in and upon the Intellectual Property have and
shall have priority over the security interests and liens granted to Lender
under the Financing Agreements in and upon the Intellectual Property, and such
security interests and liens of Lender in and upon the Intellectual Property
are and shall be, in all respects (except for Lender's rights under this
Agreement), subject and subordinate to the security interests and liens of the
Senior Note Trustee in and upon the Intellectual Property; and
(d) the security interests and liens and priorities thereof
provided in this Section 1.2 shall not be altered or otherwise affected by (i)
any amendment, modification, supplement, extension, renewal, restatement,
replacement or refinancing of all or any part of the obligations, liabilities
and indebtedness of Borrower to Lender arising under or in connection with the
Financing Agreement (the "Lender Debt") or
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the Senior Note Debt or (ii) any action or inaction which any of the Senior
Note Trustee or Lender may take or fail to take in respect of the Senior Note
Collateral or Lender Collateral.
1.3 The Senior Note Trustee agrees that it will not contest the
validity, perfection, priority or enforceability of any of the security
interests or liens of Lender upon the Lender Collateral and Lender agrees that
it will not contest the validity, perfection, priority or enforceability of any
of the security interests or liens of the Senior Note Trustee upon the Senior
Note Collateral. As between Lender and the Senior Note Trustee, the terms of
this Agreement shall govern even if part or all of the Senior Note Debt or
Lender Debt or any of the security interests or liens securing payment and
performance thereof are avoided, disallowed, set aside or otherwise invalidated
in any judicial proceeding or otherwise.
1.4 Until such time as the Senior Note Debt is paid and satisfied in
full, Senior Note Trustee shall, subject to Lenders rights under the other
provisions of this Agreement, have the right to manage, perform and enforce the
terms of the Senior Note Agreements with respect to the Intellectual Property,
to exercise and enforce all privileges and rights thereunder according to its
discretion and the exercise of its business judgment, including, without
limitation, the right to hold, prepare for sale, sell, license, lease, dispose
of, or liquidate such intellectual Property. Lender shall not enforce its
security interests in the Intellectual Property in any manner that would
interfere with the security interests of the Senior Note Trustee therein,
including, without limitation, by way of an outright foreclosure sale of the
Intellectual Property itself; provided, however, that Lender shall nevertheless
be entitled to enforce its security interests with respect to the Intellectual
Property to the extent required in order to enable Lender to exercise its
rights or remedies under the Financing Agreements with respect to the other
Lender Collateral, including, without limitation, the fulfillment of orders,
the manufacturing and processing of Inventory and the products thereof, and the
marketing, preparation for sale, distribution, sale or other disposition of
inventory and the products thereof, including the receipt and retention by
Lender of the proceeds of Inventory and the products thereof.
SECTION 2. MORTGAGED PREMISES
2.1 No Claim on Collateral. The Senior Note Trustee hereby waives
pursuant to the Indenture for itself and on behalf of each present and future
holder of Senior Notes, each and every right which the Senior Note Trustee or
any holder of Senior Notes now or at any time hereafter may have under
applicable law, by virtue of the Mortgages or Borrower's or Lender's occupation
of the Mortgaged Premises, to claim or assert any lien, right, claim or title
to any or all of the Lender Collateral comprised of
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tangible personal property located thereon, including, without limitation, any
Inventory or Records to the extent relating thereto, that now or hereafter may
be stored in or located on the Mortgaged Premises or Equipment.
2.2 Use of Mortgaged Premises, Equipment, etc. During the one hundred
eighty (180) day period following receipt by Lender of written notice from the
Senior Note Trustee notifying Lender of the acceleration of the Senior Notes by
reason of an uncured Event of Default under the Senior Notes and the Indenture
(such period, the "Permitted Use Period"):
(a) Lender may enter and remain upon one or more of the
Mortgaged Premises, without obligation to pay rent or other compensation to the
Senior Note Trustee or the holders of Senior Notes (other than expense
reimbursement as provided in clause (iii) below), and may use any Equipment
constituting Senior Note Collateral, for the purposes of manufacturing,
processing, marketing, preparation for sale, distribution and sale of any or
all of the Inventory or other realization upon Lender Collateral; provided,
however, that Lender shall (i) promptly notify the Senior Note Trustee of
Lender's entry upon the Mortgaged Premises, (ii) promptly repair or replace any
Senior Note Collateral destroyed or damaged in any respect by Lender or any of
Lender's employees or agents as a result of such use, (iii) reimburse the
Senior Note Trustee for all reasonable out-of-pocket expenses actually incurred
by the Senior Note Trustee in connection with or arising out of Lender's use of
the Senior Note Collateral, but only such costs and expenses directly
attributable to that portion or portions of the Senior Note Collateral actually
used by Lender pursuant to the rights granted under the provisions of this
Section 2.2(a), and (iv) indemnify and hold Senior Note Trustee harmless from
and against all losses, costs, damages or expenses (including reasonable
attorneys' fees and disbursements) suffered or incurred by Senior Note Trustee
a direct result of claims for personal injury directly caused by the gross
negligence or willful misconduct of Lender or its agents or designees in the
exercise of the rights granted to Lender under this Section 2.2(a); provided
that under no circumstances shall Lender indemnify or be responsible to the
Trustee for lost profits or other special or consequential damages, and (v) pay
the Senior Note Trustee a per diem storage charge for the period (if any) after
the Permitted Use Period (at the then prevailing market rate based upon the
volume of Inventory subject to the security interests and liens of Lender from
time to time thereafter remaining at the Mortgaged Premises) with respect to
any Inventory that remains at the Mortgaged Premises after the expiration of
the Permitted Use Period, unless and until Lender has notified the Senior Note
Trustee in writing that Lender has abandoned or released its security interests
and liens in and upon such remaining Inventory. After Lender has given such
notice to the Senior Note Trustee that Lender has abandoned or released its
security interests and liens in and
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upon such remaining Inventory, Lender shall have no further liability to the
Senior Note Trustee for storage charges, costs and expenses or indemnification,
except for any such liabilities accrued prior to such notice; and
(b) the Senior Note Trustee will cooperate with Lender in
permitting Lender to have access to the Lender Collateral located on the
Mortgaged Premises and will not delay, hinder or impede Lender's access to,
entry upon or use of the Mortgaged Premises or any Equipment and will not
interfere with the manufacturing, processing, marketing, preparation for sale,
distribution or sale of any of the Inventory or other realization upon Lender
Collateral on or from, or removal of any of the Inventory or Records relating
thereto by Lender from, any of the Equipment or Mortgaged Premises; provided,
however, that the provisions of this subparagraph (b) shall in no event be
deemed to prohibit the Senior Note Trustee from (i) enforcing or exercising,
and the Senior Note Trustee shall have the right at any time to enforce or
exercise, any and all of its rights and remedies under the Senior Note
Agreements, or at law, or (ii) seeking to foreclose or realize upon (judicially
or nonjudicially) its lien upon the Senior Note Collateral or assert any claim
or interest therein at any time; provided, that, in each case under clauses (i)
or (ii), such enforcement, exercise, foreclosure, realization or assertion
shall be expressly subject to Lender's right to use the Mortgaged Premises,
Equipment and Intellectual Property for the purposes set forth herein.
2.3 Extension of Permitted Use Period. If, as a result of the
application of any bankruptcy, insolvency, reorganization, receivership or
other similar law, Lender is prevented for any period of time during the
Permitted Use Period from exercising its rights and remedies with respect to
any Lender Collateral located on the Mortgaged Premises or otherwise granted
hereunder, the Permitted Use Period shall be extended by such period of time.
SECTION 3. MISCELLANEOUS
3.1 Representations.
(a) The Senior Note Trustee represents and warrants to Lender that:
(i) the execution, delivery and performance of this Agreement
by the Senior Note Trustee is within its powers in its capacity as Senior Note
Trustee for the holders of Senior Notes, has been duly directed pursuant to the
Indenture, and does not contravene any law, any provision of any of the Senior
Note Agreements or any agreement to which the Senior Note Trustee is a party or
by which it is bound, and shall be binding upon the Senior Note Trustee, any
successor or replacement trustee under
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the Senior Note Indenture, as well as all existing and future holders of Senior
Notes;
(ii) this Agreement constitutes the legal, valid and binding
obligation of Senior Note Trustee, enforceable according to its terms, except
to the extent that (x) the foregoing may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws from time to
time generally affecting the enforcement of creditors' rights and remedies and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (y) the same may be subject
to the discretion of the court before which any proceeding with respect thereto
may be brought.
(b) Lender hereby represents and warrants to the Senior Note Trustee
that:
(i) the execution, delivery and performance of this Agreement
by Lender is within its powers, has been duly authorized by Lender and does not
contravene any law, any provision of the Loan Agreement, or any agreement to
which Lender is a party or by which it is bound; and
(ii) this Agreement constitutes the legal, valid and binding
obligation of Lender, enforceable according to its terms, except to the extent
that (x) the foregoing may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time generally
affecting the enforcement of creditors' rights and remedies and by general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law) and (y) the same may be subject to the
discretion of the court before which any proceeding with respect thereto may be
brought.
3.2 Successors and Assigns.
(a) This Agreement shall be binding upon each of Lender, the Senior Note
Trustee and the holders of Senior Notes, and their respective successors,
participants and assigns, and shall inure to the benefit of each of them and
their respective successors, participants and assigns; provided, however, that
any successor or assignee of either party hereto shall in no event be entitled
to the rights and benefits hereunder until such time as such successor or
assignee shall have (i) executed and delivered a supplement to this Agreement
pursuant to which (x) it agrees to be bound by all of the terms and provisions
hereof and (y) makes substantially the same representations and warranties as
those made by its predecessor in interest pursuant to Section 3 of this
Agreement and (ii) delivered to the counterparty hereto such evidence as may be
reasonably requested by such counterparty of such successor or assignee's power
and authority to perform its obligations hereunder. Lender shall at all times
be entitled to
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deal exclusively with the Senior Note Trustee for all matters hereunder
notwithstanding any sale, assignment, participation or other transfer by any
holder of Senior Notes of any interest in the Senior Note Debt or the Senior
Note Collateral.
(b) Lender reserves the right to grant participations in or otherwise
sell, assign, transfer, negotiate all or any part of, or any interest in, the
Lender Debt and the Lender Collateral; provided, that, the Senior Note Trustee
shall not be obligated to give any notices to or otherwise in any manner deal
directly with any participant in the Lender Debt, and no participant shall be
entitled to any rights or benefits under this Agreement, except through Lender.
(c) In connection with any assignment or transfer of any or all of the
Lender Debt, or of any or all rights of Lender in the Lender Collateral, other
than pursuant to a participation, the Senior Note Trustee agrees, at the sole
cost and expense of Borrower, to execute and deliver an agreement containing
terms substantially identical to those contained herein in favor of any such
assignee or transferee. In addition, the Senior Note Trustee agrees, at the
sole cost and expense of Borrower, to execute and deliver an agreement
containing terms substantially identical to those contained herein in favor of
any third person who also executes such agreement and succeeds to or replaces
any or all of Lender's financing of Borrower, whether such successor financing
or replacement occurs by transfer, assignment, "take out" or any other means
or vehicle, provided only that such successor or replacement financing is not
prohibited by the then-current terms of the Senior Note Agreements.
3.3 No Third Parties Benefitted. This Agreement is solely for the benefit
of the Lender, the Senior Note Trustee and the holders of Senior Notes, and
their respective successors, participants and assigns, and no other person
(including, without limitation, Borrower or a creditor or creditors'
representative of Borrower, other than Lender, the Senior Note Trustee and the
holders of Senior Notes and their respective successors, participants and
assigns) shall have any right, benefit, priority or interest under, or because
of the existence of, this Agreement.
3.4 Disclosures; Non-Reliance. Each of Lender, the Senior Note Trustee,
and the holders of Senior Notes have the means to be, and shall in the future
remain, fully informed as to the financial condition and other affairs of
Borrower. Lender shall not have any obligation to or duty to disclose any such
information to the Senior Note Trustee or the holders of Senior Notes, and the
Senior Note Trustee and holders of Senior Notes shall have no obligation or
duty to disclose any such information to Lender. Except as expressly set forth
in this Agreement: the parties hereto have not otherwise made to each other,
nor do they hereby make to each other, any agreements, representations or
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warranties, express or implied, nor do they assume any liability to each other
with respect to any matter.
3.5 Exercise of Rights.
(a) Lender shall not be liable to the Senior Note Trustee or the
holders of Senior Notes, and the Senior Note Trustee and the holders of the
Senior Notes shall not be liable to Lender, by reason of their respective
exercise or enforcement of their rights under this Agreement, or of their
respective rights or remedies under the Loan Agreement or the Senior Note
Agreements, as the case may be, except for any such exercise of rights or
remedies prohibited by this Agreement.
(b) In no event will Lender be liable to account to the Senior Note
Trustee or the holders of Senior Notes for any proceeds of asset dispositions
that may be received by Lender and applied to the Lender Debt, whether or not
Lender at any time has re-lent or does re-lend such sums or any portion thereof
to Borrower. It shall be the sole responsibility of the Senior Note Trustee to
monitor the disposition by Borrower of the Senior Note Collateral or other
assets of Borrower and to require the Borrower (but not the Lender) to account
to the Senior Note Trustee and/or the holders of Senior Notes for the
application and disposition of the proceeds thereof (in each case to the extent
provided in the Senior Note Agreements).
(c) In no event will the Senior Note Trustee or the holders of Senior
Notes be liable to account to Lender for any proceeds of asset dispositions
that may be received by the Senior Note Trustee and applied to the Senior Note
Debt. It shall be the sole responsibility of Lender to monitor the disposition
by Borrower of the Lender Collateral or other assets of Borrower and to require
the Borrower (but not the Senior Note Trustee or the holders of the Senior
Notes) to account to Lender for the application and disposition of the proceeds
thereof (in each case to the extent provided in the Financing Agreements).
(d) In the event that the Senior Note Trustee or Lender shall, in the
exercise of its respective rights under the Senior Note Agreements or Financing
Agreements, as the case may be, receive physical possession of personal
property of Borrower, other than, in the case of receipt by Lender, funds
credited to, or transferred to Lender through, the lockbox, blocked accounts or
other depository account arrangements established pursuant to the Financing
Agreements, then, if the receiving party has actual knowledge at the time of
its receipt that such property represents the other party's collateral as
provided hereunder (i.e., such property represents Lender Collateral in the
case of such property received by the Senior Note Trustee or any holder of
Senior Notes, or represents Senior Note Collateral in the case of such property
received by Lender), then the receiving party shall notify the other party that
it has received physical
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possession of such collateral and shall hold the same as bailee for perfection
purposes only for the other party and shall, as promptly as practicable
thereafter, make available or deliver to the other party such property, or, at
the receiving party's option, retain possession of such property until a
disposition is directed by a court of competent jurisdiction.
(e) Lender may, without affecting its rights under this Agreement,
extend, amend or in any way modify the terms of payment or performance of all
or any portion of the Lender Debt or any other term or provision of the
Financing Agreements, without the consent of, and without giving notice thereof
to the Senior Note Trustee or any holder of Senior Notes.
3.6 Term. This Agreement is a continuing agreement and shall remain in full
force and effect until all of the Lender Debt has been fully paid and satisfied
and the Loan Agreement and all other Financing Agreements have been terminated.
3.7 Notices. All notices and other communications provided for hereunder
shall be in writing sent to the applicable address for the party to be notified
as set forth on the signature pages of this Agreement, or as to each party, to
such other address as shall be designated by such party in a written notice to
the other party in accordance with this Section. Except with respect to notices
as to which actual receipt is required hereunder, all such notices and
communications shall be deemed to be validly served, given or delivered: (i)
five (5) business days following deposit in the United States mails, certified
mail, return receipt requested, with proper postage prepaid; (ii) one (1)
business day after sending, if sent by recognized overnight courier service
with instructions to deliver the next business day; (iii) upon delivery
thereof, if delivered by hand to the party to be notified; or (iv) upon
telecopier acknowledgment of receipt thereof, if telecopied to the specified
telecopier number for the party to be notified.
3.8 Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the subject matter hereof. No amendment or
modification of any of the provisions of this Agreement shall be deemed to be
made, nor any provision waived, unless the same shall be in writing signed by
the party against whom such amendment, modification or waiver is sought to be
enforced.
3.9 Governing Law; Severability. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Georgia, except
that no doctrine of choice of law shall be used to apply the laws of any other
state or jurisdiction. 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 applicable law,
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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.
3.10 Further Assurances. Each of the parties hereto shall execute and file,
if necessary, all such further documents and instruments, and perform such
other acts, as may be necessary to effectuate the purposes of this Agreement.
3.11 Counterparts. This Agreement may be executed in any number of
counterparts, and by each of the 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
CONGRESS FINANCIAL CORPORATION
(SOUTHERN)
By: /s/ S. Xxxxxx Xxxxxx
----------------------------
Title: Senior Vice President
-------------------------
Address:
000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Senior Note Trustee
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Title: Assistant Vice President
-------------------------
Address:
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
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ACKNOWLEDGEMENT AND AGREEMENT
The undersigned hereby acknowledges (i) the terms of the foregoing
Intercreditor Agreement between the Senior Note Trustee and Lender (the
"Agreement") and agrees that it will, together with its successors and assigns,
be bound by the terms thereof and (ii) that it does not and will not receive
any right, benefit, priority or interest under or because of the existence of
the Agreement.
The undersigned agrees to execute and deliver such additional documents
and take such additional action as may be reasonably requested by Lender or the
Senior Note Trustee to effectuate the provisions and purposes of the Agreement.
TOM'S FOODS INC.
By: /s/ S. Xxxxxx Xxxxxx
---------------------------
Title: Senior Vice President
------------------------
Address:
000 0xx Xxxxxx
X.X. Xxx 00
Xxxxxxxx, Xxxxxxx
Attention: Mr. S. Xxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
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EXHIBIT A
Lender Collateral
"Lender Collateral" shall mean all of Borrower's right, title and interest
in and to the following property and interests in property of Borrower,
whether now owned or hereafter acquired or existing, and wherever located:
(a) all present and future rights of Borrower to payment for goods sold
or leased or for services rendered, which are not evidenced by instruments or
chattel paper, and whether or not earned by performance (collectively,
"Accounts");
(b) all present and future contract rights, chattel paper, documents,
instruments, letters of credit, bankers' acceptances and guaranties to the
extent relating to Accounts, Inventory or other Lender Collateral, all present
and future Distributor/Franchisee Receivables (as defined in the Loan Agreement
as in effect on the date hereof) and all present and future general intangibles
for the payment of money (including claims and choses in action) to the extent
relating to Accounts, Inventory or other Lender Collateral;
(c) all present and future monies, securities, credit balances,
deposits, deposit accounts and other property of Borrower now or hereafter held
or received by or in transit to Lender or its affiliates, or, to the extent
relating to Accounts, Inventory or other Lender Collateral, held at or received
by or in transit to any other depository or other institution from or for the
account of Borrower, in each case whether for safekeeping, pledge, custody,
transmission, collection or otherwise, and all present and future liens,
security interests, rights, remedies, title and interest in, to and in respect
of Accounts, Inventory or other Lender Collateral, including, without
limitation, (i) rights and remedies under or relating to guaranties, contracts
of suretyship, letters of credit and credit and other insurance related to
Accounts, Inventory or other Lender Collateral, (ii) rights of stoppage in
transit, replevin, repossession, reclamation and other rights and remedies of
an unpaid vendor, lienor or secured party relating to Accounts, Inventory or
other Lender Collateral, (iii) goods described in invoices, documents,
contracts or instruments with respect to, or otherwise representing or
evidencing, Accounts, Inventory or other Lender Collateral, including, without
limitation, returned, repossessed and reclaimed goods, and (iv) deposits by and
property of account debtors or other persons securing the obligations of
account debtors;
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(x) all now owned and hereafter existing or acquired raw materials,
work-in-process, finished goods and all other inventory of whatsoever kind or
nature, wherever located (collectively, "Inventory");
(e) all present and future trademarks, tradenames and service marks
(together with the goodwill of the business symbolized thereby), patents,
copyrights and other Intellectual Property (as defined in Exhibit B to this
Agreement) affixed to or appearing on or relating to any Inventory or the
products thereof or other Lender Collateral or otherwise used in the
manufacturing, processing, marketing, preparation for sale, distribution or
sale of Inventory or the products thereof or other Lender Collateral; provided,
however, that the security interest granted to Lender in trademarks, tradenames
and service marks (and the goodwill of the business symbolized thereby),
patents, copyrights and other Intellectual Property described in this
subparagraph (e) shall be limited to such right, title and interest as shall be
required in order for Lender to exercise its rights and remedies under the Loan
Agreement, including the fulfillment of orders, the manufacturing and
processing of Inventory and the products thereof, and the marketing,
preparation for sale, distribution, sale or other disposition of Inventory and
the products thereof, including the receipt and retention by Lender of the
proceeds thereof;
(f) all books of account of every kind or nature, purchase and sale
agreements, invoices, ledger cards, bills of lading and other shipping
evidence, statements, correspondence, memoranda, credit file, and other data to
the extent relating to the Lender Collateral or any account debtor, together
with the tapes, disks, diskettes and other data and software storage media and
devices, file cabinets or containers in or on which the foregoing are stored
(including any rights of Borrower with respect to the foregoing maintained with
or by any other person); and
(g) all products and proceeds of the foregoing, in any form, including,
without limitation, insurance proceeds and all claims against third parties for
loss or damages to or destruction of any or all of the foregoing, and also
including all proceeds of business interruption insurance and, to the extent
relating to Accounts, Inventory or other Lender Collateral, all other insurance
proceeds, whether or not constituting proceeds of any of the other Lender
Collateral.
A-2
15
EXHIBIT B
SENIOR NOTE COLLATERAL
"Senior Note Collateral" shall mean all the property and assets
of Borrower, both real and personal, movable and immovable, tangible and
intangible of whatsoever nature and kind now owned or hereafter acquired and
wherever located, including, without limitation, the following:
(a) Any and all present estates or interests of Borrower in land,
together with all Borrower's reversionary rights in and to any and all lots,
parcels, alterations, partitions, easements, rights-of-way, sidewalks, strips
and gores of land, drives, roads, curbs, streets, lanes, ways, alleys,
passages, passageways, sewer rights, waters, woods, water courses, water
rights, mineral, gas and oil rights, power, air, light and other rights,
estates, titles, interests, privileges, liberties, servitudes, licenses,
tenements, hereditaments and appurtenances whatsoever, in any way belonging,
relating or appertaining thereto, or any part thereof, or which hereafter shall
in any way belong, relate or be appurtenant thereto (collectively, the
"Land");
(b) Any and all estates or interests of Borrower in the buildings,
structures and other improvements and any and all alterations now or hereafter
located or erected on the Land, including, without limitation, attachments,
walks and ways (collectively, the "Improvements"; together with the Land, the
"Premises");
(c) Any and all permits, licenses, franchises, certificates, consents,
approvals and authorizations, however characterized, issued or in any way
furnished, whether necessary or not, for the operation and use of the Premises,
including, without limitation, building permits, certificates of occupancy,
environmental certificates, industrial permits, or licenses and certificates of
operation;
(d) Any and all interest of Borrower in (i) equipment of any kind or
nature and located at or used in connection with the operation of Borrower's
business conducted at the Premises, whether or not affixed to the Premises, and
all machinery, apparatus, equipment, fittings, fixtures, improvements and
articles of personal property of every kind and nature whatsoever now or
hereafter attached or affixed to the Premises or used in
16
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connection with the use and enjoyment of the Premises or the maintenance or
preservation thereof, including, without limitation, all utility systems, fire
sprinkler and alarm systems or other fire prevention or extinguishing apparatus
materials, HVAC equipment, boilers, electronic data processing equipment (to
the extent relating to the Premises or any equipment), telecommunications
equipment or computer equipment (to the extent relating to the Premises or any
equipment), office machinery, switchboards, computers and computer hardware and
software (whether owned or licensed), all indoor or outdoor furniture, tools,
materials, refrigeration, electronic monitoring, water or lighting systems,
power, sanitation, waste removal, elevators, maintenance or other systems or
equipment, and all other articles used or useful in connection with the use or
operation of any part of the Premises; (ii) all modifications, renewals,
improvements, alterations, repairs, substitutions, attachments, additions,
accessories and other property now or hereafter affixed thereto or used in
connection with the operation of any part of the Premises as such, and (iii)
all replacements and all other parts therefor (collectively, the "Equipment");
(e) All Borrower's right, title and interest, as landlord, licensor or
grantor, in all leases and subleases of space, tenancies, lettings, occupancy
or concession agreements, all books and records which contain payments under
such leases, subleases, occupancy or concession agreements, written or
otherwise, now existing or hereafter entered into to the extent relating in any
manner to the premises or the equipment and any and all amendments,
modifications, supplements and renewals of any thereof (each such lease,
sublease, occupancy or concession agreement, together with any such amendment,
modification, supplement or renewal, a "Lease"), whether now in effect or
hereafter coming into effect including, without limitation, all rents,
additional rents, rental income, receipts, management fees payable by tenants,
cash, guarantees, letters of credit, bonds, sureties or securities deposited
thereunder to secure performance of the lessee's, or obligee's obligations
thereunder, revenues, earnings, issues, profits and income, advance rental
payments, payments incident to assignment, sublease or surrender of a Lease,
claims for forfeited deposits, claims for damages and awards, now due or
hereafter to become due, with respect to any Lease (collectively, the "Rents");
(f) All general intangibles and contract rights of every kind and
nature to the extent relating to any item or type of Senior Note Collateral,
and, in any event, without limitation, any and all goodwill, descriptions, name
plates, claims, choses-in-action, causes of actions, catalogs, confidential
infor-
17
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mation, consulting agreements, engineering contracts to the extent relating to
the Senior Note Collateral and such other intangible assets which relate to the
goodwill of the business of Borrower to the exent connected with the use of, or
symbolized by, any of the Intellectual Property and rights to refund or
indemnification to the extent the foregoing relate to any item or type of
Senior Note Collateral, deposits and deposit accounts, letters of credit,
documents, instruments, chattel paper, bankers' acceptances and guarantees, and
income tax refunds to the extent relating to any item or type of Senior Note
Collateral, claims for tax or other refunds against any federal, state or local
government, or any agency or authority or other subdivision thereof to the
extent relating to any item or type of Senior Note Collateral, corporate or
other business records to the extent relating to any item or type of Senior
Note Collateral and all reserves, deferred payments, and claims of every kind
or character to the extent relating thereto (collectively, the "Contract
Rights");
(g) Any and all "documents" (as such term is defined in the Uniform
Commercial Code as in effect in any relevant Jurisdiction) to the extent
relating to any item or type of Senior Note Collateral, and any and all lists,
books, records, ledgers, printouts, computer programs, computer disks or tape
files, computer runs and other computer prepared information, files (whether in
printed form or stored electronically), tapes or other papers or materials to
the extent containing information relating to any item or type of Senior Note
Collateral;
(h) The "Collateral Account" established and maintained pursuant to
the Indenture and all funds from time to time on deposit therein, all
investments of such funds and all certificates and instruments from time to
time representing or evidencing such investments, all notes, certificates of
deposit, checks and other instruments from time to time hereafter delivered to
or otherwise possessed by the Senior Note Trustee for or on behalf of Borrower
in substitution for any or all of the Senior Note Collateral, and all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the items constituting Senior Note Collateral;
(i) All surveys, drawings, plans, specifications, construction
contracts, file materials, operating and maintenance records, catalogues,
tenant lists, correspondence, advertising materials, operating manuals,
warranties, guaranties, appraisals, studies and data to the extent relating to
any item or
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type of Senior Note Collateral or the construction of any alteration or the
maintenance of any permit;
(j) All of Borrower's present and after acquired right, title and
interest in any and all of the following (collectively, the "Intellectual
Property"):
(i) any and all copyrights, whether statutory or common law, and all
applications, registrations and recording relating to such
copyrights in the United States Copyright Office or in any other
country, together with any and all (A) rights and privileges
arising under applicable law with respect to Borrower's use of
any copyrights, (B) reissues, extensions, continuations and
renewals thereof, (C) damages and payments now and hereafter due
and/or payable for past or future infringements thereof, (D)
rights corresponding thereto throughout the world and (E) rights
to xxx for past, present and future infringements thereof
(collectively, the "Copyrights");
(ii) any and all patents and all applications, registrations and
recordings relating thereto as may at any time be filed in the
United States Patent and Trademark Office or in any other
country, together with any and all (A) rights and privileges
arising under applicable law with respect to borrower's use of any
patents, (B) inventions and improvements described and claimed
therein, (C) reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, (D) damages and
payments now and hereafter due and/or payable for past or future
infringements thereof, (E) rights corresponding thereto
throughout the world, and (F) rights to xxx for past, present and
future infringements thereof (collectively, the "Patents"),
(iii) any and all trademarks (including service marks), trademark
registrations, trade styles and trade names and applications
therefor as may at any time be filed in the United States Patent
and Trademark Office or any other country, together with any and
all (A) rights and privileges arising under applicable law with
respect to Borrower's use of any trademarks, (B) reissues,
continuations, extensions and renewals thereof, (C) damages and
payments now and hereafter due and/or payable for past or future
19
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infringements thereof, (D) all rights corresponding thereto
throughout the world and (E) rights to xxx for past, present and
future infringements thereof (collectively, the "Trademarks");
and
(iv) any and all license and distribution agreements with any
other party with respect to a Patent, Trademark or Copyright,
whether Borrower is a Licensor or licensee, distributor or
distributee under any such license or distribution agreement,
along with any and all (A) renewals, extensions, supplements and
continuations thereof (B) damages and payments now and hereafter
due and or payable to Borrower for past or future infringements
thereof and (C) rights to xxx for past, present and future
infringements thereof (collectively, the "Licenses");
(k) (i) All issued and outstanding shares of capital stock of each
entity which is or becomes, as a result of any occurrence, a Restricted
Subsidiary (as defined in the Indenture) of Borrower, including the
certificates, if any, representing the shares and any interest of Borrower in
the entries on the books of any financial intermediary pertaining thereto
(collectively, the "Pledged Shares"), (ii) all additional shares,
participations or other equivalents of or interests in (however designated) the
equity including, without limitation, common stock, preferred stock and
partnership, membership or other interests) (collectively the "Capital Stock")
of any issuer of the Pledged Shares from time to time acquired by Borrower in
any manner including the certificates, if any, representing such additional
shares and any interest of Borrower in the entries on the books if any
financial intermediary pertaining to such additional shares (collectively, the
"Additional Shares") and (iii) all dividends, cash, options, warrants, rights,
instruments, distributions, partnership distributions, returns of capital,
income, profits and other property, interests or proceeds from time to time
received, receivable or otherwise distributed to Borrower in respect of or in
exchange for any or all of the Pledged Shares or Additional Shares
(collectively, the "Distributions");
(l) All the estate, right, title, interest, claim and demand
whatsoever, of Borrower, in law, equity, on otherwise howsoever, of, in, and to
the same and every part of the foregoing; and
20
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(m) All proceeds of the conversion, voluntary or involuntary, of any of
the foregoing into cash or liquidated claims, including, without limitation,
proceeds of insurance (and any unearned premiums thereon), indemnity, warranty,
guarantee or claims payable to the Senior Note Trustee or Borrower from time to
time with respect to any item or type of Senior Note Collateral, payments (in
any form whatsoever) made or due and payable to Borrower from time to time in
connection with any requisition, confiscation, condemnation, eminent domain,
seizure or forfeiture of all or any part of the Senior Note Collateral by any
governmental authority (or any person acting under color of a governmental
authority), judgment or other awards or payments with respect thereto or
settlement in lieu thereof, including, without limitation, interest thereon,
products of the Senior Noteholder Collateral, and other amounts from time to
time paid or payable under or in connection with any of the Senior Noteholder
Collateral (collectively, "Proceeds");
provided, however, that Senior Note Collateral shall in no event include (i)
any of the Lender Collateral, (ii) the real property, buildings, improvements
and fixtures owned by the Company and located at its plant in Xxxx County,
Tennessee, (iii) the real property, building, improvements, fixtures and
equipment owned by the Company and located at its plant in Xxxxxx County,
Florida, or (iv) certain funds held in escrow for the benefit of the holders of
the Industrial Revenue Bonds (as defined in the Indenture).
