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Exhibit 10.9
SUBORDINATION AGREEMENT
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THIS SUBORDINATION AGREEMENT ("Subordination Agreement") dated as of
October 14, 1997 is by and between IBJ Xxxxxxxx Bank & Trust Company, a New
York banking corporation, as Trustee (the "Trustee"), and TFH Corp., a Delaware
corporation ("Junior Creditor", as hereinafter further defined). The Senior
Creditors (as hereinafter defined) and Junior Creditor are sometimes
individually referred to herein as a "Creditor" and collectively as
"Creditors".
W I T N E S S E T H:
WHEREAS, certain banking and financial institutions (the "Banks") entered
into a Second Amended and Restated Credit Agreement, dated as of May 13, 1993
(as amended, the "Bank Credit Agreement") among Tom's Foods Capital Corporation
("TFCC", as hereinafter further defined), Tom's Foods Inc. ("Tom's", as
hereinafter further defined), Canadian Imperial Bank of Commerce, as agent for
the Banks, and First Union National Bank of Georgia, as collateral safekeeping
agent and concentration bank, pursuant to which the Banks made loans and
provided other financial accommodations to Tom's and/or TFCC (individually and
collectively, "Debtor", as hereinafter further defined), which loans and other
financial accommodations were secured by certain assets and properties of
Debtor; and
WHEREAS, immediately after the execution and delivery of that certain
First Modification and Waiver Agreement, dated as of August 30, 1996, among the
Banks, the agent for the Banks and the Debtor (the "First Modification"),
Junior Creditor purchased all of the indebtedness in respect of (i) loans made
by the Banks to Debtor under the Bank Credit Agreement and related agreements,
documents and instruments, and (ii) Debtor's liability for reimbursement of
amounts drawn under and other obligations owed to the Banks or the agent for
the Banks, in connection with that certain letter of credit no. 114-88/9006 in
the face amount of $10,000,000 issued under the Bank Credit Agreement for the
account of Tom's in favor of Rowntree PLC (the "Tom's/Rowntree L/C"), all
pursuant to the terms of a Purchase and Sale Agreement, dated as of May 24,
1996, among Junior Creditor and the Banks (as amended, the "Junior Debt
Purchase Agreement"), providing for, inter alia, the assignment to Junior
Creditor of all such indebtedness owed to the Banks by Debtor, together with
all security interests and liens of the Banks in and upon any assets and
properties of Debtor; and
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WHEREAS, pursuant to the Junior Debt Purchase Agreement, Debtor was
released by the Banks and agent for the Banks from liability for, and, in
connection with the Junior Debt Purchase Agreement, Junior Creditor undertook a
direct liability to the Banks for, reimbursement of amounts drawn under the
Tom's/Rowntree L/C and other obligations to the Banks or the agent for the
Banks in connection with the Tom's/Rowntree L/C; and
WHEREAS, in connection with such purchase of indebtedness under the Junior
Debt Purchase Agreement, the stockholders of Junior Creditor, on behalf of
Junior Creditor, caused letters of credit in the aggregate face amount of
$10,580,000 (the "TFH Backup L/C's") to be issued in favor of the agent for the
Banks as security for TFH's direct liability to the Banks in connection with
the Tom's/Rowntree L/C; and
WHEREAS, the Tom's/Rowntree L/C and the TFH Backup L/C's have been
replaced by letters of credit in the aggregate face amount of $10,000,000
(together with all amendments, modifications and replacements thereof, the "New
TFH Backup L/C's") that were provided by the stockholders of Junior Creditor,
on behalf of Junior Creditor, directly to Nestle U.K. Limited, as guarantor of
the IRB's (as defined below); and
WHEREAS, Junior Creditor, TFCC and Tom's entered into a Second
Modification and Waiver Agreement, dated as of August 30, 1996, with respect to
the Bank Credit Agreement and related agreements, documents and instruments
(the "Second Modification"); and
WHEREAS, Junior Creditor and Tom's have entered into a Reimbursement
Agreement, dated as of August 30, 1996 (the "TFH Reimbursement Agreement")
setting forth Tom's obligations to reimburse TFH for amount drawn under the New
TFH Backup L/C's; and
WHEREAS, in order to (i) agree upon the terms of the subordination in
favor of Trustee of the obligations of Debtor to Junior Creditor and related
matters, and (ii) provide for the orderly sharing between Creditors, in
accordance with the subordination provisions hereof, of proceeds of such assets
and properties upon any foreclosure thereon or other disposition thereof Junior
Creditor and Trustee, on behalf of the Senior Creditors, have agreed to enter
into this Subordination Agreement; and
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WHEREAS, Tom's will, on or about the date hereof, issue its 10 1/2% Senior
Secured Notes due November 1, 2004, in the aggregate original principal amount
of $60,000,000 (the "New Senior Notes", as hereinafter further defined) under
an Indenture, dated the date hereof, between Tom's and the Trustee.
NOW THEREFORE, in consideration of the mutual benefits accruing to
Creditors hereunder and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. DEFINITIONS
As used above and elsewhere in this Subordination Agreement, the following
terms shall have the meanings ascribed to them below:
1.1. "Agreements" shall mean, collectively, the Senior Creditor
Agreements and the Junior Creditor Agreement.
1.2. "Collateral" shall mean all of the property and interests in
property, real or personal, tangible or intangible, now owned or hereafter
acquired by Debtor in or upon which Senior Creditors at any time have a Lien,
and including, without limitation, all proceeds of such property and interests
in property.
1.3. "Creditors" shall mean, collectively, the Trustee and Junior
Creditor, and their respective successors and assigns.
1.4. "Debtor" shall mean, individually and collectively, Tom's and TFCC,
and references herein to Debtor shall mean each of Tom's and TFCC, and either
one or both of Tom's and TFCC.
1.5. "Junior Creditor" or "TFH" shall mean TFH Corp., a Delaware
corporation, and its successors and assigns.
1.6. "Junior Creditor Agreement" shall mean the Reimbursement Agreement.
1.7. "Junior Debt" shall mean all obligations, liabilities and
indebtedness of every kind, nature and description owing by Debtor to Junior
Creditor and/or its affiliates or participants, arising under or in connection
with or relating to the Junior Creditor Agreement, including all principal,
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interest, charges, fees, premiums, indemnities and expenses, including
attorneys' fees, however evidenced, whether as principal, surety, endorser,
guarantor or otherwise, whether now existing or hereafter arising, whether
arising before, during or after the initial or any renewal term of the Junior
Creditor Agreements or after the commencement of any case with respect to
Debtor under the U.S. Bankruptcy Code or any similar statute (and including,
without limitation, all principal, interest, fees, costs, expenses, including
attorneys' fees and other amounts, whether or not such amounts are allowable in
whole or in part, in any such case or similar proceeding), whether direct or
indirect, absolute or contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, secured or unsecured, and whether
arising directly or by way of claim of subrogation, reimbursement,
indemnification, exoneration, contribution or otherwise, or howsoever acquired
by Junior Creditor.
1.8. "Lien" shall mean any mortgage, deed to secure debt, deed of trust,
pledge, hypothecation, assignment, deposit arrangement, security interest,
encumbrance (including, but not limited to, easements, rights of way and the
like), liens (statutory or other), security agreement or transfer intended as
security, including without limitation, any conditional sale or other title
retention agreement, the interest of a lessor under a capital lease or any
financing lease having substantially the same economic effect as any of the
foregoing.
1.9. "New Senior Notes" shall mean the 10 1/2% Senior Secured Notes due
November 12004, issued on the date hereof by Tom's in the aggregate original
principal amount of $60,000,000, and any notes issued in exchange therefor,
pursuant to the Indenture, dated as of the date hereof, between Tom's and the
Trustee, together with additional such notes, not to exceed $10,000,000 in the
aggregate original principal amount, issued hereafter pursuant to such
Indenture (as in effect on the date hereof) upon the exchange of shares of
Tom's Exchangeable Preferred Stock, $0.01 par value per share, Class A.
1.10. "New TFH Backup L/C's" shall have the meaning set forth in the
Recitals hereto.
1.11. "Permitted Junior Creditor Enforcement Proceeds" shall have the
meaning set forth in Section 2.2 hereof.
1.12. "Person" or "person" shall mean any individual, sole
proprietorship, partnership, corporation (including,
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without imitation, any corporation which elects subchapter S status under
the Internal Revenue Code of 1986, as amended), limited liability company,
limited liability partnership, business trust, unincorporated association,
joint stock company, trust, joint venture, or other entity or any government or
any agency or instrumentality or political subdivision thereof.
1.13. "Senior Creditors" shall mean the Trustee and the holders of New
Senior Notes, and their successors and assigns.
1.14. "Senior Creditor Agreements" shall mean, collectively, the
Indenture, and all notes, guaranties, security agreements, mortgages, deeds to
secure debt and deeds of trust and all other agreements, documents and
instruments at any time executed and/or delivered by Debtor or any affiliate of
Debtor, with or in favor of Trustee, on behalf of the holders of the New Senior
Notes, in connection therewith or related thereto, as all of the foregoing now
exist or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced.
1.15. "Senior Debt" shall mean any and all obligations, liabilities and
indebtedness of every kind, nature and description owing by Debtor to the
holders of the New Senior Notes, arising under or in connection with or
relating to the Senior Creditor Agreements, including all principal, interest,
charges, fees, premiums, indemnities and expenses, including attorneys' fees,
however evidenced, whether as principal, surety, endorser, guarantor or
otherwise, whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of the Senior Creditor
Agreements or after the commencement of any case with respect to Debtor under
the U.S. Bankruptcy Code or any similar statute (and including, without
limitation, all principal, interest, fees, costs, expenses, including
attorneys' fees and other amounts, whether or not such amounts are allowable in
whole or in part in any such case or similar proceeding), whether direct or
indirect, absolute or contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, secured or unsecured, and whether
arising directly or by way of claim of subrogation, reimbursement,
indemnification, exoneration, contribution or otherwise, or howsoever acquired
by Senior Creditor.
1.16. "TFCC" shall mean Tom's Foods Capital Corporation, a Delaware
corporation, and its successors and assigns, including, without limitation, a
receiver, trustee or debtor-
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in-possession on behalf of such person or on behalf of any such successor or
assign.
1.17. "Tom's" shall mean Tom's Foods Inc., a Delaware corporation and its
successors and assigns, including, without limitation, a receiver, trustee or
debtor-in-possession on behalf of such person or on behalf of any such
successor or assign.
1.18. All terms defined in the Uniform Commercial Code as in effect in
the State of New York, unless otherwise defined herein shall have the meanings
set forth therein. All references to any term in the plural shall include the
singular and all references to any term in the singular shall include the
plural.
2. SUBORDINATION OF JUNIOR DEBT
2.1. Subordination. Junior Creditor hereby absolutely and
unconditionally subordinates its right to payment and satisfaction of the
Junior Debt to, and the payment and satisfaction thereof, directly or
indirectly, by any means whatsoever, is hereby absolutely and unconditionally
deferred until, the prior indefeasible payment and satisfaction in full of all
Senior Debt.
2.2. Distributions.
(a) Without limiting the provisions of Section 2.1 hereof, in the event
of any distribution, division, or application, partial or complete, voluntary
or involuntary, by operation of law or otherwise, of all or any part of the
assets of Debtor or the proceeds thereof to the creditors of Debtor or
readjustment of the obligations and indebtedness of Debtor, whether by reason
of liquidation, bankruptcy, arrangement, receivership, assignment for the
benefit of creditors, marshalling of assets of Debtor or any other action or
proceeding involving the readjustment of all or any part of the indebtedness or
other obligations of Debtor or the application of the assets of Debtor to the
payment or liquidation thereof, or upon the dissolution or other winding up of
Debtor's business, or upon the sale of all or substantially all of Debtor's
assets, then, and in any such event, (i) the Senior Creditors shall first
receive indefeasible payment in full in cash of all of the Senior Debt prior to
the payment of all or any part of the Junior Debt, and (ii) the Senior
Creditors shall be entitled to receive any payment or distribution of any kind
or character, whether in cash, securities or other property, which shall be
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payable or deliverable in respect of any or all of the Junior Debt, until
such time as the Senior Creditor Agreements have been terminated and the Senior
Debt has been indefeasibly paid and satisfied in full.
(b) In order to enable the Trustee, on behalf of the Senior Creditors to
enforce its rights under Section 2.2(a) above, Trustee is hereby irrevocably
authorized and empowered (in its own name or in the name of Junior Creditor or
otherwise), but shall have no obligation to, enforce claims comprising any of
the Junior Debt by proof of debt, proof of claim, suit or otherwise and take
generally any action which Junior Creditor might otherwise be entitled to take,
as Senior Creditor may deem necessary or advisable for the enforcement of its
rights or interests hereunder.
(c) To the extent necessary for the Senior Creditors to realize the
benefits of the subordination of the Junior Debt provided for herein, Junior
Creditor shall execute and deliver to the Trustee such instruments or documents
(together with such assignments or endorsements as Trustee shall deem
necessary), as may be requested by Trustee.
(d) Without limiting the foregoing, Trustee and each of its officers
holding the title of vice president or higher are hereby irrevocably appointed
by Junior Creditor as its true and lawful attorney-in-fact to prepare, sign and
file in Junior Creditor's name all such instruments or documents (together with
such assignments and endorsements), and to take such further actions as Trustee
may deem necessary or desirable for the enforcement of its rights or interests
hereunder.
2.3. Payments and Proceeds Received by Junior Creditor. Should any
payment or distribution or security or instrument or proceeds thereof be
received by Junior Creditor in respect of the Junior Debt, Junior Creditor
shall receive and hold the same in trust, as trustee, for the benefit of Senior
Creditors, segregated from other funds and property of Junior Creditor and
shall forthwith deliver the same to Trustee, on behalf of the Senior Creditors,
(together with any endorsement or assignment of Junior Creditor where
necessary), for application to any of the Senior Debt. In the event of the
failure of the Junior Creditor to make any such endorsement or assignment to
Trustee, the Trustee, or any of its officers or employees, are hereby
irrevocably authorized on behalf of Junior Creditor to make the same.
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2.4. Instrument Legend and Notation. Any instrument at any time
evidencing the Junior Debt, or any portion thereof, shall be permanently marked
on its face with a legend conspicuously indicating that payment thereof is
subordinate in right of payment to the Senior Debt and subject to the terms and
conditions of this Subordination Agreement, and the original of any such
instrument shall be immediately delivered to Senior Creditor. In the event any
legend or endorsement is omitted, Trustee or any of its officers or employees,
are hereby irrevocably authorized on behalf of Junior Creditor to make the
same. No specific legend, further assignment or endorsement or delivery of
notes, guarantees or instruments shall be necessary to subject any Junior Debt
to the subordination thereof contained in this Subordination Agreement.
3. COVENANTS, REPRESENTATIONS AND WARRANTIES
3.1. Additional Covenants. Junior Creditor and Debtor agree in favor of
Senior Creditors that:
(a) Debtor shall not, directly or indirectly, make, and Junior Creditor
shall not, directly or indirectly, accept or receive, any payment of principal
or interest or other amount, whether or not due, or any prepayment or any
payment pursuant to acceleration or claims of breach or any payment to acquire
Junior Debt or otherwise in respect of any Junior Debt;
(b) Junior Creditor and Debtor shall not amend, modify, alter or change
in any respect the terms of any of the Junior Creditor Agreements or any other
arrangements related to the Junior Debt;
(c) Junior Creditor shall not sell, assign, pledge, encumber or otherwise
dispose of any of the Junior Debt, or subordinate any of the Junior Debt to any
indebtedness of Debtor other than the Senior Debt;
(d) Junior Creditor and Debtor shall, at any time or times upon the
request of Trustee, promptly furnish to Trustee a true, correct and complete
statement of the outstanding Junior Debt;
(e) Junior Creditor and Debtor shall execute and deliver to Trustee such
additional agreements, documents and instruments and take such further actions
as may be necessary or desirable in the opinion of Trustee to effectuate the
provisions and purposes of this Subordination Agreement.
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3.2. Additional Representations and Warranties. Junior Creditor and
Debtor represent and warrant to Senior Creditors that:
(a) as of the date hereof, no default or event of default, or event which
with notice or passage of time or both would constitute an event of default
exists or has occurred under the Junior Creditor Agreement;
(b) none of the Junior Debt is subject to any Lien, financing statements,
subordination, assignment or other claim, except in favor of Senior Creditor;
(c) this Subordination Agreement constitutes the legal, valid and binding
obligation of Junior Creditor, enforceable in accordance with its terms.
3.3. Waivers. Notice of acceptance hereof, the making of loans, advances
and extensions of credit or other financial accommodations to, and the
incurring of any expenses by or in respect of, Debtor by Senior Creditors, and
presentment, demand, protest, notice of protest, notice of nonpayment or
default and all other notices to which Junior Creditor and Debtor are or may be
entitled are hereby waived (except in the case of Debtor, for any notices
required to be given to Debtor as expressly provided for in the Senior Creditor
Agreements). Junior Creditor also waives notice of, and hereby consents to,
(a) any amendment, modification, supplement, renewal, restatement or extensions
of time of payment of or increase or decrease in the amount of any of the
Senior Debt or with respect to the Senior Creditor Agreements, (b) the taking,
exchange, surrender and releasing of guarantees now or at any time held by or
available to Senior Creditors for the Senior Debt or any other person at any
time liable for or in respect of the Senior Debt, (c) the exercise of, or
refraining from the exercise of any rights against Debtor or any other obligor,
(d) the settlement, compromise or release of, or the waiver of any default with
respect to, any of the Senior Debt, and/or (e) Senior Creditor's election, in
any proceeding instituted under the U.S. Bankruptcy Code, of the application of
Section 1111(b)(2) of the U.S. Bankruptcy Code. Any of the foregoing shall
not, in any manner, affect the terms hereof or impair the obligations of Junior
Creditor hereunder. All of the Senior Debt shall be deemed to have been made
or incurred in reliance upon this Subordination Agreement.
3.4. Subrogation; Marshalling. Junior Creditor shall not be subrogated
to, or be entitled to any assignment of
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any Senior Debt or Junior Debt or of any Collateral or guarantees or
evidence of any thereof. Junior Creditor hereby waives any and all rights to
have any Collateral or any part thereof granted to or on behalf of Senior
Creditors marshalled upon any foreclosure or other disposition of such
Collateral by or on behalf of the Senior Creditors or Debtor.
3.5. No Offset. In the event Junior Creditor at any time incurs any
obligation to pay money to Debtor, Junior Creditor hereby irrevocably agrees
that it shall pay such obligation in cash or cash equivalents in accordance
with the terms of the contract governing such obligation and shall not deduct
from or setoff against any amounts owed by the Junior Creditor to Debtor in
connection with any such transaction any amounts Junior Creditor claims are due
to it with respect to the Junior Debt.
4. MISCELLANEOUS
4.1. Amendments. Any waiver, permit, consent or approval by either
Creditor of or under any provision, condition or covenant to this Subordination
Agreement must be in writing and shall be effective only to the extent it is
set forth in writing and as to the specific facts or circumstances covered
thereby. Any amendment of this Subordination Agreement must be in writing and
signed by each of the parties to be bound thereby.
4.2. Successors and Assigns.
(a) This Subordination Agreement shall be binding upon the parties hereto
and their respective successors and assigns and shall inure to the benefit of
each Creditor and its respective successors, participants and assigns.
(b) Senior Creditors reserve the right to sell, assign, transfer or
negotiate all or any part of, or any interest in, the Senior Debt and the
Collateral securing same; provided, that, Junior Creditor shall not be
obligated to give any notices to or otherwise in any manner deal directly with
any participant in the Senior Debt and no participant shall be entitled to any
rights or benefits under this Subordination Agreement, except through Senior
Creditor.
(c) In connection with any assignment or transfer of any or all of the
Senior Debt, or any or all rights of Senior Creditors in the property of Debtor
(other than pursuant to a participation), Junior Creditor agrees to execute and
deliver
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an agreement containing terms substantially identical to those contained
herein in favor of any such assignee or transferee and, in addition, will
execute and deliver an agreement containing terms substantially identical to
those contained herein in favor of any third person who succeeds to or replaces
any or all of Senior Creditor's financing of Tom's, whether such successor
financing or replacement occurs by transfer, assignment, "takeout" or any other
means or vehicle.
4.3. Insolvency. This Subordination Agreement shall be applicable both
before and after the filing of any petition by or against Debtor under the U.S.
Bankruptcy Code and all converted or succeeding cases in respect thereof, and
all references herein to Debtor shall be deemed to apply to a trustee for
Debtor and Debtor as debtor-in-possession. The relative rights of Senior
Creditors and Junior Creditor to repayment of the Senior Debt and the Junior
Debt, respectively, and in or to any distributions from or in respect of Debtor
or any Collateral or proceeds of Collateral, shall continue after the filing
thereof on the same basis as prior to the date of the petition, subject to any
court order approving the financing of, or use of cash collateral by, Debtor as
debtor-in-possession.
4.4. Bankruptcy Financing. If Debtor shall become subject to a
proceeding under the U.S. Bankruptcy Code and if Senior Creditors desire to
permit the use of cash collateral or to provide financing to Debtor under
either Section 363 or Section 364 of the U.S. Bankruptcy Code, Junior Creditor
agrees as follows: (a) adequate notice to Junior Creditor shall have been
provided for such financing or use of cash collateral if Junior Creditor
receives notice two (2) business days prior to the entry of the order approving
such financing or use of cash collateral and (b) no objection will be raised by
Junior Creditor to any such financing or use of cash collateral on the ground
of a failure to provide "adequate protection" for Junior Creditor's junior
Liens on the Collateral or any other grounds. For purposes of this Section,
notice of a proposed financing or use of cash collateral shall be deemed given
when given, in the manner prescribed by Section 4.5 hereof, to Junior Creditor.
4.5. Notices. All notices, requests and demands to or upon the
respective parties hereto shall be in writing and shall be deemed to have been
duly given or made: if delivered in person, immediately upon delivery; if by
telex, telegram or facsimile transmission, immediately upon sending and upon
confirmation of receipt; if by nationally recognized overnight courier service
with instructions to deliver the next business day, one (1) business day after
sending; and if mailed by cer-
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tified mail, return receipt requested, five (5) days after mailing. All
notices, requests and demands are to be given or made to the respective parties
at their addresses set forth below (or to such other addresses as either party
may designate by notice in accordance with the provisions of this Section):
To Senior Creditors: IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Office
To Junior Creditor: TFH Corp.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Mr. S. Xxxxxx Xxxxxx
Either Creditor may change the address(es) to which all notices, requests and
other communications are to be sent by giving written notice of such address
change to the other Creditor in conformity with this Section 4.5, but such
change shall not be effective until notice of such change has been received by
the other Creditor.
4.6. Counterparts. This Subordination Agreement may be executed in any
number of counterparts, each of which shall be an original with the same force
and effect as if the signatures thereto and hereto were upon the same
instrument.
4.7. Governing Law. The validity, construction and effect of this
Subordination Agreement shall be governed by the internal laws of the State of
New York (without giving effect to principles of conflicts of law).
4.8. Consent to Jurisdiction; Waiver of Jury Trial. Each of the parties
hereto hereby irrevocably consents to the non-exclusive jurisdiction of any
state or federal court of competent jurisdiction in the state of New York and
waives trial by jury in any action or proceeding with respect to this
Subordination Agreement.
4.9. Complete Agreement. This written Subordination Agreement is
intended by the parties as a final expression of their agreement and is
intended as a complete statement of the terms and conditions of their
agreement; provided, that the provisions of this Subordination Agreement in
favor of Senior Creditors shall be supplementary to the provisions, upon which
Senior Creditors may rely, contained in the letter agreement,
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dated of even date herewith, among Tom's, Junior Creditor and the account
parties in respect of the New TFH Backup L/C's.
4.10. No Third Parties Benefitted. This Subordination Agreement is
solely for the benefit of the Creditors and their respective successors,
participants and assigns, and no other person shall have any right, benefit,
priority or interest under, or because of the existence of, this Subordination
Agreement.
4.11. Disclosures; Non-Reliance. Each Creditor has the means to, and
shall in the future remain, fully informed as to the financial condition and
other affairs of Debtor and neither Creditor shall have any obligation or duty
to disclose any such information to the other Creditor. Except as expressly
set forth in this Subordination Agreement, the parties hereto have not
otherwise made to each other nor do they hereby make to each other any
warranties, express or implied, nor do they assume any liability to each other
with respect to: (a) the enforceability, validity, value or collectability of
any of the Junior Debt or Senior Debt or any guarantee or security which may
have been granted to any of them in connection therewith, (b) Debtor's title to
or right to transfer any of the Collateral, or (c) any other matter except as
expressly set forth in this Subordination Agreement.
4.12. Costs and Expenses. Junior Creditor shall pay to Trustee all costs
and expenses (including reasonable attorneys' fees and legal expenses) incurred
by Trustee in connection with the enforcement of this Subordination Agreement
and Senior Creditor's rights and Junior Creditor's obligations hereunder.
4.13. Term. This Subordination Agreement is a continuing agreement and
shall remain in full force and effect until the indefeasible payment and
satisfaction in full of all Senior Debt and the termination of the Senior
Creditor Agreements.
[signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Subordination Agreement
to be duly executed as of the day and year first above written.
IBJ XXXXXXXX BANK & TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxxx
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Title: Assistant Vice President
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TFH CORP.
By: /s/ S. Xxxxxx Xxxxxx
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Title: Vice President
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ACKNOWLEDGEMENT AND AGREEMENT
Each of the undersigned hereby acknowledges and agrees to the foregoing
terms and provisions. By its signature below, each of the undersigned agrees
that it will, together with its successors and assigns, be bound by the
provisions hereof. In the event of any conflict between the terms of the
foregoing Subordination Agreement and the Senior Creditor Agreements or the
Junior Creditor Agreements, the terms of the Senior Creditor Agreements or the
Junior Creditor Agreements, as the case may be, shall govern, solely as between
the Creditor involved and the undersigned.
Each of the undersigned acknowledges and agrees that: (i) although it may
sign this Subordination Agreement it is not a party hereto and does not and
will not receive any right, benefit, priority or interest under or because of
the existence of the foregoing Subordination Agreement, (ii) in the event of a
breach by the undersigned or Junior Creditor of any of the terms and provisions
contained in the foregoing Subordination Agreement, such a breach shall
constitute an "Event of Default" as defined in and under the Senior Creditor
Agreements and (iii) it will execute and deliver such additional documents and
take such additional action as may be necessary or desirable in the opinion of
Trustee to effectuate the provisions and purposes of the foregoing
Subordination Agreement.
TOM'S FOODS INC.
By: /s/ S. Xxxxxx Xxxxxx
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Title: Senior Vice President
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TOM'S FOODS CAPITAL CORPORATION
By: /s/ S. Xxxxxx Xxxxxx
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Title: Vice President
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