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EXHIBIT 4.23
DEBT SUBORDINATION AGREEMENT
THIS DEBT SUBORDINATION AGREEMENT ("Agreement") is made and entered into
this 20th day of March, 1998, among BANC ONE CAPITAL PARTNERS, LLC, a limited
liability company organized under the laws of the State of Delaware (together
with its successors and permitted assigns, "Subordinated Creditor"); ATLANTIC
PREMIUM BRANDS, LTD., CARLTON FOODS CORP., PREFCO CORP., XXXXXX'X FARM, INC.,
XXXXXXXX CAJUN FOODS CORP. AND POTTER'S ACQUISITION CORP., each a Delaware
corporation (collectively referred to as, "Borrowers"); and FLEET CAPITAL
CORPORATION, a Rhode Island corporation (together with its successors and
assigns, "Senior Creditor").
RECITALS:
Senior Creditor and Borrowers are parties to a certain Loan and Security
Agreement dated the date hereof (as at any time amended, the "Loan Agreement")
pursuant to which Senior Creditor may make loans and other extensions of credit
to or for the benefit of Borrowers from time to time, secured by all or
substantially all of the assets of Borrowers.
Subordinated Creditor and Borrowers are parties to a certain Senior
Subordinated Note and Warrant Purchase Agreement dated as of March 20, 1998 (as
at any time amended, the "Note Purchase Agreement"), pursuant to which
Subordinated Creditor has agreed to make a loan to Borrowers in the amount of
$6,500,000, as evidenced by a certain Senior Subordinated Note (the as at any
time amended, "Subordinated Note"), payment of which is secured by a junior lien
upon substantially all of Borrowers' assets.
A condition to any obligation of Senior Creditor to make any loans or other
extensions of credit to Borrowers under the Loan Agreement is the execution and
delivery of this Agreement by Senior Creditor, Borrowers and Subordinated
Creditor. A condition to any obligation of Subordinated Creditor under the Note
Purchase Agreement is the execution of this Agreement by Senior Creditor,
Borrowers and Subordinated Creditor. Each of the parties desires to enter into
this Agreement to facilitate the consummation of the transactions contemplated
by the Loan Agreement and the Subordinated Note.
NOW, THEREFORE, for TEN DOLLARS ($10.00) and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and the mutual
covenants herein, and to induce Senior Creditor to provide financial
accommodations to or for the benefit of Borrowers, the parties hereto, intending
to be legally bound hereby, do agree as follows:
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1. DEFINITIONS; RULES OF CONSTRUCTION.
(a) Capitalized terms used in this Agreement, unless otherwise
defined, shall have the meanings ascribed to them in the Loan Agreement. In
addition to such other terms as are elsewhere defined herein, the following
terms shall have the following meanings for the purposes of this Agreement:
"Accruals" shall mean, on any date of determination thereof, (i) all
unpaid interest accrued through such date with respect to the principal
amount of Loans and other Obligations outstanding under any of the Senior
Creditor Loan Documents on such date, such principal amount not to exceed
the Maximum Senior Principal Cap, and (ii) all Enforcement Expenses
incurred by Senior Creditor under any of the Senior Creditor Loan Documents
through such date.
"Applicable Pro Forma EBITDA" shall mean, on any date, Borrowers'
written estimate (which estimate shall be delivered to both Senior Creditor
and Subordinated Creditor at least 5, but not more than 45, days in advance
of the effective date of any requested increase in the Total Senior Credit
Facility in effect under Section 1 of the Loan Agreement) of Borrowers' and
their Subsidiaries' pro forma EBITDA, on a Consolidated and combined basis,
(i) for the 12-month period immediately preceding the date of such written
estimate, in the case of an increase in the Total Senior Credit Facility in
connection with a proposed acquisition by a Borrower of Equity Interests or
Property of another Person, in which case pro forma EBITDA shall be
calculated as if such acquisition had occurred on the day before the first
day of such 12-month period, or (ii) for the 12-month period immediately
following the date of such written estimate, in the case of an increase in
the Total Senior Credit Facility for any other purpose. Senior Creditor
shall be authorized to rely upon any estimate provided to it by Borrowers
of their and their Subsidiaries' pro forma EBITDA in determining whether
any increase in the Total Senior Credit Facility will not exceed the Senior
Debt Limit and any such written estimate shall be conclusive and binding
upon all parties.
"Bankruptcy Case" shall mean any case hereafter commenced by or
against Borrowers under any chapter of the Bankruptcy Code.
"Bankruptcy Code" shall mean title 11 of the United States Code.
"Enforcement Expenses" shall mean all costs and expenses incurred by
Senior Creditor in connection with its enforcement of any rights or
remedies under the Senior Creditor Loan Documents, the collection of any of
the Senior Debt or the protection of, or realization upon, any Collateral
after the occurrence and during the continuance of a Senior Debt Default,
including, by way of example, reasonable attorneys' fees, court costs,
appraisal and consulting fees, auctioneers' fees, rent, storage, insurance
premiums, taxes, and like items, whether such amounts are allowed as a
claim against Borrowers under the Bankruptcy Code.
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"Lien Subordination" shall mean that certain Lien Subordination
Agreement between Senior Creditor and Subordinated Creditor of even date
herewith.
"Maximum Senior Principal Cap" shall mean, on any date, thereof, an
amount equal to the lesser of (i)$70,000,000 or (ii) the Pro Forma Cap.
"Obligor" shall mean Borrowers and any other Person that is liable for
the payment of the whole or any part of the Senior Debt.
"Payment Default" shall mean a Senior Debt Default that results from
Borrowers' failure to pay any of the Senior Debt on the due date thereof
(whether due at stated maturity, upon acceleration, on demand or
otherwise).
"Plan" shall mean a plan proposed in an Insolvency Proceeding for the
reorganization or rehabilitation of an Obligor, a composition or extension
of any of such Obligor's Debts or a liquidation in whole or in part of such
Obligor's assets.
"Pro Forma Cap" shall mean, on any date of determination thereof, an
amount equal to $26,000,000, provided that if after the date hereof
Borrowers request an increase in the Total Senior Credit Facility and shall
in connection therewith determine the Applicable Pro Forma EBITDA, then the
"Pro Forma Cap" shall mean an amount equal to the greater of (i)
$26,000,000 or (ii) the Applicable Pro Forma EBITDA in effect on such date
multiplied by 4. If after the date hereof the amount of the Pro Forma Cap
is increased to an amount above $26,000,000 based upon Borrowers'
calculation of the Applicable Pro Forma EBITDA, such increase in the Pro
Forma Cap (as well as any increase in the Total Senior Credit Facility as a
consequence thereof) shall be deemed to be a permanent increase in such
amount, irrespective of any subsequent changes in Borrowers' or their
Subsidiaries' financial performance or condition or any subsequent
calculation of the Applicable Pro Forma EBITDA.
"Qualified Lender" shall mean (i) any parent, affiliate or subsidiary
of Senior Creditor and (ii) any bank, trust company, savings institution,
insurance company, finance company, investment partnership or company, or
other financial institution or institutional lender of recognized national
or regional standing in the business of making, purchasing or refinancing
of indebtedness for borrowed money.
"Reorganization Securities" shall mean and include (a) shares of
common stock (or other equity securities) of Debtor and (b) debt securities
of Debtor, the payment of which is subordinated to the full and final
payment of all Senior Debt at the time outstanding and to the payment of
all debt securities issued in exchange therefor to Senior Creditor, which
shares or other equity or debt securities have been provided for by a Plan
that has been approved by final order of a court and that has been accepted
by Senior Creditor.
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"Senior Creditor Loan Documents" shall mean the Loan Documents (as
defined in the Loan Agreement).
"Senior Debt" shall mean (i) all Loans at any time made and all other
Obligations now or hereafter existing under or with respect to any of the
Senior Creditor Loan Documents, (ii) any and all loans made or other credit
extended by Senior Creditor to Borrowers during the pendency of any
Bankruptcy Case, (iii) all interest at any time accrued with respect to any
of the foregoing (including any interest that accrues during the pendency
of any Bankruptcy Case, whether or not Senior Creditor is authorized under
the Bankruptcy Code to collect such interest from Borrowers), and (iv) all
Enforcement Expenses which Borrowers are now or hereafter liable to pay to
Senior Creditor under any agreement or by Applicable Law.
"Senior Debt Default" shall mean an Event of Default under (and as
defined in) the Loan Agreement.
"Senior Debt Limit" shall mean, on any date of determination thereof,
the sum of the Maximum Senior Principal Cap in effect on such date plus all
Accruals through such date.
"Subordinated Debt" shall mean all Debt of Borrowers to Subordinated
Creditor under or with respect to the Subordinated Note, whether such Debt
is now or hereafter existing and however and whenever made or incurred, and
whether direct or indirect, absolute or contingent, due or to become due,
joint or several, or secured or unsecured, including all principal,
interest and premium on, and all other amounts payable in respect of, the
Subordinated Note, and all fees, charges, expenses, attorneys' fees,
commitment or other fees, indemnity amounts, collection costs and other
amounts owing by Borrowers to Subordinated Creditor under any of the
Subordinated Debt Documents or otherwise.
"Subordinated Debt Default" shall mean an event of default under any
of the Subordinated Debt Documents except to the extent that such event of
default results from (i) any default resulting from a breach of any
affirmative covenant (except Borrowers' failure to timely deliver any
financial reporting to Subordinated Creditor) or (ii) any default resulting
from a breach of any representation or warranty.
"Subordinated Debt Documents" shall mean and include the Note Purchase
Agreement, the Subordinated Note, the Subordinated Security Agreement and
all other agreements or instruments now or hereafter evidencing or securing
the payment of the whole or any part of the Subordinated Debt.
"Subordinated Security Agreement" shall have the meaning ascribed to
it in the Lien Subordination.
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"Total Senior Credit Facility" shall mean, on any date, the total
amount of the credit facility provided for in, and in effect under, Section
1 of the Loan Agreement on such date, which amount, on the date hereof, is
$26,000,000.
(b) The terms "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
section, paragraph or subdivision. All references to statutes and related
regulations shall include any amendments to same and any successor statutes and
regulations. All references to any instruments or agreements, including any of
the Senior Creditor Loan Documents or any of the Subordinated Debt Documents
shall include any and all modifications thereto and any and all restatements,
extensions or renewals thereof. All references to any of the Subordinated Debt
or Senior Debt shall mean all renewals, extensions, substitutions, refundings,
refinancings, restructurings or replacements of any such Debt (including all
successive renewals, extensions, substitutions, refundings, refinancings,
restructurings or replacements of such Debt). All references to "including" and
"include" shall be understood to mean "including, without limitation."
2. SUBORDINATION.
(a) Subject to the provisions of paragraph 5 hereof relating to
payments on the Subordinated Debt that are permitted to be made to the extent
and under the circumstances set forth in paragraph 5, Subordinated Creditor
hereby postpones and subordinates all of the Subordinated Debt to the full and
final payment and discharge of all of the Senior Debt and Senior Creditor shall
be entitled to receive payment in full of all Senior Debt before any payment or
distribution (other than a distribution of Reorganization Securities) is made on
account of or applied to any of the Subordinated Debt. Each holder of Senior
Debt, whether now outstanding or hereafter created, incurred, assumed or
guaranteed, shall be deemed to have acquired Senior Debt with full knowledge of
and in reliance upon this Agreement, and each holder of Subordinated Debt,
whether now outstanding or hereafter created, incurred, assumed or guaranteed,
shall be deemed to have acquired the Subordinated Debt with full knowledge and
subject to the terms and provisions of this Agreement.
(b) 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 any Obligor or the proceeds thereof to
creditors of any Obligor or upon any indebtedness of any Obligor, by reason of
the liquidation, dissolution or other winding up of such Obligor or such
Obligor's business, or in the event of any sale of assets of any Obligor or
Insolvency Proceeding involving any Obligor or its assets, any payment or
distribution of any kind or character, whether in cash, securities or other
property (excluding Reorganization Securities), which shall be payable or
deliverable upon or with respect to any of the Subordinated Debt shall be paid
or delivered directly to Senior Creditor for application to the Senior Debt
(whether or not the same is then due) until all of the Senior Debt has been
fully paid and discharged. Each Subordinated Note shall at all times bear a
conspicuous legend that the Subordinated Debt evidenced thereby is subordinated
to the Senior Debt pursuant to this Agreement.
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(c) Upon any distribution of the assets of any Obligor or the
proceeds thereof in any Insolvency Proceeding, the holders of the Subordinated
Debt shall be entitled to rely upon any order made by the court in which such
Insolvency Proceeding is pending, or a certificate of the debtor, custodian,
liquidating trustee, agent or other Person making any distribution to such
holders, for the purpose of ascertaining the Persons entitled to participation
in such distribution, the holders of the Senior Debt, the amount thereof or
payable thereon, the amount or amounts paid or distribution thereon and all
other facts pertinent thereto or to this paragraph 2.
(d) If any holder of Subordinated Debt shall not file a proper claim
or proof of debt as shall be necessary in order to have the claims of such
holders allowed in any Insolvency Proceeding commenced by or against an Obligor
or involving such Obligor's assets, in the form required in such Insolvency
Proceeding, at least 15 days prior to the expiration of the time to file such
claim or proof of debt, Senior Creditor is hereby irrevocably authorized and
shall have the right (but not the obligation) to file an appropriate claim or
proof of debt in such Insolvency Proceeding for and on behalf of such holder of
Subordinated Debt.
3. WARRANTIES AND REPRESENTATIONS.
(a) Subordinated Creditor hereby represents and warrants that: (i) it
has not relied nor will it rely on any representation or information of any
nature made by or received from Senior Creditor relative to Borrowers in
deciding to execute this Agreement; (ii) no part of the Subordinated Debt is
evidenced by any instrument or writing except the Subordinated Debt Documents;
(iii) Subordinated Creditor is the lawful owner of the Subordinated Debt; (iv)
Subordinated Creditor has not heretofore assigned or transferred any of the
Subordinated Debt, any interest therein or any Collateral or security pertaining
thereto; and (v) Subordinated Creditor has not heretofore given any
subordination in respect of the Subordinated Debt.
(b) Senior Creditor hereby represents and warrants that: (i) it has
not relied nor will it rely on any representation or information of any nature
made by or received from Subordinated Creditor relative to Borrowers in deciding
to execute this Agreement; (ii) no part of the Senior Debt is evidenced by any
instrument or writing except the Senior Creditor Loan Documents; (iii) Senior
Creditor is the lawful owner of the Senior Debt; (iv) Senior Creditor has not
heretofore assigned or transferred any of the Senior Debt, any interest therein
or any Collateral or security pertaining thereto; and (v) Senior Creditor has
not given any subordination in respect of the Senior Debt.
(c) Each of the parties hereto represents and warrants to each of the
other parties hereto that this Agreement has been duly executed and delivered by
such party and is the valid and binding obligation of such party, enforceable
against such party in accordance with the terms hereof, except as such
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by principles of equity.
4. NEGATIVE COVENANTS. For so long as this Agreement is in effect,
Borrowers and Subordinated Creditor agree with Senior Creditor that, except as
otherwise expressly provided
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in this Agreement: (i) Borrowers shall not, directly or indirectly, make any
payment on account of any part of the Subordinated Debt or, except as expressly
authorized by the Lien Subordination, grant any Lien upon any assets of
Borrowers to secure the payment of any of the Subordinated Debt; (ii)
Subordinated Creditor shall not demand, collect or accept from an Obligor any
payment on account of the Subordinated Debt or any part thereof, or accelerate
the maturity of the Subordinated Debt or realize upon or enforce any Lien upon
the Collateral; (iii) except as otherwise expressly provided in the Subordinated
Debt Documents as in effect on the date hereof, Subordinated Creditor shall not
exchange, set off, release, convert to equity or otherwise discharge any part of
the Subordinated Debt; (iv) Subordinated Creditor shall not hereafter give any
subordination in respect of the Subordinated Debt or sell, transfer, assign or
grant a security interest or participation in any of the Subordinated Debt to
any Person other than Senior Creditor without the prior written consent of
Senior Creditor unless Subordinated Creditor gives Senior Creditor at least 5
days prior written notice of such transfer or assignment and the transferee or
assignee thereof first agrees in writing with Senior Creditor to be bound by the
terms of this Agreement; and (v) Borrowers shall not hereafter issue any
instrument or other writing evidencing any part of the Subordinated Debt other
than the Subordinated Note and the Note Purchase Agreement, and Subordinated
Creditor will not receive any such writing.
5. PERMITTED PAYMENTS; PAYMENT AND REMEDY BARS.
(a) Except as otherwise provided in paragraph 2(b) and in this
paragraph 5, Borrowers may pay to Subordinated Creditor, and Subordinated
Creditor may accept and retain, any regularly scheduled installment of principal
and interest as and when due and payable to Subordinated Creditor by Borrowers
under the Subordinated Note as in effect on the date hereof and in accordance
with its present tenor, but without prepayment (whether mandatory or optional).
(b) No direct or indirect payment in respect of any principal or
interest payable on any of the Subordinated Debt shall be made by Borrowers or
any other Person liable for any of the Subordinated Debt, or be accepted or
retained by Subordinated Creditor, if at the time such payment is made or
received there exists a Payment Default, the Subordinated Creditor has received
written notice thereof from Borrowers or Senior Creditor and such Payment
Default shall not have been cured or in writing waived (or the benefit of this
subparagraph (b) waived in writing) by Senior Creditor.
(c) Upon the occurrence and during the continuance of a Senior Debt
Default that is not a Payment Default, Senior Creditor may bar the making and
acceptance of any and all payments with respect to Subordinated Debt by giving
written notice (each a "Payment Bar Notice") to Borrowers and Subordinated
Creditor. Any such Payment Bar Notice shall state that a Senior Debt Default has
occurred and that the Payment Bar Notice is being delivered pursuant to this
Agreement. During the period (each such period, a "Payment Bar Period")
commencing on the date a Payment Bar Notice is given by Senior Creditor and
ending on the applicable Payment Bar Termination Date (as hereinafter defined),
no payment with respect to the Subordinated Debt (including any payment due at
maturity if the maturity thereof occurs during such Payment Bar Period, whether
by acceleration or otherwise) shall be made by or on behalf
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of any Obligor. For the purpose hereof, the term "Payment Bar Termination Date"
shall mean, with respect to any Payment Bar Notice, the earlier of the dates on
which: (i) all Senior Debt Defaults identified in such Payment Bar Notice shall
have been cured or waived in writing in accordance with the applicable
provisions of the Senior Creditor Loan Documents, or (ii) 180 days shall have
elapsed after the date on which Senior Creditor shall have given such Payment
Bar Notice to Borrowers.
(d) Senior Creditor and Subordinated Creditor each agrees to send to
the other a copy of each notice of default or acceleration that it sends to
Borrowers, promptly after the sending of same to Borrowers, and shall endeavor
in good faith (but without liability to the other for its failure to do so) to
give to the other written notice of any default by Borrowers deemed by it to be
material, promptly after its having obtained knowledge of such default. Upon the
occurrence and during the continuance of a Subordinated Debt Default,
Subordinated Creditor may, subject to giving Senior Creditor not less than 15
nor more than 30 days' prior written notice of Subordinated Creditor's intent to
exercise any of its rights and remedies as a consequence of such Subordinated
Debt Default, exercise any or all of its rights and remedies to enforce payment
of the Subordinated Debt; provided, however, that Subordinated Creditor shall
not be authorized to exercise any of its rights or remedies during a Remedy Bar
Period (as hereinafter defined) and Subordinated Creditor's enforcement of any
Lien that it may now hold or hereafter obtain with respect to any of the
Collateral shall in all events be subject to all of the limitations and
restrictions contained in the Lien Subordination; and provided further, however,
that all Senior Debt then or thereafter due shall first be paid in full before
the holders of any Subordinated Debt are entitled to receive or retain any
payment or property on account of or for application to the Subordinated Debt.
(e) Upon the occurrence and during the continuance of a Senior Debt
Default (including a Senior Debt Default resulting from the occurrence of any
Subordinated Debt Default), Senior Creditor may, at its option, bar Subordinated
Creditor from exercising against any Obligor any of the rights and remedies
hereinafter described in this subparagraph (e) by delivering a written notice
(each a "Remedy Bar Notice") to each holder of Subordinated Debt. Each such
Remedy Bar Notice shall state that a Senior Debt Default has occurred and that a
Remedy Bar Notice is being delivered pursuant to this Agreement. During any
period (each such period, a "Remedy Bar Period") commencing on the date such
Remedy Bar Notice is received by Subordinated Creditor and ending on the
applicable Remedy Bar Termination Date (as hereinafter defined), no holder of
Subordinated Debt shall take any action to (A) accelerate the maturity of, or
demand as immediately due and payable, all or any part of the Subordinated Debt,
(B) commence, continue or participate (except as provided in clause (iv) of the
definition of "Remedy Bar Termination Date" below) in any judicial, arbitral or
other proceeding or any other enforcement action of any kind against any Obligor
or any of such Obligor's assets (including any involuntary proceeding under the
Bankruptcy Code) seeking, directly or indirectly, to enforce any of their rights
or remedies, or to enforce any of the obligations incurred by Borrowers or any
other Person under or in connection with the Subordinated Debt or the
Subordinated Debt Documents, (C) commence or pursue any judicial, arbitral or
other proceeding or legal action of any kind, seeking injunctive or other
equitable relief to prohibit, limit or impair the commencement or pursuit by
Senior Creditor of any of its rights or remedies
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under or in connection with the Senior Creditor Loan Documents or otherwise
available to Senior Creditor under Applicable Law, or (D) commence or join with
any other creditor of any borrower in commencing any Insolvency Proceeding
against any Borrower. For the purpose hereof, the term "Remedy Bar Termination
Date" shall mean, with respect to any Remedy Bar Notice, the date, following the
receipt of such Remedy Bar Notice by the holders of Subordinated Debt, on which
the earliest of the following events shall occur: (i) all Senior Debt Defaults
identified in such Remedy Bar Notice shall have been cured or in writing waived
in accordance with the applicable provisions of the Senior Creditor Loan
Documents; (ii) 180 days shall have elapsed after the date of receipt by
Subordinated Creditor of such Remedy Bar Notice; (iii) Senior Creditor shall
have accelerated the maturity, or demanded immediate payment, of the entire
balance of the Senior Debt; (iv) any voluntary proceeding under any chapter of
the Bankruptcy Code by Borrowers shall be commenced, or any involuntary
proceeding under the Bankruptcy Code shall have been filed against
Borrowers(other than by any holder of Subordinated Debt) and an order for relief
shall have been entered by the court in such proceeding (provided that nothing
in this paragraph 5(e) shall be construed to prevent the holders of Subordinated
Debt from appearing and participating in such involuntary proceeding to the
fullest extent permitted by Applicable Law at any time after the filing
thereof); or (v) Senior Creditor shall commence or pursue (1) any judicial,
arbitral or other proceeding or enforcement action of any kind against any
Obligor or any of its assets, seeking directly or indirectly, to enforce any of
the obligations incurred by such Obligor under any of the Senior Creditor Loan
Documents or (2) any action (by judicial proceeding or otherwise) to foreclose
or otherwise enforce any Liens securing Senior Debt against any of the
Collateral; provided, however, that actions taken by Senior Creditor to receive,
collect, retain or apply to the Senior Debt the cash proceeds of any Collateral
(including proceeds of Accounts and Inventory) paid in the ordinary course of
business of any Obligor's compliance with the Senior Creditor Loan Documents or
to limit or terminate the advancing or readvancing of Loans or the issuance or
reissuance of Letters of Credit or similar contingent obligations by Senior
Creditor under the terms of the Senior Creditor Loan Documents shall not be
construed to be actions described in the foregoing clauses (v)(1) or (v)(2) of
this subparagraph (e). After the Remedy Bar Termination Date, Subordinated
Creditor may enforce its rights and remedies under the Subordinated Security
Agreement, but subject in all events to the restrictions and limitations of the
Lien Subordination, including all requirements therein to give notice of intent
to initiate any enforcement action.
(f) Nothing contained in the foregoing subparagraphs (c), (d) and (e)
of this paragraph 5 shall limit, modify or impair Senior Creditor's ability to
give both a Payment Bar Notice and a Remedy Bar Notice, whether simultaneously
or successively, so long as, with respect to each of such Payment Bar Notice and
such Remedy Bar Notice, and the respective Payment Bar Period and Remedy Bar
Period commenced thereby, the respective conditions and limitations applicable
thereto as set forth in such subparagraphs (c), (d) and (e), and the applicable
provisions of subparagraph (g), of this paragraph 5 shall be satisfied in
accordance with the terms thereof; provided, however, that notwithstanding
anything herein to the contrary, if a Remedy Bar Notice is given simultaneously
with a Payment Bar Notice or during the pendency of a Payment Bar Period
commenced by such Payment Bar Notice, then the Remedy Bar Period commenced by
such Remedy Bar Notice shall terminate not later than the date of termination of
such Payment Bar Period.
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(g) The foregoing provisions of this paragraph 5 shall be subject to
the following additional conditions and limitations:
(i) No Payment Bar Notice may be given during the pendency of
any Payment Bar Period, no Remedy Bar Notice may be given during the
pendency of a Remedy Bar Period, and no more than one Payment Bar
Period and no more than one Remedy Bar Period may be commenced during
any period of 365 consecutive days; and
(ii) No facts or circumstances constituting a Senior Debt
Default existing on the date any Payment Bar Notice is given and of
which an officer of Senior Creditor has actual knowledge may be used
as a basis for any additional or subsequent Payment Bar Notice. No
facts or circumstances constituting a Senior Debt Default existing on
the date any Remedy Bar Notice is given and of which Senior Creditor
has actual knowledge may be used as a basis for any additional or
subsequent Remedy Bar Notice.
(h) In no event shall Senior Creditor's continuing to honor any
request of Borrowers for Loans or other extensions of credit under the Loan
Agreement after the occurrence or during the continuance of any Senior Debt
Default be deemed a waiver thereof, unless such Senior Debt Default is expressly
waived in writing by Senior Creditor.
(i) Notwithstanding anything herein that may authorize the holders of
the Subordinated Debt to exercise remedies when no Remedy Bar Period is in
effect, in no event shall any holder of Subordinated Debt be authorized to take
any action with respect to the Collateral that is prohibited by the terms of the
Lien Subordination. To the extent that any provision of this Agreement relating
to any Collateral shall be deemed to be in conflict with any provision of the
Lien Subordination, the terms of the Lien Subordination shall govern and
control.
6. TURNOVER OF PROHIBITED TRANSFERS. If notwithstanding the
provisions of this Agreement any payment, distribution or security (other than
Reorganization Securities), or the proceeds thereof, are received by any holder
of Subordinated Debt on account of or with respect to any of the Subordinated
Debt other than as expressly permitted in paragraph 5 hereof, such payment,
distribution or security (other than Reorganization Securities) shall be held in
trust for the benefit of, and shall immediately be paid or delivered by such
holder to, Senior Creditor in the form received (except for the addition of any
endorsement or assignment necessary to effect a transfer of all rights therein
to Senior Creditor) for application to the Senior Debt (or to be held as
collateral for the payment of obligations of Obligors in respect of outstanding
Letters of Credit or similar contingent obligations incurred pursuant to the
Senior Creditor Loan Documents). Senior Creditor is irrevocably authorized to
supply any required endorsement or assignment which may have been omitted. Until
so delivered, any such payment, distribution or security shall not be commingled
with other funds or property of Subordinated Creditor.
7. AMENDMENTS TO DOCUMENTS.
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(a) Senior Creditor and each Obligor shall be authorized to amend any
of the Senior Creditor Loan Documents to which they are a party in accordance
with the terms thereof, and without prior notice to or the consent of any of the
holders of the Subordinated Debt, except that Senior Creditor and Borrowers
shall not without the prior written consent of Subordinated Creditor (i) make
Loans or other extensions of credit that would cause the aggregate Senior Debt
outstanding at any time to exceed the Senior Debt Limit, (ii) increase the rate
of interest payable with respect to the Senior Debt by more than 2.00% per annum
over the rate in effect on the date hereof other than as a result of the
imposition of the Default Rate (as defined in the Loan Agreement on the date
hereof), (iii) increase the amount of the fees payable by Borrowers under the
Loan Agreement as in effect on the date hereof, but without prejudice to Senior
Creditor's and Borrowers' right to agree to the payment of other fees if and to
the extent required by Senior Creditor as a condition to Senior Creditor's
making available extensions of credit to Borrowers other than those provided for
in the Loan Agreement on the date hereof, consisting of a term loan(iv)
accelerate the amortization schedule of any portion of the Senior Debt except as
otherwise permitted by the Senior Creditor Loan Documents as such amortization
schedule is in effect on the date hereof or as such schedule may hereafter be
accelerated with Borrowers' and Subordinated Creditor's prior written consent,
or (v) alter any provisions in the Loan Agreement to prohibit Borrowers from
making any payment on the Subordinated Debt when the holders of Subordinated
Debt are entitled under the terms of this Agreement to accept and retain such
payment. Borrowers shall promptly after the execution of any such amendments or
modifications give conformed copies thereof to Subordinated Creditor.
(b) Without the prior written consent of Senior Creditor (which
consent may be given or withheld in Senior Creditor's sole discretion), no
provision of the Subordinated Debt Documents shall be amended, modified or
supplemented if the effect thereof would be to (i) advance the originally
scheduled dates for the payment of principal, interest or other sums payable in
respect of any Subordinated Debt, or modify in any manner adverse to any Obligor
the dates for or premiums payable in connection with prepayments, (ii) impose
on any Obligor prepayment charges, closing fees or other fees or amounts that
are greater than the respective amounts thereof in effect on the date hereof, or
(iii) impose on any Obligor any representations, warranties, covenants, events
of default or other provisions that are more restrictive or burdensome to such
Obligor than the terms and provisions of the Subordinated Debt Documents as in
effect on the date of this Agreement.
8. PURCHASE OF SENIOR DEBT.
(a) If there exists any Senior Debt Default as a consequence of
which Senior Creditor elects to enforce its enforcement remedies under the
Senior Creditor Loan Documents or under Applicable Law, Subordinated Creditor
shall have the option (but not the obligation), upon at least 20 (but not more
than 30) days prior written notice to Senior Creditor, to purchase from Senior
Creditor all, but not less than all, of the Senior Debt for an amount in cash
equal to then outstanding balance of the Senior Debt, including the principal
amount of all Loans, accrued but unpaid interest with respect thereto as of the
date of such purchase, all unpaid fees, expenses and other charges then owing
under the Senior Creditor Loan Documents and all contingent obligations of any
Obligor to Senior Creditor (including any contingent obligations
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related to any outstanding Letters of Credit). In connection with any such
purchase, Subordinated Creditor shall indemnify Senior Creditor for any losses
incurred by Senior Creditor during the 60-day period following such purchase as
a consequence of any returned checks for which a provisional credit had been
given by Senior Creditor in calculating the purchase price for the Senior Debt.
Any purchase must be consummated within 30 days after Senior Creditor's receipt
of a notice of Subordinated Creditor's intent to effectuate a purchase, unless
extended by Senior Creditor in its sole discretion, and any notice once given
shall be irrevocable. Upon the exercise of such option by the Subordinated
Creditor, the Senior Creditor will assign to the Subordinated Creditor all of
its right, title and interest in and to the Senior Creditor Loan Documents and
the Senior Debt without recourse or warranty, whereupon this Agreement shall be
terminated.
(b) Notwithstanding any sale or assignment of the Senior Debt and
Senior Creditor Loan Documents by Senior Creditor to Subordinated Creditor
hereunder, Borrowers agree that any such sale and assignment by Senior Creditor
shall not operate to terminate or impair Borrowers' indemnifications of Senior
Creditor under the Senior Creditor Loan Documents or otherwise, all of which
shall survive any such sale and assignment.
9. CERTAIN WAIVERS AND CONSENTS. Borrowers and Subordinated Creditor
each hereby waives any defense based on the adequacy of a remedy at law which
might be asserted as a bar to the remedy of specific performance of this
Agreement in any action brought therefor by Senior Creditor. To the fullest
extent permitted by Applicable Law, Borrowers and Subordinated Creditor each
hereby further waives: (i) presentment, demand, protest, notice of protest,
notice of default or dishonor, notice of payment or nonpayment and any and all
other notices and demands of any kind in connection with all negotiable
instruments evidencing all or any portion of the Senior Debt; (ii) the right to
require Senior Creditor to xxxxxxxx any securities, or to enforce any Lien
Senior Creditor may now or hereafter have in any Collateral securing the Senior
Debt or to pursue any claim it may have against any guarantor of the Senior
Debt, as a condition to Senior Creditor's entitlement to receive any payment on
account of the Senior Debt; (iii) notice of the acceptance of this Agreement by
Senior Creditor; and (iv) notice of any Loans or other credit made available to
Borrowers, extensions of time granted, amendments to the Loan Agreement or the
other Senior Creditor Loan Documents, or other action taken in reliance hereon.
Subordinated Creditor hereby consents and agrees that Senior Creditor may,
without in any manner impairing, releasing or otherwise affecting the
subordination provided for in this Agreement or any of Senior Creditor's rights
hereunder and without prior notice to or the consent of Subordinated Creditor:
(i) release, renew, extend, compromise or postpone the time of payment of any of
the Senior Debt; (ii) substitute, exchange or release any or all of the
Collateral or decline or neglect to perfect Senior Creditor's Lien upon any of
the Collateral; (iii) add or release any Person primarily or secondarily liable
from any of the Senior Debt; (iv) amend or modify any of the Senior Creditor
Loan Documents (except as provided in paragraph 7 hereof) or waive any Senior
Debt Default; and (v) except as provided in paragraph 7 hereof, increase or
decrease the amount of the Senior Debt or the rate of interest or the amount of
any other charges payable in connection therewith.
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10. STATEMENT OF ACCOUNT. Borrowers and Subordinated Creditor each
agrees to render to Senior Creditor from time to time upon Senior Creditor's
request therefor a statement of Borrowers' account with Subordinated Creditor
and to afford Senior Creditor access to the books and records of Subordinated
Creditor and Borrowers in order that Senior Creditor may make a full examination
of the state of accounts of Borrowers with Subordinated Creditor.
11. INDULGENCES NOT WAIVERS. Neither the failure nor any delay on the
part of Senior Creditor to exercise any right, remedy, power or privilege
hereunder shall operate as a waiver thereof or give rise to an estoppel, nor be
construed as an agreement to modify the terms of this Agreement, nor shall any
single or partial exercise of any right, remedy, power or privilege with respect
to any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver by a party hereunder
shall be effective unless it is in writing and signed by the party making such
waiver, and then only to the extent specifically stated in such writing.
12. DURATION. This Agreement shall become effective when executed by
Borrowers and Subordinated Creditor and accepted by Senior Creditor in Atlanta,
Georgia, and, when so accepted, shall constitute a continuing agreement of
subordination, and shall remain in effect until all of the Senior Debt has been
paid in full in immediately available funds and all commitments of Senior
Creditor to make Loans or otherwise extend credit under the Loan Agreement have
been terminated or expired. Senior Creditor may, without notice to Subordinated
Creditor, extend or continue credit and make other financial accommodations to
or for the account of Borrowers in reliance upon this Agreement. The provisions
of this Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time payment of any Senior Debt is rescinded or otherwise must
be returned by Senior Creditor upon or in connection with any Insolvency
Proceeding of an Obligor, all as if any such payment had not been made.
13. DEFAULT AND ENFORCEMENT. If at any time any holder of Subordinated
Debt fails to comply with any provision of this Agreement that is applicable to
such holder, Senior Creditor may demand specific performance of this Agreement,
whether or not Borrowers itself has complied with the terms hereof, and may
exercise any other remedy available at law or equity. Without limiting the
generality of the foregoing, if any holder of Subordinated Debt, in violation of
this Agreement, shall institute or participate in any action, suit or proceeding
against Borrowers, then Borrowers may interpose as a defense or dilatory plea
this Agreement and Senior Creditor is irrevocably authorized to intervene and to
interpose such defense or plea in its or Borrowers' name. If any holder of
Subordinated Debt attempts to enforce any Lien with respect to any Collateral in
violation of this Agreement or the Lien Subordination, Borrower or Senior
Creditor (in Borrowers' or Senior Creditor's name) may by virtue of this
Agreement restrain such enforcement.
14. NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement or by Applicable Law shall be in
writing and shall be deemed to have been duly given, made and received when
delivered against receipt, or when received
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by telecopy at the office of the noticed party or on the third Business Day
after deposit in the United States mails, postage prepaid, addressed as set
forth below:
(a) If to Senior Fleet Capital Corporation
Creditor: 000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Loan Administration Mgr.
Telecopy: (000) 000-0000
(b) If to Subordinated Banc One Capital Partners, LLC
Creditor: 000 Xxxx Xxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(c) If to Borrowers: Atlantic Premium Brands, Ltd.
000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
Any addressee may alter the address to which communications are to be sent
by giving notice of such change of address in conformity with the provisions of
this paragraph for the giving of notice. Notice given in any other manner shall
nevertheless be effective as to the noticed party on the date actually received
by such noticed party.
15. ENTIRE AGREEMENT. This Agreement and the Lien Subordination constitute
and express the entire understanding between the parties hereto with respect to
the subject matter hereof, and supersede all prior agreements and
understandings, inducements or conditions, whether express or implied, oral or
written. If and to the extent the terms hereof are inconsistent with any
subordination provisions contained in the Subordinated Note, the terms of this
Agreement shall govern and control. Neither this Agreement nor any portion or
provision hereof may be changed, waived or amended orally or in any manner other
than by an agreement in writing signed by Senior Creditor, Borrowers and
Subordinated Creditor.
16. ADDITIONAL DOCUMENTATION. Borrowers and Subordinated Creditor shall
execute and deliver to Senior Creditor such further instruments and shall take
such further action as Senior Creditor may reasonably request from time to time
in order to carry out the provisions and intent of this Agreement.
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17. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
Senior Creditor, its successors and assigns, and shall be binding upon both
Borrowers and Subordinated Creditor and their respective heirs, executors,
successors and assigns; provided, however, that, except as otherwise expressly
set forth in this paragraph 17 and in paragraph 4 herein, neither Subordinated
Creditor nor any subsequent holder of any Subordinated Debt shall assign or
transfer to any Person any part of the Subordinated Debt. Without limiting the
generality of the foregoing, any Qualified Lender whose loans or advances to
Borrowers or any other Obligor hereafter are used to refinance and pay
indefeasibly in full the Senior Debt shall be deemed for all purposes hereof to
be the successor to Senior Creditor, and from and after the date of any such
refinancing and satisfaction in full of the Senior Debt such Qualified Lender
shall be deemed a party hereto in the place and stead of Senior Creditor as if
such Qualified Lender had been the original signatory hereto, and all loans,
advances, liabilities, debit balances, covenants and duties at any time or times
owed by Borrowers to such successor to Senior Creditor, whether direct or
indirect, absolute or contingent, secured or unsecured, due or to become due,
then existing or thereafter arising, including any renewals, extensions,
modifications, or replacements of any of the foregoing, shall be deemed for all
purposes hereunder to constitute and be Senior Debt.
18. DEFECTS WAIVED. This Agreement is effective notwithstanding any defect
in the validity or enforceability of any instrument or document at any time
evidencing or securing the whole or any part of the Senior Debt.
19. GOVERNING LAW. The validity, construction and enforcement of this
Agreement shall be governed by the internal laws of the State of Georgia.
20. SEVERABILITY. The provisions of this Agreement are independent of and
separable from each other. If any provision hereof shall for any reason be held
invalid or unenforceable, it is the intent of the parties that such invalidity
or unenforceability shall not affect the validity or enforceability of any other
provision hereof, and that this Agreement shall be construed as if such invalid
or unenforceable provision had never been contained herein.
21. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties to this Agreement on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed to be an original
signature hereto.
22. JURY TRIAL WAIVER. IN THE EVENT OF ANY LITIGATION WITH RESPECT TO ANY
MATTER CONCERNED WITH THIS AGREEMENT OR THE SENIOR DEBT, SUBORDINATED CREDITOR,
BORROWERS AND SENIOR CREDITOR EACH HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ALL RIGHTS TO A TRIAL BY JURY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed, sealed and delivered on the day and year first above written.
ATLANTIC PREMIUM BRANDS, LTD.
By: /s/ XXXXXXX X. XXXXXX
---------------------
XXXXXXX X. XXXXXX, Chairman
CARLTON FOODS CORP.
By: /s/ XXXXXXX X. XXXXXX
---------------------
XXXXXXX X. XXXXXX, Chairman
PREFCO CORP.
By: /s/ XXXXXXX X. XXXXXX
---------------------
XXXXXXX X. XXXXXX, Chairman
XXXXXX'X FARM, INC.
By: /s/ XXXXXXX X. XXXXXX
---------------------
XXXXXXX X. XXXXXX, Chairman
XXXXXXXX CAJUN FOODS CORP.
By: /s/ XXXXXXX X. XXXXXX
---------------------
XXXXXXX X. XXXXXX, Chairman
[Signatures continued on following page]
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POTTER'S ACQUISITION CORP.
By: /s/ XXXXXXX X. XXXXXX
---------------------
XXXXXXX X. XXXXXX, Chairman
BANC ONE CAPITAL PARTNERS, LLC
("Subordinated Creditor")
By: /s/ XXXXXXX XXXXXXXX
---------------------
Title: Vice President
Accepted in Atlanta, Georgia, this 20th day of March, 1998.
FLEET CAPITAL CORPORATION
("Senior Creditor")
By: /s/ XXXXXX XXXXXXXX
---------------------
Title: Vice President
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